HomeMy WebLinkAbout1998-03-23 Decision meeting, sirens � r ,
TOWN OF GROTON ZONING BOARD OF APPEALS
Decision Meeting - Monday, 23 March 1998 - 79.00 p.m.
Board Members (*absent) Others Present
Lyle Raymond , Chairman Jas. Baranello & Fran Casullo, Town Attys.
*Mary Decker George Senter, Sr. , Town CEO
Mary Adams Joan Fitch, Recording Secretary
John Pachai Teresa Robinson, Town Supervisor
Steve Thane George Totman , Town Planning Bd, Chair
Public Present
DeForest Hall, Jean & John Dufresne, Don Scheffler
The Decision Meeting was called to order at 7:00 p.m . by Chairman Lyle Raymond.
L. Raymond: Okay, let's get our meeting going here. The fast thing we've got to do is approve the
Minutes of the meeting of 24 November 1997, This was the Minutes from the meeting where we
discussed the tentative findings for the Langer case and , as you'll recall, we instructed the counsel to
draw those findings up in legal form which we then dealt with on December 9th . So I assume you have
all looked at the Minutes of the meeting for November 24th . Do I have a motion to approve?
J. Pachai: I'll so move .
M. Adams: I'll second it.
L. Raymond: It has been moved and seconded that we approve the Minutes . All in favor say aye .
(All members present indicated they were in favor.) Okay. And the meeting for December 9th , actually
the findings that we approved on that date were the entirety of that meeting, and I'm assuming that
constitutes approval of Minutes that way. What else is there to approve? We approved the findings of
that and that was the entirety of the meeting. It was short. And what else was there to J. Pachai: We approved the Minutes, or we approved the findings.
L. Raymond: And that was the entirety for the meeting.
J. Pachai: But we didn't really approve the verbatim Minutes.
L. Raymond: All right. We can do that then . We can do that. Does somebody want to make a
motion that we approve the verbatim Minutes for the meeting for December 9th?
Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
S. Thane: So moved .
L. Raymond: Second?
J. Pachai: Here.
L. Raymond: It has been moved and seconded that we approve the verbatim Minutes for the meeting
on December 9th ( 1997) . All in favor say aye. (All members present indicated aye. ) Done . The purpose
for this meeting --
J. Pitch: Didn't you have a February one?
L. Raymond: That was a hearing, that was not an official meeting of the Board in the sense that we
have Minutes. We don't have to approve those as far as I know. Okay, the purpose of this meeting is
to develop our findings for the Clara Travis case and, for the record, all members present have read the
testimony and any other material that pertains to the Travis case. We're going to be one person short
tonight. Mary Decker finds that she can't make it, but we certainly have enough here for a quorum. I
have debated just how we would approach this thing tonight, and what I'm suggesting, going to
suggest, which I drew up here on a little form here for myself is that we begin by simply identifying the
questions and issues that we want to deal with tonight, and agree among ourselves upon what those
issues are before we go any further. And I have drawn up a little list of my own here from the
testimony, and why don't I just read them over and you guys tell me whether you want to make
additions, subtractions, or changes to this . But at least it will give us a way to get started on this
thing. It seemed to me I had seven questions that seemed to emerge from the testimony and other
information that we have in this case. The first one has to do with the non-conforming activities, and
that was under Section 113. 1 (d) which was in the Appeal that Clara made. The second one was
whether the activities fall into the category in the Code that requires Site Plan Review. And that also
was cited in her Appeal, Section 302 , as questioning. The third one is whether it is an eating and
drinking establishment requiring Site Plan Review. The fourth one I came up with is whether this is an
eating and drinking establishment at all; the question was raised in the testimony. The fifth one is
whether the activities are a commercial indoor recreation establishment under the Code . The sixth one
is the issuance of a Certificate of Occupancy by the Code Enforcement Officer that was raised . And the
last one here is the question of certain decisions made or not made by the Code Enforcement Officer
regarding Site Plan Review. That's the list I came up with , and while you folks feel that I've covered
them, or if you've got some other ones you want to put in, or maybe there are some here maybe we
hadn't ought to have in, or what's the consensus?
J. Pachai: Could you re-state Number 6?
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
L. Raymond: Here. I've got more than one copy of this I printed out for myself. So if you want to
look at it you can .
J. Fitch: Do you have any extras, Lyle?
L. Raymond: I printed out two when I did this up for myself here , so G. Senter: I can make some extra copies for you .
J. Baranelio: The very first finding, I think, ought to be, so you can get it out of the way, is that
Clara Travis is an aggrieved person who is appealing pursuant to Section 426 of your Code of
Ordinances.
L. Raymond: All right, counsel is suggesting that we make this the first question whether she's an
aggrieved person here .
J. Baranello: Right,
L. Raymond: All right. And then we can go to the other questions here if we do that. Now, any
others, or are you guys satisfied with the list I came up with? That's the first one here . Do we want to
operate on that?
S. Thane: You covered each of the sections that she listed in her Appeal?
L. Raymond: Well, she actually -- and if you look at the wording of the actual Appeal -- she only
mentions Section 113 and 302 at the beginning .
S. Thane: And 341 ,
L. Raymond: And then the others were only by reference.
S . Thane: 113 and 341?
L. Raymond: 302 , wasn't it?
S. Thane : No . It says see also Sections 302 and --
L. Raymond: That's what I meant. See also. That's by reference . The actual ones are 113 --
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Fitch: It is to me.
L. Raymond: Okay, now do we have any additional things we want to put in here? I'll put it that
way first. Or do you want to delete some of these?
J. Pachai: That there are two reasons for the Appeal listed, and I believe that those should be
looked at separately.
