OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
Tuesday, March 18, 2014
The Old Lyme Zoning Board of Appeals held a Regular Meeting on Tuesday, March 18, 2014, at 7:30 p.m. in the Auditorium of Memorial Town Hall. Those present and voting were: Judy McQuade, Acting Chairman, Mary Stone, Secretary, Art Sibley, regular member, Karen Conniff, regular member and Kip Kotzan, regular member.
Also present was: Harry Plaut, (14-02C) alternate, Laurie O’Brien, alternate, David M. Royston, Esquire (ZBA Counsel), Ann Brown, Zoning Enforcement Officer and Kim Barrows, Clerk
Acting Chairman McQuade called the meeting to order at 7:35 p.m.
PUBLIC HEARINGS
1. Case 14-04 A – Appeal of a Cease & Desist Order, 18 Lyme Street, Barbara Crowley, applicant.
Acting Chairman McQuade read the Cease and Desist Order for the record and noted it was dated January 17, 2014. She noted that the C&D was issued for establishing a take-out restaurant and restaurant without permits in violation of Section 5.4 of the Regulations and installing a sign without permits in violation of Section 19.1. Acting Chairman McQuade stated that the Board members have familiarized themselves with the file.
Attorney Cronin was present to represent Barbara Crowley, who was also present. He stated that they are contesting the validity of the Cease and Desist Order dated January 17, 2014. He distributed copies of the first page of the C&D to each Board member. Attorney Cronin stated that the Order asks that the property owner stop doing three things: 1) establishing a take-out restaurant without permits; 2) establishing a restaurant without permits; and 3) Installing a sign on the property, specifically the one that states “Café Open.” He noted that the order claims that for take-out restaurants the violation is brewing hot and cold drinks on the premises and selling to customers for consumption off the premises and for restaurants, the violation is serving drinks and
retail food items for on site consumption, installation of chairs and tables with the expectation that customers will sit and consume food or drinks at the tables on site. Attorney Cronin stated that the Order indicates that this is not permitted in a Residence (R) Zone which is where the property is located. He explained that the property is owned by Warren Hannas who is also present this evening with counsel and noted that Mr. Hannas has owned the property for approximately 25 years. Attorney Cronin presented the assessor’s record which shows the layout
of the property and asked that it be marked as Exhibit 1; he noted that there are extra copies for Board members.
Attorney Cronin stated that the total area of buildings on the property is approximately 4,000 square feet and is known generically as the Village Shoppes and has four tenants. He stated that the second page of the assessor’s card has a photograph of the building and above that a diagram. He explained the floor plan of the shop, totaling 424 square feet in area. Attorney Cronin stated that there is a 12’ x 19’ area in the rear which is designated PTO on the assessor’s card, which is a patio; he noted that this business is a very small use in the building. He explained that the different uses in this area of the building over the years can be determined by the assessor’s cards, which he has. Attorney Cronin stated that records go back to the 1950’s when
zoning was established. He noted that the use has been grandfathered since the start of zoning. Attorney Cronin stated that the 1990 card shows six tenants, one of which is the Chocolate Shell. He noted that the 1980 card has a reference to the Chocolate Shell and the note on the card says the rent was $150.00 a month. Attorney Cronin noted there was a grocery store, a liquor store and a pharmacy in the past. He asked that the assessor’s cards be made part of the record.
Attorney Cronin presented a photograph dated 1928 with a picture of the structure and at that time it was an IGA grocery store. He submitted this photograph into the record. Attorney Cronin stated that the building is devoted to business use over the last 60 to 70 years. He read a letter from Mr. Hannas explaining the history of this nonconforming commercial building, which was submitted into the record.
Attorney Cronin questioned Ms. Crowley. She stated that she purchased the store in 2011 and at that time it was the Chocolate Shell. She stated that she began making changes to the business in April 2013, which included painting the back of the shop, adding a new display for the chocolates and pre-baked products, she added a coffee maker, installed more shelving and added a sink for employees to wash their hands. Ms. Crowley stated that she first heard from the Zoning Enforcement Officer in June 2013 and at that time she sent Ms. Brown a letter advising her of what improvements had been made. Attorney Cronin noted that this letter is dated July 22, 2013 and is included in his submittal and asked that it be made part of the record. He noted that in this letter Ms. Crowley points out that the
shop’s products have changed over the years, at one point selling ice cream, and that the new products fall into the sweets and chocolate category which the shop is known for. He also noted that she states in the letter that all the products are purchased by Ms. Crowley and resold; the coffee is served in paper and the chairs are provided as a courtesy to give the customers a place to sit; there is no waitress service; she noted that cold drinks have been sold at the shop over the years and there have been tables on the patio for some time. Ms. Crowley stated that her statements in this letter are accurate and still are at this time. Attorney Cronin introduced a photograph and asked that it be made part of the record. Ms. Crowley stated that the picture at the top left shows the display case; she stated the right hand side shows the espresso machine on a countertop that she had constructed and installed; she stated that the bottom left shows the
frontal view inside the shop looking toward the back door of the shop that goes out to the patio; and the bottom right-hand shows an area where she put in a countertop with three stools.
Ms. Crowley noted that employees do not wait on customers; she does not have a menu and she does not make food. She indicated that the food is delivered to the shop and she puts it in the case; she stated that people take it out of the case and bring it to the counter to purchase. Ms. Crowley stated that probably only 1 percent of her sales are consumed at the shop. She noted that the chairs inside have occasionally had one person sitting in them and she has yet to have three people using the chairs at the same time.
Ms. Crowley stated that she is not a licensed food handler and she is aware that there is a license required to prepare food. She noted that the Town has never inquired as to whether she is a licensed food handler. Ms. Crowley stated that none of her employees are licensed food handlers but in the past, one part-time employee was.
