TOWN OF EAST WINDSOR - ZONING BOARD OF APPEALS
MINUTES OF REGULAR MEETING
SEPTEMBER 13, 2010
The East Windsor Zoning Board of Appeals held a Regular Meeting on Monday, September 13, 2010. The following members were present: Regular members Tom Arcari, Stan Paleski and James Strempfer and Alternate members José Giner and Dan Noble. Also present was Robin Newton, Zoning Enforcement Official and John Burnham, Board of Selectmen liaison to ZBA.
The meeting was called to order at 7:30 p.m. at the Broad Brook School cafeteria, 14 Rye Street, Broad Brook, Connecticut by the Chairman Mr. Arcari.
MOTION: To adjourn the meeting at the Broad Brook School and go across the street to the meeting room at the Town Hall. Paleski / Strempfer / Unanimous
The meeting was called back to order by Chairman Arcari at 7:36 p.m. at the meeting room of the East Windsor Town Hall, 11 Rye Street, Broad Brook, Connecticut.
A quorum was established as 3 regular members and 2 alternates were present. Mr. Paleski read the legal notice as it appeared in publication.
NEW HEARINGS:
ZBA #2010-04 - Application of David Maura for property located at 263 Rye Street for a variance of Section 402 (4) Notes to Permitted Uses In Residential Districts to allow a lean-to for sheltering horses to be located 89 feet ± from the side property line where 100 feet is the minimum required. [R-3 zone]
Attorney Jason Doucette represented Mr. Maura who was also present. Atty. Doucette referred to plans of the property. He distributed packets to the ZBA members that contained photos of the property. He explained that they are seeking a variance for a side setback of 89 feet from both the northerly and southerly property lines for a 10’ x 10’ structure described as a run-in for horses. Atty. Doucette noted that the proposed structure is similar to a small shed without a door. He said that this structure, if not used for a horse, could be located 15 feet from the side property lines.
Atty. Doucette said Section 402.4 provides that the keeping of livestock is a permitted use if it is on a lot of 4 acres or more, which this property contains. Any building for the housing of livestock is to be located 60 feet from the street line and 100 feet from any property line. He said that this use is in keeping with the Plan of Conservation and Development, which encourages agricultural activities in the residential districts.
Atty. Doucette explained that Mr. and Mrs. Maura acquired the property in 2007 and at that time the lot contained 3.74 acres. A few months later they acquired .26 additional acres with the understanding that having the necessary 4 acres, he could keep horses on the property. He indicated that the area in question where the run-in would be located is in a flat area about 300 feet from the back of the house. It would not be visible from the road. Atty. Doucette said for the neighbors on the northerly side, the Thompsons, it would be blocked from sight by the garage. On the southerly side, the Ellsworth property, it is visible but there are fences and trees.
Atty. Doucette pointed out that at the back of the property it starts to slope off. He said they requested a continuance a couple of months ago to revise the plans. From the previous plans it appeared that the structure would be located in the middle of a slope. It is not on any slope. Mr. Maura has erected a temporary fence around the area where the enclosure will be. It is a good 30 feet in back of where the run-in will be located. He said it is about another 30 to 40 feet from where it really starts to slope. Atty. Doucette said they will need to get approval from the Wetlands Commission for the nearness to the terrace escarpment slopes.
Atty. Doucette said the horse manure would be kept in a covered water-tight pit which would be removed from the property and disposed of. He said Mr. Maura has spent some time with the North Central Conservation District and they recommended that he carry the manure off the property.
Atty. Doucette pointed out that Mr. and Mrs. Tiernan of 257 Rye Street were present. He referred to a photo of their house, which is 2 doors down from the Maura property to the north. He said they have a nearly identical set-up as what Mr. Maura is proposing. They have a run-in and an enclosure where they keep 2 horses on the property. Atty. Doucette said that one criteria for a variance is to show that it is in harmony with the neighborhood.
Atty. Doucette noted that although this lot has 4 acres it is narrower than other properties in the area. He pointed out on the Assessor’s map that other properties in the area are not as narrow. If they had 11 feet on either side, they would not be here tonight. He said the fact that the lot is narrow is not the making of Mr. Maura and the hardship is the shape of the lot.
