REPRESENTATIVE TOWN MEETING
TOWN OF GREENWICH
EXPLANATORY COMMENTS FOR
MARCH 2005 MEETING
ITEM NO: 1
DEPARTMENT: FLEET DEPARTMENT 2005 MARCH 14
REFERRED TO: Finance and Town Services Committees
VOTES: Board of Estimate & Taxation 9-0-0
RESOLVED, that the sum of $125,000 be and the same is hereby appropriated to be added to the account number identified below:
380-53500 Motor Fuel and Lubricants $125,000
EXPLANATORY COMMENTS
Increase in fuel cost.
Attachments
See attached worksheets indicating fuel cost increase.
ITEM NO.: 2
DEPARTMENT: Police Department 0503PD01
CONTACT: James A. Walters 622-8010 N/A
REFERRED TO: Town Services Committee
VOTES: Board of Estimate and Taxation - 9-0-0
RESOLVED, that the Greenwich Police Department accept a monetary gift in the total amount of $8,000 to provide for the purchase of a replacement Police Canine, $5,000 appropriated to Account F213-53950, and for veterinary maintenance for retiring Canine Shilo, $3,000 appropriated to Account F213-51420.
Explanation by the Chief of Police
The Greenwich Police Department requests permission to accept a monetary gift in the amount of $8,000 from Robert Steinberg, Greenwich resident, for the purpose of acquiring a police canine to replace our current Canine Shilo ($5,000). It is anticipated that Shilo will be retired during the 2005-2006 fiscal year. In addition $3,000 is being offered to provide for necessary veterinary bills for Shilo once no longer with the Department. If accepted, the Department will be able to reduce our proposed 2005-06 budget by the amount of $5,000, line item F213-53950, requested for the purchase of a new dog.
ITEM NO.: 3
DEPARTMENT: Board of Education 0503ED01
REFERRED TO: Education committee
VOTES: Board of Education
Board of Estimate and Taxation 9-0-0
RESOLVED, that the sum of $7,374 be and is hereby appropriated to be added to account Z6800892 59560 24079 for Parkway School Well Water Improvement. Said appropriation to come from the Reserve for Capital Non-Recurring Fund.
EXPLANATORY COMMENTS
This project was originally part of a Town of Greenwich DPW project which involved the renovation of the Art Barn on Lower Cross Rd. for use by GEMS. The Town asked the Board of Education to handle the well replacement since it was on the grounds of Parkway School. Well water testing revealed more chemical content than anticipated which requires the installation of a chemical filter treatment system. Funds are being requested to cover the cost of the treatment system and additional retaining walls per P & Z. The district is awaiting final approval from the State of Connecticut Department of Public Health.
Balance available: 21,746.
Change order for retaining walls: 6,734.
Change order for chemical-filter treatment 22,386.
Additional funding required $ 7,374.
Attachments
None
ITEM NO: 4
DEPARTMENT: Board of Selectmen/Public Works 02-18-05
REFERRED TO: Finance, Land Use, Legislative & Rules, Town Services
VOTES: Board of Selectmen 3-0
Budget Committee, Board of Estimate 4-0
Board of Estimate and Taxation 9-0-0
RESOLVED, that the sum of $2,181,850 be and is hereby appropriated from the Reserve Fund for Capital and Non-Recurring Expenditures to account Z301-59800-25116 for the acquisition of property at 180 Mason Street and costs associated with said acquisition.
EXPLANATORY COMMENTS
The acquisition of 180 Mason Street (Judy’s Nails building) is necessary for the construction of the new police facility. Attached below is the agreement of sale conditional upon approval by the Representative Town Meeting.
Attachments
AGREEMENT made as of the day of February, 2005
BETWEEN JAI HOAN LEE, of 33 Lockwood Avenue, Old Greenwich, Connecticut 06870
hereinafter referred to as the SELLER [which term shall include each and every one of the foregoing parties as SELLERS so that the singular number shall include the plural and the use of any gender shall include all genders], and TOWN OF GREENWICH, 101 Field Point Road, Greenwich, Connecticut
hereinafter referred to as the PURCHASER [which term shall include each and every one of the foregoing parties as PURCHASERS so that the singular number shall include the plural and the use of any gender shall include all genders], in manner following:
PROPERTY AND TITLE
1. The Seller, in consideration of the purchase price hereinafter specified, hereby agrees to sell and convey, and the Purchaser hereby agrees to purchase the real property specifically described in Schedule A attached hereto subject to the encumbrances and exceptions to title set forth or referred to in Schedule B attached hereto.
