MINUTES OF THE ZONING BOARD OF APPEALS
REGULAR MEETING
February 10, 2009
NOTICE IS HEREBY GIVEN that the Zoning Board of Appeals of the Town of Old Lyme at its Regular Meeting that was held on Tuesday, February 10, 2009 at 7:30 p.m. at the Old Lyme Town Hall, Memorial Auditorium, 52 Lyme Street, heard and decided the following appeals:
The Chairman introduced the Board members who were seated for this evenings meeting.
Seated for this evenings meeting and voting were the following members: Susanne Stutts, Chairman, Kip Kotzan, Secretary, Richard Moll, Judy McQuade and Joseph St. Germain (Alternate)
Present: Kim Barrows, Clerk
Absent: Fran Sadowski (Alternate), Thomas Schellens and June Speirs (Alternate)
The meeting was then called to order at 7:30 p.m.
The following public hearings were conducted, as well as the voting session. The meeting has been recorded on tape and the following actions were taken:
CONTINUED PUBLIC HEARINGS:
Case 08-28 Theresa Genovese, 8 Seaside Lane
The applicant faxed a letter to the Zoning Board of Appeals asking to extend the public hearing until the March 10th Regular Meeting.
A Motion was made by S. Stutts, seconded by K. Kotzan, to continue the Public Hearing to March 10, 2009; the motion passed unanimously.
PUBLIC HEARINGS:
Case 09-02 Swan Management LLC, 73 Swan Avenue
The Chairman, S. Stutts stated that this was a variance to demolish an existing four family, 9 bedroom building and replace with a two family, five bedroom home. The Chairman then went over the sections of the zoning regulations that the proposal does not comply with. Section 5.5 (Permitted Uses), variance needed to allow a two-family house; Section 9.2.2 (Change), no nonconforming Use of land, buildings or other structures shall be changed to any other use which is different in nature and purpose from the former nonconforming use . . .; Section 9.3.2 (Change), No nonconforming building or other structure . . .if once altered to conform or to more nearly conform to the regulations shall thereafter be altered so as to be nonconforming or less conforming; Section 8.0.c (Yards and Coverage); Section 8.8.6
(Maximum height of building 24’ permitted), proposed 26 feet, a variance of 2 feet needed; Section 8.8.7 (Minimum setback from streetline 30’ since a “narrow street”), proposed 12’2”, a variance of 17’10” needed; Section 8.8.8 (Minimum setback from rear property line 30’), 7.8’ proposed, a variance of 22.2’ needed; Section 8.8.9 (Minimum setback from other property line 12’), 0’ proposed for north side staircase, a variance of 12’ needed; Section 8.8.10 (Maximum floor area as percent of lot area 25% (937.5 s.f.)), 72% proposed, a variance of 47% needed; Section 8.8.11 (Maximum lot coverage by buildings and structures as percent of lot area 25% (937.5 s.f.)), 36% proposed, a variance of 11% needed and Section 8.8.12 ( Maximum total lot coverage as percent of lot area 30% (1,125 s.f.)), 36% proposed, a variance of 11% is needed. If the patio is impervious, this variance will have to be
recalculated and increased.
Present: Jeffrey Flower, Architect and the applicant
The Chairman then asked Mr. Flower what the hardship is. Mr. Flower stated that the lot is a 3,750 s.f. lot with an existing house, it also has a pre-existing multi-family use on the property and violates every setback. So the hardship is two-fold, one, the client wants to renovate the house (R. Moll asked if this was a hardship?) and to do that the client needs to meet FEMA requirements since client plans to expend more than $40,000.00 on the new home. To meet current flood requirements the house needs to be raised up and therefore needs to be taken down and rebuilt. There are currently two cesspools on the property, one under the front door. These will be removed and a new septic system will be installed on the property. The hardship is a combination of both. His client wants a
reasonable use of his property. The issue of the height is in the fact that the house needs to be raised to meet flood regulations. Mr. Flower states that the house as it already exists violates all of the regulations and even though they are asking for 8 variances, the variances are already there. Chairman Stutts stated that this is a “teardown” and the applicant is starting from scratch and are trying to make it comply with zoning regulations. Discussion of septic issues on the lot. J. St. Germain brought up the term “demolition”. Under the regulations the word demolition is an abandonment of the use. Mr. Flower stated that that is why he is before the Board to do it that way. Chairman Stutts asked if the applicant is looking for “grandfathering” of all the existing nonconformities and the multi-use as well. Mr. Flower stated that they are improving on all of the existing setbacks
except for the height and cutting back from 4 units, 9 bedrooms to 2 units, 5 bedrooms. The second unit is an “in-law” apartment. R. Moll discussed “scale”. K. Kotzan asked about what if the Board denied this, what will happen to what exists. K. Kotzan stated that renovation is a worth while project. Mr. Flower stated that his client has a right to use his property. Other Board members discussed that the Board is not taking away the use, a nice cottage can be put on the property that meets most of the regulations. Discussion as to shape, bulk of the house. J. McQuade asked if the homeowner knew when he bought the house what shape it was in and how many families it accommodated. Discussion of Assessor cards going back to 2002 a 2-family; 1990 a 3 family; 1980 a 3 family; 1970 a 3 family. The ZEO states that zoning, health and building records do not show permits or the modifications to the
house over the years. The ZEO is unable to confirm the legitimacy of the status as a 4-family house. Assessor records do imply that the structure has been three units. Discussion as to the patio materials and ground coverage,
if pervious, they will not count. R. Moll stated that the Town is taking a more significant look at what is happening in the R-10 zone and having this size house with a required 10,000 s.f. lot and only having a lot size of 3,750 s.f.
