APPROVED
OLD LYME ZONING BOARD OF APPEALS
SPECIAL MEETING
THURSDAY, March 4, 2004
The Old Lyme Zoning Board of Appeals met on Thursday, March 4, 2004 at 7:30 p.m. at the Old Lyme Memorial Town Hall. Those present and voting were Tom Schellens (Acting Chairman), Susanne Stutts, Kip Kotzan, Wendy Brainerd (Alternate seated for June Speirs), Judy McQuade (Alternate seated for Richard Moll), and Edgar Butcher (Alternate).
Acting Chairman Schellens called the meeting to order at 7:32 p.m.
ITEM 1: Case 04-02 Hudson Sullivan Homes LLC, 326 Shore Road/Canty Lane, variance to construct new home on nonconforming lot. (Continued from February 10, 2004).
Attorney McGarry and Arthur “Skip” Beebe were present to explain the application. New elevation drawings were submitted and marked Exhibit 1. Attorney Royston’s letter to the Commission was entered into the record and marked Exhibit 2. Attorney McGarry stated that he believes Attorney Royston agrees with his position on the matter, where the judge’s decision stands. He noted that they have submitted plans that are in compliance with the Health Code. Attorney McGarry stated that he does not have the plans that were the basis of the court decision as he destroyed them when he moved his office. Mr. Schellens presented the old file and asked that it be made part of the record. He noted that the old plan called for a two-bedroom home, with no
garage or basement. Mr. Schellens pointed out that the new plan is for a three-bedroom home with a one-car garage. He stated that the old plan called for a living area of 912 square feet and the current one is approximately 1650 square feet. Mr. Schellens noted that the coverage of the old plan is 912 square feet and the coverage of the new plan is 990 square feet.
Attorney McGarry reiterated that the plan conforms to the Public Health Code and has been signed off by the appropriate authorities. Mr. Beebe stated that they have designed the septic system for a three-bedroom home but are only constructing a two-bedroom home. He noted that whomever purchases the home might put a family room downstairs, a workshop or a bedroom.
Ms. McQuade noted that the new elevation drawing shows a height of 20 feet and 24 feet on the side of the house where the garage is. Ms. Brainerd noted that the actual height would be a little higher because of the fill for the septic system.
Mr. Kotzan noted that there are no setback or coverage variances required.
No one present spoke in favor of or against the application. Hearing no further comments, Mr. Schellens called this Public Hearing to a close.
ITEM 2: Public Hearing Case 04-07 Deborah and Ira Feigenbaum, 43 Breen Avenue, variance to construct second floor addition. (Continued from February 10, 2004).
Attorney Matthew Ranelli and Ira Feigenbaum were present to explain the application. Attorney Ranelli explained that the applicant is requesting to raise the roof of the building 4 inches, expanding the rear two bedrooms on the second floor over an existing first floor area and squaring off a notch in the side of the building. He noted that the Board requested three additional items of information, the first being new elevation drawings and floor plans. Attorney Ranelli submitted these and they were marked Exhibit 2. A letter from Betty Singer in favor of the application was marked Exhibit 1.
Attorney Ranelli stated that the new elevation drawings (Sheet SK2) show the rear of the house where most of the work is going to occur. He pointed out that the windows are basically the same. Attorney Ranelli noted that the view of the front of the house shows no changes other than new windows. He pointed out that the new floor plan shows that the first floor porch will remain a porch with exterior French doors on the interior wall leading to the porch. Attorney Ranelli stated that the second floor plan shows that the area that was the porch is now part of bedrooms 3 and 4 and eliminates the possibility that the upper porch could be used as a fifth bedroom. He noted that the house is an approved four-bedroom year-round home.
Attorney Ranelli stated that the total living space is 1,280, slightly over the 1,200 square foot minimum for a two-story home. He stated that Mr. Feigenbaum explained the changes to his neighbor Betty Singer and she has indicated that she has no problem with the plans. Attorney Ranelli stated that the exterior of the house would be a cedar shingle. He noted that all the improvements would substantially benefit the neighborhood. Attorney Ranelli stated that the Board should look at whether the Board’s action will do a substantial justice and improve the public health, safety and welfare. He noted that the plan is not asking a lot and will meet the public health and safety concerns that led the Town to adopt the 1,200 square feet minimum living area. Attorney Ranelli noted that the
proposal makes the plan a better house from a public health and safety standpoint.