Harry Plaut questioned how many cups of coffee are sold on a daily basis. Ms. Crowley replied five to eight cups per day and most of them are to go. She noted that she also sells water, soda and juice. Mr. Plaut questioned whether she would have to stop selling water, soda and hot chocolate if she stopped selling coffee. She indicated that she does not know how to answer that. Mr. Plaut stated that the issue is the Town does not want her selling coffee, but it is okay for her to sell hot chocolate. Ms. Crowley stated that she does not know. She indicated that she believes the coffee maker is the problem. Ms. Brown stated the selling of prepared hot drinks constitutes a take-out food service which requires more zoning scrutiny. She indicated that any hot or cold
prepared drinks would be a change of use. Mr. Plaut stated that hot chocolate was allowed to be sold prior to this issue. Ms. Brown stated that it is her understanding from Ms. Crowley that hot chocolate had always been sold at the shop. She indicated that if that were true there would not have been a cease and desist order. Ms. Brown noted that Ms. Crowley has acknowledged that she initiated making the hot chocolate, not the prior owner. She noted that it was strictly a retail shop prior to Ms. Crowley’s ownership. Ms. Brown stated that she was unaware that hot chocolate was being sold at the shop until she received a complaint regarding the coffee.
Attorney Cronin read the definitions of restaurant, fast food; restaurant, full service; and restaurant, take-out, from the Zoning Regulations. He noted that the definition of take-out restaurant is such that if you went to Big Y and bought a bag of potatoes and went home and cooked and ate them, would constitute Big Y being a take-out restaurant. Attorney Cronin stated that anywhere in Town where you purchase food would be considered a take-out restaurant by this definition. He indicated that the Chocolate Shop has been a take-out restaurant since this Regulation was enacted which was 3/7/08. Attorney Cronin stated that this section references Section 11.1.2 and 11.1.2.6 is high volume, short duration restaurants, usually referred to as fast food restaurants, which are prohibited. He noted
that Section 11.1.2.5 states “the foregoing restrictions shall not apply to a take-out restaurant in which the retail sale of specialty foods to be consumed primarily off the premises with only incidental on premises consumption such as ice cream and donut shops, delicatessens, gourmet and health food stores and the like.” Attorney Cronin submitted that based on the facts in this case, the Chocolate Shell comes with the purview of this exception. He noted that the Chocolate Shell is a take-out restaurant but the standards of restaurants do not apply because it would be considered at least a gourmet food store. He stated that based on all these facts, Ms. Crowley has the right to do and continue to do what she has been doing.
Attorney Cronin stated that the Chocolate Shell is a take-out restaurant and is pre-existing, nonconforming to the adoption of the regulation on 3/7/08. He indicated that they have the right to continue. Attorney Cronin stated that there is nothing in the Regulations to support the assertion that the Chocolate Shell cannot brew coffee; he noted there is nothing that prohibits that in the Regulations.
Attorney Cronin stated that the order indicates that a restaurant has been established without permits. He noted that the term restaurant is not defined in the Regulations, only the three specific types he mentioned earlier. Attorney Cronin stated that nowhere in the Town of Old Lyme Regulations is Restaurant an allowed use in any zone. He noted that only in the C-30 Zone is a take-out restaurant allowed. Attorney Cronin stated that Restaurant is defined in the Webster Dictionary as “an eating house; a place where meals can be bought and eaten.” He indicated that by looking at all the facts and this definition, the Chocolate Shell is not a restaurant.
Attorney Cronin noted that the third item on the cease and desist is for the sign that reads “Café Open.” He indicated that café means coffee in French; he noted that in Connecticut cafes also sell beer and other alcoholic beverages so someone driving by could be mislead as to what is being sold. Attorney Cronin noted that Ms. Crowley has taken the sign down and it will remain down.
Attorney Cronin stated that the last issue is whether there has been an expansion of a nonconforming use. He explained that because this type of litigation is fact-based, one cannot take the information from the case law and apply it to this case, unless one knows all the facts. Attorney Cronin noted that many cases have found that an increase in business or intensification of use is not an expansion of a nonconforming use. Ms. Crowley stated that she advertises on her web page, on Facebook, in The Day, Shoreline Times, and on the radio. She indicated that she has had an increase in business as a result of her advertising. Attorney Cronin stated that this increase in business is not an expansion of a nonconformity. He also noted that there is no room for the business to physically
expand within the 400 square feet. Attorney Cronin noted that there are many letters in the file both in favor and against and he is not going to read each and every one of them.
Attorney Cronin stated that the building has been used commercially since before zoning existed in Old Lyme. He noted that because the area was established so long ago there are some things lacking, such as parking. He noted that this was not caused by Ms. Crowley’s business. He indicated that any congestion that exists should not be solely attributed to Ms. Crowley or her activities. Attorney Cronin submitted a petition with 120 signatures supporting the Chocolate Shop. He submitted this and several letters into the record.
Attorney Cronin stated that there are two other facilities, 134 Lyme Street, the Ice Cream Café and 64 Lyme Street known as Café. He noted that these two properties are different in that they are not located on a congested corner. Attorney Cronin stated that it is not equitable that Ms. Crowley receives a cease and desist when the other businesses are not. He submitted photographs, along with their assessor’s cards of those establishments for the record. He read the assessor’s card of one of these establishments and it said ice cream and coffee. Attorney Cronin questioned why this establishment is allowed to sell coffee. He noted that 64 Lyme
Street goes to the extent of advertising itself with a sign out front that says café. Attorney Cronin noted that this establishment is in the same area, in the same zone. He indicated that this establishment brews and sells fresh coffee. Attorney Cronin stated that he has heard that this establishment received approval from the Historic District Commission for their sign. He questioned how Zoning could approve this sign and not Ms. Crowley’s. Attorney Cronin stated that he feels they are being subject to selective enforcement of the Regulations.
Ms. Brown stated that all the commercial uses on Lyme Street are pre-existing nonconforming uses. She explained that all the uses have different histories. She noted that 64 Lyme Street has a permit to sell coffee and certain foods that they don’t prepare because there was a previous use that did that. Ms. Brown stated that there are other activities there that are under discussion, but the coffee is permitted. She stated that the Ice Cream Shop was approved as a home business and then went on to the Zoning Board of Appeals for a little expansion. She noted that these two businesses have permits and are completely different then the Chocolate Shell. Ms. Brown stated that the café’s sign was approved by the Historic District Commission; she noted they had a previous sign
and this is just a different message on the sign. Ms. Brown stated that Ms. Crowley’s sign was a new sign that went up without any approvals.
Ms. McQuade questioned whether the shop hours changed when Ms. Crowley made the other changes. Ms. Crowley replied that the hours did change, they are now 7:00 a.m. to 6:00 p.m. and they were 11:00 a.m. to 6:00 p.m. She noted that she changed the hours to capture the customers who were heading to school. She indicated that she sells quiche, scones, mini coffee cakes, and muffins.