Atty. Doucette said this structure is the smallest type of run-in that is suitable for housing horses on the property. Mr. Paleski asked if they knew when the Tiernans put up their horse structure. Mr. Tiernan said it was about 6 years ago. Mr. Paleski asked if that was before the 100-foot setback requirement. It was noted that the 100-foot setback has been in existence for quite a while. Mr. Paleski pointed out that the board members had received some information once before for this property for a hoop structure and they never had a hearing.
Mr. Arcari opened up the hearing to the public.
Atty. Harold Cummings came forward. He explained that he represented John and Madeleine Thompson and Bill and Russell Ellsworth, 259 and 265 Rye Street. Atty. Cummings submitted an exhibit list. He said this property has a history. He submitted, for the record that items #1 through #6 of the exhibits are a series of cease and desist orders issued by the Town of East Windsor. Atty. Cummings said the history of this property goes back to 2007 when they purchased the property. Shortly thereafter there was a cease and desist order letter dated June 6, 2007 from Nancy Rudek indicating that keeping the horse on the property was in violation because they did not have the required acreage. Atty. Cummings referred to a map and pointed out that at the rear of the property is Ketch Brook. He said the additional acreage they acquired is the brook area in the rear. Atty. Cummings noted that there were letters from July, August, September and October of 2007 and February of 2008. They
all advise the applicant that the use of the garage and out building on the property as the location for the horse is inappropriate. Atty.
Cummings noted that during this process the earlier application that Mr. Paleski referred to was filed and then withdrawn. He said at that point the horse was removed from the property. Atty. Cummings referred to exhibit #7 which is a letter from Mike Caronna of the North Central District Health Dept. dated February 15, 2008 regarding the manure on the property. It states that Mr. Caronna did a review of the property and although this parcel contains 4 acres of land, really you have one acre, which is the house and the front lot and one acre which is the wooded area where the fence is and the third and fourth acres are steep slopes.
Atty. Cummings said where the edge of the paddock is shown it would appear that the paddock area and the proposed structure are located in the terrace escarpment. He said it would seem to be a very inappropriate location. The zoning regulations say that to have a horse you have to have 4 acres but they do not say they have to be useable or suitable acres. He felt this amounts to only one useable acre out of the 4.
Atty. Cummings said the use of the horse on this property does have a significant impact on the neighbors. During the time that the horse has been kept on the property Mrs. Thompson kept a log because of the almost daily impact of the significant horse manure odors and the flies. Atty. Cummings referred to an article in the Spring, 2007 East Windsor Newsletter which stated that the quantity of manure from a single horse is 45 to 55 pounds per day. He said as indicated in the letter from North Central Health this property is not sufficient size to be able to compost or take care of manure on site.
Atty. Cummings noted that Exhibit #10 is a memo from Ms. Newton to the ZBA expressing concern about the terrace escarpments in the area. He referred to photos he took of the property and said it is clear that the paddock area is built out on a peninsula of terrace escarpment. Gullies come out on either side of it. He said the photos show that the terrace escarpment slopes are on the Ellsworth and Thompson properties. He said it is a common condition in the neighborhood.
Atty. Cummings said he did not believe that the applicant has established a hardship for a variance. It is a long narrow lot. This was the configuration of the land when he bought it. He felt that the applicant had adequate opportunity to research the regulations. He said you have a situation where the prior use of the property with a horse had impacted his clients. They want to be good neighbors. He said the granting of a variance runs with the land. He said there was nothing unique about this parcel and felt that it would fall into the self-created hardship. He said the fact that other property owners have similar uses on their property is not relevant. You have to look at what is appropriate for this property. He felt there was not a basis to support the
granting of a variance.
Bruce Ellsworth said that he is the son of Bill Ellsworth. He said there has been bad history of people disregarding the laws of this town. He said this isn’t a garage that he is going to keep a tractor in. It is a horse barn. With the manure and flies, it is not an appropriate spot for that. He said he has also heard that this has a commercial aspect. He thinks there has been some buying and selling. He said this is just a few feet away from his dad’s back yard. He said this is a residential neighborhood. It is not an agricultural area. There just isn’t enough space. Mr. Ellsworth said it is important to enforce the zoning regulations to protect their property. He said they indicated that the manure was going to be taken away.
