APPROVED
OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
TUESDAY, JANUARY 8, 2008
The Old Lyme Zoning Board of Appeals met on Tuesday, January 8, 2008 at 7:30 p.m. at the Church of Christ the King Parish Center. Those present and voting were Susanne Stutts (Chairman), Joseph St. Germain (Alternate seated for Judy McQuade), June Speirs, Kip Kotzan, Richard Moll and Fran Sadowski (Alternate).
Chairman Stutts called the meeting to order at 7:30 p.m.
ITEM 1: Public Hearing Case 07-35 Dimitri and Adel Tolchinski, 286 Shore Road, Appeal of Cease and Desist Order dated August 17, 2007 to remove any and all structures and site work not previously approved.
Attorney Paul Geraghty was present to represent the Tolchinski’s in this matter. He stated that the Cease and Desist, as he understands it, relates to the septic system constructed not being the same as shown on the original approved site plan in 2003 by the Zoning Commission. Attorney Geraghty asked the Commission to keep the public comment directed to that issue. He indicated that if not, his client would be denied fundamental due process which is part of the process.
Attorney Geraghty stated that the Zoning Enforcement Officer did not have the authority to issue the Cease and Desist Order. He submitted excerpts from Attorney Mike Ziska’s book, which was marked Exhibit 1. Attorney Geraghty stated that he has attached the portion that deals with Zoning Commissions and the ZEO’s. He indicated that the ZBA’s authority arises from the Zoning Regulations and that authority is to review claims that the Zoning Enforcement Officer, setting aside variances, has wrongfully discharged or made orders relative to the Zoning Regulations. Attorney Geraghty stated that the issue before the ZBA this evening is clearly not a zoning issue, but a public health issue. He noted that Section 1.1 of the Old Lyme Zoning Regulations talks about the title of the
zoning regulations and the purpose in Section 1.2. Attorney Geraghty stated that those Zoning Regulations set forth various things to lessen congestion, secure safety from fire, panic and flood, promote public health and general welfare, provide adequate light and air, prevent the overcrowding of land, avoid undue concentration of population, to facilitate the adequate provision for transportation, water, sewage, schools, parks and other public requirements. He noted that this is to facilitate, not govern or regulate. Attorney Geraghty stated that Section 2.1 discusses the jurisdiction of the Zoning Commission and the Zoning Regulations, “Within the Town of Old Lyme, no land, building or other structure or part thereof, shall be used or changed in use and no building or other structure or part thereof shall be constructed, reconstructed, extended, moved, altered, except in conformity with these regulations.” Attorney Geraghty stated that Section
3.1, states that no land, building or other structure or part thereof shall be used or changed in use, no building or other structure or part thereof shall be constructed, reconstructed, extended, moved or altered until an application for zoning permit has been submitted to the Zoning Enforcement Officer. He noted that in 2003, his client came to the Zoning Commission and they approved a site plan application for modifications to the structures and the above aground buildings and structures. Attorney Geraghty stated that since that date his client has made those improvements and he has performed work on the septic system. He noted that the septic system was changed from the original design approved in 2003 by the Town Sanitarian. Attorney Geraghty noted that the reason for this was that it was determined that the existing system could not function properly and safely and effectively treat waste. He noted that under the Zoning Regulations, Section 9-7,
definition of structure, “A structure is anything constructed or which is located on, above or beneath the ground except driveways, sidewalks, parking areas, curbing, fences which are less than 6’ high, drainage structures, septic systems and wells.” Attorney Geraghty stated that the Regulations clearly exclude septic systems, because they are purely within the purview of the Department of Public Health and the Town Sanitarian.
Attorney Geraghty stated that the modifications to the original approved septic plan were done for purposes of public health and with consultation between his client’s professional engineer and Mr. Rose, Town Sanitarian. He indicated that the Zoning Enforcement Officer has no authority in this matter. Attorney Geraghty explained that after receiving a permit to construct the septic system from Ron Rose, his client expended in excess of $20,000.00 to install the system. He noted that he believes that the Town Sanitarian advised Ms. Brown of the changes and she verbally okayed them. Attorney Geraghty stated that they relied on an official permit from the individual who was charged with issuing it and the law says that the municipality is estopped from taking enforcement action against them. He indicated that he would ask the Board to dismiss the Cease and Desist Order because there is no jurisdiction and municipal estopple also applies.
Attorney Geraghty submitted a Letter dated March 12, 2003 from the Zoning Commission to the Tolchinski’s which lists what items they have approved and notes that if the site plan submitted to the Zoning Board of Appeals changes it should be returned to the Zoning Board of Appeals to ensure that the change is in harmony with the area and their decision. He noted that the decision does not include anything about the septic system. Attorney Geraghty stated that because the septic system is below ground, it is not something that the Board considered at the time as being an issue affecting the harmony of the neighborhood.
Attorney Geraghty submitted a letter from Tom Metcalf in June of 2003 noting that he reviewed the site plan and in his comments there is no review of the septic plan and the reason he did not comment on it is because he is aware that it is not within his jurisdiction or the Zoning Commission’s. He explained that there is a letter from Mr. Metcalf to Ms. Brown dated November 12, 2007 wherein Mr. Metcalf addresses a number of issues and those issues which cannot be addressed because all work has been stopped until this matter is decided by the Board. He noted that most of these concerns can be remedied.
Attorney Geraghty submitted a letter dated October 24th from Ron Rose to Dimitry Tolchinski wherein Mr. Rose indicates that the plan, with the exception of the grease trap, is in accordance with public health code and the approved plan. He submitted a letter dated August 31, 2007 from Mr. Rose to Ann Brown where he indicates that he approved the Pfanner application and septic design in 2003 and subsequently indicated that where there were revised plans submitted that he had approved but after his approval, a trench was added to the plan. Attorney Geraghty stated that the trench was to act as a current drain to trap water going from Mr. Tolchinski’s property to the neighbor’s property. He noted that this trench was designed by a previous engineer and was never installed.
Attorney Geraghty noted that the current plan which was approved, has been installed.
