OLD LYME ZONING BOARD OF APPEALS
REGULAR. MEETING
Tuesday, November 19, 2013
The Old Lyme Zoning Board of Appeals held a Regular Meeting on Tuesday, November 19, 2013, at 7:30 p.m. in the Auditorium of Memorial Town Hall. Those present and voting were: Judy McQuade, Chairman, Mary Stone, Secretary, Arthur Sibley, Kip Kotzan and Karen Conniff.
Also present were: Laurie O’Brien, alternate, Harry Plaut, alternate and Kim Barrows, Clerk.
Acting Chairman McQuade called the meeting to order at 7:30 p.m.
PUBLIC HEARING
1. Case 13-32A – 50 Shore Road, Janet Lage and Randy Nixon, appellants - Appeal of Zoning Enforcement Officer’s Letter dated August 11, 2013.
Chairman McQuade noted that the prior Chairman, Ms. Stutts, asked counsel how the Board should proceed in this case. She indicated that the first question is to whether the appeal is timely and the second question is to whether the decision is appealable. Chairman McQuade asked Ms. Lage if she was in receipt of counsel’s letter. Ms. Lage indicated she in fact was but expressed surprise that the hearing is starting with this letter because the Board advertised the appeal hearing. Chairman McQuade noted that the Board needs to consider whether they want to vote on the appeal.
Ms. Lage stated that the notice says there will be a public hearing. Mr. Nixon stated that they are present for an appeal hearing. He indicated that they have spent money on an attorney and have spent their time preparing for the appeal hearing.
Ms. Lage stated that she has lived on 46 McCurdy Road for 32 years and her property abuts 50 and 46 Shore Road. She explained that her attorney could not make this evening’s hearing so she will be reading his response to the two questions of the Board. Mr. Nixon read Attorney Ziska’s letter in support of the Appeal. Ms. Lage distributed copies of the letter to the Board members and submitted one as an exhibit. Attorney Ziska noted in his letter that Ms. Brown made a decision in her letter to Ms. Lage indicating that the cited Zoning Regulations did not apply; interpreting the cited Zoning Regulations is a decision. He also indicated in his letter that the appeal was filed timely.
Ms. Lage read her email to Ms. Brown dated July 18, 2013 which indicates that the ZBA held her determination that the structure does not need a Zoning Permit as it is a temporary, movable structure. Ms. Lage noted in her email that as such it is in violation of Section 4.11. Ms. Lage noted that the Board already has a copy of the letter Ms. Brown wrote in response.
Ms. McQuade requested clarification from Attorney Royston as to how the Board should proceed. Attorney Royston stated that the Board should inquire of the ZEO or her counsel as to whether they agree/disagree on the matter of timeliness and whether it is an appealable decision and also whether they have any other facts to add. Attorney Knapp was present to represent Ms. Brown. He indicated that he disagrees with Attorney Ziska’s calculation of timeliness and he believes the appeal to be untimely. He stated that he believes the easiest and best thing to do is to move forward and hear the appeal regardless of the timeliness. Attorney Knapp read from Ms. Brown’s letter: “as previously determined by me and confirmed by the Old Lyme Zoning Board of Appeals, the sunshade over
the boat is not a structure.” Attorney Knapp noted that this information is not new; it is not a new decision. He explained that the Board already made a decision which is now before the Superior Court. Attorney Knapp pointed out that Ms. Lage had Attorney Ziska present at her original appeal hearing and did not bring up this Regulation. He indicated that there is no new decision.
Ms. Lage stated that she would like everyone to know that she has at least two dozen additional emails requesting clarification of Section 4.11 as it applies to the boat sunshade. She stated that her original appeal was strictly an appeal of the decision of the Zoning Enforcement Officer that the sunshade was not a structure. Ms. Lage stated that now there is a use violation which is a new issue. She noted that Ms. Brown’s original decision was that the tent was not a structure and therefore does not require a Zoning Permit. Ms. Lage stated that Section 4.11 states one cannot use a tent as an accessory use. Mr. Nixon stated that Section 3 defines a use as “Any purpose for which a building, structure, or premises might be designed, arranged, tended, maintained or occupied or any
activity, occupation, business or operation actually carried on in a building or other structure or on a lot or forest.” He noted that the sunshade is not a primary use, so it must be either an accessory use defined as “an addition to the principle use which is clearly subordinate to and customarily incidental to and located upon the same lot as the principle use” or a completely prohibited use. Mr. Nixon stated that Section 4.11.b provides that any use of a lot, buildings, or structures not specifically set forth in these Regulations as a permitted use shall be deemed to be a prohibited use.