Responding to Ms. Stone, Ms. Crowley stated that there has always been a bench out front and she added two tables. She noted that on many Friday afternoons one will see kids out there eating. Ms. Stone stated that many letters received refer to the congestion in the area and parking difficulties. Ms. Crowley noted that there are twelve or so parking spaces for the entire building for both employees and customers. She noted that there is additional parking available on both sides of Lyme Street. Ms. Stone noted that people have specifically complained about the visibility pulling out of Academy Lane due to cars parking on Lyme Street. She questioned whether there were “no parking from here to corner” signs in that area. Ms. Crowley indicated that there are
not.
Attorney Eric Knapp was present representing Ann Brown, Zoning Enforcement Officer. He stated that all of the previous tenants mentioned by Attorney Cronin were shops that sold goods. He noted that there is a difference between shops that sell goods and ones that sell restaurant type goods. Attorney Knapp stated that the business has changed since the current owner purchased it. He indicated that the nature of the business has changed. Attorney Knapp stated that Ms. Crowley is the first owner to sell hot beverages at that location and she is the first person to sell cold beverages also. He indicated that the selling of quiche and foods of that sort is new to this owner. Attorney Knapp stated that these are restaurant style foods and the best way to show that is by the Old Lyme
Health Department. He submitted a letter from the Health Department which states the Town of Old Lyme Health Department granted a food service establishment license to this property on September 6, 2013, and no such license was previously granted at that site. Attorney Knapp stated that this is a new permit and a new use and because this is a residential zone and change in the use is not allowed. He indicated that this is not an
intensification of use but an expansion. The Health Department Letter was entered into the record. Attorney Knapp stated that Attorney Cronin has represented that this establishment has always been a restaurant and he feels that to be untrue in that the first food service license issued to this restaurant was September, 2013.
Attorney Knapp stated that buying treats is not a restaurant, it was considered to be sale of goods. He noted the reason they are here is because there was a substantive change which was brought to Ms. Brown’s attention. He noted that the fact that the hot chocolate was served for a couple years does not make it unenforceable; he noted that Ms. Brown took action when it was brought to her attention. Ms. Brown stated that there is certainly a change of use. She stated that this is why a license was required by the Health Department.
Ms. Brown stated that a Special Permit is required for the sale of take-out food. She noted that in this particular location it would not be an easy permit process because it is a nonconforming use. She noted that the Sanitarian did a worksheet when she issued the license and part of the worksheet indicates seats and the Sanitarian has written 3 tables with two seats each. This document was entered as an exhibit.
Mr. Kotzan asked Ms. Brown to explain the food service license. Ms. Brown replied that there are many categories of food service licenses and the one Ms. Crowley received is, she believes, the most restrictive. She noted that the reason the Sanitarian came to her shop is because she overheard her speaking with Ann Brown. Ms. Crowley stated that the Sanitarian did nothing with the coffee maker, she did not inspect it, but rather inspected the cleanliness of the facility and checked the temperature of the cold case and verified there was a sink for hand washing. Ms. Stone stated that there seems to be a disconnect between the restaurant inspection process and the zoning approval process.
Attorney Knapp stated that he has demonstrated that there is a change in the use. He noted that the issue is the fact that the underlying concept of the store has changed. Attorney Knapp stated that quiche is more along the lines of something that is eaten as a meal. Mr. Sibley asked Attorney Knapp to give the definition of restaurant as listed in the zoning regulations. He asked whether he considers the shop a restaurant. Attorney Knapp read the definition of take-out restaurant. He stated that his position is that the shop is a restaurant now, but only because the use was changed at some point in time. Attorney Royston stated that there are three definitions for restaurant and it appears that full service restaurant gives the general definition which would be the common
understanding of the term restaurant. Attorney Royston stated that it is Attorney Cronin’s position that the shop complies with the definition of take-out restaurant.
Ms. Brown noted that Attorney Cronin’s position is that any store that sells food is a restaurant and any retail shop selling food was a restaurant because the definition says the retail sale of food. She said that that interpretation is absurd because a grocery store is not necessarily a restaurant.
Attorney Royston stated that Attorney Cronin’s position is that even with the change in use described, the changes come within the parameters of a take-out restaurant. He noted that Attorney Knapp’s position is it does not come within the parameters of the take-out restaurant. Attorney Knapp disagreed and stated that a take-out restaurant is a different use then what was
previously on the site, which was a retail sale of food, not a food service. He indicated that retail sales are a different use then take-out restaurant use, which is not permitted in this zone. Attorney Royston questioned whether the definition of take-out restaurant was added 3/7/08 or if just the use regulation was added. Ms. Brown indicated that they were both added on 3/7/08. Attorney Cronin stated that this became a take-out restaurant the day the regulations where changed on 3/7/08. Attorney Knapp stated that the applicant was selling goods at that time. Attorney Royston stated that Attorney Knapp’s position is that there was no restaurant type use, only retail sales, in 2008 and therefore there is no protection by the adoption of the regulations on 3/7/08. He noted
that the appellant’s position is that the shop was a take-out restaurant in 2008 and there is protected by the adoption of those regulations.
Attorney Cronin stated that serving hot coffee is not a change of use or an intensification of use.
Ms. Brown clarified that it is the preparation of drinks that is the problem.
Attorney Royston told the Board that they will have to make the factual determination of what the use was in 2008.
Ms. Crowley stated that Ms. Brown asked her to get verification from someone that coffee was sold in the building, at any time, in any of the stores. Ms. Crowley stated that she got verification from a woman on the Historic Society, Alison Mitchell, that coffee was available at the Griswold Grocery store because she remembers her mom getting coffee there and her having cookies. Ms. Crowley stated that when she told Ms. Brown this her response was that it was too long ago and she would not consider it. Ms. Crowley stated that the James Pharmacy also had a soda fountain and most likely served coffee also. She stated that there was also the Songbird Coffee Shop that was located where her office is located and they opening used the back patio to sit and enjoy their coffee and scones, etc. Ms.
Crowley stated that it has since moved down the street and is Nightingale’s Café. She noted that this business has never received a permit, in either location. Ms. Crowley stated that Ms. Brown indicated that it didn’t matter that they did not receive a permit because no one complained about them. Ms. Brown stated that the she has spoken to the woman in Nightingales and she is preparing an application for the Zoning Commission. She indicated that the use in that building is different than the use at the Chocolate Shell. Attorney Knapp stated an operation had to exist legally in the building to be considered and Nightingales did not operate legally. Addressing uses that existed in the building in the 1920’s or 1930’s, Attorney Knapp noted that that would fall under abandonment of use. He explained that the use was abandoned without the intention of resuming it in the future and the use is therefore legally lost.
