APPROVED
OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
TUESDAY, FEBRUARY 13, 2007
The Old Lyme Zoning Board of Appeals met on Tuesday, February 13, 2007 at 7:30 p.m. at the Old Lyme Memorial Town Hall. Those present and voting were Susanne Stutts (Chairman), Richard Moll, Tom Schellens (arrived at 7:50 p.m.), 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. Chairman Stutts noted that there are only four members present this evening and with that all votes would have to be unanimous, i.e., a 3 to 1 vote would not pass. She gave all applicants the option of opening and continuing their public hearings to another meeting.
ITEM 1: Public Hearing Case 07-05 Frank Noe, 75 Gorton Avenue, variance to construct a deck.
Chairman Stutts stated that the application is to construct a deck 9” high and 1,184 square feet. She noted that the existing nonconformities, as provided by the Zoning Enforcement Officer, are 21.1, multiple dwellings not permitted in the R-10 zone; 21.3.1, minimum lot area; 21.3.1, 10,000 square feet required per dwelling, 5 units on parcel requiring 50,000 square feet, 4,500 provided; 21.3.3, minimum square, 75 required, 45 existing; 21.3.6, maximum height 35’, no height provided on application; 21.3.7, minimum setback, 25’ required; 21.3.8, setback from rear, 23’ existing; 21.3.9, other property line setback, 1.7 feet, 12’ required; 21.3.10, maximum floor area, 25% allowed, 80 percent provided; 21.3.11, lot coverage, 25% allowed, 40.2% provided; 21.3.12, maximum total lot coverage,
30 % allowed, 40.2% provided.
Chairman Stutts stated that the proposal does not comply with the following Sections: 8.8.1, no building which does not conform shall be enlarged; 8.9.3, no building on a nonconforming lot shall be enlarged; 21.3.1, maximum lot coverage by building as a percent of lot area, 25% allowed, 66.5 percent proposed; maximum lot coverage as a percent of lot area, 30% allowed, 66.5 percent and 8.7.1, no nonconforming use of land shall be enlarged. She noted that the hardship provided by the applicant is the deck is necessary to create a platform because of the sand and lack of ability to landscape like other properties.
Mr. Noe explained that the deck is already constructed. He explained that he was led to believe that decks under 12” in height are not considered a structure. He read Section 7.4.6 as it read in 2005 prior to being revised, noting that fences and walls less than 6’ in height are not considered structures, and unroofed terraces and decks less than 1’ in height do not need to meet setbacks. Chairman Stutts explained to Mr. Noe that he is not applying for a setback variance, he is applying for a coverage variance. Mr. Noe stated that he is aware of that fact. He indicated that he was led to believe that this was a platform, not a structure. Mr. Noe explained that being waterfront he is unable to landscape. He noted that a patio or pavers would not be considered a
structure, but yet they could also be a foot high. Mr. Noe stated that the deck is not attached to the building. He indicated that the deck is in character with the neighborhood and has no adverse effect on the neighboring properties. Mr. Noe stated that pavers or cement would be an eyesore and would not be within the character of beachfront properties. Mr. Noe stated that he asks the Board to consider his inability to landscape and allow him this deck for the enjoyment of his property.
Chairman Stutts noted that the septic is under the deck. Mr. Noe stated that he was told by Ron Rose that as long as the deck is removable, it would be okay to have it over the septic tanks. He explained that they will have to unscrew and remove the boards to have the tanks emptied. Mr. Noe stated that it much easier to access the tanks with a deck than it would be with pavers. Chairman Stutts stated that this property is almost entirely covered with structures and decking and parking places. She stated that most properties have some open area.
Chairman Stutts stated that there are 12 bedrooms and 5 bathrooms on 4,500 square feet of land. She noted that this is quite a bit of use of the property. Chairman Stutts stated that the property is not large enough to handle what it currently has without adding 1,184 square feet of decking. Mr. Noe emphasized that the deck is landscaping. Chairman Stutts stated that people do not come to the beach for landscaping, they come for the sand between their toes and the water. Mr. Noe stated that the decking helps prevent bringing sand into the house. He indicated that the deck is a landscaping item and should not be looked at from a coverage standpoint.
Mr. Moll distributed to the Board copies of the minutes of the 2001 hearing for this property, marked Exhibit A. He stated that this property was before the Zoning Board of Appeals in a prior application by Mr. Noe. Mr. Moll stated that this property is not only seasonal use, it is further restricted to 12 weeks use a year. He indicated that Mr. Noe made application to the Zoning Board of Appeals in 2001 and is aware of the Zoning Regulations and requirements of the Town of Old Lyme. Mr. Moll displayed Assessor’s Map 76, which was marked Exhibit B. Mr. Noe stated that he was before the Board in 2001. He indicated that he misread the Zoning Regulations. Mr. Noe stated that if a deck is not a structure for setbacks, it should not be a structure for coverage. He indicated
that this is why he did not apply for a permit. Mr. Noe stated that he was lead to believe that he did not need a permit. Mr. Moll questioned who led him to believe that he did not need a permit. Mr. Noe indicated that he did not want to mention any names. He indicated that he was led to believe this by some people and confirmed it by reading the Regulations. Chairman Stutts questioned whether Mr. Noe ever asked the Zoning Enforcement Officer whether he needed a permit for this deck. Mr. Noe replied that he did not; he understood that he did not need a permit. He explained that the Regulations were changed in June, 2005.
