Town of Old Saybrook, CT - ZBA 091306.Mintues

ZBA 091306.Mintues

MINUTES OF THE ZONING BOARD OF APPEALS

SEPTEMBER 13, 2006

A Meeting of the Zoning Board of Appeals of the Town of Old Saybrook was held on Wednesday, September 13, 2006 at the Pasbeshauke Pavilion located at Saybrook Point Park, 155 College Street Extension and heard the following appeals and made the following decisions:

Seated for this evenings meeting were the following members: Dorothy Alexander, Jan Fenger, Vice Chairman, Rex McCall, Chairman, Adam Stillman, Carl Garbe, alternate

Present: Christina M. Costa, ZEO, Kim Barrows, Clerk

Absent: Chris Gosselin, Alan Fogg, alternate, Herb Weiland, alternate

The meeting was then called to order at 7:45 p.m. The Chairman introduced the Board members who were seated for this evenings meeting. He then proceeded to read the Legal Notice into the record and outlined the order of the public hearing and the regular meeting. The following public hearings were conducted, as well as the decision session. The meeting has been recorded on tape and the following actions were taken:

CONTINUED PUBLIC HEARINGS:

06/07-06 – Alfred Chiulli seeks a variance of Par. 10.7.1 (nonconformity/enlargements), Par.10.8.2 (nonconformity/lots), Par. 24.5.3 (setback/other property line) and Par. 24.6.2 ( max bldg./structure coverage) of the Zoning Regulations to permit raising of structure, rebuilding of two floors and removal of decks on property located at 27 Beach Road West (Chalker Beach), Map No. 12, Lot No. 154.

At last months meeting the Applicant agreed to continuing the public hearing to the next meeting so that his architect could be present. The architect was to answer the questions the Board had with respect to the differences in the square footage figures and coverage percentages. He was also to answer the question that if the only change from the previous application was the height of the structure and the footprint was to remain the same, why didn’t the numbers on the application remain the same. After the Board waited for the applicant and/or his representative to arrive and after some discussion when no one appeared by 9:08 p.m., the Board closed the public hearing at 9:10 p.m.

PUBLIC HEARINGS:

06/07-09 (a) – Appeal by Corey Fox of the Zoning Enforcement Officers decision to deny a Certificate of Zoning Compliance on August 14, 2006 for the sole purpose of reconstructing a pre-existing, nonconforming barn located on property located at 75 Middletown Avenue (Saybrook Manor), Map No. 19, Lot No. 187.

Present: Attorney John Bennet, agent for the applicant; Mr. Corey Fox, applicant

Attorney Bennet gave the reasons why his client was appealing the decision of the Zoning Enforcement Officer. The applicant wants to rebuild the structure on the same footprint with the same foundation, the same “envelope” but with all new materials. According to Attorney Bennet it will still be the same structure not what the ZEO outlined in her letter of August 21, 2006 (copy in file). Further discussion re Connecticut General Statute 8-13a “if a structure has been there for more than three (3) years” it becomes a legal nonconforming structure. Discussion as to length of time the structure has been on the property. Further discussion regarding CGS 8-2a re regulations cannot divest someone of nonconforming pre-existing use, building or structure and discussion regarding definition of causality and repair. The Regulations allow for restoration due to a casualty. Attorney Bennet described casualty as wind, rain, hurricanes. Can it also be over time the deterioration of the structure. Interpretation of repair as stated in the regulations in section 10.10 . . . does not increase nonconformity to replace with similar materials (all of them?). Attorney Bennet also discussed certain court cases to strengthen his applicant’s position. He states the regulations “embrace” rebuilding in two separate sections. The question is taking down a structure and rebuilding it in its entirety or rebuilding it in sections. Can slow decline be considered a casualty?