Attorney Knapp read the allowed uses in the residential zones. He noted that the term restaurant is not in there and if it is not listed in the regulations, it is prohibited. Ms. Crowley asked how the Ice Cream Shop was permitted. Ms. Brown stated that it is under a home occupation permit.
Attorney Cronin stated that it appears that they are getting down to one fine point. He noted that the first violation on the cease and desist is the brewing of hot and cold drinks. He indicated that the Chocolate Shell was a take-out restaurant back in 2008 when the regulations were changed and they have grandfathered status. Attorney Cronin stated that it appears to be concentrated on the brewing of coffee. He indicated that the Regulations are poorly written and lacking
definitions. Attorney Cronin stated that the gas station (Shell) is selling coffee. He noted that there is no distinction of brewing coffee or bringing it in from the outside.
Ms. Stone stated that there are in excess of 30 pages of letters, many from neighbors concerned about the tranquility of the neighborhood and others in support of the business. She noted that she does not have exact numbers. Acting Chairman McQuade noted that there are at least 8 letters in support of the order and perhaps 5 letters of support.
Acting Chairman McQuade asked that audience member who wishes to speak to sign in so that the record could reflect their names properly. She asked them also to stick to the matter at hand.
Charlotte Scott, 302 Ferry Road, stated that her ancestors have been here since the late 1700’s and she feels this is the most embarrassing scene she has ever witnessed. She stated that there has to be some new Zoning laws that define restaurant. She noted that she enjoys the Chocolate Shell immensely. Ms. Scott stated that there was a family with children in last weekend and it was a joy for her to sip her coffee and watch them pick out a treat.
Craig Silver, resident since 1992, stated that if this business took anything away from Lyme Street he would be against it. He indicated that Ms. Crowley should be left alone. He indicated that his house overlooks the shop and he has a big investment. He noted that all changes have been for the better.
Penny Oakley, 27 Lyme Street, stated that she has been in the area for 25 years and her husband for 30 years. She stated that if people are concerned about the area there are bigger issues. Ms. Oakley stated that she cannot get into her driveways on Sundays because of the traffic from the congregational church. She noted that the cars from Cooley Gallery block her driveway and she doesn’t complain because that is part of being on Main Street and that is part of the fun.
John Costigan, 7 Evergreen Trail, indicated that he has been in Town 20 years. He stated that it appears everyone is in disagreement as to what the Regulations mean. He noted that the traffic from the church is horrendous and he indicated that he bets they serve coffee too.
Penny Smith stated that she is here in Old Lyme because she is taking care of her father who is sick. She noted that Ms. Crowley is the one person who has opened her arms to her, through this entire situation. She stated that she works in New London with children who cannot read and are starving and Ms. Crowley provides chocolates for her to bring to the children. She asked the Town to write the laws or do whatever they need to do for Ms. Crowley.
Acting Chairman McQuade asked for a show of hands from the audience from those that agree with the statements made to this point. She indicated that if people would like to speak the Board will hear them but noted in the interest of saving time a show of hands would document those who are not in favor of the cease and desist order.
A member of the audience asked if there would have been an enforcement now if a member of the community had not brought a complaint to the Town. Ms. Brown indicated that if she is not aware of an unpermitted activity she obviously cannot proceed with an enforcement. The same
audience member stated that there may be more unpermitted activities going on on Lyme Street. Ms. Brown indicated that there could be.
Acting Chairman McQuade noted that a lot of people raised their hand indicating that they are not in favor of the cease and desist order.
Stanford Brainerd, 6 Lyme Street, stated that all are subject to the laws and feels they are fortunate to have the Zoning Enforcement Officer that they have had for the last 12 years. He stated that she is very knowledgeable. Mr. Brainerd stated that this is not a popularity contest, it is not a matter of who else is getting away with something. He asked the Board to uphold the law and the cease and desist order.
Campbell Hudson, Attorney, stated that he is present to represent neighboring property owners; specifically, Tom and Jane Schellens and Ms. Mallory. He provided the Board with a memorandum of law summarizing his presentation. Attorney Hudson stated that much of Attorney Cronin’s presentation was skillfully done to draw the Board’s attention away from the fundamental issues. He indicated that he does not believe the idea of this being a take-out restaurant to be a valid argument. Attorney Hudson stated that the definition of restaurant, full service, has been inadequately discussed. He indicated that his clients will testify to what is going on, and what has changed, to be a full service restaurant. Attorney Hudson indicated that the statement made that only 1 percent of the
customers eat on site is woefully different then what his clients observe. He noted that they see regular, significant, long term use of tables on the property where people come and sit. Attorney Hudson stated that the point is not whether this is desirable, the point is that it is not allowed. He noted that it is not a permitted use in a residential zone.
Attorney Hudson stated that in the warm weather his clients have counted fourteen tables inside and out. He noted that what is particularly annoying to them is the area outside, which has been fenced in from time to time, is a patio with essentially a new entrance or an alternate entrance to where the restaurant use is carried on. Attorney Hudson stated that there is also a significant regular increase in parking which is being minimized here. He stated that there is a wi-fi connection for people that want to bring their computer and connect and there is intent to make people come and stay, like a café, like Starbucks or Dunkin Donuts. Attorney Hudson stated that the issue is not Ms. Crowley, the issue is when the Town allows it for one person they are powerless to stop anyone else from doing
it too. He stated that if this is allowed to continue she could sell her business to Starbucks or Dunkin Donuts and that would change the character of what is now allowed in the zone. Attorney Hudson stated that it was noted that she serves on paper products and he has photos of ceramic dishes being used which shows that the intent is for consumption on the premises. He stated that this is clearly not permitted under the Regulations. Attorney Hudson submitted his memorandum of law and noted one of the critical cases in dealing with nonconformities is cited on Page 5. He indicated that the parking on the narrow lane and the fact that during the warmer weather there is more noise outside and these are significant. Attorney Hudson submitted sets of photographs which were taken by Ms. Mallory and her friends a few months ago. He noted that they show the outside dining area with the china mugs, the new flag, back terrace prior to the third
section of fence being added, the overcrowded parking area, the new door and lastly an obviously Photoshopped picture showing what the property could be if it were a Dunkin Donuts. He noted that in the eyes of the law, it is the same. Attorney Hudson stated that the law says that what she is doing is not permitted.