CONSIDERATION
2. The purchase price is ONE MILLION NINE HUNDRED EIGHTY-FIVE THOUSAND and xx/100------------------------------------------------------------------------------------------------------------------------------------------DOLLARS.
$1,985,000.00 ==========
which the Purchaser agrees to pay as follows:
(a) Before or upon the signing of this Agreement, receipt of which is hereby $ -0-
acknowledged, subject to collection;
(b) Upon the delivery of the deed hereunder, by certified check or cashier's $1,985,000.00 check drawn upon a bank having a banking office for general banking
check drawn upon a bank having a banking office for general banking
purposes in Connecticut or New York; attorney trustee checks are
not acceptable unless certified;
(c) As set forth in Schedule C attached herein. $ -0-
===========
TOTAL $1,985,000.00
DEED
3. The Seller, on receiving such payment at the time and in the manner above mentioned, shall, at the Seller's cost and expense, execute, acknowledge, and deliver to the Purchaser, or Purchaser's permitted assigns, the usual Connecticut Warranty
Deed in proper form, to convey to the Purchaser, or Purchaser's permitted assigns, the fee simple of the above_described premises, free of all encumbrances except as aforesaid. The Seller shall thereupon pay any real estate conveyance taxes and shall complete and deliver to the Purchaser the conveyance tax forms.
TITLE
4. (a) If, upon the date for the delivery of the deed as hereinafter provided, the Seller shall be unable to deliver or cause to be delivered a deed or deeds conveying a good and marketable title to said premises, subject as aforesaid, then the Seller shall be allowed a reasonable postponement of closing not to exceed thirty (30) days, or such shorter time as may be within the term of the Purchaser's mortgage commitment, within which to perfect title. If at the end of said time the Seller is still unable to deliver or cause to be delivered a deed or deeds conveying a good and marketable title to said premises, subject as aforesaid, then the Purchaser may elect to accept such title as the Seller can convey, without modification of the purchase price or
may reject such title. Upon such rejection, all sums paid on account hereof, together with any expenses actually incurred by the Purchaser for attorneys fees (not exceeding the cost of fee title insurance in the amount of the purchase price), nonrefundable fees of lending institutions, survey costs and inspection fees shall be paid to the Purchaser without interest thereon. Upon receipt of such payments, this Agreement shall terminate and the parties hereto shall be released and discharged from all further claims and obligations.
(b) The title herein required to be furnished by the Seller shall be marketable and the marketability thereof shall be determined in accordance with the Standards of Title of the Connecticut Bar Association now in force. Any and all defects in or encumbrances against the title, which come within the scope of said Title Standards, shall not constitute a valid objection on the part of the Purchaser, if such Standards do not so provide; provided, the Seller furnishes any affidavits or other instruments which may be required by the applicable Standards, and further provided title will be insurable at standard rates by a title insurance company licensed in the State of Connecticut.
(c) Violations, at the time of the closing of title, of any governmental (including zoning and planning) rules, regulations, or limitations shall constitute objections to title for the purposes of this paragraph of the Agreement, but only if such violations substantially impair continuance of the present use of the premises, or if Purchaser has been unable to obtain title insurance without additional premium from a title insurance company licensed in Connecticut insuring against enforcement of such rule, regulation or limitation.
(d) Notwithstanding anything to the contrary contained in this Agreement or any riders attached hereto, in the event the Seller after due diligence cannot obtain a release for any existing mortgage on the subject premises at the time of the closing of title from the lending institution holding said mortgage, or any assignee thereof, either because said lending institution will not release the mortgage without first receiving payment or because the lending institution has delayed in sending the attorney for the Seller the release of mortgage, then Purchaser agrees to close title notwithstanding the absence of the release of mortgage, provided the attorney for the Seller furnishes the attorney for the Purchaser, at the closing, with a payoff amount and a copy of the
payoff check evidencing that payment of the unreleased mortgage is to be made in full at the time of the closing, and with an undertaking to make said payment, and further provided the Purchaser's title insurance company will issue a fee policy at no additional premium which takes no exception for said mortgage or mortgages. Seller shall exercise due diligence to obtain any such release or releases and will upon receipt thereof immediately record the same and forward a copy or copies thereof to Purchaser's attorney with recording information. If Seller has not obtained such release within 60 days after closing, Seller shall give to Purchaser's attorney the affidavit provided for in Connecticut General Statutes Section 49_8(a) as amended, together with the necessary recording fee. This provision shall survive the closing.
