OLD LYME ZONING BOARD OF APPEALS
MINUTES OF REGULAR MEETING
Tuesday, September 9, 2008
The Old Lyme Zoning Board of Appeals held a Special meeting on Tuesday, September 9, 2008 at 7:30 p.m. at Memorial Town Hall. Members present were Susanne Stutts, Chairman, Judy McQuade, Kip Kotzan, Richard Moll, Joseph St. Germain (Alternate, seated) and Fran Sadowski (Alternate).
1. Public Hearing Case 08-20 Constance Holmes, 70 Columbus Avenue, variance to construct second floor addition, construct cover over front entry and enlarge sunroom.
Chairman Stutts noted that the application does not comply with Sections: 9.1.3, expansion of existing structure on a nonconforming lot and no enlargement of a building on a nonconforming lot; 8.8.6, maximum height 24’ allowed, 25’ 11” proposed for a variance of 1’ 11”; 4.3, tidal water protection, tidal river protection other than CT River, habital portion of house 32’ from tide line, deck and stairway 28’ from tide line, 50’ required; 8.8.7, minimum setback from street line, 19.4’ variance requested; 8.8.10, maximum floor area as a percent of lot area, 25% allowed.
Jeff Flower was present to represent the applicant. He explained that he too just received the denial from the Zoning Enforcement Officer this afternoon. He indicated that some of these variances are required as a result of the new changes in the Zoning Regulations adopted in March. Mr. Flower indicated that the Zoning Commission has already advertised a public hearing to correct the narrow street setback. He noted that historically private streets are not included and will not be again in the future. Mr. Flower stated that most of the homes in the beach are on flat lots and most do not have walkout basements. He explained that the basement is 6’1” height in the basement with a door to access the outside. Mr. Flower stated that under the new Regulations this basement
area is included in floor area because the basement is above ground and more than 6’ high ceilings.
Mr. Flower stated that the applicant is asking to put a new roof on the front and put a master bedroom on the second floor. Chairman Stutts noted that the property is located in the R-10 Zone and the lot contains 4,559 square feet.
Mr. Flower stated that the house has a hardship because Zoning has changed the Regulations to include area that is not part of the house and not usable. He noted that the basement, as it sits today, floods. Mr. Flower stated that the hot water heater in the basement sits up on a 6” wooden step because the basement floods several times a year. He noted that there is a tidal brook in the rear which puts another set of Regulations on it. Mr. Flower stated that the pitch of the roof could be lowered to meet the Regulations but it would be a 5/12 pitch and would not match the rest of the house or the neighborhood. He noted that there are only two homes in the area with walk-out basements.
Mr. Flower noted that the homeowner asked his neighbor if he would sell some of his land and the neighbor declined. He noted that the other abutting neighbors do not have additional land to sell. Mr. Flower stated that the house was constructed in 1952 and Ms. Holmes purchased it in 1991. He noted that the house currently has three bedrooms and one bath, with one closet in the entire house. Mr. Flower noted that in 1952 people came for a few days and didn’t need a lot of storage. He noted that his client spends half a year in Florida and half a year in Old Lyme and they use the property as a house, although it is seasonal.
Mr. Flower stated that they would like to enlarge the existing enclosed porch. Ms. McQuade questioned the current and proposed size of the enclosed porch. Mr. Flower stated that the first floor is currently 963 square feet and with the proposed addition it will be 999 square feet. He stated that the second floor is increasing 288 square feet. Mr. Flower stated that the current height is 18’10”, using the average grade; the proposed height is 25’ 10”, again, using the average grade. He noted that they could cut this back to 24’ by flattening the roof, but noted that it would not be a pleasing design.
Mr. Flower stated that because the front roof is increased in size, the setback is being decreased by 4 inches. He pointed out the front setback line on the site plan and noted how it relates to the second floor addition. Mr. Flower stated that it encroaches 6’8” into the 30’ narrow street setback. He reiterated that Zoning is changing the narrow street setback to exclude private roads, which would mean the setback was 25’ from the street and will be again shortly.