L. Raymond: Okay. And I had dealt with Number 7. On the sheet you're looking at here I had on
mine, certain decisions made or not made by the Code Enforcement Officer. So do you want to divide
that into two?
J. Pachai: I'd like to look at the two reasons specified in the Appeal.
L. Raymond: Okay. So we'll put down questions certain decisions made, (a) eating and drinking
and (b) she said the indoor recreation . How's that? Anything else we should put in here?
J. Pachai: There was another one .
L. Raymond: Do you have another one here , John?
J. Pachai: I've lost it. Well, I'll just have to bring it up when it pops back to mind .
L. Raymond: All right. Are we then satisfied with the list as amended here by you folks that what
we're going to deal with , and the next question is: is the order in which we're going to take them. Do
we want -- it's already been suggested by counsel that we change the order in the sense of putting
whether she's an aggrieved person up here at the front. Otherwise, I just follow down through from the
order that was in the Appeal in the first place. We don't have to take them in that order if you don't
want to .
M. Adams: That's fine.
J. Pachai: It makes sense .
L. Raymond: Well , so we're going to start off then with the question of whether she's an aggrieved
person. Certainly, at least in the way I had looked at it and in looking over the materials that were
given in our various training sessions on the law, in one respect you would look at it and say, yes,
she's an aggrieved person. In another respect you look at it and say, well, she doesn't seem to meet the
requirements for an aggrieved person.
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
M. Adams: What's an aggrieved person?
L Raymond: Well, an aggrieved person, as I understand it and we can ask counsel here the
definition, but an aggrieved person is someone, if I read my materials right, who has suffered some kind
of injury or damage because of an activity that is close to them or in the same zone .
M. Adams: She hasn't suffered any has she?
J. Pachai: Well, that issue is --
J. Baranello: She's an aggrieved person in that she's a taxpayer. That's important.
J. Pachai: But as a taxpayer, according to case law that we have found relative to zoning
matters, that has very --
J. Baranello: That's a fact. One , she's a taxpayer; and two, she owns a neighboring business. And
whether or not she had been or could potentially be affected . . .
L. Raymond: Can we infer that since she made no direct claims of damage to her business in the
testimony anywhere?
J. Baranello: You can recognize those two factors.
L. Raymond: We can do this by inference?
J. Baranello: Well, sure. You know that she has a business close by, and you know she's a
taxpayer.
L. Raymond: Yes, yes.
J. Pachai: The two tests --
J. Baranello: I think if you look at your own rules it says you can make findings based upon what's
presented or based upon your own personal knowledge. It's in your Code .
L. Raymond: Yes,
J. Baranello: So I think that you know that she's a property owner and you know that she has a
business located in proximity to the business in question .
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: We can consider them, but in the half a dozen pieces of case law that I've looked at,
the idea of being a taxpayer in a zoning situation doesn't wash in the courts.
J. Baranello: Well, as a practical matter, the Court allowed the Dryden School District to really have
a tenuous connection to this case and allowed them to intervene. And it seems to me that Clara
Travis, especially in this case, would have a much stronger basis to be an aggrieved person. I think
based upon that you probably shouldn't waste a lot of time with it as you have more than adequate
basis from which to find her an aggrieved person .
J. Pachai: Well , the basis that I would use is that she is in the proximity of the , she is in the
proximity of Sirens, and that's the two tests that have been used in zoning, or in appeals matters,
specifically in a Sunbright case. It came out of the Sunbright case , and the person who is nearby who
is in the proximity, the Board can -- let me locate this -- an allegation of close proximity alone may give
rise to the inference of damage or injury. That's part of the first test that the courts derived in this
case. The second part of the test, the petitioner must also satisfy the other half of the test, this is a
quote , for standing to seek judicial review of administrative action . And it goes on to say that the
interested asserted is arguably within the zone of interest to be protected by the statute . And the way I
see that is that Travis' objection to the action that was appealed from was inconsistent with the Code,
and most of the sections cited in the Appeal are integral to protecting the character of the M- 1 District
which is "within the zone of interest to be protected by the statutes. " So I would rather use something
that I found.
J. Baranello: Well , that's fine, but I think that before you can use what you found, you have to
make a finding that she's a taxpayer and that she does, in fact, operate and own a business within the
vicinity. Then, if she does that, it is yes. But I think you've got to take the first two steps before you get
to where you are .
J. Pachai: Understood .
L. Raymond: So , this Sunbright case, which seems to be one of the key cases, states here that an
"allegation of close proximity alone may give rise to an inference of damage or injury that enables a
nearby owner to challenge a zoning board decision, " or whatever here, "without proof of actual injury. "
That would seem to fall into what you're saying, Jim, on that. That even if she didn't make an explicit
claim of injury or damage in her testimony, we can infer from what you said -- the fact that she's, you
say, a taxpayer, that she has a business next door, that if she's made this Appeal it can be inferred
that there's some kind of impact on that property .
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: The taxpayer aspect -- does that have any bearing since a tenant can also bring an
Appeal?
J. Baranello: No, it doesn't. It is a fact that you should consider as relevant.
J. Pachai: Right,
J. Baranello: It doesn't mean that she would be excluded if she's not --
J. Pachai: Right. And being a taxpayer doesn't --
J. Baranello: That in itself does not --
J. Pachai: And it doesn't prove that she is an aggrieved party, right?
J. Baranello: Right. But, again, is a fact. . . (unable to hear attorney) .
L. Raymond: This will tend to , then, to fall into the advice we have here in this that who is an
aggrieved person should be liberally interpreted . Okay. All right. We just like to make sure we settled
that question in terms of an aggrieved person . So what we should then is say, well, we can do all one
finding or do it as separate ones I suppose . That she's a taxpayer J. Pachak Well, that she L. Raymond: That she's an aggrieved person.
