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MINUTES OF THE ZONING BOARD OF APPEALS
REGULAR MEETING
APRIL 19, 2011
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, April 19, 2011 at 7:30 p.m. at the Old Lyme Town Hall, 52 Lyme Street heard and decided the following appeals:
The Chairman of the Board, Susanne Stutts, opened the meeting and introduced the Board members who were seated and voting for the meeting.
Present and voting were Susanne Stutts, Chairman, Judy McQuade, Vice Chairman, Kip Kotzan, Secretary, Joseph St. Germain and Richard Moll
Present: Marilyn Ossmann, alternate, Fran Sadowski, alternate and Kim Barrows, Clerk
Absent: Richard Smith, 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:
PUBLIC HEARING:
Case 11-11 – M. Jean Vansickle, 75 Connecticut Road
Present: Mr. Michael Tarbell, Tarbell, Heintz & Associates, Inc., agent for the applicant
S. Stutts stated that this is a request for variances to allow removal of existing porch/deck and replace with an enclosed 12’ x 16’ porch. The existing nonconformities are Section 8.8.1, minimum lot area, 10,000 square feet required, 7,364 square feet existing, Section 8.8.2, minimum lot area for each dwelling unit 10,000 square feet required, 7,364 square feet existing, Section 8.8.3, minimum dimension of a square on the lot, 75’ required, existing is 50’, Section 8.8.4, minimum wetlands/watercourse restriction 0%, 2,400 +/- sq. ft. present; Section 8.8.7, minimum setback from the streetline, 25’ required, 10.5’existing and Section 4.3, tidal river protection, 50’ setback required from mean high navigable waters, 31’ for the house and 27’ for the garage are
existing.
The proposal does not comply with Section 8.0.c, yards and lot coverage, Section 9.1.3.1, general rule, Section 9.3.1, enlargement, Section 4.3, tidal river protection, 50’ setback required 27.7’ proposed for the addition for a variance request of 22.3’ and Section 4.4.6.4a, Special Flood Hazard Areas, flood elevation required 12’, the first floor elevation is 10.51’ for a variance request of 1.49’.
Mr. Tarbell gave his presentation by stating that the existing porch/deck has deteriorated and needs to be replaced. The applicant enjoys the backyard and would like an enclosed space to sit out in. The existing deck has an 8’ depth and will be increased to a 12’ depth and the width would be reduced for the enclosed porch. The porch addition will only add 192 square feet to the house and the house is very small at only 688 square feet. The original siding of the house will remain as the wall of the porch and the door to the porch is off the kitchen. K. Kotzan noted that there was not a height dimension on the plan submitted. The height of the porch will be 13’ and the existing height of the house is 15’. The architectural detail of the enclosed porch
will mimic the architectural detail of the house. J. St. Germain asked about the tidal wetlands in the rear, he wanted stated for the record that the Town is not liable for any flooding that may occur on the property.
The Chairman opened the floor for comments from the audience either in favor or in opposition. There was no audience participation and no further comments from the Board, the public hearing closed.
Case 11-12 – Joseph Ryan, 3 Sea Spray Road
Present: Mr. Paul Randazzo, Percon, Inc., agent for the applicant; Mr. Joseph Ryan, applicant
S. Stutts stated that this is a request for variances to allow demolition of existing garage and replace with two car garage. The existing nonconformities are Section 8.8.7, minimum setback from streetline is 25’, existing is 20.2’ for the house from Shore Road and 15’ from Sea Spray Road, the shed is 2.5’ from Brookside Avenue.
The proposal does not comply with Section 8.0.c, yards and lot coverage and Section 8.8.7, minimum setback from streetline is 25’, there is 3’ from Brookside Avenue for the proposed garage requiring a variance of 22’.
