APPROVED
OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
TUESDAY, JANUARY 9, 2007
The Old Lyme Zoning Board of Appeals met on Tuesday, January 9, 2007 at 7:30 p.m. at the Old Lyme Memorial Town Hall. Those present and voting were Susanne Stutts (Chairman), Richard Moll, Kip Kotzan, Joseph St. Germain (Alternate) and Judy McQuade (Alternate).
Chairman Stutts called the meeting to order at 7:30 p.m. and noted that Mr. St. Germain and Ms. McQuade would be voting alternates this evening.
ITEM 1: Public Hearing Case 06-44 Mark & Maryellen Phelan, 77 Sea Spray Road, Appeal of ZEO’s denial to allow dormer addition.
Attorney John Bennet and Mark and Mary Ellen Phelan were present to present their application. He noted that the Phelan’s purchased the property in 2000. Attorney Bennet explained that in March of 2006 the Phelan’s had a similar appeal before the Board. He explained that the proposal is to put two dormers on the existing house, one on the back to provide headroom for a stairway to the second floor and a larger dormer on the side facing Long Island Sound. Attorney Bennet stated that the house presently has four bedrooms. He noted that in March 2006 the survey showed a boundary line which cut off the last third of the property along the sound. Mr. Bennet stated that he was not representing the Phelan’s at that time and has subsequently reviewed the title and believe that
it was an anomaly in the description of the property and the surveyor make a mistake in the determination of the boundary line. He explained that the easiest way to resolve the issue was to ask the Beach Association to convey, by quit-claim deed, all the property down to the face of the seawall, thereby resolving any lingering question about the title or size of the property.
Attorney Bennet stated that the property is currently 5,948 square feet as shown on the site plan. He explained that all proposed additions to this house completely conform with the zoning regulations in regard to floor area ratio, height, setbacks, and coverage. Attorney Bennet noted that in the prior application the Board had concerns about the floor area ratio. He stated that the basis for denial of the Phelan’s application was Section 8.9.3 which states no building or other structure located on a lot which does not conform to the requirements of these regulations regarding lot area, shape, building bulk and coverage shall be enlarged or extended and no additional buildings or structures may be constructed on such lot. Attorney Bennet stated that he takes exception to this regulation,
although he does not believe it has ever been tested. He stated that the effect of that regulation prevents the applicant from making conforming additions to the property.
Attorney Bennet stated that Section 8.8.1, regarding enlargement of buildings and structures, allows for making changes as long as the extensions and enlargements conform with the regulations. He stated that these two sections are mildly contradictory and he believes that the conforming additions proposed should be allowed, even in the face of the regulation as drawn.
Mr. Kotzan questioned why the Board should disregard Section 8.9.3. Attorney Bennet replied that he does not believe it is ultimately enforceable. He noted that in order to preserve that position he had to make this appeal.
Referring to a photograph of the existing house, Attorney Bennet pointed out where the proposed dormers are to be located. He submitted computer generated elevation drawings for the record. Attorney Bennet stated that the calculations of area and setbacks are shown on the site plan.
Attorney Bennet stated that Section 8.9.3 uses the nonconformities to deprive the homeowner the right to make conforming additions and the regulation is suspect as a result of that. He reiterated that in order to preserve his right on this matter, he must bring this appeal.
Attorney Mark Branse was present to represent Ann Brown. He noted that the text of the regulation is clear; if the lot is nonconforming there can be no expansion of the building that’s located on it. Attorney Branse stated that the applicant is not claiming that the ZEO misread the regulation or that there is a factual dispute. He explained that the purpose of the regulation is that it recognizes that a lot that is nonconforming, in this case only 60 percent required for the zone, should not be further stressed by having an enlarged building on it. Attorney Branse stated that the Statutes protect nonconforming uses and there is nothing in the Regulations that requires portions of the buildings be torn down; the building can remain. He explained that Old Lyme has an unusually large
number of lots that are dramatically nonconforming and the purpose of this regulation is to be sure that buildings are not continually shoe-horned into lots.
Attorney Branse stated that the issue was raised in the case of Pisani vs. Old Lyme Zoning Board of Appeals. He submitted copies of this case for the record. Attorney Branse stated that Mr. Pisani wanted to raise the height of his structure on a nonconforming lot and the Superior Court upheld the denial of the permit and the issuance of the Cease and Desist Order. He noted that the issue and sections are identical. Attorney Branse stated that the Regulation is clear and the Zoning Enforcement Officer had no choice in the matter. He stated that there is no reason a municipality cannot have a regulation that holds nonconforming lots to what exists on them at the date they became nonconforming.
Ms. Brown, Zoning Enforcement Officer, stated that the Pisani application was not simply an increase in height, but also an increase in the bulk of the building.
Attorney Bennet stated that the applicant is not increasing the footprint. He stated that he does not believe there has been an Appellate decision on this matter.
No one present spoke on this matter. Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 2: Public Hearing Case 07-01 Frank and Joanne Lishing, 307 Swan Avenue, Appeal of ZEO’s refusal to rule on application.
