APPROVED
OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
TUESDAY, JULY 13, 2004
The Old Lyme Zoning Board of Appeals met on Tuesday, July 13, 2004 at 7:30 p.m. at the Old Lyme Memorial Town Hall. Those present and voting were June Speirs (Chairman), Tom Schellens, Kip Kotzan, Susanne Stutts and Richard Moll.
Chairman Speirs called the meeting to order at 7:30 p.m.
ITEM 1: Public Hearing Case 04-26 Sal Guarnaccia, 66 Old Colony Road, variance to raise pitch of second floor roof and widen front porch. (This Public Hearing was continued from the June Regular Meeting).
Attorney Ted Harris and Sal Guarnaccia were present to explain the application. Attorney Harris stated that the Public Hearing was continued from the June Meeting at his request, as he wanted the opportunity to address some of the concerns of the Board. He submitted a summary for the record. Attorney Harris stated that the first concern of the Board that he would like to address is relative to the nature of the porches. He indicated that he visited the property. Attorney Harris noted that the Board expressed concern over the lack of windows on the porch compared to the number it previously had. He explained that the first reason for this is structural, as the porch was rotting and falling away from the main house. He noted that the lower porch was supporting itself as well as the
upper porch. Attorney Harris noted that the new design provides sonitubes along the front and supports leading directly from those to the roof header in order to be sure the porch is properly supported and would not pull back from the face of the house. He explained that windows were placed between these supports. Attorney Harris stated that building code requires that the windows be at least 19” up from the floor. He explained that Mr. Guarnaccia would be willing to add a screen door and noted that the entire glass pane can be removed from the windows. Attorney Harris noted that the house, as well as the porch, is a seasonal structure.
Chairman Speirs stated that the porch is no longer a porch and has been incorporated into the main house. Attorney Harris stated that as of the recent past the house and porch were as they are now. He indicated that they are willing to close off both the upper and lower porch with doors so that they are divided from the house area. Attorney Harris stated that they would be willing to accept this as a condition of approval. Chairman Speirs stated that she believes the applicant should have a plan that shows the changes they are willing to make to the porch. Attorney Harris drew the proposed wall, with doors, on the site plan.
Mr. Kotzan questioned whether the applicant is still willing to reduce the number of bedrooms from 10 to 8. Mr. Guarnaccia replied that he is willing to reduce the number of bedrooms to 8. Chairman Speirs stated that the floor plan looks like a rooming house. She stated that there are five bedrooms on the second floor and three on the first floor for a total of 8 proposed. Chairman Speirs stated that there would be no separate apartments. Mr. Guarnaccia stated that they already are separate apartments. He explained that there are currently three apartments and explained the layout to the Board.
Chairman Speirs questioned whether a well was in use on the property. Mr. Guarnaccia replied that there is. Chairman Speirs stated that the property is 5,225 square feet and on this lot there are two buildings with a total of 11 bedrooms. Attorney Harris noted that a new septic system has been installed and the Sanitarian has indicated that the system meets code. Chairman Speirs stated that the Connecticut Water Company could supply this seasonal home with seasonal water. Attorney Harris stated that if there were issues with the well or septic the Sanitarian would have raised the issue in his review. Chairman Speirs stated that she is concerned because the apartments are being rented this season. Mr. Guarnaccia stated that he has to rent the units to help defray the costs involved
in repairing the septic system and his attorney costs.
Attorney Harris stated that the variances requested are relatively minor compared to the benefit to the property. He noted that the property has a new septic and is being updated in its appearance. Attorney Harris stated that the net difference in area is 3 square feet and the sidelines are being encroached an additional 8” on each side, which is not significant. He explained that the whole process has been to accommodate the issues of the Commission, regardless if they were relative to the specifics of the variance. Attorney Harris indicated that he has tried to speak to what he believes the issues are; a new septic system, a reduction in the number of bedrooms and returning the porch to where it was maybe 20 or 30 years ago. He asked the Board to balance the activities on the part of
the applicant.
Chairman Speirs stated that she believes that the applicant has submitted a viable plan for the porch situation.
