APPROVED
OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
TUESDAY, June 10, 2008
The Old Lyme Zoning Board of Appeals met on Tuesday, June 10, 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 08-13 Michel Gosselin, 123 Boston Post Road, variance to construct a garage.
Chairman Stutts noted that neither Mr. Gosselin, nor a representative was present to explain the application. This hearing was tabled until later in the meeting.
ITEM 2: Public Hearing Case 08-14 Margaret Skau, 63 Shore Drive, variance to demolish existing dwelling and construct a new dwelling on a nonconforming lot.
Robert Chapman and Margaret Skau were present to explain the application. Mr. Chapman stated that the proposal is to relocate the existing 4 bedroom, two-story house to a conforming location. He noted that the house footprint will increase 2 feet on all sides and the second floor walls will be raised for additional headroom on the second floor. Mr. Chapman explained that the roof pitch will change, but the peak will not be any higher then it is currently. Ms. Skau stated that the house was constructed in the 1930’s or 1940’s. Mr. Chapman stated that the lot size is 6, 570 square feet where 10,000 is required. Chairman Stutts read the required variances; 8.8.5, maximum stories, 1.5 permitted, 2 proposed; 8.8.9 other property line, 3’ variance required; 8.8.10, floor
area, 25 percent allowed, 25.6 percent proposed; and 9.3.2, no nonconforming building or structure once altered to conform or more nearly conform shall be altered so as to be nonconforming or less nonconforming again.
Mr. Kotzan stated that the floor area of the new structure exceeds the 25 percent allowed. He questioned whether the applicant had to enlarge the footprint of the structure 2 feet all around. Mr. Chapman indicated that there is a small 6 by 8 shed that he could remove that would reduce the floor area to under 25 percent. Chairman Stutts pointed out that he is confusing floor area with coverage. She noted that the existing footprint is 32’-2” by 20’-2” and the proposed is 34’-2” by 22’-2”. Mr. Kotzan stated that even if the footprint were not changing, the increased slope of the roof is allowing additional floor area on the second floor. Mr. Chapman stated that the roof height is not increasing, but the slope is changing and the walls are
being brought up.
Mr. Chapman explained that the Zoning Regulations changed in March, mid-way through his design of this building. Mr. Kotzan questioned whether the dwelling currently has a foundation. Mr. Chapman replied that it does not have a foundation; that it now sits on concrete posts. He noted that the septic system has been approved.
Mr. St. Germain questioned whether the applicant would be willing to remove the shed to reduce coverage. Ms. Skau replied that if she was required to she would, but she does need the storage. Chairman Stutts noted that the permitted coverage is not exceeded. Ms. McQuade questioned whether they could reduce the footprint to the existing size. Mr. Chapman indicated that they could, but it would greatly reduce the size of the already narrow bedrooms on the second floor. Ms. McQuade stated that they are asking the Board to grant a variance for increased floor area and foundation size where there is no hardship to do so.
Mr. Kotzan agreed, and noted that they are requesting to expand the footprint on a seriously undersized lot. He indicated that he could see them asking for pretty much the same house and moving the location of it. Mr. Kotzan stated that he does not see a hardship to allow expansion of the footprint and the floor area as proposed. He stressed that the lot is extremely undersized.
Ms. Skau stated that the bedrooms are small, which is why she would like to raise the sidewalls, but lower the roof pitch. Mr. Kotzan noted that the foundation size does not need to increase to accomplish this. He also pointed out that they could reduce the number of bedrooms from 3 to 2 so that the bedroom sizes could be larger.
Caroline Leball, 35 Boughton Road, stated that she is in favor of them granting the variance to change the second floor, but acknowledged that they may not need to increase the foundation size.
Linda Roberts stated that she lives across the street and is not sure that she has any objections, but does have a few questions. She stated that the Zoning Officer told her that the house would be moving to the left which will obstruct her water view. Ms. Roberts stated that she is not sure that the applicants have proved a hardship. Ms. Skau stated that the house should not obstruct her view.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 3: Public Hearing Case 08-15 Richard Rothstein, 31 Boughton Road, variance to construct dwelling on a nonconforming lot.
George Blatchford was present to represent Mr. Rothstein. Chairman Stutts stated that the proposal does not comply with narrow street setback, 37’ required, 30’ proposed; setback from rear, 35’ required, 27’ proposed.
Mr. Blatchford stated that Attorney Rothstein is not present because his wife has MS and he cannot leave her in the evening. He explained that the Rothstein’s have owned the property for over 20 years. Mr. Blatchford stated that the lot was not conforming when they purchased it and they would now like to construct a house on the lot. He stated that he submitted photographs of the homes to the left and right of this lot and noted that the proposed home is smaller than the two homes shown in the photographs.
