APPROVED
OLD LYME ZONING BOARD OF APPEALS
SPECIAL MEETING
THURSDAY, FEBRUARY 28, 2008
The Old Lyme Zoning Board of Appeals met on Thursday, February 28, 2008 at 7:30 p.m. at the Church of Christ the King Parish Center. Those present and voting were Susanne Stutts (Chairman), Kip Kotzan, Joseph St. Germain (Alternate seated for Tom Schellens), Judy McQuade, Richard Moll and Fran Sadowski (Alternate).
Chairman Stutts called the meeting to order at 7:30 p.m.
ITEM 1: Public Hearing Case 08-05 Michael & Lori Dolishny, 47 Brighton Road, variance to construct additions.
Attorney Bill Childress was present to represent Mr. & Mrs. Dolishny. He explained that the property is located in an R-10 zone and is slightly over 10,000 square feet in size. Chairman Stutts noted that the proposal is to construct two additions. She noted that the existing nonconformities are Section 21.3.7, minimum street setback, narrow street, 24.1’ existing, 50’ required; 21.3.9, minimum setback from other property line, 12’ required, 11.3 existing on the north side and 5.6’ on the west side; 21.3.10, maximum floor area as a percent of lot area, 25% allowed, 26.1 existing; maximum lot coverage as a percent of lot area, 25% allowed, 28% existing. Chairman Stutts stated that the proposal does not comply with Sections 8.8.1, no enlargement; 7.4, setbacks; 7.4.2
variance of 14.3’ required for the front setback, 21.3.7, minimum street setback, 14.3’ variance requested; floor coverage variance of 2.2 percent; and maximum lot coverage a variance of 3.3 percent.
Mr. Moll noted that this property was before the Board previously and he questioned whether the existing second floor detail was the same as the detail submitted for the January 2005 case. Mr. Dolishny stated that it is the same existing floor plan.
Attorney Childress stated that the 5.9 x 14.7’ addition, the first to the front of the house, is an open porch or portico off the front entrance. He noted it on the elevation drawing. Attorney Childress indicated that the second addition is 2’ x 6’ and is shown in the proposed first floor plan as a hatched section. He explained that this little addition brings the front of the house straight across. Attorney Childress did note that the 2’ x 6’ addition is a two-story addition. He indicated that the proposed dormer across the front of the house is entirely within the existing footprint. Attorney Childress stated that he would like to correct Ms. Brown’s description of the proposal. He indicated that she notes that the second floor addition is 4’2” x 6’ and as he noted earlier the addition is 2’ x 6’ two-story addition. Attorney Childress stated that Ms. Brown also makes reference to a second story balcony above the existing deck. He noted that the balcony already exists.
Mr. Dolishny indicated that Jerry Karpuska did not include the deck on the existing plan which is what created the confusion. Mr. Dolishny explained that the reason for the 2’ x 6’ addition is so that the front of the house is straight across and the dormers across the front are even. He noted that it would not work if the structure jogged in two feet.
Attorney Childress stated that the hardship was that the home was constructed on the lot prior to zoning and it is now nonconforming. Chairman Stutts noted that the house was constructed in the 1980’s. Attorney Childress stated that the narrow street setback was adopted in 1995. He noted that they are requesting variances for the street setback, coverage and the floor area ratios. Attorney Childress stated that they are increasing the building coverage by one percent and the floor area ratio is being increased 1.1 percent. He showed the Board photographs, noting that the proposed addition would not extend further toward the street than the existing homes already constructed on Brighton Road. Attorney Childress stated that there is a slope to the front of the house which creates a
shedding of water off to the front of the structure. He indicated that there are many letters of support from neighbors and one is from an architect who points out that the eave design will control the roof water shedding. Attorney Childress noted that this neighbor lives at 60 Brighton Road and is in favor of the proposal.
Attorney Childress stated that he believes they have solved the design problems with the home in a way that least offends the regulations. Mr. Dolishny stated that the biggest issue to the house is that there are two staircases to the second floor. He noted that there is a dedicated staircase to the masterbedroom on one side of the house and a staircase on the other side of the house that goes to the kids’ bedrooms. He indicated that they would like to eliminate one of the staircases and bring a hallway down so that all the bedrooms are on the same floor. Mr. Dolishny stated that they would all like to be on the same floor for safety. Mr. Moll asked that the bedrooms be numbered on the proposed floor plan.
