APPROVED
OLD LYME ZONING BOARD OF APPEALS
SPECIAL MEETING
WEDNESDAY, JULY 21, 2004
The Old Lyme Zoning Board of Appeals met on Wednesday, July 21, 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, Richard Moll and Wendy Brainerd, Alternate. Also present was Ann Brown, Zoning Enforcement Officer.
Chairman Speirs called the meeting to order at 7:30 p.m. She noted that although she listened to the tapes, Mr. Schellens will be the Acting Chairman for this continued hearing.
ITEM 1: Public Hearing Case 04-28 James Hayes, 46 & 48 Rogers Lake Trail, variance to allow construction of a dwelling on a nonconforming lot. (Continued from the June Regular Meeting).
Attorney Gordon Kirkland was present to represent the applicant and the trustee for the land. Mr. Schellens noted that the applicant is Alfano General Contracting of Old Saybrook, but the application was signed by David Genavale. He noted that the property owner of record is James K. Hayes Trust. Mr. Schellens stated that variances are required because the property is 9922 square feet, 78 square feet shy of the 10,000 square feet required.
Attorney Kirkland stated that a Zoning Board of Appeals has the authority to grant a variance where two basic conditions are satisfied. He indicated that the first condition is that the variance must be shown not to effect, substantially, the comprehensive Zoning Plan and the second condition is adherence to the strict letter of the Zoning Ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the Zoning Plan. Attorney Kirkland stated that he believes the first condition has been met because they are dealing with 78 square feet of land and that amount of land is not substantial as it is less than 1 percent. He noted that this amount of land is not measurably by less than a skilled land surveyor and is not noticeable by observation. Attorney
Kirkland stated that the area lacking is about the same size as the conference room table. He stated that the second condition is met because the lack of 78 square feet of land does not affect the carrying out of the comprehensive Zoning Plan.
Attorney Kirkland stated that a Zoning Regulation that permanently restricts the use of the land for any reasonable purpose goes beyond permissible regulation and amounts to practical confiscation. He stated that this was held in an Old Lyme case called Mueller-Peck. Attorney Kirkland stated that the only permitted use for this lot is a residence with no commercial or agricultural use allowed. He explained that the only practical use is a single-family dwelling and under these circumstances failure to grant a variance would have a confiscatory effect on his clients property. Attorney Kirkland stated that the situation was not created by any action by his client. He noted that according to case law, there is definitely a hardship.
Attorney Kirkland stated that most of the other lots in the area are developed. He noted that there are undeveloped lots that do not contain 10,000 square feet; however in almost every case they are either very short of the required 10,000 square feet and not in the same or similar situation; or they’re adjacent to other nonconforming properties with which they can be combined.
Attorney Kirkland stated that at the last meeting the Board requested that the applicant contact the abutting property owner and ask to purchase 78 square feet. He indicated that one adjacent property owner was at the last meeting and indicated that he was not willing to sell any land. Attorney Kirkland stated that they have repeatedly tried to contact the other property owner who was out of Town and they finally made contact just yesterday. He explained that they have not yet reached an agreement.
Mr. Schellens noted that there was also a request for clarification of the location of the storm water drain parallel to the street line. Bob Doane, Professional Engineer and Land Surveyor was present on behalf of the applicant. He explained that there was a concern that there was an under-drain in Rogers Lake Trail within 25 feet of the well, which is contrary to the Public Health Code. Mr. Doane stated that they physically looked for the drain and were unable to find it and they spoke with John Roach, Director of Public Works, and he has no knowledge of an under-drain in that location. He indicated that they have concluded that there is no under-drain in Rogers Lake Trail. Attorney Kirkland stated that if in the future it is discovered that there is an under-drain the well location could be
moved to comply with the Health Code. Mr. Moll questioned whether he could present a drawing this evening with the well in a different location. Bob Doane stated that he does not have a drawing, but it would be a mirror location of the current plan.
Mr. Kotzan stated that it is hard for the Board to make a decision when it has not been shown that they have made an effort to reach an agreement with the adjacent landowner. Bob Doane stated that from and engineering point of view, there is no physical constraint on the property that prevents the lot from accommodating a year-round house. Mr. Doane stated that the Sanitarian approved the project. Mr. Doane stated that there is a letter in the file from Mary Looney to the Director of Health and in this letter she raises some issues, one being the under-drain and the ponding. He stated that the general nature of the neighborhood is flat with a seasonal high ground water table. Mr. Doane explained that if care is not taken with the grading of the lot, ponding could be an issue. He
stated that the grading and drainage has been designed to avoid any ponding. Mr. Doane explained the proposed grading and drainage.