(Mr. Schellens arrived at this time, 8:05 p.m.)
Ms. McQuade stated that 66 percent coverage is quite excessive. She noted that the allowed coverage is only 25 percent. Mr. Noe stated that he gave up six bedrooms in 2001. Ms. McQuade noted that that is probably why he received a variance in 2001. Mr. Noe stated that that variance was only for a shed roof. Mr. Noe stated that he understands that he requires a variance. He indicated that he does not have the luxury to have landscaping and asked the Board to look at this platform as landscaping.
Mr. Noe stated that there is a property further down on Old Colony that has a deck. He noted that a property at the end of Hartung has a large, tall deck that goes to the property line. Chairman Stutts stated that they have no idea the size of the properties or the houses on the lots or the coverage.
Mr. Schellens pointed out that the deck would need to be engineered and constructed to meet the Flood Zone requirements, which it has not been.
Jean Walker, neighbor, stated that she was concerned that Mr. Noe was constructing a second floor deck, which concerned her. She indicated that she does not have a problem with the existing deck.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
Chairman Stutts noted that with Mr. Schellens arrival, they now have five voting members this evening.
ITEM 2: Public Hearing Case 07-06, Kathleen McKeough, 5 West Joffre Road, variance to construct a second floor dormer.
Chairman Stutts stated that a variance is being requested to construct a second floor dormer 11’ wide by 6’ long. She noted that the existing nonconformities are the minimum lot area, 5,505 square feet provided; 21.3.3, minimum dimension of a square, 75’ required, 50 provided; 21.3.7, front setback, 25’ required, 22.2’ provided; 21.3.8, rear setback, 30’ required, 19.8 provided; 21.3.9, side setbacks, 12’ required, garage has 3’2”. Chairman Stutts stated that a variance is required of Section 8.9.3, no additions on a nonconforming lot.
Nina Peck, Architect, was present to represent the applicant. She noted that they would like to construct a dormer that is 10’8” within the existing roof structure. Ms. Peck stated that as a result of the property being nonconforming, any additions must come before the Zoning Board of Appeals.
Ms. Peck stated that the original plan was to raise the house a few feet and put dormers on both sides of the second floor and after meeting with Ann Brown they decided that that plan may be too aggressive. She explained that the addition was scaled back to what is the absolute minimum to bring the house up to normal housing standards. Ms. Peck stated that this dormer will allow a bathroom on the second where there are two existing bedrooms. She indicated that the project includes redoing the first floor and permits have already been secured for this work.
Chairman Stutts questioned the number of existing bedrooms. Ms. Peck explained that there are currently four bedrooms but they are removing one on the first floor so they will have a total of three bedrooms.
Mr. Moll noted that the bathroom on the second floor will take the place of what is currently two closets.
Chairman Stutts read letters from two neighbors in favor of the application.
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 07-07, Jeffrey and Sarah Tufano, 22 Gorton Avenue, variance to construct a second floor dormer.
Attorney Carnese stated that his clients left when there did not appear to be five members and they would like to be present for their hearing. He requested that the hearing be opened and continued. The Public Hearing for this application was opened and continued to a Special Meeting on March 6, 2007 at 7:30 p.m.
ITEM 4: Public Hearing Case 07-08, William and Lorraine Boyko, 65 Corsino Avenue, variance to demolish existing year round single-family dwelling to construct new year-round single-family dwelling.
Attorney Childress stated that his clients have also left and would like to open and continue their hearing. The Public Hearing for this application was opened and continued to a Special Meeting on March 6, 2007 at 7:30 p.m.
ITEM 5: Open Voting Session
Case 07-05 Frank Noe, 75 Gorton Avenue
Chairman Stutts reviewed the facts of the case. She noted that there are eleven existing nonconformities. Chairman Stutts stated that variances are required of five sections, one of which is a 41.5 percent variance for maximum lot coverage by buildings and 36.5 percent variance for maximum total coverage. She explained that this property currently has two dwellings with a total of 12 bedrooms and five bathrooms. She noted that the lot size is 4,500 square feet and the floor area is 3,609 square feet.
Chairman Stutts stated that the applicant testified that he constructed the deck in 2005, not realizing that a permit was required and decks are considered coverage. She noted that the hardship provided was that the deck is needed to cover the sand and the owner cannot landscape as other properties can.