J. Pachai: She has a business in proximity to Sirens .
L. Raymond: Let's say Clara Travis is an aggrieved person, and we can say, that due the fact that
she is, as counsel suggested here, a taxpayer, that she operates a business S. Thane: Within the same M- 1 District,
L. Raymond: Within the same M- 1 District --
S. Thane : And , in fact, adjacent to Sirens.
L. Raymond: Yes, right. I was going to say and adjacent to the Sirens. Okay, I suggest that we --
why don't we just kind of agree on this as we did before, on the findings here , and then at the end we'll
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Town of Groton Zoning Board of Appeals Decision Meetings 23 March 1998
make motions to adopt the whole works. Do you want to do it that way? (Board members indicated
this was okay. ) Okay. So , first of all then, are we agreed then that -- I've written down here, Clara
Travis is an aggrieved person due to the fact that she is a taxpayer, that she operates a business within
the same M- 1 District adjacent to the Sirens. Are we satisfied with that?
S. Thane: Should say taxpayer in the Town of Groton .
L. Raymond: Add taxpayer --
J. Pachai: Whether she's a taxpayer or not doesn't make any difference .
S . Thane: I think it's a supporting factor, though . Just a supporting item.
J. Pachai: I mean a tenant, if you were renting that building and not paying any taxes, if she had
a non-profit operation there , whether there was -- even income taxes.
J. Baranello: John, I think whether she's a tenant or a taxpayer, either one of those are important
factors. Because if she were neither, that would be an important factor.
J. Pachah I'm sorry. I guess what I'm thinking is the only thing that's important is that she has
a business or she , she resides or has a business adjacent to the property in question . I'm just trying to
keep it simple.
J. Baranello: That would be the most important factor, but there are several, and I think the
suggestion that she was found to be a taxpayer would be appropriate . Just like if you were a tenant, it
would be appropriate.
J. Pachai: Do we have any evidence that says she's a taxpayer? That shows that she owns the
building and pays taxes there? Do we know that? Can we derive a funding from something that we
have no knowledge of?
J. Baranello: We can probably look at the tax rolls--
J. Pachai: I don't want to beat this thing -- maybe I am, but, maybe I am beating it to death, but I
do know that we cannot come up with a finding that we have no, without some basis . It's as simple as
that .
M. Adams: Well, I know she pays taxes on her house that' s just up the street.
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
L. Raymond: Well, we don't know that for sure .
J. Pachai: Let's just look at the tax rolls . It's simple enough . Let's just make sure . I don't know
that she owns the building.
J. Baranello: George Senter says she owns the building .
G. Senter: She owns the building.
L. Raymond: Well, what we could do M. Adams: Oh; God. Well , let's go on L. Raymond: We could just stay with the fact that she operates a business which seems to be the
most self-evident, on property adjacent to the Sirens.
S . Thane: On this tax map right here, her name is on that parcel of land .
L. Raymond: Ah -- good. Okay. Which means also that supposedly she's the owner of that
property.
S. Thane: Let's make sure that I'm looking at the correct piece of property. Travis and Beck.
L. Raymond: Yes, yes. You got it, Steve .
S . Thane: Okay,
L. Raymond: So then we'll go back. So the statement again then, Clara Travis is an aggrieved
person due to the fact that she is a taxpayer -- now you suggested we say taxpayer in the Town of
Groton --
S. Thane: Just to be sure it's clear.
L. Raymond: Right. In the Town of Groton comma, that she operates a business within the M- 1
District which is adjacent to the Sirens. Okay, are we agreed on that?
J. Pachai: Yes.
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
L. Raymond: All right. If I can read my own writing here so I can type this thing up tomorrow. All
right. Well, in that case, then, once we got through Number 1 , so now we're going to the question,
then, of the Section 113. 1 (d) on the non-conforming activities. And it seems to me that we already
dealt with that with the Langer case .
J. Pachai: Sections 5 and 6 of our findings. Findings 5 and 6 .
L. Raymond: Yes, we already dealt with that. So Finding No. 2 is that we're just repeating what
we've -- shall we refer to -- we should say we've already --
J. Baranello: Incorporate your findings in the Langer Appeal,
L. Raymond: All right. So we can say it's already incorporated -- I like that word .
J. Baranello: You find that it's the same matter that was appealed by the Langers and you adopt
your findings .
L. Raymond: All right. And is -- okay, we find this is the same matter raised in the Langer Appeal
and is dealt with in our findings adopted on December 9th .
J. Baranello: You're going to adopt those findings now and incorporate them by reference . As Mr.
Pachai pointed out, if you want to specifically identify what findings, that would be all right. But I
think by the end of the night you're probably going to end up adopting the entire package. You
probably ought to just do that now.
L. Raymond: Well, in that case then, we should back up then and say Finding No. 2 is that we're
going to incorporate the findings from the Langer Appeal, December 9th , in their entirety in this one
and then take it from there?
J. Baranello: Your finding would be that the issues presented are identical and you've decided those,
and that you adopt now the findings that you adopted in this Appeal, and you will incorporate and
adopt the findings that you made in the Langer Appeal .
L. Raymond: All right. So all we need to do then is just say, in Finding No. 2 on the non-
conforming, is this is identical to the issues raised in the Langer Appeal, and then at the end here, say
for the whole thing, we'll just incorporate everything we did for all of our findings. Okay. So we need to
state then, right at this point -- start over again here. This is identical to the issue raised in the Langer
Appeal. All right. Are we agreed on that? I don't hear - - (Board members presented all indicated in the
affirmative . ) All right. So that means then that Finding No. 3 and some of the rest are going to follow
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
the same way then because No. 3 is under Section 302 is whether this is an activity that is in a
category requiring Site Plan Review, and we just say the same thing again. This is identical to the issue
raised --
M. Adams: Section 341 ,
L. Raymond: Well, I'm doing it in the order of the numbers on the thing at the moment, in the Code
here.