Ms. Lage stated that she has notified Ms. Brown for months on this violation and it took two months for her to respond. Attorney Knapp stated that Ms. Brown is not required to respond to any inquiries. He stated that even if Ms. Lage is absolutely correct in her interpretation, Ms. Brown cannot be forced to issue a Cease and Desist. Attorney Knapp stated that Ms. Lage is trying to force Ms. Brown to take an enforcement action that she is not going to take. He reiterated that there is no decision for Ms. Lage to appeal, despite her repeated attempts to get an answer. Attorney Knapp stated that Ms. Brown’s letter just indicates that what happened in June is still true today.
Ms. Lage stated that she did receive an answer from Ms. Brown. Attorney Knapp stated that it was not a decision. Ms. Brown stated that she will stand by her Attorney’s decision. She noted that she read the letter she sent Ms. Brown and she read Ms. Brown’s response into the record.
Mr. Nixon explained that Ms. Brown’s response refers to the cited Zoning Regulations and the cited Zoning Regulations in the letter which they wrote to her was 4.11. He stated that Attorney Branse can spin that any way he wants to but the only regulation cited in Ms. Lage’s letter is Section 4.11.
Attorney Royston stated that with respect to the issue as to whether the appeal was timely filed, he is uncertain as to Attorney Ziska’s analysis because the Regulation says within 30 days, not within 30 days after as some Regulations state. He indicated that he was unable to come up with a case that deals with that language and he could not find one. Attorney Royston stated that Attorney Knapp indicated that the better ground is to whether this is an appealable decision. He indicated that he agrees with Attorney Knapp in this regard. Attorney Royston stated that the letter of August 12 does not constitute a decision of the Zoning Enforcement Officer from which an appeal can be taken. He noted there is case law and cited one regarding a handwritten notation by the Zoning Enforcement
Officer on a Permit and the Court found that it was not an appealable decision. Attorney Royston stated that Attorney Ziska feels that the cited Regulation referred to in Ms. Brown’s letter is Section 4.11, therefore this is a decision interpreting Section 4.11. He stated that he feels this is an extensive stretch. Attorney Royston stated that it is his opinion that this is not an appealable decision. He urged the Board to consider all the Attorney’s opinions. Attorney Royston stated that he does not believe this is the proper forum to consider this. He indicated that Ms. Lage feels there is an existing use violation. Attorney Royston stated that he feels she is using the vehicle of an appeal to get action from the Zoning Enforcement Officer. He stated that a person who is not receiving action from a Zoning Enforcement Officer to enforce a regulation has the right to commence an independent action to force them to.
Attorney Royston stated that he does not feel this is an appealable decision and that this is not the proper forum. He recommended that the Board make a motion to dismiss the appeal on the basis that it is not an appealable decision. He stated that if the motion is defeated the Board can address the second question as to whether the appeal is timely.
The Board discussed whether to make a motion to dismiss at this time. Mr. Sibley stated that he feels it should be done during the open voting session.
A motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to dismiss the appeal of Janet Lage and Randy Nixon on the grounds that it is not an appealable decision that was put forth by Ann Brown in a letter dated August 12, 2013.
Ms. Stone stated that she feels there were great points made on both sides, but she does not believe a decision was made by the Zoning Enforcement Officer.
Attorney Royston advised that because the Board made a decision on this matter, it should be published as all other decisions of the Board are published.
