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MINUTES
Town of Old Saybrook
Zoning Board of Appeals
NOTICE IS HEREBY GIVEN that the Zoning Board of Appeals of the Town of Old Saybrook at its Special Meeting that was held on Wednesday, July 29, 2015 at 7:00 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, Philip Broadhurst, Alan Spargo and Carl VonDassel, Jr., alternate
Present: Michael Cronin, Esquire, attorney for the ZBA and Kim Barrows, Clerk
Absent: Robert McIntyre
The meeting was then called to order at 7:00 p.m. The following public hearings were conducted, as well as the decision making sessions. The meeting has been recorded 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.
14/15-36(a) Kevin & Colleen Shay appeal of the Zoning Enforcement Officer’s response to the Application for Certificate of Zoning Compliance 15-068 dated April 29, 2015 for property located at 23 Otter Cove Dr. (aka 11 Azalea Way), Map No. 64/Lot No. 14 Residence AA-3 District, Coastal Area Management Zone, CT River Gateway Conservation Zone.
PUBLIC HEARING:
Present: Robert Reardon, Esquire, attorney for the applicants and Mr. & Mrs. Shay, applicants
Christina Costa, Zoning Enforcement Officer and Mark Branse, attorney for the ZEO
Attorney Reardon began his presentation by introducing his clients. He asked for civility amongst those in attendance in the hallways and the parking lot. He stated for the record that he was unclear as to which entity Attorney Cronan from Guilford represented, either Otter Cove Association and/or District of Otter Cove. A letter dated July 22, 2015 from Thomas Cronan stated “Our office represents the Otter Cove Association which owns multiple properties within the Otter Cove District, . . .” The four page letter states the “. . .the primary purpose of this letter is to place before the Board certain legal principles about which the Board is undoubtedly already aware but which I and my client believe might inform and guide the Board as it considers this application.” [the letter is part of the
record in the file] Attorney Reardon also stated for the record an Old Saybrook Court Case wherein he represented the drowning victim at Saybrook Point Park and he asked if there were any conflicts of interest the Board members may have pertaining to that case. The Board did not have any conflicts. Attorney Cronin stated that a family member was on Park and Rec at the time but he, Attorney Cronin, does not have a conflict either. Attorney Reardon then passed out a 3-ring binder containing 18 exhibits. [3-binder in file] Attorney Reardon then proceeded to go over each of the 18 “tabs” in the binder.
Attorney Reardon then proceeded to give the history of the vacant lot which was believed to be 4.2 acres in size which could then be split into two conforming 2 acre lots, one for Mr. & Mrs. Reardon and one for Mr. & Mrs. Shay. After having the property surveyed, the second lot ended up being only 3.98 acres. Attorney Reardon was informed by the ZEO that he would have to get a variance for the lot size. Attorney Reardon went over lot size and a “builders” acre which was believed to be 40,000 s.f. when the lots were created in 1962. Attorney Reardon then discussed his conversations with Ms. Costa the Zoning Enforcement Officer with respect to the 40,000 s.f. lot size (AA-1 Zone) and the creation of an AA-3 zone in 1984 with a two acre requirement for “Otter Cove Estates”.
[Refer to appeal of ZEO application in file] Exhibits B – G [paper copies are to be submitted for the file] are surveys of the boundary, a site plan showing pie shaped area on it, Mrs. Cunnigham’s 2004 survey, a survey showing the suggesting of buying land from Mr. Grossman, Exhibit F shows the 4’ difference that is necessary and Exhibit G shows proposal for both lots, the one with the Shay house and the proposed Reardon house. Discussion ensued on how there were errors in all of the original surveys prepared by Rudolph Kunhardt.
Attorney Reardon claims that the ZEO failed to advise the applicant in 2013 that legally the subject lot was zoned with a minimum lot size of 40,000 s.f. (AA-1 zone) according to the Old Saybrook Zoning Regulations in effect on October 16, 1962 when this subdivision was approved by the Planning Commission and the requirements of that zone must be applied to the subject lot. A variance application was submitted but subsequently withdrawn.
Attorney Mark Branse, the counsel for the Zoning Enforcement Officer Chris Costa stated that Attorney Reardon said that the conduct of the Zoning Enforcement Officer prevented them from seeking a re-subdivision. Attorney Reardon could have gone to the Planning Commission, but Attorney Reardon was told that it was a waste of time. According to Attorney Branse that is still her [the ZEO’s] opinion that a variance is needed and she is correct. Discussion of “municipal estoppel” is lack of the ability to learn the truth of things whatever that truth may be, this was brought up by Attorney Reardon, but Attorney Branse claims there is no basis for it and it is not within the ZBA’s jurisdiction.