Ms. Stutts noted that there is 240 more square feet of living area then the original structure. She questioned whether the downstairs porch was originally calculated as living area. Attorney Ranelli indicated that it was not. He noted that the new living area is the second floor porch and the second floor rear area that they are bringing out over the downstairs to square off the building.
Mr. Kotzan questioned whether the first floor porch would be heated. Attorney Ranelli stated that the porch would have exterior doors. He noted that the porch was heated previously. Attorney Ranelli stated that the porch would be cut off from the rest of the house. Mr. Kotzan stated that he may ask that the wall inside the porch have an exterior the same exterior treatment of cedar shingle. Attorney Ranelli stated that the applicant is willing to do whatever the Board requires to assure them that the porch will remain a porch.
Mr. Feigenbaum thanked the Board for their consideration.
No one present poke in favor of or against the application. Hearing no further comments, Mr. Schellens called this Public Hearing to a close.
ITEM 3: Public Hearing Case 04-08 Dimitri and Adel Tolchinsky, 286 Shore Road, variance to raise the height of garage/storage building to 35 feet. (Continued from February 10, 2004).
Attorney McGarry, Jeff Flower, architect, and Dimitri Tolchinski were present to explain the application. Jeff Flower presented two additional elevation drawings showing windows as they exist. These drawings were marked Exhibits 1 and 2.
Attorney McGarry stated that any time the Zoning Board of Appeals attaches a condition, it has to be reasonable. He noted that it is his position that under Randy Bazokus versus the Zoning Board of Appeals, mandated that standard from the Supreme Court of the State of Connecticut. Attorney McGarry stated that the reasonableness of the 30’ height restriction is questionable. He noted that the only variance requested is of the minimum square and in all other respects the application complied with the Zoning Regulations of the Town. Attorney McGarry stated that there is no legislative history regarding minimum square so he would surmise that minimum square has to do with density and absolutely no relationship to height. Attorney McGarry’s memorandum to the Board was marked Exhibit
3.
Ms. Stutts stated that when the Board granted the variance and limited the height to 30 feet, there was no objection by the applicant. She noted that she does not understand how the applicant can now object. Attorney McGarry stated that his previous letter notes that if a condition is not reasonable the applicant is entitled to come back and seek redress. He noted that this was set forth in his memorandum submitted at the January hearing. Ms. Stutts stated that the current hardship is self-inflicted, as the applicant has not constructed the building to the approved plans. Attorney McGarry stated that the plans submitted showed a 30-foot building height, which was an error that the applicant made and was not discovered by the applicant or himself.
Mr. Kotzan stated that he believes they can consider bulk when considering a variance for the minimum square. He noted that height affects bulk. Attorney McGarry stated that there is no legislative history with respect to the adoption of minimum square. He indicated that he believes the minimum square requirement was created so that lots could not be pencil thin and create the problem of density.
Ms. Brainerd noted that there were nine conditions put on the variance granted and without these conditions the Board may not have granted the variance requested. She noted that all the conditions were considerations of granting the variance.
Jeff Flower stated that Attorney Royston states in his letter that the Board must determine whether the relief requested is consistent with the comprehensive plan of the Zoning Ordinance and its general purposes and intent. He noted that this property, at 35 feet, meets all the requirements except the minimum square. Mr. Flower stated that he finds it difficult for the Board to state that buildings of 35 feet should not be built in a zone that allows 35’ buildings by its own Statutes. Ms. McQuade pointed out that when the variance was granted they considered the height. She noted that they did not want this structure to be higher than the building in front of it and they also considered the residential homes behind it. Ms. McQuade pointed out that the applicant agreed to the condition. She noted that the current structure and the plans submitted for it do not look anything like the building the Board agreed to. She pointed out that the current structure has a basement and a
walk-up third floor, which were not part of the original application. Ms. McQuade stated that limiting the height does not make a hardship as the applicant has very reasonable use of the property. She pointed out that the plans before the Board are entirely different then the ones originally approved.
Dimitri Tolchinski stated that as of today the structure does not have a roof. He noted that the building, from the foundation up, measures 23 feet 7 inches. Mr. Tolchinski stated that at this time he has only six feet to go up for the roof. He noted that he could put on a flat roof. Mr. Tolchinski asked the Board to consider what they would like the building to look like. He indicated that he other choice is to go to court. Mr. Kotzan questioned why the applicant could not cut back the structure to what was originally approved. He noted that because the building was not constructed to the approval does not obligate the Board to change their decision. Mr. Tolchinski stated that he believes he constructed the building to the approval.
