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Zoning Board of Appeals Record of Vote 05/12/2010
MOTIONS
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 Meeting that was held on Wednesday, May 12, 2010 at 7:30 p.m. at  the Town Hall, First Floor Conference Room, 302 Main Street, heard and decided the following appeals:

Seated for this evenings meeting and voting were the following members: Rexford McCall, Chairman,  Dorothy Alexander, Vice Chairman, Brian Dooley, Kent (Skip) Johnson (alternate) and Mary Kennedy (alternate), who was seated for Application 09/10-22, Tissa’s Country Market only.   By Court Stipulation, D. Alexander was not seated for Application 09/10-22, Tissa’s.

Present: Michael E. Cronin, Jr., Esquire, Christina M. Costa, Zoning Enforcement Officer, Kim Barrows, Clerk

Absent: Joan Strickland and Allan Fogg (alternate)

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

The following  public hearings were conducted, as well as the decision making sessions.  The meeting has been recorded on tape and the following actions were taken:

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.

A Motion was made by R. McCall, seconded by M. Kennedy to amend the agenda to hear the continued public hearing for James Gallery & Soda Fountain, LLC before the public hearing for Between the Bridges.  No discussion and a vote was taken:  In favor:  R. McCall, C. Gosselin, B. Dooley, K. Johnson, M. Kennedy   Opposed:  None   Abstaining:  None   The motion passed unanimously.  5-0-0

09/10-22 B James Gallery & Soda Fountain, LLC (owner), Tissa’ Country Market (applicant) seek a variance of Par. 24.2 (Special Exceptions Uses) and Par. 62.3 (parking on site/to allow credit for offsite parking) of the Zoning Regulations to allow continuation of historic ice cream and soda fountain while adding deli-style food preparation and food service also maintaining retail sales on the pharmacy side of property located at 2 Pennywise Lane, Map No. 30, Lot No. 3.

Per Court agreement, D. Alexander was not seated for this hearing.

Discussion with respect to the public hearing that closed this evening.  C. Gosselin listened to the tapes of the previous public hearing and was eligible to vote.  The Board took in all of the comments from the applicant and the public and made the following motion taking into consideration all of the testimony presented.  

A Motion was made by R. McCall, seconded by K. Johnson to GRANT Application 09/10-22 B James Gallery & Soda Fountain, LLC (owner), Tissa’ Country Market (applicant) for variances of Section 24.2 Special Exception Uses and Section 62.3 (parking on site/to allow credit for offsite parking) of the Zoning Regulations to allow continuation of the historic ice cream and soda fountain while adding deli-style food preparation and food service while maintaining retail sales on the pharmacy side of the property located at 2 Pennywise Lane, Map 30, Lot 3 including the following conditions and reasons for approval.

The previous approvals for this property limit food service items to the sale of ice cream, coffee, tea and beverages.   Retail sales have been previously permitted on the site and have included items such as sales of art, pottery and pre-prepared food items made off site such as cookies, candy and other pre-packaged manufactured food items.

  •  .  The granting of this variance will allow for food preparation to be limited strictly to the preparation of soups, stews, salads, sandwiches and Panini served for breakfast, lunch and dinner.
  • ..   Cooking equipment will be limited to a small stove, refrigerator, freezer, microwave oven, crock pot, slicer, panini maker, bay marie, preparation tables including those with refrigeration located underneath and other small kitchen equipment customary in non-commercial kitchens including but not limited to a can opener, food processor, blender and toaster.  
  •   .  Cooking equipment specifically will not include commercial restaurant equipment such as a fryolator, broiler, proofer, large commercial ovens or other large restaurant style equipment.
  •  .  Seating will not be expanded and will continue to be limited to 12 interior seats and two outdoor picnic tables serving as seasonal outdoor seats. Exterior umbrellas for approved outdoor seating tables be uniform and will not have any advertisements printed on them which would constitute signage.
  •  .  No outdoor cooking permitted.
  •  .  Full service catering and food delivery to off site properties is not permitted.
  •   .  No bands or live entertainment allowed.
  •  .  No outdoor speakers permitted.
  •  .  No prohibited a-frame signs or other unpermitted advertising signs will be placed on the property or on the State Property.
  •  0. Proposed permanent signs will not exceed sizes described in previous variance approvals (Appeal #85-8 granted on April 10, 1985 and Appeal #92/93-46 granted on July 14, 1993).
  •  1. Refuse dumpsters will be located to the rear of the building and will be screened from adjacent properties.  Two small trash containers in the front are permitted.
  •  2. Deliveries will be scheduled during off peak business hours to avoid traffic and parking congestion.
  •  3. The site plan, floor plan, architectural plan and all supporting documents submitted with this application must be strictly adhered to.
  •  4. No interior and exterior changes to the building are proposed and the historic character of the structure will continue to be maintained.
  • 5.  The hours of operation will be 8:00 a.m. to 8:00 p.m. Monday through Saturday and 10:00 a.m. to 5:00 p.m. on Sunday.  Hours to possibly drop during winter months.
During testimony presented at public hearings held on Wednesday, April 14, 2010 and this evening, Wednesday, May 12, 2010, the Zoning Board of Appeals found the following reasons and hardships sufficient to grant this variance request.

