APPROVED
OLD LYME ZONING BOARD OF APPEALS
SPECIAL MEETING
WEDNESDAY, MARCH 16, 2005
The Old Lyme Zoning Board of Appeals met on Wednesday, March 16, 2005 at 7:30 p.m. at the Old Lyme Memorial Town Hall. Those present and voting were June Speirs (Chairman), Susanne Stutts, Richard Moll, Kip Kotzan, Judy McQuade (Alternate, seated) and Edgar Butcher (Alternate).
Chairman Speirs called the meeting to order at 7:36 p.m. She stated that Judy McQuade would be seated for Tom Schellens.
ITEM 1: Public Hearing Case 05-07 Russell A. Gomes, Jr.. variance to construct a two-story, three-bay garage.
Chairman Speirs stated that the applicant has requested that the Public Hearing for this matter be continued to the April Regular Meeting. Mr. Moll urged the Board members to look closely at this case, as the applicant is requesting a 60’ x 40’ accessory building with a second floor.
A motion was made by Kip Kotzan, seconded by Judy McQuade and voted unanimously to continue the Public Hearing for this item to the April Regular Meeting.
ITEM 2: Public Hearing Case 05-08, Daniel Schiavone, 13 Sea Lane, variance to construct a garage and breezeway.
Chairman Speirs read a letter from Ann Brown, Zoning Enforcement Officer, noting discrepancies on the Site Plan. Attorney Cronin was present to represent the applicant. He explained that Mr. Schiavone had come up from Florida for last week’s meeting that was cancelled because of snow. Attorney Cronin noted that Mr. Schiavone had to fly back to Florida before this evening’s meeting which is why he is not present. Attorney Cronin stated that variances are requested of Sections 8.8.1 and 8.9.3, both relating to expansion of a structure on a nonconforming lot; and 21.3.7, requiring a 25’ street setback for a variance request of 3.5 feet.
Attorney Cronin stated that this application was before the Board last September and was denied. He indicated that the present plan is identical to the last plan with the exception of the roof height, which has been lowered and the breezeway is not enclosed, as it was in the previous application. Attorney Cronin noted that the height of the garage/breezeway is 15 feet. Mr. Moll noted that the Site Plan Zoning Table has not been revised to agree with the revised architectural drawings and application. Attorney Cronin corrected the information on the Site Plan. Mr. Moll noted that the plans are not signed or sealed by the preparer. Attorney Cronin noted that the original plans were filed with the original case and indicated that he will be sure that the plans are signed if the Board would
like to make that a condition of approval.
Attorney Cronin stated that the breezeway height is not shown on the plan but noted that it appears to be 2.5 feet shorter than the garage, which is 15 feet in height. Using a scale, Attorney Cronin noted that the breezeway is 13 feet high. Attorney Cronin stated that the garage is 22’ x 22’ x 15’. He explained that the proposal includes removing the existing garage, noting that when it was originally constructed the bay opened to the north onto Sea Lane. Attorney Cronin stated that this garage is now basically a storage shed. He explained that the existing pavement to the existing garage will also be removed. Attorney Cronin noted that the nonconformities relating to Sea Lane will all be eliminated with the removal of the existing garage.
Attorney Cronin noted that an entirely new septic system was installed as part of the application and the Sanitarian has approved the application. Chairman Speirs questioned whether the applicant would have a turn around on the property, as it she does not feel it is safe to back out onto Brightwater as it is a public access to the beach. Attorney Cronin noted that they currently back out onto Brightwater, as do the adjacent property owners. Chairman Speirs noted that most of the garages in the area face Sea Lane, not Brightwater. Attorney Cronin stated that Brightwater is a public road. Mr. Moll stated that there is a row of hedges that block the proposed driveway access. Attorney Cronin stated that the hedge will be removed. Mr. Moll stated that the roadway is narrower in the
area of the proposed driveway. Mr. Kotzan stated that he did not believe the relocation of the driveway made a more dangerous situation. Ms. McQuade pointed out that most of the pedestrians will come down Sea Lane and then onto Brightwater Road.
Mr. Kotzan questioned why they are not requesting a variance for the maximum floor area as they were in the previous application. Attorney Cronin stated that the breezeway was enclosed in the prior application and that enclosed area represented floor area. He noted that the breezeway is not enclosed in the current application.