Chairman Stutts noted that the property is located in an R-20 Zone where 20,000 square feet is required and this lot is 7,207 square feet. Mr. Blatchford stated that they are proposing a walk-out basement with finished living area to meet the minimum floor area regulation. Mr. Moll stated that he read the deed supplied by the applicant and could not find a date on it. He noted that there is a requirement in the application that the assessor’s cards from 1960 to present are supplied. Mr. Blatchford stated that he was not required to provide the assessor’s cards because there is no dwelling on the property. Mr. Moll asked that Mr. Blatchford read the deed and tell him the date of it. Mr. Blatchford could not find a date on the deed but indicated that he is sure Attorney
Rothstein knows how long he has owned the property, which, as indicated earlier, is twenty years. Mr. Moll stated that the deed should be dated and he is concerned that all the pages of the deed have not been submitted. Mr. Blatchford stated that that is the deed provided by the Town and there are no more pages to it.
Chairman Stutts questioned whether Mr. Rothstein owns the property across the street from this lot also. Mr. Blatchford replied that he does. Ms. McQuade questioned whether the home he owns across the street is the one that is currently for sale. Mr. Blatchford replied that that is the home Mr. Rothstein currently owns.
Chairman Stutts questioned the hardship. Mr. Blatchford stated that the hardship is that Mr. Rothstein has owned it for twenty years and has always wished to build a house on the property. He noted that it would be in harmony of the neighborhood. Mr. Blatchford stated that everyone else has put a home on their property in the neighborhood. He indicated that Mr. Rothstein is not asking to do any more than anyone else in the neighborhood already has done.
Mr. Kotzan questioned whether Mr. Rothstein had considered purchasing the neighboring property to make a larger parcel. Mr. Blatchford replied that Mr. Rothstein had not asked the neighbor whether he was interested in selling his parcel. Mr. Kotzan stated that if the neighboring parcel were purchased it would make a larger lot, although still not conforming.
Ricky Humpage, 25 Boughton Road, stated that he is against this proposal for various reasons. He pointed out 25 Boughton Road on the plan. He explained that his property is 7,405 square feet and the homes constructed on these small lots were constructed prior to the 20,000 square foot minimum lot zoning. Mr. Humpage indicated that the 20,000 square foot lot size was instituted in order to protect the environment and to keep the ecology of the fresh water pond. He noted that he is concerned about the ecology of the pond and the fresh water supply. Mr. Humpage stated that he has the same concerns as the Zoning Commission. He noted that 31 Boughton Road currently has the well supply for the home across the street owned by Mr. Rothstein. Mr. Blatchford stated that he pulled two well
permits today.
Mr. Humpage stated that this lot has remained undeveloped for many years. He indicated that there is not a hardship to construct a home on this property. Mr. Humpage explained that another neighbor purchased the parcel next door so that he would have waterfront access. He noted that Mr. Rothstein has the same opportunity to keep this parcel as an access for his home across the street and keeping the parcels together. Mr. Humpage stated that he does not see a hardship.
Caroline Leball, 35 Boughton Road, stated that she abuts Mr. Rothstein’s property. She noted that when she purchased her property she was told that that property was not a building lot. Ms. Leball stated that Mr. Rothstein does not intend to live in the house he would construct, but rather to sell it to make money. She indicated that she has concerns about the septic system on that small parcel.
Mr. Humpage stated that Mr. Rothstein has no intention of occupying this property after it is constructed. He also noted that Mr. Rothstein’s house across the street has been unoccupied for many months and he has never resided there.
Mr. Moll questioned when the neighbor’s homes were constructed. Mr. Humpage stated that his home was constructed in the mid 1950’s. Ms. Leball stated that hers was also.
Jim Regan, 20 and 29 Boughton Road, stated that he is concerned about the parcel size. He indicated that he knows that his lot at 29 Boughton is unbuildable. He indicated that he purchased this parcel for access to the water for his home at 20 Boughton across the street. Mr. Regan stated that he is a plumber by trade and does not believe there is anyway to construct a septic system on this small lot without contaminating his well. He indicated that he does not care to install a new well. Mr. Kotzan stated that the Board has to defer to the Sanitarian on health issues. Mr. Blatchford stated that the system has been approved by the Town Sanitarian and he is aware of all the neighboring wells.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 4: Public Hearing Case 08-16 Joseph Sullo, 9 Sea Lane, variance to demolish existing dwelling and construct a new dwelling on a nonconforming lot.