It never was in the past. He said there is a bad history here of noncompliance. He said it is not the building itself. It is what goes into it.
Mr. Tiernan of 257 Rye Street said he has talked to Mr. Maura and he understands what he needs to do. As far as the terrace escarpment, Mr. Tiernan said he has a barn approximately 40 feet from the edge. The corral is over 100 feet long and on the back side it is approximately 20 feet from the edge and nothing has moved. Mr. Tiernan said the UConn people have come to his property and they have said they have no problem with what he is doing.
Louise Tiernan of 257 Rye Street said she would be in favor of Mr. Maura’s application. She said he has learned from his mistakes.
Mr. Giner asked how far the shed will be from the top of the slope. Atty. Doucette responded that the structure from the back would be about 30 feet. Mr. Paleski said looking at the structure there is not enough room to keep hay. He said he would have to guess that the existing garage would be the area for storage for food and grain. He said when you have grain feed you will end up with a rodent population. Mr. Maura said the run-in is strictly a shelter. The food and hay is stored in another area.
Bill Ellsworth said he has lived there for 95 years and he can’t believe some of the things that have been going on.
Atty. Doucette said the issue of the terrace escarpment slopes is a little misleading. He said it is based on a map that was produced by the North Central Conservation District. He said he spoke with David Askew there and this map is not intended for regulatory purposes. What is shown is not drawn to scale. The map of terrace escarpment slopes is based on soil analysis. He said you can’t tell by simply walking around. He said this structure is not on the slope. Atty. Doucette noted that one letter that was not included in the list of exhibits is a letter from William Blitz of the North Central District Health Dept. to Mr. and Mrs. Maura, dated August 20, 2007 following a complaint about the odor. The letter stated that the area was being properly maintained and there
was no noticeable odor or fly infestation and the complaint was closed out.
Madeline Thompson, 259 Rye Street, said the horse has been there for the last month. The horse is there every day. She sees it from her kitchen window. It is 40 to 50 feet from the bedroom. She said the horse is kept in the back yard and there is no buffer.
Atty. Doucette said there is clearly a buffer. He said there is a temporary fence and Mr. Maura is willing to make it more permanent. He said Mr. Maura has done his best to comply with this situation. He said past violations are not a reason to deny this variance.
MOTION: To close the hearing on ZBA #2010-04. Paleski / Noble/ Unanimous
Discussion and Vote:
Mr. Paleski said they had a previous application on Scantic Road that was less than 100 feet that they denied. Mr. Giner said he has the acreage to allow the horse. He said he thinks there is a hardship with the property lines being what they are. The regulations allow him to have a horse. He said what we are really talking about is a 10’ x 10’lean-to. He felt that the hardship has been shown. He said he has worked in other towns and has always been told by the town attorney that they can’t deny an application because of a violation. They have to take each application as it stands. Mr. Strempfer said he would be looking at a piece of property and checking on whether zoning allows the shed before he bought the property. He said there is not a lot of
room for the horse to get exercise. He said if we don’t stand up for what the zoning laws read, what good is it. He asked whether that regulation was in effect when they bought the property. Ms. Newton noted that the zoning regulation was in effect at that time with the 100 feet from the property line. The R-3 requirements have not changed since that time. Mr. Strempfer said he didn’t see where the hardship was. Mr. Arcari said as far as the terrace escarpment is concerned, the drawings and pictures don’t show him. They would need an engineer for that. He said the applicant is trying to comply as best as he can and he would vote for the variance.
MOTION: To approve the application of David Maura for property located at 263 Rye Street for a variance of Section 402(4) Notes to Permitted Uses In Residential Districts to allow a lean-to for sheltering horses to be located 89 feet ± from the side property line where 100 feet is the minimum required, based on the representation shown on the plans submitted to the Board on the site plan and also the photos that show what the lean-to will look like. Motion by: Giner / Seconded by: Noble
In Favor: Giner; Noble; Arcari
Opposed: Paleski; Strempfer
The application was denied as 4 votes are required to approve a variance.
MOTION: To take a 5-minute recess. Paleski / Noble / Unanimous
The Board took a recess at 8:50 p.m. and reconvened at 8:55 p.m.