Mr. Randazzo gave his presentation. The outbuilding is in disrepair due to the age of the structure, the rotting wood and lack of proper foundation. The applicant would like to construct a 24’ x 26’, two car garage somewhat in the same location as the current garage/shed. The hardship is that if the setbacks were followed, the structure would encroach on the existing well and on a stonewall holding up the upper tier of the property since it sits on an embankment. The property also has two streetline setbacks, one for Brookside Avenue and the other for Sea Spray Road. The proposal is to demolish the existing structure, take out whatever is holding the structure up and replace with a code compliant garage. The overall height will be 23’ 6”, the space above the
garage will be used for storage. To access the storage area, there will be stairs to the second floor which is approximately a 16’ x 26’ space with a ceiling height of 7’ 8”. The storage space is to remain unheated and will not become living space. The elevation from the road to where the garage will sit is at elevation 12’. The house height is 33’ and is an existing two story dwelling that was built in the 1930’s prior to zoning. A letter in support of the project was entered in the record as Exhibit 1 from the neighbors, Bill and Connie Gardner of 9 Sea Spray Road. K. Kotzan asked if the garage could be moved forward 5’ towards Sea Spray Road to increase the setback to Brookside. R. Moll stated that he did not have a problem as to the placement of the garage as originally submitted. There really is no usable space behind the garage and moving forward would take away usable yard space. The Board posed the question to the applicant if they would move the structure forward
and Mr. Ryan stated that if it was a condition, he would comply.
The Chairman opened the floor for comments from the audience either in favor or in opposition. There was no audience participation and no further comments from the Board, the public hearing closed.
Case 11-13 – Anne DeLucia, 44 Connecticut Road
Present: Ms. Anne DeLucia, applicant
S. Stutts stated that this is a request for variances to allow expansion of existing 6’ x 6’ area to the end of the house, approximately 60.8 square feet for laundry room and a half bath. The existing nonconformities are Section 8.8.1, minimum lot area, 10,000 square feet required, 5,598.37 square feet existing, Section 8.8.2, minimum lot area for each dwelling unit 10,000 square feet required, 5,598.37 square feet existing, Section 8.8.3, minimum dimension of a square on the lot, 75’ required, existing is 50’, Section 8.8.8, minimum setback from rear property line 30’ required, existing 3.8’ for the garage and Section 8.8.9, minimum setback from other property line 12’ required, 4.3’ north side of the house and 2.7’ on the south side of the garage.
The proposal does not comply with Section 8.0.c, yards and lot coverage, Section 9.1.3.1, general rule, Section 9.3.1, enlargement and Section 8.8.9, minimum setback from other property line 12’ required, +/- 4’ north side of the house, requiring a variance of 8’.
Ms. DeLucia gave her presentation by going over the existing floor print in the file. The existing 6’ x 6’ shed/shower in the rear will be replaced and expanded into the existing structure to create a 8’ x 12’ addition and the roofline will stay the same as the existing house. A letter in favor was submitted from Beverly and Dominick Cappello of 46 Connecticut Road and marked as Exhibit 1. R. Moll asked what the other structure on the lot was, Mrs. DeLucia stated that it was a “garage” but was used for storage of summer furniture. The lot next to the applicant is a vacant lot and Mrs. DeLucia has attempted several times to purchase the wooded lot. The addition encroaches closer to the vacant lot and does not impact any of the other neighbors.
The Chairman opened the floor for comments from the audience either in favor or in opposition. There was no audience participation and no further comments from the Board, the public hearing closed.