Mr. Flower stated that the entire basement is being included in the floor area ratio even though none of it would meet code as far as usable space. He noted that he did not include this area. Mr. Kotzan stated that the application states that the floor area is 28.8 percent without the basement area. Mr. Flower stated that they are increasing from 974 square feet to 1,350 square feet, which is an increase to 28.8 percent. He noted that this does not include the basement area. Mr. Flower stated that the applicant could go to Ms. Brown and get a permit to raise the first floor of their house and finish the basement area for floor area. Mr. Kotzan noted that the floor area is exceeding 25 percent, whether or not the basement is included.
Mr. Flower stated that the project is in keeping with the neighborhood. He explained that they are moving a bedroom from the first floor to the second floor and adding approximately 100 square feet of living space, as part of the new area is a staircase and a bathroom.
Mr. St. Germain questioned whether Mr. Flower was counting the Study as a bedroom. He replied that the Health Department calls it a bedroom, although the Building Department would not because it does not have a closet. Ms. McQuade pointed out that it appears that they are adding a closet to the study. Mr. Flower agreed and stated that they are stating that the property is 3 bedrooms today and will be 3 bedrooms after the project is complete.
Mr. Kotzan questioned how the height of the structure was determined. Mr. Flower replied that it was calculated using the average height around the structure. He noted that he has a number of letters from neighbors indicating their support of the application. Mr. Flower stated that the applicant also considered removing the structure entirely and rebuilding it on the same footprint. He explained that the reason for that was to raise the structure 6” to 1’ so that it would not flood. Mr. Flower stated that he would like the Board’s comments to that proposal also. He noted that that proposal would change the grades the same amount so the overall height of the structure would not change.
Mr. Flower stated that they would entertain a stipulation that prohibits the use of the basement as living space, as there is no intention on the part of the applicant to do that; he noted that the headroom is 72” maximum and any construction in the basement would not meet building code. Mr. Kotzan noted that the lot size is half of the minimum required and without including the basement, they are exceeding the maximum floor area for reasons that are not easy to justify. Mr. Flower stated that that is why they are requesting a variance, because none of these issues would be a problem if the house was 50 feet to the north. He noted that they would not have a walk-out basement in that case. Mr. Kotzan stated that the floor area is exceeded without including the basement. Mr. Flower noted
that it is only exceed 3.8 percent. Mr. Kotzan stated that they are expanding the sun porch and he does not see a justifiable hardship for that.
Chairman Stutts suggested that the Board may need more information on the septic repair. She noted that his letter indicates that repairs are required prior to approval. Mr. Flower stated that he and Mr. Rose discussed that prior to getting a building permit the septic system would be repaired. Mr. Moll stated that there were two pump-out slips in the file that did not appear to be current, as far as the timeframe indicated by Ordinance. He noted that the data on the slips indicates that the leaching area cannot be described. Mr. Moll stated that it does appear that something must be done with the septic system prior to the issuance of the building permit. Mr. Flower stated that there is no failure there and no requirement for his client to do anything today to continue to use the
house. Chairman Stutts stated that John Flower indicated to her that there are presently two cesspools and he was pleased that there was the possibility of getting a new septic system on the property. Ms. Holmes indicated that the system was pumped in 2007.
Ms. Holmes explained the flooding situation and presented pictures of the flooding. She noted that her basement floods once or twice a year. Mr. Moll questioned whether the property is located in the flood zone. Mr. Flower stated that according to the Town, this property is not located within the 100 year flood zone. Mr. Flower explained that if it were in the flood zone, all it would require is that they put all the mechanical equipment on the first floor.
Chairman Stutts read a letter signed by six neighbors indicating their support of the application. She noted that these people are direct abutters.
