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MINUTES OF THE ZONING BOARD OF APPEALS
REGULAR MEETING
September 8, 2009 continued to September 16, 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, September 8, 2009 at 7:30 p.m. at the Old Lyme Town Hall, Auditorium, 52 Lyme Street and continued to Wednesday, September 16, 2009, heard and decided the following appeals:
The Chairman of the Board, Susanne Stutts, opened the meeting and introduced the Board members who were seated for the meeting.
Seated for this evenings meeting and voting were the following members: Susanne Stutts, Chairman, Judy McQuade, Vice Chairman, Kip Kotzan, Secretary, Fran Sadowski (Alternate) and Joseph St. Germain (Alternate)
Present: Richard Moll and Kim Barrows, Clerk
Absent: June Speirs (Alternate)
The meeting was then called to order at 7:30 p.m.
S. Stutts stated that the first two hearings on the September 8, 2009 agenda will be heard then there will be a voting session after. The Board will be voting on dismissing the meeting at 11:00 p.m. this evening and scheduling a continued meeting for those items on the agenda the Board does not get to until Wednesday, September 16, 2009 at 7:30 p.m. in the auditorium.
A Motion was made by K. Kotzan, seconded by J. St. Germain to adjourn the Regular meeting at 11:00 p.m. and carry the cases not acted upon over until next Wednesday, September 16, 2009 at 7:30 p.m. at the Memorial Town Hall, 52 Lyme Street; a vote was taken and the motion passed unanimously 5-0-0.
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 09-12 John G. & Lorraine M. Gibson, 45 Connecticut Road
Present: Mr. & Mrs. John Gibson, applicants
Susanne Stutts stated that this was a variance to convert from seasonal to year-round use and read into the record the variances needed. This meeting was continued from the July 13, 2009 meeting due to only having a four member Board. The existing nonconformity is Section 8.8.7, minimum setback from the streetline, required is 25’, 21’ existing. The proposal does not comply with Section 9.3.1, enlargement/height. The hardship is that the house was built in 1956, the lot has 10,518 square feet and all other aspects of the dwelling conform except for the front porch that was original to the house sticks into the setback by 4’ in one location. Approval from the Health Department awaits hookup to the sewer plant being installed in Point O’ Woods. Applicants are looking for
year round status down the road when the sewers are hooked up and until hookup, the dwelling remains seasonal. Sewer hookup is anticipated to be in the Spring of 2010. The condition would be that year-round status wouldn’t be until the installation of water and sewers, and inspection of the property by the health/building department. The matter was held over to this month so that there could be a five member voting board. The Chairman then opened the floor for comments either in favor or opposed. There was no audience participation and the Chairman closed the public hearing.
Case 09-13 Thomas E. Lally, 54 Sea Spray Road
Present: Mr. Thomas Lally, applicant; A.J. Miller, contractor
Susanne Stutts stated that the proposal is to construct two porches, one on the north side of the house and the other on the south side. S. Stutts outlined the existing nonconformities, they are Section 8.8.5, maximum number of stories is one and a half, existing 2 stories and Section 8.8.7, minimum setback from streetline, required is 30’, existing is 10.5’. The proposal does not comply with Section 8.0.c, yard and lot coverage, Section 9.3.1, enlargement, Section 8.8.7, minimum setback from streetline (narrow street), 30’ required, 10.5’ existing (variance of 19.5’), Section 8.8.5, maximum number of stories, 1 ½ required, 2 stories existing and Section 8.8.10, maximum floor area as percent of lot area, 2,500 s.f. allowed, 2,549 proposed. This application was continued
from the July 13, 2009 meeting since the Board only had four voting members.
The applicant had presented new plans depicting the proposed porches and certain deletions to the plans were requested by the Board for items that were no longer on the plan. S. Stutts wanted to change the clarification of the porches on the Zoning Compliance form and the variance application to reflect that the porches would be “open” porches, no windows or siding. The shower is now depicted on the plan in the correct size (8’x5’4”) and the deck depicted on the original plan has been removed. Mr. Miller stated that they were originally requesting three variances but were able to eliminate two of them with slight modifications to the plans. The size of the upstairs dormer was changed to conform with the 1 ½ stories, not the original 2 stories and the deck was
removed off the rear. With those modifications, the applicant claims that eliminates Section 8.8.5 (max. number of stories) and 8.8.10 (max floor area as percent of lot) which allowed is 2,500 s.f. and the new floor area calculation is 1912 s.f. The new plan maintains the same number of bedrooms (4) and 1 ½ half baths. The Chairman then opened the floor for comments either in favor or opposed. There was no audience participation and the Chairman closed the public hearing.
For the record, K. Kotzan listened to the tape of the July 13, 2009 Regular Meeting and is eligible to vote on the continued cases.
VOTING SESSION
Case 09-10 Francisco J. & Mary Lee Pimentel, 85 Connecticut Road
Request for variances to demolish existing structure and replace with new single-family
dwelling on property located at 85 Connecticut Road with four bedrooms and year-round status. The proposal does not comply with the following Sections of the Old Lyme Zoning Regulations: Section 8.0.c (yard and lot coverage), Section 9.07 (voluntary demolition), Section 9.3.2 (change), Section 4.3 (tidal waters protection, tidal river protection, other than the Connecticut River), 43’ proposed, request a variance of 7’, Section 8.8.6 (maximum height of building or structure 24’), 28.3’ proposed, request a variance of 4.3’, Section 8.8.7 (minimum setback from streetline 25’), 14.4’ proposed, requesting a variance of 10.6’, Section 8.8.11 (maximum lot coverage by buildings and structures as percent of non-wetlands area 25%), 26.1% proposed, requesting a variance of
1.1% and Section 11.20.b.(1) (an application to construct a year-round use dwelling on a vacant lot in the R-10 zone shall be subject to the following application requirements and standards: The lot shall contain a minimum of 10,000 square feet and there shall be no more than one dwelling unit located on the lot;. . .). The lot size required is 10,000 s.f., but the property is only 9, 915 s.f. The height of the structure has increased by 4.3’ due to FEMA regulations and the position of the solar panels on the roof. The applicant has decreased the house from 2 stories to the required 1 ½ stories. Originally the street setback was 9.3 feet and that has now increased to 14.4’. This is an undersized lot and applicants are requesting year round status. J. St. Germain stated that the applicants have really worked to reduce the amount of variances needed. S. Stutts asked the Board how many year round houses do they want to approve
on substandard lots. J. McQuade stated that the applicants have come down on maximum floor area and coverage, but the height has increased due to FEMA and the pitch of the solar panels. J. McQuade also stated that the DEP gave a favorable report with respect to the wetlands and suggested that the applicants could add a vegetative buffer. K. Kotzan stated that in the past the Board has made considerations with respect to roof height for the solar panels. The hardship was the useable lot area that was reduced by the wetlands. The bedrooms were going from 3 to 4. J. St. Germain stated that there was no public comment at the public hearing last month regarding the solar panels, and if someone had an issue they would have objected to the Board.
