APPROVED
OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
TUESDAY, JUNE 14, 2005
The Old Lyme Zoning Board of Appeals met on Tuesday, June 14, 2005 at 7:30 p.m. at the Old Lyme Memorial Town Hall. Those present and voting were Susanne Stutts (Chairman), June Speirs, Richard Moll, Tom Schellens, Kip Kotzan, Judy McQuade (Alternate), Wendy Brainerd (Alternate) and Edgar Butcher (Alternate).
Chairman Stutts called the meeting to order at 7:30 p.m.
ITEM 1: Public Hearing Case 05-16 Edward D. Connors, 33 Old Shore Road, variance to construct a 12’ x 28’ dormer.
Edward Connors was present to explain his application. He indicated that he has an existing 10’ dormer that he would like to extend to 28’. Mr. Connors stated that the existing dormer is 12’ x 10’.
Chairman Stutts noted that variances are required of Sections 8.8.1, no additions to a nonconforming building; 8.9.3, no addition to a building on a nonconforming lot; and 21.3.1, minimum setback 25’, 17’ provided.
Mr. Connors stated that the house was constructed in 1959 and the changes in Zoning in 1995 do not permit him to change the dormer. Chairman Stutts explained that the hardship would have to go to the property. Mr. Connors stated that he understands the hardship cannot be personal. He indicated that he did not believe his dormer would be a hardship to his neighbors because 9 out of the 10 surrounding homes have full dormers or a second floor. Chairman Stutts noted that the existing deck was constructed in 1991 and questioned when the existing dormer was constructed. Mr. Connors noted that it was part of the original construction in 1959. He noted that the pitch of the roof would probably increase slightly with the proposed addition.
Chairman Stutts stated that the house is seasonal. Mr. Connors stated that when the house was constructed it was a year-round home. Mr. Moll noted that three of the Assessor’s Cards indicate that the house is seasonal. Mr. Connors stated that Ann Brown had indicated to him that the seasonal or year-round status of the home should not have any bearing on this hearing.
Ms. Speirs noted that the home does not have a second floor at this time. She noted that the existing dormer is basically an attic area. Ms. Speirs stated that this application is for a partial second floor. She questioned when Mr. Connors began using the home year round. Mr. Connors indicated that he does not use the property year round, but noted that he believes it is a year round property.
Ms. Speirs questioned the use of the space in the existing dormer. Mr. Connors replied that they use it for storage. He indicated that storage of basic household items is difficult in this small house. Mr. Connors stated that he would like to increase the area for use as a sewing/storage room.
Mr. Kotzan stated that the existing living area is 768 square feet, plus 152 square feet for the sunroom. Mr. Schellens stated that the allowed coverage would be 1,600 square feet. It was determined that the total coverage is 920 square feet, or approximately 14 percent.
Mr. Kotzan indicated that he would need to consider during deliberations whether the home is seasonal use only. Mr. Connors stated that although he only uses the home seasonally, his parents used it year round. Mr. Kotzan stated that a future owner may want to use the room as a bedroom and may use the house year round, which would be entirely different then the proposed use of the space today. He indicated that if Mr. Connors would identify the property as seasonal, it would be less of a load on the Town. Mr. Schellens stated that the applicant has indicated that the home has not continuously been used year round. He indicated that he would ask the applicant to amend his Zoning Permit Application to reflect seasonal use. Mr. Connors amended his Zoning Permit Application to reflect
seasonal use.
No one present spoke in favor or against this application.
Mr. Connors noted that he was not able to purchase additional land from his neighbor and indicated that this is documented in the file by a letter.
Hearing no further comments, Chairman Stutts closed this Public Hearing.
ITEM 2: Public Hearing Case 05-17 Fred & Andrea Fenton, 2 Smith Neck Road, Appeal of C&D regarding the keeping of poultry on less than three acres.
Fred and Andrea Fenton were present. Chairman Stutts noted that Ms. Brown was not present this evening and Ms. Stutts read a statement from Ms. Brown for the record. Mr. Fenton indicated that he does not disagree with anything in Ms. Brown’s statement, but he would like to make a distinction between poultry and pets. He noted that his family has a few chickens that are not kept for commercial purposes. Mr. Fenton stated that the definition of poultry in the dictionary is chickens that are kept for commercial purposes. He noted that his chickens are not kept for commercial purposes but are beloved pets. Mr. Fenton stated that they have hired an artist to commission pictures of their chickens. He noted that they have names. Mr. Fenton stated that they love their chickens.
