East Hampton Zoning Board of Appeals
Regular Meeting
November 3, 2008
Town Hall Meeting Room
7:00 P.M.
Unapproved Minutes
1. Call to Order: Chairman Nichols called the ZBA Meeting of October 20, 2008 to order at 7:15PM.
Members Present: Chairman Charles Nichols, Willie Fuqua, Vincent Jacobson, Brendan Flannery, Linda Dart.
Alternate Members Present: Kevin Reed.
Absent: Brian Spack.
Staff Present: James Carey, Planning, Zoning & Building, Administrator.
2. Seating of the Alternates:
3. Legal Notice: Mr. Carey read the legal notice.
4. Approval of Minutes
· October 20, 2008 Regular Meeting:
Mr. Flannery moved and Mr. Fuqua seconded, to approve the minutes of October 20, 2008 regular meeting. The motion carried unanimously.
5. Communications: Mr. Flannery reported to the members of the commission he was in town hall today and reviewed the files for application number 6 on the agenda.
6. Application of Thomas DiStefano, 1 West High Street, requesting a variance of the East Hampton Zoning Regulations, Section No. 6.1, Main Street front yard setback reduced to 4 ½ from 50’. Route 66 front yard setback reduced to 1’ from 50’. Route 66 side yard setback reduced to 7’ from 25’, maximum lot coverage increased to 75% from 60% to preserve the non conforming footprint – M~01A/B~47/L~10:
Mr. DiStefano was before the ZBA requesting to preserve the non-conforming footprint and allow for removal of existing deck and regarding the lot for aesthetic purposes. Mr. DiStefano would also like to remove the fence, place top soil on the site and plant grass until it is either sold or built upon. This application is to preserve the non-conformity so that it would exist in perpetuity. It could then be built or the Town of East Hampton could purchase for a memorial for Gov. William O’Neill.
Chair Nichols asked if there were any parties present to speak in favor or against the application before the board.
John Tuttle, 71 Viola Drive, also a member of the Town Council encouraged the commissioners to accept this offer. Mr. Tuttle feels many people in town are tired of seeing this property in its present state and in these economic times it seems unlikely anyone will be purchasing this property anytime soon. Mr. Tuttle concluded by stating if the board does not accept this offer we will continue to have this eyesore which potentially will be built upon regardless of this variance.
Kyle Dostaler, 56 William Drive, also spoke in favor of granting this variance as long as the town is able to have right of first refusal.
Mary Ann Dostaler, 56 William Drive, agrees this property should be cleaned up, however would like the ZBA to consider making sure the town’s best interest is protected. If in fact this variance is granted the question that needs to be asked is will the town be satisfied with a structure being built on the exact footprint that is being allowed under these variances.
John Tuttle, 71 Viola Drive, stated if this is granted a time line should be stipulated where this clean up will take place in a reasonable amount of time.
Myron Poliner, 3 Main Street, asked if the owner of the property is planning to grade that lot to be a park like setting. Setbacks are irrelevant to a park concept as the entire site would be grass. Mr. Poliner is questioning the hardship and therefore the ZBA should not be able to grant this variance at this time.
Town Manager, Jeff O’Keefe, asked for clarification on the reason this has not been cleaned up to date. Legally, as long as that footprint is intact, can be built to the same standard. If the ZBA does not afford this variance tonight, the property will remain in the current state. Chairman Nichols confirmed this to be correct. Mr. O’Keefe thanked the board for their clarification.
Mr. Flannery made a motion to close the public portion of this application. Motion was seconded by Mr. Fuqua. The motion passed unanimously.
Mr. Flannery stated there have been many good points made this evening. There is an eyesore that needs to be addressed and there is going to be a footprint there whether a variances is granted or not. Granting a variance validates the non-conformity of the lot. The hardship that is presented on the application however is not valid for granting this variance. Mr. Flannery also stated that if this variance is granted there needs to be a timeline connected to it as to how much time he will have to complete the work. Mr. Carey clarified regardless of the non conforming status a site plan approval would be necessary. It would need to go before the Planning & Zoning Commission and at such time issues of concern would be addressed. This is an effort
between the town and the applicant to try to find a solution to a problem that has been perceived by the town for awhile. Mr. Carey also advised the board of their rights to take the testimony that was given by the applicant during the public hearing to formulate its opinion and to state the hardship of that as stated.
Mr. Flannery made a motion to approve the application of Thomas DiStefano, 1 West High Street, requesting a variance of the East Hampton Zoning Regulations, Section No. 6.1, Main Street front yard setback reduced to 4 ½ from 50’. Route 66 front yard setback reduced to 1’ from 50’. Route 66 side yard setbacks reduced to 7’ from 25’, maximum lot coverage increased to 75% from 60% to preserve the non conforming footprint, M 01A/B 47/L 10, as the hardship stated by the applicant that the property has evolved from a conforming lot in the 1800’s to a non conforming lot by no cause of the applicant. In addition the approval is conditioned that the project being completed by Spring 2009 and the town staff supervise what is done to the site in the clean up phase. The motion was seconded by Mr. Jacobson. The motion passed 5-0-1, with Linda Dart abstaining.