Attorney Cronin noted that the entire area was developed prior to zoning and all the lots are substandard. He stated that the current garage is nonconforming and cannot be improved without a variance. Attorney Cronin stated that the current garage is not functional in serving its original purpose, both in size and location. He stated that there are only two houses in the area that do not have a garage, and most have a two-car garage.
Attorney Cronin noted that the reason most of the homes in the area have garages is because of the blowing wind and sand. He noted that this is a unique consideration. Attorney Cronin stated that one of the considerations of any development along the shoreline is to open up viewing access to the Long Island Sound. He noted that Mr. Dunn, a neighbor, came to the last meeting to speak in favor of the application, although he was not able to come this evening. Attorney Cronin stated that the Dunn’s were concerned about an existing tree located on the northeast corner of the property and that tree will be removed. He noted that that area on the side of the house will be kept open in perpetuity, by agreement between the Dunn’s and Mr. Schiavone. Attorney Cronin read a letter to
the Zoning Board of Appeals from Mr. and Mrs. Dunn’s son, in favor of the proposal.
Mr. Moll questioned how it will be guaranteed that the view will be cleared in perpetuity. Attorney Cronin stated that Phil Dunn, Jr., representing his parents, Judge Dunn, have executed a legally binding property view easement between the properties and will be recorded upon approval of this application.
Attorney Cronin stated that they constructed this application based on comments from the denial of the last application. He noted that increasing the floor area ratio over the allowed 25 percent was an issue, so the breezeway is not enclosed in this application. He noted that the other concern was the height of the structure and the height has been reduced as low as it can be to allow for proper run-off. Attorney Cronin stated that he is hopeful that they have addressed all the concerns of the Board in this application.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Speirs closed this Public Hearing.
ITEM 3: Public Hearing Case 05-10 John Albrycht, variance to divide a nonconforming parcel from the lot at 25 White Oak Trail and to merge that parcel with 7 Shore Drive in perpetuity.
Attorney Thor Holt, for Attorney McGarry, and Mr. Albrycht were present to explain the application. He indicated that the applicant would like to subdivide a parcel at 25 White Oak Trail and to merge that small parcel with 7 Shore Drive in perpetuity. Attorney Holt stated that Mr. Albrycht purchased 25 White Oak Trail approximately 3 years ago. He explained that a home has just recently been constructed on this lot. Attorney Holt stated that the home is situated well within any setback lines and subdividing a small piece from this lot will not make the existing house or lot nonconforming. Attorney Holt stated that he is requesting a variance of Section 9.1, the definition of the term Lot, for the reason being that the proposed triangular lot to be subdivided would not meet the definition. He indicated that Mr. Albrycht does not propose to use this triangular lot for the purpose of building any structures, but rather he wishes to keep it for the convenience of parking for
himself and his neighbors who all have quite limited parking due to their properties’ terrain.
Attorney Holt stated that Shore Drive is a private street that services two houses. He indicated that merging the triangular lot with 7 Shore Drive will not sever the connection that these two otherwise land-locked parcels would have with White Oak Trail. He noted that the triangular lot will be a separate lot from the 7 Shore Drive property.
Attorney Holt stated that Mr. Albrycht could separate the existing parcel at 25 White Oak Trail into two conforming 10,000 square foot lots. Ms. Brown noted that dividing that lot and creating two new lots would require that the new lots be 30,000 square feet. Attorney Holt explained that Mr. Albrycht would like to keep this small parcel to allow parking for himself and his neighbors. He indicated that Mr. Albrycht would prefer to own the lot without having to merge it with 7 Shore Drive but is willing to merge it with 7 Shore Drive if the Board requires that.
Mr. Albrycht explained that the angle on the corner is very sharp and many vehicles cut the corner and come onto his property, especially trucks. He noted that most of his neighbors have indicated that they are in agreement with his proposal.
Mr. Moll noted that if the Board approved this application they would be creating a nonconforming lot. Attorney Holt stated that it could be noticed on the land records that the lot is only for the temporary parking of vehicles and no improvements can be constructed on the lot.
Chairman Speirs questioned the hardship. Attorney Holt explained that the lot at 25 White Oak Trail comes to a point and the tip of it is presently used by the public. He noted that this little triangular tip of land is not going to be built upon whether it is attached to the current parcel or subdivided because of setback requirements. Chairman Speirs stated that the applicant indicates in his application that his hardship is that he does not want a 10,000 square foot lot created from the property at 25 White Oak Trail. She pointed out that 25 White Oak Trail is currently 25,623 square feet and cannot be subdivided because a new lot would require 30,000 square feet.