Attorney Geraghty submitted a copy of the application to construct the subsurface disposal system and the discharge permit. He noted that the discharge permit was issued by the Sanitarian subsequent to and with the knowledge that the Cease and Desist Order was outstanding. He noted that this plan is designed with the State Health Code and that is the issue solely in the purview of the Sanitarian and not the Zoning Enforcement Officer.
Mike Girard, professional engineer, was present representing the Tolchinski’s. He stated that he was asked to look at the problems they were having with the installation of a new septic system. Mr. Girard explained that when he got involved, the approved system was being dug up because they were having difficulties with it and it appeared that it would not work. He explained that this determination was made by the Town Sanitarian. Mr. Girard indicated that the Sanitarian came up with a design and the system was installed within a few weeks. He explained that he was called in to make the plan showing what was installed because it was different than that which was approved. Mr. Girard stated that he prepared the plan documenting the different pieces of the system and filed it with
the Town as an amended drawing. He noted that it is not a redesign of the septic system and he did not design the septic system. Mr. Girard emphasized that he made a drawing of what was installed by the owner and approved by the Town Sanitarian.
Mr. Girard stated that the Town Engineer’s comments addressing the Girard plan as a full site plan states that it does not conform to the original site plan. He indicated that the Girard plan describes a fix to a system, not a site plan as it does not show final grade. Mr. Girard stated that he responded to Mr. Metcalf’s letter, but only to the Tolchinski’s.
Attorney John Bennett was present to represent Town Sanitarian Ron Rose. Attorney Geraghty questioned Mr. Rose’s responsibilities as Sanitarian under State Statutes. Mr. Rose indicated that he is responsible for reviewing septic plans to ensure that they comply with State Health Code. Attorney Geraghty questioned who is responsible for approving septics in Old Lyme. Mr. Rose replied that the Sanitarian is, acting as the agent for the Director of Health. Attorney Geraghty displayed the original septic plan and Mr. Rose acknowledged that it was the original, approved design, which was considered a repair to the existing system. Mr. Rose indicated that he approved the repair, and subsequently revoked it because the existing septic was having difficulties and they decided to try to
appease the problem with run-off that engineer Tom Metcalf believed to be possible, with an interception drain. Attorney Geraghty noted that the plan shows 12 galleys to the west of the proposed garage. Mr. Rose stated that they did not remove the galleys because they would be a perfect storm water interception to keep any water from the downspouts to possibly run to the adjacent properties. Attorney Geraghty noted that the galleys are often referred to as infiltrator systems where they retain water. Mr. Rose agreed.
Attorney Geraghty stated that Mr. Rose’s October letter refers to an issue with the grease trap. He questioned whether that issue has been resolved satisfactorily. Mr. Rose stated that the grease trap is there but is not attached to anything. He noted that the improvements all comply with the State Health Code and reiterated that the grease trap is not connected and is not part of the system. Attorney Geraghty questioned whether Mr. Rose mentioned to Ms. Brown that he approved changes to the plan. Mr. Rose indicated that he thinks he did, but is not 100 percent sure. He indicated that they discussed galleys instead of the interception drain and Ms. Brown felt they should come out because that is what Mr. Metcalf suggested. Mr. Rose stated that he did not think it made sense
to remove the galleys and scar the soil just because the neighbors were concerned about possible run-off. He noted that he ultimately issued discharge permits.
Mr. Girard stated that originally they were to have a curtain drain versus the current proposed retention system below grade. He explained that the using a trench would require, by Code, a 25’ separation to any septic facility or any building. Mr. Girard stated that the proposed location on the site plan would have encumbered neighboring properties and is not legal without purchasing an easement. He indicated that the trench plan was never approved by the Town. Mr. Girard stated that that’s when they proposed to use the septic galleys that were installed as a retention system for storm water. He noted that the galleys are in an ideal position for this purpose.
Attorney Geraghty asked that the Board ask for a revocation of the Cease and Desist because there is a jurisdictional problem as the ZEO does not have the authority. He noted that in light of the approval by the Town Sanitarian, the issue of whether or not this septic system complies is mute from a Zoning standpoint as long as the plans show that it is located within all the setback requirements. Attorney Geraghty asked the Board to sustain the Tolchinski’s appeal and vacate the Cease and Desist Order.
Ann Brown, Zoning Enforcement Officer, stated that the Zoning Board of Appeals had a number of applications concerning this property. She noted that she received a complaint from a neighbor who indicated that the Tolchinski’s were building things underground that were not part of the approved plan. Ms. Brown stated that she asked Tom Metcalf to visit the site, as she knew he would understand better than she what was happening. Ms. Brown stated that Mr. Metcalf indicated that the work appeared to be septic system structures along the western boundary, along the Scarfo boundary there was a lot of septic system installation. She noted that at that time he was given a copy of a plan. Ms. Brown stated that the septic system installation was a moving target. She explained that she has
submitted a number of different sheets in her submission to the Board and noted that there was first an approval from the Health Department; then an approval of the same plan by the Health Department noting that it was a repair; there is an as-built plan that shows something different; and there is a more formal plan done by Mr. Girard which describes itself as an as-built plan. Ms. Brown noted that there have been many problems making sure that the construction on this particular property actually was in compliance with the approvals granted by the ZBA and the Zoning Commission and the ZEO.
Ms. Brown stated that it was a long struggle to get the building to comply, and it currently is pretty close to the original approvals. She noted that the owners and the Town have reached an agreement in this matter. Ms. Brown stated that there is a problem with the drainage structure that was installed in the rear without permits. She noted that she did approve the trench plan that was submitted by Mr. Tolchinski and designed by his engineer to ensure that the run-off from the roof would not go onto Mr. Scarfo’s or any other neighbor’s property. Ms. Brown stated that she has an as-built plan that shows the infiltrators hooked into the septic system; perhaps there is another plan that shows they are not connected. She noted that there is a lack of credibility, but in any case, if
the septic system itself is indeed compliant with the State Health Code, she still objects to the drainage structures on the western end of the new building. Ms. Brown stated that these were not shown on any site plan and if he had asked her to install them rather than the simple drainage ditch, she would have indicated that he would have to come back to the Zoning Commission so that there would be a full scrutiny of it. She noted that the lot is very small and the houses are close together. She also noted that this lot is higher than the surrounding lots; in particular Mr. Scarfo’s lot. Ms. Brown stated that the adjacent property owners have been concerned since the start of the process that there will be damage to their properties by run-off drainage from the Tolchinski property. She noted that the roof leaders on the new building were supposed to be hooked into the street drainage on Swan Avenue and now they are going into the drainage
structure that was not approved by either her or the Zoning Commission. Ms. Brown stated that she objects to this.