Mr. Flower pointed out that he only received the permit denial today, although it was filed 60 days ago.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
2. Public Hearing Case 08-21 Michel Gosselin, 123 Boston Post Road, variance to construct garage on existing foundation.
Michel Gosselin was present to explain his application. Chairman Stutts read the following for the record: Property is located in an R-20 zone, with 12, 915 square feet; property has a 90’ square where 100’ is required; existing house and shed located in the setback. She noted that the proposal does not comply with Sections 9.1.3, no building expansion on a nonconforming lot; 8.2.3, no buildings in setbacks; 8.8.8, minimum setback from rear, 35’ required, variance of 34’; 8.8.9, minimum setback from other property line, 20’ required, variance of 19’. Chairman Stutts stated that the hardship indicated is that there is currently no garage on the property but there is a foundation from where a garage had been in the past and the configuration of the property limits
the location of a garage.
Mr. Gosselin stated that he is not aware of when the garage was removed. He indicated that he purchased the property in 2001. Mr. Gosselin stated that in 2002 he came before the Board for a variance to raise his roof and construct a shed. He noted that this application was approved. Mr. Gossel explained that as part of that approval they required him to remove an existing shed from the property. He indicated that he did not understand that at the time but complied and removed the shed. Mr. Gosselin stated that most of the things that were in this shed are now stored outside. He indicated that it has been three years now since he removed the shed and his things remain outside.
Chairman Sutts explained that he was probably required to remove the existing shed because of the amount of coverage on the lot. She noted that the lot is undersized. Chairman Stutts stated that there is an existing garage foundation and questioned the size. She stated that it does not appear to scale properly on the drawing. She noted that the foundation is shown on the plan smaller than the structure he is planning to put on top of it. Mr. Gosselin stated that he has to construct a wall around the foundation.
Chairman Stutts agreed that a garage would be a practical item to have on the property but it should be a garage that is in proportion to the house and the lot size and should be located in an area that attempts to comply with the Regulations. She noted that the proposed garage is 1 foot from the property line. Mr. Gosselin indicated that the proposed location is the only location that will work. He indicated that the garage was existing in that location at one point in time.
Chairman Stutts stated that Mr. Gosselin is attempting to put a 20’ x 25’ garage on a foundation that is shown to be smaller than that. Ms. McQuade questioned if there is another shed on the property. Mr. Gosselin stated that there is and it is full. He presented a photograph of the shed and noted that he cannot even finish it because it is so full of things. Mr. Gosselin stated that the neighbor immediately next door has indicating that she has no problem with him constructing the garage. Chairman Stutts stated that the garage will be there long after he and his neighbor have moved on and the Board has to deal with the property, not the people. Mr. Moll stated that the elevation drawings are not consistent and do not appear to be accurate. He noted the deficiencies. Mr. St. Germain stated that one of the drawings shows a height of 23’ as opposed to the 19’ in height stated in the application. Mr. Gosselin stated that the garage will be 19’ high and he had a little
difficulty creating the drawings.
Mr. Kotzan explained that there has to be something unique about a property to justify granting a variance. He noted that this hardship of the property is the reason that Mr. Gosselin does not have to meet the Zoning Regulations when all others in Town do. Mr. Kotzan stated that there has to be a reason why this garage needs to be constructed right on the edge of the lot. He indicated that he does see the need for a garage. Mr. Gosselin stated that the lot is too small.
No one present spoke in favor of or against the application. Hearing no further comments Chairman Stutts called this Public hearing to a close.
3. Public Hearing Case 08-22 Kenneth Russell, 20 Ridgewood Road, variance to enlarge existing enclosed front porch.
Attorney John Bennet was present to represent Kenneth Russell. He explained that they applied for a variance in the early spring and there was confusing as to whether the amendment to the Regulations might allow the applicant to go before the Zoning Commission. Attorney Bennet stated that the Zoning Commission sent them back to the Zoning Board of Appeals.
Attorney Bennet stated that there are a number of photographs of the property in the file. He explained that the application is to expand the existing front porch to square it off across the house. He noted that the only variance required is for the maximum floor area. Attorney Bennet stated that they have received approval from the Health Department. He stated that the proposal is consistent with the other homes in the neighborhood and pointed out the house across the street in a photograph. He submitted additional photographs and noted the likeness of the proposal in many of them, noting the homes he is showing are on both sides of the street.
