APPROVED
OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
TUESDAY, September 12, 2006
The Old Lyme Zoning Board of Appeals met on Tuesday, September 12, 2006 at 7:30 p.m. at the Old Lyme Memorial Town Hall. Those present and voting were Susanne Stutts (Chairman), Richard Moll, Kip Kotzan, Tom Schellens, Wendy Brainerd (Alternate), Joseph St. Germain (Alternate), and Judy McQuade (Alternate, seated for June Speirs).
Chairman Stutts called the meeting to order at 7:31 p.m.
ITEM 1: Public Hearing Case 06-36 Frank Lishing & Joann Reis Lishing, 307 Swan Avenue, Appeal of ZEO’s denial of Application for Conversion of Seasonal Dwelling to Year Round Use Dwelling
Ann Brown, Zoning Enforcement Officer, read a letter dated September 12, 2006, from herself to Susanne Stutts, Chairman of The ZBA. In this letter she notes that the Zoning Compliance Permit Application was denied on October 27, 2005 and at that time the applicant had 30 days in which to appeal the decision to deny the application for conversion of their house from seasonal to year round. Ms. Brown’s letter noted that the first appeal of this decision was May 5, 2006, more than six months after the denial and clearly not within the 30-day appeal period. She notes that this application was withdrawn and a new one submitted approximately 8 months after the original denial. Ms. Brown noted that a letter dated May 31, 2006 from the Zoning Commission Attorney Eric Knapp, details the statutory
requirements and recommends that the Board not hear the appeal as the applicant has lost his right to appeal the denial for conversion. Ms. Brown read Attorney Knapp’s letter for the record. She also provided the Board with a copy of Statute 8-7, highlighting the appropriate section.
Attorney Mattern stated that he is aware of the issue and Attorney Knapp’s letter clearly explains the law. He stated that the question is whether the Board will be practical and deal with the issue or technical and do what Attorney Knapp suggests. Attorney Mattern stated that if the Board feels this is not a timely appeal, the applicant will withdraw both the appeal and the variance request and will reapply for conversion. He indicated that they will then come back to the Zoning Board of Appeals in a few months. The Board agreed that that would be the appropriate thing to do. Attorney Mattern noted that at the time Ms. Brown denied the request for conversion, the Health Officer was not able to make a decision because there was an open issue as to whether this property could be served
by potable water. He noted that an appeal within the 30-day time period would not have been possible due to this issue.
Attorney Mattern withdrew this application and also Case 06-37, the application for variance for this property. He indicated that he would fax an official letter of withdrawal in the morning.
ITEM 2: Open Voting Session
Case 06-36 Frank Lishing & Joann Reis Lishing, 307 Swan Avenue
No action taken; this application has been withdrawn.
ITEM 3: Public Hearing Case 06-32 Margaret Ebetts, 124 Boston Post Road, variance to construct a bay window.
Margaret Ebetts was present to explain her application. She noted that she needs an 11” variance for a bay window. Ms. Ebetts noted that when she purchased the property it had an old picture window that was not double-paned and subsequently had a bullet hole in it. She indicated that her contractor replaced the window with a bay window that allows her to open the side windows for ventilation. Ms. Ebetts stated that she was not aware that she had a nonconforming lot. She explained that she had siding work done at the same time by a different contractor and was not aware that the window contractor did not apply for a permit. Ms. Ebetts explained that she subsequently applied for a permit for the window and was denied.
Ms. Ebetts explained that the bay window meets all required setbacks. She displayed before and after pictures of the window.
Chairman Stutts noted that a variance is required of Section 8.9.3, no enlargement on a nonconforming lot. She explained that the property is 15,000 square feet in an R-20 zone. Chairman Stutts stated that there is a list of ten neighbors who have no objection to the bay window. Ms. McQuade noted that the enlargement is 7 square feet.
No one present spoke in favor or against the application. Chairman Stutts called this Public Hearing to a close.
