MINUTES OF THE ZONING BOARD OF APPEALS
APRIL 11, 2007
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, April 11, 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: Rex McCall, Chairman, Dorothy Alexander, Adam Stillman, Julius Castagno, Carl Garbe, alternate
Present: Michael O’Herlihy, alternate (seated for 06/07-31 (a) and (b) only), Christina Costa, ZEO, Michael Cronin, Esquire, Kim Barrows, Clerk
Absent: Chris Gosselin, Allan Fogg, alternate
The meeting was then called to order at 7:35 p.m.
The Chairman introduced the Board members who were seated for this evenings meeting. The 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:
CONTINUED PUBLIC HEARINGS:
Rex McCall did not sit for Appeal No. 06/07-31 (a) and (b) - Zagryn, although he did listen to the tapes. Michael O’Herlihy was seated for the Zagryn matters only. Vice Chairman, Dorothy Alexander began the meeting.
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.
Present: Attorney Christina P. Burnham, agent for the appellant; Dr. & Mrs. Zagryn
Attorney Burnham started the evening by entering into the record a letter dated April 5, 2007 from Attorney Branse which she received regarding testimony from last month’s public hearing. She then proceeded to give her position with respect to the allegations outlined in the letter. There were discussions with respect to the septic system (two bedrooms vs. three), gross floor area and whether or not it counted in coverage, ½ story, story and habitable space and whether or not the zoning regulations defined it or the building code. Also discussed was the fact that the motion in April of 2005 granting the variance did not include specific reference to plans and that the modification to the “ell” was a slight modification and didn’t require another variance. C. Garbe stated we like to
rely on good faith and A Stillman asked who determines whether it is a small issue or not.
The letters in support submitted last month were referenced again. The Vice Chairman opened the floor for comments in favor: Sandy Kilburn of 42 Owaneco and Betsy Astrita from across the street spoke. The Vice Chairman opened the floor for comments from those in opposition: Attorney Branse stated that the letter Attorney Burnham mentioned was not submitted to the Board. Attorney Branse, representing the Acting ZEO, Torrance Downes reiterated their position regarding calculations for floor area being over and definition of ½ story and habitable space. Discussion ensued regarding heat and how a room can be heated in order to make it habitable. Attorney Branse also discussed “slight change” and it is up to the Board to decide, not the ZEO and that is why Mr. Downes denied the Certificate of
Zoning Compliance. Attorney Branse questioned Mr. Gionatti, the Builder, regarding the timing of the revised plans and the permits. Speaking again were Mr. Rutchik of 24 Attawanhood and Mr. Flynn. Attorney Branse submitted for the record the following : 1) a copy of the letter written to Attorney Burnham dated April 5, 2007; 2) Memorandum from Kathleen Foley, Administrative Secretary in the Building Department dated March 28, 2007; 3) Memorandum from Don Lucas, Building Inspector dated March 20, 2007 regarding Plans approved; 4) Portion of the transcript from the March 14, 2007 meeting; and 4) the CRAHD, permit to discharge for three bedrooms dated January 8, 2007. There was no further Board or audience participation and the public hearing closed at 8:50 p.m.
DECISION -
Discussion with respect to the public hearing that closed this evening. The Board discussed the differences in the floor area calculations between the ZEO and the Appellant. A. Stillman stated that the Board should uphold the ZEO.
A Motion was made by A. Stillman, seconded by M. O’Herlihy to SUSTAIN the DENIAL of the Certificate of Zoning Compliance by the Acting ZEO regarding Application 06/07-31(a) – Appeal by Zagryn. Applicants have failed to demonstrate that the ZEO incorrectly interpreted the rules of the zoning codes based on the evidence before us. No further discussion and a vote was taken: In favor: D. Alexander, J. Castagno, A. Stillman, C. Garbe, M. O’Herlihy 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.
Present: Attorney Christina P. Burnham, agent for the applicant; Dr. & Mrs. Zagryn
The house was a year-round house and has remained the same. The footprint is smaller, not larger than what had existed. The encroachments have been slightly lessened. There is additional height on a small portion of the house because the house was raised to meet the flood plain requirement. The hardship is that the house is already constructed and it would be an unusual hardship to have the interior walls cut down and a new heating system installed. This was a small change to the over all house improvements. The variance requested is for a small increase in the floor area for the attic space. There is no basement and no other space for storage. This project was started in 2005, was approved by the then Sanitarian for the Town, along with upgrades for the septic, flood requirements and building
code. The Vice Chairman asked for comments from the Board: M. O’Herlihy asked if this was a self-created hardship and if granting does the Board set a precedent; C. Garbe asked for hardship and did the hardship have to do with meeting the flood plain requirements due to the location of the property. 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. Opposed: Mr. Edward Flynn. Attorney Branse stated that the ZEO takes no position on the variance and anything he said should not have any application to this variance request. The Board discussed a condition that the space above the garage not be accessed from the second floor, discussed methods to achieve that. No further comments from the
Board or the audience and the public hearing closed at 9:25 p.m.
