UNAPPROVED
OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
TUESDAY, March 14, 2006
The Old Lyme Zoning Board of Appeals met on Tuesday, March 14, 2006 at 7:30 p.m. at the Old Lyme Memorial Town Hall. Those present and voting were Susanne Stutts (Chairman), Kip Kotzan (arrived at 7:33 p.m.), June Speirs, Tom Schellens, Joseph St. Germain (Alternate), Wendy Brainerd (Alternate) and Judy McQuade (Alternate – seated for Richard Moll).
Chairman Stutts called the meeting to order at 7:30 p.m.
ITEM 1: Public Hearing Case 06-15 Gregory McKenna, 58 Sea View Road, Appeal of ZEO’s denial of Certificate of Zoning Compliance.
Attorney John Bennett and Gregory McKenna were present to explain the application. Attorney Bennett explained that the McKenna’s purchased 58 Sea View Road and rebuilt the property in accordance with permits granted to them, including a septic design permit. He stated that as a result of the construction, questions arose regarding the height of the structure. Attorney Bennett stated that the resulting house is not higher than it used to be. (Mr. Kotzan arrived at this time.)
Attorney Bennett distributed copies of photographs of the pre-existing home. He explained the photographs to the Board. Attorney Bennett stated that the McKenna’s realized the house was in desperate need of repair and showed a picture of the house leaning substantially to the right. He indicated that a reason for this is that the house was built on piers. Attorney Bennett stated that in the photographs one can see underneath the house all the way through to the lattice on the other side. He pointed out the large outcropping of ledge in the basement area.
Attorney Bennett displayed a photograph of the back of the garage, taken from the same angle as the picture on the Assessor’s Card. He noted the crack in the foundation of the garage. Attorney Bennett stated that he is presenting this photograph so that the Board can see the grade of the land. He noted that #60 Sea View can be seen and one notices the land sloping off toward this house. Attorney Bennett stated that this photograph will be important later in his presentation when they discuss fill and the septic system and other issues that surround this matter. He submitted another similar photograph of the garage. Attorney Bennett submitted more photographs of the original house. He pointed out that the lattice work is evident in this picture and shows that there is no
foundation. Attorney Bennett stated that this photograph also shows that the house was raised a foot or so off the ground in its original configuration. He submitted a picture of three garages, #60, #58 and #56 so that the Board can see the topography of the land.
Attorney Bennett stated that Ms. Brown’s decision is dated January 3, 2006 and contains four elements. He noted that the first element states that the Zoning Application filed contained many specific limitations, the first being that the east wall to remain standing which was not done. Attorney Bennett stated that the Zoning Application states, among other things, that it is going to be a four bedroom house with one full bath and one partial bath. He indicated that as finalized, it is a three bedroom house. Attorney Bennett stated that the activity description is to demolish and replace the existing structure. He noted that the second page is the scope of repairs. Ms. Brown pointed out that Attorney Bennett is reading the Building Permit, not the Zoning Permit. Attorney
Bennett stated that the conditions were from the Zoning Department, although they were also attached to the Building Permit. He read the condition directly from the permit as it was stated: “Demolish existing structure except for the east wall, water side, at basement elevation.” Attorney Bennett noted that this was done; the building was demolished and this wall was left standing. He explained that the wall later collapsed. Attorney Bennett stated that it is his position that it doesn’t really matter in the long run. He noted that the Zoning Regulations in Section 8.5 allow some one to replace the building materials of a structure with new materials. Attorney Bennett noted that the applicant intended to have the wall stay in place. He indicated that the issue is the procedure, not the end result, as they could have replaced that wall stick by stick and it would not have been a violation.
Attorney Bennett stated that in his statement of support of appeal dated January 23, 2006, he cites many relevant cases. He indicated that the Lampasona decision is probably the most relevant.
Attorney Bennett stated that the second element in Ms. Brown’s letter of January 3, 2006 states that the scope of repairs submitted with the application contains specific references to the grade of the land not being increased. He explained that condition #6 states “backfill new foundation to confirm to existing grade, contours, elevations and present run-off controls.” He read condition #11: “Finished grade shall conform to existing land contours and elevations.” Attorney Bennett agreed that these conditions were not met as there is more fill material between the garage and the house. He noted that the reason they added fill was for the septic system. Attorney Bennett pointed out that condition #9 states “Shoreline Sanitation Inc. to install a new
septic tank and fields as required to accommodate the repaired structure.” He explained that there is tension between these conditions. Attorney Bennett submitted a copy of the permit for replacement of the septic system for the record. He pointed out that on the top of the permit it states that the final elevation of the system to be determined by the contractor in the field; all systems must be 48” minimum above ledge and 18” minimum above maximum ground water; effluent pump to be added to tank. Attorney Bennett stated that the septic system was installed between the house and the garage and it had to be 48” above the ledge shown, and then it had to be covered. He noted that this resulted in the grade coming up a little bit. Attorney Bennett submitted a picture of the retaining wall and noted that it was another condition of the septic permit. He noted that this wall was constructed between #58 and #60 Sea View
Road. Attorney Bennett stated that this wall has a rubber membrane behind it in the event that there is a problem with the system. He reiterated that this was a requirement of the septic permit. Attorney Bennett submitted another picture of the retaining to demonstrate the amount of fill that was brought in.
