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Zoning Board of Appeals Minutes 10/10/2006






APPROVED


OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
TUESDAY, October 10, 2006


The Old Lyme Zoning Board of Appeals met on Tuesday, October 10, 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, Joseph St. Germain (Alternate), and Judy McQuade (Alternate, seated for June Speirs).

Chairman Stutts called the meeting to order at 7:30 p.m.  

ITEM 1: Public Hearing Case 06-39 Andrea & Robert Donald, 12 Binney Road, Appeal of ZEO C&D to stop all excavation work and revocation of Permit #05-22.

Attorney Robert Cohen of Bristol was present to represent the Donald’s.  He stated that the Donald’s applied for and received a Zoning Permit in March of 2004 and that permit was renewed in March 2005.  He stated that a building permit was issued March 1, 2005 and that building permit was renewed on June 30, 2006.  Attorney Cohen stated that during May and June 2006 the site was prepared and on July 17, 2006, Ann Brown, ZEO, revoked the building permit.  Attorney Cohen stated that the site currently has a large whole dug for the foundation which the Donald’s are not allowed to touch according to the C&D Order.  He noted numerous trees have been cut down.
Attorney Cohen stated that in detrimental reliance upon the issuance of the Zoning and Building Permits, 20 large trees were removed from the site and an architect was hired to draw plans.  He noted that a builder was hired.  Attorney Cohen stated that both the Zoning and Building Permits were paid for.  

Attorney Cohen noted that the Town Attorney had indicated to the ZEO originally that it would be proper to not revoke the permit.  He stated that the ZEO chose to defer that advice and revoke the permit.  Attorney Cohen stated that the Donald’s house is one story with two bedrooms and the other homes in the area appear to be 3 to 4 times the size of this house on similar lots.  He indicated that the builder had been lined up for approximately 6 months and the builder has since moved to other jobs.  

Attorney Cohen stated that there were a series of cases, but ultimately it was the Porier case which led to the current Statute 8-26a.  He indicated that he believes it is within the authority of this Board to reverse the Order of the ZEO and to reinstate the permits which is what he is asking the Board to do today.

Ann Brown, Zoning Enforcement since January, 2002, stated that her first obligation when an Order is appealed is to forward a copy of her file to the Zoning Board of Appeals.  She explained that she has forwarded a reconstituted file because the original files are missing.  Ms. Brown stated that the files existed at the time of the revocation but have since disappeared.  She explained that she has reconstituted the file with documents from the Health Department and Building Department files, along with the plans submitted by Mr. Donald after the revocation of the permit.  Ms. Brown stated that she has a copy of an application for this specific project submitted in January 2005 which she approved in March of 2005.  She noted that the builder came to the Zoning Office and found that the permit expired it was renewed.  Ms. Brown noted that this was toward the end of June 2006.  Ms. Brown stated that the only building permit issued was issued at the beginning of July 2006.  She stated that the reason she revoked the permit is because it should not have been issued in 2005 and should not have been renewed in 2006 because the lot is in an R-80 zone and is not 80,000 square feet.  Ms. Brown stated that the lot is approximately 65,000 square feet and is also shy of the square by approximately 5 feet.  

Ms. Brown stated that she has two letters from her attorney which she distributed to the Board.  She noted that the first indicates that she has the authority to revoke a Zoning Permit.  Ms. Brown stated that the second letter explains the Porier ruling and gives the time frames of the applicable Statutes.  She explained that there was a period of time where the Zoning Regulations in effect at the time of Subdivision approval were the Zoning Rules that always applied.  Ms. Brown stated that Attorney Cohen spoke of a 2004 permit for the project that she approved and she believes this may have fallen into that time period when it would have been legitimate.  Ms. Brown stated that in both 2005 and 2006 she should not have approved the application.

Ms. Brown stated that the Commission is very familiar with Section 8.9.3 because it is very often the Regulation under which people are required to come to the Board for a variance.  She indicated that she has also supplied the Board with a copy of Sections 51.5.8, which details time limits on a Zoning Permit, and 51.7 which states that if work is progressing not in compliance with the Zoning Regulations a stop work order should be issued.

Ms. Brown stated that she met with the contractor on the site on the 17th of July, the day of the Order, and she indicated to him at that time that he could secure the hole and remove the logs and brush from the site if he wanted to.  