Chairman Stutts stated that the coverage is something that the Board does not usually exceed. Attorney Childress indicated that he has explained the need for the 2’ x 6’ addition. He indicated that the front portico makes the house, although he recognizes that it intrudes into the narrow street setback. Attorney Childress pointed out that it is not any closer than the other homes. Chairman Stutts stated that she is concerned with the overall coverage of this house on this lot. She acknowledged that the house next door is sticking out much further than this home. She questioned whether they have looked at fixing the stair situation without the 2’ x 4’ bump out. Mr. Dolishny stated that the hallway is within the existing footprint. He pointed out the
dormers on the proposed floor plan. Mr. Dolishny indicated that they took into account the Board’s comments from 2005 and incorporated them into this plan. He explained that the previous plan had the second floor cantilevered over the first floor. Mr. Dolishny stated that they have tried to stay, as much as possible, within the existing footprint. He indicated that the covered entryway will keep the water off their heads. Mr. Dolishny noted that the 2005 plan had a porch that wrapped around the house and that was eliminated in this plan.
Mr. Dolishny noted that in many of the beach areas the houses are very close to one another. He noted that the homes on his street are not close together. Mr. Moll questioned the hardship as it relates to coverage and the floor area increase. He pointed out that they did address the hardship for violating the front setback. Mr. Moll stated that the photographs submitted don’t show the entire lot so that it is hard to get an idea of the amount of coverage on the lot. Attorney Childress noted that they do not have any photographs of the rear of the property; he indicated that they are not changing the back of the property at all. Jerry Karpuska stated that the pool is counted as coverage, which takes up quite a bit of the allowed coverage.
Mr. Moll noted that the existing structure violates the side setback and he believes that a variance is required. Chairman Stutts explained that nothing is changing on the side and the Board does not grant variances for nonconformities that already exist. Attorney Childress pointed out that the fourth variance listed addresses the fact that no additions are allowed on a nonconforming structure unless in a conforming location.
Mr. Moll stated that there is no height indicated on the elevation drawing. Mr. Karpuska noted that it is on the site data table, 28’ height proposed and existing. He indicated that it should be on the drawing too. Mr. Moll noted that the elevation drawings have no authorship on them. He noted that the site plan is signed and sealed by Tony Hendriks. Mr. Karpuska indicated that Ms. Brown accepted his plans. Attorney Childress indicated that they would add the height dimensions on the plan and have Mr. Karpuska sign the plan.
Attorney Childress read the following letters from neighbors in favor of the application: Paul & Christine Wysocki, 19 Brighton Road; Allison & David Williams, 3 Brighton Road; Sue Frost & Dan Wrenn, 22 Brighton Road; Brian & Cynthia Ritchie, 16 Brighton Road; Thomas Lesnick, 64 and 66 Brighton Road; Tom & Judy Beers, 25 Brighton Road; Linda Murphy, 21 Brighton Road; William L. Bill, 58 Brighton Road; Leonard Ionnotti, 11 Brighton Road; Ira Glassier, 56 Brighton Road; William J. O’Brien, 41 Brighton Road; Jane & Brian Fox, direct abutters; Marsha & Thomas Zipp, 49 Brighton Road; Jeffrey Sandman, 37 Brighton Road; and the Habichts, direct abutters. Chairman Stutts noted that there are 16 letters in favor of the proposal.
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 2: Public Hearing Case 08-07 Robert and Terry Swaney, 310 Breen Avenue, variance to demolish two existing structures and construct a garage/office/storage building.