LIEN
5. All sums paid on account of this Agreement and the reasonable expenses as set forth in paragraph 4 or 10 hereof are hereby made liens on said premises, but such liens shall not continue after default by the Purchaser under this Agreement.
FIXTURES
6. (a) Included in this sale, for the aforesaid purchase price, are the following items, insofar as any of them are now located on and belong to the premises; heating, cooling, electrical and plumbing systems, electric light fixtures, stove, storm windows and doors, screens and screen doors, window shades, venetian blinds, curtain rods, awnings, exterior television antennae, pool equipment and garage door openers with attachments, together with
(b) Specifically excluded from the sale are:
CONDITION OF PREMISES
7. The Purchaser has inspected said premises, is satisfied with the physical condition thereof and agrees to accept said premises in their present condition on an ' as is" basis. Neither Seller nor Seller's representative has made any representations or warranties as to said premises on which Purchaser has relied other than as expressly set forth in this Agreement. The Seller represents that the condition of the premises shall be the same on the date of closing of title as on the date hereof, reasonable wear and tear excepted, subject to the provisions of paragraph 10 hereof.
BROKER(S)
8. The parties hereto recognize no broker as the broker(s) who negotiated the sale of the premises herein described. This Agreement is consummated by the Seller in reliance on the representa-tion of the Purchaser that no broker or agent brought the premises to the Purchaser's attention or was, in any way, a procuring cause of this sale and purchase. The Seller represents to the Purchaser that no broker or agent has any exclusive sale or exclusive agency listing on the premises. The Purchaser (jointly and severally, if more than one) hereby agrees to indemnify and hold harmless the Seller against any liability by reason of the claim of any broker or agent for a commission on account of this sale, provided that is adjudged by a court
of competent jurisdiction that a commission is due by reason of such broker or agent calling the premises to Purchaser's attention or interesting Purchaser therein, said indemnity to include all costs of defending any such claim including reasonable attorneys fees. The provision of this paragraph shall survive the closing.
APPORTIONMENT
9. Taxes, rents, service contracts, dues, and ordinary assessments of private associations, and common charges, if any, shall be apportioned over the fiscal period for which levied. Purchaser shall reimburse Seller at closing for any fuel remaining on the premises at then market rates. Assessments for municipal improvements or other special assessments shall be apportioned in accordance with the custom of the Bar Association of the community where the premises are located.
RISK OF LOSS
10. The risk of loss or damage by fire or other casualty to the buildings on said premises until the time of the delivery of the deed is assumed by the Seller, in the event that such loss or damage does occur prior to the delivery of the deed, the Seller shall be allowed a reasonable time thereafter, not to exceed thirty (30) days from such loss or damage or such shorter time as may be within the term of Purchaser's mortgage commitment, within which to repair or replace such loss or damage. In the event the Seller does not repair or replace such loss or damage within said time, the Purchaser shall have the option as follows:
(a) Of terminating this Agreement, in which event all sums paid on account hereof, together with all expenses actually
incurred by the Purchaser not exceeding the cost of fee title insurance in the amount of the purchase price, shall be paid
to the Purchaser without interest thereon. Upon receipt of such payments, further claims and obligations between the
parties hereto, by reason of this Agreement, shall be released and discharged; or
(b) Of accepting a deed conveying said premises in accordance with all the other provisions of this Agreement upon
payment of the aforesaid purchase price and of receiving the benefit of all insurance moneys recovered or to be
recovered on account of such loss or damage, less the amount of any moneys actually expended by the Seller on said
repairs.
The Seller shall not be responsible for loss or damage to trees or other plantings due to natural causes.
AFFIDAVITS
11. The Seller agrees to execute, at the time of closing of title, an affidavit, (a) verifying the non_existence of mechanics' and materialmen's lien rights; (b) verifying the non_existence of any tenants' rights, other than as set forth herein, (c) verifying the non_existence of any security interests in personal property and fixtures being sold with the premises, (d) affirming that the Seller has no notice of any facts or circumstances not of record which could give rise to the claim of any third party to rights of adverse possession or use over the premises or any part thereof in derogation of Seller's title, (e) updating to the extent of Seller's knowledge, any available survey, and (f) affirming that Seller is not a "foreign person" pursuant
to Internal Revenue Code Section 1445; together with any other affidavit reasonably requested by the Purchaser's lender or title company as to facts within Seller's knowledge.