Attorney Harris stated that the Stillman Case is one of the leading cases in this area. He explained the hardship is the combination of the nonconforming lot, the nonconforming placement of the house on the lot and the change of Regulations over the years. Attorney Harris noted that in Stillman, the basic fact of nonconformity was held by a Court to be an indication of hardship. He noted that the other indication of hardship is the relatively minor changes in the property and the number of Regulations implicated by the relatively minor change. Attorney Harris stated that the changes were necessary to make this dwelling a structurally sound property into the future.
Attorney Harris stated that the changes to the structure are consistent with the public health and welfare in the neighborhood, as the actual sideyards that were matched were already existing on the property. He noted that secondly, the property has been upgraded and enhanced.
Chairman Speirs read a letter from Ron Rose noting that the septic system installed on this property in March 2004, complies with the State Health Code.
Abe Semel, 68 Old Colony Road, stated that Sal Guarnaccia has taken a place that was falling down and has made a diamond out of it and the Town should bend over backwards to accommodate what has to be done. He stated that Sal is trying to fix the property.
Karen Symolon, 64 Old Colony Road, stated that she is in favor of the proposal and she agrees with Mr. Semel’s comments.
Hearing no further comments, Chairman Speirs closed this Public Hearing.
ITEM 2: Public Hearing Case 04-24 Patricia Wendland, 11 Osceola Trail, variance to remove seasonal dwelling and replace with two-story year round dwelling.
Patricia Wendland and Jim Lavaser were present to explain the application. Ms. Wendland stated that there are two applications before the Board. She noted that one is for repairing the existing structure and the second is for conversion from seasonal to year round. Chairman Speirs noted that two separate applications were not submitted. Ms. Brown stated that Ms. Wendland filled out two Zoning Permit applications so that it would be clear that she was asking for two separate things; one to repair and replace the structure and the other to convert the use of the lot and cottage from seasonal to year round. Chairman Speirs stated that there is only one application. Ms. Brown noted that they were handled in the same variance application.
Mr. Schellens stated that the Legal Notice addresses repair and replacement and also conversion from seasonal to year round. He indicated that he feels the Board can address the two items separately. Ms. Brown stated that the application for conversion to year-round indicates that a variance would be required of 22.2.5c(i), because 10,000 square feet of land is required for conversion to year round use. Chairman Speirs noted that Section 22.2.5c(i) should be listed on the application. Chairman Speirs stated that a year round water supply is also required for a year round property. Ms. Wendland noted that as part of the conversion she plans to put in a new well.
Ms. Wendland explained that the proposed structure meets all setback requirements and all other requirements of Sheet A-2, except the lot size and minimum square requirements. She noted that there is no property available for her to purchase to make her lot conforming. Ms. Wendland stated that her lot was divided in the 1930’s and she noted that there are many other similar sized lots in the area that reflect expansion to allow the full use of their property. She indicated that she plans to remove the existing shed on the property and the existing deck. Ms. Wendland stated that the coverage calculations include the overhang on the second floor on the lake front and also the stoop on the side. She stated that the existing coverage is 15 percent and the proposed coverage will be 15
percent. Mr. Kotzan stated that the footprint is only slightly expanded and the shed and deck have been removed. He questioned whether the coverage may not be even less. Ms. Wendland noted that the shed is approximately 50 square feet.
Chairman Speirs questioned how many years Ms. Wendland has had use of the property. Ms. Wendland replied that she has had use of it for sixty years. She noted that her parents built the house in 1947. Ms. Wendland stated that her house is currently 644 square feet and it is not in conformance with the Zoning Regulations in regards to minimum square footage for a one-story dwelling.
Ms. Wendland stated that the proposed house has one large room on the first floor. She explained that the second floor would have two bedrooms. Ms. Wendland noted that the existing house has two bedrooms. She stated that the proposed house would allow for better use of the property without altering the character of the neighborhood. Ms. Stutts questioned the height of the new construction. Ms. Wendland replied that the proposed height is 31 feet.
Mr. Lavaser pointed out the locations of the existing septic system and the proposed well. Ms. Wendland noted that because she is installing the living filter, a reserve area is not required. Ms. Stutts questioned the height of the current house and Ms. Wendland replied that it is currently 16 feet high. Ms. Stutts noted that the house next door is only a story and a half. She noted that Ms. Wendland’s house would be almost twice the height that it currently is.