Jane Schellens, 1 Academy Lane, indicated that she has lived here since 1984. She stated that when they purchased the property, the Village Shoppes were there and they were aware that it is a pre-existing nonconforming retail use in a residential zone. Ms. Schellens stated that for 29 of those years they have lived in harmony with this neighbor. She stated that her three boys created a path from her house to the Chocolate Shell. Ms. Schellens noted that for 29 years the Chocolate Shell was a retail shop with consumption off the premises. She stated that last summer it was expanded to a café with complete disregard for the zoning regulations. She noted that the café was launched in the New London Day last August and the café sign went out. Ms. Schellens stated that
Ms. Crowley was quoted in The Day as saying that it was a no-brainer to open a café. She stated that a café is not in keeping with the nature or the purpose of the property which was a retail candy store with consumption off the premises.
Ms. Schellens stated that the back room of the Chocolate Shell which is now the café, was office space for 29 years and it was closed to the patrons. She noted that it is now the café and there is no chocolate or candy sold in the back, it is strictly for a café which is a complete new use and an expansion of use. Ms. Schellens noted that the pastry and quiche are heated for customers in the microwave and the coffee is prepared there also. Ms. Schellens noted that in the summer and fall, as demonstrated in the photographs, many people use the seats and tables outside. She explained that a new door has been opened on Academy Lane which is an additional entrance on Lyme Street and increases the foot traffic and also is a safety hazard. Ms. Schellens stated that three times
last summer her fence was hit by cars until finally she had to take it down. She noted that the hours have also expanded and Ms. Crowley stated in The Day article that she would be opening at 7:00 a.m. to get the breakfast and lunch crowds, where typically she did not open until 11:00 a.m. Ms. Schellens also noted that Ms. Crowley hosted a birthday party and hosting parties at a retail shop is also an expansion of the use. She explained that the Chocolate Shell has two wireless internets, she noted that one is locked and the other is unlocked for public use; she indicated that this would classify it as an internet café. She stated that one does not set up tables and chairs inside and outside and provide a wireless internet unless there is an expectation that the food will be served on the premises. Ms. Schellens stated that an internet café is a different use then a candy shop and she understands why people would love to go and sit out on
Academy Lane or Lyme Street. She indicated that this is not about Ms. Crowley but rather about the law and the use of the property. Ms. Schellens stated that the change of use has had a negative impact on her and allowing this would pave the way for a national chain. She noted that the newspaper indicates that this is about the installation of a coffee machine. Ms. Schellens stated that Ms. Crowley obviously has a strong following but she should operate her café in an area that is so zoned.
Tom Schellens stated that within a mile of the center of Town there are six establishments that serve coffee and pastries and all are small businesses run by wonderful people. He noted that there are four existing storefronts in this same area that could host this enterprise and everyone would follow Ms. Crowley to it. He stated that there is no need to encumber the neighbors further with this expansion.
Diane Mallory, 20 Lyme Street, stated that she is the main target of the group that is for the Chocolate Shell. She indicated that her problem is not with the Chocolate Shell, she loves the
shop and enjoyed it as a neighbor and was a customer and friend. She stated that in 2012 she brought a friend of hers that writes for Connecticut Cottages to see the shop in hopes she would include it in an article, which she did. Ms. Mallory noted that when she purchased her property across from the Shoppes she was fully aware that it was a nonconforming retail use. She indicated that since the change to a café last summer, things have changed significantly. Ms. Mallory stated that there has been an expansion and a change to a café use. She explained that she was first alerted to the impending changes when the owner asked if she would mind if she took down the fence around the patio so her café customers could enjoy the view across Academy Lane into her garden. Ms.
Mallory stated that she told Ms. Crowley she would mind and Ms. Crowley kindly retained the fence. She noted that Ms. Crowley proceeded to expand the patio area, added six tables with umbrellas and chairs, and added more facing Lyme Street. Ms. Mallory noted that last July the café opened with a sign, new beverage and food offerings, all advertised on Facebook and capped off by an article in The Day heralding the expansion and the changes. She explained that the new café began opening at 7:00 a.m. until 6:00 p.m., six days a week.
Ms. Mallory stated that a new entrance has been added onto the patio on Academy Lane which has an entrance sign and a garbage can at the gate; it has created another place for customers to congregate in addition to the seating area on the side, front lawn and back patio. She explained that the residents of Lyme Street and Academy Lane have seen a marked increase in traffic since last July. She noted that Academy Lane is very narrow. She noted that there is increased delivery traffic and trash removal, sometimes in the pre-dawn hours. Ms. Crowley stated that she feels it is dangerous for the young children that cross Lyme Street. She stated that the Chocolate Shell is a much loved local business and she would hate to see it leave but it has changed its business plan. She stated that the
change in use has created havoc on Academy Lane and is potentially dangerous. She stated that the use is consistent with zoning and the character of the neighborhood.
Nancy Hutchinson, 7 Squire Hill, stated that zoning enforcement is important to maintain the character of the Town. She stated that she moved to Old Lyme because they have restrictive zoning and they enforce it well. She encouraged them to enforce it here.
Donna Ewen stated that she grew up in Old Lyme. She indicated that she heard tonight that there is a tremendous increase in traffic and parking. She noted that there are many businesses there and the spa could be doing a large amount of business. She noted that all of this is being blamed on the Chocolate Shell. She indicated that the Town should be embarrassing this business and Lyme Street should not be in a pristine bubble where people cannot increase their business.
Attorney Cronin noted that there is new evidence and he heard the opposition come in with all sorts of accusations. He noted that there are no traffic counts. Attorney Cronin stated that the photographs submitted show a sign, which has been removed; he noted that the next picture shows two little girls standing outside the shop and two women sitting. He acknowledged there are tables along the front of the building and there are other stores. Attorney Cronin noted that the owner, Mr. Hannas, stated in his letter that these are here for the people that walk up and down Lyme Street. He noted that the next picture shows two women sitting out front and there are no cars parked on Lyme Street or Academy Lane. He noted the third picture shows the rear area and there are no people in it.