Chairman Stutts stated that the proposed building is 58’ x 36’. She noted that the existing nonconformities are the lot area, 10,000 square feet required, 9,583 existing; minimum square, 100 feet required, 82 feet provided; minimum street setback, 30 feet required, north building is 7’ and the east building is 17’ from the street and both of these are to be removed as part of the project. Chairman Stutts indicated that variances are required of Sections: 8.9.3, no building on a nonconforming lot to be enlarged; setback from street, 30’ required, proposed is 12’ for a variance of 18’; 21.3.13, maximum total lot coverage as a percentage of lot area, 60 percent required, proposed is 70 percent for a variance of 10 percent; 31.3.16(e) landscaping 20’ wide grassed
strip of land required along street line; and 41.3.5, location of parking spaces and access aisles must be at least 20’ from street line.
Mike Girard, professional engineer, was present to represent Robert and Terry Swaney, in their application to construct the proposed building for a commercial use. He noted that the property is located in the C-10 zone. Mr. Girard stated that the hardship is that in this C-10 zone, most of the lots are nonconforming. He indicated that the zone was changed from an R-10 zone to a C-10 approximately 15 years ago. Mr. Girard stated that the buildings existed when the zone was changed. He indicated that the hardship is the fact that they are short a few hundred square feet in lot area and a viable, function commercial building cannot be constructed without seeking these variances. He indicated that if all C-10 requirements were met, they would be allowed to only construct a 10’ x 40’ or 400 square foot structure. Mr. Girard stated that this is the hardship.
Mr. Girard noted that the proposed building is 2,088 square feet, about the size of the average residential structure in today’s society. He noted that they are not asking for relief from the setback on Breen Avenue, they are asking for relief from the setback on North Road, which is a dirt road, with an unspecified width of right-of-way. Mr. Girard indicated that scaling it off the Assessor’s Map it is 20 feet wide. He stated that requiring a street setback from North Road further constrains the lot. Mr. Girard stated that another hardship is that they are cornered in between the railroad and this dirt roadway. He noted that over the years other homes have been built that are residential in scale, along with the police department at the end of the street. Mr. Girard stated
that they believe the structure is in a residential scale with a pitched roof on the building, and the look of a colonial house. He noted that they are under the height requirement by 4 feet.
Mr. Girard stated that the total lot coverage includes the parking and the building, which is why they are looking for 10 percent relief. He noted that the building itself is less than the building coverage allowed; the building is 26 percent coverage and 30 percent is allowed. Mr. Girard noted that the septic system has been approved by the Town Sanitarian. He explained that the neighbor to the south is Robert Swaney. He indicated that they have attempted to design a building that allows a commercial use of the property without impact to the neighboring properties. Mr. Girard stated that the two existing structures are approximately 1,000 square feet in area, one of them being a shed.
Mr. St. Germain questioned whether the applicant has considered combining his two lots. Mr. Girard indicated that it does not make economic sense and also the fact that the other lot is in a residential zone so a variance would still be required. Mr. St. Germain questioned whether North Road was a road or a right-of-way. Mr. Girard replied that it is not a road, it is a right-of-way, but one cannot tell that from looking at Town documents. He noted that it is shown as two lines on the Assessor’s Map. Mr. St. Germain questioned whether the Town owned North Road. Mr. Girard replied that the Town does own it. Mr. St. Germain indicated that Mr. Girard stated that it is a right-of-way. He indicated that he calls it North Road, existing dirt road. He indicated
that he used the wrong terminology if he called it a right-of-way. Mr. Girard stated that he took the information off the Town’s documents.
Mr. Girard stated that the proposed building will be used to store dump trucks and backhoes for his existing business. He explained that the overhead doors face the railroad. Mr. Girard stated that the neighbors will not be looking at the garage doors so the building will have a residential feel, with vinyl siding and asphalt shingles. He noted that the parking is based on the C-10 Zone requirements, which comes out to a total of six parking spots. Chairman Stutts indicated that the problem lies in the type of use that they would like. She noted that one could construct a smaller scale structure and meet the zoning requirements; she used the example of a small shop that sold knitting supplies. Chairman Stutts stated that the zoning regulations are not preventing this property from being
used as a commercial lot, but this may be an overly ambitious use for the lot.
Ms. McQuade questioned the use of the building. Mr. Girard stated that outside the building, the parking spaces are shown because they are required by the zoning regulations. He explained that there will keep backhoes and dump trucks inside the building. Mr. Girard stated that he would be happy to reduce the parking spaces to two if the Zoning Board of Appeals would allow that. He indicated that they don’t expect to use all the parking spaces. Mr. Girard stated that the office will be used to meet with clients and keep the company’s records.
