APPROVED
OLD LYME ZONING BOARD OF APPEALS
SPECIAL MEETING
WEDNESDAY, JUNE 23, 2004
The Old Lyme Zoning Board of Appeals met on Wednesday, June 23, 2004 at 7:30 p.m. at the Old Lyme Memorial Town Hall. Those present and voting were Tom Schellens, (Acting Chairman), Kip Kotzan, Susanne Stutts and Richard Moll.
Acting Chairman Schellens called the meeting to order at 8:00 p.m.
ITEM 1: Case 04-27 Daniel Schiavone, 13 Sea Lane, variance to construct a garage.
Mr. Schellens noted that Attorney Cronin faxed a letter late this afternoon indicating his desire to withdraw this application.
Mr. Moll stated that this case was before the Board a few months prior and was then withdrawn because they did not have Health Department approval. He noted that the case was resubmitted to be heard this evening and as of yesterday at 4:00 p.m. the file did not contain photographs or elevation drawings. Mr. Moll stated that he wanted it in the record that this case has had an ongoing situation of lack of preparedness so that it may be properly reviewed by the Board.
ITEM 2: Case 04-28 James Hayes, 46 & 48 Rogers Lake Trail, variance to allow construction of a dwelling on a nonconforming lot.
Attorney Gordon Kirkman was present to represent both the applicant and the Trust that owns the two lots. Darcy Collins, Doane-Collins Engineering, was also present. Attorney Kirkman stated that the situation is relatively simply; the two lots combined are 78 square feet short of the minimum 10,000 square feet. He noted that Mr. Hayes is the trustee of the Trust. Attorney Kirkman explained that Mr. Hayes relied on the Town maps which showed the two lots to be 50 X 100, for a total of 10,000 square feet.
Mr. Schellens noted that variances are required of the following Sections: 21.3.1, minimum lot area, 10,000 square feet required – 9,922 square feet existing; and 21.3.2, minimum lot area per dwelling, 10,000 square feet required, 9,922 square feet provided. Attorney Kirkman noted that the hardship is that the lot would be useless without approval from the Zoning Board of Appeals.
Attorney Kirkman stated that the original subdivision map was approved in 1926 and at that time these two lots were actually 4 lots. He explained that the streets on the west side of Rogers Lake Trail are not perpendicular to Rogers Lake Trail and as such, there is a parallelogram instead of a square. Attorney Kirkman stated that the same condition exists on many other lots, which have already been built upon, so he would assume that this issue has been addressed before. He noted that if either side of the lot had an additional 9 inches, the lot would be conforming. Attorney Kirkman noted that the fact that the lot is 78 square feet shy of the minimum required has no practical effect.
Ms. Stutts questioned whether the applicant has tried to purchase land from the abutting property, which appears to have a large enough lot. Attorney Kirkman stated that he did not believe so. He indicated that the cost of the land, in a situation such as this, could be tremendous. Mr. Schellens pointed out that a financial hardship couldn’t be considered.
Darcy Collins stated that the difference between 9,922 square feet and 10,000 square feet is 9” along the side of the lot. She stated that the plans have been approved by the Town Sanitarian, and also the Conservation Commission. Ms. Collins explained that the lot has the ability to support a house, a driveway and a sanitary system as shown on the plans. She indicated that denying the applicant would in itself be a hardship. Ms. Collins stated that the applicant relied on Town Maps that indicated that the two lots together were 100 x 100 feet. She noted that it was when the survey was done that it was determined that there is not a ninety-degree angle at the corners. Ms. Collins stated that the road layout is another hardship.
Ms. Collins stated that the lot has been designed recognizing that there is a high water table and the presence of surface water coming across the lot. She noted that this lot is the lowest lot in the watershed. Ms. Collins stated that when the water reaches this lot is goes into a drainage system in the road, crosses Rogers Lake Trail and into the grass swale out into Rogers Lake. She noted that the groundwater was addressed by proposing a house that has no basement, only a crawl space. She noted that the crawl space will be on top of the existing ground and built up from there. Ms. Collins explained that the system would be placed 6 to 12 inches in the ground. She noted the property owner to the west made a swale/ditch, which drains water across this lot; the same neighbor also has a
sump pump outlet that drains directly onto this lot. Ms. Collins stated that she has tried to accommodate this existing condition, even though it is technically not appropriate for that neighbor to be directing water onto the site. She stated that fill would be brought onto the site for both the septic system and the house. Ms. Collins stated that they would form slight depressions along both sides of the lot around the system and the house to pick up the water that is currently draining onto the property and channel it into storm drainage system that will handle the water. She noted that there would be no adverse impact on adjoining properties. Ms. Collins stated that the development of the subject lot would not make the water problems on the adjacent lots any worse.