ITEM 4: Public Hearing Case 06-33 Elaine Lasky, 11 Griswold Avenue, variance to construct a sunroom and deck.
Doug Jacobik, contractor, was present to explain Ms. Lasky’s application. Chairman Stutts explained that the requested sunroom is 12’ x 16’ x 8’ and the deck, 8’ x 10. She noted that the lot is located in an R-15 zone and contains 11,200 square feet. Chairman Stutts stated that the required square is 80 feet and a 77 foot square exists. She noted that the house contains 5 rooms with 2 bedrooms, a total of approximately 1202 square feet. Chairman Stutts noted that the sunroom would add 192 square feet to the first floor. She noted that in 2000 the Board approved a large addition to the rear of this property; the work was never done and the property has changed owners. Chairman Stutts noted that the hardship provided is that there is no available land
to purchase.
Chairman Stutts stated that the elevation drawings do not clearly show how the sunroom will attach to the house and it appears that the room is only 5’ 8” on the end wall. Mr. Jacobik explained that the house has a low roof line so they plan to come off the soffet with a shed roof. Chairman Stutts questioned whether Building Code would allow a room to be built that one cannot stand up in. Mr. Jacobik indicated that it would depend on how tall one is. Mr. Moll stated that the Building Code requires 7’6” ceilings. He explained that the room would be constructed on posts and piers and indicated that the posts would have to be right on the ground. Mr. Schellens explained that the height of the room cannot be changed to meet Building Code after approval is granted by
the Zoning Board of Appeals. He explained that the applicant would have to reapply for a taller structure. Mr. Kotzan agreed and noted that the Board must approve the exact structure that is to be constructed.
Mr. Moll questioned whether each side of the house has a dormer. Mr. Jacobik replied that each side looks exactly the same. Mr. Moll indicated that he understands the dilemma created by the existing roof structure.
Chairman Stutts questioned the required roof pitch. Mr. Jacobik stated that when one is using shingles, a minimum three-pitch is recommended. He noted that he used one by four because one by three may not be good in a heavy snow area. Chairman Stutts questioned the height of the low side of the room if a one by three pitch was used. Mr. Jacobik indicated that he did not do the math for this. Mr. Schellens indicated that the Board needs to act on the drawings as submitted.
Chairman Stutts explained that the Board is concerned that Building Code would prohibit construction of this room because the ceiling height is 5’ 8” and would not be habitable space. Mr. Jacobik stated that Ms. Lasky is trying to construct the sunroom on a budget which is why they are not planning to excavate and why an architect did not design the sunroom. Ms. McQuade noted that there is not a coverage issue on the lot.
No one present spoke in favor or against the application. Chairman Stutts called this Public Hearing to a close.
ITEM 5: Public Hearing Case 06-34 Michael Michaud, 150 Four Mile River Road, variance to construct an above-ground pool and deck.
Michael Michaud was present to explain his application. Chairman Stutts stated that the property is located in an RU-80 Zone with 80,649 square feet. She noted that the property lacks the required square. Chairman Stutts indicated that the proposal is to construct an above-ground pool and deck. Mr. Michaud explained that there was once a pool on the property, which is shown in an old Assessor’s Card. He noted that he supplied a photograph that shows the footprint which still remains. Mr. Michaud noted that the power outlet still exists for the pump. He indicated that his proposed pool meets all required setbacks. Mr. Michaud stated that the pool did not exist when he purchased the property; the prior owner removed the pool and installed a putting green in the same
spot.
Chairman Stutts stated that the proposed pool is 16’ x 32’ and the deck would be 10’ x 12’. Ms. McQuade pointed out that coverage is not an issue. Chairman Stutts noted that the proposed pool would not be visible from the road or from neighboring properties.
No one present spoke in favor or against the application. Chairman Stutts called this Public Hearing to a close.
ITEM 6: Public Hearing Case 06-35 Michel Gosselin, 123 Boston Post Road, variance to construct a garage on an existing foundation.