Attorney Mattern was present to represent Frank and Joanne Lishing. He indicated that he believes Ms. Brown has erred in her denial to act on the Lishing’s application. Attorney Mattern explained that the Lishing’s own property on 307 Swan Avenue, abutting the railroad tracks. He noted that they purchased the property in 2005. Attorney Mattern stated that the property has been in it’s current status as far back as he can tell. He referred to the site plan and explained that the lot is L-shaped and the house is in a nonconforming location. He noted that both the house and the lot are pre-existing nonconforming which entitles the Lishing’s to certain protections. Attorney Mattern explained that the property is seasonal and they have not been able to get any
historical data from prior owners as to how the house was physically used. He stated that the property is in a C-10 zone, not a residential zone.
Attorney Mattern stated that the Lishing’s applied for conversion to year round and the Lishing’s were denied. He explained that it took quite a bit of time for an appeal to be filed and he withdrew the appeal on the issue as to whether or not it was a timely appeal. Attorney Mattern stated that when the Lishing’s first applied to Ms. Brown, the Lishing’s did not have potable water. He noted that they were intending to connect with the Connecticut Water Company. Attorney Mattern stated that after negotiating with Connecticut Water Company the Lishing’s looked to the existing well and it turned out that they were able to obtain potable water from the well.
Mr. Moll stated that there were letters in the file back and forth between Ms. Brown and Attorney Mattern as far as whether the well approval is new information. He indicated that he believes Ms. Brown’s refusal to act on the application is the matter at hand.
Attorney Mattern stated that when the applicant’s appeared before the Board back in September, Attorney Branse and Ms. Brown took the position that it was a non-timely appeal because she had ruled on the application about a year before. He noted that he concurred with that opinion and withdrew the appeal and variance request. Attorney Mattern stated that he subsequently filed an application that was completely different then the previous application because the applicant’s now have potable water and certification from the Sanitarian. He stated that this information was new information for Ms. Brown to consider. Attorney Mattern stated that he was very clear in setting forth why this application was new and why she should rule on the application. He stated that Ms. Brown’s
letter of reply states that her prior decision would stand which means that she did not consider the fact that the potable water was now in place. Attorney Mattern stated that one of the appeal issues was whether Ann Brown owes the applicant’s a decision on the new application as opposed to simply stating that she does not want to entertain it. He indicated that when a person files an application, they are entitled to get a decision. Attorney Mattern stated that Ms. Brown wrote that her decision still stands and the only legitimate interpretation of that is to say that it is a denial. He stated that they took this letter as a denial and filed the appeal within 30 days which makes this appeal completely timely and something that should be entertained.
Attorney Mattern submitted exhibit #2, the application filed on October 4, 2006 which contains the certification by Mr. Rose regarding the property meeting the Health requirements for a year-round residence. He noted that Ms. Brown replied to this application by sending a letter dated October 27, 2006 that basically states that since the circumstances of the lot, the buildings and the zoning regulations have not changed, the decision she made on application 05-343 governs the current application; no new decision will be made on the present application, 06-349. He noted that the letter further states that it shall serve as the Lishing’s notice regarding the outcome of application 06-349 and as such, it may be appealed to the ZBA in the normal fashion. Attorney Mattern stated Ms. Brown states in this
letter that the two applications are essentially identical, which is factually not true. He noted that the first application was denied on October 27 because the house is not in a conforming location on the lot and the lot is not a conforming lot. Attorney Mattern stated that Ms. Brown states in her letter that the Board dismissed his original appeal because it was not made in a timely manner. He noted that this is not correct, as he withdrew the application.
Attorney Mattern stated that he responded to Ms. Brown’s letter on November 1, 2006 and pointed out these two incorrect facts. He noted that he also explained why this new application is substantially different then the previous application denied in 2005. He submitted this information for the record.
Attorney Mattern stated that when Ms. Brown denied the application she provided various reasons which were provided on a two-page chart. He stated that in the chart she noted three nonconformities of the property; the first being that the property could not contain the 100’ minimum square; the house was only 12’ from the street line where a 30’ setback was required; and because the street is narrow, the setback is increased to 35’ and the house was setback 12’. Attorney Mattern stated that these facts are accurate. He stated that on the second page of this chart it states that the proposal does not comply with Section 21.2.5c(IX) which states as follows “Conversion of seasonal use dwellings to year round use. The Dwelling and associated lot shall not contain
violations of the Old Lyme Zoning Regulations or the Town of Old Lyme’s Housing Ordinance of April 28, 1966.” Attorney Mattern stated that the key fact is what does the word violations mean. He stated that Ms. Brown stated that the house is not in a conforming location and the lot does not have the required 100’ square. He noted that these facts are not violations of the Regulations or the Old Lyme Housing Ordinance. Attorney Mattern stated that violations does not mean the equivalent of nonconformities. He stated that nonconformities are protected.
