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Zoning Board of Appeals Minutes 04/16/2019
ZONING BOARD OF APPEALS –~REGULAR MEETING MINUTES
TUESDAY, April 16, 2019
MEZZANINE CONFERENCE ROOM
MEMORIAL TOWN HALL, 52 LYME STREET
OLD LYME, CT -~7:00 P.M.

I.~~~~~~Meeting called to order at 7:00 PM

II.~~~~~Roll Call

Present:~Nancy Hutchinson (Chair), Kip Kotzan (Vice Chair), Marisa Hartmann (Secretary), Dan Montano, and Alternate Steve Dix.

Absent:~~Stephanie Mickle

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

III.~~~~Public Hearing

Case 19-04C – Deborah & Ira Fiegenbaum, 22 Hartung Place,~request variances to allow the re-building of the existing year-round duplex creating a new single-family home which will be elevated to meet FEMA requirements.

The Chair opened the public hearing and invited the applicants and their representative, Jeff Flower, Architect, to begin their presentation.  She asked that they please clarify the variances they are requesting as they were not clearly listed on the variance application form, and she noted that there was an accompanying Coastal Area Management application with comment received from CT-DEEP.

Throughout the presentation, Mr. Flower handed-out a number of documents, which were marked as the following Exhibits:

  • Letter of Support by Mark and Maryellen Phelan of 77 Sea Spray Rd
  • Revised Attachment to Variance Application
  • Revised List of Existing Non-conformities, reduction in non-conformities and requested variances
  • A new drawing by J.W. Flower Architect comparing existing and proposed elevations
  • A Photograph of the property from Fall 2019 showing flooding
  • CT-DEEP certificate of permission #201603998-SB
  • Enlargement of map showing Coastal Jurisdictional Line from #201603998-SB
  • Further enlargement of map showing Coastal Jurisdictional Line from #201603998-SB
  • Copy of page CS-103 of CT-DEEP certificate of permission #201603998-SB
  • Copy of page CS-104 of CT-DEEP certificate of permission #201603998-SB
  • FEMA Quick Reference Guide Comparison of Select NFIP and Building Code Requirements for Special Flood Hazard Areas
  • A collection of 5 Photographs of a property that underwent a similarly designed fill-elevation for FEMA compliance.
Ms. Hartmann read the letter of support from Mark and Maryellen Phelan, a neighboring property owner at 77 Sea Spray Rd (Exhibit A).  Mr. Flower handed out Exhibits B-C and reviewed the existing A-2 Survey and the structural drawings submitted with the variance application.  He noted that the intent was to 1) tear-down the existing structure and to rebuild it to a fully compliant location on the property, thereby reducing several pre-existing non-conformities, and 2) to raise it be FEMA compliant, which would require a height variance to meet AE-12 requirements.

Ms. Hutchinson noted that a plot plan showing the proposed changes to the property with associated zoning table had not been submitted with the variance application.  Mr. Flower said that he hadn’t thought that was required since the proposed structure would meet all set-back requirements, but that he would be willing to provide one.   

Mr. Flower then reviewed the structural drawings and noted that the lower level has concrete walls, but is not a “finished basement” because it is located in the Coastal AE-12 Flood Zone; the lowest level is for parking and limited storage only – no mechanicals.  He provided a FEMA Handout (Exhibit K) showing that the use of “fill” and vented walls are allowed means of raising a structure for FEMA compliance in an AE zone.

He described the existing house as a 5-bedroom duplex, being converted to a 5-bedroom single family house.  Ms. Hutchinson noted the assessor report indicates that the existing structure is assessed as only a 4-bedroom duplex.  Mr. Flower stated that from a septic flow perspective that is a moot point, because by changing the use from a duplex to a single family dwelling the septic use, based on calculated state flow rates, would not be increased.  Mr. Flower described how the design of the dwelling will be more concise.  

Ms. Hutchinson questioned the designation of the outside accessory use areas as a Terrace, rather than a Deck, since it is more than 12 inches above natural grade.  Mr. Dix questioned whether the height of the structure was being measured from natural grate.  Mr. Flower walked the Board though the elevation drawings that show heights measured versus existing grade, which is ~4.5 feet above mean sea level.  It was acknowledged that at full moon high tides, especially during rain storms, much of the existing yard can be underwater for a brief time (see Exhibit E), which recently occurred twice in a month. He noted that after installation of the culvert the water on the property generally comes from behind the property due to tides and rain, and that the culvert is only closed during named storms.    

