APPROVED
OLD LYME ZONING BOARD OF APPEALS
SPECIAL MEETING
WEDNESDAY, JANUARY 16, 2008
The Old Lyme Zoning Board of Appeals met on Wednesday, January 16, 2008 at 4:00 p.m. at the Old Lyme Zoning Office. Those present and voting were Susanne Stutts (Chairman), Joseph St. Germain (Alternate seated for Judy McQuade), June Speirs, Kip Kotzan and Richard Moll.
Chairman Stutts called the meeting to order at 4:00 p.m.
ITEM 1: Open Voting Session.
Case 07-35 Adel & Dimitri Tolchinski, 286 Shore Road, Appeal
Chairman Stutts explained that the Tolchinski’s are appealing a Cease and Desist Order dated August 17, 2007 to remove any and all structures and site work not previously approved. She noted that the Tolchinski’s were represented by Attorney Paul Geraghty whose contention was that the septic system is outside the ZEO’s jurisdiction and that her ruling was arbitrary and capricious in that it failed to state with any degree of specificity what the violation is.
Chairman Stutts stated that Mr. Rose, Sanitarian, testified that he inspected the system and approved the septic system. She noted that the ZEO indicated that she was in receipt of complaints from a neighbor regarding the work on the property. Chairman Stutts stated that the testimony was that there were numerous plans submitted and many problems from the start, beginning with the building being properly constructed to plan. She noted that there was testimony that the drainage pipes on the west side were not approved by the Town and additional contour information is required for the site.
Chairman Stutts stated that Attorney Knapp, representing Ms. Brown, stated that the reason for the C&D was for the drainage, specifically the need for run-off trench drains along the property which require a minimum of 25’ separation distance to any septic system. She noted that the question presented was did Mr. Tolchinski have to go to a Town authority when he proceeded to do more work.
Mr. Kotzan noted that Mr. Tolchinski’s engineer submitted an as-built plan. He noted that it does appear that there was regrading on the property due to the changes. Mr. Kotzan stated that one has to be sensitive to the history of the property; the neighbors are very frustrated from the work that has been done on this property. Mr. Kotzan indicated that Ms. Brown received the neighbors’ complaints and the ZEO reasonably thought that there are changes that were not part of the approved site plan. He noted that the changes are not, in his mind, exclusively septic. Mr. Kotzan stated that the engineer indicated that there were alterations to the original plan and characterized them as improvements.
Mr. Kotzan acknowledged that the wording on the Cease and Desist Order may not be perfect for the situation. He noted that the intent and the actual justice that was done in stopping the work and asking for a review was absolutely correct.
Chairman Stutts stated that Attorney Geraghty’s main contention was the fact that the word septic was in the Cease and Desist and that that negated the entire Cease and Desist. She explained that she brought the issue to Attorney Royston for guidance. Chairman Stutts stated that if the real issue is drainage along the boundary and the Cease and Desist did not really identify what the person was supposed to do, then it was Attorney Royston’s suggestion that one option would be that the Board could uphold the appeal so that Ann could immediately issue a Cease and Desist Order that is more clear. Mr. Kotzan indicated that Attorney Royston’s suggestion is reasonable. He reiterated that the wording is unclear. Mr. Kotzan stated that he feels this action would be consistent with
justice for both the Town and the landowner.
Richard Moll displayed a sketch showing the existing building, the garage, the yellow area shown being drainage and the area for the septic system. He indicated that with the exception of the septic system, the site plan was approved by the Zoning Board of Appeals and the Zoning Commission. Mr. Moll stated Attorney Knapp commented at the hearing that neither the Zoning Commission nor Ann Brown have ever approved galleys for drainage. He pointed out the galleys on the site plan. Mr. Moll noted that the approved site plan had a concrete pad that would handle two dumpsters, with a driveway leading into that area. He stated that one of the issues at the time was a truck being able to drive over the system to access the dumpsters and the terminology “HD” was added to the drawing.
Mr. Moll stated that general note #10 of the approved plan is related to this. He explained that the installed septic is under the area of the yet-to-be constructed driveway and therefore this land is not capable of meeting the requirements put on it at the variance hearing. Mr. Moll noted that the dumpsters were a large part of the approval of the variance and an attempt to get the property cleaned up. Mr. Moll agreed that the wording on the Cease and Desist is not clear but stated that he would support upholding the ZEO’s Cease and Desist.
Mr. Kotzan noted that Mr. Moll brought up many good points and he agreed that the work has not been done in accordance with the plans approved. He stated that the wording of the Cease and Desist may give the Tolchinski’s legal resource to challenge the Board’s decision. Mr. Kotzan explained that Ms. Brown can issue a new Cease and Desist Order with specific reference to the problems.
Chairman Stutts explained that on August 16, 2007, the Zoning Commission inspected the property and voted unanimously that the clean-up was acceptable and accepted the modified plan. She questioned how this could be if the dumpsters were not installed. Ms. Bartlett explained that the modified plan referred to was part of the settlement with the Town regarding the construction of the building.
A motion was made by Kip Kotzan and seconded by Richard Moll to uphold the Cease and Desist Order issued by the Zoning Enforcement Officer. Motion did not carry 1:4, with Mr. Moll voting in favor.