Chairman Stutts stated that the variance is being requested to construct a 20’ x 25’ garage, 21’ high with a loft, on an existing foundation. She noted that the minimum lot area required is 20,000 and the applicant has 12,915 square feet of land and 100’ square is required and 90’ is provided. Chairman Stutts explained that variances are requested of Sections 8.9.3, no enlargement on a nonconforming lot; 7.4, setback, variance of 34’ required for garage; 21.2.9, other setbacks, 20’ required, 19’ variance provided. She noted that the hardship provided is that the applicant purchased a nonconforming property and has no place for storage of his vehicle and no other location on the property to construct the garage that would be adequate. She pointed out
that there are three neighbors who have expressed approval of the project.
Chairman Stutts questioned how long the existing foundation has existed. Mr. Gosselin stated that he does not know if it goes back to 1930, but showed an old photograph of the garage. Chairman Stutts questioned whether the foundation was strong enough to support a new structure. Mr. Gosselin indicated that it appears to be in good shape. Mr. St. Germain indicated that according to the vehicle in the photograph he would guess the year to be 1949 or 1950.
Chairman Stutts questioned whether the third shed has been demolished as required by the previous ZBA approval. Mr. Gosselin replied that it has been. Chairman Stutts questioned the height of the house. Mr. Gosselin replied that the house is 21 feet. Chairman Stutts questioned the height of the newly constructed shed. Mr. Gosselin replied that it is approximately 14’ high. He indicated that he needs the garage/loft area for storage of his vehicle and tools, his boats, antiques, etc. Mr. Gosselin explained that he designed the balcony so that he can have a patio door to open for ventilation. He indicated that there he was hoping to have a sink in the garage because he is an artist. Mr. Gosselin stated that he would also like to have heat because he is a drywall
finisher and the compound needs to be kept warm in the winter. He explained that if he leaves it in his van outside the compound will freeze. Ms. McQuade questioned whether the property owner behind Mr. Gosselin was one of the people writing in favor of the application. Mr. Gosselin stated that he did not speak to Kristen Cole, but he did speak to the renters, who may be purchasing the property. Chairman Stutts stated that the back of the property has wetlands and the applicant is in the process of getting a Wetlands Permit. She noted that any approval granted by the Zoning Board of Appeals would depend upon Wetlands approval.
Chairman Stutts noted that moving the garage location would put it closer to the wetlands. Mr. Kotzan stated that the argument for a garage is convincing, but the location of the garage is very close to the property line. Other locations for the garage were discussed. The Board commended the applicant for the work done on the property to date. Mr. Kotzan stated that he would like to be sure that the loft does not become an accessory apartment. He questioned whether they could prohibit heat on the second floor. Mr. Gosselin agreed to this possible condition.
Chairman Stutts questioned whether the applicant would be content with a one story garage, as depicted in the photograph. She noted that the proposed height is 21 feet and will be one foot from the property line. Mr. Gosselin replied that he needs additional storage. Mr. Schellens stated that a two-story garage with exterior stairs is well beyond the need of a residence to have a garage. He indicated that the problem is that the required setback is considerably farther to the north and the Board has to look at impact to the neighbors. Mr. Gosselin stated that he wants to live at this property for a long time and he would like to have all that he needs. Mr. Schellens stated that this size garage may be more appropriate on this same property in a more conforming location. Mr.
Gosselin stated that if he moves the garage next to the house he will have to move the septic and leaching fields.
Mr. Kotzan stated that the issue is the height of the garage so close to the property line. He explained that if the garage was a little farther away it might be more appropriate to be 21 feet in height. Mr. Gosselin stated that he could attempt to contact the property owner to the rear in California and get a letter indicating her approval. Mr. St. Germain stated that that would make a big difference to him. Chairman Stutts stated that she should have been notified as part of the variance process.