Ms. Wendland stated that the present structure is nonconforming to Zoning in relation to the minimum living area and she considers this part of the hardship. Mr. Moll asked Mr. Lavaser to sign and date the drawings that he prepared. He indicated that he would be glad to and noted that he is not a licensed architect and will not be the final author of the plans.
Richard Dakin, 12 Osceola Trail, indicated that he lives directly across the street from Ms. Wendland. He noted that her addition will not affect their view of the lake and they are looking forward to her being a full-time neighbor.
Dave Evers, 15 Osceola Trail, stated that he submitted a letter in favor of the application. He echoed Mr. Dakin’s comments.
Chairman Speirs read the names of neighbors who submitted letters in favor of the application.
Chairman Speirs stated that the second part of the application is a request to convert a seasonal dwelling to a year round dwelling. She asked Ms. Brown what information has been provided to Ms. Brown that would qualify Ms. Wendland for a year round dwelling. Ms. Brown replied that if some one has a conforming lot they can build a year round house on it. She noted that the problem is that Ms. Wendland’s lot is that it is nonconforming. Ms. Brown explained that Ms. Wendland would comply with all of the other requirements for a year round house, except the lot size and the square. Mr. Schellens stated that evidentiary considerations for year round use is usually done when the homeowner is contesting a determination. He noted that Ms. Wendland acknowledges that the house is seasonal. Ms. Wendland stated that the house has been used in the off-season on occasion. She explained that the water pipes are insulated and they have used the fireplace for heat. Ms. Wendland stated
that they did use the property on occasion in the winter. She noted that her daughter was married at Christ the King Church and one of the requirements was that she was a resident of Old Lyme so her daughter resided at this property for approximately 8 months. Ms. Wendland stated that the only proof she has is the marriage license. Mr. Schellens stated that the applicant has acknowledged that the dwelling is seasonal and she is requesting a variance.
Mr. Moll stated that it is his understanding that a few years ago a committee was formed in Town and that committee recommended that homes not be built on lots smaller than one acre. Ron Rose, Sanitarian, stated that the controversy is between the Connecticut Health Code and the DEP. He noted that the DEP feels there must be 21 days retention in the soil and the Health Code does not agree with that. Mr. Rose stated that systems such as the living filter and Ruch System could reduce nitrates in a much shorter distance, usually within the lot size of 10,000 square feet. Mr. Schellens noted that Ms. Wendland’s plan does not show a reserve area. Mr. Rose replied that the Health Code does not require a reserve area.
Ms. Wendland stated that the improved property will be in harmony with the neighborhood and will meet the minimum size dwelling standard. She noted that the number of bedrooms would not be increased. She noted that a new well and septic will be installed upon approval. Ms. Wendland stated that there has never been additional land available to purchase.
Richard Dakin, 12 Osceola Trail, stated that he is on the Rogers Lake Association Board and he can vouch for the quality of life at the lake. He noted that they are looking forward to Ms. Wendland being a year round neighbor. Mr. Dakin urged the Board to approve the application.
Dave Evers, 15 Osceola Trail, indicated that he was in favor of Ms. Wendland being a year round resident of Rogers Lake.
Mr. Moll stated that the Board has to look at this case from the aspect of the land.
Hearing no further comments, Chairman Speirs closed the Public Hearing for this item.
ITEM 3: Public Hearing Case 04-30 Edmond & Barbara Keene, 41 Columbus Avenue, variance to construct a 9’ x 24’ first floor addition.
Edmond and Barbara Keene were present to explain their application. Mr. Keene stated that they would like to construct a 9’ x 24’ first floor addition. He corrected several of the application documents which indicated that the addition was 9’ x 20’. Mr. Keene stated that the property is 6,920 square feet. Chairman Speirs questioned whether the coverage calculations included the deck and shed. Mr. Keene replied that he is not sure, as he had someone prepare the application for him. Chairman Speirs questioned the size of the deck and Mr. Keene replied that the deck is 24’ x 12’. He noted that the shed is 10’ x 8’, the house is 670 square feet and the addition is 216 square feet. Ms. Brown noted that the property is under the 25 percent
building coverage.
