OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
Tuesday, March 19, 2013
The Old Lyme Zoning Board of Appeals held a Regular Meeting on Tuesday, March 19, 2013, at 7:30 p.m. in the Auditorium of Memorial Town Hall. Those present and voting were: Susanne Stutts, Chairman, J. McQuade, Vice Chairman, Arthur Sibley, regular member, Martha Rumskas, alternate (seated for Kip Kotzan) and Mary Stone, alternate (seated for Joseph St. Germain). Also present was Kim Barrows, Clerk.
Chairman Stutts called the meeting to order at 7:30 p.m.
1. Case 13-06 – Peter Doolittle, 65 Center Beach Avenue, variance to allow the placement of the HVAC condenser in the rear of the property.
Chairman Stutts read the existing nonconformities for the record: 8.8.1, minimum lot area, 10,000 square feet required, 4,000 square feet provided; 8.8.2, minimum lot area per dwelling, 10 square feet required, 4000 square feet provided; 8.8.3, minimum dimension of a square, 75’ required, 60’ provided; 8.8.7, street setback 25’ required, 16’ provided; 8.8.8, rear setback, 30’ required, 20’ provided; 8.8.9, minimum setback from other property lines, 12’ required, 6’5” provided on the south side and 8’ on the north side; 8.8.10, maximum floor area as a percent of lot area, 5 percent allowed, 29.5 percent existing; and 8.8.11, maximum lot coverage by buildings, 25 percent allowed, 29.5 percent existing. She noted that the proposal does not
comply with the following: 8.0.c, Yards and Lot Coverages; 9.1.3.1, General Rules, no enlargement on a nonconforming lot; and 8.8.8, minimum rear yard setback, 30’ required, variance of 5’ requested.
Mr. Doolittle stated that the hardship is that without the HVAC condenser they would have to use window units that would be unsightly. He explained that he would like to place the HVAC unit to the rear of his house, which is fenced. Mr. Doolittle displayed a photograph and noted that he would like to place the HVAC unit where the grill is located in the photograph. He stated that the unit is less than 37” wide by 34” deep.
Mr. Sibley stated that the cellar hatchway sticks out farther than the HVAC unit would.
No one present spoke in favor of the application. Hearing no further comments, Chairman Stutts called the hearing to a close.
2. Case 13-07 – Ronald S. Levitt, 25 Sargent Road, variance to construct a one car garage with storage.
Chairman Stutts read the existing nonconformities for the record: 8.8.1, minimum lot area, 10,000 square feet required, 6,500 square feet provided; 8.8.2, minimum lot area per dwelling, 10 square feet required, 6,500 square feet provided; 8.8.3, minimum dimension of a square, 75’ required, 50’ provided; 8.8.8, rear setback, 30’ required, 20’ provided; 8.8.9, minimum setback from other property lines, 12’ required, 4’ provided on the south side of the house; and 8.8.11, maximum lot coverage by buildings, 25 percent allowed, 31.1 percent existing. She noted that the proposal does not comply with the following: 8.0.c, Yards and Lot Coverages; 9.1.3.1, General Rules, no enlargement on a nonconforming lot; 8.8.10, maximum floor area as a percent of lot area,
27.1 percent proposed; 8.8.11, maximum lot coverage by buildings, 25 percent allowed, 37.8 percent proposed; and 8.8.9, minimum setback from other property line, 12’ allowed, 1’ proposed.
Mr. Levitt was present, along with his wife Emily, was present to explain his application. He indicated that they would like to retire and make this their permanent home and would like a garage. He indicated that his wife is a cancer survivor and because of a medical condition it would be difficult for her to navigate from the car to the house in bad weather. Mr. Levitt explained that the garage would only impact his neighbor on the north side, Peter Formica, who wrote a letter to the Commission indicating that he does not object to the garage. He indicated that there are many other homes with garages right on Sargent Road.
Chairman Stutts stated that the problem is the percent of building coverage. She noted that the surrounding homes that have garages have placed them toward the rear of the property. Ms. Stone suggested that it might make sense to make the garage less narrow. Tony Hendricks stated that he is not sure if changing the dimensions would make it harder to tie it into the house. He noted that with the medical condition they wanted to leave a little extra room on one side of the garage to allow them to exit the vehicle and get into the house.
Chairman Stutts stated that the proposed structure is two-story. She noted that for ease of access to the house, a carport would suffice. Mr. Sibley suggested that the applicant rethink the project. Mr. Levitt indicated that his builder was not able to be present this evening. Ms. McQuade stated that perhaps the applicant could remove some of the large deck.