DECISION -
Discussion with respect to the public that closed this evening. A. Stillman posed the option of closing off the garage from the second floor and putting pull down stairs in the garage. There would be access to the garage from the first floor only. The space above the garage will only be for storage and will never be living space. The Board felt hardship was demonstrated.
A Motion was made by A. Stillman, seconded by C. Garbe to GRANT Application 06/07-31(b) – Zagryn with the following conditions - 1) that the area over the garage is sealed off from the area over the mud room, the ell, shall never be accessed. 2) the area over the garage can only be accessed from the lower level of the garage 3) the area above the mud room shall never have a heating system of any kind, whether electric, forced air or water. That hardship has been demonstrated otherwise, it is consistent with the neighborhood and consistent with the best interest of the neighborhood. Discussion: D. Alexander would like to hear separated from the living quarters of the house versus separated from the this and the that. A. Stillman stated that he would have
to modify the motion but then withdrew the motion to MODIFY as follows:
A Motion was made by A. Stillman, seconded by D. Alexander to GRANT/with Conditions Application 06/07-31(b) – Zagryn with the following conditions - 1) the garage will be separated from the living space of the house completely by a wall and shall never be modified. 2) that the area above the mud room that will be attached to the house will never be heated whether by electric, forced air or hot/warm water. And that the only access to the area above the garage will be through the garage itself. The hardship as stated is that the flood plain requirements have created a difficulty with the location of the utilities. No further discussion and a vote was taken: In favor: D. Alexander, J. Castagno, A. Stillman, C. Garbe, M. O’Herlihy Opposed: None Abstaining: None The motion passed unanimously. 5-0-0
PUBLIC HEARINGS:
R. McCall was seated for the remainder of the evening.
06/07-32(a) – Appeal by Herbert Watstein of the Zoning Enforcement Officer’s approval of a Certificate of Zoning Compliance (Application No. 06-295 dated January 31, 2007), citing work on the dwelling is not within the scope of the Judgment rendered in Superior Court on May 10, 2006 regarding the property located at 41 Soundview Avenue (Chalker Beach), Map No. 18, Lot No. 129.
Present: Attorney Richard Knapp, agent for the appellant, Herbert Watstein.
Attorney Knapp outlined the reasons for the appeal, all of the documents accompany the application in the file and can be reviewed. He further outlined the Stipulation entered into court and the appellants reasons as to why there is a discrepancy as to what was outlined in the Stipulation and what has been built, i.e. new roof, attic space, no garage door installed to date, second floor door vs. deck and discussion of habitable space. Attorney Branse, representing Christina Costa the Zoning Enforcement Officer, responded by saying Ms. Costa was not a party to the Stipulation and was working within the zoning regulations. A memorandum from Don Lucas, the Building Inspector, dated March 19, 2007 regarding framing was entered into the record. Attorney Cronin, attorney for the Board, wrote the Stipulation.
There was discussion as to the Stipulation being vague and further discussion as to interpretation of what the Stipulation actually allowed. Time was spent discussing the “door” on the second floor that was used for access to the attic for storage of building material. The door and then the platform were discussed as to why it has turned into an additional deck and that the deck was not part of the Stipulation. Attorney Burnham stated that the original plans submitted in 2003 were the working “blueprint” of what was Stipulated to. Andreas Montolenez (spelling) stated that the second floor deck was just recently built. Discussion as to timing of when decking appeared and that there were several stops and starts to this project. The Chairman then opened the floor to those in favor or opposition: Mr. Leonard Pask of 14 Nehantic Trail, spoke in opposition as well as Mrs. Watstein. Mr. Keith
Connors of 34 Soundview stated that he tried to figure out why work had stopped and that the issue is the neighbors do not like the house. He feels it is an improvement. A letter from Doris Zumbrowski of 39 Soundview Avenue dated April 9, 2007 was entered into the record in opposition. There was no further audience or Board participation and the public hearing closed at 10:50 p.m.