Attorney Knapp, representing Ms. Brown, stated that as indicated in his memo, the Zoning Enforcement Officer is authorized to revoke permits that do not meet the Regulations for any reason.  He noted that the proper remedy is an appeal to this Board so procedurally things have occurred correctly.  Attorney Knapp stated that this evening the Board has the opportunity to decide whether the permit was properly granted initially and/or properly revoked in July 2006.  He noted that under Porier, there was a window in 2003/2004 where the Regulations in place at the time the Subdivision was approved were frozen in time to last forever for that lot.  He stated that this changed the way Zoning Regulations were to be interpreted.  Attorney Knapp stated that the legislature then changed the Statute to allow vacant lots to use the Regulations in effect at the time of Subdivision approval but once a foundation was poured, any further work had to be in compliance with the current Zoning Regulations.  He noted that this only applied to raw land, not to a home knocked down.  Attorney Knapp stated that the appellant has not indicated what Regulations he’s claiming were in place at the time this lot was created under Subdivision Regulations so he is not sure what the Porier fix would be in this case.  He noted that because it is not a vacant lot it does not benefit from Porier and would have to conform to 8.9.3.

Attorney Knapp stated that he has heard a lot of reasons why this site might be deserving of a variance, but there is no variance on the table this evening.  He noted that there was equitable reliance on behalf of the Donald’s, it may be the smallest house in the neighborhood, the additions may meet all setbacks and it may be a good candidate for a variance.  Attorney Knapp stated that this evening the Board must decide whether the site meets the current Zoning Regulations and so far he has not heard anything from appellant’s counsel indicating this.  He noted that in the absence of other facts, the Zoning Board of Appeals should not find that the permit was improperly revoked because it ultimately should not have been granted.

Mr. Kotzan questioned whether the Board should consider equitable reliance as far as financial liability to the Town.  Attorney Knapp stated that that is not a consideration of the ZBA.  He indicated that that may be for a Judge to decide.  He noted that the Board should consider this evening whether the proposed project meets the Zoning Regulations.

Mr. Schellens questioned why a variance was not applied for.  Attorney Cohen stated that Statute requires an exhaustion of remedies by this appeal to this Board.  He indicated that the ZBA has the power to over rule the decision of the Zoning Enforcement Officer and to allow the permit to go forward, whether it is a detrimental reliance issue or whether it is with regard to all the other issues that exist here.  Attorney Cohen stated that Ms. Brown stated to his clients that the likelihood of them receiving a variance was not high which is why his clients chose this route rather than the variance route.  He stated that the Order itself, dated July 17, 2006, is very specific and it states “this order is issued to you to stop all excavation and construction work.”  He noted that the Order was addressed to the Donald’s, not to Mr. King.  Attorney Cohen stated that as a result of this Order there is still an open hole on the site.  Attorney Cohen stated that the Building Permit was voided.  He noted that if Ms. Brown only wanted to revoke her permit, she did not have to issue a C&D that stated stop all construction work.  Attorney Cohen stated that the Order issued resulted in an open hole on the site.  He noted that Ms. Brown had no authority to revoke the Building Permit.

Ms. Brown stated that she did not void the Building Permit; that was done by some one in the building department.  She indicated that she took a copy of that permit from the Building Department file.

Attorney Knapp stated that if the property owner applied to fill the hole Ms. Brown would issue a permit to do that.  He noted that the fact that there has been a hole on the site since August has nothing to do with the Cease and Desist Order.  Attorney Knapp reiterated that the issue before the Board is whether or not Ms. Brown acted correctly in revoking the permit.

Attorney Cohen stated that it is within the discretion of the Board to overrule Ms. Brown based on all of the factors discussed this evening.  Ms. Brown stated that if the Board sees fit they should grant the Donald’s permission to secure the site as a condition of any decision that they make.  Attorney Knapp agreed that this would be appropriate.

Mr. Schellens asked Ms. Brown to respond to Attorney Cohen’s remark regarding the applicant’s chances of receiving a variance.  Ms. Brown responded that she cautions every applicant that it is difficult to get a variance and it is a drawn-out process.  She indicated that she was surprised that they did not apply for a variance.

Chairman Stutts questioned whether the Donald’s were aware they had a nonconforming lot.  Attorney Cohen replied that he is not aware whether they knew or not.  He stated that he would like to emphasize that his clients have done everything according to the rules; they have violated nothing.  Attorney Cohen indicated that they applied for and received all permits and did not work beyond the scope of those permits; when they were issued a Cease and Desist Order they stopped work.  He noted that they then appealed, as is the process.

Mr. Schellens asked Ms. Brown about the 90% rule, which began the confusion.  Ms. Brown stated that 8.9.1 states that on a vacant lot if there is 90% of the lot area required in the zone and at least 18,000 square feet, a building can be built upon it without a variance.  Ms. Brown explained that she went to the Zoning Commission in August of 2005 and asked about this specific regulation in relation to lots already built upon.  She stated that after that meeting she wrote a memo to the file stating that the Zoning Commission told her that this would also apply to improved lots.  Ms. Brown stated that subsequently some members of the Zoning Commission have indicated that they do not remember that conversation and it’s not on the tapes of the meeting or in the minutes.  Ms. Brown stated that this is why she renewed the permit in June 2006 and remarked on Section 8.9.1.  She noted that this lot does not have 90 percent of the required lot area; she calculated 80 percent in error.