A Motion was made by K. Kotzan, seconded by J. St. Germain to GRANT the necessary variances to build, as per plans submitted, the dwelling on Case 09-10 Francisco J. & Mary Lee Pimentel, 85 Connecticut Road; discussion: S. Stutts stated that there was a letter from Attorney Cronin requesting, to reiterated his statement made during the public hearing, an extension of 18 months to await the sewer hookup, then K. Kotzan asked the Board members if the DEP comment should be added regarding the vegetative buffer. The buffer condition was not added, but the motion was amended to add “to grant an extension of 18 months for the extenuating circumstances to allow the septic to be hooked up and the project to be done as intended.” J. St. Germain seconded the amendment to
the motion; a vote was taken and the motion passed unanimously 5-0-0.
Applicants have reduced many of the nonconformities, and the increase in height is justified with the FEMA requirements and solar panels.
Case 09-12 John G. & Lorraine M. Gibson, 45 Connecticut Road
Susanne Stutts stated that this was a variance to convert from seasonal to year round use and read into the record the variances needed. This meeting was continued from the July 13, 2009 meeting. The existing nonconformity is Section 8.8.7, minimum setback from the streetline, required is 25’, 21’ existing. The proposal does not comply with Section 9.3.1, enlargement/height. The hardship is that the house was built in 1956, the lot has 10,518 square feet and all other aspects of the dwelling conform except for the front porch that was original to the house sticks into the setback by 4’ in one location. The property will be incompliance with the health code when the sewers and water are hooked up. The hardship was that it was built prior to 1956 and is in compliance except
for a portion of the front porch which extends into the setback. K. Kotzan stated that even with the front porch encroachment, it will not change whether it is year round or seasonal. It is in harmony with the neighborhood and does not change the intent of zoning.
A Motion was made by J. McQuade, seconded by K. Kotzan to GRANT the variance needed for Case 09-12 John G. & Lorraine M. Gibson, 45 Connecticut Road to convert from seasonal to year-round; discussion: J. St. Germain stated should it be conditioned on the sewer and water hookup, the condition was not imposed but would not become year-round until the hookup; a vote was taken and the motion passed unanimously 5-0-0.
Case 09-13 Thomas E. Lally, 54 Sea Spray Road
Susanne Stutts stated that the proposal is to construct two open porches, one on the north side of the house and the other on the south side, 10 feet wide. S. Stutts outlined the existing nonconformities, Section 8.8.7, minimum setback from streetline, required is 30’, existing is 10.5’. The proposal does not comply with Section 8.0.c, yard and lot coverage, Section 9.3.1, enlargement, Section 8.8.7, minimum setback from streetline (narrow street), 30’ required, 10.5’ existing (variance of 19.5’) and Section 8.8.10, maximum floor area. The number of variances have been reduced due to modification of the original plans. The porches will be open, with railings and columns, no windows and siding. The floor area has been reduced to 1,912 s.f.
A Motion was made by J. St. Germain, seconded by K. Kotzan to GRANT the necessary variances, as shown on the revised plan, for two open porches on the north and south side on Case 09-13 Thomas E. Lally, 54 Sea Spray Road; a vote was taken and the motion passed unanimously 5-0-0.
K. Kotzan stated that the variances being granted do not thwart the intent of zoning for this property. S. Stutts stated that it is an ample property with a narrow street setback.
PUBLIC HEARINGS
Case 09-15 – Appeal, Gregory & Kim Massicotte, 14 Walnut Road
Present: Ann Brown, Zoning Enforcement Officer; Eric Knapp, counsel for the ZEO; Mr. Massicotte, applicant; John S. Bennet, Esquire, attorney for the applicants
S. Stutts outlined the procedure the Board would follow, first the Board would hear from the Ann Brown, the Zoning Enforcement Officer, then Attorney Bennet.
Ann Brown took the floor and stated that she is the Zoning and Wetlands Enforcement Officer for the Town of Old Lyme and was appointed January 2, 2002, her attorney Eric Knapp accompanied her this evening. A Cease and Desist Order was sent and she revoked a Zoning Permit which was issued for a pavilion building, an outdoor building at 14 Walnut Road (Point O’Woods). The ZBA granted variances for the building to be built in March of 2009, there were specific plans that were presented and there was discussion at the hearing about the impact of that building. The reason the variances were needed was that the lot was nonconforming, it is under sized. The pavilion itself met all the other bulk requirement, setbacks, coverage and use, but because the lot was nonconforming it required a variance to
add another building. After the building was under construction, the ZEO had a visit from an abutting neighbor who complained that the new building was not constructed in the location approved by the variance. The ZEO then went out to the property to measure and agreed it was not in the location originally approved by the Board. This appeal hearing was originally scheduled to open on July 10, 2009 and the ZEO could not be present at that time, she provide a letter to the Board outlining the reasons the permit was revoked (which letter is on file). The ZEO believed that the variance approval was very specific to the plans submitted and she believed the location of the building, as constructed, does not comply with the variance. It is not in the same location and the as-built, as presented by the applicant, clearly shows that. The ZEO believes that the Cease & Desist Order was issued properly and asks that the Board uphold it. The ZEO also
stated that the property owners have applied for the necessary variances to keep the pavilion in its existing location. The ZEO did ask that if new variances were granted to keep the existing structure in its as-built location, that the Board revoke and release the previous variances granted so that there is not a lot of confusion as to what was granted on the Land Records.