Chairman Speirs stated that variances are required of the following sections: 8.8.1, no addition to a nonconforming building except in a conforming location; 8.9.3, no addition to a building on a nonconforming lot; and 21.3.7, minimum setback from the street line.
Mr. Keene stated that the existing kitchen is very small and there were a few instances where the oven door is open and something is being removed and the person is knocked into. Mrs. Keene stated that when she uses the oven she has to remember to tell people not to move. Mr. Keene stated that the entire addition would be kitchen/family room. Mr. Kotzan questioned the square footage of the house. Mr. Keene replied that it is 670 square feet. Mr. Kotzan noted that the house is nonconforming as to living area.
Mr. Keene stated that the existing electrical panel is in a kitchen cabinet between the stove and an outside wall. He noted that there is no other place to put the panel. Mr. Keene stated that this winter a pipe broke in the kitchen and he found himself in the position of being on the wet floor and reaching in to turn off the power. He noted that the addition would give him an area for the electrical panel.
Mr. Schellens noted that he figured the coverage and the property is currently at 15 percent coverage and the proposed coverage is 19 percent, with 25 percent maximum coverage allowed.
Mr. Keene noted that the abutting properties had nothing on file in the Health Department depicting the location of their septic systems. Mr. Keene noted that the proposed addition would be the exact same height as the existing house.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Speirs called the Public Hearing for this item to a close.
ITEM 4: Public Hearing Case 04-32 Timothy LeBlanc, 287 Mile Creek Road, variance to construct a 15’ x 25’ first floor bedroom addition.
Susette Kelo was present to explain the application. Chairman Speirs noted that variances are required of the following Sections: 8.8.1, no addition to a nonconforming building except in a conforming location; 8.9.3, no addition to a building on a nonconforming lot; and 21.3.7, street setback, 50’ required, 14’ proposed for a variance of 36’.
Ms. Kelo pointed out the addition on the site plan. She indicated she would like to put a bedroom on the first floor because the attic space on the second floor is not an adequate bedroom. Ms. Kelo stated that the maximum height in the attic is 5’ 5” and her husband is 6’1”. She noted that she would like to make half of the attic a cathedral ceiling which would open to the downstairs and the other half she would like to keep for storage with pull down stairs.
Mr. Kotzan stated that the Assessor’s card indicates 450 square feet on the first floor and 86 square feet of livable area on the second floor. Ms. Kelo pointed out the septic on the site plan and noted that it is new. She explained that the septic is the reason that the addition could not be put on the rear of the house. Ms. Kelo stated that the addition would be 13 to 15’ high. She noted that the chimney is 18’ high and it will definitely be below that.
Chairman Speirs noted that the hardship provided on the application is the height of the ceiling on the second floor.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Speirs called this Public Hearing to a close.
ITEM 5: Public Hearing Case 04-31 Guiseppe & Maryjean Pisani, 16 Swan Avenue, variance to raise roof height and add six dormers.
Attorney Vincent McManus, Ted Kuncas, Licensed Architect, and Guiseppe Pisani were present to explain the application. Chairman Speirs stated that the variance application indicates that a variance is needed to allow the retention of the six currently existing dormers and roofline after full trial in the Superior Court on an injunction to remove resulting in Court Order attached hereto as Exhibit A and ordering the defendant to apply for a variance. Chairman Speirs stated that the Board would have to review the application as if the work has not been performed. She indicated that they would consider what the building was prior to the time the changes were made.
Attorney McManus noted that his first exhibits this evening are the current warranty deed to the property, a photograph of the street, and a photograph of the building. Chairman Speirs stated that she would like photographs of the original structure. Mr. McManus noted that those would be part of the Zoning file. Chairman Speirs stated that there is a photograph of the original structure on the Assessor’s Card.
