DECEMBER 8, 2011 REGULAR MEETING MINUTES

The Town of Kent Zoning Board of Appeals held a regular meeting on November 8, 2011at 7:30p.m. in the Kent Town Hall.
1) Call to Order and Roll Call
Mr. DiPentima called the meeting to order at 7:30p.m.
2) Appointment of Alternates(s) to Voting Status.
Commissioners Present:       Anthony DiPentima, Anne Bisenius, Nick Downes, Robert Levine, Daniel Murray, Jim Samartini, Mike VanValkenbur
Commissioners Absent: Staff Present: Edward Hoffman Donna Hayes, ZBA Secretary/Clerk
Mr. DiPentima elevated Ms. Bisenius to voting status.

3)         Acceptance or Revision of Agenda
Mr. Samartini moved to accept the agenda as written. Mr. Levine seconded and the motion carried unanimously.
4) Minutes of April12, 2011
Mr. Murray moved to approve the minutes of April 12, 2011 as written. Ms. Bisenius seconded and the motion carried unanimously.
5) Recess Meeting. Convene Hearing:

Mr. DiPentima recessed the meeting and convened the hearing at 7:33 p.m.

#04-11   Guy Mauri, 52 Kent Cornwall Road, appeal of Enforcement Order #01-11 issued by the
Land Use Administrator and dated August 31, 2011, , Map 9 Block 53 Lot 15.

Mr. DiPentima began by saying that since he has been a member of the ZBA they have never heard an appeal to an order given by the Planning and Zoning Commission or their office.   He then read Section

23.1.1. which states: “Appeals. The ZBA shall have the authority to hear and decide upon any appeal where it is alleged that there is an error in the order, requirements, decision or determination of the Zoning Enforcement Officer. No question of hardship shall be involved in such an appeal, and the action of the ZBA thereon shall be limited to the question of whether or not, and to what extent such order, requirement, decision, or determination was a correct interpretation of the subject provision of these

Regulations.” Mr. DiPentima continued by saying that this was not an appellate court and not a hearing de novo but rather a determination of whether or not Planning & Zoning accurately interpreted the regulations with regard to Mr. Mauri.   He then asked Mr. Mauri to address the Commission.

Mr. Mauri explained to the Commission that he has a vacation rental that the current regulations do not speak to. He continued by saying that originally they lived in the barn and rented out the main farm house but decided to move back to the farm house and rent the barn furnished. Mr. DiPentima asked Mr. Mauri to describe the property. Mr. Mauri answered that originally the barn was considered a commercial property but the use was changed back to residential. Currently the barn is rented out on a short-term, seasonal basis.

The barn is listed on a number of vacation rental sites and has its own website. Mr. Mauri said that someone complained to the Land Use office that the property was being used as an inn or resort. As a result of the complaint he met with the P&Z Commission and was issued a Cease and Desist order. Mr. Mauri was appealing the decision by the Commission. Mr. Downes asked if the property was advertised as an event venue. Mr. Mauri said that it was not but that the property lends itself to special events. Since the complaint, Mr. Mauri said that he has changed the website.

Mr. Murray asked how many people the barn can hold and Mr. Mauri said that he changed the website to indicate a reduction from 14 people to 6. Mr. Samartini asked how a 3 bedroom barn could accommodate 14 people. Mr. Mauri explained that there were trundle beds, a master bedroom with a futon, two other bedrooms and 2 convertible sofas. He continued by saying that there have not be many rentals of that size and that most have been 3 or 4 people, some larger and some families. Mr. Murray asked if Mr. Mauri could keep it at 6 guests and Mr. Mauri said that he could and his website states 6 guests.

He continued by saying that it’s a gray area when someone asks if they could have additional people join the renters and Mr. Samartini said that it would his responsibility to say “No”. Mr. Murray said that his main concern would be the protection of the neighborhood and keeping the scale appropriate to the area. Mr. Mauri said that they have had one wedding and one reunion. He said that any person who rents out a home can have a party and that he does not believe that the landlord has the right to reject the tenant’s request. Mr. DiPentima said that tenants have the same rights to use and enjoy the families.

Mr. Downes said that his main concern is about how the property is promoted as a rental. He said that there are quite a few in Kent but that they are rented by real estate agents. Mr. Downes asked what the longest rental term was and Mr. Mauri said that he currently has a couple staying in the barn for 5 weeks. When asked what the shortest term was, Mr. Mauri replied a weekend.   Mr. DiPentima asked how he managed to work this out with Torrington Area Health.

Mr. Mauri said that if there was an event, the tenant was required to get a port-a-potty and that no more than 20 people were allowed in the barn. He said that all events are outside events and that the tenant was also required to pull tent permits if tents would be used for the event. Mr. Mauri explained that the property definitely lends itself to those types of venues. He continued by saying that he was not opposed to having weddings but that they do not want to have event after event.

Mr. Mauri said that his main goal was to capture the short­ term rental market because that’s where the money was. He compared his rental to the rental of a ski house or beach house. Mr. Mauri said that they are very protective of the septic and the property and that the neighbors have not complained yet. Ms. Bisenius said that they rent beach houses but there are stipulations regarding what they can and cannot do while staying in the property. She asked if this barn was considered a venue. Mr. Mauri replied that they are not promoting events and that it was removed from his website.