Attorney Mattern stated that Section 21.2.5 sets forth that if some one wants to apply under subsection c to convert a seasonal use dwelling to a year-round use dwelling, they must conform to the provisions of subsection c. He noted that the first is that the lot must contain a minimum of 10,000 square feet and there shall be no more than one dwelling unit located on the lot. He noted that the subject property meets these requirements. Attorney Mattern noted that the next requirement is the plan being submitted with the location of all structures and the septic system and also showing the health aspects. He noted that they now meet this requirement. Attorney Mattern stated that the next requirement is that the insulation, electrical system and heating system must comply, which is the case. He stated that the next requirement is other than in Flood Hazard Zones, which they are not in, the lowest floor shall be enclosed with a foundation wall. Attorney Mattern stated that this
house has a foundation wall and a basement. Attorney Mattern noted that the fifth requirement is that the dwelling shall be served by a year-round water supply complying with the Connecticut Health Department Standards, which they now have. He noted that there is a requirement that the on-site sewage disposal system must be approved by the Sanitarian, which is the case. Attorney Mattern stated that the next requirement is in regard to site development and he noted that there is no site development taking place. Attorney Mattern stated that the ninth requirement states that the dwelling and associated lot shall not contain violations of the Old Lyme Zoning Regulations or the Town of Old Lyme’s Housing Ordinance of April 28, 1966. Attorney Mattern stated that violations are something that should be punished or rectified. He noted that violations does not mean nonconformities. Attorney Mattern stated that violations are referred to in
the enforcement section of the Regulations. He indicated that if the Zoning Commission meant nonconformity they should have used that word; the word violation and nonconformity are not interchangeable. Attorney Mattern stated that Black’s Law Dictionary defines violation as being a breach of right, duty or law; the act of breaking or infringing the law. Attorney Mattern stated that the Lishing’s meet all the requirements of Section 21.2.5c.
Attorney Mattern indicated that the housing code has a section that deals with conversions, Section 67-7, and all these requirements have been met. Attorney Mattern stated that the reason for the Town not allowing conversions easily is to be sure that there are proper facilities.
Attorney Mattern stated that the Lishing’s are not in violation of any aspect of the Zoning Regulations or any aspect of the Housing Code. He noted that they have approval of year round water and septic. Attorney Mattern submitted the neighboring wells and septics. Attorney Mattern submitted copies of all the Assessor’s Records. He submitted the minutes of the September 12, 2006, noting that the application was withdrawn, not dismissed by the Board.
Attorney Branse was present to represent Ms. Brown, the Zoning Enforcement Officer. He stated that the Board has heard testimony on two separate issues. Attorney Branse stated that the first issue is whether this is a new appeal or an attempt to get before the Board something that was already ruled on and for which the 30-day appeal period has long since run. He noted that Attorney Mattern has argued that this is a completely new application therefore it starts a new 30-day clock. Attorney Branse stated that Attorney Mattern has presented testimony on a matter that is not before the Board. He indicated that Attorney Mattern has presented why, if the application had been heard on its merits, it should have been granted. Attorney Branse stated that this is in regard to the word
“violation.” He stated that that issue is not before the Board. Attorney Branse stated that the matter is whether Ms. Brown should have ruled on the application. He explained that Attorney Mattern cannot say that Ms. Brown didn’t rule and then explain the problem in her ruling. Attorney Mattern stated that the only application on which Ms. Brown gave reasons was the 2005 application.
Attorney Branse presented a time-line of events. He explained that there was an application 05-343 which was denied by the ZEO. Attorney Branse stated that Ms. Brown administers the Zoning Regulations, not the Health Code. He explained that 05-343 was denied for two reasons and neither of them have to do with the Health Code. Attorney Branse stated that the ZEO denied this application based on two zoning-related issues. He noted that the application submitted as 06-349 was identical in terms of zoning compliance. Attorney Branse stated that Mr. Rose addressed the Health issues on permit 05-343 stating that additional testing was needed.
Attorney Branse stated that in his letter to Ms. Brown, Attorney Mattern wrote that health code compliance is “clearly relevant to the applicable zoning regulations upon which you based your original and only denial.” Attorney Branse questioned where it says that on the application. He indicated that the application that was presented to Ann Brown as 06-349 is for zoning purposes and is identical to the one she denied a year earlier. Attorney Branse stated that the Statutes allow a 30-day appeal period, but not for the same permit filed over and over and over again. He indicated that if that were the case, there would be no finality to any appeal.
