Skip Navigation
This table is used for column layout.
Zoning Board of Appeals Minutes 02/19/2019
ZONING BOARD OF APPEALS –~REGULAR MEETING
TUESDAY, Feb 19, 2019 -~7:00 P.M.
Mezzanine Conf. Room, MEMORIAL TOWN HALL,
52 LYME STREET, OLD LYME, CT

  • Meeting called to order at 7:00 PM
  • Roll Call
Present:~Nancy Hutchinson (Chair), Kip Kotzan (Vice Chair), Marisa Hartmann (Secretary), Dan Montano, and Alternates Stephanie Mickle, Tom Schellens and Steve Dix.

Seated:  N. Hutchinson, K. Kotzan, M. Hartmann, D. Montano, and S. Mickle.

Also Present:  Sylvia Rutkowska, ZBA Attorney

  • Public Hearings:  None
  • Continued Public Hearing
Case 19-01C – Ralph DiCristofaro/Hartung, LLC, 11/11A Hartung Place,~requests variances to allow the existing structure to become FEMA compliant.

Ms. Hutchinson introduced continuing Case 19-01C and noted that because the Board is likely to review lots of FEMA compliance cases and the case law is evolving, she had asked the ZBA Attorney, Sylvia Rutkowska, to provide the Board some guidance on what the Board should consider as it asks questions and reviews a FEMA compliance variance application.  A letter to the Board was prepared by Attorney Rutkowska, dated Feb 19, 2019, regarding “Considerations in reviewing a FEMA-related variance Application”.  Hardcopies were provided to all Board members and the applicant’s representative.  

Ms. Rutkowska then walked through the letter, which provided a set of overall considerations, plus additional detail in three areas:  A. Affect on comprehensive plan; B. “Traditional” Hardship; and C. Reductions of Pre-existing Legal Non-conformities.  She noted that with Old Lyme being on the shoreline the Board is likely to review more FEMA-related variance applications, similar to other towns in the area, and noted that there are areas where the law is somewhat developing.  When there are potentially conflicting considerations, it is up to the Board to decide how to balance them.  She recommended the Board take a methodical approach to performing that analysis, taking into consideration the totality of the application and the totality of the regulations.  She stated that, at this point, case law is clearer in situations that involve a reduction in legal non-conformity; however, there are currently two cases on appeal at either the appellate court or supreme court, which may change the guidance she has just given; she will provide the Board an update if the guidance changes.   

With Attorney Rutkowska approval, Ms. Hutchinson shared a one-page summary of the FEMA-related variance application considerations from the letter with Board members and applicant, to help guide the discussion of the considerations for a FEMA-related variance application.

Alexa Ashton from Point One Architects provided an update on Case 19-01C.   She provided both copies of plans submitted on Jan 15th, as well as revised plans dated Feb 19th, which she will describe today.  In reviewing the existing plot plan, she noted that the lot is non-conforming and the structures are also non-conforming in almost every way, including setbacks and coverage.  Ms. Hutchinson noted that there appear to be some errors and omissions on the Zoning Data table on the plans, and also asked for clarification on the number of dwellings, specifically whether one of the two structures is a 2-family dwelling.  Ms. Aston confirmed that there are three dwellings on the property, as one of the two structures is a 2-family dwelling, which is a non-conforming use in the R-10 district, and that the applicants intend to maintain that non-conforming use.  Ms. Hutchinson asked that the Zoning Data table be updated and corrected, including reflecting that the lot does not meet the minimum 75’ square and the minimum area for 3-dwellings is 30,000 sqft (10,000 per dwelling).   The Boarded noted this is important in documenting existing legal non-conformities.

Ms. Ashton described the revised plans, and how they differed from those presented in January.  In summary, they have reduced existing non-conformities with respect to setbacks by moving structure 11A away from the front property line, and rotating the building slightly to reduce the existing non-conformities for front setback and both side setbacks as best they can.  No changes are planned to elevating structure 11 in place.  Ms. Hutchinson asked about the proposal discussed in January about potentially combining the landing and stairways for both elevated structures.  Ms. Ashton said that they were advised by Land Use Attorneys that connecting the two structures in that manner could be viewed as expanding a non-conforming use if it was viewed as creating a 3-family structure, so was not recommended.