1.      The proposal to maintain the historic ice cream/soda fountain use preserves a nationally registered historical landmark dating back to the 18th century consistent with the Town’s Plan of Conservation & Development.

2.      The addition of limited deli style food preparation is consistent with neighboring adjacent bed and breakfast uses which prepare limited meals on site. The Applicant has identified that the proposed addition of cooking will not be detrimental to the mixed use character of this section of Main Street which includes residences, bed and breakfasts, churches and an animal feed store located all within a quarter mile of the property and all within the Residence A Zoning District.

3.      Main Street is a destination with churches, business and a theater where people customarily walk, bike or park and walk down Main Street.  The 10 parking spaces located off site on State Property have been historically been used to support the businesses on this property. The total of on-site and off site parking spaces is in compliance with the amount of parking required for this mixed use site. The Board has determined that the addition of limited food preparation will not increase traffic to the property and instead provide existing customers with an alternative choice to ice cream or pre-packaged foods.

Hardship/Reasons For Approval

1.      The commercial uses on the property have pre-dated the implementation of the Old Saybrook Zoning Regulations in 1947. Literal enforcement of the Residence A Zoning District regulations would prohibit the retail, food preparation and soda fountain uses resulting in the loss of an historic use that is a landmark in the community. The addition of food preparation is a minor amendment to the existing uses and is being strictly conditioned to protect neighboring residential property and preserve property values.

2.      The Commission feels that by granting this variance the property will be able to retain it’s status as a historic commercial use and is consistent with the properties designation as a registered National Historic Landmark.

3.      Testimony placed into the record by the public revealed that food has been served to regular customers on the property in the past and no apparent problems  or violations resulted from this activity.

4.      Variance 84-26 was approved on April 11, 1984 to re-establish a traditional pharmacy with the historic soda fountain ice cream use.  The 1984 variance stipulated that “the pharmacy must be kept traditional with a licensed pharmacist and no more than two additional employees.”  

The property was sold and the new property owner returned to the Board and was granted Variance #95/96-26 for an art gallery, gift shop and soda fountain. The 1996 variance stipulated that “any change or expansion of the premises other than the use of an art gallery, gift shop and the traditional soda fountain would require a new application before the Commission.
        
The property was sold again and the next property owner applied for Variance 00/01-11 for as soda fountain/coffee house, art gallery and to allow for a bed and breakfast use to be located on the property without being owner occupied.  During the deliberations the Board discussed the Town Sanitarian’s report that “no expansion of food service (cooking)” would be permitted by the Health Department.  Some of the reasons listed for hardship for the granting of the 2000 variance included: “the size of the lot; the location; that this situation is unique and the property is considered to be a historical landmark; it is the only B&B in the area that can survive in such a small area and it also seems to be one of the few uses that would be able to maintain the particular property as a viable enterprise. Also the parking area currently used, owned by the State and leased by the Town, is in a sense added to the square footage of the lot for that use.”

The original variance granted in 1996 has proven to be unduly restrictive for a predominately seasonal use and as such would have resulted in the request for additional variances to allow for the historic 18th century commercial use to adapt to the 21st century.    