MAINTENANCE
12. The grounds shall be maintained by the Seller between the date of Purchaser's signing hereof and the closing of title, including the mowing of lawns, the raking of fallen leaves, and the removal of snow and ice from walks and driveways.
CONDITION OF PREMISES
13. The Seller agrees to deliver, simultaneously with the closing of title provided for herein, exclusive possession of the premises (except as may be otherwise provided herein), broom_clean, free of all debris, litter and furnishings and shall deliver all keys to the Purchaser simultaneously with the closing of title provided for herein. Purchaser shall have the right to make a final inspection of the premises prior to the closing of title.
ASSIGNMENT
14. This Agreement and Purchaser's rights hereunder may not be assigned by Purchaser without the written consent of Seller, and any purported assignment without such written consent shall be void and of no effect. Consent of the Seller to assignment shall not unreasonably be withheld or delayed. Upon any effective assignment of Purchaser's rights hereunder, Purchaser and Purchaser's assignee shall be jointly and severally liable hereunder unless otherwise agreed by Seller.
REPORTING COMPLIANCE
15. Unless otherwise required by law or as set forth in a separate designation agreement, Purchaser shall cause Purchaser's attorney to comply with any reporting requirements of the Internal Revenue Service as to this transaction. The provisions of this paragraph shall survive the closing.
ACCEPTANCE OF DEED
16. The delivery and acceptance of the deed herein described shall be deemed to constitute full compliance with all the terms, conditions, covenants and representations contained herein, or made in connection with this transaction, except as may herein be expressly provided and except for the warranties of title.
PURCHASER'S LIABILITY FOR DELAYED CLOSING
17. INTENTIONALLY DELETED.
MORTGAGE CONTINGENCY
18. INTENTIONALLY DELETED.
CLOSING
19. The deed shall be delivered at the offices of Kaye and Hennessey, LLC, 7l Lewis Street, Greenwich, Connecticut, 06830 or at such place in Fairfield County, Connecticut, as may be designated by Purchaser's lending institution on the 30th day of March, 2005 at 10:00 a.m. or sooner by mutual agreement of the parties hereto. Notwithstanding the foregoing, in the event all municipal approvals for the Purchaser to complete this transaction have not been obtained by March 30, 2005, then the closing date shall be within thirty (30) days of the time all such approvals are obtained.
REPRESENTATIONS
20. Unless otherwise specified in writing to the contrary, none of the representations made in this Agreement shall survive delivery of the deed.
EFFECT
21. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and permitted assigns of the respective parties.
CAPTIONS
22. The captions preceding the paragraphs in this Agreement are for ease of reference only and shall be deemed to have no effect whatsoever on the meaning or construction of the provisions of this Agreement.
SEE RIDER ATTACHED HERETO
IN WITNESS WHEREOF, the parties to these presents have hereunto set their hands and seals, the day first above written.
In the Presence of:
_______________________________________________(L.S.)
JAI HOAN LEE , Seller
Tax ID # 135-50--3891
TOWN OF GREENWICH
By:____________________________________________(L.S.)
, Purchaser
Tax ID #____________________________________________
Title to said premises is to be taken in the name or names of:
(Standard Form Agreement Approved by Greenwich Bar Association 1991 as modified by Jeremy E. Kaye)
RIDER
23. Seller represents that, except as otherwise set forth in this Agreement, to the best of his knowledge and belief, that there are no driveways, structures or improvements upon the within premises which encroach upon an abutting property nor are there any such encroachments upon the within premises from an abutting property.
24. Seller represents that he has received no notice of, nor does he have any knowledge of any violations of any state or local laws, rules or regulations by the improvements upon the premises.
25. Between the date of this purchase agreement and the closing, Seller agrees to maintain hazard insurance on the premises in an amount equal to the replacement cost of the building. Seller represents to Buyer that Seller does not know of any litigation or other proceedings, whether pending or threatened, against Seller that could result in a "lis pendens" or other form of lien or attachment encumbering the premises on or prior to the closing, or in any manner involves or affects the premises, and upon any such encumbrance or potential encumbrance coming to Seller's attention, Seller shall notify Buyer thereof immediately and confirm such notice in writing.
