APPROVED
OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
TUESDAY, May 13, 2008
The Old Lyme Zoning Board of Appeals met on Tuesday, May 13, 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, and Fran Sadowksi (Alternate), Judy McQuade, Richard Moll and Joe St. Germain (Alternate, seated).
Chairman Stutts called the meeting to order at 7:30 p.m.
ITEM 1: Public Hearing Case 08-12 Robert & Terry Swaney, 310 Breen Avenue, variance to construct a garage/office/storage building.
Michael Girard, professional engineer, was present to represent the applicants. He indicated that the proposal is to construct a small commercial building. Mr. Girard noted that they were before the Commission in February of this year and the application was denied at that time. He indicated that in their reapplication they addressed concerns of both the neighbors and the Board members. Mr. Girard stated that the Zoning Enforcement Officer suggested that he contact the adjacent owners. He indicated that he attempted to contact Mr. Donza three times and has not been successful.
Mr. Girard stated that he understood from the Board’s comments in February that they would allow something to be constructed on this site and should be allowed. He indicated that they heard all the Board member’s concerns about building size and ground coverage. Mr. Girard stated that he submitted a letter as part of the application that outlines these changes: reduction in building size from 36’ x 58’ to 34’ x 50’. Mr. Girard pointed out that 50 feet is the same dimension as the adjacent residential building. Mr. Girard stated that this building is wider then that same house. He noted that the proposed building is 1,700 square feet, reduced 18.6 percent from the original which was 2,100 square feet. Mr. Girard stated that in this reapplication
they had to comply with the new Zoning Regulations effective March 7, 2008, and in these Regulations corner lots must meet two street setbacks, a rear setback and a side setback. He noted that previously, a corner lot had one street setback and three side setbacks. Mr. Girard stated this has forced the applicant to re-orient the front of the building to North Road. He explained that if the front of the building were on Breen they would not be able to build on the lot and meet a front and rear setback.
Mr. Girard noted that parking has been reduced and he and Ann Brown both feel it is sufficient. He noted that one handicap parking space has been provided. Mr. Girard stated that the parking is for the people who will come to the site in the morning, take a truck from the garage, and return in the evening.
Mr. Girard stated that the setback required on North road is greater because of the provision for greater setbacks on narrow roads. He stated that this regulation requires the setback on North Road to be 47.5’ instead of 30’. Mr. Girard stated that they have provided 30’ and are requesting a variance of the 17.5’ difference. He noted that North Road cannot ever be widened without substantial penalty to the Swaney property and adjacent properties because the Town would have to purchase land from the railroad to make an equitable distribution or penalize the properties along North Road by taking their land or buying their land and making it more nonconforming. Mr. Girard stated that they have met the basic concept of Zoning by providing a 30’ setback on North Road.
He noted that the setback provided on Breen Avenue is 36’.
Mr. Girard noted that there is a 20’ setback required and provided for the parking spaces, but they are requesting a variance for the 20’ setback to the access aisle. He noted that there is not a commercial entity existing in the C-10 Zone on Route 156 that has a 20’ setback to the access aisles. Mr. Girard stated that there is a 10’ setback provided for the access aisle. He indicated that he feels they are meeting the intent of the Zoning Regulations in developing this site.
Mr. Girard stated that the lot is 9,583 square feet in a zone that requires 10,000 square feet. He noted that a 100’ square is required and there is an 82’ square provided. Mr. Girard stated that these items do not affect the intent of Zoning. Mr. Girard noted that they reduced the coverage on the lot from the previous application so a variance is not required. He indicated that the proposed coverage was 70 percent and now is 56 percent. He noted that 60 percent coverage is allowed.
Mr. Moll questioned whether the Board was reviewing the current drawing. He referenced a note in the file that asked that Sheet 1 be replaced with a more current drawing and he notes that there are no revisions shown on the plan. Mr. Girard stated that he did not put revisions on the drawings because he merely replaced a drawing that had not been reviewed. He noted that the only revision on the drawing was to show a handicap space. Mr. Girard signed the current plan and dated it May 13, 2008, so there would be no confusion as to which plan is the current plan.
