Town of Old Saybrook, CT - Zoning Board of Appeals Minutes 03/14/2007

Zoning Board of Appeals Minutes 03/14/2007

MINUTES OF THE ZONING BOARD OF APPEALS

MARCH 14, 2007

Zoning Board of Appeals

Town of Old Saybrook

NOTICE IS HEREBY GIVEN that the Zoning Board of Appeals of the Town of Old Saybrook at its Regular Meeting that was held on Wednesday, March 14, 2007 at 7:30 p.m. at the Pashbeshauke Pavilion, 155 College Street Extension, heard and decided the following appeals:

Seated for this evenings meeting were the following members: Dorothy Alexander, Adam Stillman, Chris Gosselin, Julius Castagno, Carl Garbe, alternate

Present: Michael O’Herlihy, alternate, Christina Costa, ZEO, Kim Barrows, Clerk

Absent: Rex McCall, Chairman, Allan Fogg, alternate

The meeting was then called to order at 7:30 p.m.

The Vice Chairman introduced the Board members who were seated for this evenings meeting. The Vice Chairman 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:

06/07-30 – Oceanside Auto (Lessee) seeks a variance of Par. 33.3.1 (Prohibited Uses-motor vehicle uses) of the Zoning Regulations to permit used car sales, automotive repair including emissions testing and truck rental on property located at 810 Middlesex Turnpike, Map No. 63, Lot No. 8.

Present: Attorney Christina Burnham, agent for the applicant; Mr. David Stewart, the Lessee.

Attorney Burnham gave a presentation. The application is to continue the nonconforming use existing on the property in accordance with Section 33.3.1 of the zoning regulations. A variance was granted in 1968 to allow the nonconforming use. Attorney Burnham read into the record Section 33.3.1. The rental of trucks is a small exchange for a portion of the repair business. There will be no impact with respect to the safety and welfare of the neighbors. The use has existed on this property since 1955. Discussion of the 100' review zone with respect to the wetlands, almost 100% of the property is in the review zone. An application went to Inland Wetlands for parking in the rear of the property. It was stated that IWWC granted the parking, but Attorney John Bennet who represented the Tooker’s has disputed that. The rear portion is the portion that will have the rental trucks. If the ZBA grants the variance, the applicant will still have to go before the IWWC and the Zoning Commission. Discussion of the expansion of a nonconforming use ensued. The use is in keeping with the character of the property now and applicant would have to substantially intensify the use, which he is not. He is merely using the allowed rear parking spaces for parking the three U-Haul trucks. Mr. Stewart stated that he is advancing his business a little bit. The property looks better and the hours of operation would be from 8 a.m. -5 p.m. Monday through Friday and 8 a.m.-1 p.m. on Saturday. He stated he does not want to open a 24 hours towing service (that would be worse for the neighborhood). Mr. John McDonald, area field manager and a representative from U-Haul, stated that the intent is not to have 15 trucks on the property. Mr. Stewart is looking for 3. Mr. McDonald would have to approve all changes in the number of trucks and stated that the largest U-Haul rental site is in Westbrook. J. Castagno asked about drop offs for one way rentals. Mr. McDonald stated there would not be drop offs. Although it could happen in the future taking into consideration the needs of the public. Attorney Burnham stated that the property was in two different zones. The rear of the property is not visual from the CT River. The area is a mixture of commercial and residential properties and it was stated that the zoning regulations themselves are a hardship. A. Stillman asked if the number of trucks could be limited, Mr. McDonald stated “absolutely”. The Vice Chairman then opened the floor for comments from the audience either in favor or opposition. No one spoke in favor. In opposition, Attorney John Bennet of Essex who is presenting Mr. & Mrs. Tooker took the floor. Attorney Bennet wanted to clear up the parking spaces in the rear and he stated that they were never approved by anyone else. Attorney Bennet outlined to the Board how and when the property was acquired and when the variances were granted. The first variance was denied, but the second was granted back in 1968. Further discussion as to how the property was acquired in pieces and the back 133 feet of the property was not included in the original granting of the variance. Discussion of buying land to expand the property. (Attorney Bennet submitted for the record a Statement in opposition, the original variance, copies of the deeds for the subject property, etc. All of which are in the file). Attorney Bennet cited several cases. Attorney Bennet stated that a Special Permit would be required and that in 5-10 years the business grow. This is a significant matter to the neighbors. Discussion about a parking plan. Attorney Bennet stated that applicant wants to enhance the business and financial considerations are not appropriate “fodder” for granting a variance. Ms. Andrea Harner of Monk Road spoke in opposition. The bus stop is 50' from subject property, there will be an increase in traffic and feels this is a safety hazard. She also questioned lighting. Mr. David Spada of 816 Middlesex Turnpike discussed how at one time buses were in the rear and kept encroaching further and further into the setbacks. Ms. Dorothy Spada of 816 Middlesex Turnpike was concerned about well water and with vehicles running all the time what would leach into the ground. J. Castagno questioned where the property line was, Attorney Burnham answered and Attorney Bennet had pictures to show the line. After rebuttal Ms. Francine Woll of Middlesex Turnpike, who was in favor, discussed the property values and the fact that people moved into the area knowing the business was there and what the neighborhood was like. She is in favor of enhancing the business. Attorney Burnham stated that the property is already being used for the sale of cars and the applicant is not looking to be a major U-Haul distributor. The hardship is the fact that the property has a large area in the 100' wetland review zone, sits on two different zones and previously a nonconforming use. Ms. Harner asked about the length of the current lease on the property and how the variance runs. It runs with the land, not with the owner. There were two letters not read into the record but are on file. There was no further audience participation and no further Board participation and the public hearing was closed at 8:35 p.m.