Mr. Murray asked if there were regulations specific to short term commercial rentals and Mr. DiPentima said that he did not see one. Mr. Samartini explained that if it is not listed in the regulations, it is not allowed. He continued by saying that was the way the regulations were written. Mr. DiPentima agreed. Mr. Downes asked if that meant that renting your home was not allowed. Mr. Samartini said that if the homeowner was going to be absent for 6 weeks, then the homeowner can rent out the house. He said that as this is presented, the rental of the barn is a commercial venture.

Mr. Mauri referred the Commissioners to section 6.1.3 which states that “The furnishing of rooms or board for hire by the owner of the premises to not more than six individuals, who are not related to the owner by blood or marriage. In counting the number of such individuals, members of the owner’s family shall in all cases be excluded.”   Ms. Bisenius said that regulation applies to the dwelling in which the homeowner lives.

Mr. Samartini said that this was not a vacation property but a primary residence. Mr. DiPentima said that they were talking semantics at this point. Ms. Bisenius then read the definition of “Commercial”. Mr. Murray said that the property is not traditional and that residential rentals are usually done for a longer period of time and not as a money making venture. Mr. Mauri referred him to Section 6.1.3 to which Mr. Murray still disagreed. He reiterated that this was a commercial venture in a residential, rural area and that their responsibility is to protect the harmony of the homes and lifestyle of that area.

When Mr. Mauri asked why people want to stop what he is doing, Mr. DiPentima replied that they are not trying to do that but rather the Commission was trying to interpret the regulations and not overstep their bounds by overriding the Planning & Zoning Commission.

Ms. Bisenius pointed out that under section 6.2.13 property owners   were allowed “one additional dwelling unit per lot located in an accessory structure provided that the owner of said property shall be the occupant of either the dwelling unit or principal dwelling…” and that currently there is the primary dwelling with an accessory apartment, a cottage rental and the barn. She said that what is happening should be a special permit use. Mr. DiPentima agreed.

Bisenius asked about Torrington Area Health’s determination about the pool. Mr. Mauri said that they took exception by saying that any rental can say they have a pool and that it would not be a public pool. Ms. Bisenius asked if they were still in the ads and Mr. Mauri said that they were.

Mr. DiPentima asked Mr. Mauri how large the property was and Mr. Mauri said that it was 4.6 acres. Mr. DiPentima asked Ms. Hayes if all abutting landowners were notified and if there had been any responses. Ms. Hayes said that all abutting landowners were notified and that she had not received any responses from them.

Mr. Mauri said that he had received some friendly calls from the neighbors. He said that he understands why someone complained and that he has sympathy for the owners of bed and breakfasts in town since they require a special permit. Ms. Bisenius explained that the First Selectman forwarded an email complaint from a resident to Mr. Laroche which started the investigation.

Mr. DiPentima asked if there were any additional questions to which the Commissioners replied no. He asked Mr. Mauri if there was anything else he wanted to say to which he replied that there wasn’t but that he would be willing to answer any questions that might come up.

Mr. DiPentima closed the meeting at 7:20p.m.

1) Reconvene Meeting. Action on Appeal(s) Heard

Mr. DiPentima reconvened the meeting at 7:20p.m. with no break and asked the Commissioners if they had anything to add. Mr. Van Valkenburg stated that he had read all that was written about the property and it seemed to him that they were running something between the Amber Room and Club Getaway. He continued by saying that if there would be between 50 and 100 people there on the weekend he would not like to live next door to this type of establishment. Mr. DiPentima allowed Mr. Mauri to respond to that statement even though the meeting was closed.

Mr. Mauri said that he would agree with Mr. VanValkenburg if that was the case. He continued by saying that there was never a private chef or any of the other perks mentioned. He said that if someone rented their barn they hired a caterer and did not know where that information came from.   Mr. Mauri   said that whatever was perceived as offending, they removed from their advertising well before the Commission’s meeting. He continued by saying that he explained that to the Commission and asked them to tell him where he was going afouL Mr. Mauri said that he asked them for advice regarding what should be included on the website. He said that changes were made starting in March and finally finished in June.

Mr. Mauri said that when the information was submitted to the Commission in August they ignored the changes to the website and rested their conclusion on things that no longer existed which he feels is terribly unfair of them. Mr. DiPentima said that he was allowing Mr. Mauri to answer because that question was not posed to him during the meeting.

Mr. DiPentima said that it seems to him that if the Commission applies Section 6.1.3 and he is restricted to no more than 6 people occupying the dwelling   overnight then he thinks it addresses Mr. Van Valkenburg’s concern. He continued by saying that it does not mean that the 6 people could not have 50 people there during the day or a party there that evening. Mr. DiPentima said that he does not see anything terribly wrong with that provided there are only 6 people sleeping in the dwelling that night and that there are not tents pitched all around. If there are only 6 people at the end of the day and these people are allowed to conduct whatever activities they want under their short term rental agreement, Mr. DiPentima said that he does not know what is wrong with that.