ZBA #2010-05 – Application of Bushnell Associates LLC for property located at 171 Main Street, East Windsor, owned by Chestnut Point Realty, for a variance of Section 401 Bulk & Area Requirements – Residential District (maximum lot coverage); Section 601.3 Parking Lot Design; (Off street parking dimensional and setback requirements) and Section 604 Refuse Storage (Setback requirements) to allow an additional parking area and refuse storage area. [R-1 zone]
Atty. Jonathan Starble of the law firm Starble & Harris, represented Chestnut Point. Also present was Andrew Bushnell of Busnnell Associates and Ted Corder of Chestnut Point.
Atty. Starble referred to plans of the property and explained that this is a nursing home with a 60-bed capacity. He said this building is residential in character. This application is to expand the parking area. The hardship is that there is insufficient parking on the property. Atty. Starble noted that this was originally a rest home as opposed to a skilled nursing facility. In 2003 the federal government said that they needed to accept patients that have a higher level of need. As a result of that, they began accepting patients that have that higher level of need. That created a need for significant additional staff. In order to have safe parking for for all their staff they need this additional parking. Atty. Starble said that is their hardship. This is
not anything they did.
Ted Corder stated that he is the head of Maintenance and Director of Environmental Services at Chestnut Point and he has been there for 8 ½ years. He explained that over the past several years they have had to multiply their work force staff by 50% because of the federal regulations and unfortunately they do not have the parking for that amount of staff. Right now they are parking on the street and in the yard, and particularly in the winter it is a hazard. He said they need to leave parking open in the front of the building for residents’ guests and family members. In the winter when there is snow on the ground, they can’t park in the yard and barely on the side of the road.
Andrew Bushnell of Bushhell Associates pointed out on the plans that there are 3 different areas where they propose additional parking. Along Spring Street they are proposing 7 additional parking spaces. He noted that spaces 1 through 6 are reserved for visitors. As part of the construction of these spaces they are proposing to remove an existing light pole and adding 2 new light poles. All of the lights will be designed within the town regulations. Mr. Bushnell said that presently the storm water is detained by a series of dry wells. They are proposing to remove the existing ones and replace them with one single drywell. There is a landscaped island between Spring Street and the proposed parking which will be preserved. As part of this project they are also proposing a
handicap ramp at the back of the building to allow more access. To accommodate this ramp they need to add 2 more handicap spaces. Presently there are 10 spaces in that area. By adding the proposed handicap spaces they are proposing to add about 3 feet of pavement along space 16. For screening for the 20 Spring Street address, they are proposing a 6-foot high vinyl stockade fence along the new spaces. They are proposing concrete wheel stops to stop any vehicle contact against the fence. In the turnout area they will install bollards along the existing 6-foot wood stockade fence. Along the town property they propose a 4-foot vinyl split rail fence.
They are also proposing to upgrade the area where the dumpsters are now. They propose to put them on a bituminous pad and surround them with a 6-foot vinyl stockade fence with gates to aestetically upgrade the area.
As far as variances, Mr. Bushnell indicated that they are looking for a variance of Section 40l for lot coverage. The site itself is 1.52 acres. The existing building coverage is 28.2%. There will be no increases to building coverage. On impervious surfaces there is currently 23.5% coverage. What they are proposing will increase it to 33.5%. The allowable coverage for buildings is 15% and for impervious surfaces is 25%. He noted that right now they have 26 regular parking spaces and one handicap space. This proposal would bring it up to 42 regular spaces, with 3 handicap, for a total of 45 spaces.
Also, pertaining to Section 601.3 section (d) it requires that driveways and traffic aisles be at least 24 feet wide unless modified by the Commission. At the narrowest point for the aisle it is 21.5 feet. That would prevent certain size vehicles from parking back there. Section (h) setback requirements for parking requires 25 feet from the front property line. Along Spring Street, it will be from 8.25 feet to 10.5 feet along the front property line. 10 feet is required from any side or rear property line. At one point they have 2 feet to the parking area and 1 ½ feet to the property line. Mr. Bushnell noted that as part of the project they looked at 2 different alternatives. One was to locate spaces in the front. They felt that would have an aesthetic impact on
the look of the building. That would probably result in the removal of the chestnut trees which are a key feature of the area. The second alternative was utilizing off-street parking that might be available. Mr. Bushnell said he sat down with Laurie Whitten using GIS data and in looking in the neighborhood area, they didn’t find anything that was feasible.