Mr. Moll stated that the Board of Appeals and the Zoning Commission spent endless hours reviewing and finally approving the site plan. He noted that even though there has been a Court Case and $18,000.00 had to be paid by the owner of the property. Mr. Moll stated that there are still flaws in the property. Chairman Stutts and Mr. Kotzan agreed there were still problems, but noted that they feel that a clearer Cease and Desist should be issued.
The Board took a one-minute recess at this time to retrieve the files for the other cases.
Reasons:
1. Cease and Desist was unclearly worded.
2. Cease and Desist named the septic system which is not in their jurisdiction.
3. Cease and Desist did not specifically name the drainage, which is the real issue.
Case 08-03 Dennis & Valerie Melluzzo, 7 Portland Avenue, Appeal
Chairman Stutts stated that the applicant’s were represented by Attorney Bennet. She explained that the Cease and Desist was issued by the ZEO for enlargement of an accessory building. Chairman Stutts stated that Attorney Bennet felt that the Cease and Desist should be reversed because the pre-existing, nonconforming accessory structure was not expanded in any fashion or changed in use; simply repaired and reconstructed on its existing footprint using new materials as necessary. She noted that Ms. Brown testified that a tent structure was erected in the driveway to contain the contents of the garage. Chairman Stutts stated that the permit issued for work was for roofing and siding. Chairman Stutts stated that there were changes to the windows and doors. She noted that it appears
to her that the roof may have been raised. She noted that the applicant was given ample time to give Ms. Brown more information as to whether the structure had increased in size and he didn’t provide it until this evening. Chairman Stutts stated that there was question as to whether there were cooking facilities, but that item is no longer in dispute.
Mr. Kotzan noted that the applicant acknowledged that he put all new framing in the building and there is doubt in his mind that the size did not increase. He noted that Attorney Bennet stated that the difference in sizes was one was measured from the inside and Ms. Brown measured from the outside. Mr. Kotzan stated that it is odd to him that in the old picture there is a walkway and a tree and the current pictures indicates that there is no room for the door that once existed. He indicated that when a permit is taken out for siding and windows it should not turn into reframing. Ms. Stutts pointed out that Ms. Brown gave Mr. Melluzzo plenty of time to bring in evidence to prove that the structure had not been increased in size.
Ms. Speirs pointed out that the size of the existing structure is larger than the dimensions on the Assessor’s Card. Mr. Moll questioned the monitoring system of the Town; questioning who monitors work when a permit is taken out. Mr. St. Germain noted that Ms. Brown received a complaint from a neighbor. It was noted that the Assessor’s Card indicates 399 square feet and the structure is currently 499. Ms. Bartlett noted that Attorney Bennet indicated that the 399 square foot dimension was measured by the Assessor from the inside. She noted that Ms. Brown asked the Assessor, Walter Kent, who indicated that the measurements on the Assessor’s Cards are taken from the outside of the structure.
Mr. Kotzan stated that the Melluzzo’s need to prove to the Board that they didn’t need a variance because the footprint was not expanded. He indicated that he does not believe that adequate evidence was presented.
A motion was made by Richard Moll, seconded by and voted unanimously to uphold the Cease and Desist Order dated August 17, 2007 to remove any and all structures and site work not previously approved.
Reasons:
1. Needs to be more information submitted to explain why the dimensions have changed.
2. Physical evidence from photographs does not prove there was no expansion.
Case 08-01 Paul & Amy Constantinou, 7 Haywagon Drive
Chairman Stutts reviewed the facts of the case. She noted that a variance was requested to construct a pool within 100’ of the PRCD Tract Boundary. She noted that a variance is required of Section 7.4, 96.4 provided, 100’ required. Chairman Stutts stated that the hardship provided was that the pool contractor built the pool 3’ 8” too close to the Planned Residential Cluster Development boundary and the structure, being a pool, cannot be partially moved. She noted that the pool was constructed a year and one-half ago and the owner was not able to get their final approval because the as-built drawing showed the discrepancy.
Chairman Stutts stated that two neighbors spoke in favor of the application, one of them noting that the lot was elevated and the pool cannot be seen from Old Beach Club Road. She pointed out that there is a woods buffer between the pool and the road and the other side of the property is completely open space.
Ms. Kotzan stated that a pool is a minimal structure and not a structure that has an imposition on a neighbor. Chairman Stutts pointed out that when they began digging for the pool they found it was a tree dump and so they then used blocks to reinforce. She noted that the owner is assuming that the contractor inadvertently put the pool a few feet over.
A motion was made by Kip Kotzan, seconded by Joseph St. Germain and voted unanimously to grant the necessary variances to construct a pool within 100’ of the PRCD tract boundary, as per the approved plans.