Chairman Stutts questioned the difference between Regulation 7.4.6 as it was in early 2005 and then revised in June 2005. Ms. Bartlett noted that the Regulation was revised to allow 6’ fences in the front setback by Special Exception.
Mr. St. Germain questioned where the Regulations indicate that decks are structures and need to be counted in coverage. Ms. Bartlett noted the definition of a structure, which states in part, “anything constructed or which is located on, above, or beneath the ground, except driveways, sidewalks, parking areas and curbing, fences which are less than six (6) feet high, drainage structure, etc.” She noted that if the Board has any questions as to Ms. Brown’s determination that the deck does not meet the Regulations they should table their discussion and get clarification from Ms. Brown.
Mr. Schellens pointed out that it has not been shown by the applicant that the FEMA Regulations have been addressed in the construction of this deck. He expressed his concern over this fact. Ms. McQuade questioned who would enforce the FEMA Regulations as they pertain to the construction of the deck. Ms. Bartlett indicated that Mr. Rose would as the Building Official.
Chairman Stutts stated that the existing coverage is 40 percent and the deck is another 25 percent coverage for a total of 66.5 percent total coverage. She noted that the definition of terrace says a surfaced area; she indicated that this is not a surfaced area, it is a structure, which is why a variance is required.
Chairman Stutts noted that the property is stretched to the maximum in terms of use. Ms. McQuade agreed. Mr. Moll noted that the deck is almost the same coverage as the main building. He noted that this is a significant ratio. Chairman Stutts stated that the applicant is not being deprived of the use of his property. She noted again that there are twelve bedrooms. Chairman Stutts stated that the landscaping can be addressed with tubs, which is a good way to handle plant material and can be used to mark the property lines. She noted that a small terrace would enable Mr. Noe to have a picnic table without it shifting. Chairman Stutts stated that the Noe’s are not being deprived of the use of their property.
Chairman Stutts stated that when she visited the property she noted that the next door neighbor’s deck was covered with sand, as was this deck. She noted that sand is the negative part of having a waterfront property. Chairman Stutts stated that this large deck changes the aspect of the beach area look. Mr. Moll stated that he feels it looks commercial. Chairman Stutts stated that most of the homes have nothing out front along the beach. Mr. St. Germain pointed out that if the applicant used pavers he would not be here before the Board. Mr. Moll noted that pavers would not have a vertical profile. Chairman Stutts stated that if the applicant had gone to the Zoning Office he would have been given the proper information regarding decks. Mr. Schellens pointed out that the
Board has to be concerned with the health and safety of the townspeople. He noted that the deck may not even meet FEMA requirements as far as the construction of it is concerned.
A motion was made by Richard Moll and seconded by Judy McQuade to grant the necessary variances to construct a deck. Motion did not carry, 0:4.
Reasons:
1. There are other alternatives to constructing a deck.
2. The property is already over the maximum allowed coverage.
3. Building permit process was overlooked which creates a safety issue.
4. No hardship; applicant has reasonable use of the property.
5. Proposal is not within the intent of Zoning.
Mr. Moll stated that the property is already over the maximum allowed coverage at 41 percent and the deck would increase that to 66.5 percent. He noted that the Board, in his memory, has never seen a case with such excessive coverage.
Case 07-06, Kathleen McKeough, 5 West Joffre Road
Chairman Stutts reviewed the facts of the case. She noted that the lot is 5,505 square feet. She noted that a variance is required of Section 8.9.3, no additions on a nonconforming lot. Chairman Stutts stated that the dormer addition meets all other requirements of the Zoning Regulations. She explained that the hardship provided is that the two second floor bedrooms have no bathroom access and headroom is required for the bathroom.
Chairman Stutts noted that the proposed dormer is 32 square feet and will not be higher than the existing roofline. She noted that the bedrooms are being reduced from four to three and the proposal would be in harmony with the neighborhood.
Mr. Schellens indicated that in light of the footprint not expanding, he would suggest that adding a bathroom on the second floor would be reasonable. Chairman Stutts agreed and noted that a second floor bathroom is an important update and the applicant is doing it within all the bulk Regulations and at the same time giving up a bedroom.
A motion was made by Richard Moll, seconded by Joe St. Germain and voted unanimously to grant the necessary variances to allow the construction of a second floor dormer as per the approved plans.
Reasons:
1. Bedrooms are being reduced from four to three.
2. No change in setbacks or increase in overall height.
3. Proposal is within the intent of zoning.
ITEM 6: Approval of Minutes of the January 9, 2007 Regular Meeting and the January 17, 2007 Special Meeting.
No action taken.
ITEM 7: Adjournment.
The meeting adjourned at 9:40 p.m. on a motion by Kip Kotzan and seconded by Richard Moll. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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