Mr. Schellens read a letter dated June 23, 2004 from Ann Brown, Zoning/Wetlands Enforcement Officer, indicating that the Inland Wetlands Commission approved the application for this property.
Mr. Moll stated that a Town Forum this year a presentation was made noting the weed control problem at Rogers Lake. He indicated that the weed problem is driven by the run-off of nitrogen. Mr. Moll questioned whether this water being delivered to the lake would have nitrogen in it. Ms. Collins stated that the flow of water from the development into the lake will not have a significant impact on a receding body of water. She noted that although she is not a nitrogen expert, she does know that decaying leaves contribute a lot of nitrogen. Ms. Collins stated that the subject lot is full of decaying leaves, along with a great number of decaying leaves right at the entrance to the pipe. She contended that developing the lot would reduce the nitrogen problem in that respect. Mr.
Kotzan stated that that would be reasonable, assuming that the property owner did not fertilize their lawn.
Ms. Collins stated that the sanitary system was approved by the Health Department. She indicated that she is aware that the neighbors have some concerns about the sanitary system. Mr. Moll questioned why the particular system was chosen for this property. He also asked why there was a note on the septic system drawing that indicated that the testing would not be done when there is frost. Ms. Collins stated she could not test during freezing conditions because she was not strong enough to get through the soil with a posthole digger. She noted that a posthole digger is used for perc tests and a backhoe is used for deep tests. Mr. Moll asked Ms. Collins to point out the frost line on the cross-sectional view of the system. Ms. Collins noted that the water company runs pipes 42 inches
below ground. She noted that the system was approved by the Sanitarian and meets the public health code. Ms. Collins stated that she is a Professional Engineer and has stamped the plan and the system will function. She noted that the frost line is not a factor in developing a sanitary system.
Ms. Collins noted that she has designed 10 to 20 of these type of systems in the past year. She indicated that the soil conditions on this lot are better than the majority of lots that she has designed the Living Filter System for. Ms. Collins noted that this type of system gives a more effective area per foot.
Ms. Collins stated that the proposed swale around the system is a depressed area designed to pick up water from the mounded area of the sanitary system and from the neighboring property and direct it into the existing storm drainage system. She noted that it is not an open watercourse by definition of the Health Code.
Mr. Moll questioned where the property owner’s responsibility would end in regard to drainage. Ms. Collins noted that the drainage proposed for this property would reduce the potential for ponding on adjoining properties.
Mr. Moll questioned how all the notes on the plan would be enforced. Ms. Collins stated that she is designing the system saying that there will be no garbage disposal. She noted that it is a Health Department issue. Mr. Moll stated that the Zoning Board of Appeals is responsible for the health and welfare of the Town and if they don’t believe a certain thing is covered they may take an action that is not supportive, even though it is another department’s responsibility. Mr. Schellens stated that many items on the plan are boilerplate. Mr. Schellens noted that if the applicant had nine more inches of land on one side, the conversation would not be taking place.
Attorney Kirkman asked Ms. Collins how many systems she has designed over the years and she replied that she has designed one thousand. He questioned how many of these systems have failed and Ms. Collins replied that none have. Attorney Kirkman questioned whether Ms. Collins would put her stamp on a drawing that she felt had any chance of failing. She replied that she would not.
Mr. Schellens pointed out that there are only four members present and the vote would have to be unanimous. He noted that they could request a continuance so that a fifth member would be present.