At this time Christina Costa the Zoning Enforcement Officer and her attorney Eric Knapp had the floor to explain Ms. Costa’s position. Ms. Costa went over the history of the property. Last month variances were granted for the additions to the house. The variances for the shed were denied. The shed could be repaired. It was stated repair and the ZEO felt Mr. Fox was demolishing the existing structure and putting up a new one. It would appear to be that way since a permit for footings and foundation was taken out. Attorney Knapp stated that all of the court cases Attorney Bennet cited to uphold his argument pertained to “use”variances. Once you start building from scratch, a person has to conform to the regulations. With respect to casualty, the rebuilding has to take place one year from that event. There is nothing in the regulations to define “repair”. Attorney Bennet made a rebuttal that the last application that was denied was for a smaller structure in a different location. Discussion of rebuilding in a different location and eliminating the side setback. The Chairman then opened the floor for comments from the audience either in favor or opposition. There was no audience participation. There were no Board comments and the hearing on the appeal closed at 8:30 p.m.

06/07-09 (b) – Corey Fox seeks a variance of Par. 24.5.3 (setback/other property line), Par. 24.5.5b (setback/accessory bldg/rear property line), Par. 24.5.5c (setback/accessory bldg/other property line) and Par. 24.6.1 ( max gross floor area) of the Zoning Regulations to permit stick by stick repair of an existing accessory building on property located at 75 Middletown Avenue (Saybrook Manor), Map No. 19, Lot No. 187.

Present: Attorney John Bennet, agent for the applicant; Mr. Corey Fox, applicant

Attorney Bennet gave a brief presentation on what was proposed with this application. The variances requested are for the change in location of the shed. The existing shed/barn would be demolished and a newer, smaller one placed at the rear of the property. Suggested size was a 12'x10' shed running along the rear. Its location in the rear would be no closer than the other outbuildings in the neighborhood and would widen the setbacks. If these variances are granted, a final plan would be submitted to the ZEO. The floor area would increase to 40.6%, but if the size were reduced it would eliminate the need for a floor area variance. The hardship is the nature of the property and a pre-existing condition that predated zoning. The Chairman then opened the floor for comments from the audience either in favor or opposition. Mr. Don Santoro of 42 Hartford Avenue spoke in favor. He asked if shed would be closer than the 4' and no it will not be. There was no further audience participation. There was no further Board comments and the public hearing closed at 8:40 p.m.

06/07-10 – Patrick M. Glynn, Jr. seeks a variance of Par. 10.7.1 (nonconformity/ enlargements), Par. 10.7.2 (nonconformity/ change) and Par. 24.5.3 (setback/other property line) of the Zoning Regulations to permit enclosure of existing rear outside deck on property located at 4 Tucker Road, Map No. 18, Lot No. 81.

Present: Mr. Patrick Glynn, applicant.

Mr. Glynn gave a brief presentation. The proposal is to build a structure over the existing deck in order to enclose it. The hardship is the nonconforming lot size. This property is located adjacent to a marsh and enjoyment of the property is reduced by the amount of backyard bugs. The cottage is used only in the summer and fall. The porch will not be increasing in size and will not obstruct views. It is also in harmony with the other cottages in the area. J. Fenger questioned the size and A. Stillman asked about heating the porch. The applicant stated that the porch will not be heated. There was a letter from Anne Williams of 90 Chalker Beach Road dated September 5, 2006 stating she was in favor. The Chairman then opened the floor for comments from the audience either in favor or opposition. There was no audience participation. There were no Board comments and the public hearing closed at 8:50 p.m.

06/07-11 – Rob Gagne seeks a variance of Par. 7.4.10 (special setbacks from wetlands) and Par. 24.4.2 (height/maximum 35 feet) of the Zoning Regulations to permit an additional 16" of height to the existing framing of the structure on property located at 11 Beachview (Chalker Beach), Map No. 18, Lot No. 109.

Present: Mr. Rob Gagne, applicant

Mr. Gagne gave a brief presentation. The house has been built and when the final inspection took place it was discovered that the height exceeded the permitted 35' by 16 inches. Due to the framing of the structure the ceiling height became 8' not the 7'8" specified on the plans. The rough framing had been inspected but the mistake was not noted at that time. The applicant had assumed that the house was built to spec. In addition to the mistake in the ceiling height, the dwelling had to be raised to meet the flood plain elevation. The Chairman then opened the floor for comments from the audience either in favor or opposition. There was no audience participation. There were no further Board comments and the public hearing closed at 8:55 p.m.