Attorney Branse stated that Attorney Mattern discussed the meaning of the word violation as it is used in Section 21.2.5c(ix). He stated that if the word violation meant what Attorney Mattern has asserted, someone with a grossly noncomplying structure, but no finding of a current violation, could be converted to year round, but a home that complies with all regulations but has an illegal shed could not. Attorney Branse stated that that does not make sense. He agreed that it would be clearer if the word noncompliant was used but noted that Regulations are written by laymen and the only logical meaning of the word violation in this context is something that does not comply with the current standards. Attorney Branse stated that a violation of a specification may not be illegal, but it is still a
violation of a specification. He noted that case law is that the terms in a zoning regulation are not to be used in their technical meanings but in their common and ordinary meanings. Attorney Branse stated that there are numerous cases that hold this. He stated that the term violation should not be used in its legal sense. Attorney Branse stated that a violation of a standard does not mean one could be arrested for it. He indicated that if Attorney Mattern’s reading of violation were correct, it would still not allow Ms. Brown to grant this permit because there are two other sections of the zoning regulations that would not permit her to issue this permit and neither of those sections use the word violation at all, they use the term nonconformity. Attorney Mattern stated that Section 8.8.1, enlargement, no building or other structure which does not conform to the requirements of these regulations regarding height limitations or building
bulk and coverage or required setbacks, shall be enlarged or extended unless such enlarged or extended portion conforms to these regulations. He noted that these prohibitions specifically include the occupancy of a seasonal use beyond the period April 1 to November 15 and the winterization, refurbishment or remodeling of a seasonal dwelling to accommodate other than seasonal use. Attorney Branse stated that this property does not conform to the requirements of this regulation. He noted that the building violates the street line setback and this noncompliance forbids its conversion to a year round dwelling.
Attorney Branse stated that it is also addressed in Section 8.9.3 which states no building or other structure located on a lot which does not conform to the requirements of these regulations regarding lot area, shape, building bulk and coverage or off-street parking shall be enlarged or extended and no additional buildings or structures can be constructed on such lot; these prohibitions specifically include the following, the occupancy of a seasonal use beyond the period of April 1 to November 15 and the winterization, refurbishment, or remodeling of a seasonal dwelling to accommodate other than a seasonal use. Attorney Branse noted that this section also applies because the lot is nonconforming.
Attorney Branse stated that because of Sections 8.9.3 and 8.8.1, this structure cannot be converted regardless of the interpretation of Section 21.5.2c(ix). He stated that it is the position of the Zoning Enforcement Officer that this is not a new appeal for zoning purposes as it is the exact same proposal, application and site plan. Attorney Branse stated that the fact remains that the plain language of the regulations indicates that this permit could not be granted.
Attorney Mattern asked that Ms. Brown be put under oath. He asked her if she swore that the testimony she is about to give in the matter is the truth, the whole truth, nothing but the truth so help her God. Ms. Brown stated yes.
Attorney Mattern asked that Ms. Brown look at the 2005 denied permit application, which was marked Exhibit B. He asked Ms. Brown whether she denied this permit. She noted that she ruled on the application October 27, 2005. Attorney Mattern questioned whether a health approval was ever received from Mr. Rose on that application. Ms. Brown replied that there is a health signature and a note that says need to show well and water test required before approval. Attorney Mattern questioned whether she would issue a certificate on an application without having health approval. Ms. Brown stated that she would not approve a zoning compliance permit without the health approval. Attorney Mattern stated that when she made her denial, she incorporated the reason for the denial in the first
application. Ms. Brown stated that she listed her reasons for denial on the application. Attorney Mattern noted that she referenced Section 21.2.5c(ix) and that section deals with the conversion of seasonal use dwellings to year round use. Ms. Brown agreed. Attorney Mattern asked Ms. Brown to read from the form, after use: Ms. Brown read “the dwelling and associated lot shall not contain violations of the Old Lyme Zoning Regulations or the Town of Old Lyme’s Housing Ordinance of April 28, 1966.” Attorney Branse questioned whether she looked at the Town of Old Lyme’s Housing Ordinance. She indicated that she did not because she does not enforce the housing ordinance, the Town Sanitarian does. Attorney Mattern stated that when the second application was received, Ms. Brown sent a letter to Mr. and Mrs. Lishing (Exhibit 3) dated October 27, 2006, indicating that her prior decision still stood and that this letter
shall serve as notice regarding the outcome of application 06-349 and as such they may appeal it to the Zoning Board of Appeals in the normal fashion. Ms. Brown indicated that that is correct. Attorney Mattern questioned whether there is any doubt as to whether the appeal was filed within 30 days of October 27, 2006. Ms. Brown indicated that there is no doubt that it was filed in the proper time.
Attorney Mattern asked Ms. Brown whether the original application had any approval from Mr. Rose. Ms. Brown agreed that she did not have health approval for the conversion. Attorney Mattern questioned whether having a health certificate and potable water is a change from an application that didn’t have those things. Ms. Brown replied that it is not new information with regards to zoning.
Attorney Branse questioned whether Ms. Brown, when she reviews an application for a certificate of zoning compliance, searches for every possible grounds for denial or if she stops when she sees she cannot approve an application. Ms. Brown replied that she makes an effort to find every reason to deny. Attorney Branse questioned whether the fact that only certain sections were listed on the denial meant that others sections were not violated. Ms. Brown replied no. Attorney Mattern stated that he believes Ms. Brown looks for all reasons to deny an application. Ms. Brown stated that she makes every effort to do so. Attorney Mattern questioned whether she lists every reason for denial on the form. Ms. Brown indicated that she makes every effort to.
Attorney Mattern stated that they are before the Board because Ms. Brown refused to act on a permit application. He stated that in her refusal she specifically incorporated her original denial.