Bruce Bergman, Attorney for the Levitt’s, requested a continuance of the Public Hearing.
A motion was made by Judy McQuade, seconded by Mary Stone and voted unanimously to continue the public hearing to the April 16, 2013 Regular Meeting.
3. Case 13-08 C – Peter W. Garvin, 1 West End Drive, variance to allow construction of a one and a half story, year-round single-family dwelling
Chairman Stutts read the existing nonconformities for the record: Chairman Stutts read the existing nonconformities for the record: 8.8.7, minimum setback from street, 40’ required, 8.4 to the pump house; 8.8.9, minimum setback from other property lines, 12’ required, 10’ (pump house); and 4.2.12, construction and enlargement of certain buildings adjoining coastal resources, 50’ setback required. She noted that the proposal does not comply with the following: 8.0.c, Yards and Lot Coverages; 4.2.12, construction and enlargement of certain buildings adjoining coastal resources, 50’ setback required; and 6’ variance requested for height of structure, 24’ allowed, 30’ proposed.
Attorney Cronin was present to represent the applicant, who was also present, along with Mr. Tremblay, an engineer with Angus MacDonald/Gary Sharpe and Associates. He explained that the Commission’s engineer provided height calculations. Attorney Cronin stated that the plan before the Commission this evening has a height of 1.5’ lower than the application originally stated. He indicated that they have a revised site plan to present that agrees with the Commission’s engineering report. He explained that the only difference in the site plans is the height in the zoning table which is now 29.6 feet.
Attorney Cronin stated that the existing nonconformities relate to the existing pump house on the lot. He explained that the pump house was put in for water service for all the homes in the area and is there by easement. Attorney Cronin submitted a photograph of the pump house for the record. He noted that the pump house has been in the location for a while and they are not asking the Board to grant anything in regards to the pump house.
Attorney Cronin stated that the proposed house is 1.5 stories. He noted that the lot is conforming and it borders on Tyler Street and West End Avenue. Attorney Cronin noted that the lot size is 21,000 square feet which is twice the R-10 zone requirement. He noted that the house faces Tyler Street and the access to the house will be on Tyler Street. Attorney Cronin stated that the house is proposed toward the rear of the lot. He noted that the dwelling is four bedrooms. He noted that for purposes of privacy there are little or no windows on the side of the structure. Attorney Cronin stated that the house complies with Zoning with the exception of the height. He noted that there is a 24’ height limit imposed by Zoning, but the FEMA requirements are bringing heights up. He indicated that one way around the height requirement is to design a flat roof. Attorney Cronin stated they have to elevate the first floor to elevation 13. He indicated that the proposal shows the first
floor at elevation 13.1 feet, which only leaves 17’ for the 1.5 stories of the dwelling. Attorney Cronin stated that the proposed height is 29.6’ which results in the variance request of 5.6 feet.
Mr. Tremblay explained that the lot elevation drops approximately 5’ in the middle. Attorney Cronin submitted a photograph showing the perspective of standing in the low spot and looking up toward the pump house. He submitted a photo from the same location looking toward the Garvin house next door. Attorney Cronin stated that there are raising the ground up two feet which will result in the house being 3.6 feet above grade. He noted that the home will be compatible with the surrounding homes.
Attorney Cronin stated that the hardship is the FEMA requirements. He noted that another property right down the street could put up a 1.5 story home with no problem. Attorney Cronin stated that the applicant could build a one story home the same size without a variance. He noted that because of the width and the buildable area toward the rear of the lot, it somewhat limits the type of dwelling that could be constructed on the lot. He explained that building a one story home and increasing the lot coverages reduces the ability of the lot to receive water and it increases run-off. Attorney Cronin stated that financially there is more value in a two story structure. He indicated that it is much more efficient to heat two stories.
Attorney Cronin stated that the proposed home is compatible with the surrounding homes. He noted that the DEP approved the application as it is consistent with the FEMA goals. Attorney Cronin stated that Mr. Metcalf requests a few things in his review letter and the applicant has no problem meeting any of Mr. Metcalf’s requests.
Carol Stanton, 57 Center Beach Avenue, stated that her entrance faces Tyler Street and she indicated she has no objection to the project.
Rocco Todaro, 47 Center Beach Avenue, fully supports the proposal.
Peter Doolittle, 65 Center Beach Avenue, stated he is in support of the proposal.
Attorney Cronin stated that Mr. Garvin’s parents, who live next door, are also in favor of the proposal.
Chairman Stutts stated that the neighbors at 44 West End Drive and the Jacob Family at 34 West End Drive submitted letters of support.
Hearing no further comments Chairman Stutts closed the public hearing.