He noted the open door opening into the terrace which is available to any of the tenants to come out and sit. Attorney Cronin stated that the business has not expanded into that area. He noted that the next picture shows the back with one car. Attorney Cronin stated that the last picture shows the parking area next to the building and there are several open parking spaces. He noted that the Dunkin Donuts picture is not evidence, it is being used to incite the Board. Attorney Cronin stated that there is nothing in the Regulations about changing the business within the original confounds.
Attorney Royston asked Attorney Knapp if the basis for the order is that there has been a change in use from the sale of goods as opposed to what there is now, some form of restaurant use. He stated that if that is his position, the distinction between whether or not this is a full service restaurant as argued by Attorney Hudson, or if it is a protected take-out restaurant as argued by Attorney Cronin would not be an issue. He stated that there are factual issues that must be determined by the Board. Attorney Royston stated that the Board must interpret these and also how they determine the use under the regulations. He noted that only those board members that will be voting will be able to participate in the discussion. Attorney Royston stated that any board member that will be using their
own experience at the shop in their consideration should disclose it now so that either attorney may ask questions.
Ms. Stone indicated that she is a customer of the chocolate shell. She noted that she only has knowledge of the front room and has never been in the café or purchased anything from the café. Acting Chairman McQuade stated that she too is a customer and she has been to the back café room. Mr. Plaut indicated that he has visited the shop.
Mr. Kip stated that Attorney Cronin is saying that the Chocolate Shell is a pre-existing nonconforming restaurant use. He questioned whether a Dunkin Donuts type operation could take over the site. Attorney Cronin stated that he does not think that would be possible because they prepare food on site and that would require a food service license.
Ms. Crowley stated that the fence was present when she purchased the spot. She noted that the doorway has been there since she purchased it and the rear door was installed as a safety measure because there was only one way to get in or out. She noted that this door was installed her first day of owning the store. She reiterated that the gate was there before she purchased the store.
Ms. Barrows stated that earlier Acting Chairman McQuade asked for a show of hands for the purpose of determining how many people agreed with the testimony of the others that spoke in order to save time and avoid having them all come up and repeat what was already said. She indicated that the room holds one hundred people and she would estimate that forty people raised their hands. Attorney Royston pointed out that the show of hands was not a vote, but rather a show of agreement with prior comments. Ms. Barrows pointed out that if the vote is not held this evening an alternate may have to sit for the vote. She questioned whether Attorney Knapp might want to ask Mr. Plaut as to his experiences at the shop as he might consider them during a deliberation.
Attorney Knapp asked Mr. Plaut if he would like to share any information. Mr. Plaut indicated that he is not sure of the exact dollar amount, but if one makes $6,000.00 dollars a year on coffee it comes out to five cups a day.
Attorney Cronin questioned whether the board would be voting this evening. Acting Chairman McQuade indicated that she would think not because there are several more hearings. The Board agreed to hold a special meeting on March 25, 2004, to consider this item and perhaps others.
A motion was made by Mary Stone, seconded by Kip Kotzan and voted unanimously table the decision on this matter to a Special Meeting on Tuesday, March 25, 2004 at 7:00 p.m. in Memorial Town Hall.
Hearing no further comments, Acting Chairman McQuade closed this Public Hearing.
The Commission took a five minute break at this time (10:35 p.m.).
2. Case 14-05 A – Appeal of a Cease & Desist Order, 2 Moss Point Trail, Patrick & Diane Looney, applicants
Acting Chairman McQuade stated that the Cease and Desist Order was issued January 17, 2014, for maintaining a junk yard and storing junk, machinery, trash, refuse, debris and/or junk motor vehicles in violation of Section 6.1.2, 6.1.5 and 6.1.2.4 of the Old Lyme Zoning Regulations.
Attorney Geraghty was present to represent the appellants. He noted that in their appeal they referenced Section G.1.5 and he noted that this was a typographical error and should have read 6.1.5. He explained that they have raised some issues on the appeal regarding the authority of the Zoning Enforcement Officer to do enforcement in the Rogers Lake Association and other issues regarding the fines. Attorney Geraghty stated that he only intends to put this on the record in the event this case goes to Superior Court. He stated the Zoning Enforcement Officer issues three notices of violation citing Section 6.1.2 which states “no land in any district shall be used for a junk yard, junk business, etc. so as to be unsightly or detrimental to nearby property.” Attorney Geraghty stated
that the clause detrimental to nearby property is important. He explained that the next alleged violation is Section 6.1.5, “. . . not more than one currently unregistered motor vehicle shall be parked on any property and said vehicle shall not be at any time in a state of major disassembly or disrepair nor shall it be in the process of being stripped or dismantled.” He indicated that there is no explanation, leaving his client guessing as to what the Zoning Enforcement Officer claims are more than one unregistered motor vehicle on the property.
Ms. Brown stated that she has a list of registered motor vehicles and she went through the list with the photographs that she had. She stated that there were two vehicles in the front by the street that were not on the list that the tax assessor gave her, one was a Ford Mustang and the other was a Chevrolet. Ms. Brown provided the license plate numbers. She noted that there are three motorcycles in the back yard and only one on the tax assessor’s registry. Ms. Brown noted that if there are registrations for these the appellant would just need to produce them.
Mr. Looney produced six registrations that he printed from the Department of Motor Vehicles website and noted that currently the Chevrolet is the only unregistered motor vehicle on the property. Attorney Geraghty questioned whether the motorcycles were registered. Mr. Looney stated that two are registered and in his 27 years here he has never heard that a motorcycle is considered a car. He indicated that he was not aware that the registration for the Mustang had lapsed. Mr. Looney indicated that he corrected this as soon as he realized and if one looks at the tax records they will see that he has paid taxes on this vehicle in past.
Attorney Geraghty stated that there is a violation of 6.1.2.4 cited in the Cease and Desist and because there is a large list of items that could be detrimental to the neighborhood, Mr. Looney again has no way of knowing what she is referring to.
Ms. Brown noted that she is referring to the other objectionable features; the storage of a good deal of what appears to be refuse, equipment and a conglomeration of things in the back yard.
Attorney Geraghty questioned how long Ms. Brown has been the Zoning Enforcement Officer in Old Lyme and she replied she has been for 12 years. He questioned whether other objectionable features are defined in the Zoning Regulations. Ms. Brown replied that it is not.
