OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
Tuesday, January 15, 2013
The Old Lyme Zoning Board of Appeals held a Regular Meeting on Tuesday, January 15, 2013, at 7:30 p.m. in the Auditorium of Memorial Town Hall. Those present and voting were: Susanne Stutts, Chairman, Arthur Sibley, regular member, Kip Kotzan, Secretary, Richard Smith, alternate (seated for Joseph St. Germain) and Martha Rumskas, alternate (seated for Judy McQuade). Also present was Mary Stone, Alternate, and Kim Barrows.
Chairman Stutts called the meeting to order at 7:30 p.m.
1. Case 13-01 – Anthony Kornacki & LeeAnn Molenaar, 30 Lyme Street, variance to allow installation of wall mounted air conditioning and heating unit; above ground propane tank.
Chairman Stutts stated that there are no existing nonconformities. She noted that the proposal does not comply with 8.0.c, yards and lot coverage and 8.8.7, minimum street setback, 45’ required (narrow street), variance of 5’ requested. Chairman Stutts noted that the hardship provided by the applicant is that they are unable to properly heat and cool the home with the narrow street setback requirement.
Mr. Kornacki stated that they would like to install their heating and air condition mechanicals, as well as an above ground propane tank, in the street setback on the north side of the property. He showed a photograph and noted that it is located near the garage/living area which is a new addition and is not heated/cooled by the mechanicals that heat/cool the original part of the home. He explained that there are two new additions, one is neither heated nor cooled and the other is heated electrically and cooled with window air conditioning units.
Chairman Stutts stated that the Historic District Commission’s approval indicates that the mechanicals will be screened by plantings and a privacy fence. Mr. Kornacki stated that they will install a white lattice fence, no higher than 4’. He pointed out that the exact location of the fence will depend on the exact location of the 150 gallon propane tank. Mr. Kotzan questioned whether the Board required a more exact plan in reference to the location of the propane tank. Mr. Kornacki stated that the tank location has not been definitively indicated due to Code. Chairman Stutts stated that she does not believe it will be aesthetically different if it is within 10 to 15 feet of where it is indicated on the plan.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Stutts closed the Public Hearing.
2. Case 13-02 C – Linda S. and Greg E. McKenna, 58 & 60 Seaview Road, request for variance to relocate existing garage.
Chairman Stutts noted that the proposal does not comply with 8.0.c, yards and lot coverage; 9.3.1, enlargement; 4.2.12, construction and enlargement of buildings adjoining coastal resources; 4.3, tidal water protection and tidal river protection other than Connecticut River; 8.8.10, maximum floor area as a percent of lot, 25 percent allowed, 28 percent existing and 28.6 percent proposed; 8.8.11, maximum lot coverage by buildings and structures as a percent of lot area, 30 percent allowed, 32.6 percent proposed; and 8.8.12, maximum total lot coverage, 30 percent allowed, 32.6 percent proposed. Chairman Stutts noted that the hardship provided by the applicant is that the extreme slope of the yard and that the rocky shoreline occupies one third of the property.
Mr. McKenna stated that the Board approved a variance for this project back in the spring but they have thought long and hard about the project and have come back to get permission to remove the existing garage and relocate it on the property. He noted that the existing garage is a nonconforming structure located very close to Sea View Avenue. Mr. McKenna stated that they would like to demolish this garage and reconstruct a garage closer to the house. He stated that the proposed new garage is the same size as the existing garage. Mr. McKenna explained that the new garage will have a walkway to the house. He noted that the proposed structure is conforming.
Chairman Stutts stated that the original structure did not have a covered walkway which is why a variance is required for the extra coverage. Mr. McKenna stated that they had the property surveyed and it was determined that there is an extra 175 square feet of coverage that was not originally calculated. He indicated that a letter explaining all this should be in the file. Ms. Barrows explained that Ms. Brown recalculated the coverage. Mr. McKenna stated that he calculates a 2 percent variance requirement. Chairman Stutts explained that the Board has to use the figures provided by the Zoning Enforcement Officer and if his calculations differ he should perhaps go back and confer with Ms. Brown to come to an agreement.