Chairman Stutts questioned the need for two bathrooms. Mr. Girard explained that one is for the office space and the other is for the shop people downstairs. He noted that much of the second floor will be used for storage of parts. Mr. Girard stated that whatever happens on the lot in the future will have to come before the Board. Mr. Kotzan stated that there may be a less ambitious use that is still a reasonable use of the property. Mr. Girard stated that 2,000 square feet is not a lot of building, even in a residential zone. He noted that it looks big, but it is similar to a small ranch house. Mr. Girard stated that it is the size of the lot that makes the structure look big. Mr. Kotzan stated that they are going over maximum lot coverage for the zone. Mr. Girard
stated that they could get the coverage down by removing three parking spaces and he would be agreeable to that.
Mr. Moll questioned whether the applicant would have a problem with a restriction that indicated that there would be no commercial vehicles stored outside. Mr. Girard indicated that he does not have a problem with that because that is the Swaney’s intent. Mr. Moll stated that most of the existing structures in the area are used residentially, even though it is a commercial zone. Ms. McQuade questioned whether there would be outdoor lighting for night use. Mr. Girard stated that they have not designed outdoor lighting but they would need security lighting.
Mr. Moll questioned the use of the existing building. Mrs. Swaney indicated that it was a remnant shop in the past.
No one present spoke in favor of the application.
Attorney Salvatore Patrell was present to represent Thomas Donza, an abutting property owner. He pointed out Mr. Donza properties, noting that the address is 309 Old Colony Road. Attorney Patrell stated that the hardship expressed by the applicant was in terms of economic feasibility. He noted that an economic hardship can not be considered and is not an appropriate basis for a variance. Attorney Patrell indicated that they could propose a smaller building with less nonconformity and fewer variances required. He pointed out that they own adjacent property. Attorney Patrell stated that this area is predominantly residential. He noted that every property in that area that does not front on the Shore Road is residential. Attorney Patrell indicated that these residential homes
are being improved as residences, not commercial uses.
Attorney Patrell stated that the purpose of the zoning Regulations goes beyond health and welfare, and includes the stability of the neighborhood, the harmony of the neighborhood and keeping house prices stable. He noted that this project will not accomplish any one of those goals. Attorney Patrell stated that putting this structure next to residences will not increase the value of the homes. He indicated that the building will be used as a garage for a backhoe and a dump truck. Attorney Patrell pointed out that the variance will run with the land and the way it sounds there will be a garage there that can be used as a garage and there will be no control of it by the Town. He stated that this type of use would fit better into an Industrial Zone. Attorney Patrell questioned who among the
Board members would like this type of use next to their home.
Attorney Patrell stated that the lot is small for such a large building. He noted that the reason for the required parking spaces is because if the building is sold and the property is used for a retail store, there will be adequate off street parking. Attorney Patrell stated that North Road is currently 10 feet wide and it does not appear that the turning radius would be adequate for a backhoe on a trailer. Mr. Moll agreed and noted that looking at the site plan it does not seem possible to get a large truck into the garage.
Attorney Patrell stated that there is currently a “no parking” sign on North Road which means the Town has control over the road, it is a public right-of-way and people are able to travel back and forth. He noted that the proposed height is 26 feet and it does not seem large. Attorney Patrell pointed out that the surrounding homes are all one story, some a little higher, but 26’ will tower over the other properties.
Attorney Patrell displayed a board with photographs which depicted Mr. Donza’s perspective of the property. He explained that the Board can see how close the existing shed is to Mr. Donza’s property, and noted that the area where the shed is will be the middle of the proposed building. He pointed out how much closer the rest of the building will be. Attorney Patrell pointed out the view of the property to the right of Mr. Donza’s property. He asked the Board to consider what the neighbors will have to live with if the building is constructed. Attorney Patrell pointed out a photograph of the properties on the end of Breen Road and noted that there are no other commercial buildings. He pointed out that Mr. Swaney rents the home next to the proposed building and will not
be living there.
