Town of Old Saybrook, CT - Zoning Board of Appeals Minutes 08/08/2007

Zoning Board of Appeals Minutes 08/08/2007

MINUTES OF THE ZONING BOARD OF APPEALS

AUGUST 8, 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, August 8, 2007 at 7:30 p.m. at the Pasbeshauke 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, Vice Chairman, Julius Castagno, Chris Gosselin, Carl Garbe, alternatePresent: Allan Fogg, alternate (seated for 07/08-02 Chamberlain decision and rest of meeting thereafter), Michael Cronin, Esquire, counsel for the Board, Kim Barrows, Clerk

Absent: Adam Stillman, Secretary, Michael O’Herlihy, alternate

The meeting was then called to order at 7:30 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:

PUBLIC HEARINGS:

07/08-08 – John David Ferraris, Trustee seeks a variance of Par. 24.6.2 ( max bldg./structure coverage) of the Zoning Regulations to permit a 10' x 12' shed on property located at 20 Fenwood Road, Map No. 5, Lot No. 64.

Present: William A. Childress, agent for the applicant.

Attorney Childress gave a brief presentation. The proposal is to add a shed on the property. The homeowners now have a single family dwelling with a patio (patio is not added into the ground coverage). Applicant did reduce ground coverage when they removed the deck prior to applying for a variance. The shed is to be 10' x 12' which is modest in size and low in height, although the height was not specified but should be under 10 feet. Attorney Childress stated that the 20% ground coverage does not allow for normal use in the beach community since lots are smaller. Strict enforcement would not allow building. The proposal of adding the shed did not invoke septic issues. One neighbor is objecting, a letter dated July 31, 2007 from Joan Valentine and Robert J. Smith of 14 Fenwood Road, object since variance is vague and shed close to property line. The shed is behind the house and can be 5' from the property line. The hardship is the strict application of the regulations does not permit accessory buildings. The 20% rule doesn’t fit well with beach lots. The Chairman then opened the floor to comments from the audience either in favor or in opposition. There was no one speaking in favor. In opposition were Mr. & Mrs. Smith of 14 Fenwood Road. There was no further audience participation and no further Board comments. The public hearing closed at 7:50 p.m.

07/08-09 – Bobi Molchan and Wayne Holcombe seek a variance of Par. 10.7.1 (nonconformity/ improvements/ enlargement), Par.10.7.2 (nonconformity/improvements/ change), and Par. 24.5.3 (setback/other property line /15 ft required/3.94' proposed) of the Zoning Regulations to permit an additional area (4'9" x 11'7") for storage which will extend to the front of the existing year round house on property located at 41 Indianola Drive (Cornfield Point), Map No. 02, Lot No. 062.

Present: Mr. Holcombe, applicant.

Mr. Holcombe gave a brief presentation. Applicants would like to extend the existing 3 wall shed in order to expand storage. The addition would have inside access as well as outside access. The building line would continue with the existing building line and be the same elevation and also have the same roof line. The structure predates zoning. The Chairman then opened the floor to comments from the audience either in favor or in opposition. There was no audience participation. The Board did ask about heating the space and the applicant stated that the bedroom connected to the area was heated by electric heat and they would not be adding anything additional. The public hearing closed at 7:57 p.m.

07/08-10C – Mitchel B. Strand seeks a variance of Par. 24.5.3 (setback/other property line 20 ft required/19' proposed) of the Zoning Regulations to permit expansion of “eat in kitchen”, demolition of existing dining room and rebuild to accommodate new kitchen (approx. 115.5 s.f.) in front of existing dwelling on property located at 173 Ayers Point Road, Map No. 063, Lot No. 061.

Present: Mr. Mitchel Strand, applicant.