Ms. Hutchinson asked if it were possible to have the stairways under the house, to avoid an increase in coverage.  Ms. Ashton noted that the concerns were ensuring there is enough headspace for the stairs and the potential reduction in living space.  Mr. Kotzan asked what was the square footage of the living space, and whether inclusion of internal stairs would create additional non-conformity by reducing, or further reducing, the living space beyond the minimum required.  In reviewing the square footage of each structure, it was determined that establishing the new stairway underneath was likely to increase this non-conformity, particularly for structure 11.   In discussion of where else the new stairs could possibly go, to minimize any increase in non-conformity, concerns were raised about encroaching in the area of the septic, the driveway access to 11A, or adequate headroom, etc.  In response to a question about reduction in setback non-conformity by Ms. Mickle, Ms Ashton noted that although the front set back non-conformity is decreased by only 1 foot on one corner of 11A, because of the rotation of the building the non-conformity is reduced by 4-5 feet at the other corner.

In response to a question about how this will impact the neighborhood, Ms. Ashton responded that raising structures to meet FEMA compliance is something that is already starting to happen in the neighborhood, and will likely be happening more and more; this project is just at an early point in a trend that will benefit the neighborhood.  When asked if there were reasonable way the applicant could address the concern expressed by a neighbor at the January meeting about revising the roof-line to reduce the shading of his property, Ms. Ashton noted that they are not planning any exterior changes to the existing structures that are being raised, with internal renovations only.

Mr. Montano summarized his understanding that the proposed increases in non-conformity are the minimum needed to raise the structures, that there is no other way to add the necessary stairs and landings to access the first floors, and that there are plans to reduce other pre-existing legal non-conformities.  Ms. Ashton agreed.

During a discussion of the number of bedrooms existing and proposed, Ms. Ashton agreed that the proposal for 3 and 4 bedrooms for the two structures, is no change in the number of legal bedrooms.  Ms. Hutchinson pointed out that the prior existence of 5-bedrooms in each structure was an illegal use so cannot be considered as a reduction in a legal pre-existing non-conformity.  

Ms. Mickle asked about any potential changes to the septic system, and following discussion about the documentation submitted with the variance application, the Board raised some question as to whether the documentation the Board received with the variance application adequately demonstrated Health Department approval, particularly in light of the CT-DEEP comment on the septic system in their response to Coastal Site Review Plan Application.  This would help ensure that everyone is on the same page.  Ms. Ashton understood the concern and said this could be addressed.  

In response to questions as to whether any other existing non-conformities could be reduced, it was discussed that it was not possible to move structure 11 without increasing other non-conformities, and that the applicants did not want to eliminate the 2-family use of structure 11.  Ms. Hutchinson also noted the benefit of the elevation of the structures allowing under structure parking, which is a significant improvement of off-street parking for the property.  Mr. Kotzan also asked for confirmation that there will be no increase in impervious surfaces for driveway and parking, and Ms. Ashton confirmed that it would remain sand, as it is now.  

In discussion as to whether the FEMA related changes are the minimum required, the question was asked whether the height is the minimum also.  Ms. Ashton summarized that the FEMA base flood elevation is 13 ft, the Old Lyme regulations state the structure needs to be 1 foot above that, and that the 2.5 feet between the minimum 14-foot elevation and the top of the finished first floor at 16.5-foot elevation is the minimum to support base-floor structure (>18 inches) and mechanicals.  Mr. Kotzan and Ms. Mickle asked about the need for mechanicals underneath the structure.  Mr. DiCristofaro, the owner, noted the importance of including central air on the first floor, which needs to be underneath the structure.  

Ms. Hutchinson opened the public hearing to public comment; no one from the public came forward.   Attorney Rutkowska asked for clarification as to whether there will be heat added when the central air is added, and Ms. Ashton responded that the addition of heat is not anticipated, as it is not allowed by the Health Department as these can only be seasonal dwellings.  Mr. Dix asked for confirmation that baseboard heat will also not be added, and Ms. Ashton said that is was not anticipated.  Ms. Mickle asked if there were plans for this to be a rental income property; the owner, Mr. DiCristofaro, responded no.

In response to a question from Mr. Kotzan, it was confirmed that there is no available adjoining land to purchase.  It was also discussed that in the neighborhood there are other nearby properties that have multiple dwellings and have structures right up against the street.  That raising structures on this property is more of an issue of being first.    
 ~
A~Motion~was made by K. Kotzan, seconded by S. Mickle, to~CLOSE~the Public Hearing for Case 19-01C – Ralph DiCristofaro/Hartung, LLC, 11/11A Hartung Place.

Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, D. Montano, and S. Mickle. Opposed:~~none; Abstaining:~~none.  The motion passed unanimously, 5-0-0.