Attorney Mattern stated that the regulations specifically say use the normal definitions of words that are not specifically defined in your regulations. He noted that the normal definition of the word violation was provided. Attorney Mattern stated that the citing of Sections 8.8.1 and 8.9.3 speaks to the enlargement of structures and does not speak to the conversion of property from seasonal to year round. He noted that these two regulations are designed to prevent a construction of property that would then result in a conversion from seasonal to year round.
Mr. Kotzan read 8.8.1 and noted that it specifically includes the conversion of seasonal to year round. Attorney Mattern stated that this section deals with construction. He noted that the same language is used in 8.9.3 and noted that when there is a section that deals directly with the conversion of seasonal use property to year round property, 21.2.5c, that governs what the Regulations require for a simple conversion of the use of the property without any enlargement.
Attorney Mattern stated that Section 9.1 states that the words used in the regulations shall have the meaning commonly attributed to them. He stated that violation does not mean nonconforming. Attorney Mattern suggested that the Board ask Attorney Royston as to the terminology used in 21.2.5c, as he believes Attorney Royston may have a different interpretation than the one presented by Attorney Branse.
Attorney Branse stated that Attorney Mattern began his presentation using the definition of violation from Blacks Law Dictionary and ended up correctly reading Section 9.1 which states that the words used in these regulations shall have meaning commonly attributed to them. He noted that a violation of a specification, the violation of a standard, means it doesn’t comply with that standard. Attorney Branse stated that the Regulations also indicate that when in doubt, it is to be used within the purpose and intent of the Regulations. Attorney Branse stated that Section 8.8.1 and 8.9.3 are very clear that nonconforming structures and nonconforming lots shall not be converted from seasonal to year round.
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 3 Public Hearing Case 07-03 Judith Iovanna, 28 Lone Pine Trail, Appeal of ZEO’s issuance of Cease and Desist Order dated November 9, 2006 revoking the zoning permit.
Attorney Bennet was present to represent the applicant. Attorney Bennet introduced Matt Iovanna and his mother Judith Iovanna. He stated that Mr. Iovanna acquired this property in 2003 and in June 2004 filed plot plans with the Town. Attorney Bennet stated that on September 21, 2006 he received a Building Permit for construction of a home in keeping with the plans before the Board this evening. He noted that there were discussions about the original layout of the house. Attorney Bennet stated that there was a Bilco door that violated a setback line and that Bilco was removed. He explained that Mr. Iovanna commenced construction and on September 28, 2006 there was a footing and foundation inspection, all in the locations shown on the site plan. Attorney Bennet explained that the
foundation was put in, the walls were constructed, sheathing was put on and then the Cease and Desist Order was issued by Ms. Brown. He noted that the Cease and Desist Order referenced Section 7.4.2, indicating a violation of the narrow street setback. Attorney Bennet stated that his house was in violation of this Regulation, even though his permits were in place.
Attorney Bennet agreed with Ms. Brown’s reading of the Regulation. He stated that this is an unfortunate circumstance that a number of people are responsible for and unfortunately Mr. Iovanna finds himself with a substantially built house and no ability to complete it because of the C&D. Attorney Bennet stated that he is appealing Ms. Brown with respect to the concept of estoppel and this would be the proper procedure. He indicate that the application explains estoppel and gives case citations. Attorney Bennet stated that the concept of estoppel is that when an action has been taken in reliance on a permit and someone changes their position on the issuance of such permit and because to undo what has been done would create economic waste, the municipality would be estopped from enforcing
this portion of the Regulation. He noted that he is here in the capacity to preserve his client’s rights with respect to this circumstance.
Attorney Bennet asked that the decision be overturned based on the concept of estoppel and in view of the record. He noted that to ask Mr. Iovanna to tear down the house, to cut out and remove the foundation and try to do something else will simply not work. Attorney Bennet stated that Ms. Brown allowed Mr. Iovanna to render the construction watertight. He noted that after the Order the already paid-for and in-transit trusses were put up. Attorney Bennet stated that Mr. Iovanna is employed in such a manner that he can have a few months off in the winter and he planned to get this job done. He noted that that it is now not possible because of these delays.
Mr. St. Germain questioned whether Attorney Bennet was asking that the C&D be overturned based upon finances. Attorney Bennet stated that he is to the extent that not to do so would be to create extensive economic waste. Attorney Bennet stated that there is case law that suggests that maybe the Board cannot act itself on the concept of estoppel. He indicated that he does not agree with that decision. Attorney Bennet stated that one of the cases he references is identical to the present circumstances, Charton vs. ZBA, 1990. He noted that the Court allowed the structure to remain in place and it is based on the concept of shear economic waste.
Attorney Bennet stated that the insult to the Regulations would be very minimal. He noted that there is one section of the house that violates the narrow street setback. Attorney Bennet stated that he believes it is both legally and factually justifiable to overturn Ms. Brown’s decision.