Mr. Moll questioned if the garage depicted in the photograph is on the same foundation that exists 1’ from the property line today. Mr. Gosselin indicated that he assumes so because he has not changed anything with regard to the foundation since he purchased the property. He stated that if he constructed his garage today and took a picture from the same angle, it would appear to be the same approximate distance. Mr. Moll stated the hardship provided by the applicant. Chairman Stutts noted that the application indicates the following hardships: Property backs up to wetlands so the rear of the property is not usable; location of septic and leaching field; odd-shaped property; and orientation of the house.
Mr. St. Germain questioned the ability to construct such a large structure on an existing foundation and the ability of that foundation to support a two-story structure. He suggested that the applicant discuss this with the Building Department.
No one present spoke in favor or against the application. Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
The Board took a three-minute recess at this time.
ITEM 7: Public Hearing Case 06-37 Frank Lishing & Joann Reis Lishing, 307 Swan Avenue, variance to allow conversion of seasonal dwelling to year round use dwelling.
Chairman Stutts noted that this application has been withdrawn by the applicant.
ITEM 8: Open Voting Session
Case 06-32 Margaret Ebbets, 124 Boston Post Road
Chairman Stutts noted the property contains 12,000 square feet in an R-20 Zone. She noted that the application is to replace a picture window with a bay window that protrudes 11 inches from the house. She noted that the window is setback 55’ from the property line. Chairman Stutts noted that 10 neighbors have expressed approval of this project.
Mr. Schellens noted that the Board usually looks favorably on this type of application. He noted that there are no setback issues on this property. The Board members agreed that this proposal is a reasonable request.
A motion was made by Tom Schellens, seconded by Kip Kotzan and voted unanimously to approve Case 06-32, 124 Boston Post Road, Margaret Ebbets, applicant, to install a bay window as per the approved plans.
Reasons:
1. This small variance is within the intent of Zoning.
2. Ten neighbors have expressed approval.
3. No setback issues.
Case 06-33 Elaine Lasky, 11 Griswold Avenue
Chairman Stutts stated that the variance is requested for a sunroom and deck on a lot that has 11,200 square feet in an R-15 Zone. She noted that the property is also 3 feet short of the required square. Chairman Stutts stated that the existing first floor is 700 square feet and the expansion will bring the first floor square footage to 892. She noted that the elevation drawing shows a 5’8” ceiling height on one side of the room. Mr. Schellens stated that the applicant has submitted a drawing that the Board must act on. He noted that if the drawings do not meet building code, the applicant would have to come back to the Zoning Board of Appeals. Mr. Kotzan indicated that the Board should address the application from the Zoning issues, not the building code. Mr. Moll
stated that he feels it would be a bad precedent to approve a drawing that the Board knows cannot be constructed to building code. Mr. Kotzan questioned whether Mr. Moll was sure that it was wrong. Mr. Schellens stated that he is not sure of the exact building code. Mr. Moll stated that he is sure that this structure would be a code violation.
Chairman Stutts stated that if the Board approves this application and the Building Department makes them raise the end of the structure to 7 feet, he would have to come back to the Board. Chairman Stutts stated that the application is for a structure 12 x 16 x 8’ in height and the drawings show a structure 12 x 16 x 9’ sloping down to 5’8”. Mr. Schellens suggested that the Chairman sign a package of drawings, which the Board put together.
A motion was made by Tom Schellens and seconded by Kip Kotzan to grant the necessary variances to construct a sunroom and deck, 12 Griswold Avenue, Elaine Lasky, applicant, as per the approved plans. Motion did not carry, 3:2, with Ms. Stutts and Mr. Moll voting against.
Reasons:
1. Application is incomplete.
2. Will create an inhabitable space that is against the Zoning Regulations.
Mr. Kotzan questioned whether the reasoning had to do with the building code and the interior height requirement of 7’6”. He explained that if this not the Building Code, the Board’s denial will appear awkward. Chairman Stutts stated that it is a question that needs to be answered. Ms. McQuade indicated that there is habitable space in the room although she acknowledged that it is awkward.
