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P&Z Commission Lawsuit Settlement Proposed, Public Hearing Scheduled

The Golf Club of Avon and JZMAR, LLC filed a lawsuit against the Avon Planning and Zoning Commission in August after the commission rejected their zone change application.

If the Avon Planning and Zoning Commission approves a settlement proposed for a lawsuit contesting a rejected zoning change application, the decision could be overturned.

Passage of the settlement as is would enable an Avon developer to move forward with building a new housing development.

The Golf Club of Avon, Inc. and JZMAR, LLC sued the commission after their application was denied in July. Their attempt to resubmit the application with revisions was also rejected. The commission's approval to re-zone 6.25 acres of Golf Club of Avon land from recreational open space to an R40 residential zone is integral to developer Jon Zieky's five-lot subdivision plan.

There will be a public hearing on the matter at the commission's regular Tuesday meeting at 7:30 p.m. in Town Hall.

The golf club originally planned to sell the 6.25 acres to Zieky as the final piece of land he needed to build five homes. The golf club doesn't use the land much besides dumping wood debris, sod, grass and tree trunks there, Avon Town Planner Steven Kushner said.

The civil lawsuit against the commission claims that its denial of the application was "illegal" and "arbitrary" and that the requested zone change would comply town zoning regulations, according to court documents.

The current settlement draft on the table between the commission and complainants would require the commission to approve the zone change it previously rejected and allow the five-lot subdivision. 

Kushner said that no money would "be exchanged between town and golf club and Zieky" as a result of the proposed settlement. That excludes any legal expenses like attorney fees that the town accrued in the settlement process.

However, Zieky would be required to pay a fee in lieu of including open space in the subdivision, which is a typical of new developments.

"It has to go to a final vote by the commission before it is made official," Kushner said

The settlement draft would also need to be approved by a majority vote and signed by involved parties and Hartford Superior Court officials. It's not guaranteed that the commission will vote Tuesday night, Kushner said.

While it's possible that commissioners could pass the draft as is, they could also approve making necessary revisions, he said.

The commission scheduled a public hearing on the settlement even though it's not legally required to be fair to the Pioneer Drive residents who live next to the proposed subdivision, Kushner said. The commission will also have the opportunity to hear more information from the golf club and developer.

“If the commission does find that the plan is a reasonable request given all the facts, I think they’re trying to take into consideration and be sensitive to those comments," Kushner said.

The housing development would include five lots ranging from 40,969 to 53,264 square feet and a new 500-foot road called Eagle Drive, Kushner said.

Several Pioneer Drive residents attended previous meetings to voice concerns about losing the abutting private open space. That became a core factor in the commission's initial decision to reject the application.

One piece of the drafted settlement serves to preserve privacy for both future and existing residents in that area. The proposal calls for the developer to meet certain conditions, such as leaving a 40-foot "buffer strip" between the housing lots and existing homes along the "northerly" border of the small piece of golf club land in question. 

“Under normal circumstances if someone is proposing subdivision next to an existing subdivision, a buffer is not required because they’re compatible land uses," Kushner said, noting that the difference here is the requested zone change. "Not only are they compatible, they’re the same land use.”

That means that while the future subdivision homeowners would own their piece of the buffer zone and pay taxes on it, they would be forbidden from building anything on it or clearing trees. The forested in that area would remain intact. The town would be authorized to enforce the rule and hold the new homeowners accountable if they found evidence of any easement violations there.

“It’s a pretty iron-clad conservation easement," Kushner said.

The lawsuit filed by the Golf Club and JZMAR, LLC follows standard procedure under state law to appeal an approved or rejected application, according to Kushner.

“It is unusual for commission to be sued. It does not happen that often," Kushner said. “In an instant where the Planning and Zoning Commission approves or denies an application, the legal remedy is to file a lawsuit against the commission."

When it comes to zoning and land use lawsuits, reaching settlements is also unusual, Kushner said, however it is encouraged by the courts.