Ms. Speirs questioned whether the Fenton’s kept the chickens in the house. Mr. Fenton replied that they do not, they are in a coop. He indicated that it appears the Regulations were changed in 1991 to require three acres for the keeping of chickens. Chairman Stutts noted that the Board is charged with upholding the current Regulations. Mr. Fenton stated that there should be a distinction between pets, which his chickens clearly are. Mrs. Fenton stated that the chickens did live in the house for the first 6 weeks of their lives.
Mr. Fenton noted that when they were notified of the complaints, they immediately removed the roosters.
Mr. Moll stated that there have not been too many farm animal cases over the past 15 years. He indicated that the Regulations are very clear that they require 3 acres of land to keep farm animals. Mr. Moll noted that the use of the word “poultry” is very generic.
Hearing no further comments, Chairman Stutts called this hearing to a close.
ITEM 3: Public Hearing Case 05-18 Fred & Andrea Fenton, 2 Smith Neck Road, variance to keep poultry on less than three acres.
Fred and Andrea Fenton were present to explain their application. Chairman Stutts stated that the proposal does not comply with Section 21.1.5.1 of the Zoning Regulations. She noted that the lot size is 1.2 acres, for a variance of 1.8 acres. Mr. Moll stated that the file shows support for the variance from the neighbors. Mr. Kotzan noted that the Board could condition an approval to the lifetime of the current chickens. Ms. Speirs disagreed, and noted that this would be impossible to enforce.
Mr. Fenton stated that they are trying to be good neighbors. He indicated that when they received the Cease and Desist Order they immediately got rid of the roosters. Mr. Fenton stated that today, unless some one came onto their property, no one would know that they have chickens. Ms. Brainerd questioned whether he has tried to purchase additional land from his neighbors. She noted that the neighbors have offered the land for his use. Mr. Fenton stated that his neighbors have a three acre parcel and he is not sure if they would be willing to sell.
Mr. Moll questioned the number of chickens currently on the property. Mr. Fenton replied that they now have seven. Mr. Moll questioned how many roosters they had. Mr. Fenton replied that they had three, only because they got them as chicks and did not know what they were. Mr. Moll noted that there is a mixed flock of bantams and regular sized chickens. Mr. Fenton stated that they brought the chickens to the Hamburg Fair and won several prizes. Mr. Moll questioned whether they plan to have their children involved in 4H. Mr. Fenton replied that he does plan to involve his children in 4H. He noted that the kids have learned the responsibility of chores by keeping the chickens. Mrs. Fenton noted that they have also learned the life-cycle of chickens.
Ellen Caulkins, Hillwood Road, stated that when it comes to animals and creatures the Town should look at the gray areas. She noted that 7 chickens is much different then a poultry farm. Ms. Caulkins stated that these chickens are pets and it should not require Town involvement in the keeping of pets. Ms. Caulkins’ son read and submitted a letter of support for the record. His sister also provided her drawing of a red chicken and placed it in the record for her support of the chickens.
Alex Richardson, 41 Smith Neck Road, indicated that he drives by the Fenton’s at least six times a day. He stated that the issue is really noise abatement, which the Fenton’s have addressed. Mr. Richardson stated that the real noise issue at the corner of Smith Neck and Shore Road is Harley Davidson motorcycles, not chickens. He stated that the chickens are a positive thing for the neighborhood.
Chairman Stutts read a letter from Richard and Roseline Hinnman, 1 Smith Neck Road, supporting the Fenton’s variance application and a letter from Belton and Jeanne Copp in support of the application. The Copp’s letter also stated that the Fenton’s “closest and only neighbor, the Volpe’s, have agreed to extend their property so as to be considered part of the three acres. Moreover, we own property to the other side that we are willing to extend as well to allow the Fenton’s their chickens.”
Ms. Chadwick stated that she was against the roosters and complained about their annoyance. She is also still worried about the wetlands and the runoff of the chicken waste, even though there are now only seven (7) hens.
Hearing no further comments, Chairman Stutts called this hearing to a close.
ITEM 4: Public Hearing Case 05-19 Susanne Mandeville & Norman Renaldi, 29 Homestead Circle, variance to construct a two-car garage with loft.