Chairman Stutts noted that if the Zoning Board of Appeals approves the variances for this project the applicant will still need to go before the Zoning Commission. She noted that in this way there will be an engineering review and any radius problems, etc., will be corrected. Ms. McQuade questioned whether the Zoning Commission would require a buffer for the neighbor Mr. Danza. She indicated that a tree buffer on the rear and side would diminish the impact to the neighbors. Mr. Girard stated that he would be happy to plant a hedge of arborvitae along the two property lines to diminish the visual impact of the building. Chairman Stutts noted that it would also block the view of any trucks in the driveway. She indicated that a fence may be more appropriate. Mr. Girard indicated that
they are limited to a 6’ fence along the property line.
Mr. Moll questioned why the applicant is calling the front of the building the side that has the garage doors along North Road. Mr. Girard explained that if they use Breen Avenue as the front they would not be able to put a building on the property because of the required front and rear setbacks. He noted that using North Road as the front allows them almost the required rear setback and satisfied the side yard requirement.
Mr. Moll stated that the applicant noted in the application that this area was rezoned in 1991 from R-10 to C-10. He noted that probably 75 percent of the properties in the current C-10 zone are used residentially. Mr. Moll stated that the scale has been reduced from the previous application.
John McSweegan, 307 Old Colony Road Extension, stated that he has been a summer resident for the past 70 years and has seen most of the surrounding homes being constructed back in the 1940’s. He noted that North Road has always been a dirt path and never heard it referred to as North Road. Mr. McSweegan stated that he is directly behind the Swaney property and noted that it is a very tranquil area. He indicated that the commercial use will be noisy. Mr. McSweegan stated that there are only six buildings on Old Colony Road Extension and one can sit on their decks in the afternoon and relax, which is why they come down as summer residents. He indicated that putting up a commercial building will create noise and the traffic activity will increase. Mr. McSweegan stated that all the
cars that access this property will have to pass his home. He indicated that he feels this will be detrimental to him.
Mr. McSweegan stated that constructing this building right behind him will not be good for his property value. He noted that the only noise in the neighborhood now is the trains, which aren’t bad. He questioned the use of the commercial building. Mr. Girard stated that Mr. Swaney has a home-improvement contractor’s license and owns a backhoe and other small machinery which he would like to store in the new building, along with a small office from which to run his business when he retires. He explained that this would be a very tranquil use of the property.
Ms. McQuade noted that Mr. McSweegan indicated that the neighborhood was quiet. She questioned whether Route 156 created a lot of noise. Mr. McSweegan indicated that it is not bad, with the exception of the motorcycles and the music from the Pavilion. Mr. McSweegan indicated that they are living there now and because summer hasn’t started yet it is very quiet. He noted that North Road has always been a dirt path and in all these years he has not heard it referred to as North Road.
Thomas Donza, property owner at 309 Old Colony Extension, indicated that he is directly behind the subject property. He indicated that the concerns he expressed at the last meeting still exist. Mr. Donza stated that the proposed building is in the same location, although it is smaller. He noted that it is close to the property line where his septic tank is located and he does not want disruption to his septic system and leaching field. Mr. Donza stated that the noise level will increase and they don’t need to hear trucks all day in a residential neighborhood. Chairman Stutts pointed out that it is a commercial piece of property. Mr. Kotzan pointed out that the building meets the required setback along their common property line.
Mr. Donza stated that the height of the proposed garage is also of concern to him. He noted that it will be much taller than the homes in the neighborhood. Mr. Kotzan questioned the height of Mr. Donza’s house and noted that the proposal does not appear much taller. Ms. McQuade questioned whether a tree buffer would make a difference. Mr. Donza questioned the height of the trees. He noted that there would also be the question of who would maintain them. Ms. McQuade stated that Mr. Swaney would have to maintain any plantings on his property. She noted that Mr. Donza also has the ability to put trees on his property as well. Mr. Donza stated that no one wants a business in their back yard.
Mr. Kotzan stated that the Zoning Commission felt that this neighborhood should be commercial which is why it has a C-10 designation. He indicated that the applicant is before the Commission because the lot is nonconforming. Mr. Kotzan noted that the lot is only slightly undersized and they cannot deny a property owner all rights to use their property. Chairman Stutts indicated that this seems to be a quiet use for the property because the workers will come in the morning and take the trucks and return in the evening. She noted that there will not be traffic in and out all day long like many other businesses. Mr. St. Germain suggested a stipulation be put on any approval that access can only be from Breen Avenue.
Ms. McQuade noted that Mr. Donza could ask the Zoning Commission to limit the traffic access. Mr. Donza indicated that his other concern is who may occupy the building in the future. He thanked the Board members for the opportunity to speak.