Mr. Flower stated that a pitched roof will make the building look smaller and a flat roof will make the building look taller. He stated that a flat roof will make the building appear taller and it will be an eyesore. Mr. Flower stated that the Building and Zoning Departments did not issue stop work orders. Ms. McQuade noted that the Board had spent considerable time considering the original application and then they finished their deliberations and sent a letter to Mr. Tolchinski outlining the conditions. She noted that the applicant then constructed a totally different building. Mr. Flowers suggested that the Board should in the future request better plans from applicants. Mr. Schellens stated that the elevation drawings were drawn to scale and the bulk of the building was defined. He noted that the eaves of the approved building were much lower than they currently are.
Ms. McQuade questioned the use of the basement, which was not part of the original plan. Mr. Tolchinski stated that he originally expected a high water table and when the foundation was dug they found a gravel soil and no water. He indicated that he then decided to have a partial basement for the utilities.
Mr. Schellens asked for public comment at this time.
Anthony Scarfo, 303 Hartford Avenue Extension, questioned why the structure needed to be three stories. He indicated that he has never heard of a garage with a basement. Mr. Scarfo questioned the need for a 1,000-gallon septic tank. He noted that he is also concerned about drainage onto his property. Mr. Scarfo submitted four pictures showing water draining from Mr. Tolchinski’s property onto his family’s property. These pictures were marked as Exhibit 4. Mr. Scarfo stated that his father gave Mr. Tolchinski his approval based on the original plans and also stipulated that approval on there being no drainage onto their property. Mr. Scarfo noted that there is a dumpster located right in their back yard. He stated that they are also concerned about
lighting. Mr. Scarfo indicated that he has never seen a garage this big and although he understands the property is commercial, most of the neighboring properties are residential. He stated that the structure appears to be an apartment or commercial building, not a garage. Mr. Scarfo indicated that he is concerned that this structure will cause his property value to go down.
Attorney McGarry asked to respond to Mr. Scarfo’s comments. Mr. Schellens indicated that he could not and Attorney McGarry noted an objection for the record.
John Failla, 301 Hartford Avenue Extension, stated that he was notified of the original hearing and was told that Mr. Tolchinski was building a garage. He stated that he owns a six-family on Hartford Avenue that is smaller than this garage. Mr. Failla stated that the building being constructed looks nothing like the original plans. He indicated that he was also surprised to see a basement being poured. Mr. Failla stated that he is also concerned about the drainage. He noted that the structure is currently an eyesore. Mr. Failla stated that the structure looks like an apartment building.
Michael Falsetti, 11 Swan Avenue (directly across the street) stated that he is against the garage being constructed to 35 feet. He stated that the building described to him by Mr. Tolchinski and what has been constructed are two entirely different things. He noted that the current structure is out of character with the neighborhood. Mr. Falsetti stated that his cottage used to have a nice view from the porch and this structure has blocked that view. He cannot imagine the structure being even taller. Mr. Falsetti stated that this structure would reduce adjacent property values. He stated that the building being constructed is clearly not the building described to him by Mr. Tolchinski. Ms. Stutts questioned whether Mr. Falsetti was originally notified of the variance application. Mr. Falsetti replied that he was notified, but did not feel the need to go to the Town Hall to review the plans because Mr. Tolchinski had represented to him that he was constructing a garage to
keep his trucks in.
John Topalis, 284 Shore Road, Pizza Plus, stated that Mr. Tolchinski came to him and told him that he was going to build a garage and he indicated to Mr. Tolchinski that he was in favor of that and he signed a letter in that regard. Mr. Topalis stated that had he known the structure would be as big as it is, he would not have indicated his approval. He stated that the structure is not in character with the neighborhood.
Mark Woitowitz, 310 Swan Avenue, year-round resident, stated that he does not have a problem with the proposal. He stated that the structure will block the noise from the Pavilion in the summer and will also block the noise from Shore Road.