Mr. McKenna stated that the deck was included by Ms. Brown in coverage because it is higher than 6 feet. He indicated that he has measured and re-measured the deck and it is 5’ 9” high and should never have been included. Mr. McKenna indicated that his neighbors all agree that the proposed location for the garage is better than the location previously approved by the Board. He indicated that he has now spent an additional $60,000.00 on engineering to show the proper place for the garage because it makes the site line better and the use of the property better. He indicated that the 108 square feet should never have been counted for the deck. Mr. McKenna pointed out that the proposed location is conforming whereas the previously approved location is not, and the proposed location
allows his to go from his garage to his house under a covered area. Mr. McKenna stated that he is giving back 2 square feet from his previous application. Chairman Stutts stated that the numbers on the plans do not agree.
Chairman Stutts questioned whether they would be willing to add a grass strip between the two areas of paving to soften the look. Frank Magnotta, Engineer, stated that he did the plan for Mr. McKenna. He stated that they have proposed a section of pervious concrete to offset some of the impervious area. Mr. Magnotta stated that the rain garden is being relocated. He explained that the rain garden takes the roof water and the overflow, what is not absorbed, will come down into a basin and then directed off the property. Mr. Kotzan stated that proof of the deck height would make this case much easier. He noted that there are a lot of positive aspects of this proposal. Mr. Kotzan stated that the Board does not like to increase nonconformities.
Attorney Michael Epright, representing the owners of 63 Sea View Avenue, stated that they are located across the street from this property. He stated that he has written a letter that he would like to give to the Board and have it made part of the record. Attorney Epright stated that Mr. McKenna approached his client last year indicating that he would like to make some improvements to his property. He stated that Point ‘O Woods is a fairly close knit community. Attorney Epright stated that the original proposal was presented to the neighbors and they were on board with that proposal. He indicated that Mr. McKenna was not up front regarding this application. Attorney Epright stated that moving the garage alongside his house takes away views of his clients. He indicated that
R-10 is a high density zone. Attorney Epright stated that Mr. McKenna has a conforming lot and should not be before the Board asking for variances. He indicated that any hardship Mr. McKenna has was self-created. Attorney Epright stated that he understands the applicant’s desire to have the garage located nearer the dwelling. He indicated that the Zoning Regulations exist to protect people. Attorney Epright stated that the applicant has topography and ledge issues but he has not shown a hardship. He indicated that it is a red flag to a Board when an applicant asks for variance after variance.
Mr. McKenna stated that stated that by moving the garage to a lower location they are improving views for neighbors up the hill. He indicated that there is a substantial grade difference, approximately 6 feet. Mr. McKenna stated that the neighbor at 63 Sea View has a 15’ view now that he did not previously have.
Hearing no further comments, Chairman Stutts closed the Public Hearing.
3. Case 13-03 – Warren E. Hannas, 9-1 Halls Road, to allow office development expansion, parking location, and building size.
Chairman Stutts reviewed the existing nonconformities: 4.10.3, CT River Setbacks, no building within 100 feet of high tide, deck is 67’6”; 8.8.9, minimum setback from other property line, 20 feet required, 5’ provided; and 8.2.1, lot area, shape and frontage, the lot has no street frontage. She noted that the proposal does not comply with 8.0.c, yards and lot coverage; 8.9.9, minimum setback from other property line 20 feet, propane tank must have 20 feet from property line per Fire Marshal approval; 9.1.6.1, general rules, 18.3.8, location of parking, 4’ proposed, variance of 26 feet; 18.5, loading space, van, one off street loading space for every 40,000 gross square feet area, requesting variance of this requirement. Chairman Stutts noted that the hardship provided by the
applicant is that the property has no street frontage and a 100’ setback from the river on another side.