4. Case 13-09 C – Paul Trinks & Steven W. Jaegar, 40 West End Drive, variance to allow demolition of existing dwelling and construction of new dwelling to meet new Flood Zone Requirements.
Chairman Stutts read the existing nonconformities for the record: 8.8.1, minimum lot area, 10,000 square feet required, 6,701 square feet provided; 8.8.2, minimum lot area per dwelling, 10 square feet required, 6,701 square feet provided; 8.8.3, minimum dimension of a square, 75’ required, 38.5’ provided; 4.2.12, no construction or enlargement within 50 feet of the shoreline; 8.8.7, minimum street setback, 40 feet required for narrow street, 17 feet provided; 8.8.9, minimum setback from other property lines, 12’ required, 1’ on the west and 3’ on the east side; and 8.8.11, maximum lot coverage by buildings, 25 percent allowed, no existing percentage indicated on application. She noted that the proposal does not comply with the following: 8.0.c, Yards and Lot Coverages;
9.1.3.1, General Rules, no enlargement on a nonconforming lot; 9.3.1, no enlargement of a nonconforming building; 4.2.12, no construction within 50’ of rocky shoreline; 8.8.7, minimum setback from narrow street, 19.5’ variance requested; 8.8.9, minimum setback from other property line, 12’ allowed, variance of 8.3 feet on west side and 17 feet on the east side; 8.8.10, maximum floor area as a percent of lot area, 41.9 percent proposed, variance of 16.9 percent requested; 8.8.6, maximum height of building, 24’ allowed, variance of 7.5 feet requested.
Chairman Stutts noted that the hardship provided is that the dwelling was damaged by a storm.
Donald Gerwick, PE, submitted a color-coded addendum to the site plan. He pointed out that the lot and structure are both pre-existing nonconforming, noting that the lot was created in 1919. Mr. Gerwick explained that the orange square represents the existing structure which sustained substantial damage. He noted that the square is basically on the property line. Mr. Gerwick stated that the basic size of the proposed house is basically the same size as the existing house. He noted that the house was designated in the 100 year flood zone and is now designated in the high velocity zone which is a substantially higher elevation standard. Mr. Gerwick explained that the basic flood elevation is elevation 14 and the Town requires an additional one foot, which mandates that the lowest part of
the structure is required to be at elevation 15 and is the basis for the height variance request.
Mr. Gerwick stated that they are requesting side yard setbacks but noted that is because the house is moved farther back from the roadway, which puts the structure 8 feet from mean high water. He noted that the deck goes an additional 10 feet beyond that. Mr. Gerwick explained that the house is currently located so close to the road that the occupant’s car is almost in the roadway. He noted that they have moved the house back from the roadway to accommodate parking and indicated that there will also be parking underneath the house.
Mr. Gerwick stated that Mr. Metcalf indicated that the structure drawings did not meet FEMA requirements. He explained that Mr. Trinks has spoken with a structural engineer and will engage him if the variance is approved and the proper plans will be submitted to the Building Department. Mr. Gerwick explained that the increase in coverage is for the deck beyond the house. He noted that the first floor is at elevation 16 and the natural grade is around elevation 5 or 6 so there will be a 10 foot rise to the deck. Mr. Gerwick noted that the deck will enable them to enjoy the outside without having to go down a flight of stairs each time.
Chairman Stutts noted that the side yard nonconformities have been reduced, but noted that coverage is being increased and the house is being increased a half story.
Mr. Gerwick stated that the current house is 1579 square feet and the proposed house is 1590 square feet. He explained that most of the expansion has taken place because of the exterior deck. Mr. Trinks stated that the deck area is an accommodation to his parents who will not be able to negotiate a flight of stairs each time they would like to go outside. He noted that the house is on the sand.
Mr. Gerwick stated that the Coastal Area Management concern with decks is the shading of beach vegetation and he noted that there is no beach vegetation and Mr. Trinks noted that there was no beach vegetation before the storm.
Mr. Gerwick stated that the parking area will be gravel.
Ms. McQuade noted that the neighbors at 46 West End Drive, 34 West End Drive and 44 West End Drive all submitted letters in support of the application.
Chris Garvin, 3 West End Drive, stated that he is in favor of the application.
Peter Garvin, 7 West End Drive, indicated his approval of the application.
Hearing no further comments, Chairman Stutts closed the Public Hearing.
VOTING SESSION
Ms. Stone stated that many people from Old Lyme Offices went to the CT Bar Association Land Use Law Program at Wesleyan. She indicated that they listened to presentations from eleven different lawyers who covered Planning, Zoning and ZBA lectures and problems that affected all three. Ms. Stone stated that she wanted to talk to the ZBA members about how the motions must include reasons, which was something that was brought up by eight different lawyers.