Attorney Bennett submitted a photograph of the house after it was reconstructed. He noted that if one contrasts the pictures of the pre-existing house with the existing house they will notice the same basic roof line and the same basic porch area on the side. Attorney Bennett stated that the photograph of the reconstructed home shows the house at ground level. He pointed out that the photograph of the pre-existing house shows it approximately 1’ off the ground.
Attorney Bennett pointed out that the Zoning Regulations have requirements for permits with respect to filling. He noted that there are exemptions and he read Section 43.2,1, excavation, removal or deposit of material reasonably necessary in connection with the bonafide construction, alteration or repair of a building, other structure, a paved area or site development for which a Zoning Permit shall have been issued by the Zoning Enforcement Officer. Attorney Bennett noted that there was a Zoning Permit issued, a Building Permit issued and a Septic Permit issued. He stated that the amount of fill brought in was just enough to cover the system once it was installed. Attorney Bennett stated that a fill permit was not required, it is exempt. Attorney Bennett stated that Ms. Brown states that the
conditions regarding the filling have not been met as all sides now agree. He indicated that his client does agree that fill was brought in but also thinks it is exempt.
Attorney Bennett stated that #3 of Ms. Brown’s memorandum states Section 8.9.3 of the Regulations prohibits the “extension” of structures on lots which are nonconforming; the lot at 58 Sea View is nonconforming as to size and shape and therefore any “extension” of the structure is a violation of the provisions of Section 8.9.3; by placing additional fill on the property you have raised the highest point of the house by 2 feet; this constitutes an extension of the house, even in the absence of the house having additional square footage of living space. Attorney Bennett stated that the wooden box of this house is no taller than it was. He indicated that the foundation is a little higher but height is measured in the Regulations as average height above grade, not absolute elevation. He noted that the house is approximately 32 feet in height. Attorney Bennett indicated that there is no violation here. He stated that the house is actually a littler shorter than it was previously.
Attorney Bennett stated that the house is no higher as to elevation either, although it was thought that it was. He presented a photograph of the house taken across the street in the neighbor’s driveway of the pre-existing house and a photograph of the reconstructed house, taken from the same location. Attorney Bennett noted that there is a fixed point, the railing of the house across the street and the shoreline on the far side. He submitted an acetate print of each photograph so that the Board could overlay the photographs, lining up the roof ridges and the far shore, and see that the height of the house has not changed. Attorney Bennett stated that one can notice from these photographs also that the roof pitch has been dropped.
Attorney Bennett pointed out that all parties agree there is no additional square footage to this house and that it is under 35 feet above grade. He indicated that he believes he has demonstrated that it is also at the same elevation or within inches or the original elevation.
Attorney Bennett stated that there is one concerned neighbor who has letters in the file, the property owner on the north side Adrian Farquharson. He asked that the Board also read Mr. Farquharson’s letter of February 14, 2005, in which he states that he is not concerned about the building plans as stated in his previous letters. Attorney Bennett stated that he is now concerned about a retaining wall and the fact that Mr. McKenna will have eight parking spaces. He pointed out that the McKenna’s do not have eight parking spaces. Attorney Bennett stated that the McKenna’s and the Farquharson’s have a very cordial relationship and as a matter of fact, the McKenna’s are constructing an enclosure for the air-conditioning units because of the Farquharson’s
concerns. He noted that the concerns expressed in the letters did not happen; there are only four parking spots, not eight.
Attorney Bennett stated that #4 of Ms. Brown’s letter states “In addition, the extension of the house has occurred in other setback areas, side setback areas, and any enlargement in the setback areas is in violation of Section 8.8.1 and 21.3.9.” He stated that this refers to the height of the structure around its perimeter. Attorney Bennett stated that he lost a court case defending this exact position which the Supreme Court later refused to hear. He indicated that Attorney Knapp will state that the Old Lyme Zoning Regulations are different than those involved in the case of Doyen vs. Essex ZBA and therefore it does not apply. Attorney Bennett stated that he does not agree with that position.