Ms. Brown stated that she submitted copies of letters from concerned neighbors; all concerned with the activities on the lot and the changes that have not been approved by Zoning authorities. She noted that there is a series of photographs that the Scarfo’s have submitted and indicated that they are numbered on the back. Ms. Brown stated that these snapshots, as best they can, demonstrate how the grade has changed. She noted that the Scarfo’s indicated to her that the infiltrators are not cut into the natural ground, but into regrading and fill, and the concern is that that water will follow the original dirt line and not be infiltrated at all. Ms. Brown stated that she believes all the information, including contours, should be gathered. She indicated that she would like the
drainage removed and the roof leaders put into the street as originally planned.
Attorney Eric Knapp, representing Ann Brown, stated that no one is saying that what was ultimately done will not be approved, although Ms. Brown has noted some problems; the question is did the Tolchinski’s have the obligation to return to some authority beside the Sanitarian, before he constructed what is now in the ground. Attorney Knapp stated that the answer to that question is clearly yes, he had to come back to Ms. Brown and/or the Zoning Commission. He indicated that they are not contesting that the septic system complies with the Health Code but rather that there are galleys in the ground right now that are not septic system galleys, and to the extent that they are not septic system galleys, they are the type of thing that the Zoning Commission reviews as part of its site plan approval process. Attorney Knapp stated that Attorney Geraghty mentioned that the Subdivision Regulations and noted that this is not a subdivision and those regulations are not applicable here. He
noted that even if this were a subdivision, the applicant would have gone to the Planning Commission who then would have reviewed the plans and made a decision. Attorney Knapp stated that this is not a system where an engineer went out ahead of time and designed roof leaders going down to galleys with infiltration into the soil with the proper amount of gravel, etc. He noted that Mr. Girard testified as such. Attorney Knapp stated that all these things are done for an appropriately designed drainage system. He explained that Mr. Girard has testified that he went to the site after the work was completed and simply documented what was done. Attorney Knapp noted that this is not an engineered approval.
Attorney Knapp stated that because the drainage work was not approved, she is asking that her Cease and Desist be sustained and then the Tolchinski’s can come in and get an approval from the appropriate authorities of the appropriate drainage system for this site. He reiterated that he is not arguing whether the septic system is appropriate but rather that the infiltrator galleys that were installed were not properly approved anywhere along the line. Attorney Knapp explained that this is the reason they are here this evening.
Mr. Moll questioned whether the galleys installed serve both a drainage and septic system function. Attorney Geraghty objected to Attorney Knapp answering as he does not have the expertise. Attorney Knapp deferred to Mr. Girard.
Mr. St. Germain questioned whether the septic system referenced the drainage system or the septic system.
Mr. Kotzan stated that the as-built shows that the galleys are not connected to the septic. Mr. Girard noted that his final plan shows that the galleys are not connected to the septic. Mr. Kotzan noted that this would then be a change in the plan as to the drainage. He noted that this could significantly impact water flow onto the adjacent property. Mr. Kotzan also pointed out that the original site plan did not include a basement and there is now a basement under the garage, and he is not sure how. He indicated that he understands the neighbors’ concerns as to what is going on in the ground around them. Mr. Kotzan stated that drainage is part of the site plan and the site plan is what the Zoning Commission, Ms. Brown and the Zoning Board of Appeals approves.
Mr. St. Germain noted that if the Cease and Desist Order is completely valid with the exception of noting the septic system.
Chairman Stutts noted the following letters for the record: Letter from Mr. Topalis at 284 Shore Road, indicating his concern for drainage onto his property and the effect it may have on the functioning of his septic system; Letter from Mr. Caprio noting that Mr. Tolchinski has been performing septic tank construction which is not in accordance with the approval and noting that the methods used will cause run-off onto adjacent properties; letter from Mr. Scarfo noting that Mr. Tolchinski has placed other structures in the ground inconsistent with the approved plans and including a copy of a drawing showing these components in red. Mr. Scarfo noted that there is a drainage problem since the construction of this garage and he is concerned about the drainage system on the property.
Attorney Geraghty stated that it is his position that the only issue before the Board this evening is the septic approval. He noted that the other language in the Cease and Desist is broad, vague and ambiguous. Attorney Geraghty stated that if drainage is discussed it violates his client’s constitutional right to be noticed. He indicated that he is objecting to drainage testimony because it is not what they understand, based on the Cease and Desist, the issue to be. Mr. Kotzan noted that the Cease and Desist references site work. Mr. Moll stated that the Board does not have someone who can state that the drawing references exactly what is in the ground and this portion services a need for drainage and this portion services a need for septic. Chairman Stutts stated that the history
of this case is relevant, along with the ambiguity of all the applications and sequence of events and timing. Anthony Scarfo was present to represent his father, the adjacent property owner at 303 Hartford Avenue Extension. He pointed out that a variance was granted to construct this garage on a nonconforming lot. Mr. Scarfo stated that the garage is a monstrosity and does not fit in with the residential neighborhood. He noted that since the construction of the garage they have experienced drainage problems. Mr. Scarfo stated that there is a basement that is not on the original approved plan. He noted that the structure was constructed much higher than was originally approved and then Mr. Tolchinski sued the Town unnecessarily spending taxpayers’ money. He noted that the septic system constructed has caused drainage problems on all the adjacent properties. Mr. Scarfo stated that the Zoning Commission and Ms. Brown have
jurisdiction with the drainage system on this site. He indicated that he spoke with Amanda Provo at CT Department of Public Health and she explained that drainage problems are a zoning issue. Mr. Scarfo stated that the ground was raised to accommodate the septic system and the leaching fields. He noted that the ground was raised substantially, which has created drainage problems.