Attorney Thomas McGarry was present to represent Mr. Joseph Sullo, who was also present. He noted that this is the second time around for this application and he has taken over the case from Attorney Jim Mattern who could not be present. Attorney McGarry introduced Denise Von Dassel from KB Design. He noted that the design was revised from the previous application. Mr. Moll questioned whether the architectural drawings have been revised. Attorney McGarry indicated that it is a revised drawing. Mr. Moll suggested that they be marked exhibits so that the drawings not be confused. Ms. McQuade noted that this is a new case and there are no old drawings in the file.
Ms. Von Dassel stated that the Town Assessor Records show the existing house larger then it actually is. She explained that after a lot of discussions over several months between the Health and Zoning Departments and it took several months to resolve the size issue. Ms. Von Dassel indicated that the existing house has many structural issues. She displayed photographs that depict the structural deficiencies. Ms. Von Dassel stated that the current house does not meet FEMA Code. She noted that for these reasons the applicant would like to replace the structure with a code-compliant structure. Ms. Von Dassel stated that the existing structure has low ceiling heights with no attic or basement storage. She explained that it is currently 4-5 bedrooms and one and one-half baths and two
full stories. Ms. Von Dassel stated that the building coverage is currently 24.2 percent. She explained that the proposal is to raise the structure up approximately 15 inches to meet FEMA Code for the first floor, give the structure standard ceiling height, and a smaller footprint within the existing footprint. She noted that the building coverage is being reduced from 24.2 to 20.6 percent and the floor area ratio is exactly the same at 28.8 percent. Ms. Von Dassel stated that they are proposing a full two stories and because of the need for storage, there is an attic with a pull-down stairs. She explained that the attic does not meet habitable code and will not have access or egress windows. Ms. Von Dassel stated that the headroom in the attic is 7’ 9”.
Ms. Von Dassel stated that the bedrooms are being reduced from 4-5 to three. Ms. McQuade questioned the height of the new structure. Ms. Von Dassel indicated that the height will be 34 feet.
Chairman Stutts read the variances required: 8.0(c); 9.3.2, no building once changed to be conforming can be altered to be less conforming; 8.8.5, maximum number of stories, 1.5 stories permitted, 2 proposed; 8.8.6, maximum height, 24’ allowed, 34.09 proposed; 8.8.8, minimum rear setback, 30’ required, variance of 11.5’; 8.8.9, minimum setback from other property line, 12’ required, variance of 4.3’ on west side and variance of 7.53 on east side; and 8.8.10, maximum floor area, 25% allowed, 28.8% proposed.
Mr. Sullo explained that their hardship is that the house was constructed in 1928. Chairman Stutts explained that they can make improvements to the house. She indicated that they must provide a hardship because they are tearing the house down and starting over. Mr. Sullo indicated that it does not make sense to fix the existing house. Chairman Stutts stated that she understands that, but they could reconstruct the same structure. She indicated that she would like a hardship as to why the structure should increase in size or height. Attorney McGarry stated that there is no way to make the structure more conforming on this lot with the imposition of FEMA Regulations and Building Code require that in order to rehabilitate the structure and to
make it safer and in conformity with both those codes the house must be torn down. He indicated that the hardship arises out of the existence of those two codes. Attorney McGarry stated that there is a case that supports this, Stillman versus Zoning Board of Appeals, where the situation imposed is outside the owner’s control. He explained that anything to be done to this property is outside of Mr. Sullo’s control because of FEMA and Building Codes. Chairman Stutts questioned this. Attorney McGarry stated that all that is proposed is a replacement of the existing footprint, actually a little smaller. He noted that they have also reduced the number of bedrooms.
Ms. Von Dossel noted that the house is 15 inches narrower. She pointed out that the roofline is very similar to the next door neighbor’s. Attorney McGarry stated that they did change the orientation of the roof pitch. Ms. Von Dassel stated that the existing roof line runs parallel with the water and they have turned it to match the neighbor’s roof line. She presented a photograph taken from the beach of the houses along it, with the new structure superimposed on the photograph.
Ms. MqQuade questioned the height of the homes on either side of the Sullo’s home. Ms. Von Dassel indicated that one is probably 29 or 30’. Attorney McGarry stated that this proposal was supposed to have been submitted before the Zoning Regulations changed in March, but it didn’t for reasons that Mr. Sullo had no control over. Mr. Sullo stated that he is currently in court and will have standing because the original denial was appealed to court.
Mr. Moll stated that when the case was first presented, the foundation of the case was the significant structural deficiencies in the building. He noted that it was presented this evening that both FEMA and Building Codes are driving the increase in height. Mr. Moll questioned the assessed value of the structure because he is looking at what the value of improvements is that is invoking FEMA. Ms. Von Dassel noted that the appraised value of the structure is $85,200.00.