Mr. Doane explained that the proposal meets all Zoning requirements, with the exception of the 10,000 square foot minimum land. Mr. Schellens pointed out that elevation drawings and floor plans are a required part of the application. Mr. Doane indicated that if the variance were granted, they would be willing to stay within the footprint shown on the site plan. Mr. Moll found the elevation drawings in the file. Mr. Doane apologized, and indicated that he was filling in this evening for Ms. Collins. Chairman Speirs noted that the proposed coverage is 11 percent. Mr. Schellens noted that the proposed house is two stories, 28 feet high. Mr. Schellens asked that the application be amended to show the second floor area as per the plan, as it is currently overstated on the application.
Mr. Moll stated that the drainage would eventually run into Rogers Lake. He indicated that he asked Ms. Collins at the last meeting what effect it would have on the lake when a piece of land that is heavily wooded is clear cut. Mr. Doane stated that the drainage is already centralized and draining into Rogers Lake. He indicated that they would be improving the efficiency with a swale that runs along the property. Mr. Doane stated that removing the trees would increase the flow. Mr. Doane stated that the development of this property would have no effect on the lake.
Ms. Stutts stated that if this variance were granted, any new construction on this property would have to come before the Zoning Board of Appeals. She indicated that it would make sense for the property owner to avoid this situation and continue discussions with the neighbor. Mr. Schellens stated that the financial implications of that transaction would be of no consideration by the Board. Attorney Kirkland stated that an offer was made, but it has neither been accepted nor rejected. Ms. Brown noted that any configuration of these lots would have to be approved by the Health Department.
Sean Clark, 50 Rogers Lake Trail, questioned whose responsibility it would be to clean the drain. Mr. Doane stated that it would be the property owner’s responsibility. He questioned whether this would be part of the approval. Ms. Brown stated that it would be in the property owner’s best interest not to have a pond in their yard. She noted that if she were informed that the drain needed to be cleaned, she would ask the property owner to do so. Mr. Clark stated that there are signs on the adjacent property with phone numbers because the house is for sale. He indicated that he is surprised that the applicant had so much difficulty contacting the property owner. Mr. Clark indicated that he does not want to sell his land.
Mr. Kirkland stated that he handled the sale of the house for the seller and he had the buyers name and their approximate address. He indicated that he sent Genavale back to the listing realtor and he suspects that is how he got the phone number of one of the current owners.
Linda Legasse, 69 Rogers Lake Trail, stated that she feels it is odd that a family of builders, the Haynes family, didn’t know that the lot might not be conforming. She stated that the property is precious because it is so close to the lake and it is an upland wetland, according to the description. Ms. Legasse stated that no one can demonstrate how much more water will go into the lake when the trees are cut and a house is constructed. She thanked the Board for upholding the Zoning Regulations.
Chairman Speirs questioned whether the runoff would be lessened if the house were seasonal versus year round. Mr. Doane indicated that it would not, as there would still be a house, roof and driveway and the rainwater would run off whether it is occupied or not. Mr. Kirkland stated that this property would be a catch basin for the neighborhood, and that is a positive situation.
Hearing no further comments, Acting Chairman Schellens closed this Public Hearing.
ITEM 2: Open Voting Session.
Case 04-28 James Hayes, 46 and 48 Rogers Lake Trail
Acting Chairman Schellens stated that the applicant is seeking a variance under Sections 21.3.1 (minimum lot area, variance of 78 square feet required), and 21.3.2 (minimum lot area per dwelling, variance of 78 square feet required). He noted that the property is in an R-10 Zone.
Mr. Kotzan stated that he agrees with Attorney Kirkland that the Board should be careful not to make a decision that has a confiscatory effect. Mr. Schellens stated that that issue is legitimate, but it is not the only issue. He indicated that there are other issues. Ms. Stutts stated that it would not be confiscatory if the other options have not been pursued. Mr. Kotzan stated that an adequate effort was not made to purchase land from the adjacent neighbor. Ms. Stutts stated that until the land purchase is resolved, it is difficult to discuss the issue. Chairman Speirs stated that the Board has 65 days to make a decision. Ms. Brown stated that if the property owners corrected the 78 square foot deficiency, they might notify the Board that they have fulfilled the land requirement.
Mr. Kotzan stated that he believes the proposal would be a reasonable use of the property. Chairman Speirs noted that the Board could approve a seasonal property, which would provide reasonable use of the property.