Attorney Bennett stated that the roof pitch was flattened. He noted that there are nine foot ceilings on the first floor, which is the previous height of the ceilings. He indicated that had they known there would be a problem upfront, they could have been reduced slightly. Attorney Bennett stated that the top of the house is under the Zoning Requirement of 35 feet and the McKenna’s have complied to the extent that they were able, given the counter-forces between the need for a conforming septic system and the conditions put on the approval. He asked the Board to make a finding that Ms. Brown can issue the Certificate of Zoning Compliance. Attorney Bennett stated that the Board can do this on a fact-basis without addressing the interpretation of the Regulations. He pointed out that
his acetate demonstration shows that the circumstances are different. Attorney Bennett reiterated that the Regulations allow for an exemption for the minor filling for the septic system and his client is entitled to a Certificate of Zoning Compliance.
Attorney Bennett stated that the McKenna’s are the type of people that Old Lyme wants in Town; he noted that they have not made a huge architectural statement; he noted that they have not winterized the cottage. He stated that they took a house that did not have a conforming septic system and was falling down and constructed the same house on a foundation with a conforming septic system. He asked the Board to authorize Ms. Brown to issue the Certificate of Zoning Compliance.
Attorney Bennett explained the difference in the pre-existing and existing floor plans. He noted that there is no claim that the floor area has been increased, as pointed out in Ms. Brown’s letter. Attorney Bennett noted that the home has been reduced from four bedrooms to three bedrooms.
Ann Brown, Zoning Enforcement and Wetlands Enforcement Officer, indicated that she has been in both of these positions since January of 2002. She introduced her attorney, Eric Knapp. Attorney Knapp stated that there are two different issues and he will not address the height of the house, which appears to be a new issue presented this evening. He indicated that Attorney Bennett has made more of a variance pitch, in the sense that he freely admits there was a tension in the permit and things went wrong and things had to change. Attorney Knapp stated that rather than come in and modify the permit, they basically violated the permit and now state it is okay because of the circumstances. He indicated that it is not up to Mr. McKenna to make the changes, it was up to Mr. McKenna to bring the
matter to Ms. Brown so that the permits could be altered accordingly.
Attorney Knapp stated that it may be appropriate to issue a variance for the reasons presented by Attorney Bennett, but it doesn’t go to the heart of the issue which is that the permit required certain things to be met and they were not met. He pointed out that the permit required the east wall to remain standing and it did not remain standing; it required the backfill of the new foundation to conform to the existing grade contours; which it doesn’t; it required that the finished grade shall conform to the existing land contour and elevation and it clearly does not. Attorney Knapp stated that these were not conditions forced on Mr. McKenna, they were voluntarily submitted by the applicant. He explained that for these reasons Ms. Brown refused to issue the Certificate of Zoning Compliance.
Attorney Knapp stated that Attorney Bennett indicated that the applicant could have demolished the structure and rebuilt it. He noted that that is not the law. Attorney Knapp stated that in the Lampasona case in North Stonington, the Court said that the mobile home was not the nonconformity, it was the lot that was the nonconformity. He indicated that in the McKenna case it is not just the lot that is nonconforming it is the structure itself also. Attorney Knapp explained that once a nonconforming structure is demolished, the new structure must conform within the setback lines and this home does not. He indicated that the right to rebuild a nonconforming structure was tied to the fact that some portion of the structure was to remain.
Attorney Knapp stated that the Doyen Case is very Regulation specific and the Old Lyme Zoning Regulations vary in very specific ways from the Essex Regulations. He pointed out that Old Lyme has the additional provision that it not only says that one cannot build nonconforming structures, but it also says that if the lot is nonconforming one cannot build anything new on a nonconforming lot. Attorney Knapp stated that the crucial piece of this hearing is that the permit was very specific as to what it required and these requirements were not met. He pointed out that all sides appear to agree to this fact.
Ms. Brown stated that she and Mr. McKenna spoke many times about the permit and the project. She indicated that Mr. McKenna decided that his house needed significant repair and that he would repair it in place instead of coming to the Zoning Board of appeals. Ms. Brown stated that to ensure that this could happen, she and he worked together to work out the series of conditions which Mr. McKenna typed out and submitted. She indicated that the house is rather large on an 8,000 square foot lot. Ms. Brown stated that the homes on the opposite side of the street are up a little higher so they have some view above and around the homes on the water side of Sea View. She noted that it was important for the Zoning Regulations and the circumstances on the lot to make sure that it end up the same size,
shape and location as where it started. Ms. Brown stated that when the front of the house was built up, Mr. McKenna at great expense had his carpenters repair it. She indicated that she does not know why this was ever done as it was not part of the permit. Ms. Brown stated that the certification of the height of the structure before and after was to ensure that when it was finished it was the same as the original structure. She explained that the surveyor submitted two documents showing the heights from grade at the corners of the house and these are in the file that she submitted. Ms. Brown stated that she color coded these for ease of reading. She noted that she added two feet to these figures because Mr. McKenna and his builder both acknowledged to her that the whole house had been raised approximately two feet and the grade had been raised the same two feet. She noted that the peak to start was 25.51 feet according to the surveyor and
the final peak is at 28.1 feet, for a difference of 2.5 feet. Ms. Brown indicated that because the elevation was increased two feet she added two feet to the 2.5 feet. She noted that the original peak has risen to approximately 30 feet. Ms. Brown stated that without adding two feet for the grade change the home is taller than when it started.