Ms. Bisenius said that she would like to play devil’s advocate. She asked, if 52 people rented the barn over the course of the year and every weekend that someone rented it they felt that their due right as the renter for the weekend was to hold a party for 200 people, is that the intent of the regulations. Mr. DiPentima said that he did not say that was the intent of the regulation but that you could carry the logic of that and it could happen every weekend. Ms. Bisenius said that she has no problem with the short term rental of the facility as a residence, but if the implied use either in advertising or in verbal discussion is that this is a venue for holding special events, then that is a different use than a residential rental.

Mr. DiPentima agreed with Ms. Bisenius and asked if they limit this to residential would this be something that everyone is comfortable with. Mr. Samartini said that Ms. Bisenius’ point was well taken. He continued by saying that he did not think you could manage that part of the process through a regulation, but you can stipulate that it is for residential use occupied by no more than 6 people.   Mr. DiPentima agreed. Mr. Samartini said that after that it would be left up to the good will and good sense of those people.

Mr. DiPentima said that Planning and Zoning will have to deal with this because the regulation is woefully inadequate. He continued by saying that as Mr. Downes said, there is a market for this that has not been dealt with and Planning and Zoning will have to deal with it. He said that this is a test case and while he does not disagree with the process that Planning and Zoning went through, he feels that they were a little restrictive in their interpretation which Planning and Zoning tends to be.

Mr. Dipentima said that he felt Ms. Bisenius defined it well and if they operate under those parameters, they have protected the neighbors, abided by the spirit of the regulations and the code and this gentleman is allowed to use his property and make some money.

It was asked if a motion needed to be made. Mr. Levine asked if it should not go back to Planning & Zoning and let them handle it.   Ms. Samartini said that since the ZBA overturned their ruling, he suggested going back to them with the point you made and ask them to reconsider the regulations and clarify them so that future cases will have some clarity with regard to what is allowed and what is not.

He continued by saying that by overturning the Cease and Desist Order, all the ZBA is saying is that the regulations are not clear. Mr. DiPentima asked what would happen to Mr. Mauri in the meantime. Mr. Samartini said that he is in the clear because the ZBA has overturned the Cease and Desist Order.

Mr. Murray said that they could use Section 6.1.3 with the stipulation that because the dwelling is located in a residential zone there would be a 6 person limit overnight. Mr. DiPentima said that Mr. Levine’s point is well taken and suggested sending this back to Planning and Zoning on the basis of a reversal of the Cease and Desist Order with the caveat that Mr. Mauri is allowed to operate.   Ms. Bisenius suggested sending them a note of their decision telling them that they have overturned the Cease and Desist Order based on section 6.1.3.

Ms. Bisenius moved to overturn Enforcement Order #01-11 dated August 31, 2011 based on the fact that the regulations do not specifically address this particular type of short term residential rental and that under Section 6.1.3. it is the interpretation of the Zoning Board of Appeals that the applicant is allowed to rent his facility to no more than 6 people overnight and that the Planning and Zoning Commission may want to address this particular type of rental situation when revising their code. Mr. Samartini seconded and the motion carried unanimously.

After the motion was made, Mr. Murray asked Mr. Mauri how he had been renting the facility when there was a Cease and Desist Order in place. Mr. Mauri replied that it was because they believed it was invalid. Mr. DiPentima said that Mr. Mauri should not have people currently renting. Mr. Mauri said that most people rent the barn 6 or 7 months previous to their visit and Mr. DiPentima said that he understands that, but that is no excuse for ignoring the Cease and Desist Order.

2)         Old Business

No action taken.

3)         New Business

No action taken.

4)         Communications

Approval of 2012 Regular Meeting Schedule

Mr. VanValkenburg moved to approve the 2012 Regular Meeting Schedule as presented. Mr. Levine seconded and the motion carried unanimously.
Monthly Financials

No action taken.

Connecticut Federation of Planning and Zoning Agencies Quarterly Newsletter, Spring and Summer, 2011.
No action taken.

Adjourn

Mr. Van Valkenburg moved to adjourn at 8:36 p.m. Ms. Bisenius seconded and the motion carried unanimously.

After the meeting had adjourned, discussion continued with regard to the Cease and Desist Order placed on agenda item #04-11. As a result, Mr. DiPentima reopened the meeting at 8:40 p.m. A question arose regarding the process necessary for Mr. Mauri to obtain the permit required under Section 6.1.3. Ms. Bisenius advised the members that Mr. Mauri would have to apply for an administrative permit through the Land Use office.

Ms. Bisenius amended her motion to make sure that the Zoning Board of Appeals specifies to Mr. Mauri in their decision that he needs to pull the administrative permit for the permitted use listed under Section

6.1.3. Mr. Samartini seconded and the motion carried unanimously.

Ms. Bisenius moved to adjourn at 8:45 p.m.     Mr. Samartini seconded and the motion carried unanimously.

Respectfully submitted,

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Donna M. Hayes, ZBA Secrei{Jry/Cierk