Case 06-34 Michael Michaud, 150 Four Mile River Road
Chairman Stutts stated that the variance is requested to construct an above-ground pool (16’ x 32’) and a 10’ x 12’ deck. She noted that the property lacks 35’ of the 200’ square required in an R-80 Zone. She noted that the property contains 84,650 square feet. Chairman Stutts stated that the pool is not visible from the road or the neighbors. She explained that all setbacks and coverage requirements are met.
Mr. Schellens stated that the 200’ square is a requirement to be sure that lots are not long and skinny. He noted that the pool will not infringe on the neighbors. Mr. Kotzan agreed and noted there are no bulk issues on the property.
A motion was made by Kip Kotzan, seconded by Tom Schellens, and voted unanimously to grant the necessary variances to construct an above ground pool and deck, 150 Four Mile River Road, Michael Michaud, applicant, as per the approved plans.
Reasons:
1. Within the intent of the Plan of Zoning.
2. Pool location meets all setbacks.
Case 06-35 Michel Gosselin, 123 Boston Post Road
Chairman Stutts noted that the property is 12,915 square feet in an R-20 Zone. She stated that the existing foundation to be used for the proposed garage is 1’ from both the side and rear property lines. Chairman Stutts noted that there does not appear to be a better location for the garage because of the location of existing structures and the septic system and leaching fields. She stated that Wetlands approval is required because of wetlands toward the rear of the property. Chairman Stutts stated that the garage structure will be 21 feet high with a loft above for storage.
Mr. Kotzan stated that his specific concern is the proximity to the property line. He indicated that he feels the applicant has enough land for a garage, but the size and location of this proposed garage is ambitious. Mr. Kotzan stated that he would be more comfortable if they had a response from the neighboring property owner who currently lives in California. He stated that a garage is a reasonable use, but he is not convinced that it cannot be located elsewhere on the property.
Ms. Brainerd stated that she believes it would affect the neighbor’s property value by constructing this large building right on the property line. The file was checked and it appears that Mr. Gosselin omitted this property owner from the list of abutters. The Board agreed that this is a serious omission.
A motion was made by Kip Kotzan and seconded by Judy McQuade to grant the necessary variances to construct a two car garage with loft on an existing foundation, 123 Boston Post Road, Michel Gosselin, applicant, as per the approved plans. Motion did not carry, 0:5.
Reasons:
1. Abutting property owner (Mrs. Cole) was not given proper notification.
2. Garage could be located in such a way as to reduce the amount of variances requested.
Case 06-37 Frank Lishing & Joann Reis Lishing, 307 Swan Avenue, variance
No action taken; this application was withdrawn.
ITEM 9: Approval of Minutes of July 11, 2006 Regular Meeting.
A motion was made by Kip Kotzan, seconded by Judy McQuade and voted unanimously to approve the minutes of the July 11, 2006 Regular Meeting.
Mr. Moll pointed out that at the hearing concerning the property on 78 Lyme Street, he questioned why the elevation drawing depicted a situation that no longer existed. He indicated that the applicant responded that the drawing was an old drawing and did not show the roof of the outbuilding as repaired. Mr. Moll noted that the drawing is dated 2006.
ITEM 10: Any New or Old Business to come before said meeting.
Mr. Moll stated that Section 7.6 of the Zoning Regulations, minimum floor area of dwelling unit, states “except as otherwise provided in multiple dwelling units, no building intended for dwelling purposes shall be constructed or occupied unless living space is not less than 800 square feet if on one floor and 1200 square feet if on two floors. Enclosed rooms shall not be included as living space unless the height from the floor ceiling averages at least 7 feet.”
Mr. Kotzan stated that that regulation applies to whether the space is counted as living space. Ms. McQuade stated that the sunroom could have averaged 7 feet in height. Mr. Kotzan stated that the regulation has nothing to do with whether it can be constructed or not.