The Board reviewed the tax map, comparing the subject lot with the surrounding lots.  Chairman Stutts noted that it is quite a bit smaller than adjacent lots.  Ms. Brown noted that at the time of subdivision approval, the regulations allowed some lots to be smaller than the minimum required for the zone.  

Mr. Moll questioned whether there is still a hole on the site that represents an unsafe condition.  Attorney Cohen replied that there is and indicated that they believe it is the responsibility of the Zoning Enforcement Officer.  Mr. Kotzan stated that some stakes and orange flag tape would not require a permit.  Attorney Cohen questioned whether that would be construction work.  The Board indicated that it would not be.  Attorney Knapp agreed and indicated that it is not constructive to argue what can and cannot be done around the hole.

Ms. Brown indicated that if a neighbor had not notified her that this permit should not have been issued, this problem would not have been discovered.  Attorney Knapp stated that if the work had been done on this project and existed for three years without anyone noticing, it would have been grandfathered under the Statutes.  

Mr. Schellens stated that if the Board overruled Ms. Brown’s C&D, they would in effect be granting a variance without any hearing and any notice to neighboring properties.  Attorney Cohen stated that he has attempted to address everything he would have if this were a variance application.  He noted that it is within the power of this Board to right wrongs.  Ms. McQuade stated that righting this wrong by overruling Ms. Brown may result in a wrong to the neighbors.  She noted that the neighbors have rights with respect to their properties.

Attorney Cohen’s stated that all the applications of the Donald’s have indicated that their mailing address is in Farmington, Connecticut, yet the certified mail was sent to Binney Road.  Ms. Brown stated that she physically handed a copy of the Cease and Desist to Mr. Donald.

Ted Kiritsis, Chairman of the Zoning Commission, stated that he was with Ms. Brown on the 17th of July when the C&D was issued.  He indicated that he does not recall a large hole.  Mr. Kiritsis stated that he remembers that a few large boulders had been moved and a large tree.  He indicated that the contractor was asking whether they could move the boulders and the tree and Ms. Brown indicated that they may.  Mr. Kiritsis stated that the 90% rule applies to vacant lots only.  He noted that the Tax List gives 12 Binney Road as the applicants mailing address, which is why the certified mail was sent there.

Hearing no further comments, Chairman Stutts closed this Public Hearing.

ITEM 2: Public Hearing Case 06-38 Beverly Curry, 14 Brightwater Road, variance to construct first floor family room addition.

Attorney Michael Cronin and Beverly Curry were present to explain the application.  Chairman Stutts stated that the existing nonconformities are 21.3.7, street setback, 25’ required, 12’ existing; and rear setback required is 30’ and 29’ exists.  She indicated that the proposal does not comply with 8.8.1, no nonconforming structure to be enlarged and 7.4, setback, 21.3.7, street setback required 25’, 19.9’ proposed for a variance request of 5’3”.

Attorney Cronin stated that the plan has been prepared by Jerry Karpuska, architect.  He explained that the lot is conforming and it contains a year-round single-family dwelling.  Attorney Cronin stated that the applicant was before this Board years ago for year-round use, which was granted.  He stated that the proposal is to construct an addition on the northerly side of the structure, 16’ x 18’, which will be a family room.  Attorney Cronin stated that the dwelling has two bedrooms on the second floor.  He noted that a new septic system was installed pursuant to its winterization.

Attorney Cronin noted that the lot is just shy of 12,000 square feet and is conforming.  He stated that the applicant could construct an addition without requesting a variance if it could be moved back 25’ from the street line.  Attorney Cronin stated that the issue before the Board is not whether an addition can be constructed, but because of the internal arrangement of the rooms it is much better to put the addition forward to the street rather than back 25’ from it.  Reviewing the plot plan, Attorney Cronin stated that they will access the addition by making the existing window on the side of the house into a door.  He indicated that if it were moved back 6 feet in order to meet the 25’ requirement, the south wall of the family room would parallel the stairway which goes to the second floor and it would also parallel the existing new kitchen.  Attorney Cronin stated that the logical location is to put the access right next to the stairwell off the living room.  He noted that this is the hardship.  Attorney Cronin stated that the home was constructed prior to zoning.  He noted that the shape of the lot gives very little flexibility when meeting setbacks.  Attorney Cronin stated that the basic structure is not moving closer to the street.

Attorney Cronin explained that the existing lot was originally two lots which Ms. Curry acquired at different times.  He noted that for some reason the Assessor’s Office never combined these as a single property.  Attorney Cronin stated that when a variance was received to winterize the property, one of the requirements was to make certain that it was a single lot.