Attorney Holt noted that the triangular shaped piece would be 5,423 square feet. Mr. Moll stated that the Board should not be creating a nonconforming lot. Chairman Speirs questioned whether, if this application were denied, there was another vehicle by which the applicant could accomplish his goal. Attorney Holt stated that there are other theoretical ways of retaining the rights to this property, one such being by easement. He noted that the problem with that is that there could prospectively be more litigation created by the easement because future owners of the lot could argue that other neighbors parking there is overburdening the triangular piece of land.
Mr. Butcher questioned whether the triangular parcel could be designated unbuildable open space. Attorney Holt stated that merging the triangular piece with 7 Shore Drive would in essence make them one lot. He explained that the Town would probably rather have the lot separate because it taxes parcels individually. Chairman Speirs stated that assessments and taxes are not part of the Board’s consideration. Mr. Butcher stated that the Town could designate the triangular parcel as unbuildable open space. Attorney Holt stated that any one that tried to build on it in the future would then have two obstacles to overcome, one being ZBA approval and the second paying a recapture of the tax. He noted that the problem with open space designation is that there must be a certain square
footage of land. Attorney Holt stated that the applicant is looking to have the triangular parcel designated a separate piece of land so that it can be retained by Mr. Albrycht, but not built upon.
Attorney Holt stated that the Zoning Regulations presently allow for extensions of accessory buildings into the side yard setbacks, roof overhangs and the like, not the underlying dwelling structures. He indicated that he would be preventing that by moving the property line to the west. Attorney Holt noted that in this way nothing can be constructed in the triangular area. He indicated that Mr. Albrycht has signed statements from all his immediate neighbors noting that they have no objection to this proposal.
Ms. Stutts questioned what would happen to the triangular parcel if Mr. Albrycht sold 7 Shore Drive. Attorney Holt stated that that the new owner of 7 Shore Drive would be the owner.
Chairman Speirs stated that she is not comfortable with creating a nonconforming lot because in twenty years some one could apply to the Zoning Board of Appeals to build upon it. Attorney Holt noted that the trend is for lots to be larger, not smaller. He noted that 25 White Oak Trail was originally four separate lots that were merged into one.
Ms. Brown explained that open space is generally classified two ways; one being a tax designation, which doesn’t change lot lines but is simply a tax designation and the other is a deeded open space, which is usually part of a subdivision. Ms. Brown questioned whether Mr. Albrycht intended to lease parking spaces to his neighbors. Mr. Albrycht replied that he is not intending to lease parking spaces.
Chairman Speirs stated that there appears to be other ways to solve the issue of parking without making the triangular parcel a nonconforming lot. Attorney Holt stated that one proposed way is to make a condition on the variance that prevents building on this triangular lot in the future or to allow Mr. Albrycht to merge this piece with his property on 7 Shore Drive. He indicated that he would propose that the triangular lot be created with a condition that it not be utilized as a building lot now or at any time in the future. Chairman Speirs stated that another Attorney could come in the future and request that the condition be removed.
Mr. Butcher stated that there is no minimum size parcel for open space so the triangular lot would not be nonconforming open space. Attorney Holt stated that it could be an open space separate lot. Ms. McQuade stated that it would still be a separate lot, whether one called it open space or not. Ms. Stutts questioned whether the Board had the power to create open space. Mr. Kotzan suggested that the Board get a legal interpretation from their own attorney. Chairman Speirs noted that the applicant’s attorney should present this proposal. She noted that they have not applied for a variance to create an open space lot. Ms. Brown urged the Board to contact their attorney with any questions. She noted that in the definition of subdivision there are some divisions of land
that are exempt from subdivision approval and one is dividing land for conservation purposes. Ms. Brown indicated that a parking area is not a conservation or open space purpose. She indicated that it is clear that the applicant does not want to divide the parcel for building purposes. Mr. Albrycht stated that he would like the Board to consider joining the triangular parcel with 7 Shore Drive, which is the original application. He indicated in this way, the Board would not be creating a nonconforming lot.
Mr. Moll stated that if there is any merit to creating a lot designated open space, the Board should verify this with their legal counsel. Chairman Speirs agreed and indicated that the Board could discuss this in their voting session.