Pat Looney, 2 Moss Point Trail, indicated that he is the brother-in-law of Mary Looney. Mr. Looney stated that he is a licensed building inspector in the State of Connecticut and is certified Phase I, Phase II, subsurface sewage disposal systems and has acted as the Sanitarian for the Town of Marlborough. He stated that the lots in question were at one time owned by the adjacent property owner, Mr. James Hayes. He indicated that it was his belief that these two properties should have merged with the third parcel. Mr. Moll noted that the other option would have been to split off nine inches to these two parcels to make them conforming. Mr. Looney stated that the Zoning Regulations require that all newly created lots must be 30,000 square feet in size. It was explained that merging two
nonconforming lots is not considered creating a new lot.
Mr. Looney stated that there was testimony at the Wetlands meeting indicating that Mr. Alfano is the current property owner. He noted that he did not find a deed filed in that name in the Town Clerk’s office. Mr. Looney stated that he has concerns with the septic system. He indicated that the well is located on the front corner of the property which is 12 feet from an under drain in the street. Mr. Looney noted that this would require a 25’ separation distance for wells. He noted that he is aware of this drain because of his knowledge from living there for 18 years. Mr. Looney stated that he contacted Robert Scully, State Health Department, regarding the description of open watercourse. Mr. Looney stated that he asked Mr. Scully to get involved in the review of this
case.
Mary Looney, 11 Epsilon Avenue, stated that she currently lives in a swamp and she is afraid that if a home is constructed on this lot it will put more water on her lot. Ms. Looney stated that the trees currently on the property absorb water and when they are cut there will be more water to deal with. She noted that the pipe under the road has not been maintained for approximately 15 years and is filled with sediment. Ms. Looney stated that they have called the Town repeatedly to clean the drain and they have not. She noted that in the spring the water flows over the road and into Rogers Lake.
Mr. Moll stated that he would like the applicant’s representative to address how many trees will be removed. He indicated that he would also like the applicant to address the net effect of the tree loss. Mr. Moll questioned why the neighbors have not purchased the property. Ms. Looney stated that the owner of the lot is attempting to build a house on the lot to make money.
Sean Clark, 50 Rogers Lake Trail, stated that he is concerned with the water problems. He noted that the size of the pipes in the streets are not up to today’s standards. He stated that the property owner’s responsibility ends at the property line. Mr. Clark stated that he put a bid in on this property five years ago when Mr. Hayes purchased the property.
Linda Legasse, 69 Rogers Lake Trail, stated that her property is north of Epsilon Avenue. She indicated that she has lived at this property for 13 years and walks frequently. Ms. Legasse stated that she was under the impression that this particular property was owned by the people who owned 5 Epsilon so when she noted that perc tests were being performed she was quite surprised. Ms. Legasse noted that the land is extremely low and damp and she is concerned about the health and well being of the Lake. She noted that during the spring rains there is no way that contamination from this property will not reach the lake. Ms. Legasse stated that this is the chance to say if the lot is not conforming, it does not fit.
Attorney Kirkland stated that both the land deeds were issued to James K. Hayes, Trust; Book 237, Page 0348 and Book 240, Page 732. He noted that the house was owned by James K. and Dorothy M. Hayes. Mr. Kotzan stated that Mr. Hayes could have made a lot line adjustment to make this lot conforming. Attorney Kirkland stated that Mr. Hayes did not know the lot was not square and assumed that he had 10,000 feet as shown on the Town maps. Mr. Schellens questioned whether they have approached the abutting neighbor with the request to purchase 9 inches of land. Attorney Kirkland stated that they have not. He indicated that the house was sold and he does not know the name of that new owner.
Attorney Kirkland stated that he believes the drainage situation will be improved if this house is constructed because the water will be properly collected and diverted. He noted that the owner of the property will keep the drains clear for their own benefit. Attorney Kirkland stated that the Board has the authority to make less than a literal interpretation of the Regulations and he believes that the benefits to the citizens at larger are greater than the detriment in exercising the judgment of granting a variance here. He indicated that it is not fair or reasonable to penalize a particular property owner if the Town does not like 10,000 square foot lots. He indicated that the Town should take action and not allow new construction on any lots less than 40,000 square feet. Attorney Kirkland
noted that the applicant has received approval from the Town Sanitarian, Inland Wetlands and is requesting a variance for the lack of 78 square feet of land.
Attorney Kirkland requested that the Public Hearing be continued for the purpose of him requesting to purchase 9 inches of land from the abutting property owner. Mr. Schellens asked Attorney Kirkland to put that request in writing.