Ms. Von Dassel stated that when Mr. Sullo first approached her on this project he wanted to knock down some walls and renovate the existing house. She explained that the structural issues identified early on surpassed the 50 percent value of the structure which brought about the FEMA Code issues and the decision to demolish and reconstruct. Mr. Sullo stated that the confusion in the Town with what was on the assessor’s card and the Health Department, they lost five or six month’s time.
No one present spoke in favor of or against the application.
Attorney McGarry stated that all the neighbors do support the project and they ask that the letters submitted in the prior application be considered by this Board. Ms. McQuade stated that she spoke with a neighbor today who was definitely in favor of the project. She indicated that it was the neighbor to the right.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 5: Public Hearing Case 08-17 Stephen Mortimer, 22 Sea View Road, Coastal Site Plan and Variance Application to construct a dwelling exceeding the R-10 height requirement of 24 feet.
Chairman Stutts stated that the applicant is requesting to construct a house exceeding the R-10 height requirement and the project also requires a Coastal Site Plan. She noted that the height variance requested is 2.5’.
Anthony Hendriks, Registered Professional Land Surveyor, and Craig Laliberte, Architect, were present to explain the proposal. Mr. Hendriks stated that the property has an existing structure which is shown on the site plan. He noted that his office has also prepared a septic system design for this property. Mr. Hendriks explained that the existing structure is grayed out on the site plan; he noted that this building will be removed. He stated that by replacing the structure they have the opportunity to bring the site into conformance with the setback requirements, coverage requirements and sanitary requirements. Mr. Hendriks explained the front setback is currently 9.25’ and it will be brought back to 32.5’ in compliance with the narrow road setback requirement. He indicated
that the property is in conformance with the coverage requirements. Mr. Hendriks stated that the reason they are before the Board is for the height.
Stephen Mortimer stated that the lot is significant sloped which makes it difficult to design a structure that will meet the height requirement. He noted too that they went under agreement to purchase back in December, when the height requirement was 35’. Mr. Mortimer stated that the architect began her design with that set of rules. He indicated that after they became aware of the change, the architect tried to design the structure in harmony with the lot and the height requirement.
Craig Laliberte, Architect, stated that they moved the proposed house back to a conforming location on the property. He noted that they are left with a 26’ strip of buildable area. Mr. Laliberte indicated that building down a 26’ strip they are crossing 6 or 7 two-foot contour lines and therefore having a great differential from the front to the back of the house of 14 feet. He explained that they found a spot where the differential between the front and rear of the house was lessened and they were able to get the average height down to 26.5 feet.
Mr. Laliberte stated that the basement of the existing house is approximately 50 percent set into ledge with some of the columns in great disrepair. He noted that the front elevation shows that the front sills of the structure are actually tucked into the grade and there is a significant amount of rot. Mr. Laliberte stated that to construct this dwelling in its existing location they would be adding to existing nonconformities rather than bringing existing nonconformities into conformity.
Mr. Laliberte stated that they plan to do some buffered landscaping down the sides along the foundation because of the difference of the foundation heights and they do not want too much of the foundation exposed. He stated that the existing house is set at a beginning first floor grade of 43.5’ and the new proposed house will be set at 41’. Mr. Laliberte noted that it will be set 2.5 feet lower than the existing finished floor, which helps a little bit with the height increase from the perspective of the neighbors across the street. He stated that the house is currently skewed on the lot which forms a larger frontage façade as the new house because the new house will be parallel to the property lines. Mr. Laliberte directed their attention to the photograph of the front elevation
will show that the water lines are not over the roof, but rather very low on the site. He stated that moving the house down on the lot also opens up the vistas to the long views which are out toward the Sound.
Mr. Hendriks stated that he would also like the Board to consider the Coastal Site Plan Application. He stated that he has become aware that the neighbors had some concerns with respect to viewing. Mr. Hendriks explained that he had his crew take some elevations, in particular for 19 and 21 Seaview Road the two homes directly across the street. He indicated that there are two viewing areas at 21 Seaview, one from a patio in front of the house and the other from an upper balcony. Mr. Hendriks stated that if one were to stand on the lower patio area, a 5’8” person would be able to see over the top of the proposed house and obviously, even more so from the balcony on the second floor. He noted that the ridge of the proposed house is at elevation 61.5 and the top of the balcony across
the street is at elevation 63.7. Mr. Hendriks stated that at 19 Seaview the lowest viewing area is at elevation 62.6 which does not include the differential for the height of the individual.
Ms. Stutts questioned whether it would obstruct the view from 23 Seaview which is a ranch house directly across the street. Mr. Hendriks stated that 21 Seaview is directly across the street. Mr. Laliberte pointed out 23 Seaview.