Case 11-14 – Edmund Boryczewski, 66 Billow Road
Present: Mr. Gregg Fedus, Fedus Engineering, LLC, agent for the applicant; Mr. Boryczewski, applicant; Attorney Tom Cronan, attorney for the applicant
S. Stutts stated that this is a request for variances to allow relocation of existing house to create space for code compliant septic system. The existing nonconformities are Section 8.8.1, minimum lot area, 10,000 square feet required, 4,015.7 square feet existing, Section 8.8.2, minimum lot area for each dwelling unit 10,000 square feet required, 4,015.7 square feet existing, Section 8.8.3, minimum dimension of a square on the lot, 75’ required, existing is 50’, Section 8.8.5, maximum number of stories 1 ½ required, 2 stories existing, Section 8.8.7, minimum setback from the streetline, 25’ required, 10.7’provided, Section 7.1.c, only one detached accessory building not used for human occupancy and not exceeding 15’ in height and 200 sq. ft. in floor area may extend into
the required side or rear setback by a distance equal to one-half of the minimum required setback, 3.81’ south side of garage (6’ required), 1.44’ from the rear for the garage (15’ required), Section 8.8.9, minimum setback from other property line 12’ required, 4.3’ north side of the house, Section 8.8.10, maximum floor area as percent of lot, 25% required and there is 51.3% existing, Section 8.8.11, maximum lot coverage by buildings and structures as percent of lot area, 25% required, 33.4% existing and Section 8.8.12, maximum total lot coverage as percent of lot area, 30% required, 33.4% existing.
The proposal does not comply with Section 8.0.c, yards and lot coverage, Section 9.1.3.1, general rule, Section 9.3.1, enlargement, Section 8.8.5, maximum number of stories 1 ½ required, 2 stories existing requiring a variance of a half story, Section 8.8.8, minimum setback from the rear property line, 30’ required, 4.3’ on the north side of the house for a variance request of 12.8’, Section 8.8.9, minimum setback from other property line 12’ required, 4.3’ north side of the house existing requiring a variance of 7.7’, Section 8.8.10, maximum floor area as percent of lot, 25% required and there is 51.3% existing, 49.7% proposed, requiring a variance of 24.7%, Section 8.8.11, maximum lot coverage by buildings and structures as percent of lot area, 25% required, 33.4% existing,
31.8% proposed requiring a variance of 6.8% and Section 8.8.12, maximum total lot coverage as percent of lot area, 30% required, 33.4% existing, 31.8% proposed requiring a variance of 1.8%.
Mr. Fedus gave his presentation and started by stating the hardship is the land itself which is dictating where a code compliant septic system can be placed. Mr. Fedus also gave a history of the changes that were made to the house over the years. Mr. Boryczewski purchased the house in 2001, R. Moll stated that according to the deed it was purchased on May 12, 1999. There was new siding, rear deck and front porch, but Mr. Boryszewski stated that those were there when he purchased the house. The proposal is to put the house on skids and move it straight back making the house meet the front yard setback, but now the rear setback will be nonconforming. The height of the house is not changing, it will remain a one and a half story structure. J. St. Germain asked about the peak of the roof
height, it was stated that it will be 21’. The coverages are lessened due to trimming the front porch size from 9.3’ to 8’ and removing a portion of the rear deck. J. McQuade asked if the front porch could be removed in its entirety. Mr. Fedus said no it could not the structure wouldn’t look right. S. Stutts asked where the septic is located, Mr. Fedus stated that it will be in the front yard since the rear has ledge and the soil in front is suitable for the system. R. Moll interjected a Point of Order that this is a year-round use situation. Mr. Boryczewski stated that he was part of the South Lyme Property Owners Association law suit and was given a letter from the Town stating that he now has year round status as far as zoning is concerned. He needs the septic system to comply with the health code. He has also contracted with the Connecticut Water Company to install city water to his property.
Mr. Boryczewski stated that the Ballevanders and the Watts could hook up to the city water when installed. Again, the legal hardship runs with the land and the septic can only be placed in the front due to ledge in the rear. There was some discussion as to the location of the wells in the area.
The Chairman opened the floor for comments from the audience either in favor or in opposition. Mrs. Nancy R. LeMega-Watt of 62 Billow Road asked where the septic system was going to be placed and about the grading of the system. The septic is in the front and there will not be additional fill added that will raise the grade. Mr. Watt of 16 Briar Hill Road is the co-owner of 62 Billow Road also had concerns. Mr. Willard Northrup of 21 Edge Lea Road stated that he didn’t want the house moved closer to his property due to noise issues. He also stated that the deck was added within the last 10 years and that the lot is completely built on.