Mr. Flower states that the applicant is making it better. Chairman Stutts went over viable hardships. Further discussion of renovation and if applicant renovates they can only meet a
certain percentage of the house value. Further discussion of septic repair and septic replacement. Under repair an applicant can go to the 50 foot line. Discussion of limit as to how much the Board can stretch by granting variances. K. Kotzan discussed if this wasn’t a teardown, would the Board be in favor of it. Discussion of teardown and the variances requested. Talk about shifting the “red line” on the plan. Mr. Flower talks about reconfiguring the house within the R-10 zone. There is currently a shed on the property and it will be removed. Discussion as to the shed showing up on the tax records. Further discussion of how many families. J. McQuade asked why the multi-family use. The applicant responded by stating that family
visits during the summer. Discussion of how many electric meters on the existing dwelling. Further discussion as to how many kitchens on the property, the applicant is cutting it back from 4 kitchens to 2 kitchens.
The Board then went over all of the dimensions of the bedrooms that are proposed. There will be four in the main house and one in the apartment. Again the Board went over the Assessor’s cards. Mr. Flower stated he is reducing the number of bedrooms from 9 to 5. He also stated that the house is definitely dated, there has not been any renovations made since at least the 1970’s. The applicant bought the property as a multi-family with the intent of making the house into his house. The applicant has shown the plans to the neighbors, and they seem to be happy with the proposal. The Board spent quite some time going over the plans and the floor area percentages and the inclusion of the deck in the percentages. The living space as it exists is 2,559 s.f. and the
proposed is 2,396 s.f.
There was lengthy discussion on the multifamily use and how the applicant wants to renovate the property for family use. Further discussion about leaving a wall up and not tearing the entire house down. Mr. Flower feels percentages are being reduced and the house will be brought up to health, building and FEMA code. The new home will be better for the Town and the neighborhood. R. Moll asked about the cesspools and if they will be outlawed. Mr. Flower said yes they will eventually be outlawed. J. McQuade stated that there should be a trade off. The applicant will still have reasonable use of the property if there is a small house with less bedrooms on such a small lot. Further discussion as to trade offs. Mr. Flower stated that the shed on the property is being removed
and not replaced to lessen the coverage. Storage will be incorporated into the design of the house.
Mr. Flower stated that the house will remain seasonal and current well shall be abandoned. The, in accordance with the health code, can never be a year round home. Mr. Flower discussed the term “repair” with the Board. Chairman Stutts asked Mr. Flower if the septic worked. Mr. Flower stated that the current system has not failed and the applicant did not have to replace the system. The applicant shall put in a new (repair) system but it will not conform to the setbacks.
The Chairman then opened the floor for comments from the audience either in favor or in opposition. There was no audience participation and no further Board comments. The public hearing closed.
VOTING SESSION:
Case 09-02 Swan Management LLC, 73 Swan Avenue
Chairman Stutts went over the variances requested since the proposal does not comply with the following Sections:
Section 5.5 (Permitted Uses), variance needed to allow a two-family house; Section 9.2.2 (Change), no nonconforming Use of land, buildings or other structures shall be changed to any other use which is different in nature and purpose from the former nonconforming use . . .; Section 9.3.2 (Change), No nonconforming building or other structure . . .if once altered to conform or to more nearly conform to the regulations shall thereafter be altered so as to be nonconforming or less conforming; Section 8.0.c (Yards and Coverage); Section 8.8.6 (Maximum height of building 24’ permitted), proposed 26 feet, a variance of 2 feet needed; Section 8.8.7 (Minimum setback from streetline 30’ since a “narrow street”), proposed 12’2”, a variance of 17’10” needed; Section 8.8.8
(Minimum setback from rear property line 30’), 7.8’ proposed, a variance of 22.2’ needed; Section 8.8.9 (Minimum setback from other property line 12’), 0’ proposed for north side staircase, a variance of 12’ needed; Section 8.8.10 (Maximum floor area as percent of lot area 25% (937.5 s.f.)), 72% proposed, a variance of 47% needed; Section 8.8.11 (Maximum lot coverage by buildings and structures as percent of lot area 25% (937.5 s.f.)), 36% proposed, a variance of 11% needed and Section 8.8.12 ( Maximum total lot coverage as percent of lot area 30% (1,125 s.f.)), 36% proposed, a variance of 11% is needed. If the patio is impervious, this variance will have to be recalculated and increased.