Mr. Kotzan questioned whether the applicant owned the large tree that is obstructing views. Mr. Mortimer stated that he does not believe he owns the tree but only some of the brush. Mr. Kotzan suggested that the Board could make a condition requiring all trees be removed/reduced to 6 feet in height.
Jim Weiss, 20 Seaview Road, stated that he is not necessarily in opposition to the proposal. He indicated that the homes were constructed in a staggered manner because of the narrow lots. Mr. Weiss indicated that he thinks it is great that the cottage is being rebuilt but has concerns because this house is now moving farther down the lot closer to his home. He pointed out that this house will be elevated above his. Mr. Mortimer stated that they will only be looking out toward the water from the second story. He noted that there is a small window in the bathroom on the side toward Mr. Weiss’ home. Mr. Hendriks noted that the houses will overlap four to five feet. Ms. Weiss stated that her concern is the buffer between the houses as there is currently arborvitae between the
properties. Mr. Mortimer indicated that they may have to remove the arborvitae during construction, but they will replace it with something similar that could grow tall. Ms. Weiss questioned whether the house has to be brought back as far as it is. Mr. Hendriks stated that they brought it back to the point that is the minimum to meet the front setback for a narrow road. Ms. Weiss stated that the project does reflect the flavor of the beach area.
Ake Chris, 21 Seaview Road, stated that he purchased this property three years ago, along with his wife and two children. He indicated that he was very concerned but the presentation has eased many of his concerns. Mr. Chris stated that Mr. Mortimer reached out to him this week and was very thoughtful in calling neighbors and presenting his plans. He questioned how much higher the new peak is relative to the existing peak. Mr. Hendriks replied that it will be 1.9 feet higher. Mr. Chris questioned whether things would change as construction occurs. Mr. St. Germain stated that if it is not built to plan there is legal recourse. Mr. Chris stated that he would like a copy of the drawing with the overlay so that he may show it to his wife. Mr. Laliberte indicated that he would
leave it with the Commission. This drawing was marked Exhibit A.
Mr. Chris stated that the house appears to be a little more narrow than the existing house and he questioned whether this is accurate. Mr. Laliberte stated that he struck a line parallel with Mr. Ake’s view from the street looking directly down the side. He explained that the existing house is 36 feet wide because of the way that it is skewed on the lot. He noted that the existing and proposed house are both 26’ feet wide but the proposed house is straight on the lot and will open up the view by 10 feet.
Mr. Chris stated that there was discussion about possibly removing the vegetation on the side of the house and questioned whether this could be put in writing. Mr. Kotzan stated that it could be made a condition of approval if agreeable by the Board. Ms. Weiss questioned whether they were talking about the arborvitae along her property boundary. Mr. Kotzan stated that they were discussing the trees on the other side of the property. Mr. Mortimer noted that he will replace the arborvitae with some other natural screen if they are removed. Mr. Chris stated that he would like to see a condition of approval be that the tall trees on the other side of the property be removed.
Mr. Chris asked Mr. Hendriks to repeat the information regarding the elevations he took today, along with receiving a copy of that information. Mr. Hendriks repeated the elevations taken and indicated that he only had rough notes, not a written report. He explained that the existing structure is 17.8 feet tall and the proposed building is 26.5 feet tall, again, measuring the four corner elevations and going up to the peak. Mr. Hendriks explained that these measurements bring the structure to elevation 61.5 for the peak of the new structure and 59.6 for the peak of the old structure. Mr. Kotzan noted that this is because the new structure is being constructed at a lower elevation. Mr. Hendriks stated that when he became aware of Mr. Chris’ concerns he took the elevations from his
existing patio and the second floor balcony. He explained that the patio is at elevation 54.9 and an average human eye height of 5’8” would be at or above the elevation of the peak of the new structure. Mr. Hendriks stated that one standing on the balcony of the second floor would be at elevation 70 at eye height, or 11’ above the peak of the new structure.
Chairman Stutts noted that the applicant did a very good job representing the elevation of the new structure.
Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
ITEM 6: Public Hearing Case 08-13 Michel Gosselin, 123 Boston Post Road, variance to construct a garage.
A motion was made by Mr. Moll, seconded by Judy McQuade and voted to continue the public hearing on this item. Motion carried 3:2, with Mr. Moll and Mr. St. Germain voting against.
Mr. Moll indicated that he would like to see pictures of the entire premises because it appears to be overbuilt
ITEM 7: Open Voting Session
Case 08-13 Michel Gosselin, 123 Boston Post Road
No action taken. The Public Hearing for this item has been continued to the July 8, 2008 Regular Meeting.