The proposed addition of limited food preparation set forth in the variance application is reasonable and consistent with the historic commercial use of the property.  The Board particularly takes note in the meeting minutes during the deliberations of the 2000 variance that the Town Sanitarian’s letter that was included in the public hearing testimony stated “no expansion of food service (no cooking).”  This was testimony into the record for which the applicant did not object to and was not a condition that the Board imposed in the motion to approve the variance.  The current application proposes limited cooking and includes an approval from the CT River Area Health District from Wendy Arnold, Licensed Sanitarian dated, December 7, 2009. The Board feels that limited cooking in addition to ice cream will not be detrimental to the neighborhood and will allow the historic property to maintain it’s commercial viability when ice cream sales are not at their peak (ie: mornings and winter time).

Discussion: Attorney Cronin stated that staff had prepared both a motion to grant and a motion to deny and asked that the motion to deny be read into the record.  It is as follows:

                Motion to DENY the application of James Gallery & Soda Fountain, LLC, (owner), Tissa’s Country Market (applicant) for variances of Section 24.2 Special Exception Uses and Section 62.3 (parking on site/to allow credit for offsite parking) of the Zoning Regulations to allow continuation of the historic ice cream and soda fountain while adding deli-style food preparation and food service while maintaining retail sales on the pharmacy side of the property locate at 2 Pennywise Lane, Map 30, Lot 3 for the following reasons:

                The previous approvals for this property limit food service items to the sale of ice cream, coffee, tea and beverages.   Retail sales have been previously permitted on the site and have included items such as sales of art, pottery and pre-prepared/packaged food items prepared off site such as cookies and candy.  The ZBA strictly conditioned the variance to protect neighboring residential properties from affects relating to the growth and expansion of this non-conforming commercial business that could potentially affect the neighborhood and property values.

                The proposed variances increase non-conformities in direct violation of the intent of the Zoning Regulations specifically sections 2.1 and 10.

                The on-site parking for the property is insufficient to accommodate the uses on the property. The applicant and the Town of Old Saybrook who leases the ten spaces located on State Property in front of the business do not have an express agreement allowing for 2 Pennywise Lane to park.  At any time the Town could remove or enforce the unpermitted business parking resulting in the use of the on-site parking only which does not meet the Zoning Regulations.

                The applicant has failed to provide sufficient information regarding traffic or a traffic study to demonstrate the impacts of the expansion of this non-conforming use.   The ZBA is particularly concerned with potential public safety issues resulting from increased traffic due in an area known for high amounts of pedestrians and bicycle traffic.

                The application and testimony at the public hearing indicated that the need to add food preparation was necessary due to the seasonal nature of the ice cream business and to maintain the economic viability of the existing use on the property.   This reasoning is strictly financial and is not a legitimate hardship.

                The applicant, Tissa’s Country Market, LLC., operated a food service business in a business zone in Old Saybrook.  The applicant chose to relocate and lease space at 2 Pennywise Lane in a residence zone fully knowing that food preparation was not permitted.  The applicant’s knowledge that food service is not permitted on this site makes the hardship self-created.  

C. Gosselin asked about the hours of operation and if they had been noted in the motion to grant.  The were not and the motion is amended to add item number 15 to include hours.  C. Gosselin also asked if the conditions imposed were enforceable.  The Zoning Enforcement Officer stated that yes the were.  C. Gosselin asked if parking was adequate.  The Zoning Enforcement Officer stated yes, it was.  The site meets the parking requirements for restaurants and this site has more parking than the restaurants along Main Street which only can count the spaces outside the building along the street.  He also believed that this site needed a substantial business to sustain the historic ice cream shop.  B. Dooley stated that his feelings on this application have not changed, he stated that this is an intensification of the use and that there are parking and safety issues.  He also feels a hardship has not bee shown.  K. Johnson stated that there will be no structural changes, possibly on a vent.  R. McCall stated that Old
Saybrook is a seasonal town.  No further discussion and a vote was taken: In favor: R. McCall, C. Gosselin, M. Kennedy, K. Johnson   Opposed:  B. Dooley  Abstaining: None   The motion passed.  4-1-0

09/10-21 C – Between the Bridges, LLC seeks a variance of Section 3.4 (Compliance), Section 5.1 (General Standards), Section 5.3.2 (non-residential construction) and Section 5.3.3 (fully enclosed areas below base flood elevation) of the Flood Plain Ordinance (base flood elevations 6.5' as to bathrooms, 6.2' as to new building and 4.2' as to existing building) to permit additions and new construction on property located at 142 Ferry Road, Map No. 45,  Lot Nos. 29 & 29-1.

Mary Kennedy recused herself from this application.