M. Adams: Okay,
L. Raymond: It doesn't matter, I guess.
J. Pachai: 302 and 304 combined.
L. Raymond: 302 and Finding No. 4, the same thing for Section 341 . They're identical. Every one of
them is identical to what was raised in the Langer Appeal, So No. 5 , then, is whether this is an eating
and drinking establishment that was raised in the testimony for the Travis Appeal. And , on that one ,
we certainly have enough information that was given in the testimony, and also going back to the
testimony that was given in the Langer Appeal ,
J. Pachai: And the Code Enforcement Officer's Sworn Affidavit supports that.
J. Baranello: If I may, I don't recall exactly, but it seems to me that at one point Mrs. Travis, or her
lawyer, was arguing that it wasn't an eating and drinking establishment. If I remember correctly.
L. Raymond: That it was, or was not?
J. Baranello: Was not .
L. Raymond: That's what I'm pointing out here . That was one of the questions that was raised was
whether this is an eating and drinking establishment at all. They were raising that question.
J. Baranello: Okay,
L. Raymond: And that was a question for us to deal with . That's all I'm saying . All of the stuff that
she presented to us, with the exhibit and all that, was calculated to indicate whether it really was an
eating and drinking establishment. So what we have before us here then is how we're going to deal
with that question .
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: And that goes to the review of the decision to read from the application, purpose of
request, review the decision of the CEO whereby he determined that Kim and Jeffrey Langer could open
an eating and drinking establishment without Site Plan Review and Special Permit.
L. Raymond: Right. And there's an anomaly there because that sounds like in the Appeal that she
wrote out, that they recognize that it is an eating and drinking establishment, only he didn't require
Site Plan Review. But then when we hear the testimony in the Hearing, then it appears that theyre
saying no, it's not an eating and drinking establishment.
J. Pachai: Right.
L. Raymond: So there's an anomaly here between what she said in the Appeal as given to us to act
on and what they, then, presented in the testimony. They seem to be not consistent.
J. Pachai: And they are allowed fifteen days to change their Appeal fifteen days prior to the Public
Hearing if, in fact, they wanted to change it. So they had plenty of time to change it.
J. Baranello: I guess the question to ask yourselves is was there evidence presented that would
cause you to find differently than you did in Langer? Was there anything brought forth that would
make you make a finding that it wasn't an eating and drinking establishment, or simply what was
brought forth that would lead you to the conclusion that it also had some other activity but, at the
same time, could be an eating and drinking establishment.
J. Pachai: Taking those two issues, I would throw in a third . And that is, since the Code
Enforcement Officer reversed his Decision , or changed -- let's say changed his Decision, can the
Travises even appeal this since the change was made prior to the Appeal?
J. Baranello: That's certainly a valid point, but I guess the question to really ask yourself is: is it
relevant? The application by the Langers, whether or not a Site Plan Review is required, called it an
eating and drinking establishment. So you've now made a finding that that requires Site Plan Review
under any circumstance . So is it relevant whether or not it is or it isn't -- as long as there's, perhaps,
there's a finding to follow that you also find that's it's another activity which likewise requires Site Plan
Review.
L. Raymond: But, but in the findings for the Langer case, we said that yes, it was an eating and
drinking establishment requiring Site Plan Review, but we also said that certain other activities -- if I
can remember the language correctly -- was taking place there in conjunction with the eating and
drinking establishment. And when we said it needed Site Plan Review, I understood that was
comprehensive .
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Baranello: Right.
L. Raymond: We didn't exclude to certain other activities; they all need Site Plan Review.
J. Baranello: That's right, so the question to ask yourself is was there evidence presented that, going
back, which would cause you to make a finding inconsistent with that one?
L. Raymond: Okay. Any different that what we already made?
J. Baranello: Right, And I guess you have to think about what was presented, and was there
anything presented to you that would make you now make a different finding. I think you know --
although, technically, I think you're correct that she's appealing something that eventually did happen,
he did make a finding that it was an eating and drinking establishment requiring Site Plan Review.
J. Pachai: And, and we can only --
J. Baranello: And you could make that as part of your finding that he did , in fact, do that, and you
found no evidence which would make you -- there were no additional evidence presented that would
make you vary the finding you made in the Langer case. That disposes of it, I would think, simply.
L. Raymond: The simplest way to dispose of it, yes, is to simply say that we did not find anything
presented in the testimony in the Travis case that would cause us to feel that it was not already
covered in the Langer decision. Is that something that you guys --
J. Baranello: You can also find that, in fact, the Code Enforcement Officer did find when -- he did
reverse himself in essence and found that it required Site Plan Review. And you should address that.
L. Raymond: Well , it doesn't --
J. Baranello: I don't know when she made this Appeal, but it seemed to me that it was subsequent
to the --
J. Pachai: It was subsequent to the Notice of Violation.
J. Baranello: Notice of Violation .
L. Raymond: That's right. It was on the 14th , call it the 15th or whatever. Anyway it was the 14th
of October, and the Cease and Desist Order on the violation was the 3rd of October. So at the time she
made the Appeal, the Code Enforcement Officer had already determined that it needed Site Plan Review.
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: That particular segment of it is not something that we can act on . I mean, that we
can take any action on . We could come up with findings, but we've already - - and I don't like using the
word, but the action is moot, isn't it in that any action we could take would be.
J. Baranello: Well , that could be your finding.
L. Raymond: Oh , wait a minute .
J. Baranello: The section of her Appeal is not --
J. Pachai: That section of her Appeal is not valid .
J. Baranello: Right.
L. Raymond: Because?
J. Pachai: Because the Code Enforcement Officer changed his determination prior to the
application for Appeal.
