APPROVED
OLD LYME ZONING BOARD OF APPEALS
SPECIAL MEETING
WEDNESDAY, JANUARY 26, 2005
The Old Lyme Zoning Board of Appeals met on Wednesday, January 26, 2005 at 3:00 p.m. at the Old Lyme Memorial Town Hall. Those present and voting were June Speirs (Chairman), Susanne Stutts, Richard Moll, Tom Schellens, Judy McQuade (Alternate, seated for Kip Kotzan), and Wendy Brainerd (Alternate).
Chairman Speirs called the meeting to order at 3:15 p.m.
ITEM 1: OPEN VOTING SESSION.
Case 04-44 David & Dawn Hamilton, 63 Browns Lane
Chairman Speirs noted that the applicants are seeking a variance to construct an above ground pool under Sections 8.9.3, no extension or expansion on a nonconforming lot; 21.3.9, setback. She pointed out that there are two different site plans and it is unclear whether the required setback variance that Ms. Brown indicated is accurate. Ms. Stutts noted that it appears that an 8’ variance is required on the north side. Chairman Speirs stated that a variance is also required of Section 21.3.11, maximum coverage allowed is 10 percent, proposed coverage is 11.5 percent for a variance of 1.5 percent.
Chairman Speirs stated that the applicants’ purchased the property in 1985. She noted that there are two other outbuildings on the property, a dollhouse and a shed. Chairman Speirs stated that there is also a deck off the back of the house. She pointed out that the Hamilton’s applied for a permit to construct this pool. She explained that Ms. Brown denied the permit and the applicant was informed that they would have to apply to the Zoning Board of Appeals. Chairman Speirs stated that the Hamilton’s made no application and constructed the pool anyway, at which time a Cease and Desist Order was issued by the Zoning Enforcement Officer. She indicated the application before the Board this evening was made after this course of events and the pool and decking have already
been constructed.
Chairman Speirs noted that one of the site plans does not show the deck. Ms. Stutts pointed out that the house is setback 27’ from the property line on one side and 17’ on the other side. She noted that one of the site plans shows the pool lining up with the side of the house that is 17’ from the property line, which is probably why Ms. Brown indicated that the pool needs a side setback variance of 8’. Ms. Stutts pointed out that the other site plan shows the pool in the middle of the back yard, requiring no side setback variance.
Mr. Moll noted that the decking is 2’ wide around three sides of the pool and 6’ wide along one end. Mr. Schellens stated that 20’ x 32’ is the correct footprint, including both the pool and deck. Mr. Schellens calculated that the deck is approximately 248 square feet in area. The Board agreed that the coverage on the property should be reduced and discussed requiring the applicant to eliminate the 2’ wide decking around three sides of the pool. After lengthy discussion, it was determined that the Board was not clear as to whether the decking was supporting the pool. Board members agreed that the coverage on the property should be reduced.
Ms. Stutts indicated that Mr. Hamilton did not present a hardship. Ms. McQuade stated that the applicant constructed the pool after his permit application was denied and questioned whether approving this application would set a precedent. She pointed out that the applicant constructed the pool with the knowledge that he was not allowed to. Mr. Schellens agreed but pointed out that if there is a way that the coverage can be under 10 percent he would feel more favorable toward the application.
Chairman Speirs stated that the shed and dollhouse are both 8’ x 15’ for a total of 240 square feet of coverage. She suggested that a condition of approval could be removing the sheds. Ms. Stutts stated that no hardship has been presented. Chairman Speirs stated that the applicant indicated as his hardship that he could not purchase more land, although that is not a valid hardship. Mr. Schellens stated that he does not want to condone the idea of forgiveness instead of permission when the applicant specifically applied for a permit and was denied and then constructed the pool. He indicated that it would be reasonable and responsible to deny the application and have the applicant consider ways to reduce coverage on the property and bring the property closer to conformity.