Chairman Stutts questioned why the addition cannot be constructed on the other side of the house.  Attorney Cronin stated that in the application they refer to the fact that if it is put off the other side of the house it will encroach on the existing septic system.  He noted that to put it on the rear of the property it would encroach on the rear yard requirement.

Chairman Stutts stated that the square footage is 760 on the first floor and 460 on the second floor.  Attorney Cronin stated that the total footprint is 1,156 square feet with the shed and the deck.  He noted that it is a relatively modest home.

Mr. Moll questioned the purpose of the addition.  Ms. Curry stated that she would like to have a better room to meet as a family with her increasing number of grandchildren.

No one present spoke in favor of or against the application.  Hearing no further comments, Chairman Stutts closed this Public Hearing.

ITEM 3: Public Hearing Case 06-40 Janice Habicht, Trustee, 49 Seaside Lane, variance to enlarge building devoted to a nonconforming use.

Attorney Cronin was present to represent the applicant.  Chairman Stutts stated that the existing nonconformities are 21.1.2, no multi-dwellings permitted in the residential zones, property contains a year-round dwelling and a seasonal dwelling; 21.3.2, minimum lot per dwelling is 10,000 square feet, 20,000 required, 12,381 provided.  She noted that the proposal does not comply with section 8.7.1, no nonconforming use of land shall be enlarged unless reducing or eliminating the nonconformity.  Chairman Stutts stated that the proposal is to raise the roof, put a 2’ extension on the north side and add an addition to the exterior stairs and dormers on the north and south side.

Attorney Cronin stated that Mr. Mane, the architect on the project, is also present this evening.  He stated that he originally filed two surveys which combined show the outline of the lot.  Attorney Cronin stated that the clerk indicated that it was confusing and requested that a site plan of the entire lot be submitted.  He indicated that he has a photocopy of one map superimposed on the other to show the outline of this very unusually shaped lot.  Attorney Cronin acknowledged that he filed the map this morning.  He noted that the lot has two accesses, both Brighton Road and Seaside Avenue, but the main access is Seaside.  Attorney Cronin stated that there are three structures on the property, the large cottage, the small cottage and a garage.  He explained that the application before the Board is with reference to the small, irregularly shaped cottage on the north side of the plan.  Mr. Moll asked Attorney Cronin to highlight this on the site plan.

Attorney Cronin noted that many years ago there was a question as to whether the cottages were year round or seasonal and the matter went to Court.  He noted that the small cottage was acknowledged to be a seasonal dwelling and an appropriate order of the Court was entered establishing that.  Attorney Cronin stated that they are not attempting to change the status of this structure.  He explained that the structures were built in 1937, long before zoning, and has been used by the Habicht family for decades.  Attorney Cronin stated that they would like to modernize the cottage which is the purpose of this application.

Mr. Mane noted the existing and proposed floor plans and stated that the overall size does not change much, but the layout will be greatly improved.  He indicated that they are not changing the room types or quantities.  Mr. Mane stated that the house currently has two bedrooms and will have two bedrooms in the new plan.  He explained that the small bedroom will be changed to the new kitchen location which is where the structure will be enlarged by 2’.  He noted that the kitchen has a small indent which they would like to even out.  Mr. Mane stated that in the living area there is a small step that traverses the one-third/two-third line of the space and the new plan proposes to create a flush floor condition for better use of the space.  He noted that this will increase the height of the roof in that area.

Mr. Mane explained the elevation drawings.  He noted that the north elevation shows the bay for the bedroom, which does not involve foundation work, but cantilevers out two feet.  Mr. Mane stated that the former bedroom/new kitchen area has the small area filled in, which is shown in the south view.  He noted that the raising of the floor to eliminate the step in the living room requires raising of the eave, which is shown in the east elevation.  He indicated that this is an approximately 12” increase in the height of the roof in that area.

Mr. Kotzan questioned the hardship.  He noted that the lot is pretty cramped.  Mr. Mane noted that the existing smaller bedroom is 6’8” x 7’3” and is inadequate.  He noted that it literally is a room with a bed in it.  Mr. Mane stated that the larger bedroom is still small by modern standards but they would like to add a closet to it.  He indicated that they are trying to correct some of the odd geometry in the kitchen and create a navigable floor plan.  Mr. Mane stated that the cottage will increase from 548 square feet to 576.  Chairman Stutts noted that the roof is also being raised.

Chairman Stutts questioned the reference to the addition to the exterior stairs.  Mr. Mane stated that that is an error, there is no exterior stair renovations.  He noted that there are existing concrete stairs shown on the plan which will remain in the new plan.  Chairman Stutts questioned the proposed dormers.  Mr. Mane stated that they are roof vents for the attic space.