Mr. Moll indicated that the Board is granting a variance for the construction of a building and they have no control what type of commercial business will be in it in the future. Ms. McQuade noted that there are only certain uses allowed in the C-10 zone and all future uses will be reviewed by the Zoning Commission.
Mr. Moll stated that the zone has had a predominant residential use, regardless of how it is zoned today. He stated that the Board has an overall responsibility to the other property owners and if this parcel is used commercially their property values will fall. Chairman Stutts noted that the property has been zoned commercially quite a while and anyone purchasing a nearby property would know that it was a commercial zone.
Attorney Patrell indicated that he is present to represent the interests of Mr. Donza. He noted that he was present at the February meeting at which time he tried to convince the Board not to grant the variance and presented the impact that that type of building would have on the neighborhood. Attorney Patrell stated that he heard this evening several times that the area is zoned commercial. He indicated that under Schedule B-1, permitted uses in industrial and commercial districts, the first item states those uses permitted in R-10, R-15, etc. zones. Attorney Patrell stated that the Zoning Commission did not state that the use has to be commercial in the Commercial District. Chairman Stutts agreed, but noted that commercial uses are obviously allowed. Attorney Patrell stated
that they can use the parcel residentially. He explained that he presented evidence at the last hearing in the form of a photograph board which shows new houses and renovated houses that are going in this area. Attorney Patrell indicated that the area is used more residentially then commercially.
Attorney Patrell stated that he did not hear a hardship presented tonight, which is the standard for granting a variance. Mr. Kotzan stated that a hardship is present if a reasonable use of the property is not feasible given strict interpretation of the regulations and the Board must decide if this is a reasonable use of the property. He noted that the applicant has scaled down the project and has tried to get a reasonable use of the property while minimizing the variances requested.
Mr. Moll questioned whether the variances requested are greater because the use is commercial and not residential. He questioned whether the setback requirements are the same. Chairman Stutts noted that the setbacks are different in a commercial zone, noting that there are setbacks that must be met for commercial parking. Attorney Patrell stated that the regulations require that it be in harmony with the purpose and intent of the regulations and it also mentions property values. He indicated that he does not believe granting a variance in this case will satisfy this. Attorney Patrell stated that if the only thing the property could be used for was a commercial venture then the argument the Board puts forth would be sound. Ms. McQuade stated that the lot is a commercial lot and the
property owner has the right to use it commercially. Attorney Patrell agreed, but noted that he does not have a right to use it without a variance. Chairman Stutts indicated that he needs a variance to construct anything on the property. Mr. Kotzan noted that he is not requesting a variance to use the lot commercially.
Mr. Kotzan indicated that the area is zoned commercially because it is right next to the train tracks and across the street from Hartford Avenue which is very loud. He noted that the Zoning Commission designated this an appropriate area for commercial uses which is part of his consideration when granting a variance. Mr. Kotzan noted that they are considering the residential neighbors which is why the Board denied the first variance request. He indicated that there has to be a compromise. Mr. Kotzan stated that when discussing noise, he cannot think of a noisier area of Town. Ms. McQuade agreed and noted that she does not think the back-up beepers of trucks could be any louder then the trains. She noted that the trucks are in and out, not backing up on site all day long.
Attorney Patrell questioned whether the applicant was requesting a variance of the landscaping regulations. Chairman Stutts indicated that they are not.
Chairman Stutts read the hardship provided on the application which indicated that meeting all the required setbacks would leave only a 10’ x 40’ area for a building.
Hearing no further comments, Chairman Stutts called the Public Hearing to a close.
ITEM 2: Open Voting Session
Case 08-12 Robert & Terry Swaney, 310 Breen Avenue
Chairman Stutts reviewed the facts of the case. She noted that in this second application to the Board they have reduced the size of the building and reduced the variances requested. She noted that the coverage requested was 70 percent and is now 56 percent which does not require a variance. She noted that there was no one present at the Public Hearing to speak in favor of the application and two direct neighbors spoke in opposition, noting noise, traffic and a decrease in their property values.
Mr. St. Germain stated that the parking area of four spaces would limit the use of the property. He noted that any other use would have to go before the Zoning Commission and a high-intensity use would not be supported with four parking spaces. Mr. St. Germain stated that the Board has to balance the commercial use with the neighboring residential uses. He indicated that the project has been reduced.