Mr. Schellens stated that he believes the Board should postpone a decision on this matter and require evidence that a practical resolution of this matter outside this Board cannot be obtained. He indicated that it is within the intent of the Plan of Zoning to adhere to the 10,000 square foot minimum lot size and if there is an opportunity to create a conforming lot, it is the first charge. Mr. Schellens indicated that he believes that the applicant had no idea that the lot was nonconforming prior to selling the other property. He noted that not even a trained eye could detect that the lot was 78 square feet shy. Mr. Schellens stated that he does not have adequate evidence to show that all other avenues have been explored. Mr. Kotzan agreed and noted that the applicant has not shown that there
is no other remedy but a variance.
Mr. Moll stated that he would like to see an answer from the adjacent neighbor in writing. He indicated that Mr. Doane answered questions regarding the drainage impact on the lake very satisfactorily and he appreciates this information.
Ms. Brown stated that if the Board were to continue their deliberations to another meeting, perhaps they could consult their attorney to see if they could accept further clarification, as the Board has already received testimony about the consultation with the neighbor. Mr. Schellens stated that that would be a good idea, as this information may not be considered new information.
Chairman Speirs noted that the Board does not meet in August. Ms. Brown noted that the Board has 65 days to act on this application from the date the Public Hearing is closed. She noted that the September meeting would be within this time frame. Mr. Schellens requested that the Board members submit to him any questions that they would like answered by Attorney Royston in this matter.
A motion was made by June Speirs, seconded by Richard Moll and voted unanimously that the decision on this application be postponed to the September meeting but not to exceed the 65 day period from the close of the Public Hearing.
The Board took a ten-minute recess at this time.
Case 04-31 Guiseppe and Maryjean Pisani, 16 Swan Avenue
Chairman Speirs stated that the property is 2,490 square feet and is located in an R-10 Zone. She noted that variances are required of Sections 8.8.1, 8.9.3, 21.3.7, 21.3.9, and 21.3.10.
Ms. Brown noted that the existing FAR is more than 25 percent but not knowing what area of the second floor had the required ceiling height, she could not calculate the floor area for the second floor. She noted that the applicant calculates the floor area to be the same before and after.
Chairman Speirs stated that the application notes that the variance is needed to allow the retention of currently existing dormers and roofline, after full trial in the Superior Court. She noted that the Board has to consider the application as if the work has not been completed. Mr. Moll questioned whether the wording of the application is proper. Mr. Kotzan stated that the wording of the application does not make it deficient. Chairman Speirs stated that when the roof collapsed the applicant could have reconstructed the building as it was. She stated that there are no building permits for the two bedrooms on the second floor. Chairman Speirs stated that the older Assessor’s Records show an attic. Mr. Kotzan stated that the record does show that the bedrooms were added in
the 1980’s, well before Mr. Pisani owned the property.
Mr. Schellens stated that the 1980 card shows three rooms, one bedroom, all on the first floor. He noted that after that the two bedrooms were added on the second floor. Mr. Moll stated that the height of the original chimney, which still exists, gives a good indication of how much the peak of the roof was changed. He indicated that the original pictures show that the second floor could not have two practical, legal bedrooms. Mr. Moll stated that they could not have met the building code, and no building permits were issued for the adding of two bedrooms on the second floor.
Mr. Schellens stated that Mr. Pisani could have moved his bedrooms downstairs to conform to Zoning. He noted that the roof could have been replaced as it was without adding dormers and increasing the roof height. Chairman Speirs stated that there was no permit issued for increasing the roof height and adding the dormers. The only permit they had been to replace doors, windows, and siding and to reroof. She noted that the work was done on a Saturday and the Zoning Permit stated no increase in the envelope of the structure. Chairman Speirs pointed out that the work was completed by that Monday, which is unusual.
Mr. Kotzan stated that the Board needs to consider what will happen if they deny the application. Ms. Stutts agreed. Mr. Schellens stated that no alternatives were considered, other than raising the roof. He noted the bedrooms could have been moved to the first floor. Mr. Schellens stated that if he were looking at this application as a structure that had not been changed yet, he would say that this increase is too much for such a small lot. Mr. Kotzan stated that the judge cannot order Mr. Pisani to put the structure back to the original size/shape. Mr. Moll and Mr. Schellens disagreed, and noted that the Board’s charge is to uphold the Zoning Regulations of the Town of Old Lyme.