Attorney Cronin stated that the increase to the square footage is 41 square feet.  He noted that the foundation is not being increased; the square footage is being constructed out like a picture window.  Mr. Mane stated that if they raised the floor in the living area to eliminate the step without increasing the roof height, the ceiling would only be 5’8”, which would not conform to building code.

Attorney Cronin stated that the applicant would like to modernize his old cottage.  He noted that with very small modification they are increasing the utility of the property.  Chairman Stutts stated that a nonconforming use is very different from a nonconforming property.  She noted that it is a general principle in zoning that nonconforming uses should be abolished and reduced to conformity as quickly as the fair interest of the parties will permit; in no case shall they be allowed to increase.  The accepted policy of zoning is to prevent the extension of a nonconforming use.  The alteration and substantial remodeling of a building existing as a nonconforming use is logically inconsistent with the principle that an essential purpose of zoning regulations is the stabilization of property uses.  Fundamental structural improvements will serve only to perpetuate the nonconforming use.  She noted that this is very different than requesting a variance on a nonconforming property.

Mr. Mane stated that they were sensitive to not adding rooms or changing the basic arrangement of the house.  Attorney Cronin stated that he is very familiar with what Ms. Stutts stated, but the person that wrote that does not deal with zoning on a daily basis.  He indicated that if that was applied to every application that came before the Board they would grant very few variances.  Chairman Stutts noted that it should not be applied to every application; just nonconforming uses.  Attorney Cronin stated that an issue in the appeal was whether or not the two dwellings were nonconforming uses and the Court found that they were conforming with the Regulations; that mutli-family dwellings are a permitted use in this zone.  He noted that the Court case is 1992.  Attorney Cronin stated that the Court found that the two homes are a permitted use on the property.  He noted that only the area of the lot did not conform to zoning.

Mr. Moll questioned whether the current structure was to be removed.  Mr. Mane replied that it would not be.  He explained that they will be retaining much of the existing structure.  Mr. Moll questioned whether they would be adding insulation.  Mr. Mane replied that they would not be.

Attorney Cronin stated that the hardship is that the cottage is obsolete and they would like to bring it up to code requirements and make a very modest improvement.  Chairman Stutts questioned the hardship as related to the property; what makes their hardship unique.  Attorney Cronin stated that it is a purely functional hardship.  He noted that the remodeling plan will greatly improve the utility and value of the property.  Attorney Cronin stated that the current Zoning Regulations prohibit this.  Chairman Stutts replied that the Regulations allow the building to be modernized within its existing footprint/envelope without any variance.  She noted that they are looking for a hardship unique to this property that should allow an increase to a nonconforming use.  Attorney Cronin stated that he does not think there is another property in the beach area with such a unique encroachment into the kitchen area that effectively prevents the area from use as a kitchen.  He noted that filling in this corner will not affect anyone yet will make it a serviceable kitchen.

Ms. McQuade suggested that one of the bedrooms could be eliminated to increase the functionality of the living space.

Tom Zip, neighbor at 49 Brighton, pointed out his property on the tax map.  He noted that the property is very congested.  He noted that the garage has always been called a barn.  Mr. Zip stated that people used to sleep in it.  He stated that there is a gas tank on the property line which does not meet current zoning regulations.  Mr. Zip stated that the septic system unit was installed illegally.  Mr. Mane disagreed and noted the septic system on the plan.  Mr. Zip stated that he saw the system being installed and it was not installed where it is indicated on the plan.  He noted that one of the systems is right on the high tide line.  Mr. Moll stated that the Board should ask that this be reviewed by the Sanitarian.  Mr. Zip stated that allowing any increase on this property would be an injustice to the neighbors.  

Cindy Pinzack, 49-2 and 49-3 Seaside, stated that part of the living area with the step down was a porch not too long ago.  She noted that that is the reason for the step.  Ms. Pinzack stated that her great uncle developed the area originally.

Mr. Brian Fox, 43 Brighton Road, stated that he agrees that there are many structures on the property and does not feel the density should be increased.

Hearing no further comments, Chairman Stutts called this item to a close.

ITEM 4: Public Hearing Case 06-41 Joyce Soucie, 7 Saltaire Drive, variance to construct sunroom and detached two-car garage.

Attorney Cronin, Mr. Buckley, Architect, and Joyce Soucie were  present to explain the application.  Chairman Stutts stated that the proposed sunroom is 12’ x 35’, along with a two-car garage.  She explained that the existing nonconformity is 21.3.7, minimum setback 25’, 19.7 exist; 21.3.8, rear setback, 30’ required, 19’ exist, and 21.3.9, 12’ side setback required and 11.9’ exists.  Chairman Stutts stated that the proposal does not comply with Sections 8.8.1, no enlargement on a nonforming lot, 21.3.8, rear setback, 11’ variance required for sunroom and 14’2” for garage; 21.3.11, maximum lot coverage, 25% allowed, 30.9 proposed for a variance of 6.9 percent; 21.3.12, maximum total lot coverage as a percent of lot area is 30 percent.