Chairman Speirs pointed out that the Hamilton’s created their own hardship by constructing the pool with the knowledge that they did not have a permit and would need to apply for a variance.
Mr. Moll stated that this application was scheduled for Public Hearing on November 9, 2004, at which time the applicant’s requested an extension to the January Meeting because their application was incomplete. He noted that a letter was sent to the applicant on October 15, 2004 indicating that the file was incomplete. Mr. Moll noted that a letter was again sent to the applicant prior to the January Meeting indicating that the file was still incomplete. He noted that this case has been ill-presented to the Board. Mr. Moll stated that this case has no merit for a favorable disposition.
A motion was made by Tom Schellens, seconded by Richard Moll to approve the application of Dawn and David Hamilton, 63 Browns Lane, for variances to construct an above-ground pool and decking. Motion did not carry, 0:5.
Reasons:
1. Incomplete application.
2. No hardship presented.
3. Not within the intent of Zoning.
4. Current hardship is self-imposed.
Case 05-01 Robert & Dawn McCarthy, 85 Flat Rock Hill Road
Chairman Speirs stated that the applicants have requested a variance to keep livestock on a 2.92 acre parcel. She explained that the Assessor’s Records indicate that the property is 2.90 acres, although Mr. McCarthy testified that Tony Hendriks, surveyor, calculated the land area to be 2.92 acres. Chairman Speirs stated that a variance is requested of Section 21.1.5.1 which states that 3 or more acres is required for the keeping of livestock. She noted that the property is located in an RU-40 Zone. Chairman Speirs stated that the McCarthy’s have had use of the property as a residence.
Chairman Speirs stated that the hardship provided is that they are not able to purchase additional land from their neighbors and that the hardship is unique and not shared by others because only a very small amount of additional land is required. She explained that the house was purchased in 1995 and the property was originally subdivided in 1991. Chairman Speirs stated that the applicant testified that the property has no wetlands or steep slopes and because it is wooded it will provide a buffer to neighboring properties.
Chairman Speirs stated that an acre of land is 43,560 square feet and this is the figure that she be used when determining the acreage of the property. She noted that the McCarthy’s appealed the decision of the Zoning Enforcement Officer in her determination that this property was less than three acres. Chairman Speirs noted that the Zoning Board of Appeals upheld the Zoning Enforcement Officer in this regard.
Chairman Speirs stated that the hardship as provided by the applicant was that strict application of the Zoning Regulations would require them to obtain .08 of an acre. She pointed out that the Assessor’s records indicate .10 of an acre is required.
Mr. Schellens stated that the three acre requirement does not address ledge outcroppings or wetlands. He noted that the regulation does not even address permeable land. Mr. Schellens stated that he feels the three acre requirement is arbitrary. Mr. Schellens stated that the Assessor does tend to round to the nearest tenth of an acre whereas surveys tend to be rounded to the nearest hundredth of an acre. He pointed out that the difference between .08 and .10 is minimal. Mr. Schellens stated that the McCarthy’s have made the effort to acquire additional land and views the land as appropriate for the keeping of livestock.
Ms. Stutts questioned whether the Regulations address the number of livestock allowed per square foot. It was noted that the Regulations do not address the number of animals. Mr. Moll stated that the McCarthy’s property has some restrictions such as the size of the lot, noting that they are only planning to fence in 30,000 square feet. He noted that a veterinarian would suggest that there be at least one acre per horse. Mr. Moll indicated that it is sad to see horses that don’t get exercise and noted that horses are a significant commitment. He pointed out that the Board needs to consider the keeping of all farm animals. Ms. Brainerd pointed out that the applicant testified that she would exercise the horses in the open space. Ms. Brainerd questioned whether the horse
leaving the McCarthy property would bring up another question about public health or safety. Ms. Stutts stated that she is concerned that the land does not appear to be pasture land. She stated that she saw a similar property in Essex that had horses and all the tree bark was chewed as far up as the horses could reach.