V.      Open Voting Session
Case 19-01C – Ralph DiCristofaro/Hartung, LLC, 11/11A Hartung Place,~requests variances to allow the existing structure to become FEMA compliant.
~
Before discussing the case in detail, and before forgetting information the applicant agreed to provide during the public hearing, Ms. Hutchinson captured that two potential conditions:  1) the applicant provide an updated and more complete Zoning Data Table, including adding the 10,000 sq.ft. per dwelling for 3 dwellings, correcting the minimum square dimension, adding the total floor area, removing the Jan 15th-proposal data, and ensuring all columns are properly labeled; and 2) the applicant demonstrate Health Department approval.   Ms. Mickle raised her concern that she felt that the height may not be the minimum possible if use of window-unit air conditioners would allow the mechanical space beneath the structure to be decreased.  

Ms. Hartmann noted that that neighborhood is so compact, and the lot is so tight, and the structures are so close that there is no possibility to move anything more to become more compliant.  She also felt from a public health and safety perspective that during a hurricane the existing structures could become floating missiles and that area would “go like dominos”.  She feels that above all the considerations this is a huge safety issue.  Although neighbors often don’t like a house going up, it’s going to happen, so a decision can’t be based solely on a neighbor not wanting their view blocked. Mr. Kotzan concurred, and felt the only sticking point was whether the 2.5 feet above the 14 feet (1 foot above base flood elevation) for structure and mechanicals was the minimum or not.    

Ms. Hutchinson’s key question is whether the proposed reduction in non-conformity on just one of the two structures is adequate to off-set the proposed increases in non-conformity.  Mr. Kotzan noted that it is not necessarily compelling; however, the added safety of FEMA compliance in a tight neighborhood is driving him to a favorable response. Ms. Hutchinson noted that another benefit is the improvement in off-street parking, and feels that is also a significant reduction in non-conformity, which Mr. Kotzan noted also improves safety of the neighborhood by improving emergency vehicle access.

Ms. Hutchinson noted that there appeared good justifications as to why the stairs could not be placed in any other locations.  Ms. Mickle felt the proposed reductions in non-conformity were reasonable, and only remained concerned about total height.  

Attorney Rutkowska noted that case law does not state that the reduction in non-conformity needs to be “substantial” for it to be considered as an alternative to traditional hardship, and the Board has articulated there are reductions in non-conformity, so the board should note whether they are considering that reduction in non-conformity in their decision should they decide that way.

In response to the Board’s request for guidance on how to address whether the 2.5 feet for structure and mechanicals is the “minimum”, Attorney Rutkowska agreed that it is good to have that discussion, as shown by the Fedus case (2018).  She also noted that the Board must focus on the evidence that it has.  The Board discussed that the applicant stated that they needed that space for structure and mechanicals, and that any other options appeared to create some other issue.   

Ms. Hutchinson summarized that the mechanicals need to above 14 feet elevation, that the finished first floor is proposed to be at 16.5 feet elevation, and the applicant said that the 2.5 feet in between is needed for both the first-floor structure and the mechanicals.  The applicant had stated that at least 18 inches (1.5 ft) was needed for the first-floor structure, so we are discussing no more than an additional foot for any mechanicals:  air conditioning, electrical, water pump, septic pipes, etc, which Ms. Hutchinson thought was reasonable.  To address any remaining concern, she suggested that it may be possible to include a condition that ensures that that 2.5 feet be used only for structure and mechanicals.

The Board then discussed potential conditions of approval.  One condition is the request amended Zoning Data Table to address errors and omissions.  A second condition is requiring Health Department approval.  Attorney Rutkowska noted that it is not usual to have a condition of Health Department approval even if there is documentation provided to the Board, and some boards have it as a standard condition even if they know it has been met.  While it is often a matter of preference, she felt that in this instance it makes sense to include a condition of Health Department approval.

Ms. Hutchinson noted that the applicant is only requesting three variances, although it is possible that by increasing bulk in the setback that added setback variances may be relevant, and the expansion of a non-conforming use, expansion on a non-conforming lot, and/or expansion of non-conforming structures may not align with other regulations, so she asked Attorney Rutkowska for guidance on making a motion related to only the three variances.  Attorney Rutkowska’s recommendation is that pursuant to the application, the Board is acting upon only those variances requested, and to specifically list them in themotion; it is not necessary to state that the Board is not acting on any other variances.  Attorney Rutkowska noted that the Board only has the power to grant the variances requested of it; it is not the role of the Board to be in the mind of the applicant and to determine what other variances are necessary.

In discussing drafts of potential motions, Ms. Hartmann asked whether there was a desire to add another condition related to the 2.5 feet being the minimum to support mechanicals, and what that wording would be.  Attorney Rutkowska noted the importance of wording the condition so that it would be enforceable, and suggested the wording be that use of the 2.5 feet above the 14 foot elevation be limited to only structure and mechanicals, so that it cannot be used for storage etc.  She also noted that capturing the details of this discussion is helpful since there was a concern regarding height raised by a neighbor.     