Mr. Strand gave a brief presentation. The house is a year round residence and applicant would like a variance for a slight encroachment into the setback in order to “update” the existing kitchen area. There was discussion about keeping the existing foundation and allowing the approximately 6" encroachment into the setback. The Board didn’t know if removing the existing foundation would be a problem as stated by the applicant but felt that since it would be an extensive renovation, making it conform should not be a problem. The Chairman then opened the floor to comments from the audience either in favor or in opposition. There was no audience participation and no further Board comments. The public hearing closed at 8:05 p.m.

07/08-11C – Wade Sarette seeks a variance of Par. 7.4.4 (narrow street), Par. 10.8.2, Par. 10.8.3, Par. 10.8.4 (nonconformity lots) and Par. 24.5.1 (street line setback /30' required/24.5' proposed) of the Zoning Regulations to permit removal of “slab”portion of the existing building (garage and family room) and construct a two story dwelling on the existing full basement foundation on property located at 8 Maynard Circle, Map No. 21, Lot No. 27.

Present: Mr. Wade Sarette, applicant.

Mr. Sarette gave a brief presentation. Applicant would like to tear down existing ranch style house and construct a colonial. The property is located on the corner of Maynard Circle and Farview. The house is 13' from the front of the street. The Farview side would conform to the setbacks. There will be a new septic system. The existing house is nonconforming and the front setback already exists. The Board discussed the size of the new house. The Chairman then opened the floor to comments from the audience either in favor or in opposition. There was no audience participation and no further Board participation. The public hearing closed at 8:15 p.m.

REGULAR MEETING:

Discussion with respect to the public hearing that closed this evening. R. McCall stated that the ground coverage was being reduced since the deck had been removed and replaced with a patio. The Board had wanted to know the height of the shed and if it would be under 10 feet. The height had not been listed in the application or in the brochure. The shed placement seems to confirm with all other sheds in the beach communities and is in harmony with the neighborhood. R. McCall mentioned that the hardship, as stated by the agent for the applicant, was the 20% ground coverage in the beach area. The 20% ground coverage pertains to lots that are 12,500 s.f. The granting of the variance will not affect public health, safety, convenience or welfare. The granting of the variance will do no violence to the comprehensive plan or integrity of the regulations.

A Motion was made by C. Garbe, seconded by C. Gosselin to GRANT/with condition Application No. 07/08-08- Ferraris. It is in harmony with the existing neighborhood and it will not harm the public health, safety or integrity of the neighborhood. The hardship is the small lot. The condition is that the structure cannot be over to 10 feet in height. No discussion and a vote was taken: In favor: R. McCall, J. Castagno, D. Alexander, C. Gosselin, 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 house was built in 1948 and was 3.49 feet from the sideline, there will be no further encroachment on the setback. The existing shed will be incorporated into the existing structure. Discussion as to maintaining the existing shed roof line. There will still be access to the rear lot. Hardship is small lot, location of house on lot and where the septic is located.

A Motion was made by D. Alexander, seconded by R. McCall to GRANT/with condition Application No. 07/08-09- Molchan/Holcombe. This is a very reasonable request, it will make the house more useful to its owners and there is no other reasonable place to put the addition without disturbing the septic system or the wetlands/flood plain. The condition is that the height of the addition match the existing shed roof line. No discussion and a vote was taken: In favor: R. McCall, J. Castagno, D. Alexander, C. Gosselin, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Discussion with respect to the public hearing that closed this evening. There will be a six inch encroachment into the setback if the applicant uses the existing foundation. There was discussion as to pouring a new foundation and removal of the existing. The Board noted that a hardship was not stated on the application. Applicant only mentioned modernization or upgrading the kitchen to conform with the rest of the neighborhood. C. Gosselin felt this application was one where the Board could eliminate a nonconformity.