Ms. Brown stated that she has many photographs in her file, some of which she took and other submitted to her by neighbors. She indicated that it is very difficult to tell how much the house has been elevated. Ms. Brown stated that in the same way it is difficult to tell from the photographs submitted this evening by the applicants. She acknowledged that the house is roughly the same size and shape and probably in the same location; she noted that she is confident that it is higher out of the ground and it has violated the Zoning Permit, hence her refusal to sign the Certificate of Zoning Compliance.
Ms. Brown stated that she does not think there is anything in the septic approval that required the entire house structure to be raised up two feet from the existing grade. She indicated that Mr. Rose is present this evening to discuss his septic approval. Ms. Brown stated that the installation of the septic system did not require the house to be raised from its original grade. She pointed out that regardless, they should have come to her to modify the permit issued.
Ms. Stutts questioned whether dirt was put underneath the house on top of the ledge outcropping. Ms. Brown replied that she does not believe there was. Attorney Bennett confirmed that there was not.
Mr. St. Germain pointed out that the surveyors numbers were taken from grade and the grade has changed. Ms. Brown noted that that is why there was a condition not to change the grade. Mr. St. Germain stated that the surveyor should have taken a shot from the road. Mr. Schellens noted that that was the reason also for leaving one wall. Ms. Stutts pointed out that the roof was a 12-8 pitch and is now a 12-6 pitch. Mr. Schellens stated that they have flattened the roof, but the sill height, the basic top of the foundation height, has risen. Ms. Brown agreed.
Ms. Brown stated that when the wall fell down she was not notified. She stated that when the wall of the garage fell down she was not notified either. Ms. Stutts questioned the date of her denial and the date of the final survey. Ms. Brown stated that her letter is dated January 3, 2006 and the second height survey was dated September 12, 2005.
Mr. Schellens questioned whether there was a certain amount of soil coverage needed on top of the tank. Ron Rose, Sanitarian, stated that there needs to be 4” of soil on top of the tank. He indicated that the location of the septic system has no correlation to the location of the house because it is a pump system. Mr. Rose stated that the foundation could have been at any height. Mr. Schellens stated that a hardship was implied that the foundation elevation needed to be raised to maintain the 4” above the tank height. Mr. Rose stated that from a Health Department point of view there is no relationship to the foundation elevation because it is a pump system.
Attorney Bennett stated that the system is gravity into the pump chamber and then is pumped out of there. He questioned whether Mr. Rose recalled that the owner tried to put planters in front of the property and Mr. Rose wrote a letter indicating that he could not do that to retain the earth. Mr. Rose acknowledged that he does remember that. Attorney Bennett stated that the owner tried everything. Mr. McKenna stated that it is incorrect to state that the septic system does not affect the height. Mr. Rose stated that that is argumentative because it is ¼ inch per foot with a four inch pipe and that can be reduced to 1/8 inch per foot with a six inch pipe.
Attorney Bennett pointed out the pump chamber and noted that there was an 18” collar added to it to put the planters across the front of the house to hold the earth away from the house. He indicated that they were told that they could not do that by Mr. Rose. Attorney Bennett stated that the system had to gravity feed to get the effluent out of the house. He pointed out that they were also dealing with ledge. Mr. McKenna stated that they first had to find 18” worth of dirt, which considering the ledge cropping under the house, was far out into the property. He stated that the previous system was on rock. Mr. McKenna pointed out the areas where fill was added. He explained he needed the four foot wall to contain the dirt on the neighbor’s side and this wall
requirement required them to add another 18” extension on top of what was existing. Mr. McKenna stated that he used the septic installer the Town wanted him to and he used the only system that he could.
Attorney Bennett stated that it is his position that the fill was exempt and Mr. McKenna did not have to amend the permit. He also stated that he is not sure why Ms. Brown added two feet to the elevations done by the surveyor because the heights given are above grade. He noted that the height post construction was after the fill was already in. Ms. Stutts stated that he is discussing both sea level and grade.
Attorney Bennett stated that the building is nonconforming and constitutionally protected.
Hearing no further comments, Chairman Stutts called this Pubic Hearing to a close.
ITEM 2: Public Hearing Case 06-16 Gregory McKenna, 58 Sea View Road, variance to allow an increase in structure height.