Dominick Scarfo, 303 Hartford Avenue Extension, stated that he was in Italy when the original application was before the Board. He noted that when he came home, he was shocked. Mr. Scarfo stated that he indicated his approval to the Board for the original application because Mr. Tolchinski told him he was constructing a two-car garage to remove the junk from his yard. He indicated that he was happy that Mr. Tolchinski was planning to clean up the yard. Mr. Scarfo stated that he is against the building becoming any larger and he is concerned about the drainage onto his property. Mr. Scarfo indicated that he is very angry that the building being constructed is not the building described to him by Mr. Tolchinski.
Ms. McQuade read a letter from Katherine and Michael Wade, 308 Hartford Avenue, indicating their opposition to the application and a letter from John Caprio, 307 Hartford Avenue Extension, indicating his opposition. These letters were marked Exhibits 5 and 6, respectively.
Mr. Schellens asked if Attorney McGarry or the applicant had any additional comments. Mr. Flower stated that the main issue appears to be drainage. He noted that the water needs to be diverted regardless of the height of the building. Mr. Flower stated that the water will be diverted to the front of the building and this will be accomplished with gutters. He noted that because the building is under construction, the gutters have not been installed yet. Mr. Kotzan questioned whether the basement could be adding to the drainage problem. Mr. Flower stated that the intention is to put gutters on and divert the water to the front of the building. Mr. Kotzan questioned whether the basement is relevant to the hydrology of the site. Mr. Flower stated that the basement has not
changed anything in terms of water. He noted that they would be happy to install a recharge basin, which would merely be a drain into the gravel. Mr. Kotzan stated that he believes a basement does affect the movement of water on the property. Mr. Tolchinski noted that the building is not at final grade yet. He noted that the final grade would also divert the water to the street. Mr. Tolchinski stated that the Town Engineer reviewed the drainage plan and indicated that it was sufficient. He apologized to his neighbors and indicated that he believes they will be happy with the finished garage.
Attorney McGarry stated that the law requires the Tolchinski’s to take care of water run-off. He noted that Mr. Tolchinski will have to solve that problem. Attorney McGarry stated that the Zoning Regulations prohibit the use of this building from becoming an apartment building or habitable space. He noted that this is not the applicant’s intention.
Hearing no further comments, Acting Chairman Schellens called this Public Hearing to a close.
The Board took a five-minute recess at this time.
ITEM 4: Open Voting Session
Case 04-02 Hudson Sullivan Homes LLC, 326 Shore Road/Canty Lane
Mr. Schellens noted that the application requests variances of Sections 8.9.3 (no new buildings on a nonconforming lot), 21.3.1 (minimum lot area, 20,000 required, 10,014 provided), and 21.3.3 (minimum dimension of square, 100 feet required, 75’ provided).
Mr. Schellens stated that Attorney Royston indicates in his letter that the Court’s decision in this matter states that there is an adequate hardship to provide for the construction of a residence on this property. He explained that the Court’s decision is based on the application for a 912 square foot home. Mr. Schellens noted that the current application is for a 1,650 square foot house with coverage of 990 square feet. He indicated that the Board must decide whether there is a material change in the relief requested in the current application.
Mr. Kotzan stated that he believes the current request is reasonable and does not materially change the relief requested. He indicated that it provides a reasonable use of the property and is in character with the neighborhood. Mr. Kotzan noted that all other bulk requirements are being met. Ms. McQuade agreed, noting that the other homes nearby are of similar size with some being larger.
Ms. Brainerd questioned whether the fill being added would significantly increase the height and thus the bulk of the structure. Mr. Schellens stated that the fill is determined by the septic system design and the design of the house is, in his opinion, sensitive to the additional fill.
Mr. Schellens pointed out that the property is right outside an R-10 Zone. He noted that the property contains 10,014 square feet and the lot was subdivided before Zoning. Mr. Schellens noted that no one could have predicted where the Zone line was drawn. He noted that this is a unique factor.
A motion was made by Kip Kotzan, seconded by Judy McQuade and voted unanimously to grant the requested variance to construct a home on a nonconforming lot, 326 Shore Road/Canty Lane, Hudson Sullivan Homes LLC, applicant, as per the approved plans.