Chairman Speirs stated that variances are requested of the following sections: 8.8.1, no building or other structure which does not conform to the requirements of these Regulations shall be enlarged or extended unless such enlarged or extended portion conforms to the Regulations; 8.9.3, no building or other structure located on a lot which does not conform to the requirements of these Regulations shall be enlarged or extended; 21.3.7, minimum setback from the street line, 25’ required, 15’ existing, 15’ proposed for addition, variance of 10’; 21.3.9, minimum setback from other property line, 12’ required, 6’ existing on the north and south sides, 6’ proposed on the north and south sides for addition, variance of 6’; 21.3.10, maximum floor area as a percent of the total
lot area, 25 percent permitted, 25 percent existing, 54.2 percent proposed, variance of 29.2 percent. She pointed out that the application lacks the coverage percent and lot size. She noted that the lot is 2,490 square feet. Attorney McManus wrote this information on the application. Ms. Brown noted that the coverage is 34.9 percent. Mr. Pisani noted that there is a detached portico on the property that is 14’ x 14’. He agreed that the coverage is 34.9 percent, including the portico.
Attorney McManus stated that Ms. Brown prepared the two pages of calculations. Ms. Brown indicated that that is correct. Attorney McManus stated that the Sanitarian has signed off on the project. Ron Rose, Sanitarian, stated that the property has the required area for septic. He indicated that the property is seasonal. Chairman Speirs questioned how many bedrooms the septic system could support. Mr. Rose noted that the house currently has two bedrooms and he noted that the number of bedrooms and the use has not changed. He noted that his testing was to confirm that a septic system could be installed on the property if it is needed. Mr. Rose stated that there is no indication that the current septic system is failing. He indicated that he asked the applicant to install
a new system if this variance application is approved.
Attorney McManus stated that the proposal is to raise the roof 3 feet overall, still within the height limit, and add six dormers as shown in the photograph. Attorney McManus stated that in May of 2000 Mr. Pisani applied for a roof permit and the permits were issued. He noted that the repairs commenced in March 2001. He explained that the roof collapsed and the nature of the repair became more extensive. Attorney McManus stated that the builder advised that because the timbers were rotten, the rotting material be removed. He explained that the builder also suggested that at the same time the structure be rebuilt to meet current building and fire safety codes. Attorney McManus stated that after the repairs were done, Ms. Ozols issued a Cease and Desist, which ultimately led to the Court
case before Judge Hurley.
Ms. Speirs asked for a copy of the building permit. Attorney McManus stated that the building permit was for replacing the roof. He noted that there is no contention that what exists today is in compliance with State Building Code. Attorney McManus noted that after the protracted disagreement with the Town, Mr. Pisani went to the Building Department and attempted to get a permit to put the structure back to the original configuration and Mr. Rose stated that he would not because the structure would then not comply with the Building Code and in order to get a permit for such he would have to make application for Modification of the Requirements of the State Building Code to the State Building Official. Attorney McManus presented a copy of this application, which was ultimately denied by the State.
Attorney McManus stated that Mr. Pisani never a got a copy of the Zoning Permit until after the litigation began. He explained that he received a copy of the Zoning Permit in the discovery part of the litigation. Attorney McManus stated that he is claiming that Mr. Pisani is stuck between two sets of Regulations.
Mr. Schellens pointed out that the Assessor’s Card does not show that the second floor was finished at all as it did not have finished flooring. He indicated that it was in no way a compliant bedroom area. Mr. Schellens stated that the application to the State is not realistic because the second floor did not need egress as a storage area. Mr. Pisani stated that the Assessor’s Card from when he purchased the property shows two bedrooms on the second floor. He noted that he purchased the property with two bedrooms on the second floor. Mr. Kotzan noted that the card indicates that there is 160 square feet of living area on the second floor. Chairman Speirs noted that there were no building permits issued for bedrooms on the second floor or for any expansion.
Chairman Speirs questioned the height of the second floor when he purchased the property. She questioned whether he could stand up. Mr. Pisani stated that he could stand up through the length of the house and he is 6’4” tall. He indicated that he could walk down the middle but not across. Chairman Speirs noted that there were no permits issued in the 1970’s or 1980’s for bedrooms on the second floor. Attorney McManus noted that there were two bedrooms in the house and on the Assessor’s Card when Mr. Pisani purchased the property.