Ms. Stone stated that the reasons must be stated completely and correctly because if something is challenged, they cannot look to the minutes for additional reasons. She noted that it is very important that the reasons be stated accurately as part of the motion. Ms. Stone stated that Ms. Barrows made worksheets for the four cases this evening and while deliberating she will write down the reasons discussed and they can be incorporated or not into the motion.
1. Case 13-06 – Peter Doolittle, 65 Center Beach Avenue, variance to allow the placement of the HVAC condenser in the rear of the property.
Chairman Stutts reviewed the facts of the case. Chairman Stutts stated that the lot already has 29.5 percent coverage and stated that there are alternate ways to cool. Mr. Sibley stated that he feels this is a mechanical and is a desirable requirement for a house. He indicated that he does not see anything objectionable about it at all. Ms. McQuade stated that it is perfectly acceptable. Ms. Rumskas agreed. Ms. Stone noted that the pad increases the nonconformity but it is unobjectionable. Mr. Sibley noted that the pad is flush to grade.
A motion was made by Arthur Sibley, seconded by Judy McQuade and voted unanimously to grant the necessary variances to allow the placement of the HVAC condenser in the rear of the property as shown on the sketch submitted which is approximately 15 feet from the rear property line on property located at 65 Center Beach Avenue.
Reasons:
1. It is a mechanical solution to accommodate machinery.
2. Does not increase living space.
3. Does not extend beyond current basement entrance.
4. The pad will be flush to grade.
2. Case 13-07 – Ronald S. Levitt, 25 Sargent Road, variance to construct a one car garage with storage.
The public hearing is being continued to the April 16, 2013 Regular Meeting so that the applicant can work with the builder to reduce the size of the proposed garage or change from a garage to a carport.
3. Case 13-08 C – Peter W. Garvin, 1 West End Drive, variance to allow construction of a one and a half story, year-round single-family dwelling
Chairman Stutts reviewed the facts of the case. Mr. Sibley stated that FEMA requires a higher elevation and by doing so the height of the house must be increased to remain the same. Chairman Stutts stated that there is no mention in the Regulations that says people with a FEMA requirement for height get a pass on the height regulation. Mr. Sibley stated that there is nothing wrong with the construction of the house being 1.5 story; he noted that FEMA demands any new structure be at a specified minimum height. Mr. Sibley stated that it is the FEMA requirement that is driving the height variance. He noted that the FEMA requirement is protecting the dwellings and in order to do that it can be very difficult to meet the 24’ height requirement.
Chairman Stutts stated that there will be many similar requests and questioned how to determine a consistent limit. Mr. Sibley stated that they could take the FEMA level and add the 24’ height maximum. Chairman Stutts and Ms. McQuade noted that that would be too much. Chairman Stutts noted that this particular house is being constructed in a bowl, which gives them five feet more than others who might start on a ledge. Ms. Stone stated that she feels it should be considered on a case by case basis. The Commission, with the exception of Chairman Stutts, felt that FEMA regulations can be a hardship.
Ms. McQuade pointed out that the lot in question is a double-lot and they could build a single story house the same size, although they indicated that they didn’t want to do that. Ms. Rumskas pointed out that there are many one and a half, two and three story homes in the area. Mr. Sibley stated that there is nothing detrimental about the height unless there are views being blocked.
Ms. McQuade stated that there are not many homes that have come before the Board looking for a variance of height that was driven by FEMA requirements that the Board has not granted. Mr. Sibley pointed out that this is a new construction. Ms. Stone stated that a single-story home would have twice the coverage; she noted that she would rather see the one and a half story with a slight height variance to keep the coverage less. Mr. Sibley agreed.
Ms. Rumskas stated that many homes need to be elevated so there will not be an end to these type of applications for a long time. Ms. Stone stated that the Zoning Regulations may want to consider height of structures in flood zones.
A motion was made by Judy McQuade, seconded by A. Sibley and voted unanimously to grant the necessary variances to allow the construction of a one and a half story, year round single family dwelling as shown on the Site Development Plan dated December 20, 2011 and revised through March 18, 2013 for property located at 1 West End Drive. The Coastal Site Plan Review Application for this appeal is also approved because it is consistent with all applicable coastal policies and includes all reasonable measures to mitigate adverse impacts.
Reasons:
1. A hardship exists as the house is in flood zone with a base flood elevation of 13.1 feet.
2. New FEMA regulations reduce available height for the structure within the Old Lyme Zoning Regulations, necessitating a 5.6’ height variance.