The Board went over all the evidence presented at the public hearing. After lengthy discussion the Board made the following motion.
A Motion was made by K. Kotzan, seconded by J. St. Germain, to GRANT the necessary variances to demolish an existing 4 family, 9 bedroom building and replace with a 2 family, 5 bedroom home as per plans submitted, marked Exhibit B received 1/13/09. Discussion: The Chairman asked each member what they would like to see, specifically, to make the plan a better fit to the property. R. Moll stated to reduce the density of the population in the house, reduce the number of bedrooms. K. Kotzan stated that in the balance of things this is a widely overstressed property but it will be less so if this is granted. K. Kotzan doesn’t feel that there is a bottomless supply of well intentioned and financially endowed people that will buy properties like this and do what we want to see
happen, this proposal is close. Discussion about keeping a wall up. S. Stutts looks at it like the Board is in a position to direct the way the Town develops. This is the charge and the Board needs to move in that direction. Discussion as to the direction of the Town. R. Moll states the Board needs to look at the impact of what is put on the land.
J. McQuade states the applicant wants to make the property nicer, but he can’t make it much nicer the way it is. The applicant can have a 1 ½ story house and can get reasonable use of property but he is trying to accommodate too many families. The Board does not have to approve such a large house on a small (3,750 s.f.) lot. There can be fewer bedrooms, does not have to be two families and remove the second kitchen. J. McQuade felt they were not taking away the use of the property. Discussion ensued with respect to the hardship. K. Kotzan said the hardship is the condition of the structure and that it needs to be brought up to code. No further discussion and a vote was taken: In favor: K. Kotzan, J. St. Germain Opposed: J. McQuade, R. Moll,
S. Stutts; the motion failed to pass. It was denied.
K. Kotzan voting to grant based on it’s a grandfathered use, proposal greatly reduced from what is there. J. St. Germain states the new septic protects the general health and welfare of the public. J. St. Germain stated the usage is reduced by 50%. R. Moll stated it failed to meet the intent of zoning. S. Stutts and J. McQuade felt it could be a 1 ½ story dwelling, no second kitchen, a total of 4 bedrooms and a smaller footprint. A two family house is excessive for the R-10 zone and the size of the lot, only a very minimal effort was made to comply with zoning regulations, the proposed building is twice the square footage allowed on the substandard lot and there is no hardship. It also does not meet the intent of zoning.
Approval of Minutes of the January 13, 2009 Regular Meeting
A Motion was made by S. Stutts, seconded by J. McQuade, to approve the minutes of the January 13, 2009 meeting; the motion was approved unanimously.
Old Business
R. Moll last month put on the table a point of information regarding a very unique deed on this piece of property with respect to 73 Swan Avenue. The 1916 deed had a stipulation that states who can and cannot own and do certain things with the property. R. Moll reconfirmed with the Board’s lawyer that the US Supreme Court basically indicated that any of those exclusions mentioned in the deeds are null and void. Anyone can own property.
New Business
R. Moll brought up the Land Use Seminar being held on Saturday, March 28, 2009. It is a yearly seminar that is very informative. Members should consider attending. If members would like to attend, please contact Kim Barrows as soon as possible.
J. St Germain discussed with the Board the proposed changes/clean up of the Zoning Regulations. Several items were discussed by the Board, but no recommendations have been made to the Zoning Commission.
Adjournment
A Motion was made by J. St. Germain, seconded by S. Stutts to adjourn the February 10, 2009 Regular Meeting; the motion was approved unanimously. The meeting adjourned at 9:45 p.m.
The next Regular Meeting of the ZBA will be on Tuesday, March 10, 2009 at 7:30 p.m. at the Memorial Auditorium, Town Hall, 52 Lyme Street, Old Lyme, CT.
Respectfully submitted,
Kim N. Barrows, Clerk
Old Lyme Zoning Board of Appeals
Old Lyme, Connecticut 06371 Old Lyme, Connecticut 06371
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