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DECISIONS/MOTIONS/MINUTES
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 the continuation of its April 11th meeting that was held on April 25, 2007 at 7:30 p.m. in the 1st floor conference room of the Town Hall, 302 Main Street, and decided the following appeals:
Seated for this evenings meeting were the following members: Rex McCall, Chairman, Dorothy Alexander, Vice Chairman, Adam Stillman, Secretary, Julius Castagno, Carl Garbe, alternate
Present: Michael O’Herlihy, alternate, Attorney Michael Cronin, Kim Barrows, Clerk
Absent: Chris Gosselin, Allan Fogg, alternate
The meeting began at 7:35 p.m. Since this meeting was a continuation of the meeting held on April 11, 2007 and was for decision making only, there was no audience participation.
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.
The public hearing closed on April 11, 2007. Attorney Cronin stated that correspondence was sent to the Board members from Attorney Knapp who represents the Watstein’s after the public hearing closed. The correspondence was sent to the Town Hall and to each individual Board member at their home address. The letter had as attachments additional documentation. Under Connecticut Law this is a violation and constitutes ex parte communication. Attorney Cronin directed the Board to disregard any statements in the letter but then stated “how do you put the genie back into the bottle”. Copies were also sent to Attorney Burnham, counsel for Mr. Hasychak and Attorney Branse, counsel for the Zoning Enforcement Officer, Christina Costa. Attorney Cronin’s first recommendation to
the Board was to see if the Board could get an extension from the applicant to open a new public hearing and notice it again. This would start the process over with a clean slate. There is no law to reopen a public hearing after it has been closed. Attorney Cronin mentioned that he received correspondence late in the day on April 25th from Attorney Burnham who stated that her client, Mr. Hasychak, wants to proceed with the evidence presented at the last public hearing, even though the appellant’s attorney, Mr. Knapp, had ex parte communication. Attorney Cronin states that the basic rights of Mr. Hasychak are called into question, and if Mr. Hasychak still wants to go forward, then the Board can proceed. The Board cannot take into consideration any correspondence received after the public hearing closed. The person who has the most basis to complain, wants the Board to proceed with the evidence presented at the last public
hearing (present record). Attorney Cronin then asked Attorney Burnham if that was correct. Attorney Burnham stated that “yes, I think that is a true statement of Mr. Hasychak’s position, he realizes there is a risk as you said that you can’t put the genie back in the bottle, but it seems terribly unfair, who for someone, for whatever reason, who thinks that they did not do a sufficient job at the public hearing to simply get a new public hearing by violating, if nothing else professionalism, by contacting each of the Board members. . .” Attorney Cronin then stated that on behalf of Attorney Branse, who represented Chris Costa said that it is up to the Board to decide, new hearing or the present record. He is not urging either course of action. The Chairman asked counsel about how to proceed, Attorney Cronin stated he gave the reasoning how the Board should proceed. The Board needs to decide if they feel
their decision would be tainted by the information received. They (the Board) could choose to rehear the matter, if they do that they will violate the technical requirement of starting the public hearing within the 65 day time frame after receiving the application, so right off the bat the Board is in a position not allowed under the statute. Secondly, the Board is reaching to require a person to go through a second hearing, on a matter that has already been heard. Attorney Cronin did not feel comfortable without the consent of that party, that he could sustain that particular decision in a court of law, he feels the Board is going on very uncertain ground. The Chairman asked if the Board needed a consensus or a motion on how to proceed. Attorney Cronin eventually advised a vote on how to proceed.