Case 08-14 Margaret Skau, 63 Shore Drive
Chairman Stutts reviewed the facts of the case. She noted that the planning of this project began before the Regulation change in March. She noted that the proposal requires variances for the number of stories, a 3’ variance for the side setback, and .6 percent variance for maximum floor area. Chairman Stutts indicated that the neighbor was very concerned about the well location. She noted that the property contains only 61 percent of the land area required for an R-10 Zone.
Mr. Kotzan noted that they are reducing the number of bedrooms from four to three, on a very undersized lot, but with the floor area ratio being exceeded and increased. Mr. Kotzan agreed that the new location of the structure reduces the nonconformities but also noted that the size of the structure has increased greatly.
Chairman Stutts stated that the first floor floor-area is 816 and to be a 1.5 story house they could only have half of that or 408 square feet on the second floor. She noted that this would be 1,224 square feet of living space and the proposal is 1,500. Mr. St. Germain stated that the house is a typical, nice summer cottage. Chairman Stutts agreed. She indicated that she has difficulty approving the additional height and the additional floor area. Mr. Kotzan agreed. Ms. McQuade pointed out that the peak is remaining the same, but the sidewalls are being increased and the roof pitch is changing. Mr. Kotzan stated that he is a little concerned about the increased bulk, but greatly concerned with increasing the floor area on a property that is so undersized.
Mr. Kotzan stated that the applicant indicated that the upstairs is crowded and he acknowledged that the second floor of capes typically are smaller. He indicated that there does not need to be three bedrooms if they would like to have larger rooms and more headroom in the bathroom.
Mr. Moll stated that the house currently is four bedrooms and he noted that they should consider the fact that they are reducing that number to three. He stated that the applicant is looking to expend a significant amount of money to improve this property and he questioned why the Board is adverse to allowing some one to construct a dwelling with fewer bedrooms. Mr. Kotzan stated that one of the larger issues is that they are increasing the floor area. He noted that the foundation is getting two feet bigger on every side.
Mr. St. Germain stated that he got the impression that the applicant was willing to redesign the project with the same size footprint.
Mr. Kotzan stated that the existing structure is 744 square feet on the first floor and 704 on the second floor, or 1,448. He noted that the proposed is 816 square feet on the first floor plus 758 square feet on the second floor. The Board agreed that this is an excessive increase.
A motion was made by Kip Kotzan and seconded by Joseph St. Germain to grant the necessary variances to demolish the existing dwelling and construct a new dwelling, Case 08-14 Margaret Skau, 63 Shore Drive, as per the approved plans. Motion did not carry, 0:5.
Reasons:
1. Expansion of footprint on an undersized lot
2. Exceeds floor area ratio.
3. No within the intent of the Plan of Zoning.
Case 08-15 Richard Rothstein, 31 Boughton Road
Chairman Stutts reviewed the facts of the case. She noted that the proposal is to construct a new dwelling on a nonconforming lot. Chairman Stutts stated that the proposal is for a year round home that is 34’ x 22’ and 22’ in height. She noted that the first floor is 700 square feet and the house will contain two bedrooms. Chairman Stutts noted that several neighbors were concerned about the proposal.
Chairman Stutts stated that the property is a little over 7,000 square feet in a zone that requires 20,000 square feet. She noted that Mr. Rothstein owns the property across the street and it looks like it would be the picnic area and the access for that property. Mr. Kotzan agreed and noted that the next door neighbor just purchased the abutting parcel for access from his home across the street. He indicated that he does not believe that not allowing construction on this lot would be confiscatory. Mr. Kotzan stated that there is a use for this lot as access to the pond.
Chairman Stutts noted that she viewed the property and assumed that it was one lot but later realized that there are two lots between the two existing homes and that this proposal is only half the area that exists between the homes.
Mr. St. Germain noted that Mr. Rothstein has owned the lot and the house across the street for twenty years and he has enjoyed it in its current state for that amount of time. He noted that he is now looking to construct on an obviously undersized lot and he is treating it now as two separate pieces of property. Mr. Kotzan stated that there has been a reasonable use of the property.
Chairman Stutts stated that constructing on this lot would not be within the intent of the Plan of Zoning. Ms. McQuade noted that the other homes built on similar sized lots were built back in the 1950’s. Mr. Kotzan noted that if they were to allow construction on this small lot, they would basically be allowing construction on the same size lot next door.
Chairman Stutts stated that the neighbors at 25 Boughton, 35 Boughton and 20/29 Boughton spoke against the proposal. She noted that there concerns were for the ecology of the pond, along with the effect on the wells and septics.