Attorney Holt read a letter to the Zoning Board of Appeals dated March 2, 2005 from Mr. Dobbins stating that he is in favor of the application as long as the merging of the parcel does not interfere with his access to his property on Shore Drive. He also read a letter to the Zoning Board of Appeals dated March 4, 2005, from the property owners of 9 and 10 Shore Drive indicating they are in favor of the application. Attorney Holt read a letter of support signed by Claude Foley, 3 Shore Drive; Herbert Archemien, 30 White Oak Trail; and Tom and Gail Dobbins, 1 Shore Drive.
No one present spoke in favor of or against this application. Hearing no further comments, this Public Hearing was closed.
ITEM 4: Case 04-45 Jerry and Dolores Vowles, 77/79 Hartford Avenue – Review of plan changes.
Mr. Vowles was present to explain the changes to his plan. He noted that when the survey of the property was completed, they found that the roofline of 77 Hartford Avenue would overhang onto 75 Hartford Avenue. Mr. Vowles stated that his plan change is to take a foot off the side of the building so the addition will be 43 square feet less than the Board originally approved. He noted that the original approval called for a 9’ x 43’ addition and now the addition will be 8’ x 43’. Mr. Vowles presented his new plans, noting that this change required a few other changes to the plans.
Mr. Vowles stated that the original plan had a 1’ roof overhang and it is now being reduced to 6 inches. He noted that all of his changes are reducing the size from the original approval. Mr. Vowles stated that his approved plan has an additional 387 square feet on the footprint and the changed plans reduce this to 344 square feet additional footprint. He reiterated that the footprint will be 43 square feet less, or the 1’ x 43’ section he described earlier.
Mr. Vowles explained that he is not adding any additional interior space. He noted that he has also changed the windows on the front of the building. Mr. Vowles explained that he had to recenter the building because he eliminated one foot of the structure. He stated that his changes are all less, or smaller, than what was originally approved. Mr. Vowles stated that he is before the Board because he has changed the plans that they approved. Mr. Vowles stated that the plan before the Board this evening is the exact plan that he has submitted to the Zoning Commission for Site Plan approval. He submitted a revised set of plans for the record.
A motion was made by Susanne Stutts, seconded by Kip Kotzan and voted unanimously to accept the plan changes as presented to Case 04-45, Jerry and Dolores Vowles, 77/79 Hartford Avenue, noting that the building size has been reduced.
The Board took a five-minute recess at this time.
ITEM 5: Open Voting Session
Case 05-08 Daniel Schiavone, 13 Sea Lane
Chairman Speirs stated that the applicant is seeking a variance to construct a 22’ x 22’ x 15’ high two-car garage with an open breezeway. She noted that variances are required of Sections 8.8.1 and 8.9.3 which prohibit additions to a nonconforming building and on a nonconforming lot and Section 21.3.7, minimum setback to the street for a variance of 4.5 feet. Chairman Speirs stated that the hardship provided is that the property was subdivided prior to Zoning and that most other homes in the area have two-car garages. She indicated that he also noted blowing sand as a factor and the impracticality of using the present garage structure as a garage.
Chairman Speirs stated that one of the concerns of the original application was the additional living space provided by enclosing the breezeway. She indicated that the breezeway in this application is not enclosed. Chairman Speirs suggested that a condition of granting this could be that the breezeway remains unenclosed. Mr. Kotzan stated that another condition would be the signature and seal of the surveyor on the Site Plan.
Mr. Kotzan stated that allowing a garage on a house in Old Lyme is a reasonable use of the property. He indicated that another condition of approval should be that the existing garage and associated pavement be removed, as per the site plan.
Chairman Speirs asked that the Building Permit be sent a copy of all variances so that they are aware of the conditions of approval.