2. Case 13-33 – Mark Brett & Matthew Fleischer, 458 Shore Road
Ms. McQuade noted that the existing nonconformity is in regard to the minimum required square, 130’ provided, 150’ required. She noted that the proposal does not comply with Yards and Lot Coverages; 9.1.3, expansion of a building on a nonconforming lot; and 8.9.11, maximum floor area, 20% allowed, 21.7% proposed.
Attorney Cronin was present to represent the applicants. He explained that the lot is 41,765 square feet, well in excess of 30,000 square feet required in the Business 30 Zone. Attorney Cronin stated that the property is a multi-use property and the reconstruction of a building on the property on the same footprint triggered an application to the Zoning Commission. He explained that in certain circumstances an applicant can reconstruct on a nonconforming lot by Special Permit and the significance of that is that a hardship does not have to be shown. Attorney Cronin stated that a Special Permit Application was made to add a residential apartment on the second floor of the structure, along with other basic improvements, and was approved by the Zoning Commission. He reiterated that the lot is
only nonconforming as to the square. Attorney Cronin explained that there is one segment of the application that the Zoning Commission could not approve which is a porch addition that runs along the side of the second floor and is 14 feet in width and 40 feet long. He noted that half of it is an enclosed porch and half is an open deck. Matthew White, Angus McDonald, Gary Sharpe & Associates, explained the architectural drawing.
Attorney Cronin noted that Mr. Brett will be residing there. He noted that from the deck there is a nice view of the Four Mile River. Attorney Cronin stated that the work is ongoing under the Special Permit. He indicated that the 150’ square was adopted long after the property was established as a lot.
Mr. White explained that the existing floor area coverage is 19.8 percent on the lot. He noted that adding the floor area of the porch and deck of 532 square feet brings it to 21 percent floor area. Chairman McQuade noted that Ms. Brown indicates that there is 21.7 percent floor area. Mr. White stated that he reviewed her letter and they agree on the square footage of the existing buildings. He noted that Ms. Brown has 560 for the porch and then an additional 259 square feet; he noted that she does mention the lower level of the addition. Mr. White stated that the addition does not have a lower level. Chairman McQuade noted that because the headroom underneath is over 6 feet it has to be counted.
Attorney Cronin stated that the hardship is that they are not starting from scratch but are adding onto an existing structure. He noted that the floor area restriction is meant to deal with over use of a lot and he pointed out that this is a very large lot. Attorney Cronin noted that most of the first floor is used for storage which is not an intense use and the additional 1.7 percent of floor area does not increase the intensity of the use. He indicated that cutting back on the width of the porch will decrease the practical use of it.
Mr. Kotzan suggested that the Board could approve the proposal with a stipulation that the lower level of the building cannot be used as a residence.
Ms. Stone stated that she remembers when the garage was built in this neighborhood of small houses. She noted that the garage is huge in comparison. Ms. Stone stated that she does not want to see these structures get any bigger. She stated that if they were determined to live there she would think it would be best to renovate the entire structure rather than add onto an already large structure. Ms. Stone stated that she is not in favor of it. Attorney Cronin stated that the property is a mixed use and this proposal makes it more compatible with the existing residential uses in the area. He stated that the size of the buildings was taken into consideration by the Zoning Commission. Attorney Cronin stated that there will be no adverse impact to the neighborhood. He noted that
they could reduce the property 1.7 percent and retain the porch but it would not make an impact.
Chairman McQuade questioned the storage container. Mr. Brett noted that the storage unit is being used during the renovation and will be removed. Chairman McQuade questioned why there are vehicles parked along Four Mile River Road when there is plenty of parking on site. Mr. Brett indicated that those two vehicles were for sale and one has sold. He indicated that once they move in the property will be cleaned up. Attorney Cronin noted that they are doing site work and making improvements. Mr. Brett stated that they are no longer storing vehicles on site.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Stutts closed this Public Hearing.
OPEN VOTING SESSION
1. Case 13-33 – Mark Brett & Matthew Fleischer, 458 Shore Road
Chairman McQuade reviewed the facts of the case. She noted that the proposal is to add a second story deck and three-season porch on the existing structure. Chairman McQuade stated that the porch and deck adds 1.7% to the floor area which increases it to 21.7% where 20% is allowed.