Mr. Giner asked about the height of the proposed light pole. Mr. Bushnell said they haven’t designed that yet. It will be part of the site plan review. Mr. Giner asked if they did an analysis of the required vs. proposed parking spaces. Ms. Newton noted that the regulations require one space per 3 beds, plus one per employee per shift. Mr. Giner asked how many employees are there per shift. Mr. Corder responded that they have between 90 and 95 total employees. He estimated that there were about 35 to 40 on the day shift and said there are 60 beds. Mr. Giner noted that they would still be under the requirement. Mr. Giner expressed concern that vinyl fences could reflect light. He asked if they would be willing to put in wooden fences rather than vinyl. He said he was particularly concerned about the area facing the back side of the property and the lights reflecting towards the houses. Mr. Bushnell felt that they would be willing to do that. Mr. Paleski suggested that
they could use non-reflective vinyl.
Mr. Arcari opened up the hearing to the public.
Larry Johnson, of 12 Spring Street, said that his property is deeded as 12 and 14 Spring Street. He said he has lived there for 12 years and lived at 39 Dean Avenue before that, since 1980. He said he was a police officer here for 27 years prior to his retirement 3 years ago. He said Chestnut Point has always been a good neighbor. As a resident he has an issue to bring up. He said before the hearing started, he notified the town planner that there was a deed from 1993 that granted him as the owner of 12 and 14 Spring Street an easement and placed a restriction on the part of the property at the nursing home. The restriction was that they could not develop the property further than what was developed in 1993. There is a similar deed filed for the owner of 20 Spring Street, Mr.
Daigle. He said he has spoken with Mr. Daigle who was not at this meeting tonight. Mr. Johnson said they have been parking in that area in the back adjacent to his property. It doesn’t bother him that they park there on the grass. He might have an issue with permanent pavement. He has seen over the years what happens with a permanent parking lot. He said people start parking things that don’t belong there. He believed that was part of the reason that caused those deeds to be written in 1993. He said the houses at 12 and 20 Spring Street were owned by the D’Amore family at that time. They purchased the area in the back in order to provide sufficient lot coverage. Mr. Johnson said he believed they should check with all the neighbors before they do anything.
Chris Shouldice, of 15 Spring Street said he agrees that Chestnut Point is a good neighbor. His issue is that they made a business decision to go from rest home care to skilled nursing level care. He said they got Medicare dollars. Before that Medicare didn’t pay. He was also concerned about additional lighting shining into their bedroom. He felt that the hardship is more of a business decision to get the Medicare dollars.
John Burnham explained that he is the Board of Selectmen liaison for ZBA. He asked if in their discussion with Laurie Whitten did they ask if the Town of East Windsor was willing to offer leasing the property to the north. Mr. Bushnell said they did not. Mr. Burnham said the town might like to see it paved.
Atty. Starble said he appreciated all the comments and would advise his client to think about the concerns expressed. He said a lot of these issues would be site plan review issues. One issue expressed was that it was a business decision by Chestnut Point. He said that is not accurate. Chestnut Point was already a Medicare approved facility. The Medicare program said they have to accept all levels of care. Also, the restriction that Mr. Johnson spoke about is not for the board to decide. That should be considered separately.
Mr. Giner asked about the light poles being full cut-off. Mr. Paleski suggested that if they were going to approve the variance, they could have the applicant provide cut-off lighting to appease the abutting neighbors for nuisance lighting. They also could propose no vehicle storage in the back area.
Mr. Johnson said he didn’t believe the board has the authority to grant a variance on a property that has a deed restriction. He said he would ask that they table this until something is resolved. Mr. Giner pointed out that they were here to look at zoning regulations. He said the town doesn’t enforce deed restrictions. We have to look at it strictly from a zoning perspective. He said it is for the property owners to work out. We are not qualified to make a judgment on it.
Ms. Newton said the ZBA is charged with granting variances for specific requirements of our zoning regulations. She said our office doesn’t look for deed restrictions. Ms. Newton read from a portion of the deed which stated “The Grantees shall have the right to enforce the restrictions set out in this easement in a court of appropriate jurisdiction....”. She said there is a process set out in the court system if the deed restrictions are not followed.