06/07-12 C – Anthony & Joan Bowser seeks a variance of Par. 10.7.1 (nonconformity/ enlargements), Par. 10.7.2 (nonconformity/ change) and Par. 7.4.10 (special setbacks from wetlands) of the Zoning Regulations to permit a three (3) season room to be built on a portion of existing deck on property located at 476 Main Street, Map No. 22, Lot No. 26-1.

Present: Mr. Clem Bifulco of Plainfield represented the applicants.

Mr. Bifulco gave a brief presentation. The proposal is to add a three season porch on top of the existing deck. Mr. Bifulco showed the Board a picture of what the porch would look like. There would be a gable roof mirroring the exiting house and the porch would be made of aluminum to code. Only change to the actual decking would be the removal of a portion of the rail. The existing footings are to remain and there will be no expansion of the ground coverage. The reason for the porch is so that the applicants can enjoy the outside. There is a large tree adjacent to the existing deck that leaves droppings on the deck and furniture. Applicants would like to be able to enjoy the outdoors minus the bugs and droppings. J. Fenger wondered if she should recuse herself since she can see this house from hers. She did not feel that living close to the property would interfere with her decision. There would be no conflict of interest. R. McCall stated that there would not be any additional impact on the wetlands since nothing on the ground level will change. C. Garbe felt using the excuse of a “tree” for the hardship was strange. J. Fenger stated that they eat out on their deck and bugs do not seem to be in issue for them. A. Stillman asked about heating the porch and no the porch will not be heated. The Chairman then opened the floor for comments from the audience either in favor or opposition. There was no audience participation. There were no further Board comments and the public hearing closed at 9:05 p.m.

REGULAR MEETING (DECISION MAKING PORTION ):

The Board closed the public hearing this evening since the applicant was not present and did not give permission for an additional 35 days to hold the public hearing open. Last month the applicant gave a partial presentation and the Board questioned the square footage figures and coverage percentages. The Board questioned the percentages on the previous application versus the new application and if the only change, as per the applicant was the height of the structure, the numbers should have remained the same. After waiting to see if the applicant would arrive with his architect as promised, the Board decided to act on the application as submitted.

A Motion was made by R. McCall, seconded by D. Alexander to DENY Application 06/07-06 - Chiulli for lack of sufficient and accurate information from what has been requested. No discussion and a vote was taken: In favor: D. Alexander, R. McCall, J. Fenger, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Discussion with respect to the hearing that was closed this evening. The Chair asked for the Board’s opinion. J. Fenger supports the Zoning Enforcement Officer, this issue has come before us before as to whether or not to tear down or repair. R. McCall stated that in the past the Board has been consistent as to if you tear down completely, the applicant needs to conform to the regulations. Discussion as to “casualty”, if that is the case the applicant must rebuild one year from the “casualty”. This building has been deteriorating over the years. There was discussion as to taking down stick by stick vs. tearing down completely.

A Motion was made by J. Fenger, seconded by R. McCall to UPHOLD the decision of the Zoning Enforcement Officer. No discussion and a vote was taken: In favor: D. Alexander, R. McCall, J. Fenger, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Discussion with respect to the public hearing that closed this evening. The existing structure (barn) would be demolished and the size of the “shed” proposed on the plan submitted with the September application would be reduced in size. Applicant’s attorney to provide a revised plan. This new proposal will reduce the size of the shed so that it will conform to the two sideyard setbacks and will be under the floor area percentage. The only variance required would be for the rear property line so that the shed could be built 4' from the property line. In this neighborhood most of the sheds/garages are close to the rear property lines. It would be in harmony with the neighborhood.