26. At the time of the closing of title, there shall exist no violations of governmental (including building, zoning and planning) laws, rules, regulations or limitations with respect to the premises (unless same are legally nonconforming), and no violations of any enforceable restrictive covenant, agreement or condition subject to which title is to be conveyed hereunder.
27. Seller represents to the best of his knowledge and belief, that no utilities cross the property of an adjoining owner in serving the subject premises, and that no utility lines cross the subject premises to serve property of an adjoining owner, except as specifically set forth in this Agreement.
28. The Seller shall, prior to closing supply the Buyer with all information necessary to file a Form 1099S.
29. The Seller represents that there are no abandoned fuel tanks on the premises, nor any above-ground or underground fuel tanks on the subject premises which leak or have leaked any fuel oil and that any such fuel oil tank(s) are not currently in disrepair. The Seller further represents that the subject premises are not contaminated by any oil or petroleum product or other hazardous waste which, if known to the state and federal authorities, could result in a mandatory remedial clean-up work order and expense to the Buyer subsequent to the closing of title. Seller has disclosed that there is presently in use an underground storage tank on the premises and asbestos in the furnace area.
30. The Seller represents that he is not a party to any proceeding under title 11 of the United States Code.
31. Prior to the closing of title, the Buyer and their agents may have reasonable access to the premises, upon reasonable notice, in order to take measurements, survey the property, and to perform any environmental and/or soil testing required by Buyer, etc.
32. For purposes of this Agreement, faxed signatures will be deemed to be original signatures.
33. The representations of Seller shall be as true at closing as of the date of this Agreement.
34. All representations made by Seller are made to the best of Seller's knowledge and belief and will not survive the delivery of the deed.
35. This Agreement is contingent upon the Purchaser obtaining approval of the Representative Town Meeting, the Board of Estimate and Taxation and the Board of Selectman for the purchase of the property pursuant to the terms of this Agreement on or before March 30, 2005. In the event such approvals are not obtained by such date, then this Agreement shall be of no further force and effect. Notwithstanding the foregoing, in the event the approvals have not been obtained by March 30, 2005, but the Purchaser has been diligently pursuing said approvals, then the Purchaser may extend this contingency date to May 12, 2005 and the closing date set forth in Paragraph 19 to June 1, 2005, provided that written notice of the same is given to the Seller on or before March 30, 2005.
36. The Purchaser hereby agrees to reimburse the Seller, at closing for $44,500 of costs incurred by the Seller in connection with the sale of the property.
SCHEDULE A
All that certain lot of land, together with the buildings and improvements thereon, situated on the westerly side of Mason Street in the Town of Greenwich, County of Fairfield and State of Connecticut, bounded and described as follows:
Beginning at a point formed by the intersection of the division line between the premises hereby conveyed and land now or formerly of The Bruce Place Corporation with the westerly line of Mason Street, distant 121.37 feet from the northerly line of Bruce Place, and running thence along land now or formerly of The Bruce Place Corporation North 73° 13’ West 125.0 feet to land now or formerly of William J. Smith Cary, being the easterly line of an existing right of way; running thence along land now or formerly of said William J. Smith Cary, North 16° 47’ East 50.0 feet to land now or formerly of The 168 Mason Corporation; running thence along land now or formerly of The 168 Mason Corporation, South 73° 13’ East 125.0 feet, to the westerly line of Mason Street; running thence along the westerly line of Mason Street, South 16° 47’ West 50.0 feet to the point or place of beginning.
Said premises are bounded northerly by land now or formerly of The 168 Mason Corporation; easterly by Mason Street; southerly by land now or formerly of The Bruce Place Corproration and westerly by land now or formerly of William J. Smith Cary, being the easterly line of an existing right of way.
Together with all right, title and interest of the Grantor in and to Mason Street in front of and adjoining said premises.
Together with all rights, privileges and easements reserved in a certain Quit Claim Deed from Donella to the Town of Greenwich dated October 18, 1974 and recorded in the Land Records of said Town of Greenwich in Book 905 at Page 202.
Being the same premises conveyed to Jai Hoan Lee by CM & HP Limited Partnership by Quit Claim Deed dated March 19, 1990 and recorded in the Greenwich Land Records in Book 2022 at Page 223.
