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MOTIONS/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, August 5, 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.
VOTING SESSION:
The public hearing closed on July 29, 2015 but the deliberations/decision was deferred due to the amount of testimony and documents submitted at that meeting.
The Chairman opened the meeting. Attorney Cronin began the presentation by stating that the Board heard Attorney Reardon, the appellant’s attorney and Attorney Branse, attorney for the Zoning Enforcement Officer make their arguments on behalf of their clients on July 29, 2015. Attorney Cronin stated to the Board that this was a legal issue and that there is no discretion by the Board. The Board can heed the legal testimony previously heard, they could also accept or reject his advice to the Board or the Board could take the advice of other counsel.
The Board asked its counsel, Michael Cronin to break down the information provided at the meeting on July 29th. Attorney Cronin asked the Board if they reviewed the materials presented at the meeting and also if they read the minutes from that meeting which outlined the proceedings. The Board members stated that yes they did and appreciated Attorney Cronin’s help in breaking it all down. Attorney Cronin then stated that the significant facts are that this lot is shown on a subdivision map which was approved by the Planning Commission on October 16, 1962 known as the Kunhardt Subdivision and is shown as Lot No. 30 on that map, the lot is shown to be 3.98 acres. That is 43,560 s.f. per acre not a real estate acre, it is based on a survey submitted by the applicant. The zoning at that
time [1962] required lots to have 40,000 s.f. in area. If that lot was subdivided at that time it could have been split into 4 individual lots. At the time of the approval it was shown as one lot. There was a zone change in 1990 to require a two acre minimum for each lot, a traditional acre of 43,560 s.f. [Refer to the Exhibits in the record] In order to divide this lot in two the second lot fell short by 871 s.f. of the two acres required. Attorney Cronin then went over the history of how the applicant in 2013 started the process of dividing the land and building two houses one on each lot. The applicant felt that he was misled by the Zoning Enforcement Officer. Applicant then went on to build one house on the lot [the 3.98 acre lot which would one day be subdivided]. The applicant feels that the 1962 regulations should still apply to the “second” lot. The Zoning Enforcement Officer disagreed. Attorney Cronin then
went on to explain the Connecticut General Statute §8-26a applicability. He also explained what an improved lot was, which is a lot with a dwelling on it. Any relief from this Section does not apply. Attorney Cronin submitted a copy of that Statute. This is where the claim of municipal estoppel comes into play because if the applicant new about §8-26a, he would have gone to the Planning Commission for a re-subdivision. Attorney Cronin referred to Porier vs. Town of Wilton where a house was originally built when the subdivision was created, the regulations changed over the years and then years later the homeowner wanted to build a garage. That garage had to conform to the current zoning regulations for that town. Also discussed was a case FBIC, Inc. v. Ansonia Planning and Zoning Commission dated August 26, 1991[FBIC, Inc. v. Ansonia PZC, 082691 CTSUP, CV91 03 52 81S]. Also submitted to the Board was a copy of §53.5 of the CT Gen
Statutes regarding Subdivisions. D. Alexander felt that Attorney Cronin’s comments made it easier to understand. R. McCall stated that there were actual court cases to uphold decision.
Based on all of the information provided previously and discussed this evening, Attorney Cronin read a motion he prepared to the Board based on all the facts he presented. As stated in the beginning of the meeting, the Board could decide, based on all the testimony for all parties, on how it wanted to vote. The Chairman and others considered the motion and felt that was the motion they would go with.
A Motion was made by R. McCall, seconded by A. Spargo for 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 as follows:
Therefore it is so moved:
That the application of Kevin M. Shay and Colleen B. Shay regarding an appeal from the actions of Zoning Enforcement Officer, Christina Coast, be denied for the following reasons:
1. The lot owned by the applicants, known as 23 Otter Cove Drive/11 Azalea Way, being Lot #30, and being 3.98 acres in area, is shown on a subdivision map approved as a subdivision by the Old Saybrook Planning Commission on October 16, 1962. The applicants have recently constructed a single-family dwelling house on the lot and have occupied it as a personal residence by them. Under the provisions of Section 8-26a of the General Statues of Connecticut, this lot is not a vacant lot. Because of this, under the express provisions of subsection b(2)(A), any further construction on this lot is required to conform to the provisions of the present zoning regulations of the Town, and is not entitled to the special exemptions from requirements allowed vacant
lots under the provisions of said section.
2. The present zoning regulations of the Town of Old Saybrook require for an area for each lot to be two acres (87,120 s.f.). Since the said Lot #30 is 3.98 acres, it is obvious that the property cannot be subdivided in a manner which would allow each lot to have the minimum area of two acres. Christina Costa, the Zoning Enforcement Officer, during numerous dealings with the applicants and their attorney, maintained that no zoning approval for a second dwelling house on Lot #30 was possible unless and until a variance for the lot area was approved by the Zoning Board of Appeals of the Town of Old Saybrook, and thereafter an application for a re-subdivision was made to and approved by the Old Saybrook Planning Commission. She stated that any such
re-subdivision of the subject property would be required to conform to the current Zoning Regulations and Planning Commission Regulations. We find that Christina Costa, Zoning Enforcement Officer, was legally correct in interpreting the zoning regulations, planning regulations and the provisions of Section 8-26a of the Connecticut General Statutes as applied to this property. (This decision is supported by the ruling in the case of FBIC, Inc. v. Ansonia Planning & Zoning Commission, et al, CV91 03 52 81S, and cases cited therein, especially Corsino v. Glover, 148 Conn. 299).
3. Because of our finding in the preceding paragraph, we find it unnecessary to address the issue raised by the applicants regarding misrepresentation and estoppels against Christina Costa because under all circumstances of the case, and the record before us, this claim has no merit. Also, it is legally questionable as to whether or not this Zoning Board of Appeals has any authority or power to grant the equitable relief requested by the applicants.
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 August 5, 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 8:00 p.m.
Respectfully submitted,
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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