Mr. Scarfo stated that he has photographs depicting the drainage problem, and noted that these photographs were taken before the ground was further raised to install the leach field behind the garage. He noted that three pictures were taken prior to the construction of the garage showing that there is not much pitch to the land. Mr. Scarfo stated that the next picture shows more pitch when the construction begins and the third picture when the garage is more complete and it is very evident that the land is much higher and there is a drainage issue. Mr. Scarfo showed photographs taken in 2007 before the leach field was constructed behind the garage. He noted that the pictures are dated on the back. Mr. Scarfo stated that it is not legal to make improvements to a property and cause run-off to
your neighbor’s land.
Mr. Scarfo noted that there is a Health issue here, one being that the plan, as installed, is in violation of Public Health Code.
John Topalis stated that he would like to know why Mr. Tolchinski installed such a large septic system. He indicated that he empties his system every 7 or 8 months and hopes that Mr. Tolchinski’s improvements do not impact his property.
John Failla, owner of property next to Scarfo’s, stated that when Mr. Tolchinski began building the garage his property, Mr. Scarfo’s and Mr. Tolchinsky’s were all even. He noted that throughout the summer work was performed and gravel was brought in and now the Tolchinsky property is much higher. Mr. Failla stated that he is concerned that there will be a further problem with water, as drainage became a problem after the construction of the garage. He indicated that now that the property is even higher, he is concerned that this will worsen.
Dominic Scarfo, 303 Hartford Avenue Extension, stated that Mr. Tolchinski came to his house in the winter of 2006 and asked him to sign a letter in support of his application to the Zoning Commission so that the project could be finished. He showed Mr. Scarfo a plan that shows a plan that contained curtain drains to eliminate drainage onto the Scarfo property. Mr. Scarfo stated that Mr. Tolchinski subsequently installed a fence so that no one could see what he was doing.
Mr. Scarfo indicated that he spent the entire summer watching what Mr. Tolchinski was doing and he saw a lot of trenches installed. He indicated that he has drawn these on a plan. Mr. Scarfo showed a photograph of the garage and noted the existing soil level. He pointed out the new dirt level and noted that the septic was installed above the original level of the dirt. Mr. Scarfo explained that he showed this to a septic installer and who indicated that he could not believe the system was approved because the leach field will drain directly onto the Scarfo property because there is no base. Mr. Scarfo stated that Mr. Tolchinski has lied to him twice as to his plans for the property.
Mr. Girard reiterated that his site plan represents what was installed on the property which was approved by the Town Sanitarian. He indicated that the galleys behind the building are septic galleys which are now being used for the dissipation of storm water. He noted that they are septic galleys, not infiltrators. Mr. Girard stated that Mr. Rose told Mr. Tolchinski that the galleys could not be used for septic.
Mr. Girard noted that the original plan had roof rain water going out to Swan Avenue and indicated that Swan Avenue has no catch basins and in a 100 year storm that water will run down onto Route 156. He noted that there is ice all winter long on Route 156. Mr. Girard noted that for this reason they opted to leave the galleys for storm water retention. Mr. Girard stated that historically the ground water has been about 5 inches below ground. He noted that the grades approved on the Tolchinski property are the grades that were approved. Mr. Girard stated that the galleys will retard the building run-off and are an improvement to the drainage situation.
Mr. Kotzan noted that if the galleys are an improvement to the drainage, the applicant must acknowledge that it is also an alteration that should be reviewed by the proper authorities. He noted that the question is whether the changes should have been approved by Ron Rose or Ann Brown. Mr. Girard stated that it was installed as a septic system, the devices of the unit are septic units and they believe it is totally a low-grade septic issue. Mr. Kotzan noted that it is not hooked up to the septic system. Mr. Girard indicated it is not and noted that it is a total improvement.
Mr. Kotzan stated that they have had testimony that what was installed is substantially different than the approved plans, as it relates to drainage.
Attorney Geraghty submitted a map with groundwater elevation information from 1993. He indicated that he is disappointed to come here this evening to find that Attorney Knapp has now conceded that the only specific violation alleged in the Cease and Desist Order, septic, is now not within Ann Brown’s purview. He indicated that the objection to the Cease and Desist Order should be sustained in favor of Mr. Tolchinski and vacated because otherwise the Cease and Desist Order has violated his client’s constitutional rights to due process and fair notice. Attorney Geraghty stated that if the Board vacates the Cease and Desist Order it does not prejudice Ms. Brown’s right to go back and look at the plan and specify in a new Order exactly how the Regulations have been violated.
Mr. Moll noted that one of the objectives of the site plan was to clean up this property. He noted that on the site plan there is a concrete pad with two dumpsters placed on it. He noted that one issue that came up is that the tank would have to be H20 for trucks to drive over it to get to the dumpsters. Mr. Moll questioned how this is all being addressed with the new plan. Attorney Geraghty indicated that the dumpster pad has not been installed. He pointed out that now, this evening, he has heard that the garage elevation is not proper, there is a basement, there is no concrete pad; he explained that this is exactly his point regarding the fact that the Cease and Desist must be specific in order to give his proper notice. Mr. Moll indicated that he is raising the issue because it was
part of a significant approval that spanned a three year period. Attorney Geraghty stated that they are here this evening on the limited issue of the septic system.
Attorney Knapp stated that the applicant has noted that the galleys are septic galleys and were originally installed as part of the septic system. He noted that there are some maps that show that they might have been part of the septic system. Attorney Knapp stated that the Cease and Desist Order was based on the best information Ms. Brown had. He indicated that it is difficult to say with precision what has gone on. Attorney Knapp stated that it was the position of Ann Brown that what was constructed is not what was originally approved and everyone seems to agree that it is not. He stated that the question is, is what was originally approved septic or drainage. Attorney Knapp stated that the issue is that the Zoning Commission and Ann Brown have never approved the galleys for drainage.
Hearing no further comments, Chairman Stutts called this item to a close.
ITEM 2: Public Hearing Case 08-03 Dennis & Valerie Melluzzo, 7 Portland Avenue, Appeal of ZEO Cease and Desist Order dated November 7, 2007 for enlarging accessory building.