Attorney Branse was present to represent Ann Brown, Zoning Enforcement Officer. He noted that the circumstance is unfortunate and explained that Ms. Brown believed that she issued a valid permit and it was later called to her attention that the narrow street setback was not met. Attorney Branse stated that she issued the Order after her error was discovered. He noted that there is case law that when a ZEO discovers that an error has been made they have the authority and duty to do something about it which is what she did. Attorney Branse stated that estoppel is an equitable defense to an equitable action which means if Ms. Brown were to attempt to enforce the Order, the defense in Court would be equitable estoppel. He noted that Attorney Bennet has cited two Superior Court Cases in which a
ZBA was allowed to consider equitable estoppel in a review of a Zoning Enforcement Officer’s appeal. Attorney Branse urged the Board to consult with Attorney Royston because it is an issue of law and there is division of authority.
Attorney Branse stated that the issue of financial burden is relevant in this matter unlike in a variance application. He noted that case law shows that estoppel is only applied in the most exceptional circumstances. Attorney Branse stated that the second element of estoppel is that the party has exercised due diligence to ascertain the truth and not only lacked knowledge of the true stated things, but also had not convenient means of acquiring that knowledge. He stated that the question is whether this element of setback was something that some one exercising due diligence could not have discovered but for the Zoning Enforcement Officer telling them about it. Attorney Branse stated that this will be the most hard to prove because the zoning book is published and available and this component has
not changed in decades. He indicated that it is something that the typical surveyor or builder or other diligent party should have learned about.
The Board reviewed the site plan and it was noted that the setback is drawn incorrectly on the site plan. Attorney Bennet stated that the site plan was prepared by a surveyor. He noted that the issue was missed several times by several people.
Charles Miles, 16 Lone Pine Trail, stated that most of the houses on Lone Pine are set back 35 feet. He noted that there are a few homes that were built in the 1920’s that are nonconforming to the narrow street setback. Mr. Miles stated that the house is 1600 square feet, not including the garage, which is the part of the home that is nonconforming. He indicated that this house is the largest on the street. Mr. Miles stated that after the Cease and Desist was issued the second floor over the garage was completed and the roof was put on. He indicated that Mr. Iovanna could have used blue tarps to weatherize the building. Mr. Miles asked that the Board not overturn the Cease and Desist Order.
Rich Wilzewski, 38 Lone Pine Trail, stated that his property is two houses away. He stated that Attorney Bennet indicated that the house is in character with the other homes in the neighborhood and it is not. Mr. Wilzewski stated that this home is grossly oversized and appears to be more like a commercial-type building. He indicated that he has two young children and he is concerned about the traffic on the street. Mr. Wilzewksi stated that he has heard the structure will be for the pursuit of a hobby. He stated that he is a CPA and if he makes a mistake it is covered by his errors and omissions insurance. Mr. Wilzewski stated that the same may be the case with the surveyor that did the work for Mr. Iovanna.
Jim Macinerney, 9 Shore Drive, stated that he believes the Cease and Desist Order should stand. He stated that he came to the Zoning Office the day the Cease and Desist was issued because he had concerns about the structure. He explained that for three to four weeks construction continued on the house. Mr. Macinerney stated that much of the economic loss is self-inflicted.
Damian Ranelli, owner of 30 Lone Pine Trail, stated that Attorney Bennet was incorrect in his opening statement, as Mr. Iovanna does not own the property. He indicated that Mr. Iovanna is also not a licensed contractor. Mr. Ranelli stated that he is opposed to allowing the structure to remain in the setback and submitted a letter signed by 27 other neighbors who are also against it. He read and submitted the letter for the record.
Mr. Moll noted that there are photographs in the file dated November 6 that show a very incomplete second floor. He noted that these photographs were taken three days prior to the issuance of the Cease and Desist. Mr. Moll stated that if construction went on for three more weeks, substantial construction must have occurred. He noted that there are additional photographs showing the status of work as of November 11, 2006. Mr. Ranelli agreed, and noted that these photographs support the fact that a tremendous amount of work was done after the Cease and Desist was issued. He stated that in his experience as a contractor, work stops when a Cease and Desist is issued. Mr. Ranelli stated that Attorney Bennet tried to suggest that the structure was completed to the point it is today when the C&D was issued. He reiterated that work continued for three weeks. Mr. Ranelli stated that in regards to estoppel, the substantial loss is very important because it is a criteria of estoppel.
Mr. Ranelli stated that the applicant had five chances to familiarize himself with the law. He noted that the first would have been to read the regulations. Mr. Ranelli stated that during his own application process he supplied all his neighbors with his elevation drawings and a site plan on which the 35’ setback was depicted. He stated that his home is the only house on the block that does not meet the narrow street setback. Mr. Ranelli stated that the plans note a 35’ setback for the second floor. He noted that Mr. Iovanna investigated purchasing his property so he did investigate increasing the use of the property at 30 Lone Pine Trail. Mr. Ranelli stated that Mr. Iovanna’s site plan references Mr. Hendrick’s survey which depicts a 35’ setback for the
neighboring house.
Mr. Ranelli stated that Mr. Iovanna does not meet two of the prongs for establishing estoppel. He indicated that Ms. Brown made the right decision and he feels it should be upheld.