Ms. Stone stated that even though the proposal improves the desirability of the living unit, the living unit itself required a Special Exception. She noted that it makes a big thing even bigger. Ms. Stone questioned whether this type of an improvement should even be considered for a residential unit on a commercial property.
Mr. Kotzan stated that the Regulation they are being asked to vary is maximum floor area. He indicated that there is not a lot coverage issue. Mr. Kotzan stated that 20 percent is a very low floor area ratio. He indicated that floor area is intended to control intensity of use and he does not feel there will be an increase in intensity by this addition.
Mr. Sibley stated that he understands Ms. Stone’s comments but he feels that this is a small thing to make the livability of the unit better. He indicated that denying this proposal would not decrease the intensity of the use.
Ms. Stone stated that so much of the lot is devoted to parking because it is a commercial property. She noted that it is not your typical residential site which is why the Board should not grant this as they might for a residential use. Ms. Stone stated that the garage is huge and she cannot see adding more to that building.
A motion was made by Kip Kotzan, seconded by Arthur Sibley and voted to grant the necessary variances to allow construction of an enclosed three-season porch and a second story deck as an addition to existing building as depicted on plans entitled “Site Development Plan property of Mark J. Brett & Matthew B. Fleisher 458 Shore Road – Conn. Route 156 Old Lyme Connecticut Dated May 13, 2005, Scale: 1” = 20’, Sheet 1 of 1 revised 6/9/05, 6/5/06, 6/8/06, 5/23/13, 8/5/13, 8/19/13, 9/3/13 and 10/1/13 prop porch and deck” with the condition that the three-season room will not be heated. Motion carried 4:1:0, with Mary Stone voting against.
Reasons:
1. It is an addition to an already approved plan and varying the regulation for floor area seems reasonable in this situation given the mixed use of the property.
APPROVAL OF MINUTES
No action taken.
ANY NEW OR OLD BUSINESS
Ms. Barrows explained a letter from Stephen Mortimer of 26 Sea View Trust, LLC, dated October 18, 2013 requesting a two-year extension to commence work at property located at 26 Sea View Road. It was noted that the variances were granted in June of 2012 to allow demolition of existing dwelling and construct new house attached to existing garage. Ms. Barrows noted that the Board has granted extensions in the past. Ms. Stone read the letter from Stephen Mortimer.
Mr. Sibley stated that he would be against giving an extension of longer than one year and he would like to stipulate that they will not renew this extension in the future. Mr. Kotzan agreed this was reasonable and stated that if Mr. Mortimer would like to wait two years he can re-apply. Ms. Stone pointed out that the applicant is requesting an extension due to the real estate market. Mr. Kotzan stated that he does not like the idea of people fishing for variances that they might use.
A motion was made by Arthur Sibley, seconded by Kip Kotzan and voted to grant a one-year non-renewable extension, from February 1, 2014 to February 1, 2015, on the variances as previously granted for 26 Sea View Trust, LLC, 26 Sea View Road to allow demolition of existing dwelling and construct new house attached to existing garage. Motion passed 4:1:0, with Ms. Stone voting against.
Ms. Barrows explained a request to change the roofline on the garage at 25 Sargent Road where variances were granted in June of 2013. The new proposal was distributed to the members, along with the proposal that was originally approved. Ms. Barrows noted that the change in the roof pitch eliminates the door in the front. The Board members agreed that the new proposal is more visually appealing.
A motion was made by Mary Stone, seconded by Arthur Sibley and voted unanimously to approve the change to the roofline to the already approved variance granted in June of 2013 at 25 Sargent Road as presented, as it is a reasonable change which improves the appearance and functionality of the building without increasing the footprint.
Chairman McQuade welcomed all the new Board Members and Alternates. She explained that those voting cannot ask questions during the voting session. Chairman McQuade stated that Attorney Royston mentioned that Board Members should not take pictures when they visit properties.
A motion was made by Kip Kotzan, Seconded by Richard Smith and voted unanimously to adjourn at 9:18 p.m.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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