Attorney Bennet stated that a variance is required of Section 8.8.10, maximum floor area percentage. He noted that the floor area is increasing from 28 percent to 29 percent and the requirement is 25 percent. Mr. Kotzan stated that Ms. Brown indicates that the home is currently under the 25 percent maximum and is increasing to 26.4 percent. Chairman Stutts noted that the roofed portion of the stoop is already counted as floor area. She noted the only part counted as additional floor area is the part that currently does not have a roof over it. Attorney Bennet stated that the increase is 80 square feet. He noted that the abutting neighbor on the side where the addition is located has submitted a letter in favor of the proposal.
Attorney Bennet stated that the granting of a variance is a balancing act; a scale in some respects. He indicated that the side of the scale involving the community’s interest, property values, health, safety, welfare, consistency with the neighborhood has no negatives. Attorney Bennet stated that the property is long existing and developed in a fashion that is currently nonconforming. He stated that the adoption of later Zoning Regulations on this property, which is distinct and different, is a hardship on which a decision can be based. Attorney Bennet stated that there aren’t any negatives involved in this proposal.
Mr. Kotzan questioned how the existing enclosed porch is separated from the inside part of the house. Attorney Bennet stated that there is a wall and two French doors separating the sunroom from the house. He stated that squaring off the sunroom will not take away or change anyone’s view, nor will it change their perspective. Attorney Bennet stated the granting of this variance is a balancing act and noted that this will not affect the community negatively at all. He explained that the entire neighborhood was developed prior to Zoning and almost all the surrounding homes were developed in the fashion that the applicant is proposing. Attorney Bennet stated his client is asking to develop his property just as the surrounding homes have been developed and that in itself is a
hardship.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
4. Public Hearing Case 08-23 Dennis & Valerie Melluzzo, 7 Portland Avenue, variance to enlarge outbuilding.
Attorney Bennett was present to present Dennis & Valerie Melluzzo. Attorney Bennett stated that Mr. Melluzzo was repairing the deformed walls of the outbuilding that were leaning in and on pillars. He explained that these pillars were replaced with cinder blocks which caused the walls to be somewhat thicker than they previously had been. Attorney Bennett stated that there were no consistent measurements on record, but at most the variation was a matter of inches.
Attorney Bennett explained that due to the repairs which caused minor variations to the foot print, there is no impact on the neighbors and it would be unnecessary and wasteful to tear it down.
Chairman Stutts noted the variances being requested. Attorney Bennet stated that he disputes that the variances required are that large and noted that Ms. Brown made those calculations. He indicated that he feels the variances requested are mere inches.
Mr. Melluzzo stated that his neighbors wrote letters in favor for the Special Exception application to the Zoning Commission that was subsequently withdrawn.
No one present spoke in favor or against the application. Hearing no further comments, Chairman Stutts called this Public Hearing to a close.
5. Open Voting Session
Case 08-20 Constance Holmes, 70 Columbus Avenue
Chairman Stutts reviewed the facts of the case. Mr. Kotzan noted that the applicant has made the case that the Board should not consider the basement area. He noted that the note from Ms. Brown indicates that the exact basement area has not been defined. Mr. Kotzan noted that the floor area ratio is over the 25 percent allowed without calculating the basement area.
Chairman Stutts stated that the lot is very undersized. Mr. Kotzan stated that he would like to see the applicant keep the floor area under 25 percent. He noted that he can understand a 1’ height variance because of the slope on the lot. Mr. Kotzan stated that he can even overlook the basement square footage because the ceiling height is barely 6’ and the basement floods frequently. Ms. McQuade agreed.
Mr. Moll stated that he is concerned about the flooding and the fact that Mr. Flower indicated that it is not located in the flood zone. Mr. Kotzan stated that it is not up to the Board to enforce something that does not apply to the property. He noted that the property is not located in the flood zone.