Attorney Branse stated that the Board knows there are two separate sets of powers in the statutes there is the zoning power and the planning power. The zoning power governs how you can use the property, i.e. single family or two family, minimum lot size, setbacks, lot cover, height ect. It is exercised by the Zoning Commission, enforced by the Zoning Enforcement Officer and appealable to the Zoning Board of Appeals. Then there is the planning power, the ability to approve building lots. There is no dispute here that this would be a re-subdivision, it is the division of a subdivision lot into two, it has to go to the Planning Commission. The ZEO is not the Planning Enforcement Officer, she has no authority over planning matters. The planning Statutes, C.G.S.A. §8-26, which are not
appealable to the ZBA say “. . . noting in this section shall be deemed to authorize the commission to approve any such subdivision or re-subdivision which conflicts with applicable zoning regulations.” If this application did go to the Planning Commission it could not have been approved since it does not meet the “current” zoning regulations. Ms. Costa can’t change the statutes or the outcome of the Planning Commission. What Mr. Reardon is relying on, CGS §8-26a – “Any construction on a vacant lot shown on a subdivision or re-subdivision plan approved before, on or after June 1, 2004, shall not be required to conform to a change in the zoning regulations or boundaries of zoning districts in a town, city or borough adopted after the approval of the subdivision or re-subdivision. . .”
The subject lot, as depicted on Exhibit G, which shows the division of the two lots and a proposed house on one lot, that is the lot governed and protected by Statute §8-26a. It says no construction on that lot, the 3.98 acre lot shall be required to conform to current zoning. So when that house was built as to its setbacks, height, etc., it was to be governed by the zoning in force at the time the subdivision was approved in 1962. The argument made by Attorney Reardon is that the zone change never happened and that he can divide the parcel and create a new lot that does not comply with current zoning. But this is not what the Section says.
The advice that Ms. Costa gave was good and correct and right.
The Chairman opened the meeting for comments from the audience. Some audience members stated that they were in attendance so that they could hear the variance application. Donna Mingrone and Bev Keeney both from Otter Cove asked questions about the division of property and the applicants could not do it as well since several lots have been divided and not all are the strict 2 acres.
Attorney Mark Branse stated that the Zoning Enforcement Officer Chris Costa consistently stated that you can’t create a new lot that doesn’t comply with zoning. Attorney Reardon cited a Supreme Court case Levine vs. Town of Sterling and Attorney Branse had a different interpretation of that case and read it into the record. The case states four units on a lot that can’t be sold individually.
The Chairman closed the public hearing at 9:25 p.m.
VOTING SESSION:
The public hearing closed this evening. With the amount of testimony and documents submitted at the meeting, the Board deferred making a decision at this meeting and scheduled a Special Meeting for Wednesday, August 5, 2015 at 7:00 p.m. in the First Floor Conference Room.
A Motion was made by R. McCall, seconded by D. Alexander to DEFER the decision on Application 14/15-36(a) – Kevin & Colleen Shay for the appeal of the Zoning Enforcement Officer’s response to the Application for Certificate of Zoning Compliance 15-068 dated April 29, 2015 to a Special Meeting to be held on August 5, 2015 at 7:00 p.m. in the First Floor Conference Room, Town Hall, 302 Main Street, Old Saybrook. No discussion and a vote was taken: In favor: R. McCall, D. Alexander, P. Broadhurst, A. Spargo, C. VonDassel Opposed: None Abstaining: None The Motion passed unanimously 5-0-0
14/15-35 – Kevin & Colleen Shay seek a variance of Par. 26.3.1(minimum lot area/87,120 s.f. required/86,275.11 s.f. proposed) of the Zoning Regulations to permit subdivision of 173,401.22 s.f. (3.98 acres) to two building lots of 87,126.11 s.f. (2 acres) and 86,275.11 s.f. (1.98 acres) on property located at 23 Otter Cove Drive (aka 11 Azaela Way) , Map No. 64, Lot No. 14, Residence AA-3 District, Coastal Area Management Zone, CT River Gateway Conservation Zone.
Since the Zoning Board of Appeals deferred the decision on the appeal of the Zoning Enforcement Officer’s response to the Application for Certificate of Zoning Compliance 15-068 dated April 29, 2015 for property located at 23 Otter Cove Dr. (aka 11 Azalea Way) to a Special Meeting on August 5th, the ZBA opened the public hearing this evening for the variance application but took no testimony and then continued it to a Special Meeting to be held on August 19, 2015 at 7:00 p.m. in the First Floor Conference Room, Town Hall, 302 Main Street.
A Motion was made by R. McCall, seconded by A. Spargo to CONTINUE the public hearing on Application 14/15-35 – Kevin & Colleen Shay to a Special Meeting to be held on August 19, 2015 at 7:00 p.m. in the First Floor Conference Room, Town Hall, 302 Main Street. No discussion and a vote was taken: In favor: R. McCall, D. Alexander, P. Broadhurst, A. Spargo, C. VonDassel Opposed: None Abstaining: None The Motion passed unanimously 5-0-0
Adjournment: A Motion was made by R. McCall, seconded by A. Spargo to adjourn the July 29, 2015 Special Meeting of the Zoning Board of Appeals. No discussion and a vote was taken: In favor: R. McCall, D. Alexander, P. Broadhurst, A. Spargo, C. VonDassel Opposed: None Abstaining: None The motion passed unanimously. 5-0-0 The meeting was adjourned at 9:30 p.m.
Respectfully submitted,
/s/ Kim N. Barrows
Kim N. Barrows, Recording Clerk
NEXT REGULAR MEETING OF THE ZONING BOARD OF APPEALS IS WEDNESDAY, AUGUST 12, 2015, 7:00 p.m., FIRST FLOOR CONFERENCE ROOM, 302 MAIN STREET, OLD SAYBROOK
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