Chairman Speirs stated that the approximate fence location was marked on one of the site plans by the applicant. She noted that the fenced area is up toward Flat Rock Hill Road and indicated that the trees, in the winter time, will not provide a buffer for the other residential properties. Mr. Schellens stated that the Board should be considering whether livestock can be housed on less than three acres. He indicated that the Board does not need to consider every detail of the plan. Mr. Schellens noted that the Board is discussing items irrelevant to the application. He stated that the crux of the issue is whether the addition .10 or .08 of an acre is relevant to the McCarthy’s keeping horses. Mr. Schellens stated that this application is no different then allowing some one on a
non-conforming lot to put on a second floor. He explained that stating that the McCarthy’s have reasonable use of their property is inconsistent with other decisions the Board has made. He noted that the person with the nonconforming lot who would like to add a second story also has reasonable use of his property. Ms. McQuade stated that she believes this is different because it is changing the use on the property.
Mr. Schellens indicated that the applicant indicated at the public hearing that they would accept a condition of approval that limits the number of horses to two. Mr. Moll stated that if the McCarthy’s sold the property there would be nothing to prevent the next owner from keeping chickens. Mr. Schellens replied that the Zoning Enforcement Officer would take action, just as she has had to enforce the conditions of other approvals.
Chairman Speirs stated that the owners have had an adequate use of the property and the property owners could board a horse elsewhere. Mr. Moll suggested that the applicants could go to the Zoning Commission and ask for clarification on whether the intent of the Regulation was 43,560 square feet of land per acre or 40,000 square feet per acre. He noted that in addition to that they could question why the quality of the land is not addressed in the Regulations. Mr. Moll stated that livestock need pasture land or suitable land.
Ms. Stutts stated that the Regulation requires three acres or more and the problem is that the quality of land is more important for a three acre parcel and then it is for a ten acre parcel. Ms. McQuade noted that the applicant has indicated that they have approval from the Sanitarian.
A motion was made by Susanne Stutts and seconded by Judy McQuade to grant the necessary variances to allow the keeping of livestock on less than three acres, 85 Flat Rock Hill Road, Robert and Dawn McCarthy, applicants.
Mr. Schellens stated that he would like to add a condition to limit the number of farm animals to two because the property is .08 of an acre shy of the required three acres. The motion was not amended.
Motion did not carry 1:4.
Reasons:
1. Applicant has use of property.
2. Not within the intent of the Plan of Zoning.
3. Adequate hardship not provided.
Case 05-02 David & Nina Peck, 135 Mile Creek Road
Chairman Speirs stated variances are requested to construct a first floor addition in the setback. She explained that the property is located in an RU-40 zone and contains 42,621 square feet. Chairman Speirs indicated that the existing coverage is 4.8 percent and the proposed coverage is 6.2 percent. She noted that variances are required of Sections 8.8.1, no building or other structure which does not conform to the Regulations shall be enlarged or extended; Section 7.4.2, setback for narrow streets, 50’ required, 42’ provided for a variance of 8’; and 21.3.7, minimum setback from street, 50’ required 42’ provided for a variance of 8’.
Chairman Speirs stated that there is a two-story addition proposed and noted that variances are not required for this addition. She pointed out that the variance is required for 35 square feet of the first floor addition that extends into the street setback.
Chairman Speirs noted that the property is located on a corner with two front-yard setbacks. She stated that the house was constructed in 1860. Ms. McQuade noted that the applicant is trying to keep the integrity of the old house.
Mr. Schellens stated that the area to be enlarged was extended as part of a prior variance that was granted and noted that the applicants have created their own hardship. Ms. Stutts stated that she feels the applicants have taken an unusually long narrow house and made it much more usable.
A motion was made by Tom Schellens, seconded by Richard Moll and voted unanimously to grant the necessary variances to construct a first floor addition in the front setback, 135 Mile Creek Road, Nina and David Peck, applicants.