A motion was made by Kip Kotzan and seconded by Judy McQuade to grant the necessary variances to demolish the construct a dwelling on a nonconforming lot, Case 08-15, Richard Rothstein, 31 Boughton Road, as per the approved plans. Motion did not carry, 0:5.
Reasons:
1. Property is only one third of the required for the zone.
2. No effort made to purchase additional property.
3. Owner also owns property across the street and has use of this parcel.
4. Not within the intent of the Plan of Zoning.
Case 08-16 Joseph Sullo, 9 Sea Lane
Chairman Stutts stated that the applicant would like to demolish the existing dwelling and construct a new dwelling on a nonconforming lot. She noted that the property is located in an R-10 zone and contains 6,000 square feet where 10,000 square feet are required. Chairman Stutts stated that the maximum allowed height is 24’ and the proposal is 34.09’ for a variance of 10.09 feet; a variance for the rear setback of 11.5 feet; a variance for the west side property line of 4.3 feet and 7.53 feet on the east side; and the maximum floor area variance requested is 3.3 percent.
Chairman Stutts noted that there was a previous application approximately two years ago. She noted that the proposed height is 9.09 feet higher then the existing house. Chairman Stutts stated that the number of stories remains the same. She noted that the floor area has not been decreased but the footprint has been decreased by 3.6 percent. Ms. McQuade noted that the bedrooms are being reduced from 4/5 to 3.
Chairman Stutts stated that they asked that the letters from neighbors from the previous file be transferred, but they do not have the letters this evening. She noted the possibility that the neighbors may have also changed. Mr. Kotzan noted that no one came forward to oppose the proposal. Ms. McQuade stated that when she viewed the property a neighbor informed her that he was very much in favor of the proposal.
Mr. Kotzan noted that the floor area is exactly the same with a reduction in the footprint and the setback nonconformities have been alleviated in part. He indicated that the height is still a negative in his mind. Chairman Stutts stated that they have to think about the intent of the change in height in the Zoning Regulations. She noted that in Fairfield they are constructing homes 35’ high on 5,500 square foot lots. Chairman Stutts stated that this new Regulation is an effort to keep the beach area with the cottage look of the 1.5 story home. Ms. McQuade agreed. Mr. St. Germain stated that they have to balance that with the height of the surrounding homes. Chairman Stutts noted that this proposal is about 5 feet higher then the homes on either side. She noted that a
10’ height variance is large. Chairman Stutts stated that there does not seem to be an effort to work with the Regulations with this proposed height. She noted again that the lot is only about 6,000 square feet.
Mr. St. Germain stated that he footprint is being reduced which is a reduction in bulk, but the home will be higher. Mr. Kotzan noted that part of the increase in height is to meet FEMA Code. Chairman Stutts agreed, but noted only 1’ of the height increase is needed to meet FEMA Codes.
Chairman Stutts noted that many cottages have been rebuilt in keeping with the cottage feel. Mr. Kotzan stated that the height increase appears to be the problem as the rest of the project is either more compliant or equally compliant. Mr. Kotzan stated that the applicant indicated that his project was slowed because of inconsistency in the Town files and that had it not been for that he would have been in under the old Regulations. Chairman Stutts pointed out that they have had two years. She noted that the first case is currently in Court and they chose that rather than trying to change their plan. Chairman Stutts stated that there were options.
Mr. Moll questioned whether there is an appeal pending. Chairman Stutts indicated that the other appeal is still ongoing. Ms. McQuade indicated that they would be setting a precedent in approving this great an increase in the height. Mr. St. Germain stated that the beachfront people are trying to comply with FEMA and the Zoning Commission has created a dilemma for the Zoning Board of Appeals in reducing the allowed height. Ms. McQuade questioned whether they could construct a nice reconstructed home that is a little more conforming. Mr. Kotzan stated that perhaps they need a few feet for FEMA, but 10 feet is a little too much. Chairman Stutts noted that she can envision allowing a few extra feet in height for properties that need to meet the FEMA Code. Mr. Kotzan stated that he
believes the Board’s tradition of letting grandfathered things remain and perhaps bumping up a few feet to meet FEMA is good. He indicated that this proposal is actually adding an additional attic story. Mr. Kotzan stated that he believes allowing the height increase would violate the intent of the Regulation.
Chairman Stutts noted that the Board already made a decision on the height based on the old Regulations, as they were the Regulations in effect for the first application. Mr. Moll noted that there is merit in discussing the reasons behind the Board’s first decision. Mr. St. Germain stated that Attorney McGarry did discuss the old case during the hearing.
Chairman Stutts stated that the owner has the option of keeping the same house and gutting and reconstructing it. Mr. Moll noted that only if he does not exceed 50 percent of the value of the structure. Ms. McQuade pointed out that in that case, the height increase would only be 2 to 3 feet to meet FEMA requirements.