ITEM NO.: 5
DEPARTMENT: Selectmen
CONTACT: Edward Gomeau 618-7683
Diane W. Fox 622-7894
REFERRED TO: Legislative & Rules and Land Use Committees
VOTES: Board of Selectmen 3-0-0
To consider and act upon the following resolutions for Home Rule action under the Charter to amend the Town Charter, Special Act and Municipal Code as follows:
RESOLVED, that the following amendment to Section 1 of the Special Act 469 of 1951 (as amended) and Article 9, Section 82 of the Town Charter, be adopted as follows:
DEFINITIONS.
(a) (7) SUBDIVISION – Revision (words in brackets to be deleted; words bolded to be added.)
“Subdivision means the division of a tract or parcel of land into [three (3)] two (2) or more parcels or lots for the purpose, whether immediate or future, of sale or building development expressly excluding development for agricultural purposes, and includes re-subdivision.”
FURTHER RESOLVED, that pursuant to the Special Act 469 of 1951 (as amended), that the Town Code Article 4, Subdivisions, Section 6-261(15) be amended as follows:
-Section 6-261(15) DEFINITIONS (SUBDIVISION) – Revision (words in brackets to be deleted; words in bold to be added.
“Subdivision shall mean the division of a tract or parcel of land into [three (3)] two (2) or more parcels or lots for the purpose, whether immediate or future, of sale or building development expressly excluding development for agricultural purposes, and includes re-subdivision.”
EXPLANATORY COMMENTS
The Board of Selectmen on February 17, 2005 unanimously approved the above resolutions to amend the Town Charter, Special Acts and Municipal Code to change the definition of subdivision from 3 parcels to 2 parcels, and to forward said resolutions to the RTM .
The Planning and Zoning Commission also approved these resolutions at their January 25, 2005 Regular Meeting.
Explanatory material pertaining to the amendment adopted by the Planning and Zoning Commission to amend the Greenwich subdivision regulations to include two lot subdivision
1. Some history.
Subdivision Regulation Sec. 6-261 (a) (15) presently defines a subdivision as “…the division of a tract or parcel of land into three (3) or more parcels or lots…”~ The division of a tract or parcel into only two parcels does not meet this definition. Therefore, depending upon the facts, the division of a lot into two parcels may avoid the Town regulations relating to the creation of subdivisions.~This is what is popularly known as a “free cut”.
(This event is also sometimes referred to as a “free throw” or as a “lot split.”~ However, the term “lot split” is also used to refer to various other lot divisions. The term ~“free cut” is well understood to mean the division of a lot into two lots which escapes compliance with the subdivision regulations.)
The Town’s first adopted subdivision regulations in 1933.~ The regulations were revised in 1954. ~Both versions considered a subdivision to be the division of a lot into two or more parcels (with various exceptions and defined pre-approvals).~ In 1958 the State Legislature amended CGS Sec. 8-18 to define a subdivision as “…the division of a tract or parcel of land into three or more parts or lots…”~ However, this did not affect the Town’s subdivision regulations as Greenwich was, and is, a special act community. The definition of a subdivision in Greenwich continued to be the division of a lot into two or more parcels. There is no legislative history or other recorded policy objective that caused the state legislature to adopt the “three lot”
definition.~ It appears to be a state law that just happened.
~In 1970 the Town again revised its subdivision regulations and the “three lot” subdivision definition was adopted.~ We are not aware of any stated policy objective which caused Greenwich to adopt the definition.~ Greenwich simply followed the state statute’s definition.~ This is the regulation we have today.
2. How is a free cut determined?
As is indicated above, a free cut is the division of one lot into two lots that does not require compliance with the Town’s subdivision regulations. ~Determining whether a particular lot is entitled to a free cut can be a complicated question~~
~A useful rule of thumb is this: if there has been no division of the lot since the revision of the subdivision regulations on September 4, 1970 and all divisions, if any, which occurred prior thereto were either done prior to the adoption of subdivision regulations or were done in accordance with the then prevailing subdivision regulations, then the lot qualifies for a free cut.~ One clear rule is that a particular lot is only entitled to one free cut.~
(Applications to the PZC to review a proposed two lot division are also routinely examined as possible resubdivisions.~ However, a resubdivision involves a change in an approved or recorded map.~ The typical free cut application does not involve such a map.)
Under procedures set up by the Planning and Zoning Commission and the Building Department, a property owner seeking to divide an existing lot as a free cut must provide documentation to the Commission demonstrating that the lot in question qualifies. This means submitting evidence of the lot’s title history and how it has been configured and transferred down the years, together with property surveys showing past transactions which involve the lot.~ This is then reviewed in the light of the Town’s subdivision regulations as the same have been amended from time to time.