Attorney Cronin explained the plot plan to the Board.  He noted that the property is located in Old Lyme Shores on the west side of Saltaire Drive.  Attorney Cronin stated that the lot has 125’ frontage on Saltaire and approximately 80’ deep and as such is a conforming lot.  He noted that the required setbacks of 25’ from the street and 30’ from the rear property boundary only leaves 25’ for building.  Attorney Cronin stated that 89 percent of the homes in this area violate the front yard or rear yard setback and in doing so any expansion is in a nonconforming location.  He noted that this is one of the few conforming lots in the area with a total of 10,001 square feet.

Attorney Cronin stated that the Assessor’s Record indicates that it is a one and one-half story house with three bedrooms.  He noted that a few years ago the property was remodeled and it does not have a second story of any type; it is a single-story house.  Attorney Cronin stated that the addition was put on in 2001.  He noted that the addition is 25’ from the front property line and 30.7’ from the rear property line and did not require a variance.  Attorney Cronin stated that many of the properties in the area have a garage and because they live here year-round, they too would like a garage.  He noted that the proposed garage is 572 square feet.  Attorney Cronin stated that the proposed garage is 26’ x 22’.  He explained that if it is placed in the middle of the lot there are several problems, the first being the septic system.  He noted that the septic tank is as shown on the map.  He explained that the structure also has to meet setbacks from the leaching field.  Attorney Cronin stated that there is an existing well on the property.  Attorney Cronin stated that if the garage was brought closer to the road it will eliminate the area in front the garage where one may want to park vehicles.  He noted that this location will also interfere with the septic system.  Attorney Cronin stated that they are proposing the garage in the most logical location, although it goes into the rear yard setback.

Attorney Cronin explained that they are also proposing a sunroom on the rear of the property in an area that is currently a patio area.  He explained that it is westward facing and in the summer the sun is right in one’s eyes.  Attorney Cronin stated that the sunroom will not have heat and will not have function as a bedroom.  He noted that the last element is a proposed breezeway connecting the sunroom to the proposed garage.  Attorney Cronin stated that in order to accomplish this work they will need the variances requested in the application.  He explained that the hardship is the relative length of the lot compared to the width of the lot.  Attorney Cronin stated that the septic system location is another hardship.  

Attorney Cronin stated that the house currently sits 23.2 feet from the rear property line and only a slight increase of this is requested; from 23.2 to 14.8’ at the closest point.  He noted that the proposed sunroom would be 19’ from the property line.  Attorney Cronin stated that the existing shed will be removed.  He explained that the proposed existing lot coverage and the maximum building coverage in the proposal are the same or 30.9 percent.  He noted that 25 percent is allowed in this zone.  Attorney Cronin stated that they feel that the specialized use of the sunroom does not actually increase living area and there will be no additional bedrooms on the property.  He noted that the garage will also not create new bedrooms and will not increase the number of people on the property.  Attorney Cronin stated that under these circumstances it is not unreasonable to ask for a variance of this requirement.  He indicated that the applicant does have priorities and if they are concerned about the coverage the applicant would request that they be allowed to put a roof over the patio but not enclose it and the same for the breezeway.  Attorney Cronin stated that if the Board feels that this would not be possible, the garage is the highest priority for the applicant.  He indicated that the total area of the garage and the existing house is 2,596 square feet for lot coverage of 25.9 percent or a .9 percent variance.  He noted that the house is 2,024 square feet and the proposed garage is 572 square feet for total lot coverage of 2,596 square feet.  Mr. Kotzan noted that the coverage would be 25.96 or basically 26 percent.

Brian Buckley explained the drawings to the Board.  He submitted new elevation drawings, noting the only difference to be building height identified on both the existing and proposed structures.  Mr. Buckley stated that the proposal is not to change the use of the patio, but the utilization.  He noted that the roof and walls will make it more livable as a space.  Mr. Buckley stated that a 22’ x 26’ garage is very modest.  He noted that the garage has a steeper pitched roof to match the house and this roof pitch gives the opportunity for storage space on the second floor.  Mr. Buckley stated that for the safe access to this storage space they are proposing interior stairs which is the reason for the 26’ depth.

Mr. Soucie stated that the abutting property owners have given them a setback easement so that they could apply for the garage.  He noted that the leaching galleries are currently, by code, 12’ from the property line.  Mr. Soucie stated that the abutting property owner has given them an easement to move the leaching galleries to the property line.  He noted that the tank is shown under the driveway but it can be moved to the left when the leaching galleries are moved.  Mr. Buckley stated that the tank is shown 8.6’ from the proposed garage which does not meet the State Health Code.  He indicated that he is sure the Sanitarian addressed this in his comments.  Chairman Stutts stated that there is no such note on the zoning permit.  Mr. Soucie stated that they can have Shoreline Sanitation move the tank when they move the leaching galleries.  Mr. St. Germain stated that the septic tank is currently shown under the driveway.  He questioned whether it was to be moved.  Mr. Soucie stated that should they get an approval, they will move the tank, along with the leaching galleries.  He indicated that he will speak to Mr. Rose prior to any work being done on the septic system.