06/07-31(a) – Appeal by Dona L. Zagryn of the Acting Zoning Enforcement Officers denial of the Certificate of Zoning Compliance dated September 27, 2005, citing inconsistences of Sections 24.6.1, 24.5.2, 24.5.3 and 10.7.1 of the Zoning Regulations on property located at 14 Mohican Trail (Indiantown), Map No. 13, Lot No. 36.

Attorney Burnham presented an argument with respect to the acting ZEO’s (J. H. Torrance Downes) denial of the Certificate of Zoning Compliance. The Zagryns have owned the property since 1978 and came before the ZBA in 2005 to build a new structure on almost the same footprint. Attorney Burnham submitted a Memorandum dated March 7, 2007 which outlines the process (copy in file). The owners did everything they told the ZBA that the would do, including bringing the septic system up to code. The septic system was designed for two bedrooms and there would be a partial second floor over the garage. Mr. Downes has stated that the structure does not comply for a number of reasons. The first is a “definitional” issue over what is floor space. Discussion re floor space ensued. Mr. Downes has stated that the area over the garage is “floor space”. The zoning regulations do not define what habitable space is, but the building code has a formula that defines habitable space and according to Attorney Burnham, the space over the garage is not habitable space. Discussion re the change in the drawings to raise the walls 30 inches was not granted by the ZBA. It was done by the architect who modified the plans to put in the heating system. Attorney Burnham cited the Doyen case and that the slight modification did not have to go before the ZBA. Robert Gianotti, the Builder and Ms. Denise VonDossell, the architect explained why the change was made, i.e. not enough room for the heating system and the 30" gave them just enough room. The space will always be for storage. Attorney Burnham mentioned the condition on the original variance regarding the water runoff and grading. Gary Sharpe, engineer has submitted a letter dated March 14, 2007 that the grading is complete and will not create a problem.