It has been the policy of the Building Department since the early 1990s not to issue building permits allowing the development of lots created by free cuts unless the PZC has reviewed the matter and determined that the lot that is proposed to be divided, qualifies.~ The decision of the PZC regarding a free cut is a negative finding.~ That is, a finding that the lot to be cut qualifies and therefore the PZC has no jurisdiction.~ The result is the familiar statement that the proposed lot division “does not constitute a subdivision or a resubdivision”.~ A substantial amount of PZC staff and PZC members’ time is consumed making these free cut analyses.
3. Why the proposed amendment should be adopted.
The purposes of the subdivision regulations are stated in Sec. 2-260 of the regulations which provide, in part, as follows:
The purposes of this Article shall be to:
~~~~ ~ (1) Further the orderly development of the Town in accordance with the Plan of
Development.~
~~~~~ (2) Insure that any land subdivided can be used for building purposes without danger
to health or public safety.
~~~~~ (3) Regulate the layout of street in accordance with sound engineering principles…
~~~~~ (4) Control the layout of lots to protect the environment.
~~~~~ (5) Regulate the layout, design and construction of drains…
~~~~~ (6) Provide for protective control measures in areas subject to flooding.
~~~~~ (7) Secure the preservation of natural features of the landscape…
~~~~~ (8) Control the placement of utilities.
In order to achieve these purposes, the regulations require a detailed subdivision plan and layout to be submitted showing what the subdivider proposes to do and how he plans to do it. Engineering and design standards must be met.~~ A report from the Department of Health regarding sewage disposal is required.~ Adjoining neighbors must be notified and the documents are open to public inspection.~ The proposed subdivision is reviewed by the PZC in a public meeting.~
Two lot divisions which qualify as free cuts totally escape these requirements and procedure.~ No subdivision plan and layout is submitted or reviewed by the PZC staff, the PZC or the public.~ Free cuts subvert the objective of the Town’s subdivision regulations which is to cause the Town to be developed in an orderly way.~ There is nothing inherent in the division of a lot into two lots that entitles it to special treatment or distinguishes it from a three lot subdivision, or, for that matter, a ten lot subdivision.~ We believe the absence of such reviews has been particularly detrimental to the R-6 zone
It is important to understand that if a lot is entitled to a free cut, the right is absolute.~ It overrides all other considerations such as lot size and shape, open space preservation, potential effect of development on physical conditions (slopes, wetlands, tree preservation), suitability for on-site septic and water supply, road access and impact on surrounding properties.~ In short, it overrides all of the purposes of the Town’s subdivision regulations.
Lots eligible for a free cut vary in size.~ Some are double or even more than double the minimum lot size of their zone.~ Many are less than double. Some are even less than the minimum lot size of their zone. When such lots are split, the result is at least one and possibly two lots that are undersized. ~~It is common for subdividers to go to the Planning and Zoning Board of Appeals (ZBA) and seek variances to allow the undersized lot or lots to be developed.~ The question before the ZBA is whether the subdivider has a hardship.~ The purposes stated in the subdivision regulations are irrelevant.
~4. How big is the problem?
It is the experience of the P&Z that the properties in the commercial zones and properties holding large developments such as apartments and condominiums do not seek free cuts. It is the improved and vacant residential properties which typically seek a free cut.
There are currently about 15,447 improved residential properties in Greenwich (with single, two family, three family or four family dwellings) and about 714 vacant properties.~ To know exactly how many of these properties would be eligible for a free cut would require an analysis of the deed history of each lot, obviously a very difficult task.~ Based on past experience, however, a significant number would be eligible.
During the period January 1, 1999 through June 30, 2004, the PZC heard 95 free cut applications.~ In all of these cases the PZC found it had no jurisdiction and the applicant was entitled to the free cut.~ We believe the ever increasing value of land in Greenwich has, and will continue to encourage these applications.~ Lots which ten years ago, or even five years ago, would not have been considered for a free cut, are now being split.~ The result is the development of undersized lots, the crowding together of dwellings with attendant pressure on the Town’s infrastructure, excavation, blasting, filling and clear cutting of sites, an increase in impervious surfaces with attendant loss of vegetative cover and adverse effects on the water quality of steams which enter Long Island Sound.