Reasons:
1. Proposal is within the intent of the Plan of Zoning.
2. Hardship was established by the Superior Court.
3. Commission determined that there is no material change in the relief being requested.
Case 04-07 Deborah and Ira Feigenbaum, 43 Breen Avenue
Mr. Schellens stated that variances are being requested of Sections 8.8.1 (no enlargement of a nonconforming building except for in a conforming location), 8.9.3 (no enlargement of a building on a nonconforming lot), 21.3.7 (street setback, 25’ required, 16.5 provided), 21.3.9 (setback from other property boundary, 12’ required 10.67’ provided), and 21.3.10 (maximum floor area as a percent of lot area, 25% allowed, 27.3% existing, 28.9% proposed).
Ms. Stutts stated that the house is being stretched beyond its limits. She stated that a large family is trying to squeeze into a house that is already extended too much. Mr. Kotzan stated that the house is currently undersized for a two-story home and he would like to be able to allow the applicant to bring the house up to the minimum living area of 1,200 square feet. Mr. Kotzan stated that the house is already approved for four bedrooms.
Ms. McQuade noted that the proposal does not extend beyond the existing footprint. She indicated that she feels it is a reasonable expansion. Mr. Schellens stated that part of the proposal converts the upper porch to living area. He indicated that the conversion of the upper porch is inconsistent with the Board’s action in the past. Mr. Kotzan stated that this area allows them to meet the minimum living area. He noted that if the porch is converted into part of bedrooms 3 and 4, there could be no concern that the porch would be used as an additional bedroom.
Mr. Kotzan stated that the benefits outweigh the negative aspects. He noted that it will be a better structure and will be a benefit to the neighborhood. Ms. McQuade stated that the proposal would improve the property without adding any bulk. She pointed out that it would also bring the property further into compliance with the minimum living area requirements.
A motion was made by Kip Kotzan, seconded by Wendy Brainerd and voted unanimously to grant the necessary variances to construct a second story addition, 43 Breen Avenue, Deborah and Ira Feigenbaum, applicants, as per the approved plans and with the following condition:
1. First floor porch to remain a porch with exterior grade doors and exterior grade windows.
Reasons:
1. Proposal is within the intent of the Plan of Zoning.
2. Proposal is in harmony with the neighborhood.
3. Additional living area brings the structure into compliance with the minimum living area required for a two-story home.
Case 04-08 Dimitri and Adel Tolchinsky, 286 Shore Road
Mr. Schellens stated that the application requests relief of the 30’ height limit imposed on the garage/storage building. He noted that there were nine conditions on the approval to build the garage/storage building. Mr. Schellens pointed out that the drawings originally submitted were drawn to scale and gave the Board a sense of the bulk of the project. He noted that the Board also addressed concerns with regard to the use of the interior space.
Mr. Schellens noted that Mr. Tolchinski currently has a self-imposed hardship. Ms. Stutts stated that a number of neighbors spoke out against the proposal at the Public Hearing. She noted that this larger building is not in harmony with the residential area. Ms. Stutts noted that the applicant accepted the conditions of the original approval by not appealing it. Mr. Kotzan stated that the Board’s concerns during the original dispensation of the case have been echoed by the current concerns of the neighbors. He noted that the Board considered the height and size of his building carefully. Mr. Kotzan noted that what has been constructed has very little similarity to what was granted.
Ms. McQuade noted that the applicant testified at the original Public Hearing that the second floor was to be used for open storage. She noted that the stairs were moved inside to prevent the second floor from being used as an apartment. Ms. McQuade pointed out that the current plan has stairs inside on the second floor to the new third floor.
Ms. Brainerd read the hardship as written on the application. She noted that the hardship provided is that there was an error in the original plans. The Board agreed that this hardship is self-inflicted. Mr. Kotzan stated that the bulk of this building is not in harmony with the neighborhood, as testified to by the neighbors. Ms. McQuade stated that nothing was presented to make the initial determination by the Board invalid. Mr. Kotzan stated that limiting the height is entirely appropriate and applies to the Statute, as he sees the intent of it.
A motion was made by Kip Kotzan and seconded by Judy McQuade to grant the necessary variances to allow an increase in roof height for garage/storage building to 35 feet, 286 Shore Road, Dimitri and Adel Tolchinski, applicants. Motion did not carry, 0:5.
Reasons:
1. Proposal is not within the intent of the Plan of Zoning, due to the height and bulk of the building and the concern expressed by the neighbors.
ITEM 5: Adjournment.
The meeting adjourned at 10:05 p.m. on a motion by Skip Kotzan and seconded by Susanne Stutts. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Clerk
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