DECISION -
Discussion with respect to the public hearing that closed this evening. There was discussion as to the Stipulation and the fact that what has been done to the property exceeds the Stipulation. Testimony was presented by Attorney Knapp for the Watsteins, Attorney Cronin, attorney for the Board, Attorney Burnham who represents the Hasychak’s and Attorney Branse and Ms. Costa the Town’s Zoning Enforcement Officer. After lengthy discussion the Board determined that extra time was needed to review all of the facts.
A Motion was made by A. Stillman, seconded by D. Alexander to DEFER the DECISION on Application 06/07-32(a) – Appeal by Watstein until APRIL 25, 2007. The meeting will be held at 7:30 p.m. in the first floor conference room of the Town Hall, 302 Main Street. No discussion and a vote was taken: In favor: R. McCall, D. Alexander, J. Castagno, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0
** Prior to the beginning of the public hearing portion, Attorney Chase and his client’s, Mr. & Mrs. Caldwell agreed to consolidate all 5 appeals. The other Appellant’s and the audience did not object to consolidating the appeals**
06/07-33(a) – Appeal by Joseph M. Briganti and Mary K. Briganti of the Zoning Enforcement Officer’s approval of a Certificate of Zoning Compliance (Application No. 07-006 dated January 9, 2007), citing approval exceeds authority of zoning official, use not allowed and appellant does not concede that the proposed use was stated fully or accurately by the applicant for the decision appealed from with respect to the property located at 7 Anchorage Lane (Ferry Point), Map No. 59, Lot No. 77.
06/07-34(a) – Appeal by John Caldwell and Marilyn Caldwell of the Zoning Enforcement Officer’s approval of a Certificate of Zoning Compliance (Application No. 07-006 dated January 9, 2007), citing approval exceeds authority of zoning official, use not allowed and appellant does not concede that the proposed use was stated fully or accurately by the applicant for the decision appealed from with respect to the property located at 7 Anchorage Lane (Ferry Point), Map No. 59, Lot No. 77.
06/07-35(a) – Appeal by Mitchell T. Winch and Danya P. Winch of the Zoning Enforcement Officer’s approval of a Certificate of Zoning Compliance (Application No. 07-006 dated January 9, 2007), citing approval exceeds authority of zoning official, use not allowed and appellant does not concede that the proposed use was stated fully or accurately by the applicant for the decision appealed from with respect to the property located at 7 Anchorage Lane (Ferry Point), Map No. 59, Lot No. 77.
06/07-36(a) – Appeal by Ruth L. Bardos and Bruce D. Bardos of the Zoning Enforcement Officer’s approval of a Certificate of Zoning Compliance (Application No. 07-006 dated January 9, 2007), citing approval exceeds authority of zoning official, use not allowed and appellant does not concede that the proposed use was stated fully or accurately by the applicant for the decision appealed from with respect to the property located at 7 Anchorage Lane (Ferry Point), Map No. 59, Lot No. 77.
06/07-37(a) – Appeal by Edward Pilcher and Barbara Pilcher of the Zoning Enforcement Officer’s approval of a Certificate of Zoning Compliance (Application No. 07-006 dated January 9, 2007), citing approval exceeds authority of zoning official, use not allowed and appellant does not concede that the proposed use was stated fully or accurately by the applicant for the decision appealed from with respect to the property located at 7 Anchorage Lane (Ferry Point), Map No. 59, Lot No. 77.