Mr. Flower reiterated the rationale for elevating the structure for FEMA compliance using a combination of grading and vented walls.  He noted that the visual impact is better using a gradual grading than elevating on pilings with stairs to the first floor. He stated that because the property is located in the A-Zone, grading is allowed.  Mr. Dix asked about the comparison to neighbor’s grade, and whether the grading elevation would impact water on the neighboring property.  Mr. Flower noted that the neighbor’s first floor is about 18 inches above grade and that the two sheds on the 22 Hartung property will also be removed (a revision from the original application).  He described the reasons why there would not be a meaningful impact on neighboring property, and the direction the water flows will depend upon the water source:  tides and rains versus wind and storm-driven water.  He also noted that the structures and grading will be >200ft from the mean sea level and >50ft from tide affected wetlands, which according to the Old Lyme Zoning Regulations is allowed.

Ms. Hutchinson asked if there was concern that the added fill would be washed into the wetlands and block the culvert in the event of a storm.  Mr. Flower noted that the wetlands are uphill, so that would not be a concern.  

Ms. Hartmann read the CT-DEEP comments to the CAM application.  Mr. Flower reviewed how the applicants have addressed each of the CT-DEEP comments by the variance application revisions and additional information submitted with Exhibits B-K.  He confirmed that the existing structure is a SEASONAL structure, and the new structure will remain a SEASONAL structure, which is a condition of Ledge Light Health approval.  He stated that the walls below Base Flood Elevation will have flood vents and all other FEMA and Old Lyme Flood Zone Regulation requirements would be implemented, and noted that the FEMA requirements are also included in the building code.  He noted that most of the fill will be in the front yard with the rear yard 18-inches or less, and what is planned will not create a hazard to anyone else.  Ms. Hutchinson reiterated the need to provide a plot plan that depicts the proposed grading plan.

Mr. Flower then described and showed photographs of the nearby neighbor’s house (Exhibit L, Mr. and Mrs. Phelan) which was raised using fill in an A flood zone, and noted that it was visually attractive and protected the home during Hurricane Sandy.  In summary, Mr. Flower stated that their proposed plan for 22 Hartung Place supports the health, safety and welfare of the community, and confirmed that the FEMA requirements for flood vents will be met.

Ms. Hutchinson asked Mr. Flower to confirm the variances the applicants are requesting.  He summarized a slight increase in the ratio of second story versus first story (Section 8.8.5), and a height variance (Section 8.8.6) that will be ~18 inches above the minimum required to meet FEMA requirements, but is necessary to reduce the accumulation of water within the structure below base flood elevation at extreme high tides on a frequent basis, which can be viewed as a health and safety issue.  

Mr. Flower also reminded the Board of the number of legal pre-existing non-conformities that will be reduced.  Mr. Hutchinson asked if the decks, which are designated as terraces on the structural drawings were included in building/structure coverage on the zoning tables.  Mr. Flower stated no, but he would be willing to do that in an updated table, and that would not affect the number of variances needs, since building structure coverage is under the maximum allowed even with that square footage added (~400 sq.ft.).  It was also discussed that the unfinished level below base flood elevation in a flood zone that is only used for parking and limited storage should not be counted as floor area, so there is no proposed increase in total floor area versus existing.

From an administrative perspective, Ms. Hutchinson asked Mr. Flower to provide the Board a site/plot plan that can be stamped and signed which includes a revised zoning table corrected to include the deck/terrace square footage in building/structure coverage - based on the Old Lyme Zoning Regulations definition of “Deck”.  The plan should be well-labeled with legends and show both the existing and proposed conditions, including grading, and be stamped and signed and dated.  Mr. Flower agreed to provide.  The Board suggested that this could be a condition of approval, and that the Chair would review and sign the plot once condition met.  This was discussed as an important administrative step to ensure the everyone is on the same page and that there is clear record of what is being approved.

The Chair opened the hearing to public comments, and no one offered comment.     

A~Motion~was made by K. Kotzan, seconded by D. Montano, to~CLOSE~the Public Hearing for Case 19-04C – Deborah & Ira Fiegenbaum, 22 Hartung Place.