At this time Attorney Mark Branse and J. H. Torrance Downes, the acting ZEO gave the reasons for the denial of the Certificate of Zoning Compliance. Mr. Downes became the acting ZEO on this file since Ms. Christina Costa, the Zoning Enforcement Officer declared a conflict of interest. A Memorandum dated March 14, 2007 was submitted to the ZBA at the meeting and is on file which outlines the matter. Mr. Downes presented his calculations with respect to the floor area and the reasoning for whether or not to include the “ell” and/or the garage in the calculations. Not including them, applicant is at 40%. Since there is a washer/dryer at the “ell”, the “ell”/connector, should be counted since it is heated. Discussion re the septic statement. According to the Health District, the septic system is sized for 3 bedrooms. Also discussed was the Tolchinsky v. Old Lyme ZBA case where an applicant changed the roof design and the ZEO was upheld in court case. With the Zagryn application, several variances were required and indeed the 30 inches would be a minor change in the plans but no one asked if this change was in compliance with the variances granted. Mr. Downes went over all of the plans submitted for the original variance request. Mr. Downes discussed the half story issue. There is no lateral expansion of the structure but zoning is three dimensional, raising the roof without authorization is expanding a nonconformity. Attorney Branse then discussed attic versus half story. Section 72.7.2 of the zoning regulations was discussed, any map submitted is part of the approval. Attorney Burnham responded to the square footage, both sides went over calculations and discussions ensued as to what is calculated and what is not. Attorney Branse still says over allowed coverage. Attorney Burnham states they do not exceed the floor area.

The following letters were submitted: Marsha Cody of 43 Owaneco Trail dated March 13, 2007 gave approval originally but has changed her mind; Brian E. and Teresa R. Curry of 35 Owaneco Trail dated March 12, 2007 express concerns and feel what was built is not what was presented. In favor letters: Betsy Astarita of 25 Mohican Trail; Pauline and Ken Kezer of 47 Owaneco Trail dated February 17, 2007; Brian and Sandra Kilburn of 42 Owaneco Trail dated February 25, 2007; Bernard Blumenthal of 10 Obed Trail dated March 5, 2007; Betty Kroher of 3 Mohican Trail dated March 1, 2007; Walter Macher of 21 Mohican Trail dated March 1, 2007; Christine M. Shaw of 3 Shetucket Trail dated February 25, 2007 (all of which are on file).

The Vice Chairman then opened the floor for comments from the audience either in favor or opposition. Those in opposition: Mr. Anthony Ouelette of 39 Owneco Trail stated the house is too high, the lot over built and greatly exaggerated. Mr. Brian Curry of 35 Owaneco Trail, much larger and taller than expected, it does not fit the character of the neighborhood. Discussion of height issue and privacy, feels should lower garage; Mr. Bernie Blumenthal of 10 Obed Trail who is an appraiser, stated it will be assessed as living area. Mr. Ed Flynn, next door neighbor stated that based on what he was told, the building is a “monster”. In favor: Mr. Zagryn wanted to address the privacy issue, the tree issue and the sun issue.

There was no further audience participation and no further Board participation but since Attorney Branse cited several different cases that would uphold the ZEO’s decision and there was a lot of information to absorb, the Board decided to continue the public hearing to review the material.

A Motion was made by A. Stillman, seconded by J. Castagno to CONTINUE the PUBLIC HEARING on Application 06/07-31(a) – Appeal by Zagryn to the APRIL 11, 2007 REGULAR MEETING in order to review the information received at the meeting and have a chance to ask additional questions. No further discussion and a vote was taken: In favor: D. Alexander, C. Gosselin, J. Castagno, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

06/07-31(b) – Dona L. Zagryn seeks a variance of Par. 10.7.1 (nonconformity/ improvements/ enlargement), Par. 24.5.2 (setback/rear property line), Par. 24.5.3 (setback/other property line) and Par. 24.6.1 (gross floor area/40% allowed) of the Zoning Regulations to permit the portion of the raised roof line at the “ell” of the existing dwelling to remain in order to house the mechanicals on property located at 14 Mohican Trail (Indiantown), Map No. 13, Lot No. 36.