Reasons:
1. Corner lot with two front yard setbacks.
2. Minimal area that required variance.
3. Home constructed in 1860 in front setback.
4. Within the intent of the Plan of Zoning.
Case 05-03 Michael & Lori Dolishny, 47 Brighton Road
Chairman Speirs stated that the variance is required to add a half-story addition and front porch to the existing one and one-half story home. She stated that variances are required of Sections 7.4.2, 35’ setback, 26’ existing, variance of 9’ required; 21.3.10, maximum floor area of 25 percent allowed, variance of 3.5 percent and maximum lot coverage, 25 percent allowed, 29 percent proposed.
Mr. Schellens stated that the maximum lot coverage in the R-10 zone is 25 percent. He noted that the property is already over that at 25.5 percent with the home, deck and pool. Mr. Schellens stated that the property owner is requesting to increase the lot coverage to 30 percent, most of which is for the front porch. He pointed out that the second floor cantilevers out an additional 2’ in the front of house. Mr. Schellens stated that the second floor area is increasing from 704 square feet to 1,415 square feet, which goes over the 25 percent allowed for floor area.
Mr. Schellens stated that he feels the use of the property is at its limit. He noted that he does not see a hardship other than the fact that they have a growing family and would like larger bedrooms. He noted that if the applicant would like this front porch, they should reduce the coverage elsewhere. Mr. Schellens stated that he feels it would be a bad precedent to set to allow the applicant to go over the 25 percent allowed coverage.
Ms. Brainerd stated that the current house seems very consistent with the other homes in the neighborhood, where the proposed home would not be. Mr. Schellens stated that the house was built in the mid 80’s under the current Zoning Regulations and the Dolishny’s purchased the home subsequent to that. He indicated that he does not see a hardship to the land. Mr. Schellens noted that the applicant could build up to a maximum floor area of 25 percent, without obtaining a variance. Mr. Moll noted that the current house does have some deficiencies regarding safety, such as access to the second floor bedrooms.
The Board agreed that a valid hardship was not shown.
A motion was made by Tom Schellens and seconded by Richard Moll to grant the necessary variances to construct a half-story addition and front porch to existing one and one-half story home, 47 Brighton Road, Michael & Lori Dolishny, applicants; motion did not carry, 0:5.
1. Increase of coverage on a lot that is already over the coverage limit.
2. Hardship provided does not apply to the land.
3. Not within the intent of the Plan of Zoning.
4. Insufficient information on site plan, particularly regarding existing deck and pool.
Case 05-04 Gregory R. Smith, 50 Four Mile River Road
Chairman Speirs noted that the application is to construct a new home on a nonconforming lot. She indicated that this application is more complicated than it appears in that Mr. Sheffield represented Mr. Smith, the owner of 50 Four Mile River Road. Chairman Speirs explained that the property is located in an RU-40 Zone and contains 22,000 square feet. She stated that Mr. Smith is seeking a variance to construct a home on a nonconforming lot of 22,000 square feet. She explained that the proposed structure is a 26’ x 36’ cape under Section 8.9.1(a). Chairman Speirs stated that an undersized lot, in an RU-40 zone, may be constructed upon if certain requirements are met, one being that the lot contains 90 percent of the required lot area, provided that is at least 18,000 square feet. She noted that except for lot area and frontage, all other bulk requirements of Schedule A-2 or B-2, as the case may be, shall apply except as varied by the Old Lyme Zoning Board of Appeals.
Chairman Speirs stated that Mr. Smith owns a 22,000 square foot lot and Mr. Sheffield is contributing an additional 5,000 square feet of land and asking for the right to construct a house on a nonconforming lot of 27,000 square feet. She stated that a variance of Sections 21.3.1, 21.3.2 and 21.3.3 are required because the lot is still nonconforming. Chairman Speirs noted that the application states that 119’ square is provided, although the minutes indicate that a 99’ square has been achieved, not 119’.