J. St. Germain asked if Ann Brown went out and measured, the ZEO stated yes, and an as-built plan has been submitted to reflect the new measurements. S. Stutts asked about the fire pit and why it was not on the original plans. The ZEO stated that the terrace area did not need a variance and was signed off on with just a Zoning Compliance Permit.
Attorney Bennet asked if he could speak, and stated that he does not have a whole lot to contest about what the ZEO said. The applicants submitted the appeal, and based on the time given the applicants weren’t sure what the situation was (with regard to the as-built survey), but submitted the appeal to preserve their rights. Once the appeal was filed, an as-built drawing was prepared and submitted with the application. J. Bennet presented a portion of the original map that was submitted with the original application and frankly his clients wanted to make sure that there were not going to be any nonconformities, and as Attorney Bennet pointed out, particular attention was paid to the sideyard setbacks. There was no measurement from the existing dwelling to the proposed pavilion and his
client didn’t think that was a critical dimension at the time of the application, and the minutes do not reflect any mention of that dimension. The ZEO pointed out that the as-built location is not the one depicted on the original plan. This one dimension does not create a nonconformity, all other aspects conform. The reason for the original variance was not because there was a specific dimensional difficulty with what was proposed, it was the nonconforming lot size. The reason the structure was moved forward was due to finding ledge when digging the footings for the posts. The pavilion was then slightly shifted. Attorney Bennet’s client did not believe there was any criticality to that separation distance and Attorney Bennet stated that he (Attorney Bennet) is not sure there is. The applicants agree that the pavilion is not in the same location as the original plans submitted. Attorney Bennet stated that, in the matter of
the Cease & Desist Order, it is not a dimension which is, in their view, zoning critical.
S. Stutts asked the Zoning Enforcement Officer, Ann Brown, who alerted her to the location of the pavilion. The ZEO stated that it was the neighbor next door who, when he returned from out of town, found the structure to be well into construction process in its current location and felt it was not the design originally presented to the Board. Ann Brown, the ZEO, stated that she did not see interior designs, just the actual pavilion structure design, not what was to be in the pavilion. S. Stutts stated that there was a message in the file stating that there were 5’ high counter walls on two sides of the structure. Attorney Bennet stated that the 5’ high counter walls are not part of the Cease & Desist Order, only the location. Attorney Bennet then went on to outline that the
counters are not 5’ high, they are “counter height” where food is prepared. Attorney Bennet then went on to outline all of the items used for cooking in the pavilion. Attorney Bennet stated that he was not privy to the original discussion and had not requested a transcript of the March meeting (but would gladly do so), but stated that all of those items were discussed by his client at the original hearing. Attorney Bennet stated that what is in the pavilion now is no different than having a gas grill placed under a pavilion.
The Chairman stated that public comment would be entertained when the new variance application was heard. There was no audience participation and the Chairman closed the public hearing. The Board at this time voted on whether or not to uphold the ZEO’s issuance of a Cease & Desist.
Voting Session
A Motion was made by K. Kotzan, seconded by J. St. Germain to UPHOLD the Zoning Enforcement Officers decision to issue a Cease & Desist Order re Gregory & Kim Massicotte, 14 Walnut Road dated June 17, 2009; discussion: K. Kotzan stated that it was built in a position that was not “as plans submitted” and when a neighbor now opposes the placement, when in fact he originally was in favor, the Board should take that into consideration. No further discussion and a vote was taken and the motion passed unanimously 5-0-0.
Case 09-16 Gregory & Kim Massicotte, 14 Walnut Road
Present: Mr. Massicotte, applicant; John S. Bennet, Esquire, attorney for the applicants
Attorney Bennet gave his presentation by reiterating what was presented in the appeal portion. In March of 2009, the Board granted variances for an open air pavilion that was going to be used for the purposes of outdoor barbequing and baking, and plans were submitted which are on file. At that time, Attorney Bennet submitted a map which was made part of the record. This map shows the location of the proposed pavilion, at that point unbuilt, which showed a 21’x20’ patio pavilion, the roof was to be essentially a square, hip roof, equal sides on four posts and indeed that is what has been constructed. During the construction process, the applicant found ledge in the exact area and in order to get the strength to support the posts, adjustments were made in the location of the pavilion in
order to sink the posts. Due to the ledge, the pavilion is closer to the dwelling than originally proposed. As shown on the as-built survey, the pavilion is 20’2” from the existing dwelling and rotated in a minor way resulting in approximately a 2’ gain in the sideyard on one side and approximately a foot on the other, making it somewhat more conforming. Attorney Bennet revisited the reason why the pavilion needed a variance in the first place, it was that the lot was nonconforming and that nothing that was proposed or built was nonconforming in any dimension. Attorney Bennet discussed that the regulations now provide under Section 9.2.3.1 that a Special Permit can be obtained from the Zoning Commission, provided there is no increase in nonconformity and no new nonconformities are created, this applies to lots in an R-10 zone which have a conforming septic system. This property is about to be hooked up to the new septic system in Point O’Woods. Attorney Bennet stated that if a
few more months elapsed, this matter would not be a case for the ZBA but for the Zoning Commission.