Attorney Bennett was present to represent Dennis & Valerie Melluzzo. He explained that Ms. Brown issued a Cease and Desist Order with respect to a cottage or accessory structure on the property. Attorney Bennett stated that had he the opportunity prior to this evening to meet with Ms. Brown, he might have been able to show her material which would have avoided tonight’s hearing. He indicated that the structure has not been enlarged and sits on the original footprint. He noted that the original order issued goes back to March 9, 2007 and references work beyond the scope of the permit and the conversion of garage to living space. Attorney Bennett stated that in response to the Order Mr. Melluzzo stopped work and contacted Ms. Brown which resulted in a March 23, 2007, memo
acknowledging that the building historically had been used for sleeping and storage and not as a garage. He submitted this memo for the record. Attorney Bennett stated that Ms. Brown and Mr. Melluzzo were not able to meet again to further discuss the enlargement of the building and so on November 7, 2007 she issued the present Order.
Attorney Bennett stated that his client did take out a permit to do this work and Ms. Brown appropriately signed off on the permit for repairs. He noted that Ms. Brown subsequently became concerned about the enlargement. Mr. Bennett presented evidence showing that the building was not enlarged. He first references a sheet of four color photographs that were submitted with the application. Attorney Bennett stated that these photographs were taken in 1985 when his client purchased the property. He pointed out that the first picture in the upper left hand corner is looking at the accessory structure from the street and noted the well tile in front of it. Attorney Bennett stated that there is no garage door and the building can not be used for storage of a car, which is how it has been
since it was purchased by the Melluzzo’s. He noted that the photograph on the bottom right shows the two high rectangular windows which are currently on the outside of the building Attorney Bennett stated that there is now a wall where there was a door. Attorney Bennett asked the Board to note the tree in the photograph in the lower left photograph. He noted that the tree is still there and it documents the location of the building. Attorney Bennett noted that the photograph in the upper right has a man with a cowboy hat on and noted that the door behind him is on the south end of the structure. He pointed out the background of the picture which has a brick wall that is a chimney. He noted that there is a thimble cover that can also be seen.
Attorney Bennett noted that the July 12, 1960 Assessor Card dimensions on it that match the current building with total square footage of 396 square feet. Attorney Bennett pointed out that all the dimensions are on the inside of the house as Assessor’s always measure the inside walls because they are taxing you on living space. He noted that they do not measure the outside.
Attorney Bennett stated that the 1970 Assessor Card has the same square footage and no notch is noted as suggested in some of Ms. Brown’s material. H indicated that again, the square footage is noted at 396 square feet. Attorney Bennett stated that the 1980 Assessor Card with a square footage of 406 square feet.
Attorney Bennett stated that the last card was printed on September 27, 2004, which again, has a photograph showing this small outbuilding similar the 1985 photograph with the well tile, the upper windows, etc. He indicated that the square footage is not noted on this Assessor’s Card. Attorney Bennett noted that the 1970 Card indicates that this outbuilding is 100 percent finished which is backed up by the 1985 photographs. He noted that the 1985 photographs show a stove that was connected to the chimney behind the cowboy. Chairman Stutts indicated that it is in the room but not hooked up. Attorney Bennett indicated that it has been moved because they are cleaning, but noted the sink and cabinetry.
Attorney Bennett submitted a floor plan with his calculations and noted that there is 399.13 square feet, measured to the inside. He recalled the 1960 and 1970 Assessor’s Cards that noted 396 square feet. Attorney Bennett stated that they are within 3.13 square feet. He indicated that they have done the same thing with the exterior of the building and the only difference is the thickness of the walls. Attorney Bennett stated that these calculations suggest a 498 square foot dimension.
Attorney Bennett submitted a photograph dated December 11, 2005 which shows the end toward the street and pointed out the well tile and its relationship to the building. He submitted a photograph showing the elbow of the building and pointed out the tree that he asked the Board to focus on earlier. Attorney Bennett stated that these are all indications that the structure is in the same place. Mr. Kotzan noted that there was a door in between the tree and the wall which there would no longer be room for. Attorney Bennett stated that there was a door but it has been moved. Mr. Kotzan noted that it appears that there would no longer be room for a door and Attorney Bennett acknowledged that that was a determination that the Board would have to make.
Attorney Bennett showed a photograph of the roots of the tree and pointed out a shelf in the concrete. He noted the original slab. Attorney Bennett stated that Mr. Melluzzo has cut off, and reduced the length of the studs, many of which have been replaced. He noted that what Mr. Melluzzo effectively did was build himself a sill with concrete blocks on top of the old slab. Attorney Bennett stated that after getting this done, Mr. Melluzzo poured a new slab inside, on top of the old slab, to give him one consistent flat floor because the original slab was made up of 2 x 4 foot sections which had joints all the way along the floor. He noted that in order to get a consistent floor he built this and dammed up the perimeter and poured a few inches of slab.
Attorney Bennett submitted a picture along the sidewalk, showing the concrete blocks, the old slab, and the little shelf. He noted the red paint on the slab. He noted that that was the original color of the house and is left over from when the house was red, before the new changes and new siding.
Attorney Bennett submitted a photograph near the tree where the slab intersects. He indicated that given the remark of the doorway a few moments ago, he asked the Board to look at the red paint on both surfaces, the left and right sides of the juncture. Mr. Kotzan stated that if there is red paint there then the original foundation could not have been out to this edge. He indicated that if the original sill means the house came out to this point, then this is certainly evidence that it didn’t come out to there because the paint goes well up to the newer part of the foundation. Attorney Bennett agreed. Mr. Kotzan stated that there could be more red paint that is covered up by this new foundation. Attorney Bennett stated that in any case, the interior dimensions of the house are
exactly the same as they show on the Assessor’s Records.
Attorney Bennett noted that the house has a slightly longer dimension in the front than in the back; that it is not square. He presented a photograph of the north side of the house and noted that the back of the picture shows the same shelf of the old slab and that the surface has had more material added because the house isn’t square and the last couple inches of slab protrudes.