Chairman Stutts asked that for the sake of clarity, the old house be referred to as the existing house and the new house as the proposed house. She noted that the variance is requested to allow an increase in structure height. Chairman Stutts stated that variances are required of Sections 8.8.1, 21.3.9 and 8.9.3.
Attorney Bennett stated that for reasons explained previously and as noted in his filing of this application, this application is being filled without prejudice to the appeal that was just heard with respect to the same property. He indicated that he does not think a variance is necessary, but is asking the Board to consider one to resolve the matter. Attorney Bennett stated that the McKenna’s proposed and constructed a house and there is question as to whether the house is higher than it was previously. He indicated that the house is on the same footprint. Attorney Bennett stated that the circumstances to justify a variance are as follows: The existing house was collapsing; the property pre-exists zoning and is an extraordinarily narrow lot on the waterfront with substantial ledge
incursion. He asked that the photographs from the previous case be submitted as part of this file. Attorney Bennett stated that the ledge in the basement is apparent in these photographs. He noted that the septic system design, a requirement of the reconstruction, required that the system be four feet above ledge and gravity needs to carry the effluent into the tank and pump chamber. Attorney Bennett stated that planters were not allowed along the front of the house to retain the earth embankment so that the foundation height would not have to be increased. He indicated that the foundation top is notched so the floor joists sit in notches. Attorney Bennett stated that the roof pitch has been lowered to keep the height above grade as low as possible. He noted that the proposed structure is slightly smaller than the proposed. Attorney Bennett stated that the elevations are approximately the same.
Attorney Bennett stated that there are site conditions, topography, ledge, requirements of the Health Code, and a neglected structure, which all constitute a hardship. He stated that the Health Official did not allow an embankment in the front of the house and also required a four foot retaining wall on the side of the house. Attorney Bennett stated that these topographic conditions are not of the applicant’s creation but are imposed. He indicated that they are requesting a variance to allow the proposed house to remain in its present position.
Attorney Bennett stated that he does not believe there is a Court in the land, under these circumstances, that would make his client suffer the economic loss given the circumstances of this matter. He respectfully requested a variance to avoid those unfortunate consequences. Attorney Bennett stated that this type of reconstruction is just want Old Lyme should want in the community. He noted that the house was an older property that was rehabbed as summer property and not winterized.
Mr. Schellens questioned the raised height of the sill. Attorney Bennett noted that the sill of the foundation was raised by approximately 18 inches and the roof was flattened so as to maintain the existing elevation of the peak. Mr. Schellens stated that the envelope of the structure was raised in the eave area in the corresponding amount that the roof was flattened. Attorney Bennett stated that if the acetates are used just to compare the peaks, one will see that the existing eave is lower than the proposed eave.
Mr. Schellens stated that a neighbor expressed concern in letters to the Town regarding parking spaces. He questioned the number of existing and proposed parking spaces. Attorney Bennett stated that there is currently a two-car garage with three parking spaces. He added that the parking outside the garage will be widened slightly which would allow a fourth car outside. Mr. Schellens questioned whether Mr. McKenna would be allow a condition of four outside parking spaces. Attorney Bennett indicated that a limit of four outside parking spaces would be agreeable. He noted that the parking is crushed stone with a curbing around it to retain water.
Mr. Schellens stated that there is confusion as to the number of bedrooms. Chairman Stutts stated that all applications indicate a proposed four bedroom house and this has been changed to three bedrooms. Attorney Bennett indicated that the existing house has four bedrooms and the proposed house will have three bedrooms. He noted that the septic system is for a four bedroom house.
Mr. Rottenberg, 61 Sea View Road, stated that one of the most valuable part of his home is his view. He indicated that he is not sure if he understands whether the house has been raised in height. Attorney Bennett replied that it has not been raised. Mr. Schellens stated that the roof has been flattened, which is why the eaves have been raised slightly. Mrs. Rottenberg stated that they are invested both emotionally and financially at Point O’ Woods and they have no qualms with the rooftop. She indicated that the structure is wonderful and is beyond approach aesthetically. Mrs. Rottenberg stated that her main concern is that they do not request variances in the future, such as to add peaks to the roof.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 3: Public Hearing Case 06-07 Mark & Maryellen Phelan, 77 Sea Spray Road, variance to construct dormers and convert attic space to living space.
Jeff Flower, architect, was present to represent the applicants. Chairman Stutts noted that this public hearing was continued from February 6, 2006. Mr. Flower displayed a framed photograph, showing that most of the homes surrounding it are two-story and that 77 Sea Spray is one of the smallest homes in the area.
Chairman Stutts noted that Susanne Stutts, Kip Kotzan, June Speirs, Tom Schellens and Wendy Brainerd would be voting on this item as Ms. McQuade was not at the last Public Hearing for this item.