Mr. Renaldi indicated that they have the largest lot on Homestead Circle, their home has two (2) bedrooms and the height of the proposed garage is 20’ (the same height as the existing house). Mr. Renaldi also indicated that an existing maple tree restricted the area behind the house for the proposed garage.
Mr. Renaldi stated that there would be no plumbing or heating in the garage/loft. Mr. Renaldi stated that he his design is such to bring all the rooflines together and make it appear like the entire structure was constructed at the same time. Mr. Moll stated that the windows look rather different than those on the existing house. Ms. Speirs noted that there is a breezeway between the house and the existing garage. Chairman Stutts stated that because the elevation drawing does not show both the house and the garage together it is difficult to get an idea of how the garage will look in relation to the other homes in the area. Mr. Moll expressed his concern that the proposed garage’s architecture did not match the existing gambrel roof architecture of the applicants’ existing house.
Mr. Renaldi stated that he purchased the house in 1996.
Kathryn Bencher indicated that she lives directly across the street and is delighted with the renovation. She stated that they have done many fine projects and are adding value to all the homes in the neighborhood. Mrs. Bencher stated that she and her husband are in favor of the application.
Chairman Stutts read a letter from Mrs. Wiggins stating her opposition to the application. Responding to Mrs. Wiggins comments, Mr. Renaldi noted that the second story or loft begins 12’ back from the front of the garage. He noted that the second story would not be in Mrs. Wiggins’ line of sight. Mr. Renaldi showed a photograph of the Wiggins’ current line of sight down to the water and he indicated that this view would remain the same.
Ms. Mandeville stated that the Wiggins’ house is in the side setback. She noted that the proposed addition is not in the side setback, it just needs a variance for the narrow street setback. Ms. Mandeville stated that the plans before the board indicate a 24’ x 26’ garage but they have applied to construct a 24’ x 24’ garage to give more room on the Wiggins’ side of the property.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 5: Public Hearing Case 05-20 Paula & Jim Powers, 42 Coult Lane, variance to construct an addition.
Paula Powers was present to explain the application. She stated that they would like to put a bedroom over the existing garage. Mrs. Powers stated that they will convert one of the existing bedrooms to an office so there will be no increase in the number of bedrooms.
Chairman Stutts stated that variances are required of Sections 8.9.3, no additions on a nonconforming lot and 22.3.3 (minimum square). Mrs. Powers explained the floor plans to the Board. She noted that they propose to incorporate the existing closed in porch into the new kitchen. Chairman Stutts noted that the only addition to the coverage on the lot is in the rear of the house. Ms. Speirs asked the applicant to label the rooms as to their use. Ms. Speirs noted that the deed is incorrect and will have to be corrected. Mrs. Powers stated that she closed on the house January 15, 2005.
Chairman Stutts stated that the total proposed footprint is 4,236 square feet and the existing footprint is 3,924 square feet. She noted that the project meets the coverage requirements.
Mrs. Powers stated that she spoke to her adjacent neighbors who were all in favor of the proposal. Mr. Kotzan pointed out that the Board usually asks if the applicant has attempted to purchase property from adjoining neighbors, and noted that in this case the adjoining neighbors are lacking the square also and would become more nonconforming if they gave up some land. Chairman Stutts stated that every lot in the subdivision is long and skinny.
Chairman Stutts stated that approval from the Health Department has not been granted. Mrs. Powers stated that the Health Department indicated that the test holes could be done when the foundation is dug.
Chairman Stutts read a letter from Carl and Maureen Friedman, 40 Coult Lane, indicating their support of the application.
No one present spoke in favor or against the application. Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 6: Public Hearing Case 05-21 Nancy Sell, 372 Shore Road, variance to erect a 7’ x 13’ sunroom on an existing deck.
Todd Brewer, contractor, was present to represent Nancy Sell. He explained that the applicant would like to construct a 7’ x 13’ sunroom on the existing 7’ x 20’ deck. Mr. Brewer stated that the sunroom is three season, with no water, just electricity provided.
Chairman Stutts stated that the lot is nonconforming as to the square. She noted that 150’ is required and the lot is approximately 110’ square. Chairman Stutts noted that variances are required of Sections 8.9.3, no additions to a building on a nonconforming lot.