Mr. Kotzan stated that the process has been ongoing for two years, which is fairly unique and perhaps an approval would not set a precedent. He noted that there are several positive aspects of the proposal, with the height being the sticking point. Ms. McQuade stated that the Board denied the original proposal and one of the reasons was the proposed height. She noted that the Regulation allowed 35’ at that time and the Board still felt 34.09’ was too high. Mr. Kotzan noted that the footprint was also larger in that application.
Chairman Stutts stated the reasons the Board gave for denying the original application were that the height was excessive and the increase in floor area was excessive. She noted that the existing height of the structure is only 25’. Mr. Kotzan stated that the proposal addressed the Board’s issue on the floor area but not the height.
Mr. Kotzan stated that the Courts may have to decide whether the Regulation change during the process is an issue that should be considered. Chairman Stutts noted that there is a lot of room between 25’ and 34.09’. Mr. Kotzan agreed.
A motion was made by Kip Kotzan and seconded by Joseph St. Germain to grant the necessary variances to demolish the existing dwelling and construct a new dwelling, Case 08-16 Joseph Sullo, 9 Sea Lane, as per the approved plans.
Mr. Kotzan stated that there are many good aspects about this project, but he believes that the height increase is excessive. Ms. McQuade pointed out that the number of stories is increasing to 2.5 from 2, where only 1.5 stories is allowed. Chairman Stutts stated that the attic is not considered a story. Ms. McQuade noted that the proposed floor area is also over what the allowed floor area ratio. Mr. Kotzan noted that the floor area does not change between the existing and the proposed.
Chairman Stutts stated that FEMA is requiring a little increase in height, but the structure is being increased even more then that. She noted that FEMA is not the reason for the entire increase in height.
Motion did not carry, 0:5
Reasons:
1. Height is excessive to maintain the character of the beach.
2. Not within the intent of the new Regulations.
Case 08-17 Stephen Mortimer, 22 Sea View Road
Chairman Stutts reviewed the facts of the case. She noted that there was also a Coastal Site Plan application and no response was received from Office of Long Island Sound Programs. Chairman Stutts stated that the applicant requests variances to demolish and reconstruct their dwelling. She noted that the house has been reconfigured and the only variance needed is 2.5 feet for the height. Chairman Stutts noted that the applicant has done a great job in reconfiguring the house on the lot in a more conforming manner. She noted that the topography of the land is the hardship.
Chairman Stutts stated that there was concern expressed by property owners across the street that this new house would obstruct their view and there was much testimony from Tony Hendriks in this regard. She indicated that the Board should ask for a condition to replace the tree buffer of arborvitae between them and the neighbors if they are removed to construct the septic system. Chairman Stutts stated that it was also asked that the street plantings be such that they do not block the view of the water from the neighbor’s across the street.
Mr. Moll stated that the applicant did a great job in designing the house and he thinks that the neighbor’s views have actually increased.
A motion was made by Kip Kotzan and seconded by Judy McQuade to grant the necessary variances to demolish the existing dwelling and construct a new dwelling, Case 08-17 Stephen Mortimer, 22 Seaview Road, as per the approved plans, with the following conditions:
1. Arborvitae buffer be maintained or replaced if destroyed during construction.
The Board discussed whether to have a condition on the street plantings on the north side of the house be such that they do not obstruct views from across the street. Chairman Stutts stated that this could be handled on a neighborly basis. Ms. McQuade indicated that she does not believe that would be upheld in a Court. Chairman Stutts agreed and questioned how Zoning would enforce that. Mr. Kotzan agreed that that would be difficult to enforce.
Motion carried unanimously.
Reasons:
1. Footprint of the house is reduced to meet setbacks.
2. Does not obstruct views of neighbors.
3. Proposal is within keeping with the neighborhood.
4. Within the intent of the Plan of Zoning.
ITEM 8: Approval of Minutes
No action taken.
ITEM 9: Any new or old business
Mr. Moll stated that he was recently advised that after the ZBA makes a decision, the follow-up of that decision is the responsibility of staff. He stated displayed a photograph of 286 Shore Road taken on March 24, 2004 and then displayed a photograph taken May 22, 2008. He noted that he asked the Zoning Officer today the status and she indicated that the Attorneys are handling it. Mr. Moll stated that when the Cease and Desist was not upheld the ZEO issued a two page memo that listed seven items that needed to be done before she would sign off on the project.
Mr. Moll stated that the neighbor is concerned because the land is being raised. He indicated that he wanted to share this situation with the Board.
ITEM 10: Adjournment
The meeting adjourned at 10:59 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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