Attorney Patrell showed the elevation drawing and noted that it would be the view that Mr. Donza would have of the proposed structure. He indicated that the structure will be commercially used, not residentially used. Attorney Patrell noted that the septic system was designed for seven employees, four for the garage and three for the office, which differs from the representation of just one or two people working. He indicated that in a few years there could be seven employees because the variance runs with the land.
Attorney Patrell stated that there are ample reasons to deny the variance request. He noted that the Swaney’s want to make maximum use of their property. Attorney Patrell stated that he does not see how the Board could vary any of the buffer regulations in this situation. He noted that Mr. Girard stated that they did not want to build a structure that comes up and whacks you in the face; he noted that this proposal whacks Mr. Donza in the face. Attorney Patrell thanked the Board and asked that they deny the variance application.
Thomas Donza stated that the back of the building to his house would be approximately 40 feet. He indicated that he has concerns that the large building will affect his septic system. Mr. Donza stated that this structure is too large for the property. He noted that all the surrounding properties are small summer homes, with the exception of a few year round homes. He indicated that this would impact the value of his property.
Ann Romano, 305 Old Colony Road Extension, stated that she is concerned with the noise of the trucks. She noted that they currently deal with noise from the police station and the Town trucks that are parked there. Ms. Romano stated that the smell of the diesel is also a nuisance. She indicated that she uses her property to enjoy the peace and quiet.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 3: Open Voting Session
Case 08-05 Michael & Lori Dolishny, 47 Brighton Road
Chairman Stutts reviewed the facts of the case. She noted that one addition is 2’ x 6’, two-story, and 5.9’ x 14’ across the front. Chairman Stutts stated that the applicant was before the Board in January 2005 with a more elaborate proposal. She explained that they have reduced their variance request by approximately 1.3 percent on the floor area and .1 percent on the coverage. Chairman Stutts indicated that the hardship provided was that the house was constructed on a narrow lot before the narrow street setback was adopted. She noted that another hardship was a need for a hallway on the second floor for fire safety. Chairman Stutts stated that the front of the house is being brought straight across so that it is flat and more like a traditional house. She
noted that the floor area is over the amount allowed by 230 square feet and building coverage is over by 409 square feet.
Mr. Kotzan stated that he is not sure he can justify increases the building coverage, although he notes that the proposed home is much more appealing. He pointed out that the house is already 2,600 square feet. Mr. St. Germain noted that the Board’s job is to consider variances and he pointed out that 16 neighbors wrote that they reviewed the plans and are in favor of the proposal. Mr. Kotzan agreed, but noted that he is not sure that their proposal does not violate the intent of the floor area and building coverage regulations.
Ms. Sadowski stated that the house has a flaw where a master bedroom is separated from the others on the second floor. Mr. Kotzan pointed out that that could be handled internally. He noted that this may be the best solution for them, but certainly not the only solution. Ms. McQuade noted that if floor area is increased one percent to give on a safety issue, she could be convinced.
Ms. McQuade stated that the building coverage is increasing 409 square feet or a couple percent. She noted that the justification for the porch was to protect the front entry from rain. Mr. Kotzan questioned whether the applicant could come back without the bump-out. He questioned whether the shed could be removed. Ms. McQuade noted that the bump out is required to bring the house even across the front; she noted that it also was part of the solution to the two staircases.
Mr. Moll agreed with Mr. St. Germain that he does not believe he has ever heard so many people in support of a proposal. He indicated that they are dealing with the principle of percent coverage. Ms. McQuade noted that the lot is over 10,000 square feet, where often times they are discussing small lots. He noted that there is a pool and a deck, in addition to the house. Chairman Stutts pointed out that the lot coverage is figured by the actual size of the lot. Mr. Moll noted that the property was purchased in 2001 by the applicants so it is like they have lived in it 20 years and it needs to be upgraded.
Mr. Kotzan stated that the applicants have a reasonable use of the property without the additions. He indicated that a hardship exists when they are denied a reasonable use. Mr. Kotzan stated that he is hesitant to allow the additional coverage. Mr. Moll noted that coverage was an issue with the 2005 application. He noted that at that time the Board voted unanimously to deny the requested variances. Ms. McQuade noted that the variance application before the Board this evening has fewer variances. Chairman Stutts stated that they have redone the plan to reduce the number and quantity of variances required. Mr. St. Germain stated that it shows effort on their behalf. Mr. Kotzan noted that it is exceptional in the sense of the number of neighbors in favor of the
proposal.