Seated for this application were D. Alexander, R. McCall, C. Gosselin, B. Dooley, K. Johnson

Discussion with respect to the public hearing that closed this evening.  B. Dooly had a hardship with putting showers, sinks, bathrooms and utility room below the flood elevation.  He feels there is a different way to redesign this project.  Elevators are now more cost efficient and provide another access to the bathrooms which are up about 28 stairs from the ground level.  Geoff Jacobson, the Town’s engineer in a letter dated May 12, 2010, referring to the bathrooms,  “recommended that this variance be denied”.  The Board did not have a problem with granting the variances for the marine commercial building.  The Board also discussed the issue of an increase in the Town’s Flood Insurance.  

A Motion was made by B. Dooley, seconded by D. Alexander to GRANT the variances required to allow the Commercial Building and the hardship is that the operations of the marina rely on that facility to be on that grade so that the travel lift can carry the boats in safely and to enhance the traffic patter and the safety on the site.  The Conditions are listed in Geoff Jacobson’s letter dated May 12, 2010 on page 2, item number 2 referring to MC3 building which are listed on pages 2, 3 and 4 (a copy of said letter attached to the minutes). No further discussion and a vote was taken:  In favor:  R. McCall, D. Alexander, B. Dooley, C. Gosselin, K. Johnson  Opposed:  None  Abstaining:  None  The motion passed unanimously.  5-0-0

A Motion was made by D. Alexander, seconded by B. Dooley to DENY the variances required to construct new men and women’s bath and shower area and utility room at grade for the reasons set forth in Geoff Jacobson’s letter dated May 12, 2010 on page 1 and 2, listed as item number 1 referring to Bathrooms.  No further discussion and a vote was taken:  In favor:  R. McCall, D. Alexander, C. Gosselin, K. Johnson  Opposed:  C. Gosselin  Abstaining:  None  The Motion passed.  4-1-0        Originally R. McCall misunderstood the motion being made and voted in opposition, after review of the motion, his vote changed to in favor.

A Motion was made by R. McCall, seconded by K. Johnson to GRANT the Coastal Area Management Application accompanying variance application 09/10-21 C – Between the Bridges, LLC for the Commercial Building only.  No further discussion and a vote was taken:  In favor:  R. McCall, D. Alexander, B. Dooley, C. Gosselin, K. Johnson  Opposed:  None  Abstaining:  None  The Motion passed unanimously.  5-0-0        

09/10-27 CB BFPM, Inc. seeks a variance of Section 3.4 (Compliance), Section 5.1 (General Standards), Section 5.3.2 (non-residential construction) and Section 5.3.3 (requesting variance of 2 feet of the base flood elevation) of the Flood Plain Ordinance to permit construction of new building for use as winter storage and summer service of boats; building to be wet flood proofed and the existing shed to be removed on property located at 29 Essex Road, Map No. 59, Lot Nos. 82 & 83.
        
        B. Dooley recused himself from this public hearing.  

        Discussion with respect to the public hearing that closed this evening.    

        A Motion was made by R. McCall, seconded by C. Gosselin to GRANT Application No. 09/10-27 C – BFPM, Inc. For the structure to be built two (2) feet below the base flood elevation with the conditions listed in a letter dated May 12, 2010 from Geoff Jacobson, the Town’s Engineer with the exception of the condition of “means must be provided to adequately secure any boats located within these structures . . .”. (copy attached to the minutes)  To construct the building conform to the base flood elevation would constitute an exceptional hardship and the circumstances meet all variance criteria.  No further discussion and a vote was taken:  In favor:  R. McCall, D. Alexander, C. Gosselin, K. Johnson, M. Kennedy  Opposed:  None  Abstaining:  None  The Motion passed unanimously.  5-0-0        

        A Motion was made by R. McCall, seconded by C. Gosselin to GRANT the Coastal Area Management Application accompanying variance application 09/10-27C – BFPM, Inc. for the Commercial Building only.  No further discussion and a vote was taken:  In favor:  R. McCall, D. Alexander, C. Gosselin, K. Johnson, M. Kennedy  Opposed:  None  Abstaining:  None  The Motion passed unanimously.  5-0-0        

09/10-28 C – Estate of Frank J. Mattoni seeks a variance of Par. 10.7.1 (nonconformity), Par. 10.8.2 and Par. 10.8.4 (nonconformity/lots) and Par. 68.1.2.b8 (tidal wetland setback/50' required/22.4' proposed) of the Zoning Regulations to permit an addition of 67 square feet to the rear of the dwelling for a deck on property located at 15 Buckingham Avenue, Map No. 14,  Lot Nos. 116/117.
        