Mr. Flower read a revised and expanded hardship clause. He noted that the property is unique in that it is waterfront and double depth of the neighbors and only half the frontage since it was a resubdivision of two long narrow lots. Mr. Flower explained that any work done within most of the existing footprint is within the setback area except for the area which encompasses the existing living room. He indicated that the house is currently a four-bedroom home and the bedrooms are all extremely small and in order to create a master bedroom suite, the footprint would have to be enlarged. Mr. Flower noted that any enlargement would violate setbacks, which leaves expansion in an upward direction the most logical approach. He stated that the property’s deed describes an area of 5,000 square
feet, although there is a clear discrepancy from the original subdivision plan which shows about 6,500 square feet. Mr. Flower stated that the surveyor believes that the intent was clearly different from what the deed states; however one has to go by the deed. Mr. Flower stated that this discrepancy reduces the property by 1,500 square feet which would have allowed an additional 150 square feet of floor area. He indicated that until his client discovered the discrepancy, the Assessor’s Records showed 6,500 square feet of property.
Mr. Flower explained that the proposal takes an existing bedroom and turns it into a stairway and storage area. He noted that the new bedroom on the second floor is within buildable area, not violating setback. He noted that the ridgeline would have to be raised approximately one foot to accommodate a minimum reasonable height of 8’ at the center. Mr. Flower stated that the arch roof is the most minimal roof, with the exception of a flat roof. He indicated that the application goes to great pains to make very few modifications to the exterior of the building. Mr. Flower displayed the elevation drawing and showed where the stairway will come up to the second floor. Mr. Flower stated that the stairway dormer requires a variance of 2.2 feet for the side setback.
Mr. Flower stated that the new master bath creates very minimal new space. He noted that the master bedroom has lower ceilings on both sides. Mr. Flower stated that while the floor area ratio technically exceeds what is allowed, the actual useable floor area is minimally enlarged. He explained that the only changes on the first sheet of the drawings, which he submitted for the record, is square footage originally listed on the second floor as 401 square feet and now it is listed as 258; total square footage is listed as 1,381 square feet which would change the floor area ratio, from the existing 22.5 percent to a proposed 27.6 percent. Chairman Stutts questioned how this has changed. Mr. Flower explained that the second floor area, by the Zoning Regulations, does not count areas less than 7’ in height, and these areas should never have been included. He noted that he originally counted the entire second floor area. Mr. Flower stated that Section 7.6 talks about minimum
building, etc., and discusses an average of 7’, and he has no idea how one could calculate an average height on a cathedral ceiling. Mr. Flower stated that today, he can stand under the ridge and the proposal raises the ridge approximately one foot. He noted that the ceiling tapers off from there all the way to 6 feet plus.
Mr. Flower highlighted an area on the plan which he would include as living space. He indicated that this is his reading of the Regulations and he spoke to Ms. Brown a few times today and she seems to agree with him. Mr. Flower stated that the calculation of the first-floor floor area is dealt with differently then the second floor. He indicated that for the first floor one measures from the outside of the building. Mr. Flower stated that he would note for the record that when the stairway was put in to what is now a bedroom, it created dead space of 27 square feet which will be used for storage. He indicated that this area, while technically part of the house and the floor area ratio, is less than adequate space. Mr. Flower noted that he has taken this 27 square feet out of the
first-floor floor area.
Mr. Flower stated that the floor area ratio requirement was created after the house was constructed. He noted that the original subdivision plan showed a ten-foot front setback and no side or rear setback. Mr. Flower stated that when zoning was created a further hardship was created for the property. He noted that the applicant has gone to great effort to balance the land use issues in making a seasonal dwelling more livable to today’s standards.
Chairman Stutts stated that there are no bedroom dimensions indicated on the floor plan. Mr. Flower indicated that one is 8’6” x 11”, bedroom 4 is 11’ x 9’, bedroom 3 is 9’4” x 11’4” and bedroom 2 is 8’6” x a little less than 6’ at its smallest point. He indicated that the proposal is to keep the house three bedrooms.
Mr. St. Germain questioned the floor area of the second floor. Mr. Flower replied that it would be 258 square feet additional floor area, which is changed from 399 square feet on the original application.
Chairman Stutts pointed out that although many of the surrounding homes are two-story, this particular lot is one of the smallest in the area. She noted that the size of the lot was not obvious in the photograph displayed earlier this evening by Mr. Flower in demonstrating the size of the surrounding homes. Ms. Speirs questioned the lot coverage. Mr. Flower replied that the lot coverage is 35.8 percent existing and it is not changing with this proposal.
No one present spoke in favor of or against the application. Chairman Stutts closed the Public Hearing for this application.
ITEM 4: Public Hearing Case 06-17 David & Barbara Levanto, 24 Sargent Road, variance to allow conversion of attic space to living space.