Mr. Moll showed a picture of the original structure and questioned what a reasonable modification of the house would be. He questioned the hardship. Mr. Schellens stated that the hardship provided was that when the roof collapsed he had to reconstruct to building code. Chairman Speirs noted that the builder stated that the structure had to be reconstructed to building code, not the Town Building Inspector. She noted that the builder did not seem to think he needed a Building Permit, which is surprising. Mr. Moll pointed out that the applicant indicated that they could not get a building permit over the weekend and Mr. Moll questioned why they could not have waited until Monday. Chairman Speirs stated that the roof could have been replaced as it was. Ms. Brown stated
that during the trial Ron Rose testified under oath that this repair had to be done in compliance with the current Building Code. She noted that this is apparently a very recent modification to the Building Code. Chairman Speirs stated that Attorney Royston advised her otherwise. Ms. Brown stated that this was the testimony of Mr. Rose and the State Building Official at the trial.
Mr. Schellens stated that no other hardship was provided other than that the roof collapsed and it had to be rebuilt to code. He stated that looking at the application objectively he could see some of the increase for reasonable use of the property, but not all of it. Mr. Schellens indicated that he attempted to get testimony about this from the architect. Ms. Stutts noted that the floor area ratio is very high. Mr. Schellens agreed, and question how one can justify that expansion.
Chairman Speirs stated that they increased the nonconformity and she believes the applicant has created his own hardship. Mr. Kotzan pointed out that the applicant did apply for the Building Permit to return the structure to its original configuration and after he was denied he applied to the State Building Inspector and was also denied. Mr. Kotzan stated that he couldn’t get a permit to return the structure to its original configuration. Mr. Schellens noted that the 2000 Assessor’s Card states that it is a one-story structure with 5 rooms, 2 bedrooms. He stated that the first floor area is shown as 684 square feet with a finished attic of 137 square feet of living area. He noted that regardless of whether this attic area is bedroom, it is only 137 square feet. Mr. Kotzan
stated that a previous card, 1980, shows that the second floor has two bedrooms. Mr. Schellens stated that he would like to see the applicant modify the structure to code, but only what is required for 137 square feet of living area on the second floor. He noted that this is not what the applicant did. Mr. Moll stated that if the structure were not standing with its six dormers, Mr. Schellens’ suggestion would be an alternative.
Chairman Speirs questioned whether egress could have been accomplished without adding six dormers. Mr. Schellens stated that the architect’s testimony was that they could not have done it and had adequate headroom for two bedrooms. He noted that the architect did testify that one dormer could be removed at this time and still meet code. Mr. Schellens pointed out that this is assuming that they originally had the full floor area in the attic originally and according to the 2000 Card, they did not. Mr. Schellens noted that they increased the floor area in the attic by about 500 square feet, according to the Assessor’s Card.
Chairman Speirs noted that all the surrounding homes are one story, although she noted that the neighbors have not spoken against the variance request. She stated that she believes the applicant has increased the nonconformity and created his or her own hardship. Mr. Moll agreed. Ms. Stutts suggested that they should get legal clarification from Attorney Royston. She questioned whether the Board could grant a variance in this situation.
Mr. Moll questioned whether the applicant would have needed a variance to increase the living area on the second floor, without raising the roof. Ms. Brown replied that if he were not over the floor area ratio, she would issue a permit. Mr. Moll questioned at what point, in terms of square footage, would the applicant need a variance. Ms. Brown stated that the 25 percent FAR would be 622 square feet of living area so in order to enlarge the living area at all he would have had to come to the Zoning Board of Appeals. Mr. Moll noted that the existing first floor is already over the maximum FAR.
Mr. Schellens stated that the 2000 Card shows 137 square feet on the second floor and he would acknowledge that this square footage is grandfathered. He questioned how one could have two bedrooms in 137 square feet. Mr. Schellens stated that if this 137 square feet of living area needed egress per the building code, it would not have taken six dormers. He noted that the builder took it upon himself to put the applicant in peril, which is unfortunate.
Mr. Moll thanked Mr. Schellens for bringing this information to the Board’s attention. He noted that his statements are very important in considering this application. Chairman Speirs agreed and noted that it is not the builder’s responsibility to determine what needs to be done. She pointed out that the owner is responsibility for work on his property and obtaining the proper permits. Chairman Speirs questioned whether this structure could be made more conforming. Mr. Moll stated that it has been presented to the Board as the structure stands today, not as it was prior when it was in need of repair.
The Board agreed that the existing floor area is 684 plus the 137 on the second floor, for a total floor area ratio existing of 33 percent. Chairman Speirs questioned the purpose of Zoning Regulations if everyone did the work without a permit and then came to the Zoning Board of Appeals.