Chairman Speirs stated that Mr. Sheffield does not want to give any additional land to bring the property closer to conformity. She indicated that she did not feel Mr. Sheffield had a hardship in this case as he can back out of the purchase of the property. Chairman Speirs stated that Mr. Sheffield indicated that he did not want to give additional land to this property because he wants to add on to his house. She noted that Mr. Sheffield has 61,000 square feet of land. Mr. Schellens noted that the site plan indicates that Mr. Sheffield has 61,000 square feet of land after the transfer of the 4,000 square feet. Ms. Bartlett read the minutes where Mr. Hendriks testified that the original parcels are approximately 61,000 and 22,000 square feet, for a total of approximately 84,000 square feet. Mr. Schellens pointed out that the site plan is incorrect, it should show approximately 57,000 square feet for Mr. Sheffield after the lot line modification.
Chairman Speirs stated that Mr. Sheffield could construct a mother-in-law addition to his current home. She noted that there is not a hardship in regards to his mother. The Commission reviewed the elevation drawings and floor plans. Chairman Speirs noted that there are two bedrooms and a bath on the second floor and a bedroom and bath on the first floor. She indicated that if the application were approved she might consider an approval for a two-bedroom house, not a three-bedroom house. Chairman Speirs noted that the lot is undersized. Chairman Speirs stated that the Sanitarian approved the plan on January 11, 2005. She noted that the height of the structure is not indicated on the elevation drawing. Mr. Moll scaled the drawing and noted that it is approximately 23 ½’ in height. It was noted that the proposed well is noted on the septic system design plan.
Chairman Speirs noted that this area was zoned RU-40 because of the ledge in the area. She noted that there are many large rocks on this small lot. Mr. Schellens stated that it appears to him that this application is an “I want” versus an “I need.” He noted that even if Mr. Sheffield wanted to maintain the setback to add on a family, he could still add land further down the property line and down toward the back of the lot. Mr. Schellens noted in this way, Mr. Smith’s lot would become conforming, except in regard to the square. He stated that there is no hardship because Mr. Sheffield has additional land to contribute to bring the lot more into conformity. Chairman Speirs agreed and noted that Mr. Sheffield can walk away from the agreement with Mr. Smith
and build an in-law apartment onto his home.
Mr. Schellens noted that Mr. Smith’s lot is undersized and the fact that Mr. Sheffield is willing to give land invalidates Mr. Smith’s claim that he cannot increase the size of the lot. He noted that Mr. Sheffield has an adequate amount of land to give to Mr. Smith’s lot but he chooses not to. Mr. Schellens stated that the Board can see that there is additional land that can be made part of this application. Ms. Bartlett noted that Mr. Hendriks testified at the Public Hearing that he could not make Mr. Smith’s lot conforming. She pointed out that Mr. Schellens is visually moving the lot line in a way that does not appear to consider the fact that Mr. Sheffield’s lot must still maintain the required square. Chairman Speirs stated that Mr. Hendriks was asked to
find a way to put a house on the 27,000 square foot lot which is all he presented. Mr. Schellens noted that Mr. Hendriks did not show the required square of Mr. Sheffield’s lot on the site plan.
Chairman Speirs stated that the traffic on Four Mile River Road is very heavy and there is a great deal of truck traffic. She noted that if a variance was granted for Mr. Smith to build a home on his 22,000 square foot lot, she would like to see the number of cars in and out of the driveway limited. She noted that she would also like to see a plan of the driveway. Mr. Schellens noted that the septic plan shows the driveway. Chairman Speirs noted that the Board could limit the size of the garage and the number of bedrooms. Mr. Schellens noted that the site plan shows a 26’ x 36’ home and a 24’ x 24’ two-car garage.