Attorney Geraghty stated that the notice of violation also states that the Looney’s could be subject to fines as dictated by the Connecticut General Statutes. He explained that this is one of the issues that he is not asking the Board to decide but would like to have on the record in the event of a future appeal. Attorney Geraghty stated that in order to impose civil penalties against an individual for zoning violations, the Town must comply with Section 8-12 and 8-12a of the Zoning Regulations by adopting an ordinance that then sets forth the procedure for the fines to be imposed by the Zoning Enforcement Authority. He indicated that he has reviewed the Town Ordinances and it is apparent that the Town does not have an Ordinance for levying fines. He indicated that regardless of the Boards
decision on the other matters this evening, he asserts that the Board or the Town cannot impose fines because they have failed to comply with State Statute. Attorney Geraghty submitted these two sections of the General Statutes.
Attorney Geraghty stated that Section 6.1.2 states “no land in any district shall be used as a junk yard or junk business so as to be unsightly or detrimental to nearby property.” He submitted a series of assessor’s records. Attorney Geraghty stated that his clients property at 2 Moss Point Trail is assessed this year at $317,700.00 and the cards of neighboring properties on Moss Point Trail and Pickerel Cove Road are all assessed at up to $100,000.00 less. He indicated that if his client’s property is the most valuable on the street it doesn’t make sense that his property is having a detrimental effect on nearby properties.
Mr. Kotzan questioned whether these other properties have the same size lot and structures. Attorney Geraghty stated that all the lots are generally the same size, although his clients structure is a little larger then some of the others.
Mr. Looney stated that his cars are stored out front on his 2,200 square foot circular driveway and he has an oversized 3.5 car garage. He indicated that his house is two to two and a half times larger than the other homes in the area. Mr. Looney stated that the machinery storage in the rear is mostly landscaping machines that he keeps underneath the trampoline or behind the garage area. He indicated that when he stores them he is careful to be sure no one can see this equipment from their house. Attorney Geraghty noted that the property is fenced. Mr. Looney stated that both his sons run landscaping businesses and one of them stores an enclosed trailer on his property.
Attorney Geraghty submitted photographs of the adjacent properties and these demonstrate that a large number of properties, a majority, store much material outside. He noted that one just down the street shows boats, some sort of oil tank, a substantial pile of firewood and other debris and a boat off to the left (photo marked #1 of 40). He reviewed some of the other photographs pointing out the amount of storage on the properties. Attorney Geraghty stated that the purpose of these photographs is to the extent his client stores materials, it is not detrimental to the other properties. He noted that Mr. Looney also has a fence to screen his storage where most other properties do not. Attorney Geraghty stated that he has not heard any evidence supporting the assertion that his client’s
storage is detrimental to other properties. He submitted a letter from Denise Herarra supporting Mr. Looney’s appeal.
Attorney Geraghty submitted photographs of other properties elsewhere in Old Lyme that again, show storage outside. He questioned why Mr. Looney and his wife are being singled out for enforcement. Attorney Geraghty stated that the issue is whether or not there is a blight issue. He noted that the Town discussed adopting a blight ordinance and never did so; he noted that blight ordinances are not dealt with by the Selectmen. Attorney Geraghty stated that the Zoning Regulations cited are unenforceable because they are overly vague and a property owner cannot know what the objective standard is because it is a subjective standard that appears to be driven by complaints of neighbors.
Attorney Geraghty stated that apparently the Looney’s could install hoop houses with wheels, a situation that this Board struggled with back in November. He submitted the minutes of the November 2013 Zoning Board of Appeals Meeting.
Attorney Geraghty submitted the Rodgers Lake West Shore documents as an exhibit. He stated that it is his position that Rogers Lake West Shore never adopted the appropriate ordinance in order to transfer authority for the enforcement of zoning or to submit its municipal boundaries to the Zoning Regulations of the Town of Old Lyme.
Patrick Looney stated that he moved to Old Lyme in 1987 and purchased this property because it was .37 acres and in 1990 he made large improvements to the property, including adding the garage. He noted that he continues to improve the property. Mr. Looney stated that he likes antique cars and he stays within the Zoning Regulations. He stated that he has dealt with difficult problems with his neighbors, some requiring police action. Mr. Looney stated that he was sent to Mr. Blumenthal’s Office and Mr. Blumenthal dispatched two DEP investigators and was cleared of any violations on the property. He noted that the Fire Marshal got involved and went to the office of the State Fire Marshal and was cleared in this situation also. Mr. Looney stated that the machinery stored is lawn
mowers and leaf blowers. He indicated that he recycles and nothing is thrown away unused. Mr. Looney stated that he stores things out of his neighbors view and the equipment is not junk. He indicated that he feels his house is one of the prettiest on the block. Mr. Looney stated that he does not run a business. He indicated that he does not feel he is violating anything and noted that he sat on the Zoning Commission until receiving this Cease and Desist Order. He noted that this was the Town’s loss as he made some good changes over the years as a member of that Commission.
Attorney Geraghty noted that the letter from the Fire Marshal and the photographs referred to by Mr. Looney are all submitted as part of the package he has submitted.
Mr. Looney stated that he hasn’t worked on his own cars in two weeks because he is concerned about what people will say.
Mr. Plaut stated that some of the photographs submitted were properties in a commercial zone, one of which was his. Attorney Geraghty stated that the regulation does not differentiate between residential and commercial zones. He added that he is not saying that these properties are in violation, only that there are multiple things stored on them.
Mr. Looney noted that a property on Route 156 is storing boats in violation of the Zoning Regulations.
Attorney Knapp stated that if Mr. Looney lived in a municipality that was not subject to the Town Zoning, he would not have been eligible to sit on the Zoning Commission. He stated that by sitting on the Zoning Commission, Mr. Looney acknowledged that his property was subject to Zoning. Attorney Knapp stated that his firm represents 27 municipalities and all of them have provisions in their regulations regarding the keeping of junk/junk yards. He noted that a blight ordinance is not the only way to regulate this type of thing. Attorney Knapp stated that he has represented many Towns enforcing their junk/junk yard regulations and no judge has ever found them not to be applicable. He noted that junk yards are the reason there are zoning regulations, to be sure they are properly located.
Attorney Knapp stated that Section 6.1.2 specifically says “unsightly to nearby properties.” He stated that this is not subjective because there are neighbors complaining. He noted that there are neighbors here tonight to explain how it is unsightly and how it negatively affects their properties. Attorney Knapp stated that the assessed values of the properties has no bearing; it could be larger and therefore assessed for more or the others could be assessed less because there is an effect on their value by this property.