7. Application of Paul J. Angelico, PJA Associates, LLC, and Angelico Family, LLC, 77 North Main Street, requesting an appeal of a cease and desist order dated August 12, 2008 – M4A/ B45/ L24-3:
Mike Dowley, attorney for the applicant was before the ZBA to discuss the application before the commission. Attorney Dowley stated there is no appeal from the Planning & Zoning commission. There was discussion on various cases that have similar arguments. Attorney Dowley provided 3 handouts (see attached). Mr. Dowley stated for the record the zoning permit has been obtained that was granted. When an appeal is going to be taken, there is 15 days that are needed for notification. In this case, 15 days did go by without making the applicant a party to this action. They then went before the judge requesting the opportunity to make Mr. Angelico a party to the action. Mr. Dowley recited 8.8 town of East Hampton’s petition, which stated in order to take
the appeal and make it binding you need to make service of process on each person who petitioned the board in the proceeding. In this case the judge gave until November 9, 2006 to make Angelico’s part of this case. They did not. At that point a motion to dismiss the case is filed. Mr. Dowley stated they still have a zoning permit that was never appealed. You can not just take peoples property from them without allowing them to be before the courts.
Chair Nichols asked if there were any parties present to speak in favor or against the application before the board.
Attorney Daniel Lynch, representing Michele and Randal Kronick who reside at 3 Lake Blvd, was before the ZBA for discussion of residential verses commercial use. The decision of the Judge dated July 17, 2008, found that a parking lot for 22 cars is a commercial use, which is not allowed in a residential area. The appeal was sustained and the interpretation made by James P. Carey, Zoning Enforcement Officer was reinstated.
Attorney Downy stated nothing that was said by Attorney Lynch rebuts anything that was said previously in terms of their failure to make Angelico’s a party in the action and an indispensible party as statues properly require.
Angelio Tamaro, 27 Lake Blvd, Mr. Tamaro’s falls in the 600 radius of where Mr. Angelico received the permit to place this parking lot. Where is the line drawn? The property is residential and it should stay residential unless the zone is change.
Attorney D’Aquila stated the cases that Attorney Downy sites in his discussion are both important and similar facts but dissimilar circumstances. The interpretation that was made by the Zoning Board of Appeals was then sent to the Supreme Courts for clarification, and at that point the courts made their final decision.
Mr. Flannery asked for clarification on the difference between an interpretation of what there zoning regulations state and what is heard before the commission and a variance grant which received a piece of paper. Attorney DiQuilla stated when you issue a variance you are legitimizing the use that is being applied for, when you determine or act on an interpretation made by the Zoning Enforcement Officer, your looking over his shoulder to determine whether you believe his interpretation of the zoning regulations is correct.
Susan Wilgosh, 79 North Main Street, is concerned for the town and the entire situation is about the quality of life and whether the lot is residential or commercial the parking lot is there and it remains a quality of life issue. There are safety issues that are also a concern.
Francis Kline, 18 Belevue Street, asked the ZBA to consider the people that petitioned. You voted against Mr. Carey’s recommendations. There is a historical background that has not been addressed.
Mary Ann Dostaler, 56 William Drive, the matter that is before this board tonight is whether or not the cease and desist order that Mr. Carey put into place was correct. The fact that the cease and desist order was based on the fact of not only the Superior Court, but also on the existing town regulation seems there would be basis to be able to uphold the decision that needs to be enforced.
Angelus Tamaro, 27 Lake Blvd, stated there is a conflict that was appealed and went to Superior Court and the Town should not have allowed the parking lot to be in on a residential location.
Nancy Siminow, 75 North Main Street, provided the Zoning Board of Appeals with photographs for the record that show vehicles that are parked on her property.
Mr. Flannery made a motion to close the public portion of this application. Motion was seconded by Mr. Fuqua. The motion passed unanimously.
Mr. Flannery stated the original request for the use of the residential property, was based on the interpretation of an ordinance. Mr. Flannery in one way defended the decision the ZBA made; however the court also made a decision that could be questioned. Based on the decision of the court we are not able to grant the appeal to over ride Mr. Carey’s cease and desist.
Mr. Fuqua stated that based on the testimony heard at this meeting, in addition to the decision from the Superior Court, and Mr. Carey’s cease and desist order, he cannot in good faith overturn the cease and desist order.
Mr. Flannery moved the Zoning Board of Appeals uphold the cease and desist order issued by Jim Carey, Zoning Enforcement Officer. The motion was seconded by Mr. Fuqua. The motion passed unanimously.
8. New Business:
· Lake Pocotopaug Commission, Chairman Ciriello discussion:
Mr. Carey let the Zoning Board of Appeals know that Mr. Ciriello, Chairman of the Lake Pocotopaug Commission would like to give a brief presentation as to what the Lake Commission is doing. Mr. Carey will schedule this for the regular meeting on December 8, 2008.
9. Old Business: None.
10. Adjournment:
Mr. Fuqua moved to adjourn the Zoning Board of Appeals. The motion was seconded by Mr. Jacobson. The meeting was adjourned at 9:15 P.M.
Respectfully Submitted
Kamey Peterson
Recording Secretary
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