Mr. Brewer stated that the lot is pie-shaped. He noted that the construction meets setbacks. Chairman Stutts stated that the lot is 30,056 square feet in a C-30 zone. Mr. Brewer stated that the lot is surrounded by 26 acres of Town owned open space. He displayed a picture of the sunroom, noting that it is glass-enclosed. Mr. Brewer stated that there is a door from the sunroom to the open deck. He indicated that the room is designed for 140 mile per hour wind speeds. Mr. Brewer noted that they have noted on the plan that it can sustain winds of 120 miles per hour.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 7: Open Voting Session
Case 05-16 Edward D. Connors, 33 Old Shore Road
It was noted that Mr. Connors had amended his Zoning Permit Application to reflect seasonal use. The existing lot size of 6,400 square feet versus the required 10,000 square feet and the general overcrowding in the neighborhood and concern for increasing the bulk of the applicant’s house with the proposed expansion of the existing 10’ wide dormer to a 28’ wide dormer were discussed. Also, a condition to limit the use of the increased second floor space provided by 18’ more of dormer for storage only, as proposed by the applicant, posed the question of how assurance of compliance by the current, or any future owner, could be ensured. Mr. Connors had indicated his hardship was a lot shape that meets the required square. The undersized lot amount of 3,600 square feet of the
required 10,000 square feet was considered a more significant issue. Mr. Moll pointed out that the 1960 Assessor Card filed by the applicant had been stamped by the former Health Director, Frank Kneen, as “Seasonal Use Only” as an evaluation of this land’s inability to sustain expanded use.
A motion was made by June Speirs and seconded by Kip Kotzan to grant the necessary variances to construct a 12’ x 28’ dormer, as per the approved plans and with the following conditions:
1. Dormer area not to be used as a bedroom.
2. House to remain a two-bedroom home.
Motion did not carry, 2:3, with Ms. Stutts, Ms. McQuade and Mr. Kotzan voting against.
Reasons:
1. Insufficient hardship.
2. General area is overcrowded and overbuilt.
3. Dormer adds too much bulk.
4. Undersized lot.
5. Home has served family use since 1958.
Case 05-17 Fred & Andrea Fenton, 2 Smith Neck Road, Appeal
The basis for the C&D documented in the statement by Mrs. Brown (ZEO) was discussed. Mr. Schellens indicated the regulation requiring three acres does not specify the quality of the land such as arid or marsh. Mr. Moll indicated that poultry does not mean “chickens kept for commercial purposes.” Also, he noted that Mr. Fenton had stated that the source of the complaint, three (3) roosters that were part of the ten (10) original chickens raised in the house, were immediately removed from 2 Smith Neck Road upon receipt of the Cease and Desist.
A motion was made by Tom Schellens, seconded by Kip Kotzan and voted unanimously to uphold the Zoning Enforcement Officer in her issuance of a Cease and Desist Order for the keeping of poultry on less than 3 acres.
Reasons:
1. Applicant has 1.2 acres, less than the three acres required.
2. Zoning Enforcement Officer was reasonable in considering chickens poultry and not pets.
Case 05-18 Fred & Andrea Fenton, 2 Smith Neck Road, Variance
Chairman Stutts stated that the application states that the hardship is that the chickens are their pets and it is unique because no neighbors are within 100 feet of the house and other neighbors have offered use of their land for chickens. She explained that the coop is tucked below Route 156 and is not in view. Chairman Stutts stated that several people from the public spoke in favor, Ellen Caulkins, Alex Richardson and Joan Ringering. Ms. Speirs questioned whether these people were adjoining neighbors. Chairman Stutts replied that they are not. She indicated that Pat Chadwick is the only neighbor that spoke. Chairman Stutts stated that Ms. Chadwick stated that the roosters were very annoying to her and she was the one that complained. She noted that Ms. Chadwick also indicated
that the noise level has gone down now that the roosters are gone but she is still worried about the wetlands and the runoff of the chicken waste. Chairman Stutts stated that Ms. Chadwick also noted that she was irritated that the Cease and Desist was ignored by the Fenton’s. Ms. Speirs stated that the chickens were purchased by the Fenton’s one year ago.