Mr. Ranelli stated that at the time of the C&D there were floor joists on the second floor of the garage that run parallel with the street. He indicated that at this time the situation was curable. Mr. Ranelli stated that they could have cut and removed eight joists and the front wall could have been moved back. He indicated that this would have taken a few guys a couple hours to do but instead he continued to construct.
Attorney Bennet stated that the drawing provided by Mr. Ranelli should be entered as an exhibit.
John Albright, neighbor, stated that Mr. Iovanna did continue construction after the C&D was issued.
Kim Avery, 16 Lone Pine Trail, stated that there are homes in the neighborhood 25’ from the street.
Eloise Duarte, 15 Moss Point Trail, stated that she feels the house fits into the neighborhood.
Matt Iovanna 33 Moss Point Trail, indicated that the trusses were paid for and in transit when the C&D was issued. He noted that when they were delivered the crane was there and the trusses were put up. Mr. Iovanna stated that they put the sheathing on the roof also.
Judith Iovanna stated that she has Parkinson’s Disease and her son Matt is constructing the house for her to stay when she needs to. She indicated that her son is helping her out and she is surprised to see the neighbors response. Ms. Iovanna stated that nothing illegal will go on in the house.
Attorney Bennet stated that the drawing submitted by Mr. Ranelli does not show a 35’ required setback; it shows that the proposed setback for the second floor is 35’. He stated that he hopes the Board did not hear a representation by him that work stopped when the C&D was issued. Attorney Bennet stated that he has stated that work continued. He reiterated that the trusses were paid for and on the way to the site when the C&D was issued. Attorney Bennet submitted a petition with 18 names of neighbors in favor of the application.
Attorney Bennet stated that the house conforms with the exception of the garage portion of the house being in the narrow street setback. He indicated that if people don’t like the house because of its size, floor plan or height, it is not the issue because it is allowed in the zone.
Rich Wilewski, asked whether the 18 people on Mr. Iovanna’s petition live on Lone Pine Trail or other streets. Mr. Ranelli questioned whether these people are homeowners or tenants. Ms. Stutts indicated that the Board does not know whether they are homeowners or tenants and pointed out that Mr. Ranelli’s list has not been checked in that regard either.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
The Commission agreed that because of the late hour they would not be able to conduct the Public Hearings for the three variance requests this evening. It was agreed that Cases 06-45, 07-02 and 07-04 would be continued to a Special Meeting on Wednesday, January 17, 2007 at 7:30 p.m.
ITEM 4: Open Voting Session
Case 06-44 Mark & Maryellen Phelan, 77 Sea Spray Road, Appeal
Chairman Stutts reviewed the facts of the case. Ms. McQuade stated that she supports Ms. Brown’s decision because the lot is nonconforming and Section 8.9.3 prohibits the enlargement of a building on a nonconforming lot. Chairman Stutts and Mr. Kotzan agreed. Mr. Kotzan stated that the additional land acquired and the reduction of the addition from the prior application may lend support to a variance request. He indicated that Ms. Brown had to deny and direct the applicant to the ZBA to request a variance. Mr. Kotzan acknowledged that Attorney Bennet indicated he appealed Ms. Brown’s decision to keep his legal options open.
A motion was made by Kip Kotzan, seconded by Richard Moll and voted unanimously to uphold the Zoning Enforcement Officer in her denial to allow dormer additions to 77 Sea Spray Road, Mark and Maryellen Phelan, applicants.
Reasons:
1. Section 8.9.3 prohibits expansion of buildings on a nonconforming lot and the subject lot has 5,948 square feet where 10,000 square feet is required.
Case 07-01 Frank and Joanne Lishing, 307 Swan Avenue, Appeal
Chairman Stutts reviewed the facts of the case. She noted that Attorney Mattern stated that the application was different in that it now has Health approval which the first application lacked that. Chairman Stutts stated that he also objects to the wording of the Zoning Regulations in regard to the word “violations” used in Section 21.2.5c. She noted that Attorney Mattern claims that the application meets all requirements of this section of the Regulations.
Chairman Stutts stated that Ms. Brown’s position is that the lot is nonconforming and the house is in a nonconforming location which prohibit it’s conversion from seasonal to year round and these facts did not change in the second application which she refused to act upon. She noted that Ms. Brown’s position was that because the facts of the health approval status changed it did not change her zoning review.
Chairman Stutts stated that Attorney Branse indicated that violations should not be interpreted in the legal sense but the more common usage, as in nonconformity.
Mr. Moll stated that the testimony showed that the ZEO’s review responsibility is zoning and the health issues are not related to that. He indicated that he supports the ZEO’s refusal to act on the application because in her capacity the facts did not change. Mr. Kotzan stated that it is a reasonable decision for Ms. Brown to say that in her zoning review no facts had changed. He indicated that he is comfortable with Ms. Brown’s interpretation of the word “violations,” and noted that it is historically how the word has been interpreted.
Mr. St. Germain agreed that the new health information had no bearing on Ms. Brown’s denial of the original application. He noted that the health approval would have bearing now in a variance application.