Chairman Stutts questioned whether the Soucie’s owned the property in 2001 when extensive renovations were done.  It was indicated that the Soucie’s have owned the property for 35 years.

No one present spoke in favor or against this application.  Hearing no further comments, Chairman Stutts called this Public Hearing to a close.

ITEM 5: Public Hearing Case 06-42 Patricia & Gary Bieniewicz, 31 Four Mile River Road, variance to construct two-car garage with bonus room above.

Robert Chapman and Patricia Bieniewicz were present to explain the application.  Chairman Stutts stated that a variance is requested to construct a two-car garage with bonus room above.  She noted that the proposal does not comply with 7.4, setbacks, 21.3.7, minimum street setback of 50’ required, 46.5 proposed.  

Mr. Chapman stated that they could construct an attached garage without a variance that would be 20’ x 24’.  He demonstrated this on a plan.  Mr. Chapman noted that the problem with this plan is that the cars, mid-size as shown, barely fit and one cannot open the doors because the chimney bumps out.  He noted that there is no direct access into the house.  Mr. Moll stated that he thought that the proposed garage was to be 24’ x 24’.  Mr. Chapman explained the proposed site plan depicting a 24’ x 24’ garage.  He indicated that they cannot move it to the other side of the house because it would then be closer to the wetlands.  Mr. Chapman noted that there are currently no windows on the side of the house where the garage is proposed.  Mr. Chapman noted that the only infringement to the setbacks is the small corner of the front of the proposed garage.  He noted that putting the garage on the other side of the house would also require additional pavement.

Chairman Stutts stated that what concerns her is that this conforming property now will become nonconforming and every time the homeowner wants to do something they will have to appear before the Zoning Board of Appeals.  She stated that the Board does not like to create nonconforming properties.  Ms. Bartlett pointed out that the lot would not become nonconforming, just the small sliver of structure that is in the setback.  She noted that improvements anywhere else on the property in a conforming location could be made without ZBA approval.  

Mr. Moll stated that the interior plan view of the garage does not show a doorway into the house.  Mr. Chapman stated that they will have to exit the garage through the back and then enter into the house.  Ms. Bieniewicz indicated that she does not believe that it will be possible to have an interior door because of the wall space.  Mr. Chapman stated that the bonus room is just one big large room.  He noted that there will be interior stairs and access from the upper hall.

Chairman Stutts read a letter from the Bieniewicz’s neighbors in favor of the proposal, Susan and Hussien Mussen.

Hussien Mussen stated that he lives at 29 Four Mile River Road.  He stated that the location proposed is really the only good one on the site.  Mr. Mussen indicated that he is in favor of the application.

Hearing no further comments, Chairman Stutts closed the Public Hearing for this application.

ITEM 5: Public Hearing Case 06-43 Lynne Galipeau, 14 Miami Avenue, variance to construct a sunroom.

Chairman Stutts stated that a variance is being requested to construct a sunroom.  Ms. Galipeau indicated that she hired a local builder to do the proper elevation drawings so that the Board would have an indication of the scale.  She displayed photographs of the house as it exists.

Chairman Stutts noted that the previous appeal for this sunroom was denied for lack of proper elevation drawings.  She noted that the proposed sunroom is 13’ x 20’.  Chairman Stutts stated that the variance application requests a 13’ x 20’ porch and the plans show a 12’ x 20’ porch; she noted the first application was for a 16’ x 20’ porch.  Ms. Galipeau explained that the reason for this is that she did not want any change to existing doors or windows and she had to consider setbacks for the septic system and leaching fields.  Mr. Moll suggested that the application be modified to indicate a 12’ x 20’ porch.  Ms. Galipeau revised the application for the record.

Ms. Galipeau stated that the only variance required is Section 8.9.3, no enlargements on a nonconforming lot.  She noted that the porch meets all setbacks.  Ms. Galipeau stated that her house was constructed prior to zoning.  She indicated that the original file included letters from two of her neighbors.  Ms. Galipeau submitted a copy of the letter from the Darrows.

Ms. Galipeau stated that her lot is 8,800 square feet.  Ms. Galipeau noted that the sunroom has screen panels, not windows.  She noted that the floor will be decking so that it can drain.  Mr. Kotzan questioned whether Ms. Galipeau would be agreeable to a condition that would require that she keep the exterior siding and door inside the porch.  Ms. Galipeau indicated that she would.  She noted that the sunroom will be in keeping with her current house and with the neighborhood.