Chairman Stutts stated that chickens are very educational but noted that that is not a hardship. She indicated that the Fenton’s have the option of having chickens if they have a three acre parcel. Mr. Schellens stated that he is sympathetic, but a neighbor complained and the Board’s obligation is to uphold the Zoning Regulations as they exist, except in the instance of hardship. He noted that the Fenton’s have only had the chickens for one year and there are farm facilities in the Town that may be willing to adopt these chickens. Mr. Schellens noted that the Fenton’s are not even close to the three acre requirement.
A motion was made by Tom Schellens and seconded by Kip Kotzan to grant the necessary variances to allow the keeping of chickens on less than three acres, 2 Smith Neck Road, Fred and Andrea Fenton, applicants, with the following conditions:
1. Number of chickens limited to 8 or less, hens only.
2. Limited to the lifetime of the current chickens.
Ms. McQuade stated that she lives on Smith Neck Road and noted that this particular lot is 1.2 acres, but the useable part of the lot is much less than that because of the wetlands. She stated that these chickens run around a very small patch of grass. Ms. McQuade indicated that she does not believe it is a good situation because of the proximity to the marsh.
Ms. Speirs stated that it is unfortunate that the Fenton’s reason for wanting to keep the chickens is that they are pets, because most people do not regard chickens as pets. She noted that the neighbors are quite willing to lend land to the Fenton’s, but she does not find that adequate in fulfilling the three acre requirement. Ms. Speirs stated that the applicant has other options such as boarding them at a farm.
Mr. Kotzan stated that he interprets the intent of the Regulation as the keeping of farm-type animals. He stated that a hardship exists if strict interpretation of the Regulations prevents a reasonable use of the property. Mr. Kotzan stated that he does not believe the Regulations are set up to prevent what the Fenton’s are doing.
Chairman Stutts stated that she believes that if one neighbor is not in favor of the activity, the Regulations should not be varied. Mr. Schellens agreed and noted that the Fenton’s can request a Regulation change to the Zoning Commission.
Mr. Moll stated that the original complaint was in regard to the roosters, which have been removed. He noted that he has been involved in 4H projects and he has seen what it has done for children. Mr. Moll stated that it is his understanding that the Regulations require three acres for farm animals so that there are not chickens and such running around the beach areas. He stated that he viewed the Fenton’s property and feels it is adequate for the number of chickens the Fenton’s have.
Chairman Stutts stated that she does not feel it is appropriate for the parents to set up a 4H school on less than half the required land. Mr. Moll questioned whether the Fenton’s were aware of the Zoning Regulations. Ms. McQuade stated that her daughter belonged to 4H and they did not have a cow in their yard because they had less than one acre of land. She indicated that anyone can join 4H and visit farms for their experiences. Ms. McQuade stated that belonging to 4H does not exempt one from the Zoning Regulations.
Mr. Schellens stated that the property is not close to the three acre requirement. He indicated that the Fenton’s could petition the Zoning Commission to amend the Regulations to allow the keeping of chickens on less than three acres of land. He also noted that most of the property is marsh. Mr. Schellens stated that he is sympathetic as it is a wonderful experience for children.
Mr. Moll stated he grew up with 39 sheep on an acre and one third. He stated that the Board could limit the number of chickens to the existing seven chickens.
Mr. Kotzan stated that as a biologist, he can state that the wetlands are virtually irrelevant. He noted it is a degraded fragmities marsh right now, with geese all over the place.
Mr. Schellens suggested adding a condition that the chickens are kept in a fenced enclosure.
Ms. McQuade stated that the Board recently denied an application to keep two horses on less than three acres of land. She noted that in that case the applicant was only shy 1/10th of an acre.
Mr. Schellens amended his motion to include the following additional conditions:
3. The chickens are kept in an enclosed area.
Motion did not carry, 2:3, with Mr. Kotzan and Mr. Moll voting in favor.
Reasons:
1. A hardship to the land was not presented.
2. Not within the intent of the Plan of Zoning.
3. Property is less than half the required acreage, with half being marsh.
4. Neighbor found the keeping of chickens objectionable.
ITEM 8: Approval of Minutes of the May 10, 2005 Regular Meeting
No action taken.
ITEM 6: Any New or Old Business to come before said meeting.
The Board agreed to hold a Special Meeting on Monday, June 20, 2005 at 4:30 p.m. to finish the Open Voting Session.
ITEM 7: Adjournment.
The meeting adjourned at 10:45 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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