A Motion was made by C. Gosselin, seconded by J. Castagno to DENY Application No. 07/08-10C- Strand. Sufficient hardship has not been demonstrated or shown on this particular appeal. It is felt that the building could be brought into compliance by eliminating the 6 inches during the renovation process. No discussion and a vote was taken: In favor: R. McCall, J. Castagno, D. Alexander, C. Gosselin, C. Garbe Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Discussion with respect to the public hearing that closed this evening. R. McCall felt the new septic system and the elimination of a large encroachment of the setback on Farview was a plus for the Town. D. Alexander felt the Board was afforded a great opportunity/ learning experience when variances were granted to build on the same footprint and add a second story. The building is not in keeping with the neighborhood. There are no other two story dwelling of that size in the area. D. Alexander discussed increasing the “bulk” of the dwelling. The height of the proposed dwelling is 32'. R. McCall has mixed emotions. J. Castagno agreed with D. Alexander re the bulk. C. Gosselin is torn, he feels the new septic system is a plus and decreasing the encroachment on Fariview is good. Member consensus was the bulk of the structure was an issue.

A Motion was made by D. Alexander, seconded by C. Garbe to DENY Application No. 07/08-11C- Sarette. Because it will be much too bulky a house for that situation on that lot and in that neighborhood. It doesn’t conform with the neighborhood. No discussion and a vote was taken: In favor: R. McCall, J. Castagno, D. Alexander, C. Garbe Opposed: C. Gosselin Abstaining: None The motion passed. 4-1-0

07/08-02 – Harry J. Chamberlain & Mary Chamberlain seek a variance of Par. 24.5.2 (setback/rear property line/15' required/12.6' proposed) of the Zoning Regulations to permit existing structure to remain in present location, foundation and home not entirely in compliance with previously granted variance on property located at 2 Owaneco Trail (Indiantown), Map No. 19, Lot No. 330.

A. Fogg was seated for the rest of the meeting. C. Garbe listened to the tapes of the July meeting re Chamberlain. R. McCall recused himself from this application only since he has known the applicants for many years and built there first house in Old Saybrook and they have asked him questions pertaining to zoning on this particular lot. He felt that he could not be objective. Attorney Michael Cronin, attorney for the Board was also present to give advice.

The public hearing closed on July 11, 2007 and the decision was deferred to this month in order to seek advice from counsel. The question was whether or not the Board could grant a variance on top of a variance. First piece of advice is to act on this request as if it was a new request. Secondly, the Board needs to take into consideration the legal issue raised with respect to the hardship for the new variance being a self created hardship. Was it a self created hardship? If it is self created, the Board has no power to act. The homeowner hired a contractor to build the house and the contractor hired a subcontractor to pour the foundation. In accordance with a recent court case Osborne v. Zoning Bd. Of Appeals, 41 Conn. App. 351, 354-55 (1996); Guliano v. Zoning Bd. Of Appals, 1999 WL 111183 (Conn. Super. Ct. Feb. 22, 1999) this does not constitute a self created hardship. Although this does not mean that the homeowner is entitled to the granting of this variance. When the original variance was granted in 2005, the condition was that “the dwelling be located 12.7 feet from the northerly property line and 15 feet, as drawn of the plan, from the southerly property line”. The Board, at that time, had its reasons to maintain the setback in the rear and allow the slight encroachment into the streetline setback. Attorney Cronin stated that it is still within the broad discretion of the Board to rule on the granting of this variance. Is there a hardship? The hardship is to the homeowner since the house will have to be rebuilt. Discussion of who is responsible for noticing a mistake, the homeowner, contractor or subcontractor.

A Fogg went forward to make a motion to GRANT, using the hardship shown on the previous application in 2005, seconded by J. Castagno. Discussion ensued re monetary hardship if to deny the variance, reconstruction would add more of a mess to neighborhood. Granting might not be the right thing, but the common sense thing to do. The Board decided monetary hardship not a “hardship”. Advice of counsel to amend motion. Another attempt to add that this variance does not substantially affect the comprehensive zoning plan. J. Castagno seconded, counsel advised that the Board did not list sufficient hardships as they pertain to this particular lot, A. Fogg then added to the motion that property was a long narrow corner lot. At this time, the Board took a few minutes to review the site plan and discuss hardship. Configuration of the lot, size and shape with two street line setbacks. Counsel felt Board should take rear neighbors concern into consideration and justify moving the rear setback. The rear neighbor’s house is 20' from the property line, affording 33' between both houses allowing access to the rear.