L. Raymond: What do you guys think of that?
M. Adams: Sounds okay.
L. Raymond: Okay, I'll try to write this down: This section of Appeal is not valid due to the fact that
the CEO -- what's the word we want? -- the CEO J. Pachai: Had changed.
S. Thane: Had determined that a Site Plan Review was required?
L. Raymond: Had already determined previous to her Appeal -- that's right -- wait a minute . Had
determined -- but he didn't determine eating and drinking establishment though , did he? That's the
question they raised. He determined it needed Site Plan Review, but did he determine it on the basis of
an eating and drinking establishment? The Cease and Desist Order doesn't say that. It doesn't say
anything.
J. Pachai: The point is is that he made a decision that --
L. Raymond: That it needed Site Plan Review --
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: According to the testimony, the Sworn Affidavit, he made, he essentially made a
decision that it was, in fact, an eating and drinking establishment at that time, and that Site Plan
Review was not required. Then after that, in the Notice of Violation, he changed his decision regarding
the requirement of Site Plan Review. Although I do agree that the Notice of Violation is open-ended in
that some specific activities are not listed. The Notice of Violation doesn't state the specific activities.
S . Thane: No, he cites specific sections, 302, 341 , 441 , 406, 403 . But there's no specific mention
of eating and drinking establishment.
L. Raymond: Maybe there's two parts to this thing here . One should be the finding that we just
refer to the Langer Appeal, indicating that we've already determined that it's an eating and drinking
establishment. But the second question, then, we're dealing with here on that is whether the Code
Enforcement Officer had indicated that Site Plan Review was needed, which then means that this
section of her Appeal, being dated after that determination, is not valid . By dividing it up into two
parts, we can deal with it maybe a little better. So I can say that -- I started to say this, so I'll just go
ahead with this - - this section of Appeal is not valid due to the fact that the CEO had determined that,
shall we say, the activities at this place of business required Site Plan Review prior to the filing of the
Appeal. Okay, I got that part down. Are we agreed on that? (The Board members present nodded
affirmatively.) Okay, so then we'll make the next finding then -- we're going to re-order our findings
here -- Finding No. 6 is that the question of whether it's an eating and drinking establishment is
identical to what was already determined in the Langer Appeal . We determined it was.
J. Pachai: Right.
L. Raymond: Are we satisfied with that, then? (The Board members present indicated they were.)
Okay. So let's go on then. We'll make this Finding No . 7 , which would deal with the indoor recreation
question here. In my opinion, as I mentioned earlier here, I think we've already found on that. When
we said that certain other activities, even though we didn't specify it as indoor recreation, we said that
certain other activities were included in the Decision we made on the Langer thing. And that required
Site Plan Review right along with the eating and drinking. In other words, whatever was going on this
place, they needed Site Plan Review. We already determined that.
J. Pachai: We acknowledged, and it has to be in the Minutes, I'm sure, we acknowledged that
there was adult entertainment there, or nude dancing as I believe it was.
L. Raymond: Yes. I think it's mentioned in the Minutes .
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: And we, we referred to the Planning Federation, I believe it was, their list of definitions
which listed. nude bars or something to that effect as being a L. Raymond: Do we really have to get into that kind of detail?
J. Pachai: No. I'm just saying that the backup is there to say that we acknowledged that it was,
in fact, there was in fact nude dancing occurring, or adult entertainment, which , when you look at the
Code the only activity that could be, in fact, that that activity, that that type of activity could fall under
is the indoor recreation.
L. Raymond: Do we want to make a finding that explicit, or do we want to make a finding that's --
J. Pachai: Well, this is not a finding. We can't just spew out findings. It's a matter of discussing
something first and then coming up with a finding.
L. Raymond: No, we're talking about the finding here. We're leading right up to it. And what I'm
getting at is -- okay, what you're saying is we could have a finding that incorporates what you said, or
we can have a finding saying that this is, this has already been taken care of in the Langer case when
we cited certain other activities, all inclusive.
J. Pachai: Right, but --
L. Raymond: Remarks, questions here from this side of the table? We're not really supposed to do
this, George, because this is not a Hearing .
G. Senter: Can I speak on this?
L. Raymond: Counsel, should we J. Baranello: Go ahead .
G. Senter: I want to make a statement on Travis' Appeal that I knowingly allowed a commercial
indoor recreation facility to go into that building. I want it on the record that I emphatically deny that
I did that.
J. Pachai: Yes, and I agree with that. And that's not what I'm speaking to yet.
G. Senter: I deny that I knew that.
17
Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachah That's part of the reason I want the discussion.
G. Senter: I want it on the record that I did not do that; I want to emphatically deny it.
J. Pachai: In fact, on 9/24 the CEO stated in a Sworn Affidavit that he made the decision as
evidenced through inaction, that being that he did not cite them or tell them that they needed a Site
Plan Review, that the Langers could open their establishment without Site Plan Review and Special
Permit at the location in question. His information indicated that it would be a family restaurant
which would be classified solely as an eating and drinking establishment. Therefore, his decision was
not based on the Langers opening a commercial indoor recreation facility as it is incorrectly indicated
in Clara Travis' Appeal. Since there is no evidence or testimony indicating otherwise , the second
reason for this Appeal has no basis, it was my feeling.
M. Adams: I agree with you .
J. Pachai: Now that doesn't mean that we can't acknowledge or make reference to our previous
determination .
M. Adams: But this is exactly what we did with the Langer case . It's all right there.
J. Pachai: Right. But in respect to the purpose of their request, the second purpose listed, there's
no basis for it. It says review the Decision.