3. A one and a half story house reduces lot coverage and is more in conformity with the existing neighborhood, as opposed to a one story house with a larger footprint.
4. Case 13-09 C – Paul Trinks & Steven W. Jaegar, 40 West End Drive, variance to allow demolition of existing dwelling and construction of new dwelling to meet new Flood Zone Requirements.
Chairman Stutts reviewed the facts of the case. Chairman Stutts noted that the single-story home is being replaced with a 1.5 story-home. She explained that the coverage is also being increased by a deck. Chairman Stutts noted that their hardship is the destruction of their property which allows them to rebuild, but she noted that the regulation does not allow them to expand. Ms. Stone stated that the deck bothers her because it protrudes out much farther than any of the surrounding structures. She noted that it is also very large and the reason given for it being required is irrelevant. Ms. Stone noted that OLISP also had objections stating that it was a large structure protruding into a protected area.
Chairman Stutts agreed and suggested that the size of the deck be reduced. Ms. Stone stated that the deck is 10 feet deep and extends the entire width of the house. The Board reviewed the drawings and noted that the deck is 30’ by 10’ plus the stairs. Ms. Stone suggested making approval conditional on the applicant reducing the deck. She reiterated that it is a massive deck in a protected area.
Ms. Stone stated that the deck could be half the size and could still be useful. Mr. Sibley suggested that the condition of approval give an exact size for the deck, such as 10’ x 15’. Chairman Stutts suggested that the deck and stair depth not to exceed 10 feet and the width not to exceed 20 feet. Chairman Stutts stated that they should add to the condition that the plans must be approved by the Chairman of the Zoning Board of Appeals.
A motion was made by Martha Rumskas, seconded by Arthur Sibley and voted unanimously to GRANT the necessary variances to allow demolition of the existing dwelling and construction of a new dwelling meeting FEMA codes as shown on “Plan showing proposed modified site plan on property of Paul Trinks and Steven W. Jaeger 40 West End Drive dated February 1, 2013” with the following conditions:
1. Combined deck and stair depth not to exceed 10 feet.
2. Deck width not to exceed 20 feet.
3. Applicant must submit a new plan, which will be reviewed by the Chairman of the ZBA, that includes dimensions and elevations for the new house and reduced deck.
The Coastal Site Plan Review Application for this appeal is also approved because it is consistent with all applicable coastal policies and includes all reasonable measures to mitigate adverse impacts.
APPROVAL OF MINUTES
Ms. Stone stated that the Board must be careful to clearly state their reasons for their motions. She stated that she is trying to protect the Board and noted that she has several corrections to the minutes which she distributed to the Board Members. Ms. Stone stated that on Page 6 they need to discuss and clarify the reasons given for approval or denial. Chairman Stutts stated that she believes the reasons given in the minutes are fine and covers what was said. Ms. Stone stated that she would like to propose a clarification that “the Board would rather see a smaller expansion of the existing footprint if an expansion is required at all.” Chairman Stutts indicated that she did not like that statement at all. She stated that she does not want them to think there is any room
for them to go outside the footprint. Ms. Stone stated that their plan did go outside the footprint. Chairman Stutts indicated that that is why the Board denied it; she noted that the Board gave the applicant a chance to rework their plan and come back with a proposal within the existing footprint. Ms. Stone stated that her major objection was that the home was being moved closer to the water.
Chairman Stutts stated that the Board cannot rehash this now and believes that the new tradition in making motions will help with clarification of reasons. She noted that discussing this last situation now especially with the absence of other members that were present. Ms. Stone stated that she does not believe the minutes reflect accurate reasons for the denial. The Board members agreed to look over Ms. Stone’s comments and vote on the minutes at the April Regular Meeting.
Ms. Barrows pointed out that if there was a lawsuit, a transcript would be required which would be a verbatim account of the hearing.
ANY NEW OR OLD BUSINESS
Chairman Stutts stated that Eileen Coffee would like the people who are up for re-election to verify that they are on the ballot for next year (2013/2014). Chairman Stutts stated that the records show it is Arthur Sibley, Suzanne Stutts, Martha Rumskas, Mary Stone and Richard Smith that are up for re-election.
Chairman Stutts stated Mr. St. Germain was contacted by Eileen Coffee by certified mail regarding his position on the Board. She noted that Mr. Sibley will now try to contact him as it is important to replace him if he is not attending meetings.
ELECTION OF OFFICERS
No action taken.
ADJOURNMENT
The Meeting adjourned at 10:00 p.m. on a motion by A. Sibley; seconded by J. McQuade and voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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