Mr. Johnson said he wants to see the good neighbor relationship followed, and he would request that they take another month to see what they can come up with to make him happy.
After some discussion the board members felt that it would be best to continue the hearing until the next meeting so that the applicant can come back to address the lighting issues and other issues that were raised.
MOTION: To continue ZBA #2010-05 until the next meeting, October 4, 2010 at 7:30 p.m. at the town hall. Giner / Paleski / Unanimous
ZBA #2010-06 – Application of Susan Hill for property located at 45 Old Ellington Road, for a variance of Section 400 Purpose – Residential Districts; and Section 407 Accessory Apartments, to allow temporary use of accessory structure as a residential use. [R-2 zone]
Susan Hill came forward to explain her application. She said they purchased the house in 1996. About 6 years ago they decided to build a recreation building, or club house, in the back that would have a pool table, wet bar and an area to play cards. On December 12, 2008, there was a fire at the main house that caused a lot of damage. She said she lost about 90% of everything she owned. The insurance company put them up in a motel for 2 months and then in a small rented house in Ellington for a year. Ms. Smith said they had problems with the previous contractors working on the house. They now have someone new to work on the house. She said she now has no place to stay. She has been staying in the club house. She said they don’t plan to have anyone live
there. She just wants to stay there while the house is being worked on. She said the work on the house should be done by Christmas. Mr. Giner asked if there are any kitchen facilities in the club house. She said there are no permanent cooking facilities. There is a bathroom with a toilet and sink and a temporary shower.
Ms. Newton said this was brought to Laurie Whitten’s attention and they met with Ms. Hill in February. She said Ms. Whitten indicated to her that she could not use the recreation building as a dwelling unit and told them that they would have to come in for a variance for a residential use. Ms. Newton indicated that on the zoning permit that was granted for the club house, it stated that it is not be used as a residential dwelling unit. She said they already had zoning compliance on the structure.
Mr. Giner said they now have only one dwelling unit on the property. He said there is no such thing as a temporary variance. It is a personal hardship, not a hardship that goes with the property. He said he wouldn’t like to see something on the land records that says there is a variance of the property for a personal hardship. He said if the house is built and there is evidence that there is a second residence, he didn’t think there is a necessity for a variance. Mr. Paleski asked if they could put a time line on the variance that upon completion of the main house, the shower would be removed. Mr. Giner said if this was an appeal of a cease and desist order he would uphold the appeal. Ms. Hill said she never intended for this to be more than a club house. She
never intended to live there.
Mr. Giner said he felt that she doesn’t need a variance. He said he didn’t think that temporary variances were legal and he would be reluctant to vote on a temporary variance. He felt it didn’t violate the town regulations to have that one dwelling unit until the house gets a CO.
Mr. Arcari opened up the hearing to the public.
Steven Moule, of 41 Old Ellington Road said Sue Hill is the only one staying there. It has been 2 years to get the house restored. She came before the board to try to do the right thing. He felt that she should be left alone until the house is completed.
John Burnhan said he agreed with Mr. Giner. He said they need to do nothing at this time.
Mr. Giner suggested that they could deny this application without prejudice and let her stay there. He said at the point of CO of the main house, we have staff here that knows the situation. Ms. Newton said if they deny without prejudice she will write to Mrs. Hill stating that at the time of the CO an interior inspection will be made and the temporary shower has to be removed before a CO is issued.
MOTION: To close the hearing on ZBA #2010-06. Paleski / Strempfer / Unanimous
MOTION: To deny without prejudice ZBA #2010-06 with a letter to be sent from the Zoning Enforcement Official to the applicant regarding the out building structure to be inspected at the time of CO of the main house, that it would not be continued as a residence.
Paleski / Strempfer / Unanimous
Mr. Giner reiterated that he didn’t think she needs this variance. She will only be living there until the main building is occupied. Mr. Paleski and Mr. Noble both said they agreed.
APPROVAL OF MINUTES:
MOTION: To approve the minutes of August 2, 2010.
Paleski / Strempfer / Unanimous
ADJOURNMENT:
MOTION: To adjourn. Strempfer / Paleski / Unanimous
The meeting was adjourned at 10:15 p.m.
Respectfully submitted,
Marlene Bauer
Recording Secretary
| 