L. Raymond: I know what it says. It says review the Decision of the CEO .
J. Pachai: And he did not make that Decision according to any evidence .
L. Raymond: He didn't deal with it at all. However, so if we say in effect we did, in fact we did deal
with that in saying certain other activities are taking place there which we said, along with the eating
and drinking, whatever they were, they needed Site Plan Review; then, are we covering this? Or are we
acknowledging somehow that her Appeal is -- are we recognizing her Appeal is valid in the sense that
there is indoor recreation by doing it in that way? It's pretty indirect, but --
J. Pachai: What we're saying is the purpose of the request, the second listed purpose of the
request has no basis. That's my feeling.
L. Raymond: Has no basis in --
J. Baranello: You found no evidence in the record which would support that allegation .
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: Correct,
J. Baranello: That could be a finding.
L. Raymond: No basis in the record of the CEO's actions.
J. Pachai: Exactly.
L. Raymond: Okay. All right. So what I'm going to say here then is the question of an indoor
recreation facility in applicant's Appeal has no basis, and in recorded actions of the CEO --
J. Pachai: In the record.
L. Raymond: No basis in the record of CEO's actions. Okay, because she's appealing the Decision of
the CEO and there's nothing in there . Okay.
G. Senter: Because that's a Decision I didn't make. That should be in your findings.
J. Pachai: We don't have to go further, but for the sake of clarification for those who might read
this and not quite get the picture, we could say that the fact that the business is being used as an
indoor recreation facility, of course we'd have to find that first, but - -
L. Raymond: We'd have to go -- that gets us into another whole ball game if we have to go and make
a bunch of findings which , actually, we weren't asked to do.
J. Pachai: Exactly.
L. Raymond: So leave it as it is. All right, my God folks, I've got to go to the next page here. All
right. The next question then to deal with here was the one that she raised by inference by citing that
section of the Code about a Certificate of Occupancy by the Code Enforcement Officer. Well, there was
no Certificate of Occupancy issued by the Code Enforcement Officer. That's plain and on the record all
the way around. There's no -- we dealt with that in the findings, I think. I'm pretty sure we dealt with
-- I know we did. We dealt with section -- yes, this is identical to what was raised. So why don't we
use that statement again? This is identical to the similar question raised in the Langer Hearing - -
J. Pachai: It's an identical question .
L. Raymond: That's what I said , identical.
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Fitch* You said similar.
J. Pachai: That's what I thought you said.
L. Raymond: Oh, identical to a similar question -- oh J. Fitch: How can you have that?
L. Raymond: I had both in there. All right. This is identical to the question -- we'll take similar out.
How about that? My God. Identical to the question raised in the Langer Appeal. And that's all we've
got to say because I think at the end we're going to incorporate all that stuff anyway.
S . Thane : Section 403 .
L. Raymond: Yes. All right. Hey, we're at the end .
S. Thane: That was the last one.
L. Raymond: Yes. Because the one I had down here about the question of certain decisions made or
not made we've already dealt with . Is there anything else we need to deal with here?
J. Pachai: I wish we had it keyboarded so we can read it.
L. Raymond: 441 is Site Plan Review, that's right. And she did list that 441 .
S. Thane: Yes.
L. Raymond: And -- all right.
J. Pachai: I'm not sure that if we hit that in the Langer thing. It seems like we should have, but I
don't have the reference .
L. Raymond: 441?
J. Pachai: We must have.
S . Thane : I think you did. Yes, it was Finding No , 10,
L. Raymond: Yes. So --
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: But does it relate in the same way? That's the other question .
S . Thane: No, we were talking about the definition of development in the Langer case.
L. Raymond: Well, yes, but when she -- see also Sections 441 -- well, I'd assume that's in relation to
-- however it relates to Section 441 . We should probably include what we dealt with before. Wouldn't
it? Or do we take a narrow construction of this only as it relates to -- well, what does it relate to then?
She's saying that whether it needs Site Plan Review,
J. Pachai: Right,
L. Raymond: When the CEO made a Decision that it didn't need Site Plan Review, so all she's saying
as it relates to 441 as it relates to Site Plan Review. The more I think about it, I don't quite follow.
J. Pachai: It's just that they've listed the Site Plan Review section.
J. Baranello: I think that would be the only way you can construe her request is applicability,
which is just that 441 . 1 .
L. Raymond: Yes,
J. Pachai: And Finding No. 10 in the Langer case, since Applicant's new business venture is
development under the Code, then a Site Plan Review and Special Permit is required pursuant to
Section 441 . 1 (a) of the Code. And the rationale is listed after that.
L. Raymond: So this is, again, identical to the questions raised and dealt with in the Langer case,
or Langer Appeal, I should say.
J. Pachai: And I think, relative to any finding we make on 441 , or that we have made, we might
want to take into consideration our interpretation of the word development. We may want to cite - -
L. Raymond: But that's already been dealt with in the Decision of the Langer Appeal . Do we have to
spell it out again?
J. Pachai: I guess not. Since we're not listing specific findings --
L. Raymond: If we're going to incorporate all the findings in the Langer Appeal as it applies to this
case anyway, it's already spelled out.
21
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: I'm sorry. I'm just used to putting them right next to each other. Each finding.
L. Raymond: All right. So what I end up with here are nine findings on this and it looks like,
hopefully, we have covered all of the questions that we need to deal with here that was raised by the
testimony.
S . Thane: Do you want to read through those .
L. Raymond: All right. I hope I can read by my own writing here, because I scratched it out here.
Well, Finding No. 1 is that Clara Travis is an aggrieved person due to the fact that she is a taxpayer in
the Town of Groton and that she operates a business in the M- 1 District --
S. Thane: Shall we say the same M- 1 District?
L. Raymond: In the same M- 1 District which is adjacent to the Sirens . No, the District's not
adjacent to the Sirens.