Ms. Brown noted that the accessory building adds lot coverage and she suggested that two conditions of approval could be that one dormer be removed and the accessory building be removed. She noted that this would bring the property a little toward compliance. Mr. Schellens stated that one concern with approving this application is the precedent it will set. He noted that other property owners would say that we approved this application, why not approve theirs. Mr. Schellens stated that this is a case that the Board has to be very careful about. Mr. Moll agreed and noted that the second floor living area expansion is considerable. Mr. Schellens stated that he would like to see the applicant come back with something substantially different.
A motion was made by Tom Schellens and seconded by Richard Moll to grant the necessary variances for 16 Swan Avenue, Guiseppe and Maryjean Pisani, to raise the roof height and add six dormers.
Chairman Speirs questioned whether the application should be denied without prejudice. Mr. Schellens indicated that he wants the applicant to come back with a substantially altered plan and he wants the applicant to understand this. He indicated that there could be less coverage on the property, such as removing the portico, and he could remove several of the dormers. Mr. Schellens stated that the applicant has made no concessions in making this addition more conforming. He noted that if the application is denied, the applicant could come back at any time with a substantially altered plan.
Ms. Brown stated that in Statutes there is no reference to denying without prejudice. She noted that Boards and Commissions use this term and what they are relaying is that the application is close, but they are missing some things. Ms. Brown stated that if the applicant returns with a substantially different plan, it can be heard right away. She noted that it is probably up to the Board to determine whether the plan is substantially different. Ms. Brown stated that the Board could chose to hear the exact same application before six months.
Mr. Schellens stated that if the Court chooses to read the minutes of this meeting they will get the indication that the Board is looking for a modified plan and that the Board is amenable to finding a solution. Chairman Speirs asked that the original motion be withdrawn and a motion to deny without prejudice follow. Mr. Schellens withdrew his motion and Mr. Moll withdrew his second.
A motion was made by Tom Schellens to deny without prejudice the application of Guiseppe and Maryjean Pisani, 16 Swan Avenue, variances to raise roof height and add six dormers.
Ms. Brown stated that a motion to approve is better. Mr. Schellens withdrew his motion to deny without prejudice.
A motion was made by Tom Schellens to grant the necessary variances to increase the roof height and add six dormers, 16 Swan Avenue, Guiseppe and Maryjean Pisani, applicants. Seconded by Richard Moll.
Mr. Kotzan stated that there is not adequate proof that there is a grandfathered use of two bedrooms on the second floor. He noted that the square footage on the second floor is only 137 square feet. Mr. Kotzan stated that the burden is on the applicant to show this. He noted that it would be reasonable to deny because the plan as it exists is a greatly expanded use on the property and he would like to see less of an expansion.
Mr. Schellens stated that it is not the Board’s charge to figure out how to make the application more reasonable. He noted that the applicant only has 137 square feet of living area on the second floor and if he would like to have one bedroom upstairs and another downstairs he would have to submit another application.
Chairman Speirs stated that this application is not within the intent of the Comprehensive Plan of Zoning. She pointed out that the applicant increased the nonconformity beyond what is reasonable. Ms. Stutts pointed out that the applicant created his own hardship by performing the work without obtaining Zoning and Building permits.
Motion did not carry, 0:5.
Chairman Speirs stated that there was an expansion of a nonconforming building on a nonconforming lot and the permits issued did not cover the activity of expansion. She noted that therefore the applicant created their own hardship. Mr. Kotzan stated that it does not appear that the applicant is without options as to returning this building to a more conforming situation. He noted that the existing second floor living area was only 137 square feet and now there is more than four times that. Mr. Moll stated that that amount of expansion would not be approved on a lot this size. Mr. Schellens stated that the Building Official did indicate that there were never any inspections of the construction work on this property because there were never permits issued. Mr. Schellens noted that this
could be a safety issue.
ITEM 3: Future Meeting Notification
Chairman Speirs stated that Mr. Rose has asked to meet with the Board toward the end of August. She noted that she has some information that she will forward to each Board Member regarding the discussing of septics in great detail during the Public Hearings, so that the Board can understand the limits of their inquiries. Chairman Speirs stated that she will send a letter to the Board giving a list of dates in August and asked that each Board Member get back to her as soon as possible.
ITEM 4: Adjournment.
The meeting adjourned at 11:25 p.m. on a motion by Richard Moll and seconded by Tom Schellens. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Clerk
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