Special exception granted for flood zone workaround

By Greg Ellison

(July 15, 2021) Berlin’s Board of Zoning Appeals approved both a conditional use and special exemption request for a proposed 33-townhome community on Maple Avenue during its meeting last Wednesday.

Maple Avenue of Berlin LLC and UTR Ventures LLC are looking to develop three parcels on Maple Avenue in the multi-family R-3 apartment zone.

Prior to going through site plan review, property developers sought sign-off from the appeals board for zoning permissions and to reduce minimum unit widths for 18 to 16 feet.

Attorney Mark Cropper, representing developer Bobby Kitchens, asked the board to grant a conditional use as required in town code to build townhomes in an R-3 zone.

After flood plain issues were discovered while mapping out initial site plans,  developers responded by reducing unit widths to 16 feet from the 18 feet required by town code.

Cropper said the width-alteration request was originally filed as a variance but could more accurately be classified a special exception.

“Special exemptions are deemed presumptively permitted uses,” he said.

Cropper said the burden of proof required for a special exception is markedly different than a variance.

“That set of criteria and that condition is much different from a variance request,” he said.

Kitchens, who is in the midst of closing on the Maple Avenue property, said the sale is contingent on the appeals board approvals and would service an underserved segment of the community.

“It’s filling the market need for Berlin,” he said.

Kitchens said a homeowners’ association would be established for oversight of property management.

Cropper said despite town code requirement of a minimum width of 18 feet per unit, exceptions exists elsewhere in the region.

“There are other townhouses in Worcester County under 18 feet that have proven to be marketable,” he said.

The minimal size difference also reduces construction and material costs, Cropper said.

Noting the home dimensions in question do not affect life safety or general welfare concerns, Cropper said the proposed 16-feet size would be consistent with growth in the area.

“It would be protecting and preserving property adjacent values, not lowering them,” he said.

Board member Woody Bunting said the two-foot width reduction is an issue of some significance.

“I don’t think we have any units in town that are 16 feet,” he said. “Shouldn’t the Planning Commission kind of weigh in?”

While not wholly opposed, Bunting said the request was, to his recollection, without precedent.

“Can the 33 units be built 18-feet wide?” he said.

Site planner Ed Hammond said the original intent was to meet code.

“We originally had started with the 18-foot wide in the site planning process,” he said.

As the rough plans were being drawn with the flood plain boundaries in mind, the developers saw they were running out of space.

“We had problems maintaining the minimum distance between structures,” he said. “Right now we’re at 35 feet but we were really pushing it on that flood plain line.”

Hammond said by lopping off two feet, along with slightly reconfiguring the townhome layout, all 33 units would be accommodated within site plans.

Board member Doug Parks asked if the potential for traffic congestion was considered due to a number of current construction projects on Maple Avenue.

“Perhaps it needs access out besides Maple Avenue,” he said.

Planning Director Dave Engelhart said Maple Avenue is wide enough to handle increased vehicular flow, while also noting the roadway would be revamped in the future.

“It’s going to be resurfaced by the developer of the Willows project when they’re done,” he said.

In December, the mayor and Town Council transferred the deed for an 11,000-square-foot property on Maple Avenue to the Willows at Berlin, which included several contingencies for road paving and installing sidewalks.

Board member Robert Palladino asked about potential prices for townhomes.

Kitchens said the intent is to provide lower cost buying options, while admitting precise figures have become more difficult to establish.

“Based on lumber prices in the last six months, I’m afraid to hang that number,” he said. “I was hoping to come in at a price point that was at the lower end of the current market values in Berlin.”

Board chairman Joe Moore said pending the board’s approval that evening, project plans would next need Planning Commission approval, which could include additional conditions.

Engelhart said traffic and parking issues are among the points the Planning Commission would consider.

Despite the inclusion of an 18-foot width minimum in town code, Engelhart said the developer’s requested measurement is more cost efficient.

“In modulars of lumber, 16 feet is more common and available for rafters, joists or just about anything,” he said. “Eighteen is kind of an odd-duck number.”