S . Thane : That's what it sounds like .
L. Raymond: It does, doesn't it. That she operates a business in the same M- 1 District -- we've got
to get the adjacent in there .
J. Baranello: Operates a business in close proximity to Sirens in the same M- 1 District,
L. Raymond: All right. Business in close proximity to Sirens in the same M- 1 District. Okay. All
right. And Finding No. 2 was that we stated that this is identical to the issue raised in the Langer
Appeal, and that had to do with non-conforming use. That's all I stated here, just saying we're going to
reference to it later. And Finding No. 3, the same thing, which had to do with the Code category for
Site Plan Review. And the same thing for No. 4 -- it's identical to the issue raised in the Langer Appeal
on Section 341 about whether it's an eating and drinking establishment which we've already done .
And No. 5 -- this section of the Appeal is not valid due to the fact that the CEO had determined that
the activities at the place of business required Site Plan Review prior to the filing of this Appeal.
J. Pachai: Can you hit that over again?
L. Raymond: All right. This section of the Travis Appeal is not valid due to the fact that the CEO
had determined that the activities at the place of business required Site Plan Review prior to the filing
of this Appeal.
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: Yes.
L. Raymond: Okay?
S. Thane : Yes.
L. Raymond: All right. Number 6, the question of whether it is an eating and drinking
establishment is identical to that raised in the Langer Appeal where it was determined that it was.
Okay, Finding No. 7, the question of whether this is an indoor recreation facility in the Applicant's
Appeal has no basis in the record of the CEO's actions.
J. Pachai: It's kind of --
L. Raymond: Kind of laborious?
J. Pachai: No, it doesn't put it together somehow.
J. Baranello: There's no basis for a claim that the CEO L. Raymond: There's no basis in the CEO's action for J. Baranello: No, there's no basis in her Appeal on what was presented to make a finding that the
CEO has made a decision that an indoor activity did not need Site Plan Review. He never made any
determination whatsoever.
G. Senter: I never had that information .
L. Raymond: Now wait a minute here . Okay, so -- I need to rewrite this thing. There is no basis in
the CEO's -- wait a minute here .
J. Pachai: In the CEO's Decision --
L. Raymond: Okay. If we say the CEO's Decision here -- let me put No. 7 over here so I got more
room.
J. Pachai: I don't know if this is going to work or not -- the CEO's Decision was not based on the
Langer's opening of a commercial indoor recreation facility as it is incorrectly indicated in the Travis
Appeal . Since there is no evidence or testimony indicating otherwise, the second reason for this Appeal
has no basis.
23
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
L. Raymond: Counsel, does that sound okay with you?
J. Baranello: Fine ,
L. Raymond: Okay.
J. Pachai: But we do need to show in our rationale for the finding that a Sworn Affidavit exists
where the Code Enforcement Officer indicates what he based his Decision on . Or that he based his
Decision on it being an eating and drinking establishment.
J. Baraneilo: I don't think there was any proof presented to you that that determination was ever
made.
J. Pachai: I have a sworn -- there's a copy of a Sworn Affidavit, right, that was taken in your
office?
J. Baranello: By Mr. Senter?
J. Pachai: Yes.
G. Senter: It says nothing about a commercial indoor recreation facility.
J. Pachai: Right, Exactly. That's my point. It says that you made the Decision based on it being
an eating and drinking establishment. And that was the reason -- that was the only decision he made
regarding that. We just need -- I was looking for something to support the contrary.
L. Raymond: All right. You've got a good statement there, John. We might as well use that
statement here . I've got a copy of it, so I can just say we'll use his statement there and I'll write it up
with that language in it. Okay? All right?
S. Thane: Do you want to read it, Lyle, just for the record .
L. Raymond: Okay. All right. The CEO's Decision was not based on the Langer's opening of a
commercial indoor recreation facility as is incorrectly indicated in Clara Travis's Appeal . Since there is
no evidence or testimony indicating otherwise, the second reason for this Appeal has no basis. And we
can also state that the CEO stated in his Sworn Affidavit that he made this Decision without reference
to the indoor recreation. I added that to it because if we're going to put that in there , we've got to put it
that way.
24
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Pachai: If we take right at the very beginning of that Decision regarding the opening of Sirens -
- because we haven't really said the Decision regarding Sirens -- I take that back. Because I'm not sure
if that fits in.
L. Raymond: Oh, okay. So we'll just leave the sworn affidavit stuff out and just use the last part
here.
J. Pachai: No, no. I'm saying that his -- actually, we're going to address the second purpose for
the request, and that' s going to be spelled out in the finding, right? I mean regarding the second
purpose of the request, it spells out the -- so we're all set to keep it just the way we've got it.
L. Raymond: Wait a minute . Regarding the second purpose of the request is the opening here?
J. Pachai: Right,
L. Raymond: Okay. Regarding the second purpose of the request, the CEO's decisions -- and then
I'll go on with your stuff here. I'll read it again. Was not based on the Langer's opening of a commercial
indoor recreation facility as is incorrectly in the Clara Travis Appeal. Since there is no evidence or
testimony indicating otherwise, the second reason for this Appeal has no basis. And let's leave it that
way. Okay. Is everyone satisfied? Mary? Steve? Yes. Okay. All right. So then Finding No. 8 which
had to do with the issuance of a Certificate of Occupancy, we find this is identical to the question
raised in the Langer Appeal, And Finding No. 9 which had to do with Section 441 on Site Plan Review,
we find this is identical again to that in the Langer Appeal . Are we satisfied?
S . Thane: Yes.
L. Raymond: So then, the next one then, can we put that as a finding, I guess, if we want to
incorporate all of the findings from the Langer Appeal? Do we put that as another finding?