Attorney Cronan spoke to the legal hardship and how it runs with the land. There are three nonconformities that are being reduced which is a positive. Attorney Cronan cited Stillman vs. Zoning Board of Appeals City of Redding as a classic case. Since the septic system can’t go in the back and has to go in the front, that is the hardship. The house will encroach to the rear, but there is a trade off, since the front setback will be conforming. J. St. Germain stated that when Mr. Boryczewski purchased the property the ledge was there, nothing has changed and because of this lawsuit he can now connect to water. Attorney Cronan stated that buying it with the “Purchaser with Knowledge Rule”, which is recognized in the courts, only applies to use variances. J.
St. Germain stated that granting these variances could set a precedent, Attorney Cronan disagreed. K. Kotzan stated that the rear neighbor objected to moving the house closer to his property, how can the Board vote on this if there is a neighbor objecting. Attorney Cronan stated that this could turn on the interpretation as to what Mr. Boryczewski’s rights are with respect to the class action lawsuit. The Board is setting up a tension as to the rights he received in the lawsuit and his ability to winterize. The zoning question is - is this a legal hardship that justifies this kind of relief? And if the answer is no, then what are his rights in the class action law suit. There was discussion as to granting variances and year-round status. Mr. Boryczewski stated that his house, if moved, is still far away from the rear neighbor. There will be no blasting on the site. Attorney Cronan stated that the two things that need to be
considered, one: is that is there a hardship and two: is it a reasonable request.
There was no further audience participation and no further comments from the Board, the public hearing closed.
VOTING SESSION:
Case 11-11 – M. Jean Vansickle, 75 Connecticut Road
S. Stutts stated that the hardship as stated on the application is the existing porch and deck area in complete deterioration and must be completely removed. The existing house is only 688 square feet which is small for the area. The depth will be increased 4’ while the length has been decreased. The existing structure needs to be repaired. J. McQuade stated that this is a reasonable request.
A Motion was made by K. Kotzan, seconded by R. Moll to GRANT the necessary variances to build as per plans submitted with the revised drawing for elevations and the footprint shown on the survey. No further discussion and a vote was taken. In favor: S. Stutts, J. McQuade, K. Kotzan, J. St. Germain, R. Moll In opposition: None Abstaining: None The motion passed unanimously. 5-0-0
Reason to grant: Small change to repair and update a deteriorating porch that is currently already in the wetlands setback, makes an undersized house more livable by today’s standards. Is within the intent of Zoning.
Case 11-12 – Joseph Ryan, 3 Sea Spray Road
S. Stutts stated that the proposed structure is raised above the road 12’. The applicants want to build the new structure on basically the same footprint but increase the size of the structure. The house and the garage were built in 1930 where they encroach into the setback. There is some flexibility since the applicant said he would be willing to move the structure 5’ forward. There was one letter submitted in favor. J. St. Germain stated that the applicant was making a compromise by moving the structure 5’ forward so that he could get the size of the structure he wanted. S. Stutts stated that the 22’ variance request is a big variance to grant for a setback. The hardship is that the house is surrounded on three sides by a road. K. Kotzan stated that
there are no coverage issues, this is a reasonable use of the property. R. Moll asked how long the applicant owned the property, it has been since 2009 and the lot is a combination of three lots. R. Moll didn’t see the need to reduce the request for the rear setback, it was fine as presented.