Present: Attorney John Chase, agent for the applicants Mr. & Mrs. Caldwell
Attorney Chase asked Mr. Caldwell to give a time line as to when applicants were aware a group home was going to be placed in their neighborhood. The Caldwells noticed the house next door went off the market the first of the year and they heard rumors as to group home being established. The Caldwell’s went through the process of asking questions in Town Hall as to permits, etc. Attorney Howard who represents person who purchased the home, questioned relevance. The testimony shows time line for appealing the Certificate of Zoning Compliance. The Certificate of Zoning Compliance was issued in January, 2007. The appellants later filed their appeal. Discussion as to constructive notice ensued. Attorney Branse stated that the ZEO, Ms. Costa, does not object to the filing of the
appeals. Attorney Chase and Mr. Caldwell discussed letters and meetings that were held with Town Officials. Attorney Chase discussed licensing and permits. The following exhibits were entered into the record this evening: Exhibit A - CZC dated January 9, 2007 with attached letters; Exhibit B - letter to Christina Costa from Department of Children and Families attorney, Thomas DeMatteo dated March 29, 2007 ; Exhibit C - Portion of Section 8-3e - Regulations of Community Residences; Exhibit D - Article in The Day dated April 6, 2007; Exhibit E - copy of Connecticut General Statute section 17a-145; Exhibit F - copy of Connecticut General Statute section 17a-93; Exhibit G - Connecticut General Statute Section 46b-120; Exhibit H - letter dated March 28, 2006 from Intradepartmental Memorandum Auditors of Public Accounts to State Auditors from J. Faenza, Principal Auditor re Makayla’s House and Exhibit I - Typed memo re April 10, 2007 site visit to Baldwin Group
Home, Middletown from Mrs. Pilcher. Discussions ensued as to “if licensed” and the number of boys to live at the home. Discussion as to ages of boys. And the “catch 22"of if property meets zoning regulations, it can then become a licensed group home. Attorney DeMatteo discussed statutes, the group home and the ages of the boys who will live there. Discussion of staffing ensued and their credentials. There will be no more than 3 people on site and no less than 2 who will be there 24/7 to supervise. Mr. Martin Dituccio, DCF Program Director stated that there are approximately 38 facilities in the State. Attorney Branse then spoke on behalf of Christina Costa, the ZEO, and the interpretation of professional office in a dwelling and accessory use. The offices will not be open to the public. There was discussion of the ADA and Fair Housing Act and that if a municipality discriminates it is subject to damages in Federal
Law. Attorney Chase felt this is misplaced advice. Attorney William Howard, represents Rainbow House and Gilead and Mr. Barry Simon of Rainbow House who owns the assets (property at 7 Anchorage Lane) stated that no one is living in the house now. Furtheer discussion of the relevant CGS ensued.
Mr. & Mrs. Briganti of 6 Anchorage Lane took the floor. They have concerns and the town has to be aware of the responsibility. The group home will be in a neighborhood that is unprotected waterfront and will become a safety issue for boys who wander away.
Mr. Mitchell Winch is opposed to locating the group home in this neighborhood. There has not been any communication between the town and the neighbors. Asks about analysis done to see if area suitable.
Mr. Bruce Bardos is also opposed. He questions definition of child and handicapped, also who decides which child is placed in this home. Discussion as to children wandering and Mr. DeMatteo stated that the children are supervised.
Mrs. Barbara Pilcher also opposed. She stated that there is more than one office in the garage, she questioned credentials of those supervising the children. She did a site visit on April 10, 2007 to the Baldwin Group Home in Middletown. Memorandum in file and is very precise and detailed.
The Chairman then opened the floor to those in the audience in favor or in opposition. Mr. Douglas Domaine of Brewer Yacht spoke against. The proximity to the marina was a hazard to the children. Also opposed was Eric and Julie Koch of 12 Anchorage Lane. The area is not large enough. There was no further audience participation and no Board comments. The public hearing closed at 1:20 a.m.
DECISION -
Discussion with respect to the public hearing that closed this evening. Attorney Chase gave a presentation, all five appellants gave testimony as well as the attorney for Christina Costa, the Zoning Enforcement Officer. DCF and representatives from the Rainbow House all gave testimony. There was an enormous amount of information presented and the Board wanted time to digest it all.
A Motion was made by R. McCall, seconded by A. Stillman to DEFER the DECISION on Applications 06/07-33, 34, 35, 36 and 37(a) – Appeals by Briganti, Caldwell, Winch, Bardos and Pilcher until APRIL 25, 2007. The meeting will be held at 7:30 p.m. in the first floor conference room of the Town Hall, 302 Main Street. No discussion and a vote was taken: In favor: R. McCall, D. Alexander, 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 C. Garbe to approve the Minutes of the March 14, 2007 Meeting of the Zoning Board of Appeals, as amended. The amendment is to add the word “not” to Mr. Blumenthal’s statement during the audience participation. To read “. . .the storage area will not be assessed as living area . .” No discussion and a vote was taken: In favor: R. McCall, D. Alexander, J. Castagno, 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 April 11, 2007 Regular Meeting of the Zoning Board of Appeals. No discussion and a vote was taken: In favor: R. McCall, D. Alexander, J. Castagno, A. Stillman, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0 The meeting was adjourned at 1:35 a.m.
A Continued Meeting of the ZBA for decisions will be on Wednesday, April 25, 2007 at 7:30 p.m. in the first floor conference room at Town Hall, 302 Main Street.
The next Regular Meeting of the ZBA will be on Wednesday, May 9, 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
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