Attorney Bennet stated that the placement of the pavilion is a mistake, an unfortunate turn of events based on the site conditions, namely the ledge on the site. Attorney Bennet does not know the neighbors concern, but all neighbors were notified and there were several letters of support. The neighbor to the east has planted a row of trees along the border line and the applicants have also planted trees to ameliorate any impacts they may feel. Attorney Bennet believes that the difference in location, which is a matter of a few feet, is a diminimus impact and it is a little farther from the boundary line than originally proposed. It is not an enclosed structure, it does have counters along two sides for food preparation, those are fixed, but they were discussed at the original hearing. His
client stated that they had been discussed and planned all along.
Attorney Bennet submitted for the record pictures of the backyard depicting a shed/garage building with a green door that had been in a similar location in the backyard. That structure had been removed. Attorney Bennet went on to discuss the zoning perspective. Attorney Bennet showed pictures for the record of the counters that had been discussed by his clilents, there were pictures of the construction process and the trees that were planted along the boundary. Attorney Bennet showed pictures from east to west of the pavilion stating that there are no walls (all pictures are made a part of the file).
K. Kotzan stated that the blinds/shades change the look of the pavilion. Attorney Bennet stated that the applicant would gladly take them down, the blinds went up to ameliorate the concerns of the neighbor. F. Sadowski asked why, when the applicant hit the ledge, he did not come in and ask about changing the location. There was no understanding by Attorney Bennet’s client that the distance from the house to the pavilion was a critical dimension. J. McQuade asked the distance from the back of the fire pit to the playhouse/shed. Attorney Bennet stated that based on a 10 scale it is 46’ feet from the pavilion. Attorney Bennet stated that using the Chairman’s sketch it is 37’/38’ from the corner of the terrace to the nearest point on the playhouse, using her
lighthbox drawing (said drawing now becomes an exhibit).
The following letters were submitted into the record in support: Paul & Evelyn Wurdig of 9 Walnut Road, dated July 22, 2009; Bob & Mary Humpage, 15 Walnut Road dated July 5, 2009; Joseph P. Sopczneski, G.P. of SOJO Family Limited Partnership of 60 Connecticut Road, dated July 7, 2009; Fionna McCarthy of 11 Walnut Road, So. Lyme, dated July 11, 2009; Cynthia Hurst Callahan of 13 Walnut Road, dated July 10, 2009; Francis “Rip” Callahan of 12 Walnut Road, dated July 10, 2009; Joseph Ambrosia of 17 Walnut Road, no date.
The Chairman opened the floor for comments in support of the application first, then in opposition. Francis Callahan of 12 Walnut Road spoke in favor, he feels strongly that the Mazzicottes to keep the pavilion and enjoy it. Mary Humpage of 15 Walnut Road, in favor of keeping the pavilion and is distressed by neighbor dispute. Wayne Ashford of 32 Hillcrest Road, in support. Susan Bookman, is the Ordinance Commissioner at Point O’Woods Beach Association, she visited the Pavilion and it is beautiful, she stated that she was not here to speak in support. Ms. Bookman was there to speak to the Mazzicottes following the rules and ordinances of Point O’Woods. Speaking in opposition was Richard Burlingham of 16 Walnut Road, his home is the closest abutter to the pavilion and
he is a year-round resident. Mr. Burlingham submitted a picture of a “typical beach” pavilion. The construction of the pavilion is not just inches closer, it is feet closer. He also stated that he originally approved the first design but at that time, was concerned about air flow to his property and the clothesline. Mr. Burlingham feels that the new variance request is a self created hardship.
Attorney Bennet responds, Mr. Burlingham originally approved the pavilion but is now in a different frame of mind. Attorney Bennet stated that the trees were planted and the shades installed to ameliorate the neighbors concerns. It was never an open vista through the yard prior to the construction of the pavilion. The Board asked about the propane tanks. The applicants will encase the propane tanks, they were going to do it but the Cease & Desist was issued and work stopped on the construction. Attorney Bennet claims the applicant wants to finish the project tastefully. The hardship is the site condition and to take down and remove the pavilion would be an economic waste.
There were no further comments from the Board or from the audience and the public hearing was closed.
Case 09-17 – Appeal, On the Beach, LLC, Leonard J. Corto Jr., 88-90 Hartford
Avenue
S. Stutts stated that this is an appeal of ZEO’s issuance of a Cease & Desist Order dated
July 10, 2009 to cease all music other than “solo acoustic” without amplification and to
remove the platform on the beach.
Present: Attorney Barry Botticello, attorney for Mr. Corto; Ann Brown, Zoning
Enforcement Officer; Attorney Eric Knapp, ZEO’s attorney
Ann Brown, the Zoning and Wetlands Enforcement Officer who was appointed on January 2, 2002 issued the Cease & Desist Order which had two parts. The first was an order because of the music and the Cease & Desist stated it was not in compliance with the special exception that was issued. That was written in error because she does not believe there is a Special Exception on record, the files have been difficult to research on exactly the progression of liquor permits at that location and therefore she is withdrawing that portion of the Cease & Desist. S. Stutts asked about the music portion, the ZEO stated that it is hard to enforce without the special exception. The second part with respect to the deck was issued correctly and the deck, as of this date, has been removed, and will not be replaced. There are no other issues to go forward with tonight. Attorney Botticello stated the deck has been removed and will not be replaced until the proper permits have been taken out. The
Zoning Enforcement Officer stated that the soda machines are not part of this Cease & Desist and will be handled at a later date. Attorney Knapp stated that the ZEO is withdrawing the portion of the Cease & Desist with respect to the music and asks that Attorney Botticello withdraw the appeal with respect to the deck since it has been removed. Attorney Botticello agreed that is the correct procedure to follow. J. McQuade asked about the band, this will be a matter for the Liquor Control Commission. That is not a power the ZEO has with respect to the liquor permit.
The Cease & Desist Order dated July 10, 2009 re Case 09-17 Appeal, On the Beach LLC, Leonard J. Corto, Jr., 88-90 Hartford Avenue was WITHDRAWN by the Zoning Enforcement Officer. A Special Permit was never issued by a Commission for solo acoustic music.