David Levanto was present to explain his application. Chairman Stutts stated that the variance is to allow conversion of attic space to living space. Mr. Levanto stated that the outside of the cottage will not be affected. He explained that his in-laws owned the cottage prior to him and his wife. Mr. Levanto stated that in the 1970’s his in-laws put a floor in the attic and began using it for storage and occasionally people slept up there. He indicated that access was gained by a pull-down staircase. Mr. Levanto stated that he and his wife inherited the cottage in1999 and their idea was to replace the pull-down stairs with a spiral staircase, not knowing that it was a zoning violation. He indicated that one of his older sons found a used spiral staircase and brought it to
the house this past fall. Mr. Levano stated that before he got a building permit they removed the pull-down stairs to see it if would work. He indicated that when they realized that it would work, they applied for permits and were told it was not allowed without a variance. Mr. Levanto stated that the reason for the spiral staircase is for safety.
Mr. Levanto explained that there is no bathroom in the attic and it will not be a bedroom. He indicated that they will use it for storage and occasionally a sitting area. He noted that the first floor has three bedrooms and one bathroom. Mr. Levanto stated that he is asking for a variance from the Regulations because he believes they are not violating the spirit of the Regulations. He indicated that they are not changing the function of the cottage, nor are they affecting the community at all. Mr. Levanto stated that they are not adding occupancy. He stated that the area will not be used for a bedroom.
Mr. Levanto stated that the attic is 24’ x 24’ with sloping ceilings. He noted that it is probably 7 feet at the peak. He noted that not too far from the peak one cannot even stand up because of the slope of the roof. Chairman Stutts explained that the Board must look at it as a house being granted more living space, regardless of his proposed use of the room.
Mr. Schellens suggested that the house may have had a regular stairway to the attic, prior to the pull-down stairs. He noted that the home was constructed prior to the advent of pull-down stairs.
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 5: Public Hearing Case 06-18 Damian & Noreen Ranelli, 30 Lone Pine Trail, variance to construct second floor.
Damian Ranelli was present to explain his application. Ms. Stutts stated that a variance is being requested to construct a second floor. Mr. Ranelli stated that he and his wife purchased 30 Lone Pine Trail in October 2005 and are third generation summer residents of the area. He noted that the house has been in disrepair for years. Mr. Ranelli stated that he has many letters of support from his neighbors for this application. He explained that his lot is nonconforming at 5,000 square feet. Ms. Speirs stated that the application indicates 4,792 square feet. Mr. Ranelli stated that the lot is 100’ x 50’ or 5,000 square feet. He indicated that his lot is unique as the home meets all setback and area requirements except for the lot size. Mr. Ranelli pointed out
that they are also proposing a new septic system and a new well.
Mr. Ranelli explained that there are structural issues with the home, such as rafters and such, which are issues he would like to address in this renovation. He noted that the house is now 600 square feet and does not meet the minimum square footage for an inhabitable dwelling under Section 7.6. Mr. Ranelli stated that the proposed structure will be 1,200 square feet which is the minimum under this same section for a two-story home. He pointed out that the additional square footage will eliminate the nonconformity of minimum square footage for a single-story dwelling.
Chairman Stutts stated that the existing footprint is 839 square feet. Mr. Ranelli stated that that includes an enclosed porch that is not living space. He reiterated that they are not increasing any nonconformities.
Mr. Ranelli pointed out the proposed well and septic on the site plan. He stated that the well will be drilled. Ms. McQuade questioned the proposed height of the structure. Mr. Ranelli replied that it will be 25 feet, an increase of 7’.
Ms. Stutts read the letters in support of the application. Matt Iavanna, 33 Moss Point Trail stated that he is concerned because he owns the property at 28 Lone Pine Trail. He indicated that his mother is planning to build a house at 28 Lone Pine Trail and he has worked hard to get an approved septic plan for the, even though it is conforming. Mr. Iavanna stated that the last house constructed, probably #32, put a well right on the property line so that nothing could be constructed on the empty property. He noted that Mr. Rose referred to it as a spite well. Mr. Iavanna stated that he was finally able to get an approved septic design from the State. Mr. Ranelli pointed out the location of his well and noted that it will not affect Mr. Iavanna’s septic system. Mr. Iavanna
stated that he wants to be sure that it does not affect his septic design.
Mr. Iavanna stated that he originally intended to purchase 30 Lone Pine Trail. He noted that the bilco doors from the basement open directly in the middle of the enclosed porch. Mr. Iavanna stated that the Zoning Department told him that if he were to make alterations to the property he could not expand from the current size. He indicated that this is why he did not pursue buying the property and he may have, had he known that he could construct a second floor on the structure.