Tony Hendriks was present to represent the applicant, Mr. Hannas. Mr. Hendriks explained that they were originally going to present the plan to the Zoning Commission for site plan approval. He noted that because there is no lot frontage, Ms. Brown stated that they would need Zoning Board of Appeals approval. He indicated that they have been before the Zoning Commission in the past on numerous issues not having to go for a variance. He indicated that the lot has been in existence prior to zoning going into effect in Old Lyme.
Mr. Hendriks stated that this evening he was presented with a letter from a neighbor’s attorney that outlines eight variance requests. He indicated that they are not asking for that, they are asking for a variance on the requirement for frontage. Mr. Hendriks stated that Mr. Hannas has constructed an above surface gas storage facility within the setback and he needs a variance to allow it to remain in that location. He stated that the fire Marshal inspected the present location.
Mr. Hendriks stated that in 1996 Mr. Hannas prepared a plan to go to the Planning Commission for a garage with an office above. He indicated that the plan was approved by the Planning Commission. He indicated that at that time the setback from tidal wetlands was 50’, not 100’. Mr. Hendriks stated that this garage was constructed, along with the proposed parking area, but not in accordance with the approved plan. He noted that in 2008 Mr. Hannas requested a revised survey showing the location of the buildings so that he could convert the garage to a first floor office space, which the Zoning Commission approved. He indicated that in 2011, Mr. Hannas requested a 1’ variance to construct an exterior set of stairs to the second floor garage office space. Mr. Hendriks
stated that there at the time of this approval the Board made a condition that the existing house be designated as storage, which Mr. Hannas complied with. He explained that Mr. Hannas stores items from his wood business in the house and would now like to add a new garage so that he can have storage for his vehicle, as well as convert the existing house to proposed offices. Mr. Hendriks stated that this is an allowed use in the zone. He indicated that the commercial zone line used to run straight through his property but it was revised so that the entire parcel was located in the commercial zone.
Mr. Hendriks pointed out that all the requests of Mr. Hannas as part of this application meet the Zoning requirements. He indicated that they will have to go to the Zoning Commission for site plan approval after receiving approval from the Zoning Board of Appeals. Mr. Hendriks stated that they are asking for a variance for the frontage requirement and another to allow the gas tanks to remain in their present location.
Chairman Stutts questioned whether the applicant is asking for a variance for the location of the parking. Mr. Hendriks replied that the parking has been in the current configuration for fifteen years and there is no proposal to change it. Mr. Kotzan questioned whether additional parking was proposed for the additional office space. Mr. Hendriks replied that they are adding four parking spaces; two parking spaces outside, along with two additional ones in the garage.
Mr. Hendriks stated that they have the room to have a loading space if the Zoning Commission requires one during their site plan review. He indicated that Ms. Brown considers the propane tanks a structure so a variance of 5’ is being requested so that they do not need to relocate them. Ms. Barrows pointed out that there is no letter of approval from the Fire Marshal. Mr. Hannas stated that the house has gone beyond repair and does not look good. He indicated that he would like to enhance the exterior of the house and would like to create more offices. He indicated that he would like to keep his car and boat in a garage. Mr. Hannas stated that the amount of coverage including all buildings is very small, 9% were 20% is allowed. Mr. Kotzan pointed out that it is also setback. Mr. Hendriks noted that Gateway approved the project. Ms. Stutts stated that Gateway stipulated that the trees should remain.
Jim Graybill stated that Mr. Hannas has a right-of-way through his property and he was originally concerned with additional traffic but due to the fact that it is office space he believes it will have no impact. He indicated that he is happy that it will not be a storage place where large trucks might be in and out. Mr. Graybill stated that he is in favor of the application and believes it is a good use of the property.
Christie Laurence Hannas, wife of the property owner, stated that the storage building really does need to be rehabilitated. She noted that the garage will be used to store his truck and boat which will enhance the property. Ms. Hannas indicated that she is in favor of the proposal.