Case 09-18 Robert D. & Mariann Fitch, 71 Hillcrest Road
S. Stutts stated that this is a request for variances to demolish existing one and a half story cottage and construct a new year-round, 3 bedroom cottage on an existing foundation with a “cape style” roof and dormer in the rear. An open air deck will be constructed in the rear.
Present: Attorney Michael E. Cronin, Jr., attorney for the applicants; Mr. & Mrs. Fitch, applicants; and Mr. Mark Thibodeau, the general contractor
Attorney Cronin gave a brief presentation. The property is in the Point O’Woods section of town at 71 Hillcrest Road. The requests for variances are to demolish the existing structure and construct basically the same structure on the existing foundation. The lot is nonconforming as to area, it is 6,000 square feet, which is typical in that area. There is 50 feet of frontage on Hillcrest Road and has a depth of 120 feet. The existing cottage has 3 bedrooms, the first floor has 754 s.q. and the second floor has 469 s.f. for a total area of 1,223 s.f. The proposal is to demolish the structure with the new first floor to have 701 s.f. and the second floor will be increased to 505 s.f. for a total of 1,206 s.f. This is approximately 17 s.f less than the existing structure.
Attorney Cronin went over the variances requested and stated that they are not asking for an increase in any existing nonconformity. Attorney Cronin refers to the plot plan, the cross hatch area on the front of the building and that was proposed to be a front porch area, the front porch is not proposed at this time.
Mr. Thibodeau gave a brief history of the cottage. It has been in the family since the late 1920’s early 1930’s. A new foundation was put beneath the cottage in August of 2008. The cottage was to be renovated but once renovations started, there was too much work to be done to bring it all up to code. It was discussed and then decided that it would be easier to demolish the cottage and start from scratch. The cottage has not been used for one year. The new plans have eliminated a “bump out” which eliminates square footage on the first floor, there will be 1’ overhangs on the roof. The increase in the second floor square footage is due to the dormers. Attorney Cronin stated that this is a modest proposal and the applicants are not asking for
anything more than already exists except for the dormers. The hardship is the 70 year plus age of the structure and the subsequent deterioration which has occurred, making the structure not worth saving. The proposal is in harmony with the neighborhood. The new house will be year-round once it is hooked up to the Point O’Woods sewer system and then will have year-round water. J. McQuade asked about extending the existing foundation to have a true 1 ½ story dwelling, applicants want to use the existing foundation.
The Chairman then opened the floor for comments in favor or in opposition. Ms. Susan Bookman, Oakwood Road, a sister to Mrs. Fitch, spoke in favor, she stated it is a small and reasonable request. There was no further audience participation and no further comments from the Board, the public hearing closed.
Case 09-19 Philip M. Salafia, Jr., 44 Flagler Avenue
S. Stutts stated that this is a request for variances to permit enclosure of existing porch and patio to allow additional habitable space to extend existing dormers over existing porch area to enlarge dining area and to enlarge existing hot tub room.
Present: Attorney Michael E. Cronin, Jr., agent for the applicant; Mr. Salafia, applicant and Mr. Shashank V. Kamat, Architect
Attorney Cronin gave a brief presentation. The house was built in 1972 and Mr. Salafia purchased the house in 1974. It is an existing 2 bedroom home at 44 Flagler Avenue. There is 112 feet of frontage and 90 feet in depth. The subdivision the house is in predates zoning. The required rear setback is 30’ but 20’8” exists and the applicant is looking for a variance of 9.2 feet. The lot is a conforming but the placement of the house on the lot creates the hardship. The new small additions to the rear are not encroaching any further than what already exists with the decks. The reason for the additions is to accommodate a larger family. One addition is for a dining room and the other is for a porch that will not be heated, this will make for a better floor
plan. The existing outside fireplace will be demolished. Mr. Kamat stated that the additions will not be extending any further into the setbacks. The additions will enhance the property. In 1993 variances were granted to allow the two deck extensions. This is only a modest two bedroom home. The Health Department approved the project with the installation of a new septic system. There was discussion as to conditioning the variance, if approved, by stating that the porch would be a three season porch, not heated and must have an exterior grade door.
Attorney Cronin stated that the only real variance request is for the rear and the hardship is the lot. The Health approval came in and a new septic system will be installed on the property. Attorney Cronin will talk to the Wetlands Officer regarding an application to the Wetlands Commission. Attorney Cronin believes that there are no wetlands on the property. K. Kotzan stated that the coverage will stay the same, which includes the decks. There will be no increase in the footprint. There was discussion as to the arborvitaes to the rear which are the neighbors. The neighbors will not see the additions.
The Chairman then opened the floor for comments in favor or in opposition. There was no audience participation and no further comments from the Board, the public hearing closed.