Ms. McQuade stated that there is a legitimate hardship with the slope of the lot and the basement flooding. Mr. St. Germain stated that the sunroom increase is unnecessary. Ms. McQuade stated that the bedroom addition could possibly be scaled down to reduce the floor area ratio. Mr. Moll stated that the fact that the applicants will be replacing their septic system is a great improvement for the Town.
A motion was made by Kip Kotzan and seconded by Joseph St. Germain to grant the necessary variances to construct second floor addition, construct cover over front entry and enlarge sunroom as per the plans submitted. Motion did not carry, 0:5.
Reasons:
- Expansion too ambitious for such an undersized lot.
- Floor area ratio is a special concern.
- Not within the intent of the Plan of Zoning.
Case 08-21 Michel Gosselin, 123 Boston Post Road
Chairman Stutts reviewed the facts of the case. She noted that the hardship given was the fact that there is no garage on the property, just an existing foundation for one. Chairman Stutts stated that the neighbors did not object to the proposal. She noted that variances of 34’ and 19’ are being requested on the setbacks. Chairman Stutts stated that the applicant would like to construct the garage on the existing foundation on the property.
Chairman Stutts stated that the property is 12,915 square feet in an R-20 zone and all the setbacks on the property do limit the placement of structures. She stated that the size of the garage being requested is large for the property. Chairman Stutts noted that there are other, better options for placement of a garage on this property. Ms. Sadowski stated that the applicant appears to want a workshop and garage for storage. Ms. McQuade stated that it does appear that a smaller garage in a more conforming location would be more appropriate. Mr. Kotzan noted that one cannot have everything they want on a small, undersized lot.
Mr. Kotzan stated that a hardship exists for a garage, but the applicant is should consider a more reasonable size garage. Mr. Moll noted that the drawings are inadequate. Mr. Kotzan stated that the applicant should be asking for minimal variances and noted that the proposed garage is 1 foot from the property line.
A motion was made by Judy McQuade and seconded by Kip Kotzan to grant the necessary variances to construct a garage on an existing foundation, 123 Boston Post Road, Michel Gosselin, applicant, as per the approved plans. Motion did not carry, 5:0.
Reasons:
- Inadequate plans.
- Garage footprint is too large in relation to the size of the house and lot.
- Large variances being requested; not minimal variances.
- Other, more conforming locations exist for garage placement.
Case 08-22 Kenneth Russell, 20 Ridgewood Road
Chairman Stutts reviewed the facts of the case. She noted that a 3 foot variance is required for the other property line, a 4 foot variance for the street setback, and they are exceeding the maximum allowed floor area. Chairman Stutts pointed out that the lot is a little less than half of that which is required for the zone. She noted that the hardship provided was that this property is the only one in the surrounding area that does not have an enclosed porch across the entire front of their property. Mr. Kotzan noted that the application states that the area of the enclosed porch is already built upon and occupied by the steps and entry to the house. Mr. St. Germain stated that all the surrounding homes do have porches and he noticed that when he visited the property. Mr. Kotzan stated
that the applicant indicated that he would be willing to move the steps to the driveway side of the house. Ms. McQuade stated that steps are allowed in the setback.
Mr. Kotzan stated that the proposal is in harmony with the neighborhood. Ms. McQuade stated that the Board should consider the fact that the area is already built upon. She noted that the floor area ratio is the big concern in her mind. Mr. Kotzan stated that he would be in favor of this type of proposal if it had a safety aspect. Mr. Moll noted that the property is a seasonal home so ice/safety would be difficult to consider. Mr. Kotzan indicated that this is a difficult application because it is a minimal change on an area of the lot that is already covered, but it does increase the floor area. Mr. St. Germain stated that it does bring it into conformity with the other homes in the neighborhood and it is a minimal increase.
Chairman Stutts stated the Board is deciding whether a 1 percent increase over the floor area ratio is justified for a cosmetic improvement. Ms. McQuade stated that the Board has granted variances in the past for a minimal increase. Mr. Kotzan noted that the elevation drawings are not adequate.