Mr. Moll stated that the Zoning Board of Appeals process is very specific. He noted that he is encouraged by Mr. Kotzan and Mr. Schellen’s position that the Board should be focused on the drawings submitted as part of the application. Mr. Moll stated that there is a level of sloppiness that seeps in and he would like to see it brought under control before it drifts.
Chairman Stutts stated that at the last meeting the Board should have continued the application for Sea View because so many exhibits were submitted at 3:00 p.m. the day of the hearing. Mr. Schellens agreed and indicated that the Board tends to be overly accommodating.
Chairman Stutts noted that approximately two weeks before the hearing, the applicants are notified of their hearing date and any missing items are requested. She suggested that this letter be worded more strongly to notify applicants that their hearings may be continued to the next month if documents are submitted late and the office staff and the Board do not have ample opportunity to review the documents.
Mr. Moll indicated that if information is not complete within “X” days before the hearing date, Ms. Bartlett can notify the applicant that their hearing is continued. Mr. Schellens stated that he would like to leave things to the Board’s discretion. He indicated that he believes applicants should not be allowed to add additional items to their files less than two weeks before their hearings. Ms. Bartlett stated that anything can be added to the file at any time. She noted that the Board can use their discretion to determine if the information is significantly new so that it would require additional review time. Mr. Schellens stated that he is talking about the basic required options. Ms. Bartlett stated that the applicant can submit items at any time; the Board’s
options are determining when they would like to hear the matter. Ms. Bartlett explained that the Board has to accept applications, complete or incomplete; they have 65 days from receipt of the application to open the Public Hearing. She noted that this if the Board determines that the file was not complete at a point in time that they feel it should have been, they can then open and continue the Public Hearing to the next month. Mr. St. Germain agreed that items have to be accepted from the applicant at any point in time. He noted that it is up to the Board to tell the applicant that they would like time to review the new items and continue the Public Hearing. Mr. Schellens stated that the Board should have a policy that any new information submitted in a file less than 10-days before the scheduled Public Hearing will automatically bump the application to the next month. The Board agreed that this policy would be good, except to say “may be
at risk to being bumped to the next month.”
Mr. Moll stated that the application specifically stated the standards of the required drawings. He noted that if these items are not submitted up front, the application should not go forward. Mr. Moll stated that drawing standards should be established and perhaps given to the applicants. Ms. Stutts noted that there are standards established. She suggested handouts that show a good example. Mr. Schellens stated that if one person on the Board is uncomfortable with the drawings, they should say that up front and request that the hearing be continued. Chairman Stutts stated that if some one is uncomfortable with the lack of information or the timing of their submission it is their responsibility to voice their concern.
Mr. Kotzan suggested that as part of the procedure of each case, the Board should start with reviewing the contents of the application prior to the applicant presenting their case. He noted that this will give Board members the opportunity up front to express their concerns. The other Board members were in general agreement with this process.
Mr. Moll stated that he is curious whether the minutes on file for the June 13th meeting, on Page 4, indicated that there was a unanimous approval of the minutes of May 22nd versus March 22nd. He noted that he would like Ms. Bartlett to report back at the next meeting. Chairman Stutts stated that Mr. Moll could give his corrections to Ms. Bartlett on a regular basis.
Mr. Moll stated that when people excuse themselves from cases they should leave the room and be out of the process of the hearing. He indicated that recusing oneself is removing oneself totally from the process. Ms. Stutts stated that she would like to go on record in stating that any potential conflicts of interest need to be addressed at the time that the issue arises. She noted that she is stating this in response to Mr. Moll’s request to have her address with Attorney Royston the issue of Mr. Moll and Ms. Speirs participating in future applications of Mr. Tolchinsky.
ITEM 11: Adjournment.
The meeting adjourned at 10:58 p.m. on a motion by Richard Moll and seconded by Tom Schellens. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
| 