Attorney Carrie Olsen from Murtha, Culina Law Firm, along with her colleague Joe Schwartz, were present representing the Florence Griswold Museum. She noted that Jeffrey Anderson, Director of the Museum, and Bob Webster, President of the Board of Directors, where also present this evening. Attorney Olsen stated that it might be helpful for the Board to see the location of the two properties. She noted that the colored area is the Museum’s property and the applicant’s property is indicated in white. Attorney Olsen stated that the only access to Mr. Hannas’ property is through an easement that crosses the museum’s property which is highlighted in yellow. She pointed out that the museum is subject to many of the same regulations that the Hannas property is, including
setbacks from the river. She asked that the map be entered as an exhibit. Attorney Olsen stated that the property was subdivided and sold off after the Zoning Regulations came to be. She indicated that the property owner petitioned the Zoning Commission to change his property to all C-30S. She stated that the applicant requested that his property be subject to the zoning regulations that he is now asking to vary. Attorney Olsen stated that in 1997 the second structure was constructed. She indicated that it was suggested that he received site plan approval to change the use of the garage to office use, but noted that the regulations only require a special permit for office use. Attorney Olsen stated that there are two existing buildings on the property; she submitted a copy of the Assessor’s Card for the record. She noted that both of the buildings are nonconforming in that they lie within the setback of the Lieutenant River and
the property lacks the required frontage. She stated that the hardship of not having frontage was alleviated in 1956 and again in 1997 when the buildings were permitted to be constructed.
Attorney Olsen stated that it is disconcerting that the applicant is withdrawing variance requests for which the Zoning Enforcement Officer has stated are required. She noted that her client is concerned with the variance to expand a nonconforming use. Attorney Olsen stated that because the structures are nonconforming any extension or expansion is not to take place unless it’s in conformance with the Regulations. She indicated that that is why the Zoning Enforcement Officer sent the applicant to the Zoning Board of Appeals. Mr. Kotzan questioned which Regulations the structures requires variances of that she feels violate the intent of the Regulations. Attorney Olsen replied Sections 8.0.c and 9.1.3.1, both of which are referred to in the ZEO review.
Attorney Olsen stated that nonconforming buildings are not permitted to be expanded or extended and in this case he is expanding the existing house. Mr. Kotzan stated that the lot was created without frontage and he feels the existence of the regulation that requires frontage was put into effect so that lots like this were not created. He indicated that he cannot expect that the existing lots without frontage never be developed or improved upon. He reiterated that the point of the regulation is to prevent them from be divided without frontage to control the creation of this type of lot.
Attorney Olsen stated that the lot is nonconforming with two nonconforming buildings on it and when you have a nonconforming property, the only way you are supposed to be able to expand or extend is when a true hardship exists. She indicated that the applicant has a reasonable use of his property and the desire to expand is not a unique hardship.
Attorney Olsen stated that the Florence Griswold Museum must meet the same zoning regulations. She indicated that he has not shown an undue hardship; she noted that the applicant stated that he could move some things and meet the zoning regulations.
Attorney Olsen noted that the Fire Marshal approved the location of the existing propane tanks but it is within the setback. Ms. Barrows noted that a zoning permit was not issued for the tanks. She indicated that it is Mr. Hannas’ burden to show whether or not the tanks can be relocated in a conforming location. She stated that the museum agrees that the existing structure does need rehabilitation and the museum would like to see that structure rehabilitated. She noted that rehabilitation would not require a variance; only the expansion of it does.
Attorney Olsen stated that on half of the museum she asks that the application be denied.
Mr. Hannas stated that he thought he was being a good neighbor in enhancing his property. He explained that the expansion of the garage is also to clean up the property. He indicated that he could use the house for storage. Mr. Hannas stated that the property is isolated and he would like to utilize his property.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Stutts closed the Public Hearing.