Ms. McQuade stated that a violation has historically been interpreted as something against the standards of the regulations, which is a nonconformity.
Chairman Stutts stated that the Board could ask Attorney Royston for clarification, but at this point in time she feels that the Board should interpret the Regulation as it has been historically interpreted.
A motion was made by Judy McQuade, seconded by Richard Moll and voted unanimously to uphold the Zoning Enforcement Officer in her refusal to act on application, 307 Swan Avenue, Frank and Joanne Lishing, applicants.
Reasons:
1. Historical interpretation of “violations” is not in compliance with the Regulations or nonconformity.
2. Zoning facts of the original application did not change.
Case 07-03 Judith Iovanna, 28 Lone Pine Trail, Appeal
The Board discussed the claim of estoppel and questioned whether they should get an opinion from Attorney Royston on whether they can consider this. Mr. Kotzan stated that Attorney Branse represented that estoppel is something that a Court would consider, not a Zoning Board of Appeals.
Chairman Stutts stated that the fact that the narrow setback was missed by several people is unfortunate. She indicated that it is difficult for this Board to weigh how much work was done after the C&D was issued. Mr. Kotzan stated that that type of review is something that should probably be decided by a Court.
Mr. St. Germain stated that he does not think the Board has the expertise to decide the financial loss to Mr. Iovanna. He stated that their action should be in regard to whether or not Ms. Brown acted properly in issuing the C&D. Chairman Stutts stated that there are many neighbors interested in this as suggested by the petitions submitted by both sides and she thinks the variance process should be followed.
Mr. Moll stated that this situation is unique and he believes the Board should get an opinion from their own attorney as suggested by Attorney Branse. He indicated that Attorney Royston should provide them with the background of estoppel and how it may relate to this case. Ms. McQuade noted that Attorney Branse also stated that once the mistake was discovered, she had the responsibility and obligation to issue the Cease and Desist. She noted that the Board is being asked now whether she took the right action in issuing the Cease and Desist. Chairman Stutts noted that the Board can consider finances during this appeal process but cannot at the variance level.
Mr. St. Germain noted that the Board cannot decide the financial end of things as they were not provided with bills and they do not have the expertise. Mr. Kotzan stated that if the Board allows the building to stand as it is then they would be allowing a building that is not universally enjoyed by the neighbors and the variance process, where they have a voice, would be circumvented.
Mr. Moll indicated that he feels strongly that the Board should not act until they have clarification on estoppel from Attorney Royston. Mr. St. Germain agreed that this would be the best course of action. Mr. Moll stated that he would like to ask Attorney Royston whether they can consider estoppel in this case. Mr. Kotzan stated that he would not consider estoppel in this case even if Attorney Royston indicates that the Board can. Mr. St. Germain stated that he cannot say whether or not he would consider it because he is not even sure how to apply it. He indicated that he would need this guidance from Attorney Royston.
Mr. Moll stated that a case of estoppel was considered by a Judge for a property on McCurdy Road in Old Lyme. He noted that in this case the Judge found that the Town, with all its expertise, should not have issued the permit and the homeowner got all the Town approvals, as was expected of him and the construction was allowed to stand.
The Board agreed to seek guidance from Attorney Royston as to whether they should consider estoppel in this matter.
Discussion on this item was tabled to a Special Meeting on Wednesday, January 17, 2007.
ITEM 5: Public Hearing Case 06-45 Mark & Maryellen Phelan, 77 Sea Spray Road, variance to allow the construction of a dormer.
The Public Hearing for this application has been continued to a Special Meeting on Wednesday, January 17, 2007.
ITEM 6: Public Hearing Case 07-02 Frank & Joanne Lishing, 307 Swan Avenue, variance to convert dwelling from seasonal use to year-round use.
The Public Hearing for this application has been continued to a Special Meeting on Wednesday, January 17, 2007.
ITEM 7: Public Hearing Case 07-04 Judith Iovanna, 28 Lone Pine Trail, variance to construct dwelling in the narrow-street setback.
The Public Hearing for this application has been continued to a Special Meeting on Wednesday, January 17, 2007.
ITEM 8: Open Voting Session
Case 06-45 Mark & Maryellen Phelan, 77 Sea Spray Road, variance
No action taken. The Public Hearing has been continued to a Special Meeting on Wednesday, January 17, 2007 at 7:30 p.m.
Case 07-02 Frank & Joanne Lishing, 307 Swan Avenue, variance
No action taken. The Public Hearing has been continued to a Special Meeting on Wednesday, January 17, 2007 at 7:30 p.m.
Case 07-04 Judith Iovanna, 28 Lone Pine Trail, variance
No action taken. The Public Hearing has been continued to a Special Meeting on Wednesday, January 17, 2007 at 7:30 p.m.
ITEM 9: Approval of Minutes of the December 12, 2006 Special Meeting.
No action taken.
ITEM 10: Adjournment.
The meeting adjourned at 10:56 p.m. on a motion by Kip Kotzan and seconded by Richard Moll. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
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