Case 09-20 – Christine Wysocki, 19 Brighton Road
Present: Mr.& Mrs. Wysocki, applicants
Mrs. Wysocki gave a presentation. There are wetlands to the rear of the property and the rear setback is 30’. Mrs. Wysocki stated that her grandson went to get his ball in the backyard and when he came back, he had an unsanitary item in his hand. It was at this time, she decided to take the initiative to clean up the wetlands on her property. Mrs. Wysocki went on to explain that the only way to reach the wetlands to the rear is to go over them, she can’t go around or she would have to trespass on her neighbors property. Mr. Wysocki, who is an engineer, found the pins for the property boundary and the bridge is definitely on the Wysocki property. The edge of the bridge almost abuts the stonewall which is the property boundary between the Wysocki property and White
Sands Beach Association. It is Mrs. Wysocki’s intention to remain on the bridge and clean the wetlands with a pole, not to enter White Sands Beach. She has no intention of trespassing on White Sands property. The Wysocki’s have lived at the property for 23 years and they want to protect and preserve the wetlands. J. St. Germain asked what purpose the bridge serves, Mrs. Wysocki states it helps her get to the other side to clean the wetlands. The Wysocki’s currently have an application before the Inland Wetlands Commission and a decision should be made on Thursday, September 22, 2009. Mrs. Wysocki presented pictures of the bridge and the condition of the wetlands as they are today. The Board discussed tennis balls coming over and landing on the Wysocki property. S. Stutts asked if since they lived there for 23 years, is this the first time they are finding debris. Mrs. Wysocki stated that the area was full of
brambles and weeds. S. Stutts stated couldn’t they have installed stepping stones into the wetlands, Mrs. Wysocki stated no, it wouldn’t work when the water rises and the stones get slippery. Mrs. Wysocki stated you do not need a permit for a fence and the bridge is like two fences. Mr. Wysocki stated that it is access to the other side (of the wetlands) to clean it up and it is aesthetically pleasing. Anyone can use the bridge, they are willing to share. The bridge was built in March of 2009 and placed in its present location due to the mature trees on the property. There was discussion as to the stonewall and the stonewall is partially on the Wysocki property and the bridge doesn’t directly abut the stonewall, there is at least a step down before the stonewall. K. Kotzan asked what is the difference between the bridge and a fence, the bridge is totally in the setback and one runs perpendicular and the other parallel. S. Stutts
stated that there are other ways to get to the other side rather than building a bridge.
The following letters in support were entered into the record in favor: Anthony and Patricia Lynch formerly of 5 Meriden Road dated August 7, 2009; Alison & David Williams of 3 Brighton Road, dated August 15, 2009; Tracy & Jeff Moore of 2 Brighton Road dated August 18, 2009; Lynda Murphy of 21 Brighton Road, no date; Mr. & Mrs. Brian Ritchie of 16 Brighton Road dated August 1, 2009; Francis Haymann of 15 Brighton Road, no date; Helen & Robert Sullivan dated July 30, 2009; Jeannette C. Speirs of 3 Brighton Road, no date; Amanda Learnard of 11 Brighton Road, no date; Tom and Cynthia Lesnik of 64 & 66 Brighton Road dated August 2, 2009; Michael & Lori Dolishny of 47 Brighton Road dated August 17, 2009; Dan Renn and Sue Frost of 22 Brighton Road, August 7, 2009; William Odette of 58 Brighton
Road, no date.
The Chairman then opened the floor for comments in favor or in opposition. Cynthia Ritchie of 16 Brighton Road spoke in favor; Mike Dolishny of 47 Brighton Road spoke in favor; Amanda Learnard of 11 Brighton Road spoke in favor; Dave Williams of 3 Brighton Road spoke in favor. Speaking in opposition were the following: Attorney Nick Kepple, attorney for the White Sands Beach Association. He stated that the position the Association is taking is that the bridge was built in violation of the Zoning and Inland Wetlands Regulations; it is excessive; and the application states that it needs variances to get access to the other side. Why do they have to put a bridge to the top of the wall to access the wetlands. The reason for the rear yard setback is to create a buffer between the properties.
The Association has no problem with the objective to protect the wetlands, but with less damage to the buffer. Attorney Kepple suggests ending the bridge 5 or 10 feet earlier into the embankment. He feels the Board should deny the variance and have the applicant come forward with a new plan that would eat up less of the setback and achieve the objective they want to achieve. If this happens, the Association would be willing to listen and probably be supportive of a structure which ended well before the stonewall. Attorney Kepple stated he has a letter stating the boundary line is in the middle of the stonewall. Attorney Kepple stated this is a self-created hardship. S. Stutts asked if the Association would take care of the debris problems. The Association stated yes, with permission to access the other property.
Mr. Carpurso, Chairman of the Board of White Sands Beach, they would have given the Wysocki’s permission to go on their property to clean the debris. Mr. Capurso was not notified that there was going to be a bridge or hearing, he also stated that if they were given permission to enter Wysocki land they would clean up the debris. They feel the structure is excessive. Attorney Kepple reiterated the intent of having a buffer between properties. K. Kotzan asked the question of how far from the stonewall boundary was the tennis court that is on White Sands Beach. Mr. Carpurso said less than 15 feet, J. St. Germain stated it was more like 5 feet. S. Stutts stated that the buffer needs to work both ways. Dr. Dennis Cambria of 25 Springfield Road, past president of the
Association and head of Community Center Building Committee, he stated that the Community Center had to notify neighbors and go through all of the permitting process within the Town. They feel liable for people who enter the property without permission.
There was no further audience participation and no further comments from the Board.
After discussion, and a consensus, the Board decided to keep the public hearing open to await the Inland Wetlands decision.
A Motion was made by K. Kotzan, seconded by J. St. Germain to CONTINUE the Public Hearing on Case 09-20 Christine Wysocki, 19 Brighton Road to the October 13, 2009 Regular Meeting to await the Inland Wetlands and Watercourses decision; a vote was taken and the motion passed unanimously 5-0-0.
Case 09-21 Mark & Jo-Ann Staves, 6 Liberty Street
Present: Mr. & Mrs. Staves, applicants
S. Stutts stated that this is a variance to permit a second story addition with 2 bedrooms and a bath over existing structure; change to roof line and add two 10’ wide dormers in the front and a full shed dormer in the rear and install porch along front of building. The lot is in an R10 zone and has 10,000 square feet. The only variance needed is a streetline variance.