A~Motion~was made by D. Montano, seconded by K. Kotzan, to~GRANT with conditions the requested variance(s) to Sections 8.8.6, 8.8.11, 8.8.12, per plot plan prepared by Point One Architects and dated Feb 19, 2019 and structural plans prepared by Point One Architects and dated Feb 19, 2019 and stamped and signed by the Chair at this meeting.  The conditions are 1) submission of Plot plan with corrected and more complete Zoning Chart Data; 2) Health Department approval, 3) the 2.5 feet above the FEMA 14 ft minimum height can only be used for structure and mechanicals.

During discussion, Mr. Kotzan noted that the Board acted upon the corrected information in the Zoning Chart data.

[Post-meeting Note:  The Board inadvertently neglected to include language in the motion also approving the Coastal Site Plan Review Application, which will be addressed at the next ZBA meeting.]

Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, D. Montano, and S. Mickle. Opposed:~~none; Abstaining:~~none.  The motion passed unanimously, 5-0-0.

Reasons for Granting.
  • Becoming FEMA-compliant is an important public safety consideration
  • Demonstration the variances do not affect substantially the comprehensive plan due to the tight/compact layout of the neighborhood.
  • There is a hardship in that the applicant needs these variances to become FEMA compliant AND they have proposed reductions in non-conformities:  including setbacks and on-site parking.
  • Demonstration that the variances are the minimum required for FEMA compliance.
  • Demonstration of improvement in public health and safety of the home, parking, flood zone considerations, protecting area homes and neighbors.
  • In alignment with intent and purpose of the zoning regulations.
  • Also based on other evidence presented during the public hearing and reasons articulated by the board within the pubic hearing and voting session.
Before listing the reasons for Granting, the Board thanked Attorney Rutkowska for her guidance and she left the meeting.  It was noted that the guidance she provided will also help the Board in reviewing future FEMA-related cases, and Attorney Rutkowska committed to providing updates as needed as the case law evolves. Non-voting alternates Mr. Dix and Mr. Schellens also left the meeting at that time.  The Chair noted that this is Mr. Schellens last meeting, as he is stepping down from the Board due to scheduling conflicts.  Everyone thanked him for his contributions and hoped that he re-joined the Board again sometime in the future.


VI.~~~~~~Regular Meeting
  • New Business - Petition for Amendment of Old Lyme Zoning Regulations to~repeal~Sections 4.4.6.5f(i) and (ii). ~That repeal will have the effect of changing Section 4.4.6.6c because 4.4.6.6c references Paragraph 4.4.6.5f of the Old Lyme Zoning Regulations. Petitioners Scott Boulanger and Kathleen Boulanger.
Ms. Hartmann read a letter from ZBA Attorney Sylvia Rutkowska, dated Feb 11, 2019, into the record.  Attorney Rutkowska advised the ZBA not to comment on the referral from the Zoning Commission.  The Board decided not to make a comment.

  • Old Business:  none
  • Correspondence and Announcements – The Chair requested feedback from members on their interest in serving another term on Board.  Mr. Montano and Mr. Kotzan both have 5-year terms the go beyond the 2019 local election cycle.  Ms. Hutchinson stated that she is willing to serve another term when hers expires in Nov 2019.  Ms. Hartman noted that she will not be seeking to serve another term after hers expires in Nov 2020.  The 2-year terms of all alternates expire in Nov 2019.  Alternate Ms. Mickle stated that she is willing fill a full Board member vacancy.  Mr. Dix expressed previously he is willing to continue to serve, and Mr. Schellens stepped down as Alternate today.  The Chair asked everyone to please make suggestions of any new volunteers who may be interested in serving on the board.
  • Meeting Minutes – ZBA Regular Meeting Minutes – January 15, 2019
A~Motion~was made by M. Hartmann, seconded by D. Montano to~Approve~the Minutes of the ZBA Regular Meeting January 15, 2019.

Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, D. Montano, and S. Mickle. Opposed:~~none; Abstaining:~~none.  The motion passed unanimously, 5-0-0.

VII.~~~~~Adjournment

A~Motion~was made by K. Kotzan, seconded by D. Montano, to adjourn the Oct 16, 2018 Regular Meeting.  

Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, D. Montano, and S. Mickle. Opposed:~~none; Abstaining:~~none.  The motion passed unanimously, 5-0-0.

The meeting was adjourned at 9:32 PM.

The next regularly scheduled ZBA Meeting will be held on
Tuesday, March 19, 2019 at 7:00 PM, in the Mezzanine Conference Room,
Memorial Town Hall, at 52 Lyme Street, Old Lyme, CT.