Attorney Burnham gave the presentation for the variances requested. The applicants came before the Board in 2005 and were granted variances. The applicant built what he told the Board would be built. No living space above garage, only storage. The Board granted the variance for the following reason: since this variance does not substantially affect the comprehensive zoning plan of Old Saybrook and strict adherence with the zoning ordinance would cause unusual hardship unnecessary for carrying out the general purpose of the zoning plan and this appeal is not in conflict with the purposes set forth in the zoning regulations. The house was a year-round house and has remained the same. The footprint is smaller, not larger than what had existed. It would be an unusual hardship to have the interior walls cut down and a new heating system installed. The changes would not benefit anyone. The Vice Chairman then opened the floor for comments from the audience either in favor or opposition. In favor was Kevin Hecht of 19 Mohican Trail, it would be an economic waste to have applicant reduce the structure by 30 inches. The property had to be raised to conform to the flood plain ordinance. Mr. Edward Flynn stated it is what it is, but it didn’t have to be. Beth Zagryn, the daughter-in-law discussed how the property was raised for the flood plain. Mr. Zagryn stated that they are way beyond their budget. There was no further audience participation and no further Board participation at this time. The Board, since a determination was not made with respect to the appeal, decided to continue the public hearing.

A Motion was made by A. Stillman, seconded by C. Gosselin to CONTINUE the PUBLIC HEARING on Application 06/07-31(b) – Zagryn to the APRIL 11, 2007 REGULAR MEETING in order to review the information received at the meeting and have a chance to ask additional questions. No further discussion and a vote was taken: In favor: D. Alexander, C. Gosselin, J. Castagno, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

REGULAR MEETING (DECISION MAKING PORTION ):

Discussion with respect to the public hearing that closed this evening. C. Garbe didn’t know if this proposal would benefit the neighborhood, it will only benefit one person. A. Stillman did not have a problem with a few trucks being parked on the lot. A discussion of the parking ensued. C. Costa, the ZEO stated that a similar variance was denied in 2000 and typically the Board does not change its decision unless something has changed and in this case, nothing has changed. Further discussion with respect to the different zones on the property and whether or not parking could be allowed in the rear of the property.

A Motion was made by C. Gosselin, seconded by D. Alexander to DENY Application 06/07-30 – Oceanside Auto (Lessee). Sufficient hardship has not been demonstrated in regards to the expansion of the nonconforming use. No discussion and a vote was taken: In favor: D. Alexander, C. Gosselin, C. Garbe Opposed: A. Stillman, J. Castagno Abstaining: None The motion passed. 3-2-0 Variance Denied

New Business: Coastal Area Management Application (CAM) for Application No. 06/07-29 - Mattoni, 15 Buckingham Avenue, Map No. 14, Lot Nos. 116 & Granted at the February 21, 2007 meeting.

A Motion was made by D. Alexander, seconded by A. Stillman to APPROVE the CAM Application for Variance Application No. 06/07-29 – Mattoni, 15 Buckingham Avenue. The project approved as submitted; consistent with all applicable coastal policies and includes all reasonable measures to mitigate adverse impacts. No discussion and a vote was taken: In favor: D. Alexander, C. Gosselin, J. Castagno, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Minutes: A Motion was made by A. Stillman, seconded by J. Castagno to approve the Minutes of the February 21, 2007 Meeting of the Zoning Board of Appeals. No discussion and a vote was taken: In favor: D. Alexander, C. Gosselin, J. Castagno, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Adjournment: A Motion was made by D. Alexander, seconded by A. Stillman to adjourn the March 14, 2007 Regular Meeting of the Zoning Board of Appeals. No discussion and a vote was taken: In favor: D. Alexander, C. Gosselin, J. Castagno, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0 The meeting was adjourned at 11:30 p.m.

The next Regular Meeting of the ZBA will be on Wednesday, April 11, 2007 at 7:30 p.m. at the Pashbeshauke Pavilion, 155 College Street Extension.

Respectfully submitted,

Kim N. Barrows, Clerk

Old Saybrook Zoning Board of Appeals

Old Saybrook, Connecticut 06475