A Motion was made by K. Kotzan, seconded by J. St. Germain to GRANT the necessary variances to build as per plans submitted with the condition that instead of a request for a variance of 22 feet for the rear setback off of Brookside Avenue, make it a request for a 17 foot variance request, a diminishment of 5 feet on the variance request. No further discussion and a vote was taken. In favor: S. Stutts, J. McQuade, K. Kotzan, J. St. Germain In opposition: None Abstaining: R. Moll The motion passed unanimously. 4-0-1
Reason to grant: It is a large lot but the placement of the garage on the lot, the three street setbacks and the topography are the hardships along with maintaining a separating distance from the well. The applicant has reduced the variance request by 5 feet which makes it more conforming. It is within the intent of Zoning.
Case 11-13 – Anne DeLucia, 44 Connecticut Road
S. Stutts stated that this is a request for variances to allow expansion of existing 6’ x 6’ area to the end of the house, approximately 60.8 square feet for laundry room and a half bath. The existing nonconformities are Section 8.8.1, minimum lot area, 10,000 square feet required, 5,598.37 square feet existing, Section 8.8.2, minimum lot area for each dwelling unit 10,000 square feet required, 5,598.37 square feet existing, Section 8.8.3, minimum dimension of a square on the lot, 75’ required, existing is 50’, Section 8.8.8, minimum setback from rear property line 30’ required, existing 3.8’ for the garage and Section 8.8.9, minimum setback from other property line 12’ required, 4.3’ north side of the house and 2.7’ on the south side of the garage.
It was stated that the vacant lot adjacent to this property is a nonconforming lot and the applicant has been trying to purchase said lot to add to her overall square footage. The addition will basically square off the rear of the property and get rid of the existing shower stall outside. The addition will be 8’ x 12’. There was one letter from a neighbor in support of the application. J. McQuade stated that this was a reasonable request and will make the back of the house look better. The addition will also not exceed the 25% building coverage requirement.
A Motion was made by J. St. Germain, seconded by R. Moll to GRANT the necessary variances to build as per plans submitted. No further discussion and a vote was taken. In favor: S. Stutts, J. McQuade, K. Kotzan, J. St. Germain, R. Moll In opposition: None Abstaining: None The motion passed unanimously. 5-0-0
Reason to grant: Makes a small house more livable and better looking, a small change that will not impact the surrounding neighbors. Is within the intent of Zoning.
Case 11-14 – Edmund Boryczewski, 66 Billow Road
S. Stutts stated that this property was part of the South Lyme Property Owners Association class action law suit. In being part of the law suit, the applicant was granted year-round status as far as zoning is concerned, but he can’t put in a code compliant septic in the rear. The existing septic system is located in the sideyard setback. The house is being moved from the front to the back to accommodate a new system. Three nonconformities are being reduced. The legal hardship is with the land itself, since there is ledge in the rear. The lot size is only 4,000 square feet and the lot is overbuilt. Discussion as to when does the Board say enough is enough. S. Stutts felt the house could be downsized and stay seasonal, the existing septic is working or year-round
with smaller house. The Board decided it needed some guidance before make a decision on this matter.
A Motion was made by S. Stutts, seconded by K. Kotzan to DEFER the decision on Case 11-14 – 66 Billow Road to May 17, 2011 to seek input from ZBA counsel. No further discussion and a vote was taken. In favor: S. Stutts, J. McQuade, K. Kotzan, J. St. Germain, R. Moll In opposition: None Abstaining: None The motion passed unanimously. 5-0-0
Approval of Minutes of the March 15, 2011 Regular Meeting
A Motion was made by J. McQuade, seconded by R. Moll to approve the March 15, 2011 Regular Meeting minutes as submitted. No further discussion and a vote was taken. In favor: S. Stutts, J. McQuade, K. Kotzan, J. St. Germain, R. Moll In opposition: None Abstaining: None The motion passed unanimously. 5-0-0
Adjournment
A Motion was made by S. J. McQuade, seconded by K. Kotzan to adjourn the April 19, 2011 Regular Meeting; no discussion and a vote was taken. The motion to adjourn passed unanimously. 5-0-0 The meeting adjourned at 10:10 p.m.
Respectfully submitted,
Kim N. Barrows
Recording Clerk
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