Mr. Kotzan stated that the Board is constrained from what they can prevent people from doing. He noted that they cannot deny something just because it bothers them as there is a case where there was an undersized lot and the Board denied the variance and the Court called it confiscatory and overturned the Board.
Ms. Collins stated that trees do absorb water but she has yet to see someone quantify how much water they absorb. She noted that the entire lot would be cleared. Ms. Collins stated that she was careful in preparing a plan that would not create an adverse impact on neighboring properties. She indicated that she values the neighbors’ comments and has tried to take them into consideration in her design. Ms. Collins stated that in regards to Mr. Looney’s comments, she will research whether there is an under drain under Rogers Lake Trail.
Mr. Schellens noted that a second meeting should probably be scheduled for July because there are already four cases plus one continued case. The Board agreed to hold a Special Meeting on Wednesday, July 21, 2004 to continue the Public Hearing on this case.
ITEM 3: Public Hearing Case 04-29 Sean and Cynthia Larue, 28 Columbus Avenue, variance to place shed on existing cement slab.
Sean and Cynthia Larue were present to explain their application. He noted that they are requesting a variance to place a shed on their property. Mr. Schellens noted that variances are requested of the following sections: Section 7.4, 8.9.3, 21.3.8 (rear setback, variance of 5’), and 21.3.11 (Maximum lot coverage, 25% permitted, 28% existing and 26.5% proposed).
Mr. Larue indicated that he believes the proposed coverage to be less than 26.5 percent as he has eliminated all the storage across the back of the house. He explained that he is before the Board because he eliminated this storage which was a shed built across 2/3’s of the back of the house. Mr. Larue noted that this shed was badly damaged by insects. He explained that he also removed a raised patio that was in great disrepair. Mr. Larue stated that he had a shed delivered onto an existing concrete pad without a permit. He indicated that it never occurred to him that it was too close to the property line. Mr. Larue explained that when he came to get a permit for some other work, he explained to Ms. Brown what he had done with the old and new sheds and she indicated that he would
have to go to the Zoning Board of Appeals.
Mr. Larue stated that he removed approximately 436 square feet of coverage with the shed and raised patio and he added 240 square feet with the new shed. He noted that the property is seasonal and the water supply is Miami Water.
Mr. Moll noted that the property is seasonal and the applicant has testified that the water supply is seasonal. He indicated that he would like this to be noted as a condition of approval. Mr. Moll questioned the note written by the Sanitarian on the Zoning Permit. Mr. Schellens noted that it appears to indicate that perc tests are required before approval or denial can be given. Mr. Moll stated that the Sanitarian has not signed off on the application and his approval should be required as a condition of approval.
Mr. Larue stated that the rear of the property is cut on a diagonal and there is 12 feet on one side and if the back of the property was square he would have 12 feet on both sides. He indicated that the irregular shape of the property is one of the hardships.
No one present spoke in favor of or against the application. Hearing no further comments, Mr. Schellens closed this Public Hearing.
ITEM 4: Open Voting Session
Case 04-29 Sean and Cynthia Laue, 28 Columbus Avenue
Mr. Schellens noted that the applicant is seeking a variance for a 12’ x 20’ garage/shed on an existing cement slab. He noted variances are requested of Sections 7.4, 8.9.3, 21.3.8 and 21.3.11. Mr. Schellens stated that the hardship indicated is that the property is irregularly shaped and the proposed building is located on an existing cement slab. He noted that other coverage has been removed from the property.
Mr. Kotzan stated that the work performed in rehabilitating the property is to the benefit of the Town. He noted that the coverage on the property has been reduced.
A motion was made by Richard Moll, seconded by and voted unanimously to grant the necessary variance to construct a shed on an existing slab, 28 Columbus Avenue, as per the approved plan and with the following conditions:
1. Shed shall not be inhabited.
2. The property is to remain seasonal.
3. Approval required by the Town Sanitarian.
Mr. Kotzan noted that the proposal is within the intent of Zoning. He noted that the nonconformities have been reduced, as the net coverage is lower.
ITEM 5: Adjournment.
The meeting adjourned at 10:15 p.m. on a motion by Kip Kotzan and seconded by Richard Moll. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Clerk
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