4. Case 13-04 C – William Chamberlain, 83 Connecticut Road, request for variance to raise house to meet minimum FEMA requirements.
Chairman noted that the proposal does not comply with 8.0.c, yards and lot coverage; 9.1.3.1, general rules, no enlargement on a nonconforming lot; 9.3.1, enlargement of a nonconforming building; 8.8.6, maximum height 24 feet, 27.1 proposed; 8.8.7, minimum street setback, 25’ required, 10’ proposed, variance of 15’; 8.8.9, setback from other property line, 12’ required, 7.5’ variance requested on the south side; and 4.1.3, tidal water protection, variance of 12’ requested.
Russ Smith stated that Mr. Chamberlain began planning this project prior to the impacts of the recent storm, Sandy. He explained that the Regulations require that the first floor be located 1 foot above the minimum required which is 10’ for this particular area. He indicated that by raising the house to elevation 11 it would violate the height requirement of the zone. Mr. Smith stated that they will be removing the front porch and the rear two story section in order to facilitate the raising of the structure. He explained that these two areas will be reconstructed in their existing size and configurations. Mr. Smith stated that there are no other changes to the property. He noted that there is a shed currently located on the property which is why a variance of tidal water
protection is required.
Mr. Smith stated that they will be removing the brick chimney which will increase sight line. He indicated that they are also residing and installing new windows.
Chairman Stutts questioned whether the house flooded in storm Sandy. Mr. Smith replied that it came up to the side of the house but did not flood the house. Mr. Chamberlain stated that during storm Sandy the water was the highest he has ever seen it. He noted that at its worst it usually just floods a little area in the back yard.
Mr. Kotzan questioned how many feet the house is being raised. Mr. Smith replied that it is being raised 2.7 feet.
Abutting property owner Frank Hall stated that he is in favor of the application and feels it will be an improvement to the neighborhood.
Hearing no further comments, Chairman Stutts closed the Public Hearing.
OPEN VOTING SESSION
1. Case 13-01 – Anthony Kornacki & LeeAnn Molenaar, 30 Lyme Street
Chairman Stutts reviewed the facts of the case. She noted that the applicant has received Historic District Approval with the condition that the mechanicals and propane tanks be screened with a privacy fence.
Referring to the narrow street setback requirement, Mr. Kotzan stated that this particular street will not be widened. He indicated that his only concern is the exact location of the propane tanks, but noted that there is plenty of room to locate them. Chairman Stutts stated that the Board could condition an approval with the requirement of a privacy fence.
A motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to grant the necessary variances to construct the structures as per the plans submitted and to keep the necessary separation distance between the propane tanks and air condensers.
Reasons to grant:
1. Application has received Historic District Approval for the structures with the requirement that they be screened.
2. Proposal is within the intent of zoning.
2. Case 13-02 C – Linda S. and Greg E. McKenna, 58 & 60 Seaview Road
Chairman Stutts reviewed the facts of the case, noting that the Board previously approved a plan for this property and the applicant is asking to relocate the garage. She noted that the neighbor across the street was against the relocation as he feels there is no hardship that necessitates the relocation. Mr. Sibley stated that the neighbor appears to be upset about the many changes to the plan. He indicated that he feels this change is an improvement to the property but he would like to warn the applicant that no additional variances will be granted after this.
Mr. Kotzan stated that if the deck is not 6’ high and does not count toward coverage, then he would be willing to allow the covered walkway. Chairman Stutts agreed and noted that that is the type of thing that could be avoided if the application wasn’t submitted piecemeal. She indicated that the garage sitting on top of the hill is outdated for a year round home. Mr. Kotzan stated that the only sticking point to him would be that the walkway not be allowed to be covered unless it is proven that the deck is less than 6’ in height.
Ms. Rumskas stated that there are a few houses after this house on the same side of the street that have no grass or plantings. She questioned what would keep the applicant from doing the same thing. Mr. Kotzan stated that the applicant has to build to plan and there is a rain garden in the plan.
A motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to grant the necessary variances to build as per the plans submitted with the condition that the walkway connecting from the relocated garage shall not be covered unless it can be shown that the deck area in the rear was miscalculated and should not be included in coverage, i.e. less than 6 feet in height. The proposal is consistent with the neighborhood and is also consistent with all applicable coastal policies and takes all reasonable measures to avoid adverse impacts and the CAM is approved.
Reasons to grant:
1. As discussed, no further variances will be granted for this property.
2. The garage location reduces the nonconformity.
3. Case 13-03 C – Warren E. Hannas, 9-1 Halls Road
Chairman Stutts reviewed the facts of the case. She questioned whether the Board would like to get clarification for their counsel prior to deliberating. Mr. Kotzan stated that he would be willing to grant some of the variances but would like to see if the tanks could be relocated in a conforming location. Ms. Barrows stated that the parking spaces violate the setbacks. She noted that there are eight variances that need to be granted. Mr. Kotzan stated that they do owe consideration to the abutting neighbors. He indicated that he does not feel that because there is no frontage the lot cannot be improved upon. He noted that lots on Coult Lane do not have minimum squares. He noted that the minimum square regulation was intended to prevent narrow lots and once created, it does
not mean that the lots should not be improved upon. Mr. Kotzan feels that the frontage regulation is the same type of regulation where the purpose is more about the creation of lots without frontage.
Mr. Kotzan stated that Gateway approved the proposal and he takes their guidance in this type of situation. He noted that the neighbor is not in favor of the parking encroaching into the required setback. Mr. Kotzan stated that the applicant did not state whether the parking could be put in a conforming location. Mr. Smith stated that there are too many variables. Ms. Barrows noted that the hearing is closed and no additional information can be provided by the applicant.
Chairman Stutts stated that she feels the location of the propane tank can be solved. She indicated that she is concerned about the parking spaces in the setback and the size of the building. Mr. Kotzan stated that he is confused by Mr. Hendrik’s statement that they only need a variance for the frontage and the rest of the application can be approved by Zoning. The Board agreed that they would have to agree with Ms. Brown’s evaluation of the proposal.
A motion was made by Kip Kotzan and seconded by Richard Smith to grant the necessary variances as per the plans submitted. Motion did not carry, 0:5:0.
Reasons for denial:
1. There was not sufficient clarity to the application and the information presented was insufficient.
2. Parking in setback.
3. Applicant represented that they did not need the variances they requested.
4. Propane tanks can be relocated in a conforming location.
4. Case 13-04 C – William Chamberlain, 83 Connecticut Road
Chairman Stutts reviewed the facts of the case. She noted that the hardship is that they are not able to meet FEMA Regulations without violating the height regulations. Chairman Stutts stated that the applicant has water access to the boat launch running behind their house. She noted that she does not feel this house will be higher than the neighboring homes after it is raised.
A motion was made by Arthur Sibley, seconded by Richard Smith and voted unanimously to grant the necessary variances to accomplish the project as per the plans submitted. The proposal is consistent with the neighborhood and is also consistent with all applicable coastal policies and makes all reasonable measures to avoid adverse impacts and the CAM is approved.
Reasons to grant:
1. The house is being raised an additional 3.1’ to meet the FEMA flood standards.
2. There is no further encroachment into the setbacks and no change to the footprint.
3. Proposal is within the intent of zoning.
APPROVAL OF MINUTES
A motion was made Suzanne Stutts, seconded Arthur Sibley and voted unanimously to approve the minutes of the November 20, 2012 Regular Meeting with the following correction: page 3 under Open Voting Session for 28 Shore Road, it references Ms. Smith, it should be “Ms. Stone”.
ANY NEW OR OLD BUSINESS
None.
ADJOURNMENT
The Meeting adjourned at 9:55 p.m. on a motion by Kip Kotzan; seconded by Richard Smith and voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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