Reasons:
1. Neighbors had no objection.
2. Honest mistake that does not have an impact on the neighborhood.
3. Pool is low and not visible.
4. Proposal is within the intent of the Plan of Zoning.
Case 08-02 Harlan & Judith Chapman, 47 Johnnycake Hill Road
Chairman Stutts reviewed the facts of the case. She noted that a variance was requested to construct a covered porch, 16’ x 7’ x 13’ high. Chairman Stutts stated that the proposal does not comply with the front setback where 50’ is required and a variance of 7’ is required. She explained that the property is located in the R-40 Zone and is 47,785 square feet. Chairman Stutts noted that the existing house is 1,500 square feet with two bedrooms. She noted that the hardship provided is that they need protection from the elements when entering the house. Chairman Stutts stated that the property is located at the end of Johnnycake Hill Road and there are only two houses between them and the end of the street near the railroad. She explained that there is
no house across the street from their property.
Mr. St. Germain stated that the lot is unique, as it has enough area but is oddly shaped. He noted that the property is on a dead-end road. Mr. St. Germain stated that the landing is 6’ of the porch, which is a safe landing when the door opens out.
Mr. Moll noted that the property was purchased by the Chapman’s in 1996. Mr. Kotzan stated that his property is nearby and he is in favor of the application. He noted that the proposal is an improvement both architecturally and from a safety standpoint. Mr. Kotzan noted that the house is on a conforming lot and was constructed many years ago too close to the road. He noted that no one will be affected by the entryway. Mr. Moll noted that only part of the entry is in the setback.
A motion was made by Joseph St. Germain, seconded by Richard Moll and voted unanimously to grant the necessary variances to construct covered entry in front setback.
Reasons:
1. The lot is odd shaped and located on a dead end street.
2. Increases safety of the entry.
3. Proposal has no impact on the neighborhood.
4. Proposal is within the intent of the Plan of Zoning.
Case 08-04 Dan & Maria Eiler, Shawn & Paul Hartan, 27 Sea View Road
Chairman Stutts reviewed the facts of the case. She noted that the variance is required to demolish the existing seasonal dwelling and to construct a new seasonal dwelling. Chairman Stutts stated that the existing nonconformities are 5,874 square foot of lot area where 10,000 is required; minimum square provided is 50’, 75’ required; setback from street, 25’ required, 15’6” existing; 12’ side setback required, 3’1” on north side provided; maximum floor area, 25% allowed, 28.3% existing. She noted that variances are required for maximum floor area, 28.3% existing to 27.1% proposed.
Chairman Stutts noted that the existing house has three bedrooms and the new dwelling will have three bedrooms. She noted also that the Health Department has approved the plan, requiring a new septic system. Chairman Stutts stated that the hardship provided is that the present structure is beyond repair and the new house is centered on the lot to eliminate the side setback and front setback nonconformities and the maximum floor area has been reduced. Chairman Stutts stated that the house is located on a lot that is half the size that it should be.
Mr. Kotzan stated that this property is decrepit and not practical to upgrade as it is in a hurricane zone. Chairman Stutts stated that the architect noted that when one upgrades to current day standards, things like stairways take up useable living area. Mr. St. Germain questioned the alternative. He indicated that the lot dimensions are not going to change and the applicants are decreasing many nonconformities and are not increasing any. Mr. Kotzan stated that the other benefit is that the new house will be constructed to hurricane zone standards.
Mr. Kotzan noted that the house height is rising 1 foot. He also noted that no neighbors expressed opposition to the proposal.
Ms. Speirs questioned the coverage. Chairman Stutts noted that the coverage is under 20% and a variance is not required. She also noted that the coverage on the lot is being slightly reduced as result of the proposal.
Mr. Kotzan stated that a hardship exists when some one wants to do something reasonable on the property that is technically not allowed because of the Regulations. He indicated that he thinks this upgrade of the property does not violate the intent of the Regulations. He noted that the proposed structure will be less nonconforming that the existing structure.
Mr. Moll questioned whether FEMA was discussed as part of this application. Mr. St. Germain indicated that they only discussed the hurricane zone.
A motion was made by Kip Kotzan, seconded by Joseph St. Germain and voted unanimously to grant the necessary variances to demolish existing seasonal dwelling and to construct new seasonal dwelling
Reasons:
1. Side and front setback nonconformities have been eliminated.
2. Reduced floor area by 1.2 percent.
3. Considerable upgrade to the property.
4. Within the character of the neighborhood.
5. Within the intent of the Plan of Zoning.
ITEM 2: Case 07-33, 8 Duck River Lane - periodic follow-up
Mr. Moll noted that the Board granted a variance for this property and at the time he was emphatic that FEMA compliance be one of the conditions. He noted that this request is noted in the minutes. Mr. Moll stated that Kip Kotzan was against adding this because it was included on the Zoning Permit. He indicated that he asked Ms. Brown how FEMA requirements are met with the Town and she replied that her only part is reviewing the dollar amounts on the Building Permits. Mr. Moll stated that the Town does not have a concrete way to keep track of these costs.
Mr. Kotzan noted that this is the responsibility of the Building Permit. Mr. Moll stated that he would think that the Board would include FEMA requirements in conditions of approval. Mr. Kotzan noted that this would be similar to what they used to do with the septics and Mr. Rose asked them to stop putting septic conditions on variances. Mr. Moll stated that the Building Department should be monitoring it and they are not.
ITEM 3: Adjournment
The meeting adjourned at 5:27 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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