Mr. Kotzan asked Mr. Rose to address whether Mr. Pisani would have been able to repair the roof in its original form if he had applied for a permit to do so. Mr. Rose replied that the State Building Code requires that if something is touched, it must be brought up to code. Chairman Speirs stated that it was her understanding that with a nonconforming building on a nonconforming lot the repairs could be made in the same configuration. Mr. McManus stated that the repair work could be done as long as it does not increase the nonconformity and it is his contention that this work did not increase the nonconformity as the structure was raised. Chairman Speirs stated that the Zoning Regulations require that any expansion on a nonconforming lot would need a variance.
Attorney McManus stated that the applicant was stuck between the two Codes and this has been proved by applying to the State to vary their Regulations and return the structure to its original configuration. He noted that herein lays the hardship as Mr. Pisani cannot get a permit to put the structure back the way it was.
Attorney McManus stated that the two closest neighbors have submitted letters indicating that they are in favor of the application.
Mr. Kuncas, Architect, explained that he was contacted by Mr. Pisani regarding the code issues, and he performed a study of the codes for him. Mr. Kuncas explained that there is a minimum ceiling height, light and ventilation requirements, and egress requirements. He did note that egress might have been accomplished with different windows. Mr. Kuncas stated that without the dormers the second floor would not have met minimum ceiling height requirements.
Attorney McManus stated that once the roof collapsed they had to comply with the State Building Code. He noted that the work has been done and they are requesting to keep the dormers and raised roof. Attorney McManus stated that he believes they have a legal right for the variance because there is a legally cognizable hardship that the Board is bound by Law to recognize. Mr. Schellens stated that six dormers were not needed to meet the building codes. Mr. Kuncus stated that if the dormers were removed he would not meet building code. Mr. Schellens stated that he is not stating that all six should be removed, but he is rather questioning how many dormers are needed for Mr. Pisani to be at the 50 percent rule. Mr. Kuncas stated that only one dormer could be removed to meet building code. He noted that the one over the stairs is needed for headroom.
Mr. Pisani stated that the day the roof collapsed Ms. Ozols visited the site and did not mention that another permit was necessary. He indicated that if she had ordered him to Cease and Desist he would have stopped work. Attorney McManus noted that 99 percent of the population would not realize that they needed another permit after the roof collapsed. He noted that the Mr. Pisani did have a building and zoning permit to repair the roof.
Mr. Pisani stated the work on the roof began on a Saturday and he received the Cease and Desist the following Wednesday, after the work was completed. He noted that he purchased the property in 2000 with 2 bedrooms on the second floor. Mr. Pisani stated that he has not increased the number of bedrooms or bathrooms or the square footage of the house. He noted that the prior layout was hazardous.
Mr. Kotzan stated that he feels Mr. Pisani has acted in good faith by applying to the State to return the structure to its original configuration. He questioned what would happen if the Board denies the variance request. Mr. Schellens stated that the plan before the Board is not the minimum needed to comply with codes, it is what is existing.
Attorney McManus presented a survey of houses within 600 feet of Mr. Pisani’s home. He noted that a variance is this case would not violate the Plan of Development of the Town of Old Lyme for this particular area because over forty percent of the houses in the area already have the dormer feature as part of their façade.
Attorney McManus stated that they have been sent here by Order of a Judge of the Superior Court and they have in good faith tried to comply with State Building Code, believing they were working within the Permits they had obtained. He stated that Mr. Pisani rebuilt the structure as the Building Code required and now the State is not allowing him to return it to its original configuration. Attorney McManus stated that he does not believe that the Judge would have sent Mr. Pisani to the Zoning Board of Appeals if he did not feel this was a legal case for a variance.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Speirs called this Public Hearing to a close.
ITEM 6: Open Voting Session
No action taken. The Open Voting Session will be conducted at a Special Meeting on Monday, July 19, 2004 at 4:00 p.m.
ITEM 7: Approval of Minutes
No action taken.
ITEM 8: Any New or Old Business to come before said meeting.
None.
ITEM 9: Adjournment.
The meeting adjourned at 12:00 p.m. on a motion by Tom Schellens and seconded by Susanne Stutts. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Clerk
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