Mr. Schellens stated that when Mr. Hendriks presented the application he did not convince him that everything had been done to make this lot as conforming as possible. Mr. Moll stated that the dwelling is being constructed to meet the needs of a particular person. He indicated that a single person does not need three bedrooms and two baths. Mr. Moll stated that the intent of the proponent is not logical to meet the needs of the intended occupant.
Chairman Speirs suggested that the Board could postpone their decision to discuss the case with Attorney Royston. A motion was made by Tom Schellens, seconded by Richard Moll and voted unanimously to continue the open voting session for this application to their February 8, 2005 Regular Meeting to allow for the opportunity to discuss the application with their counsel.
Case 05-05 William Farrell, 37 Grassy Hill Road
Chairman Speirs stated that the variances are required to allow a first floor addition. She noted that the property is located in an R-20 Zone and contains 10,890 square feet, with 8.27 percent coverage. Chairman Speirs stated that 15 percent coverage is permitted and the proposed coverage is 10 percent. She noted that variances are required of the following Sections: 8.9.3, 21.3.1, 21.3.9, 21.3.7 and 7.4.2. Chairman Speirs stated that the hardship provided was the fact that the property has not been upgraded for 50 years and modern appliances are too large for the kitchen. She noted that the house was purchased by Mr. Farrell’s parents in 1964, the house being constructed in approximately 1925.
Chairman Speirs stated that the addition is one-story, although the applicant noted at the Public Hearing that there may be storage above or perhaps a cathedral ceiling. The Board discussed the proposed changes and noted that the proposal is modest. Ms. Stutts noted that the size of the home will be increasing to 975 square feet from 916 square feet. Chairman Speirs stated that one of the hardships is the placement of the house on the lot. Chairman Speirs noted that the applicant did bring a current deed to the Zoning Office the day after the Public Hearing.
A motion was made by Tom Schellens, seconded by Judy McQuade and voted unanimously to grant the necessary variances to allow a first floor addition, 37 Grassy Hill Road, William Farrell, applicant, as per the submitted plans.
Reasons:
1. Placement of house on the lot.
2. In conformance with the intent of the Plan of Zoning.
Case 05-06 Kathleen Aldridge, 70 Sea View Road
Chairman Speirs stated that variances are requested to enclose a portion of an existing screen porch and add a box window. She explained that the area to be enclosed is 8’ x 12’ and variances are required of sections 8.9.3. Chairman Speirs noted that there was a prior appeal in 1986 to connect the garage to the house and to reconstruct the 19’ x 19’ garages. She explained that this variance was granted with the following conditions: 1) seasonal use only, 2) no habitation in the garage and 3) an engineered septic plan.
Chairman Speirs noted that the house was constructed in 1920 and was purchased by the Aldridge’s in 1986. She explained that the Aldridge’s are also constructing a landing that measures 5’6” x 12’. Chairman Speirs noted that the hardship provided was the placement of the house in relation to the side yard. Ms. Stutts noted that the property lacks the required square. Chairman Speirs noted that there is no increase to the footprint of the structure.
A motion was made by Susanne Stutts, seconded by Tom Schellens and voted unanimously to grant the necessary variances to enclose a portion of an existing screen porch and add a box window, 70 Sea View Road, Kathleen Aldridge, applicant, with the following condition:
1. No conversion of the basement to living space.
2. House to remain seasonal use only.
3. No habitation in the garage.
Reasons:
1. Placement of house on the lot.
2. In conformance with the intent of the Plan of Zoning.
ITEM 2: Approval of Minutes
No action taken.
ITEM 3: Adjournment.
Mr. Moll stated that a meeting was held at the Old Lyme Library regarding alternate septic systems. He indicated that there were many guest speakers, including representatives from the DEP. Mr. Moll noted that he is looking for information on alternate systems and will continue to try to get that information from Mr. Rose.
The meeting adjourned at 6:25 p.m. on a motion by Tom Schellens and seconded by Richard Moll. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Clerk
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