A Motion was made by A. Fogg, seconded by J. Castagno to GRANT Application No. 07/08-02- Chamberlain. The hardship is the size and shape of the lot, a corner lot. In keeping with other homes in the neighborhood. The owner did not create the hardship based on current case law. Homeowner hired contractor who hired a subcontractor. There is approximately 33' between both homes, allowing enough access for emergency access if needed. The current situation allows the house to be pulled back from the road approximately 17' 2" on the northwest side creating a greater streetline setback. And this variance does not substantially affect the comprehensive zoning plan Old Saybrook and strict adherence with the zoning ordinance would cause unusual hardship in this particular case unnecessary for carrying out the general purpose of our zoning plan and this appeal is not in conflict with the purposes set forth in the Old Saybrook zoning regulations. No further discussion and a vote was taken: In favor: A. Fogg, J. Castagno, C. Gosselin Opposed: D. Alexander, C. Garbe Abstaining: None The motion failed to pass. 3-2-0

A Motion was made by D. Alexander, seconded by C. Garbe to DENY Application No. 07/08-02- Chamberlain. The reasons for denial is that in the Board’s original approval very specific requirements were made which were not adhered to and also because the neighbors should not be penalized for errors made by this owner and the people he employed. D. Alexander is very opposed to granting variances for things that have already been built in the wrong place, which the Board has done before and shouldn’t do because it encourages more people to do that. No discussion and a vote was taken: In favor: D. Alexander, C. Garbe Opposed: A. Fogg, J. Castagno, C. Gosselin Abstaining: None The vote on the motion was 2 in favor, 3 opposed.

The request for a variance was thus denied.

New Business: Letter dated July 12, 2007 from Scott Desmond requesting a one year extension of time for demolition and construction of dwelling on property located at 41 Attawnhood Trail, Map 13, Lot 64. Variances were granted on August 9, 2006. The letter did not give an explanation as to why the applicant is requesting an extension so the Board discussed only granting a 6 month extension. If the applicant resubmitted another letter with an explanation, the Board would grant an additional 6 months.

A Motion was made by R. McCall, seconded by A. Fogg to GRANT a SIX MONTH extension from August 9, 2007 to February 9, 2008 in order to obtain a building permit for Scott Desmond, Application No. 06/07-05, 41 Attawnhood Trail, Map 13, Lot 64. No discussion and a vote was taken: In favor: R. McCall, D. Alexander, J. Castagno, C. Gosselin, A. Fogg Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Minutes: A Motion was made by R. McCall, seconded by D. Alexander to approve the Minutes of the July 11, 2007 Regular Meeting. Discussion: D. Alexander wanted the minutes to reflect that Mr. Evans, at the time of the presentation, stated that provisions were made for the mechanicals in the new dwelling above flood elevation. No further discussion and a vote was taken: In favor: R. McCall, D. Alexander, J. Castagno, C. Gosselin, A. Fogg Opposed: None Abstaining: None The motion passed unanimously. 5-0-0

Adjournment: A Motion was made by A. Fogg, seconded by R. McCall to adjourn the August 8, 2007 Regular Meeting of the Zoning Board of Appeals. No discussion and a vote was taken: In favor: R. McCall, D. Alexander, J. Castagno, C. Gosselin, A. Fogg Opposed: None Abstaining: None The motion passed unanimously. 5-0-0 The meeting was adjourned at 9:35 p.m.

The next Regular Meeting of the ZBA will be on Wednesday, September 12, 2007 at 7:30 p.m. in the First Floor Conference Room, Town Hall, 302 Main Street.

Respectfully submitted,

Kim N. Barrows, Clerk

Old Saybrook Zoning Board of Appeals

Old Saybrook, Connecticut 06475