Mr. Staves gave a brief presentation. The streetline setback runs through the existing house, which creates a hardship if the homeowner ever wants to do anything to the house. Mr. Stave discussed the changes to be made to the existing dwelling, which currently is a ranch style house and will be transformed into a cape style home. The house currently has a side porch which will be converted into living space and the applicants want to add a front porch. The proposed front porch will encroach into the setback even further than the existing house. The Board is charged with not increasing the nonconformities. S. Stutts asked if the porch could be moved to another location. The applicant stated that they would like to enhance the front of the house by adding the porch. The
number of bedrooms will remain the same, there will still be three. There will be a great room constructed to the rear of the dwelling. The new design will be in keeping with the 1 ½ story requirement in the R-10 zone. The house is already a year-round dwelling. The Board discussed reducing the front porch along the entire front of the house to just an entry stoop with a roof or move the porch to another side of the house. Mrs. Staves stated that the only location to put a porch would be in what they call their sideyard where they entertain and the children play. The Board stated there is another alternative for the placement of the porch. The Board continued the public hearing to the September 16, 2009 meeting so that the applicant could provide a new plan to the Board.
A Motion was made by K. Kotzan, seconded by J. St. Germain to CONTINUE the Public Hearing on Case 09-21 Mark & Jo-Ann Staves, 6 Liberty Street until the Wednesday, September 16, 2009 continued meeting in order to review new plans deleting the front porch and adding a 6’ wide covered entryway; a vote was taken and the motion passed unanimously 5-0-0.
CONTINUED PUBLIC HEARING ON SEPTEMBER 16, 2009
Case 09-21 Mark & Jo-Ann Staves, 6 Liberty Street
Present: Mr. Mark Staves, applicant
S. Stutts stated that this is a variance to permit a second story addition with 2 bedrooms and a bath over existing structure; change to roof line and add two 10’ wide dormers in the front and a full shed dormer in the rear and install porch along front of building. The lot is in an R10 zone and has 10,000 square feet. The only variance needed is a streetline variance.
Mr. Staves presented a new plan removing the entire front porch addition to the house, so that construction remains in the original footprint of the house. There will be the original front stoop with a 10 inch overhang across the front of the building which includes the gutter. The only difference between the existing and the new proposal in an additional 5” overhang, the additional 5” is for the gutter. The new plans were submitted for the record. There were no changes made to the second level. K. Kotzan stated that the applicant reduced the nonconformity. Mr. Staves, also presented a new copy of the second page of the application to reflect the changes made. The hardship is the house was built in the setbacks in 1953 and sits on a corner lot. There are no
coverage issues, the lot size is 10,000 square feet and the height is below the required height at 23’6”. There will be no increase in bedrooms.
The Chairman then opened the floor for comments in favor or in opposition. There was no audience participation and no further comments from the Board, the public hearing closed.
VOTING SESSION
Case 09-16 Gregory & Kim Massicotte, 14 Walnut Road
S. Stutts went over what had been discussed at the public hearing that has been closed. This was a request for variances to allow the existing pavilion to remain as-built. The dimensions are 21’ x 21’ x 14’8”. The hardship is that subsurface conditions to construct proper footings forced the change in location. There were numerous letters from neighbors stating the property was greatly improved and that the pavilion speaks of the beach. The neighbors directly abutting the pavilion have issues with the commercial grills, the bad fumes, the gas tanks are visible and the trees that were added for privacy. Originally the abutters were for the pavilion, now that has changed. The original variance was for the pavilion to remain an open structure. The ZEO
has also agreed that there has been a change from the original plans that were approved. S. Stutts outlined the changes - the fireplace goes from floor to ceiling at one corner, a counter high wall goes all along one side, there is a patio with a seating wall apparently over one foot tall, there is a fire box on the end of one wall which is a large brick structure that holds fire wood which does enclose the structure further, there are blinds on one wall which gives the illusion of enclosure, the location of the pavilion on the lot has changed, the gas tanks are visible along the back wall facing the neighbors. These are all differences from what the Board had visualized when the original variance had been granted. The Board then went through all of the pictures. S. Stutts stated that the counter height wall goes along two sides rather than just one. J. St. Germain asked to see the original plan. K. Kotzan stated that the original drawing
was four posts and a roof. S. Stutts stated that the fireplace with a chimney up through the roof for the smoke was discussed and that is not a surprise on the existing structure, but the rest was to remain open. S. Stutts stated that the wood storage box and the wings add dimension. F. Sadowski asked about the propane tanks and the reason they were not dealt with was due to the Cease & Desist. S. Stutts stated that the propane tanks could be dealt with and are moveable, it’s the other items they needed to discuss that make the building so closed in since the original variance asked for an open air structure. K. Kotzan agrees, but the patio/terrace did not need an “ok” from the Board. S. Stutts stated that the rear patio should have been made part of the entire project the Board approved since it adds to the actual structure. J. St. Germain stated that the crux of the matter is that the pavilion was not in accordance
with the original plans submitted. The variances now are asked for in order to have the pavilion remain as-built. J. McQuade stated that the new version greatly alters the surrounding area, especially for the abutting neighbors who have to see it all year long, as opposed to during the summer months only. F. Sadowski stated that the abutters choke on the smoke, K. Kotzan stated that you could put your gas grill on the line. There was discussion that the pavilion is 14 feet closer, they are not talking about inches. J. McQuade stated that the reason the applicant gave for moving the pavilion was sinking the posts into ledge. Houses are anchored on ledge, and the applicant didn’t even come back to discuss the change in location. J. McQuade also stated that it may be the same size as approved, but it definitely looks larger the way it was designed. The difference in placement makes a big difference, its 14 feet closer, not 14
inches. S. Stutts stated that the applicant did have the option to move it farther away from the neighbor by placing further to the rear where the garage had been. S. St. Germain stated that it doesn’t matter if the neighbor is year round or summer resident. The structure is the concern. K. Kotzan stated the one thing that bothered him the most is the countertop height. He states that the neighbor is not losing a view. J. St. Germain stated the neighbors were worried about light. S. Stutts stated the envelope has been pushed so from what the Board had envisioned and granted. That is why the Board made the original motion so specific. If the Board was given 3D pictures of what was to be constructed, they would have had a better picture. K. Kotzan mentioned the picture the neighbor showed as an open air pavilion, and that was what the Board originally envisioned with the placement of a grill and chairs, etc underneath
the roof. There were no plans originally submitted for the inside of the pavilion. The minutes stated that the original structure was to remain open and that no siding was to be placed on the structure. K. Kotzan stated that even though there is no “siding”, the walls of stone around the structure are permanent.