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

V.      Open Voting Session

Case 19-04C – Deborah & Ira Fiegenbaum, 22 Hartung Place,~request variances to allow the re-building of the existing year-round duplex creating a new single-family home which will be elevated to meet FEMA requirements.

The Board members discussed the evidence submitted with the application and the additional evidence submitted and discussed at the public hearing, the variances being requested, and potential conditions that had been agreed by applicant during the public hearing.  Also reviewed was information in the record related to the Ledge Light Health District review, which resulted in a health approval with conditions, and clarified that the existing and proposed structures are seasonal dwellings. During the discussion the Board noted a number of reasons for approval, and how potential issues were addressed by the applicant.   

A~Motion~was made by S. Dix, seconded by D. Montano, to~GRANT with conditions variances to 8.8.5 (increasing the second floor area as a percentage of first floor area from 56% to 67%) and 8.8.6 (33 feet) to allow replacement existing seasonal duplex with new seasonal, single-family home that will meet FEMA and Old Lyme Flood Zone requirements, per the structural plans prepared by J.W. Flower Architect and dated Feberuary 11, 2019 and Exhibit D dated April 16, 2019 and stamped and signed by the ZBA Chair.  The conditions are:  1) the submission of a plot plan including existing and proposed structures and grading and updated zoning compliance table with existing, proposed and required, to be reviewed and signed by the ZBA Chair; 2) the removal of both sheds.  Also, the Coastal Site Plan Review Application~is approved because it is consistent with all applicable coastal policies and includes all reasonable measures to mitigate adverse impacts.   

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

Reasons for GRANTING/DENYING:

  • Multiple reductions in non-conformities:  converting a non-conforming duplex to a single-family dwelling; reductions in all set-back non-conformities; reduction of outbuildings.
  • Becoming FEMA compliant improves public health and safety and is in harmony with intent and purpose of zoning regulations.
  • Height variance demonstrated as minimum needed to meet both FEMA and Old Lyme Flood Zone Regulations and maintain health and safety because added 18-inches of fill will reduce high-frequency flooding within structure, including the reduction of mold.
All DEEP comments were addressed, either by modification of the application or submission of additional information.   
  • Letter of support from neighbor.
  • The proposed plan is designed to blend in with character of the neighborhood, and will have a minimum visual impact.
  • The evidence presented during the public hearing and the reasons articulated by the board within the public hearing or voting session.
V.~~~~~~Regular Meeting

~~~~~~~~a. New Business - none

~~~~~~~~b. Old Business - none

~~~~~~~~c. Correspondence and Announcements:
  • Announcement of the appointment of Stephanie Mickle, senior ZBA Alternate, to fill the remaining term of a full ZBA member vacancy that expires in Nov 2023.
  • A Land Use Coordinator Memo dated March 19, 2019 addressed to the Chairs of all Land Use Boards and Commissions was shared with the board.  The memo states that that through the remainder of fiscal year 2018-2019 (until June 30 2019) that all requests for Legal Support must first be approved by the Land Use Coordinator to avoid the Land Use Department going over budget this fiscal year.  Also shared with the Board was a finance report prepared by the Old Lyme Finance Department that showed the status of the Land Use Department finances as of March 27, 2019.  As of that date, the Land Use Department had 43% of its total annual budget remaining, with only 25% of the fiscal year remaining.  The only Land Use item over budget was the Zoning Commission Legal Budget, which was exceeded by 152%.  Notably, the ZBA is well under budget for all line items, with 45% of the ZBA Legal budget remaining for the remaining 3 months of the fiscal year.  In discussion with the ZBA Attorney (without charge) it was recommended that as long as there is no issue/delay in receiving Land Use Coordinator approval for ZBA legal support when requested, no further action is needed.    
~~~~~~~~d. Meeting Minutes – ZBA Regular Meeting – March 19, 2019

A~Motion~was made by M. Hartmann, seconded by S. Dix to~Approve~the March 19, 2019 Minutes of the ZBA Regular Meeting.

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

VI.~~~~~Adjournment

A~Motion~was made by D. Montano, seconded by S. Dix, to adjourn the April 16, 2019 Regular Meeting.  

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

The meeting was adjourned at 9:32 PM.

Respectfully submitted,

Nancy Hutchinson


The next regularly scheduled ZBA Meeting will be held on
Tuesday, May 21, 2019 at 7:00 PM, in the Mezzanine Conference Room,