A Motion was made by R. McCall, seconded by D. Alexander to move that the decision is based on the concluded public hearing which has already been held and not schedule a new public hearing. 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 Chairman asked the Board members if their decision would be tainted by the letter and information received. Could each member make a fair and impartial decision? The consensus of the Board was no, their decisions would not be tainted and yes, they could make a fair and impartial decision based on the facts presented. The Board discussed the issues presented at the public hearing that closed April 11th. The Chairman went over the Stipulation entered into Court and agreed to by the parties involved. Several items came into question, i.e. the existing structure to remain at its present elevation. Does elevation refer to flood elevation vs. height of structure, how was this interpreted, Board to decide. The building height did increase by 3 ½ feet. The additional balcony on the side of
the house for passing and storing building materials and possibly a sofa was not a part of the Stipulation, only the deck to be added at the kitchen level. The dormers were not to be added, but windows were installed instead. The garage not installed by the date and enclosed. There was discussion of habitable space. The Chairman stated that there were reasons why that did not happen. The Zoning Enforcement Officer did not take part in the drafting of the Stipulation and signed off on the Certificate of Zoning Compliance. The Board needs to decide if the conditions of the Stipulation were met or violated. A. Stillman has a problem with the granting of the Certificate of Zoning Compliance. His interpretation with respect to the elevation it is the height of the building, above sea level. There seems to be an ambiguity in the wording. Feels the settlement was meeting of the minds, a give and take and Mr. Hasychak took advantage of the ambiguity. C. Garbe asked about height, how
determined. D. Alexander stated finished height is finished height no matter where measured. Board members went over intent of the Stipulation, even though some points are ambiguous.
A Motion was made by A. Stillman, seconded by D. Alexander to move to grant the appeal by Herbert Watstein and deny the Certificate of Zoning Compliance citing the work on the dwelling is not within the scope of the judgment rendered in Superior Court. 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
**All five appeals have been consolidated.**
06/07-33(a) – Appeal by Joseph M. Brigant and Mary K. Brigant 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.
The decision of the Board tonight is only for the Certificate of Zoning Compliance with respect to the property and is it in accordance with the Zoning Regulations. Attorney Cronin addressed the Board about a letter received after the public hearing. The Board did not receive this letter, it was sent only to the Chairman at the Land Use Office. The letter dated April 17, 2007 asked to reopen the public hearing. This is an ex parte communication.
A Motion was made by R. McCall, seconded by C. Garbe to move that the letter not be accepted as part of the testimony to be used in our deliberation and that the hearing remain closed. Discussion: Attorney Cronin asked if any of the Board members saw the letter. Each member answered no, they had not. No further 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 Board’s province is not to determine whether a group home can be located on that property. It is only to determine whether or not the issuance of the Certificate of Zoning Compliance was allowed under Section 24.1.9 of the Zoning Regulations for permission to turn the garage into office space. Is it allowed. Discussion of home office as an allowed use. Allowing a group home falls under State Statute. A. Stillman stated he felt terrible, but applicant is applying as a single family dwelling. Discussion of the Board about placement of this group home in a crowded neighborhood, surrounded on three sides by water. C. Garbe agreed. J. Castagno stated that the only issue the Board can vote on is turning the garage into a home office. D. Alexander asked about a condition and moving
the group home to another area, one where there was not a canal where you step off and it is 10 feet deep, not a beach. A. Stillman asked about condition not to have outside counseling on the property, only for those living there.
A Motion was made by R. McCall, seconded by A. Stillman and read as follows: It is hereby moved that the decision of the Zoning Enforcement Officer, Christine Costa, in issuing a permit for the renovation of the garage facility on the property at 7 Anchorage Lane for the purpose of constructing a business office be upheld. The proposed activity is allowed as an accessory use to a residential dwelling under the provisions of Section 24.1.9 of the zoning regulations, therefore, the appeals of Joseph and Mary Briganti, Marilyn and John Caldwell, Danya and Mitchell Winch, Bruce and Ruth Bardos and Edward and Barbara Pilcher be denied. The anticipated use of the property by the property owner as a use allowed under the provisions of Section 8-3(e) of the Connecticut General Statutes is beyond the scope of this
proceeding before the Board. 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 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 8:20 p.m.
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.
Rexford McCall, Chairman
Old Saybrook Zoning Board of Appeals
Old Saybrook, Connecticut 06475
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