A Motion was made by A. Stillman, seconded by J. Fenger to GRANT/with condition Application 06/07-09 (b) - Fox. As proposed by applicants counsel that the floor area will be reduced to 40%, that the building will be approximately 12' x 20' and will comply with the 10' sideline setbacks on both sides, that it is no closer than 4' to the rear property line and that the overall ground coverage will be reduced. No discussion and a vote was taken: In favor: D. Alexander, R. McCall, J. Fenger, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Discussion with respect to the public hearing that closed this evening. The applicant would like to enclose the deck. It does encroach slightly on the setback and is a change in the nonconformity. The consensus was that it was not a problem but A. Stillman would like a condition that the porch not be heated. Discussion as to enjoyment of the deck and the pros and cons to requiring a condition not to heat the porch.

A Motion was made by A. Stillman, seconded by R. McCall to GRANT/with condition Application 06/07-10 - Glynn. To enclose the porch, however, proscribing the condition that the porch can never be heated and will always be maintained as a screened porch. The proposal is in harmony with the neighborhood and the existing setbacks would otherwise prohibit such construction. No discussion and a vote was taken: In favor: D. Alexander, R. McCall, J. Fenger, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Discussion with respect to the public hearing that closed this evening. The structure was built 16" above the required 35' height limitation. The wetland setback needs to be addressed as well since there is more volume within that 50' setback. D. Alexander has a very strong opinion, the Board can’t grant these variance for structures that are carelessly built without someone checking it. Every time we grant one, we tell the building community to just ignore the regulations and just build what they want to build. J. Fenger agrees with D. Alexander. A. Stillman agrees as well. It is not against the applicant but the builders who are hired should be held accountable. C. Garbe agrees as well. The Board feels for Mr. Gagne who has been put in this position by his builder.

A Motion was made by D. Alexander, seconded by A. Stillman to DENY Application 06/07-11 - Gagne. For the reasons set forth above and shows the town that the building community does not care about the rules. No discussion and a vote was taken: In favor: D. Alexander, R. McCall, J. Fenger, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Discussion with respect to the public hearing that closed this evening. The Board did not have a problem with this. A. Stillman has a condition that this not be heated. R. McCall stated that there would be no further encroachment on the wetlands, other than the volume.

A Motion was made by C. Garbe, seconded by J. Fenger to GRANT/with condition Application 06/07-12C - Bowser. To add on the three season porch with the condition that no heat to be installed. The sufficient hardship due to the nature of the property and the trees and the animals has been shown. The CAM applicant has been approved. No discussion and a vote was taken: In favor: D. Alexander, R. McCall, J. Fenger, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

New Business: A letter dated September 5, 2006 from Beverly F. Stoughton requesting an extension of time in order to obtain a building permit on property located at 417 Main Street, Map 22, Lot No. 34.

A Motion was made by R. McCall, seconded by J. Fenger to GRANT an extension to September 15, 2007 to obtain a building permit on property located at 417 Main Street. No discussion and a vote was taken: In favor: R. McCall, J. Fenger, D. Alexander, C. Garbe , A. Stillman Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Minutes: Discussion with respect to the minutes of last months meeting. J. Fenger had one correction and that was the spelling of “phragmities”. The minutes spelled them with an “f”. A Motion was made by R. McCall, seconded by C. Garbe to approve the Minutes of the August 9, 2006 Regular Meeting of the Zoning Board of Appeals as corrected. No discussion and a vote was taken: In favor: D. Alexander, R. McCall, J. Fenger, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Adjournment: A Motion was made by R. McCall, seconded by D. Alexander to adjourn the September 13, 2006 Regular Meeting of the Zoning Board of Appeals. No discussion and a vote was taken: In favor: D. Alexander, R. McCall, J. Fenger, A. Stillman. C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0 The meeting was adjourned at 9:40 p.m.

The next Regular Meeting of the ZBA will be on Wednesday, October 11, 2006 at 7:30 p.m. at the Pavilion.

Respectfully submitted,

Kim N. Barrows, Clerk

Old Saybrook Zoning Board of Appeals

Old Saybrook, Connecticut 06475