Mr. Kotzan stated that the Regulations being varied for this application do not go against the intent of Zoning. He indicated that the North Road narrow-street setback variance will not offend the intent of Zoning as it is an unimproved dirt road. Mr. Kotzan stated that he does not believe the commercial use of the property should be part of the Board’s consideration because they are not requesting a variance for a commercial use. Chairman Stutts agreed and noted that it is not up to the Board whether the lot is used residentially or commercially. Mr. Kotzan stated that the first application was an overuse of the property and the Board denied it. He noted that in this case he believes the applicant has limited the commercial use and the size of the building. Mr. Kotzan stated that
he believes this type of use is about as low-impact commercially as it could be. Mr. St. Germain agreed and noted that there are only two bays in the garage for vehicle storage. He noted that the property is zoned commercially and so the question is what kind of commercial use can be made of the property with as little impact as possible to the residences surrounding it. Mr. St. Germain stated that anyone purchasing a residence in the area should be aware it is a commercial zone. Mr. Kotzan stated that the Courts might consider it confiscatory if the Board denied a commercial use on the property.
Ms. McQuade stated that the reduction in size makes the project more compatible with the residential uses in the area. Chairman Stutts noted that the Board would not like to see parking of backhoes outside in the driveway. Ms. Bartlett suggested a condition of approval that there be no outside storage of material or vehicles. Mr. St. Germain questioned whether they could restrict the access to the property because the applicant has stated that they intend to use Breen Avenue for access. Ms. Bartlett noted that the Zoning Commission and their engineer will also be reviewing the site plan. Mr. Kotzan stated that Mr. Donza has the ability to put a fence on the corner of his property that ensures that it is an awkward turn.
Mr. St. Germain stated that the proposed use would have less of an impact than a doctor’s office or some other allowed commercial uses. Mr. Kotzan agreed and noted that the Town needs more commercial uses in Town. Mr. Moll stated that the Swaney’s purchased the property in 1977 and have owned when it was zoned residential and then commercial. He noted that the area has been residentially used for a long time and he is concerned about the impact that this project will have on the neighborhood. Mr. Moll stated that putting a commercial use next to a residence will devalue the residence. Mr. Kotzan noted that the Zoning Commission set the zone. Ms. McQuade stated that Shore Road is much more commercial then it was when she first moved to Town. She noted that many
residences were sold and became commercial uses and the people that sold the residences may have made a lot of money on them. Ms. McQuade stated that Mr. Moll has a great argument for not changing the zone to commercial, but the lot is already commercial and the Board must consider what the applicant has requested.
A motion was made by Kip Kotzan, seconded by Joseph St. Germain and voted to grant the necessary variances to construct a garage/office/storage building, 310 Breen Avenue, Robert & Terry Swaney, applicants, as per the approved plan and with the following conditions:
1. That there be no outside storage of equipment.
2. Through traffic of equipment is limited from North Road and Breen and not to Old Colony Extension.
3. Appropriate privacy screening along rear and sides of property, to the satisfactory of the Zoning Commission
Motion carried 4:0:1, with Mr. Moll abstaining.
Reasons:
1. Reasonable use of a small commercial property near residential area.
2. Garage faces the railroad tracks which reduces the impact on the neighborhood.
3. Within the intent of the Plan of Zoning.
Mr. Moll indicated that he abstained because he believes the Board has an overall responsibility to try to maintain the residential atmosphere, even though it is currently zoned commercial.
ITEM 3: Approval of Minutes
A motion was made by Richard Moll, seconded by Kip Kotzan and voted unanimously to approve the April 8, 2008 minutes as amended.
ITEM 4: Any new or old business
Mr. Moll noted that he will be away a good portion of the summer and he is concerned because there is a regular member that has not attended for a long time. He indicated that he wanted everyone to be aware that they may be short members. Chairman Stutts noted that the June Regular Meeting has quite a few cases. Mr. Moll indicated that he would be in Town for the June Meeting. He noted that all members should be sure to contact Chairman Stutts if they won’t be able to attend.
Mr. Moll stated that the property at 286 Shore Road has been graded over so he called the Zoning Enforcement Officer to get a status update. He noted that Ms. Brown indicated that the status has not changed. Mr. Moll stated that he is concerned that the tanks are not H20 rated but Mr. Rose was not present. He noted that the neighbor was concerned about the drainage and this issue has not been resolved yet. Mr. Moll stated that this project has dragged on for years.
ITEM 5: Adjournment
The meeting adjourned at 9:40 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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