Attorney Bennett submitted a photograph of the east corner of the house and pointed out the block which has always been there and is not supporting anything. He asked the Board to note that between the block and the garbage can there is a slab, an inch or two of new concrete, and then the concrete block. Attorney Bennett stated that this is to demonstrate the old slab. He noted that the little bit of concrete was used to level the floor.
Attorney Bennett submitted a photograph dated December 10, 2005, looking from north to south along the back of the building. He pointed out the concrete block next to the foundation. Attorney Bennett stated that that is the exterior portion of the supporting structure for the chimney. He noted that the chimney was within the house and a portion was outside the house. Attorney Bennett stated that the chipped corner of the block is still there.
Attorney Bennett submitted a photograph depicting the northeast corner of the house recently taken by him and he noted that the sole purpose of this photo is showing the contrast between the new concrete material and the old material within. Attorney Bennett stated that after the concrete block supports for the sill were installed and a smooth slab was poured. He noted that the concrete block is only 4.5 inches and deep and they are usually 8 inches. Attorney Bennett stated that the difference is the poured floor that he put within the structure. He noted that he is raising this point to note that it is a skim coat over the existing slab that existed.
Attorney Bennett stated that Assessor’s measure the interior because that is what gets taxed and noted that all the dimensions on the Assessor’s Cards are interior dimensions. He indicated that any deviation is within inches. Attorney Bennett stated that some door locations have been changed but there has been no effort to build what was not already existing.
Chairman Stutts questioned whether the height increased. Mr. Melluzzo indicated that the height did not change. Attorney Bennett stated that he believes Mr. Melluzzo cut off the height of the studs.
Attorney Bennett stated that Ms. Brown informed him that she received a complaint that the building was being enlarged. He noted that the complaint was ill informed. He presented a letter from Lynn D. who lives across the street, endorsing the project. Attorney Bennett stated that his client got a permit and he believes they complied with the permit. He noted that work was stopped when the Cease and Desist was issued. Attorney Bennett stated that his client made no attempt to work outside the scope of the permit given.
Mr. Kotzan questioned whether the building was lifted while the new foundation work was being done or is the structure new. Attorney Bennett stated that there is a lot of new structure. He noted that water splashing up had rotted the wood which is one of the reasons there is now concrete block and pressure treated sill plates. Mr. Kotzan stated that if none of the framing had been replaced then it would be very straight forward that the dimensions of the structure did not change. He noted that the framing have changed substantially leads them to have to look at other evidence that the size may have changed. Attorney Bennett stated that he has tried to give landmarks around the building to aid in their determination.
Attorney Bennett pointed out that the zoning permit filed to do the work shows the outbuilding as 475 square feet, which was an estimate. He noted that it does not match the existing or pre-existing building and his client just made a rough estimate.
Ann Brown, Zoning Enforcement Officer, stated that her first contact with Mr. Melluzzo about this project was in response to a complaint that she received. She noted that Mr. Melluzzo put up a tent structure and began work on his outbuilding. Ms. Brown stated that in response to her, Mr. Melluzzo came to the Zoning Office and filled out an application for the tent structure and for the renovations to the outbuilding. She noted that she denied the tent structure because it did not comply with the setbacks and Mr. Melluzzo removed it. Ms. Brown stated that the other work listed on the permit was roofing and siding the outbuilding, which she approved. She indicated that Mr. Melluzzo understood, and it says right on the permit, that there will be no change to the size, shape, footprint or height
of the shed.
Ms. Brown stated that windows and doors and foundation work were not on the permit and had they been, it is her hope that they would have gathered more information at the beginning about the existing outbuilding. She noted that there is contradictory information about the outbuilding in the files. Ms. Brown stated that with the Zoning Permit Application Mr. Melluzzo submitted simple plot plan and she suspects the dimensions were taken from the street card. She indicated that the use is fine. Ms. Brown stated that Attorney Bennett is incorrect when he states that the Tax Assessment Records measure from the inside walls. She indicated that they absolutely measure from the outside walls and one of the pieces of information that she submitted is the 2000 street card printed November 28, 2006. Ms. Brown stated that Mr. Kent gave this to her and on it are his measurements taken at that time after the work was done. She noted that his measurements were 14’ across the front, 20’
along the northern boundary, 34’ along the western, 11’ on the southern and 20’ going to the north again and 9’. Ms. Brown stated that these measurements were taken from the outside and they always are. She noted that she received a series of complaints throughout the process. Ms. Brown indicated that she asked John Flower, Assistant Building Official, to view the building to see if he could make any evaluation as to whether it appeared to be the same or enlarged. She indicated that it was her and John’s conclusion that the building had been enlarged because there was new cinderblock and concrete work. Ms. Brown noted that none of this work was covered on the zoning permit.
Ms. Brown stated that her conclusion with Mr. Flower was that the building appeared to be enlarged approximately 15” on the south end, 2’ on the west end and there appears to be a jog in the northwest corner that was filled in. She noted that there was a lot of foundation work in that area. Chairman Stutts noted that Ms. Brown indicates that there was no record of cooking facilities and therefore none are allowed. Ms. Brown stated that she did not find any mention of a kitchen, although there was running water. She noted that if there is a separate building with cooking facilities on a property, under the Zoning Regulations it is considered a second dwelling unit on the property. Ms. Brown noted that it does not appear in any of the records that there was an independent unit on
the property. She acknowledged there was some habitable space.
Attorney Bennett stated that their position acknowledges that the sink and stove were in the building when he purchased the property, but they do not want this to be a difficulty in the Board’s decision. He noted that some times when people apply for permits they make estimates and guesses on dimensions. Attorney Bennett stated that he disputes with Ms. Brown regarding the inside measurement by the Assessor. He indicated that he represents five municipalities and does assessment work day in and day out and the Assessor assesses living space. He noted that they do not measure the outside of the house for assessment purposes. Attorney Bennett asked Mr. Melluzzo whether Walter Kent, Assessor, asked him for access to the structure. Mr. Melluzzo indicated that he did not.
Attorney Bennett indicated that Mr. Kent measured the outside then. Ms. Brown stated that Walter Kent could also answer the question as to whether a previous assessor would have measured the outside or inside. Attorney Bennett agreed.