        K. Johnson, left the meeting.

        Discussion with respect to the public hearing that closed this evening.  R. McCall stated that he doesn’t feel that the raised deck impacts the wetlands, since it is such a small deck and need for egress from the house.  

                A Motion was made by R. McCall, seconded by C. Gosselin to GRANT Application No. 09/10-28C – Estate of Frank J. Mattoni.  To add the 67 square foot deck to the rear of the dwelling which will put it approximately 38’ from the wetlands boundary.  The raised deck does not pose a threat to the wetlands.  The hardship is that the house was constructed with a rear door which represents a hazard without some way of egress.  The CAM application is also approved.   No further discussion and a vote was taken:  In favor:  R. McCall, D. Alexander, C. Gosselin, B. Dooley, M. Kennedy  Opposed:  None  Abstaining:  None  The Motion passed unanimously.  5-0-0        

09/10-29 C – Ed and JoAnn Eaccarino seek a variance of Par. 10.7.1 (nonconformity), Par. 10.8.2,  Par. 10.8.3 (nonconformity/lots and area), Par. 24.5.1 as modified by Par. 68.1.2 B4 (setback – narrow street setback/30 ft. required/24.6' to street line), Par. 24.5.2 (rear setback/ 15' required/12.4' to rear property line/11.2' existing), Par. 24.6.2 (maximum bldg./structure coverage/ 20% required/22.9% proposed) and Par. 24.3.4 (minimum width along bldg. line/ 100' required/75' proposed) of the Zoning Regulations to permit demolition of existing structure and construct new 2 story, 3 bedroom year-round dwelling on existing foundation.  Also construct one car attached garage, shed to be removed and new sun porch to be smaller than existing porch on property located at 15 Old Colony Road, Map No. 3,  Lot No. 256.

        Discussion with respect to the public hearing that closed this evening.  The hardship is the corner lot and the narrow street setback.  The Board discussed at length change the size of the garage to conform more with the setback.  The shed is being removed and the applicants had wanted extra garage space for storage of the lawn mower and snow blower.  

                A Motion was made by C. Gosselin, seconded by M. Kennedy to GRANT Application No. 09/10-29C – Ed and JoAnn Eaccarino.  The applicant has agreed to make the garage 14.5’ x 30’ , the project is in harmony with the neighborhood.  The hardship is the corner lot and the size of the lot.  There have been reductions in the nonconformities by reducing the size of the garage and the sunporch by and removing the shed.  The CAM application is also approved.  Discussion: B. Dooley wanted as part of the motion to state that there will be no habitable space on the second floor of the garage.  No further discussion and a vote was taken:  In favor:  R. McCall, D. Alexander, C. Gosselin, B. Dooley, M. Kennedy  Opposed:  None  Abstaining:  None  The Motion passed unanimously.  5-0-0        

Minutes:   A Motion was made by R. McCall, seconded by M. Kennedy to approve the Minutes of the April 14, 2010 Regular Meeting with the following correction: D. Alexander did not recuse herself, she
was “removed from the Tissa’s hearing as part of the Court agreement”.  No further discussion and a vote was taken:  In favor: D. Alexander, R. McCall, B. Dooley, C. Gosselin, M. Kennedy Opposed:  None
Abstaining: None   The motion passed unanimously. 5-0-0

Adjournment:  A Motion was made by R. McCall, seconded by M. Kennedy to adjourn the May 12, 2010 Regular Meeting of the Zoning Board of Appeals. No discussion and a vote was taken:  In favor: R.
McCall, D. Alexander, C. Gosselin,  B. Dooley, M. Kennedy    Opposed:  None   Abstaining: None   The motion passed unanimously. 5-0-0  The  meeting was adjourned at 12:30 a.m.

The next Regular Meeting of the ZBA will be on Wednesday, June 9, 2010 at 7:30 p.m. at the TOWN HALL, First Floor Conference Room, 302 Main Street.


Rexford McCall, Chairman        
Old Saybrook Zoning Board of Appeals
Old Saybrook, Connecticut  06475