Mr. Kotzan noted that Mr. Ranelli’s well is further from the septic system then his existing well. Mr. Schellens pointed out that if Mr. Iavanna has a septic permit already, then he is first in line.
Mr. Ranelli indicated that the screened porch will not be turned into living space.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
The Commission took a five-minute recess at this time.
ITEM 6: Open Voting Session
The Commission members agreed to discuss the first two cases and to set a Special Meeting for Wednesday, March 22, 2006, at 4:00 p.m. to continue the Open Voting Session for the last three cases.
Case 06-15 Gregory McKenna, 58 Sea View Road - Appeal
Mr. Schellens stated that the crux of the matter is that when the walls were to remain as reference points, no elevation base point was established. He noted that Zoning Law requires that one wall remain standing so that the nonconforming status is not forfeited. Mr. Schellens indicated that he heard acknowledgement from the applicant’s representative that the height of the sill was raised. Ms. Stutts noted that Ms. Brown could not approve this increase without a variance. Mr. Schellens stated that even if the Board accepts the fact that the peak has not been raised, the eave height has come up and the roof has been flattened. He indicated that this would perhaps be grounds for a variance. Mr. Schellens acknowledged that all the work on the property has been good for the community
and the house looks very similar to what previously existed. He stated that he would uphold Ms. Brown’s decision.
Mr. Kotzan indicated that Ms. Brown was correct in acting as she did.
A motion was made by Kip Kotzan, seconded by Tom Schellens and voted unanimously to uphold the Zoning Enforcement Officer in her denial to issue a Certificate of Zoning Compliance.
Reasons:
1. A Certificate of Zoning Compliance could not be issued because the method of construction and repair that had been agreed to prior to construction had not been adhered to.
Case 06-16 Gregory McKenna, 58 Sea View Road - Variance
Chairman Stutts reviewed the facts of the case. She stated that the applicants would like to raise the house two feet. Chairman Stutts stated that the existing house is 1,148 square feet and the number of bedrooms is being reduced from four to three. She noted that the proposed house is identical to the existing house. Chairman Stutts stated that the testimony provided was that it was necessary to bring in fill for the septic system which raised the elevation of the house. She noted that the sill was raised 18” and the roof pitch was flattened, which brought the eaves up slightly.
Mr. Kotzan stated that the evidence shows that the applicant tried to recreate the structure as best he could. He noted that Ms. Brown was correct in bringing the issue before the Board.
Mr. Schellens stated that the proposal is to allow the applicant to raise the sill height 18”, keeping the residence at its approximate existing height and flattening the roof pitch, thereby raising the eave height. He noted that raising the eave height is the encroachment. Mr. Schellens stated that the lot has a difficult topography. Mr. St. Germain stated that the applicant met stringent septic system criteria and did a good job minimizing other adjustments.
Mr. Schellens stated that the increase in height did not benefit a view or gaining additional space. He indicated that it is sometimes easy to fall into a situation such as this and the applicant did a good job of minimizing the impact. Ms. McQuade stated that she believes there was no intent to increase the use or extend the use of the building.
Mr. Schellens pointed out that the neighbors were concerned with the number of parking spaces which is something the Board can address as a condition if they wish. He noted that the applicant indicated that he would be agreeable to a limit of four outdoor parking spaces. Chairman Stutts noted that the Rottenberg’s were not sure that the structure had been increased in height and certainly were not bothered by the structure as constructed.
A motion was made by Tom Schellens, seconded by Judy McQuade and voted unanimously to grant the necessary variances to allow an increase in structure height, Case 06-16, 58 Sea View Road, Gregory McKenna, applicant, with the following condition:
1. Property is limited to four unpaved, outdoor parking spaces.
Reasons:
1. Application is within the intent of the Plan of Zoning.
2. In order to accommodate a septic system, two feet of soil was added.
3. Minimum variance to make a functioning property.
4. Proposal is in harmony with the neighborhood.
ITEM 7: Approval of Minutes
A motion was made by Kip Kotzan, seconded by Tom Schellens and voted unanimously to approve the minutes of the November 15, 2006 Regular Meeting with corrections.
A motion was made by Tom Schellens, seconded by Kip Kotzan and voted unanimously to approve the minutes of the January 10, 2006 Regular Meeting with corrections.
A motion was made by Kip Kotzan, seconded by Tom Schellens and voted unanimously to approve the minutes of the February 6, 2006 Special Meeting with corrections.
A motion was made by Kip Kotzan, seconded by Tom Schellens and voted unanimously to approve the minutes of the February 14, 2006 Regular Meeting with corrections.
ITEM 8: Any New or Old Business to come before said meeting.
None.
ITEM 9: Adjournment.
The meeting adjourned at 10:50 p.m. on a motion by Kip Kotzan and seconded by Tom Schellens. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Clerk
| 