J. Baranello: Well, your last finding could be that the Appeal involves substantially all of the issues
appealed by the Langers and that you adopt in this proceeding those findings and incorporate them by
reference thereto.
L. Raymond: Whew! Wait a minute . The Travis Appeal. All right. Do you want to say that again,
Jim?
J. Baranello: I will if I can. That the Appeal by Clara Travis is substantially involves all of the issues
25
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
L. Raymond: All of the issues raised in the Langer Appeal, and was -- I was going to say decided by
the ZBA on December 9th , '97, Does that satisfy?
J. Baranello: You should say that you adopt in this proceeding those findings and incorporate them
by reference thereto.
L. Raymond: Okay, those findings in this proceeding are adopted by reference thereto. We'll know
that counsel told us that when the thereto is in there . Sorry, Jim. So now, what we need to do now
then is to vote on this and say that we incorporate the whole thing in its entirety just the way we got it
down here by roll call vote, don't we? Are we all ready for that, or not? Somebody just needs to make a
motion that we adopt what we've just done in its entirety.
J. Pachai: I would like to just ask two questions -- or put two questions out first.
L. Raymond: Okay. All right.
J. Pachai: One, is there any testimony given in the Public Hearing that would be useful to
incorporate in the rationale for the findings? In that, I bring up just as a matter of curiosity, it seems
that for the most part there isn't.
L. Raymond: What was it that sparked your thought on that?
J. Pachai: Just simply that, you know, because of the -- just in fairness to the aggrieved party, it
wouldn't be unreasonable to, if we could, cite the testimony given in the findings.
L. Raymond: But everything we're doing is with reference to that testimony, and we've already
indicated that we've all read the testimony, in the beginning, in the record.
J. Pachai: Right. So basically there was no evidence presented in the Public Hearing --
L. Raymond: That would do what?
J. Pachai: That needs to be mentioned , would be mentioned --
L. Raymond: If there is, if there is evidence in there that we haven't dealt with , then that indicates
there's another question we haven't dealt with .
J. Pachai: I guess that's all I'm asking is for people to sit back and think for a minute rather than
just roll right through .
26
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Town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
L. Raymond: Well, the original list of questions that I raised for us to start the discussion here was
based on my examination of the testimony. Those were the issues and questions I saw rising out of it.
I assume that Mary and Steve have done the same . But if there are, indeed, questions here that John
has raised --
J. Pachai: No. I really don't have any. I'm just trying to get us to pause for a second and think
about what we're dealing with.
L. Raymond: Oh, the pause that refreshes. Well, shall we have time out for a mental thing here?
One minute? Well, I understand the seriousness of what you're raising here, John, and we do want to
deal with any concerns you've got.
J. Pachai: As for myself, I 'm not sure that I have any. Jim?
J. Baranello: No. I'm just reading your rules here about reducing your Decision to writing. I don't
know if that means that you have to reduce it to writing before you vote on it, before you adopt it, or
you can do that subsequent to your adoption. The practice in the past has been to produce it in
writing and come back and vote on it.
J. Pachai: Typically, we have --
L. Raymond: If we were to do that, we'd have to have another meeting.
J. Pachai: Other than the last appeal, Lyle has made notes, we've discussed them, and then at
that point we voted on them. But we don't ordinarily sign it at the end .
L. Raymond: Usually what we've done in the --
J. Pachai: Then Lyle takes them and makes them look pretty.
L. Raymond: That's what we've done with variances. Our usual practice in variance requests is
when we've made a decision, what we've done is first of all we have the transcribed record to go back to
anyway, and then we usually have agreed upon what our finding is going to be. And then I'll put
essentially a summary of the guts of the thing within the five-day requirement into the Town Clerk, and
I sign it as Chair of the Board. And that's what we've done. And then, as I said, we have the
transcribed record for more detail. So the wording we have here is what we've agreed on, but truly I
haven't got it all written out thoroughly in a document that we'd all sign, or whatever. Well, last time
though , the one that counsel made out for the Langer Hearing, everyone didn't sign that. I signed it as
Chairman saying it was being submitted to the Town Clerk within the five-day period as our findings .
27
' 'own of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
And then the record of the roll call vote was on there. That was all. Are you guys comfortable with
doing it this way? You'll have to trust me to write up my notes here then to get it about right. I think
I've got it.
S. Thane: I've written them down, too .
L. Raymond: Okay. So you can take me to task then. I hope I've got this all okay.
S. Thane: I think we've worked the whole thing out here .
L. Raymond: Yes. All right. If we think we're ready, then do I have a motion that we adopt all of
these findings in their entirety?
M. Adams: I make a motion that we adopt all of these findings in their entirety.
L. Raymond: Okay, we have a motion made. Do we have a second?
S. Thane: Second.
L. Raymond: Steve has a second. Okay, rather than doing it by saying that we all agree, we need a
roll call vote, and will the secretary call the roll call .
J. Fitch* Steve Thane?
S. Thane: Aye.
J. Fitch: Mary Adams?
M. Adams: Here, Aye,
J. Fitch: Lyle Raymond?
L. Raymond: Aye,
J. Fitch: John Pachai?
J. Pachai: Aye,
L. Raymond: Done . I don't think there's anything else .
28
ohm town of Groton Zoning Board of Appeals Decision Meeting 23 March 1998
J. Baranello: Move to close .
L. Raymond: All right. Who'll make a motion to close the meeting?
S. Thane: I'll move to close the meeting.
J. Pachai: I'll second.
L. Raymond: All in favor say aye. (All members present so indicated.) The meeting is closed .
The meeting was closed at 8 : 18 p.m.
J4,00 .
J E. Fitch
ecording Secretary
29
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