Ms. McQuade stated that the house already has four bedrooms and a large deck. Mr. Kotzan suggested that there might be other possibilities, such as reconfiguring so that the additional area did not create additional floor area. Ms. McQuade agreed.
A motion was made by Kip Kotzan and seconded by Joseph St. Germain to grant the necessary variances to enlarge existing sunroom, 20 Ridgewood Road, Kenneth Russell, applicant, as per the plans submitted. Motion did not carry 3:2, with Chairman Stutts and Mr. Kotzan voting against.
Reasons:
- Inadequate elevation drawings.
- Increase in nonconformity on very undersized lot.
- Not within the intent of the plan of Zoning.
Mr. St. Germain and Mr. Moll indicated that his reason for approval was that it was a minimal change that would bring the house into harmony with the neighboring homes.
Case 08-23 Dennis & Valerie Melluzzo, 7 Portland Avenue
Chairman Stutts reviewed the facts of the case. She noted that the structure has been repaired with minor variations in the footprint. Chairman Stutts noted that there was no impact to the neighboring property owners. She noted that an A-2 survey was submitted which documents the lot for the future. Chairman Stutts stated that the applicant was before the Commission with an Appeal of a Cease and Desist Order and the Board upheld the ZEO. She noted that at that time there was not a clear indication as to the original size of the structure and it appeared that it did increase slightly.
Chairman Stutts reviewed the list of variances requested. Mr. Kotzan stated that the problem is that the Board cannot ascertain what exactly has changed. He indicated that although he does not want to encourage people to do work without the proper permits, but the applicant has indicated that he had to reconstruct in the manner that he did and he would recommend approval of this application. Ms. Sadowski stated that it is logical that it would increase slightly in the rebuild and she pointed out that the increase is very slight, inches here and there.
Mr. St. Germain stated that the granting of this variance would contradict their actions on other application. Chairman Stutts stated that Attorney Bennet asked the Board to look at the proposal as built, not that it has not been built. She noted that he indicated that there would be a huge waste of money and could be considered confiscatory. Mr. Kotzan stated that they are always supposed to approach a variance, even if already constructed, as if it has not been. Chairman Stutts stated that for the small amount of change the Board has to consider the financial aspect of having it taken down and ask what the Town would be gaining by that. Mr. St. Germain noted that the other problem in having them restore to the original size is that the original size is not 100 percent determined.
Chairman Stutts stated that when she visited the site she noted an old tree growing out of the foundation. She noted that this wall has obviously not been moved. Mr. Kotzan stated that it all comes down to the little expansion that occurred. He noted that he believes most of the increase would have been based on the need for additional structural support. Mr. Kotzan stated that this process probably resulted in a little increase in size. Ms. McQuade stated that she does not believe there was an intent to enlarge the outbuilding. Mr. St. Germain stated that they have granted other variances in instances when mistakes were made during construction.
Ms. McQuade noted that the application has been denied by the Health Department.
A motion was made by Kip Kotzan, seconded by Richard Moll and voted unanimously to grant the necessary variances to enlarge outbuilding, 7 Portland Avenue, Dennis & Valerie Melluzzo, applicants, with the following condition:
- Seasonal accessory building with no plumbing, only bunkhouse and storage area.
Reasons:
- Repairs made to existing seasonal accessory building on nonconforming lot has increased its nonconformity, however, due to conflicting figures in Town records, the Board was unable to determine the exact pre-existing dimensions. The expansion of the accessory building is not so great as to affect the harmony of the neighborhood nor does the expansion warrant the tearing down and reconstruction. Minimal expansion was the result of structural repairs.
6. Approval of Minutes of the July
No action taken.
7. Any New or Old Business
Chairman Stutts stated that they received a judgment in the Iovanna case. She noted that the Court ruled that the house does not have to be moved out of the narrow street setback.
8. Adjourn
A motion was made by Kip Kotzan, seconded by Richard Moll and voted unanimously to adjourn at 11:05 p.m.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
09/2008
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