Mr. St. Germain stated that if one went down into the cellar and measured the inside dimension of the cellar, which hasn’t changed, then the cellar should be roughly 16 inches shorter in length than the outside dimension of the building. He noted that this would be because of the 8” wall. Mr. Kotzan noted that there is no basement.
Mr. Kotzan stated that he is genuinely puzzled with the photographs depicting the sidewalk, the door and the tree. He noted that in the current picture the tree butts up against the entryway which leads to where there used to be a door. He noted that it is also evident that a door could no longer fit in the wall space. Mr. Kotzan noted that not only does the old picture show a door, but there is wall space to the right of the door. Chairman Stutts agreed.
Ms. Brown stated that the Cease and Desist she issued was for enlargement of the outbuilding and that that work would have taken a more substantial permit, i.e., an application for variance. Attorney Bennett stated that they will apply for permits for the framing changes.
Mr. Moll stated that the outside dimensions of 498 square feet is close in agreement to Mr. Kent’s measurement of 500 square feet. Attorney Bennett agreed. Mr. Moll stated that using Attorney Bennett’s two sets of drawings, one using inside and the other outside measurements, it appears that the back and front wall are fairly thick, approximately 11 inches. He questioned whether something was done to the walls. Mr. Moll questioned why the walls appear to be so thick. Attorney Bennett stated that adding up all the components of block, stud, siding material and the corner boards, there is approximately 9 inches of wall.
Chairman Stutts read a letter from Lynn Dimenincus, 4 Portland Avenue, in favor of the project.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 3: Public Hearing Case 08-01 Paul & Amy Constantinou, 7 Haywagon Drive, Variance to construct a pool in the PRCD boundary.
Attorney Messier was present to represent Mr. Constantinou, who was also present. He explained that the Zoning Requirement is that no structure be located within 100’ of the PRCD tract boundary line. Attorney Messier stated that the plan shows that the pool is within 96.4 feet of the PRCD tract boundary. He noted that the pool is 718 square feet. Attorney Messier stated that because the pool is irregularly shaped only 2.5 percent of the pool is inside the 100’ setback, rather than 3.6 feet of the entire width of the pool encroaching.
Attorney Messier explained that Mr. Constantinou had his pool contractor submit an application to construct the pool and the application showed that the pool would comply with setback requirements. He noted that there is a limited area in which the pool could fit on the property. Attorney Messier stated that the contractor never submitted an as-built, so Mr. Constantinou engaged the services of a surveyor who did an as-built and determined that there was an encroachment.
Attorney Messier stated that the Board has the authority to vary the Regulations and he feels this would be an appropriate variance to grant. He pointed out that although a pool is considered a structure, he noted that it is at grade level and probably not even visible from the boundary lines. Attorney Messier stated that the property is buffered to the rear by Finnegan Farm Road. He indicated that the visibility of the pool from outside the property is negligible or non-existent.
Attorney Messier stated that there was a burial pit referenced in the application. He noted that the burial pit is one done by the original contractor. Attorney Messier stated that the pool contractor started digging where the pool was to be located and found a pit of stumps, at least two dump trucks worth were removed. He explained that the soil was unstable and he submitted photographs that show concrete blocks that had to be installed to shore up the soil so that the pool could be installed.
Attorney Messier stated that it would be impractical and impossible to move the pool without creating a bigger problem.
Chairman Stutts questioned when the error was discovered. Attorney Messier stated that it was not discovered until the as-built was completed. He noted that the contractor has taken a defensive stance and has not aided in resolving the problem.
Attorney Messier stated that although there may be other properties in Town that have stump pits, it is unlikely that another property has a stump pit in the absolutely only place they could construct a pool.
Christopher Young, 2 Cord Grass Lane, stated that he is the closest neighbor, and has no problem with the Constantinou’s pool. He noted that their lot is elevated such that he cannot even see their backyard. Mr. Young noted that he does not believe one can see the pool from Finnegan Farm Road either.
Doug Wilkinson, 15 Haywagon Drive, stated that he is two houses down from the Constantinou’s. He indicated that he drives by every day and indicated that one cannot see the pool from the street. Mr. Wilkinson stated that he also drives down Finnegan Farm Road to get to the beach and indicated that one cannot see the pool from there either. He indicated that he has no objection to the pool being in the PRCD setback.
Hearing no further comments, Chairman Stutts closed this Public Hearing.
ITEM 4: Public Hearing Case 8-02 Harlan & Judith Chapman, 47 Johnnycake Hill Road, variance to construct covered entry.
Harlan & Judith Chapman were present to explain their application. He noted that they have been making some necessary repairs to their house.
Chairman Stutts noted that a variance is require to build a covered entry porch 16’ x 7.2’ deep on an existing conforming house, in the front setback. She noted that the proposal does not comply with 7.4, and 21.3.7, minimum setback from street line is 50’ and the proposal is 43’ from the street for a variance of 7’. Chairman Stutts noted that there has been quite a bit of work done already on the property and noted that it looks very nice. Mr. Chapman stated that they have, and they believe the proposed entry will compliment the work. He noted that the existing steps are concrete and they would like to replace it with a porch that has ample room in front of the door and provides cover so people are not exposed to ice and snow.
Mr. Chapman stated that they are going out 7’2” for the porch plus approximately 2’ for the overhang. Chairman Stutts stated that the height should be marked on the drawing and also the side dimension should be added. Mr. Chapman stated that the total height above grade is 13’6”. He pointed out that his drawing was done to scale.
Chairman Stutts noted that there are only two other properties on the same side of Johnnycake until the railroad where the street was closed and no houses on the other side of the street. She noted that this is not a large impact to the neighborhood. Mrs. Chapman noted that their neighbors do not have a problem with the project.
Chairman Stutts noted that the hardship provided is the need for protection from the elements. She noted that the lot size is 47,785 square feet in an R-40 zone. Chairman Stutts questioned whether this is the smallest amount of variance required to provide a covered front entry porch. Mr. Chapman stated that they could cut down the amount it projects out slightly. He noted that the building code calls for a minimum of a 42” landing and they have provided a 5’4” landing because the door opens out and is 36”. He noted that that is dangerous and could make someone step back and fall off the stairs.