A Motion was made by K. Kotzan, seconded by J. McQuade to DENY to grant the variances necessary to allow the structure to exist as built on Case 09-16 Gregory & Kim Massicotte, 14 Walnut Road; a vote was taken and the motion passed unanimously 5-0-0.
Case 09-18 Robert D. & Mariann Fitch, 71 Hillcrest Road
S. Stutts stated that this is a request for variances to demolish existing one and a half story cottage and construct a new year-round, 3 bedroom cottage on an existing foundation with a “cape style” roof and dormer in the rear. An open air deck will be constructed in the rear. The lot is 6,000 square feet, they are eliminating an outdoor shower, a back shed, and 18 s.f. bump-out and 53 s.f. from the first floor. There is a new foundation. The hardship is the applicants want to build on the existing foundation. A variance is needed for a second story, a 7’ setback on the south side of the house and year-round status. S. Stutts feels that granting year-round status for a lot that is 6,000 s.f. is not what zoning had in mind when it required a minimum lot size of 10,000
in an R-10 zone. Even though sewers and water will be hooked up eventually to meet the health code, the lot size is still under the 10,000 s.f. The applicants could not remodel the existing dwelling due to the extent of the deterioration. The new dwelling will be brought up to code. There was some discussion with respect to what is proposed down the line with the zoning regulations, i.e. registry. The applicants want year round status, but it is not part of granting a variance. J. St. Germain stated that a condition could be placed that the house remain seasonal. There was some discussion as to the Registry Regulations. Lengthy discussion ensued with respect to granting year-round or seasonal use. J. St. Germain stated that Dick Moll brought up wording that stated that even though the Board is granting a variance the wording could be added that granting the variance does not establish year-round residency. K. Kotzan stated
granting the variance on the merits of the building recognizing some other contingent issues will come into play.
A Motion was made by K. Kotzan, seconded by J. McQuade to GRANT the necessary variances applied for to build, as per plans submitted, which are stamped approved and with the condition that this granting of the variance does not establish year-round residency on Case 09-18 Robert D. Mariann Fitch, 71 Hillcrest Road; a vote was taken and the motion passed unanimously 5-0-0.
Case 09-19 Philip M. Salafia, Jr. 44 Flagler Avenue
S. Stutts stated that this is a request for variances to permit enclosure of existing porch and patio to allow additional habitable space to extend existing dormers over existing porch area to enlarge dining area and to enlarge existing hot tub room. The lot size is 10,080 square feet, a variance of 9.2 feet is being asked for in the rear for the additions, there is approval for a new septic system. There presently exists two “L” on the back of the house, those would be enclosed using the same footprint. The existing open back porch (looks like a carport) will become enclosed with siding and windows/glass doors. There is a large hedge to the rear and neighbors will not be impacted by any change. The brick fireplace will be removed from the carport area. The wing enclosures
were built in 1993, one enclosure will be for a dining room extension, the other for a hot tub room. The proposal does not increase coverage. The additions will improve the look of the dwelling. K. Kotzan suggested conditioning the porch with an exterior grade door and no heat. S. Stutts stated that there are no coverage issues, why can’t the applicant have it. K. Kotzan stated approve in accordance with the plans submitted. Discussion of wetlands approval, can the Board condition it on their approval. The ZEO needs to pursue getting the applicant to go before the Wetlands Commission.
A Motion was made by J. St. Germain, seconded by K. Kotzan to GRANT the necessary variances to build as per plans submitted which are stamped approved on Case 09-19 Philip M. Salafia, Jr., 44 Flagler Avenue; a vote was taken and the motion passed unanimously 5-0-0.
Case 09-21 Mark & Jo-Ann Staves, 6 Liberty Street
S. Stutts stated that this is a variance to permit a second story addition with 2 bedrooms and a bath over existing structure; change to roof line and add two 10’ wide dormers in the front and a full shed dormer in the rear. The lot is in an R10 zone and has 10,000 square feet. The only variance needed is a streetline variance. The hardship is the house is on a corner lot and was built in the 1950’s. The house will remain 3 bedrooms, the height is 23’6”, there are no coverage issues, the square footage of the house is 2341 s.f. and a variance for the dormer which extends over the existing first floor. S. Stutts stated that the applicant made most of the changes to increase the house in the rear where variances are not required. The applicant deleted the proposed
front porch, so that the house did not encroach any further into the setback.
A Motion was made by K. Kotzan, seconded by J. McQuade to GRANT the necessary variances to build as per plans submitted which are stamped approved on Case 09-21 Mark & Jo-Ann Staves, 6 Liberty Street; a vote was taken and the motion passed unanimously 5-0-0.
Approval of Minutes of the July 13, 2009 Regular Meeting
A Motion was made by S. Stutts, seconded by J. McQuade, to approve the minutes of the July 13, 2009 meeting; a vote was taken and the motion to approve passed unanimously 5-0-0.
Old Business
Discussion regarding the Registry Regulations and contacting Attorney Royston for input and guidance. S. Stutts stated that she and J. McQuade were present at the Public Hearing for the Registry and the Registry hearing is being continued to the October 14, 2009 meeting. S. Stutts brought up some of the questions she had.
New Business
A letter from Timothy Denison of 78 Lyme Street dated August 13, 2009 was discussed. The project discussed in the letter sent by Mr. Denison did not require any variances.
Adjournment
A Motion was made by K. Kotzan, seconded by S. Stutts to adjourn the September 16, 2009 Continued Regular Meeting that had been continued from September 8, 2009; the motion to adjourn passed unanimously. The meeting adjourned at 9:01 p.m.
The next Regular Meeting of the ZBA will be on Tuesday, October 13, 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
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