Chairman Stutts questioned how the porch would be accessed from the back door.  Ms. Galipeau stated that the porch will come out from the door and then jut over.  Chairman Stutts stated that the elevation drawing shows the rear door outside the porch.  Ms. Galipeau stated that there is currently a cement apron in front of the door which she asked the builder to include as part of the porch.  She indicated that he must not have changed the drawing.

Mr. Schellens suggested that the Public Hearing be continued to give Ms. Galipeau the opportunity to have her builder revise the elevation drawing.  It was noted that a new site plan should also be provided.  Ms. Galipeau indicated that she would like to continue her Public Hearing to the November Meeting and submitted a letter reflecting that.  She noted that she will submit a new elevation drawing and site plan for the November meeting.

No one present spoke in favor or against the application.  Hearing no further comments, Chairman Stutts noted that this Public Hearing will be continued to the November Regular Meeting.

ITEM 7: Open Voting Session

Case 06-39 Andrea & Robert Donald, 12 Binney Road, Appeal

Chairman Stutts stated that this is an appeal of the ruling of the ZEO on July 17, 2006, to Cease and Desist and stop all excavation work and revocation of Zoning Permit 05-22.  She explained that the Donald’s were constructing an addition to the house and a detached garage on a substandard lot consisting of 65,805 square feet in an R-80 zone.  Chairman Stutts stated that the Board’s charge is to decide whether the ZEO was correct in, after making an error in issuing the Zoning Permit, revoking the Zoning Permit.  Chairman Stutts stated that it is unfortunate that the Donald’s had to go through this.  She noted that Attorney Knapp stated that the issue is not whether the Donald’s deserve a variance, but was the Zoning Permit properly revoked.  She noted that he also felt the Zoning Board of Appeals was not in the position to determine detrimental reliance.

Mr. Kotzan stated that it may be in the Board’s ability to make the Zoning Permit stand but he is not sure it would be right to let a permit, that they know was improperly issued, stand.  He stated that it is unfortunate that a mistake was made yet he feels the Board should uphold Ms. Brown’s issuance of the Cease and Desist Order of July 17, 2006.  Mr. Kotzan noted that there are other avenues that the Donald’s can pursue to ensure that all interests are properly represented.  Chairman Stutts agreed, noting that she knows there is some discontent with this project in the neighborhood.

Mr. Schellens noted that the issue is fairly black and white.  He noted that any neighbor with concerns would be denied due process if the Board overturned Ms. Brown.  Mr. Schellens acknowledged that he is also sympathetic to the Donald’s plight.  

Mr. Schellens stated that when he constructed a pool in his back yard the Town required construction fence around the hole.  He noted that the Zoning Regulations allow a four foot fence anywhere on the property, all the way to the boundary lines.  Mr. Schellens noted that a permit is not even required.  He indicated that it really is a non-issue and should not be addressed in any motion.  Mr. St. Germain agreed.  The Board agreed that this issue was discussed at length this evening and everyone is in agreement that the Donald’s can secure the site.  Mr. Moll requested that some one be tasked with making sure that the property is secured.  Chairman Stutts agreed and asked that the record reflect that the Zoning Board of Appeals urges that safety measures be taken to secure the site.  Mr. St. Germain stated that making sure that the site is safe is just common sense and the Donald’s should correct this themselves.

A motion was made by Richard Moll, seconded by Kip Kotzan and voted unanimously to uphold the ZEO’s in her issuance of a Cease and Desist Order dated July 17, 2006 to stop all excavation work and revocation of Permit #05-22.

Reasons:

1.      Procedurally, things occurred properly after the error was discovered.

2.      By upholding the ZEO’s issuance of the C&D dated July 17, 2006, the Zoning      Board of Appeals is allowing for due process of the neighbors in a possible             application for variance for this property.

3.      The Kaserta vs. ZBA holds that the Zoning Enforcement Officer is authorized to  revoke a permit if he/she had issued it erroneously.

ITEM 8: Approval of Minutes of the September 12, 2006 Regular Meeting.

No action taken.

ITEM 9: Any New or Old Business to come before said meeting.

A special meeting was set for Tuesday, October 17, 2006, to complete the Open Voting Session.  Ms. McQuade indicated that she would not be able to attend but Mr. St. Germain indicated that he would be able to attend and will vote in her place.

Chairman Stutts indicated that Wendy Brainerd has officially resigned as an alternate on the Board.  She indicated that June Speirs has asked Ms. McQuade to cover her position for a while.

ITEM 10:        Adjournment.

The meeting adjourned at 10:56 p.m. on a motion by Richard Moll and seconded by Tom Schellens.  So voted unanimously.

Respectfully submitted,



Susan J. Bartlett