Mr. Chapman stated that the design of the porch breaks up the long, low ranch house. Ms. Chapman stated that it currently looks like a trailer. Mr. Kotzan noted that the road is currently a dead end and probably always will be.
Mr. Moll questioned the size of the risers on the steps. Mr. Chapman stated that the steps will be 7” high by 11” deep, at a minimum.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 5: Public Hearing Case 08-04 Dan & Maria Eiler, Sean & Paul Hartan, 27 Sea View Road, variance to demolish existing seasonal dwelling and construct new seasonal dwelling.
Attorney Cronin was present to represent the applicants. He explained that the architect for the project is Mr. Brian Buckley, who is also in attendance. Attorney Cronin stated that the first page of the site plan is the existing structure. He noted that the property is located on Sea View Road and the house is on an embankment on the northeast side. Attorney Cronin stated that the lot slopes from the middle of the lot down toward the road, with at least a 10 degree slope. He noted that the rear of the lot is flat. Attorney Cronin stated that the view off the deck goes over the houses in front and then up Long Island Sound. He pointed out that all the properties in the area are very well maintained. Attorney Cronin explained that the structure is very old and has
deteriorated.
Mr. Buckley stated that the house was built in 1920. He indicated that he looked into a possible renovation of the property for the Eiler’s and he told them that it was not possible. He noted that there is a rubble stone foundation sitting on a steep ledge in a 120 mph wind zone, exposure C, and it is south of Route 95, putting it in the most severe hurricane zone in all of New England. Mr. Buckley stated that it would be impossible to tie down the house to the existing rubble stone foundation. He explained that there is no plywood sheathing, there is no corner bracing, all of the floor joists are over-spanned, none of the windows meet egress requirements, the insulation levels are not obtainable within the existing structure and therefore it was his recommendation that the house should be
torn down and rebuilt. Mr. Buckley explained that they have tried to redesign within the existing footprint and in the process, plan to locate the house more centrally on the lot.
Attorney Cronin stated that he spoke with his clients early on and noted to them the Board’s views on tear downs and he told them that if they were to tear down and rebuild it should be as close as possible to the original structure and to not exceed any numerical aspect of that structure. Attorney Cronin stated that his clients have followed his advice up to this point.
Attorney Cronin stated that the existing structure is located on the north side of the lot, 3.1 feet from the side boundary line and the proposal is to locate it centrally so that it meets the side setbacks. He noted that the structure has also been moved back from the street line so that it meets the 25’ front setback requirement. He noted that the existing structure was 11’ closer to the road then the Regulations allow.
Attorney Cronin stated that these changes bring the house back on the more level area of the lot. He noted that the rear of the lot is flat and that is the area where the septic system will be located and the existing large tree will have to be removed. Attorney Cronin stated that the footprint of the house is slightly smaller than the existing structure. He noted that the only variance being requested is the floor area ratio. Attorney Cronin stated that the existing regulations allow for 25% or 1,468 square feet of living area. He noted that the existing is 1,663 square feet (28.3%) and that will be reduced to 1,590 (27.1%) or a reduction in a little over 1 percent.
Attorney Cronin explained that the original plan was to renovate the structure and Mr. Yuknat of Shoreline Sanitation came up with a septic plan that was approved. He noted that they subsequently decided to tear down and rebuild in a new location and that new plan went to the Health Department and was approved. Attorney Cronin stated that the day before the last public hearing the Health Department found out that it was a new structure they reversed their decision and that application was withdrawn. He noted that the indication at that time was that the new structure, as reconstructed, might have an increase in living space as defined by the Health Code. Attorney Cronin explained that the septic plan was signed and okayed, not aware that the reconstructed house was in a new location. He
indicated that this past Friday they withdrew their approval again and everyone met today and the septic location was changed and the Health Department has signed off on it.
Attorney Cronin stated that there is no question that there is no increase in floor area. He noted that this is a seasonal property.
Mr. Buckley displayed the architectural drawings. He noted that they started with short knee walls and calculated the usable floor area which is that with a ceiling height of 7 feet. He noted that there is floor area that is not being counted.
Mr. Kotzan questioned whether the changes would affect any other property’s view of the water. Mr. Buckley indicated that they would not be affecting any views. Chairman Stutts stated that they have done a great job of utilizing the second story area. She noted that she is concerned with the percentage that it is over the maximum floor area as a percent of lot area. Responding to this, Attorney Cronin noted that they have to comply with building code requirements. Mr. Buckley stated that just going to a compliant stairway was an additional 45 or 50 square feet.
Attorney Cronin noted that the condition of the dwelling is the single most important hardship. He indicated that the proposal is within harmony with the Regulations and noted that they have removed at least three nonconformities.
Mr. Eiler noted that they purchased the property last year, although it has been in his son-in-law’s family since 1955.
Mr. Moll noted that the proposed Zoning Regulations are reducing the allowed height in R-10 Zones to 24 feet. Attorney Cronin noted that if those changes go through it will have a profound effect on the Zoning Board of Appeals. He noted that the proposal is to allow people to construct up to the maximum specifications in the zone as long as they do not go beyond those specifications. Attorney Cronin noted that this will be done by Special Exception to the Zoning Commission. Attorney Cronin stated that he commented at the Public Hearing that they will have to be careful only allowing a 24’ height in the flood zones.
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 6: Open Voting Session
No action taken. The Open Voting Session was tabled to a Special Meeting to be held on Wednesday, January 17, 2008 at 4:00 p.m. at the Old Lyme Zoning Office, 74 Halls Road.
ITEM 7: Approval of Minutes
A motion was made by June Speirs, seconded by Joseph St. Germain and voted unanimously to approve the minutes of the November 14, 2007 Regular Meeting..
ITEM 8: Any new or Old Business
Mr. Moll asked to add an agenda item to the Special Meeting on the 17th for the periodic follow-up on Case 07-33. He indicated that he has something that he would like to share with the Board.
ITEM 9: Adjournment
The meeting adjourned at 11:24 p.m. on a motion by June Speirs and seconded by Kip Kotzan. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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