Steve Stanford January 15, 2013 at 04:14 AM
I don't get it. Quote from article "However, Zieky would be required to pay a fee in lieu of including open space in the subdivision, which is a typical of new developments." So you are allowed to bribe your way out of existing regulations? It doesn't matter if someone buys a house and pays a price to be adjacent to open space? The buyers probably paid a premium for that and is reflected in their property tax. But some developer is allowed to come along and pay a "fee" to disregard existing zoning regulations?
Jessie Sawyer (Editor) January 15, 2013 at 04:30 AM
Steve, I believe that fee goes into the town's open space fund. Developers pay into it if they are not going to work open space into their project. I was told for a previous article that money in that fund is reserved for future open space purchases or land aquisitions. I'll double check with the town planner about where the money from this fee will go. Thanks for reading! Jessie Sawyer Editor, Avon Patch
Karen Cianci January 17, 2013 at 03:21 AM
TOTALL CONFUSING: "Under normal circumstances if someone is proposing subdivision next to an existing subdivision, a buffer is not required because they’re compatible land uses," Kushner said, noting that the difference here is the requested zone change. "Not only are they compatible, they’re the same land use.” ALSO TOTALLY CONFUSING “It is unusual for commission to be sued. It does not happen that often," Kushner said. “In an instant where the Planning and Zoning Commission approves or denies an application, the legal remedy is to file a lawsuit against the commission."
Karen Cianci January 17, 2013 at 03:23 AM
So if someone is denied a zoning change by the P&Z Commission, isn't the USUAL process to go to the Zoning Board of Appeals, rather than file a civil lawsuit?
Jessie Sawyer (Editor) January 17, 2013 at 03:41 AM
No, that's a common misconception. The Zoning Board of Appeals does not hear appeals for zoning applications. In this case, the civil lawsuit is an appeal. The Planning and Zoning Commission very rarely gets sued, so that's why it's unusual. As for the buffer, that was a condition suggested in the settlement discussions to provide more privacy for the neighbors. Typically, when new developments are built next to an existing neighborhood, there is no buffer required. This buffer as part of the settlement draft is a conservation easement, meaning no one can build on it or cut down trees. That includes the future owners of the new lots. Jessie Sawyer Editor, Avon Patch
Karen Cianci January 18, 2013 at 04:27 AM
Thanks Jessie. Then what does the Zoning Bd of Appeals review? Right about the buffer but it seems that the developer can just pay his/her way out of it as suggested in "the fee in lieu of the buffer"? True?
Karen Cianci January 18, 2013 at 04:40 AM
Also, the original lawsuit charges that the P&Z Commission's decision was "arbitrary".and had no basis. So, what was the ending basis for the settlement by the P&Z or the town of Avon? I read it somewhere in one of the articles here on AvonPatch and it sounded very open-ended. Can't find that source anymore; has it been removed? Regardless, the P&Z seems to have very loose laws anyway. It really just comes down to "what they decide based upon who knows what". I will say that having some million dollar homes in any area only helps the market values of neighborhing homes so long as the aesthetic of the new construction agrees to the surrounding homes. The idea about negating the buffer in lieu of a fee is ludicrous though. Another positive is that I know that the new neighbors will want their privacy as well and the devleopers will consider that when building the new homes. They will orient the footprint appropriately to maximize privacy.
Jessie Sawyer (Editor) January 18, 2013 at 05:17 AM
No Karen, that information was not removed. Yes, one of the claims that the complainants (Golf Club of Avon and JZMAR, LLC ) made was that the decision was "arbitrary." It was mainly because of confusion over the Plan of Conservation's rules for open space. Many neighbors were upset about losing the open space that abuts their street because when they moved in they thought it would always be open space. While town-owned, public open space is often permanent, the golf course land in question is private recreational open space and the complainants argued that there is no deed restriction that would prevent a zone change. The 40-foot buffer here was suggested by the complainants is part of the settlement if approved by Hartford Superior Court. The idea is to give the existing residents of Pioneer Drive and the future homeowners of the new homes more privacy. The new residents would own the buffer pieces on their lot, but could not build there or remove trees. The fee mentioned is in lieu of the developer working open space into their development (completely different from the buffer which would be in a residential zone). That money goes into the town's open space fund for future town land acquisitions or open space purchases.
Jessie Sawyer (Editor) January 18, 2013 at 06:37 AM
Steve, Here's some elaboration from Town Planner Steven Kushner to answer your question. "Every subdivision approved in Avon must either gift to the Town 10% of the total parcel ( in this case about .6 acres) or pay $ in lieu of this land dedication. The fee is calculated based on 10% of the value of the total parcel prior to approvals from the Planning Commission. The amount due will be relatively small. This formula is spelled out in state law. Although the settlement agreement mentions this requirement the result/requirement is no different than any other subdivision. In fact the Town Attorney in drafting the agreement was at first not going list it as it would have been a requirement anyway (assuming the Commission approves the settlement). The payment of the fee will not in my opinion influence the Commissions decision to approve or not approve the settlement." As for where the fee goes, Kushner confirmed that it is "deposited in a special account and may be used to purchase open space elsewhere in Town." He said: "The funds may also be used for other purposes on a limited basis such as enhancemnts to Town parks. They cannot be used in connection with other Town expenditures ie: schools, roads, sewers , etc."

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