5. The “15% setaside” question.
Developers have expressed concern that if free cuts are eliminated the PZC will use the “15% setaside” in the subdivision regulations to unreasonably stop development.~ This is an unreasonable concern.
Sec. 6-297 of the subdivision regulations provides in part,
~~~~~~~~~~~ (a) The Commission shall require that land, open space or easements, be reserved for park, playground or open space use, where such reservations are shown in the Plan of “Development, or where the Commission deems such reservations appropriate.~ Each reservation shall be of suitable size, location, topography and general character and shall have adequate road access to serve the particular purposes deemed proper by the Commission.
~~~~~~~~~~~ (b) The required open space reservation shall not exceed fifteen percent (15%) of the total area of the subdivision but this Subsection shall not prevent additional voluntary reservations being made by the subdivider….
As a result of this section developers commonly include in their subdivision applications, a proposal regarding the quantity of open space they intend to preserve and how they intend to preserve it.~ Probably the most frequent proposal is to set aside 15% in fee to be held by a non-profit corporation controlled by the residents of the subdivision.~ However, the proposal can be for anything from zero to 15%.~ It can be in whole or in part an easement.~ Sec. 6-297 gives the PZC flexibility when applying the set aside requirement.
As a result of Sec. 6-297, open space has been preserved in subdivisions throughout Greenwich.~ The long term benefit to the quality of life in the Town is incalculable.
The development of lots created as a result of a free cut totally escapes any obligation to set aside any portion of the lots as open space. ~If, as proposed, the definition of a subdivision is amended to mean the division of a lot into two or more parcels, this will no longer be true.~ Developers of two lot subdivisions will have to propose some form of setaside or explain why in their particular situation no setaside is warranted.~ It is this fact which has caused developers concern, namely, that the PZC will unreasonably insist on some form of setaside which will make particular lot commercially undevelopable.~
Open space setasides on lots which are equal to the minimum lot size of their zone are rarely a problem.~ However, lots created by a free cut are often undersized, sometimes substantially so.~ By definition there is limited space on an undersized lot to construct a dwelling.~ In theory, a 15% setaside could so reduce the available space for construction as to make the lot undevelopable.
History indicates the PZC does not act unreasonably in these situations.~ During the period January 1, 1999 through June 30, 2004 the PZC reviewed 6 two lot subdivisions and 9 two lot resubdivisions.~ All of these applications were approved, although the size of the setaside and the method used (conveyance in fee or easement) varied.~ In no case was it ever claimed that the setaside made the subdivision undevelopeable.
Apart from the foregoing, we suggest that developers have an obligation to use their best efforts to develop lots which meet the purposes of the Town’s subdivision regulations.~ We believe adopting the proposed two lot subdivision definition will encourage developers to do so.
6. Conclusion.
The PZC requests the Board of Selectmen to submit the above stated amendment of the Town’s subdivision regulations and the Town Charter, Code and Special Act to the Representative Town Meeting for its consideration.
The following resolution was adopted by the Planning and Zoning Commission on January 25, 2005 to amend the Greenwich Subdivision Regulations and Town Charter to include two lot subdivision
Whereas, applications to the Planning and Zoning Commission seeking confirmation that a proposed division of a lot into two lots does not have to comply with the Town’s subdivision regulations, and thereby qualifies as a “free cut,” are being made with increasing frequency, and
Whereas, a lot that qualifies for a free cut avoids compliance with the Town’s subdivision regulations which, with this single exception, apply to all~ subdivisions in Greenwich, and are intended to cause the orderly development of Greenwich, and
Whereas, Free cuts are possible because the definition of a subdivision in the Town’s subdivision regulations is the division of a lot into three (3) or more parcels, which may allow the division of a lot into two (2) parcels and thereby avoid compliance with the regulations, and
Whereas, Free cuts are enabling two lot subdivisions to be developed totally outside the Town’s subdivision regulations and without the PZC and town departments’ review and the public scrutiny the subdivision regulations were enacted to achieve,
It is therefore resolved, that the Board of Selectmen be requested to submit to the Representative Town Meeting a proposal to amend the Special Acts, the Town Charter, and the Municipal Code to change the definition of subdivision per Sec. 6-261 (a) (15) of the Greenwich Municipal Code from 3 parcels to 2 parcels.
ATTACHMENTS- SEE ATTACHED ITEMS #1 AND #2
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