A motion was made by Kip Kotzan, seconded by Susanne Stutts and voted unanimously to grant the necessary variances to construct a 22’ x 22’ two-car garage and breezeway, Daniel Schiavone, 13 Sea Lane, as per the approved plans and with the following conditions:
1. Breezeway to remain unenclosed.
2. Signature and Seal of surveyor to be added to corrected site plan prior to issuance of the Building Permit.
3. Existing garage and associated pavement to be removed as per the site plan.
4. Home to remain a seasonal dwelling.
Reasons:
1. The granting of the variance is within the intent of Zoning.
2. Changes from the previous application address the issues that were of concern to the Board.
Case 05-10 John Albrycht, 25 White Oak Trail/7 Shore Drive
Chairman Speirs stated that the Board should discuss this matter this evening and suggested that they defer a decision until consulting with their attorney. Mr. Kotzan agreed, indicating that he would like an opinion from the attorney on whether open space is a viable option. He indicated that he would be in favor of this option if it meant that the Board would not be creating a nonconforming lot. Chairman Speirs stated that she does not see a hardship to the land in this matter. She noted that there is nothing particularly unique to the land. Chairman Speirs stated that she is not in favor of creating a nonconforming lot, although she is willing to discuss the possibility of an open space designation with Attorney Royston.
Ms. McQuade noted that the application before the Board is to divide the parcel at 25 White Oak and merge the triangular portion with 7 Shore Drive. Ms. Stutts agreed. She noted that Mr. Albrycht testified that he would rather have a separate lot and not merge the parcel, which is not what he has applied to do.
Ms. Brown stated that the intention of merge, as Tom McGarry presented it, was to tie the triangular parcel to 7 Shore Drive so that it would never come into a circumstance where some one would want to use it independently. She noted that when Mr. Albrycht sells 7 Shore Drive that triangular piece would convey along with it. Ms. Brown noted that the two parcels would not be physically merged because the street separates them. Chairman Speirs questioned whether there was a Regulation that addresses streets separating lots. She indicated that she does not want to create a nonconforming lot. Mr. Kotzan stated that he would like verification from Attorney Royston as to whether the Zoning Board of Appeals can legally create a nonconforming lot. Mr. Moll stated that he would like to ask if
the intent of what the owner is trying to accomplish, be accomplished in perpetuity by the wording of the variance.
Mr. Kotzan stated that the applicant is trying to accomplish something that would be of benefit to the neighborhood and the Town. Ms. Brown stated that if the intent is for public use, the triangular parcel could be divide off for municipal purposes. She noted that it could be given to the association and have it become part of the street right-of-way. Ms. Brown noted that in this way he would not need the Zoning Board of Appeals approval. She explained that Attorney McGarry only presented to her that Mr. Albrycht wanted the parcel for parking for his own use, not neighborhood use. Ms. Stutts stated that she likes this idea much better as she is not in favor of creating a separate nonconforming parcel.
A motion was made by Richard Moll, seconded by Kip Kotzan and voted unanimously to postpone the decision on this matter until the Chairman has the opportunity to review the application with Attorney Royston.
ITEM 6: New Business
Chairman Speirs stated that the Board discussed and agreed upon a procedure for acceptance of applications. She noted that if the applications were not complete when they were submitted, they would be put off until the second month. Mr. Moll stated that the incomplete files were making reviews, etc. more difficult. Chairman Speirs stated that Attorney Royston agreed that this procedure was correct, as the Board has 65 days from receipt to open the Public Hearing.
Chairman Speirs stated that there is an application that was submitted the first Friday in March and at that time is was incomplete. She noted that the attorney that submitted this is the same one that represents Mr. Gomes, whose application was also incomplete and set for public hearing in two months instead of one month. Chairman Speirs asked Ms. Brown if the application was complete when it was submitted. Ms. Brown noted that it was not complete when it was submitted. She noted that it is still not complete. Mr. Butcher stated that the Zoning Board in Enfield denied applications that were incomplete.
Ms. Brown stated that the applicant is asking the Board to make an exception in this case. She noted that their intent is to get everything in before the April hearing. Chairman Speirs stated that incomplete files and documents being submitted the evening of the hearing are a great time waster for the Board. Ms. Brown stated that the applicant has submitted an application to the Zoning Commission which is also deficient and the Zoning Commission did not set a Public Hearing date for April. Ms. McQuade stated that she feels the Board should be consistent in their dealings with all applicants. She noted that in this way, the process is easier for both the people in the office and for the Board.
The Board agreed that the Public Hearing would be held in May, as the application is incomplete and the Board feels they should be consistent in applying their procedures.
ITEM 6: Approval of Minutes
A motion was made by Richard Moll, seconded by Kip Kotzan and voted unanimously to approve the minutes of February 8, 2005, as clarified.
ITEM 7: Election of Officers.
No action taken.
ITEM 8: Adjournment.
The meeting adjourned at 11:07 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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