Ms. McQuade stated that she believes this is a reasonable request to straighten out the stair situation internally. She indicated that it would not make sense to require the applicants to tear apart the inside of their home to accomplish the same. Mr. Kotzan stated that the portico out front is safety issue and the new hallway upstairs is also a safety issue. He noted that these two factors are unique, along with the fact that the neighbors are so enthusiastic about the project.
A motion was made by Kip Kotzan, seconded by Joseph St. Germain and voted unanimously to grant the necessary variances to construct additions, Case 08-05 Michael & Lori Dolishny, 47 Brighton Road, as per the approved plans.
Reasons:
1. Solves the fire safety issue internally by allowing a second floor hallway.
2. Solves drainage problem in the front of the property.
3. Proposal is within the intent of the Plan of Zoning.
4. Variance required is minimal.
5. 16 Neighbors were in favor of the proposal.
Case 08-07 Robert and Terry Swaney, 310 Breen Avenue
Chairman Stutts reviewed the facts of the case. She noted that the proposed building is 58’ x 36’ and 26 feet in height. Chairman Stutts stated that the current building on the property is 25’ x 18’. She explained that the property is in a C-10 Zone. Chairman Stutts stated that an 18’ variance is required for the front setback and a variance of 10 percent on the coverage. She noted that the proposed use is a garage/office/storage building and the garage portion would house dump trucks and back hoes for their business. Chairman Stutts pointed out that the garage access is from the railroad side of the property.
Chairman Stutts stated that she feels the building is too large for the lot. She stated that it is difficult sometimes to transition from a residential zone to a commercial zone but she feels this structure is too large for the lot. Mr. St. Germain noted that everyone on that street that tries to use their lot commercially will face the same problem. Chairman Stutts stated that they can use their lots commercially without proposing structures that are too big. Mr. St. Germain stated that he is speaking on the concept of this being a commercial area and used primarily residentially.
Ms. McQuade stated that the septic was designed for seven employees. She noted that if the office use was removed, they could cut down the size of the building. Mr. Kotzan stated that he has difficulty because it is a large building and the neighbor is opposed. Ms. McQuade noted that the variances required are quite large. Mr. Kotzan stated that the landowner certainly has rights; he noted that the lot is commercially zoned and is located right next to the railroad. He indicated that much of the variance is based on the fact that the structure is too large for the lot. Mr. Kotzan stated that the lot can be used commercially, but in a smaller scale.
Chairman Stutts noted that Attorney Patrell noted that economic hardships cannot be considered by the Board. She indicated that he also pointed out that the building could take on a different commercial use over time as the variance runs with the land.
Mr. Moll stated that it will be very difficult to maneuver a large truck or backhoe into the garage. He noted that this fact was pointed out by the opponent’s attorney. Mr. Moll expressed that it is his feeling that the lot is too small to fit the size of commercial structure proposed.
A motion was made by , and seconded by to grant the necessary variances to to demolish two existing structures and construct a garage/office/storage building, Case 08-07 Robert and Terry Swaney, 310 Breen Avenue. Motion did not carry, 0:5.
Reasons:
1. Proposed building is too large for lot size.
2. Expansion of a nonconformity.
3. Not within the intent of zoning.
Mr. St. Germain noted that the Board is not deny the commercial use of the property, just this specific request for a variance because the scale of the project is too great.
ITEM 4: Approval of Minutes
A motion was made by Kip Kotzan, seconded by Judy McQuade and voted unanimously to approve the January 8 and January 16, 2008 minutes as amended.
Mr. Moll indicated that he would like 65 Corsino Avenue on the agenda of the next Regular Meeting. He stated that this structure may be constructed different than the approved plan.
ITEM 5: Adjournment
The meeting adjourned at 10:37 p.m. on a motion by Richard Moll and seconded by Kip Kotzan. So voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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