Attorney Knapp stated that Mr. Looney testified this evening that he did not realize he had two unregistered vehicles and he rushed to register the Mustang. He noted that this proves that at the time the order was issued, it was correct, there were two unregistered vehicles on the property.
Attorney Knapp read the order which stated that fines could be imposed by the Superior Court if further enforcement action was taken. He noted that they are not asking for fines tonight.
Ms. Stone questioned what Mr. Looney could do to satisfy the Cease and Desist Order. Attorney Knapp read Section 11-24, Outside Storage, which says outside storage in a residential district can equal 10 percent of the ground floor area of the home. He noted that based on the photographs it is clear that Mr. Looney has exceeded this 10 percent rule. Ms. Brown stated that there is also the distinction that needs to be made as to what is junk and therefore should be discarded and what is useful and there is no space for in the 3.5 car garage. She stated that the enforcement was in response to complaints from neighbors. Ms. Brown stated that Mr. Looney has fencing around the front and has asked the Town Officials not to enter his property so all her enforcement activities have been from the
street. She indicated that she is confident that Mr. Looney is aware of the motor vehicle regulations because in the past when there have been complaints he has updated her as to what vehicles he would be keeping and registering and which he would be getting rid of to come into compliance. Ms. Brown stated that she was invited onto the neighbors deck to view his property and until that time she had no idea of the extreme level of storage in his backyard and she was unaware he had motorcycles in the back yard. She stated that she can see three motorcycles, but she is not sure there are not more that she can’t see. Ms. Brown stated that she took more photographs yesterday in the hopes that some things have been cleaned up but she did not see an improvement.
Ms. Stone questioned whether the Town could institute a specific plan for Mr. Looney. Attorney Knapp stated that the first thing there would have to be a complete inspection of the property. He noted that ultimately Ms. Brown will have to inspect the property to see if it is in compliance. Ms. Brown noted that she has done that with other property owners in the past; in one case it took six months but the property owner was very cooperative and they worked together to accomplish it.
Mr. Plaut stated that he noted three boats on trailers in the Looney’s yard and questioned whether they were registered. Mr. Looney stated that all three are not registered but they are not considered motor vehicles. Mr. Plaut questioned whether some of the items outside could be placed in the three car garage. He indicated that he will install a hoop structure with wheels and he will put the material inside it, as those are not regulated by the Town. Mr. Sibley stated that there is a considerable collection in the residential zone. He stated that the applicant will continue to have problems with his neighbor or clean up or shield it from the neighbors. Mr. Looney stated that the vehicles, bikes, etc., are operational and are not junk. Mr. Kotzan stated that outside storage
areas are limited to 10 percent of the ground floor of the building, regardless of whether what is stored is operational.
Mr. Sibley stated that it is up to Mr. Looney to decide what he has to have and what he can get rid of. Mr. Looney stated that the cars are no longer an issue. Ms. Brown stated that there are unregistered motorcycles. Mr. Kotzan stated that if Mr. Looney has nothing to hide he should really allow a full inspection. Mr. Looney stated that he believes in the 2012 Supreme Court decision upholding property rights.
Attorney Geraghty suggested continuing the hearing to the next meeting in order to come up with some sort of plan that might be satisfactory to both sides.
The first speaker, Bud Ballard, a friend of the neighbor at 8 Moss Point, questioned why Mr. Looney showed other pictures of neighboring properties but did not submit one photograph of his house which he says is the most beautiful house in the neighborhood. He indicated that Mr. Looney did not even let the assessor on his property. He noted Mr. Looney has a three car garage that one cannot put another thing in or walk in. He stated that the garage still has blueboard on the back; still no siding on it after 10 years. He noted that there is a ski-doo and a truck with a trailer on it that is used for a business. He indicated that it is a pigpen and the Board should visit and see if they want to live near it. He noted that there is a washer and dryer in the yard covered with a tarp,
outboard mowers stored leaning against the shed, at least 25 lawn mowers. He stated that people have been complaining about this property for 10 years and it is documented in the zoning file. He stated that when one puts his house on the market and the realtor says people like it until they go on the deck and look over the fence.
Neighbor Carol Berube stated that she had an appraiser come to her house and he told her that she would have a hard time selling because of Mr. Looney’s property. She stated that realtors have told her that they have had interested parties until they see Mr. Looney’s property and then they walk away. She noted that she has had it on the market for two years and was unable to sell it. She stated that she has a beautiful home and a beautiful yard. She indicated that the Town needs a good blight ordinance.
Ms. Brown noted that the Town does have a blight ordinance although it is antiquated and needs to be updated. She indicated that it is enforced through the Health Department, not Zoning. Attorney Geraghty stated that he asked the Town Clerk who was unable to find a blight ordinance.
Someone from the audience noted that other neighbors were here to speak but went home because of the late hour.
Mr. Looney stated that the garage has original siding from the original two car garage, not blueboard, and he intends to put on siding to match the rest of the house when he is financially able. He noted that the truck and trailer are used for his son’s business and are registered. Mr. Looney stated that he checked with Ms. Brown to be sure it was legal before he allowed his son to bring this onto his property.
Ms. Stone stated that it will be important for neighbors to know that they will be able to speak at the continued Public Hearing.
A Motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to continue the Public Hearing on Case 14-05A, 2 Moss Point Trail to the next Regular Meeting which is scheduled for Tuesday, April 15, 2014 at 7:30 p.m. in the Meeting Hall, to see if the parties can try to come to an agreement on the matter.
In favor: A. Sibley, J. McQuade, M. Stone, K. Conniff, K. Kotzan
Hearing no further comments, Acting Chairman McQuade closed this Public Hearing.
No one present spoke in favor of or against the application. Hearing no further comments, Acting Chairman McQuade closed this Public Hearing.
3. Case 14-06 – Margaret M. Borchert, 58 West End Drive; Garry R. & Margaret Legein, 60 West End Drive; The Heckman Family Limited Partnership, 56 West End Drive and Vincent Marino as applicant.
Acting Chairman McQuade stated that the variance requested is for lot line adjustments, with no new construction. She noted that the lot sizes will virtually remain the same but the side setbacks would change, some less nonconforming, some more nonconforming.
Vincent Marino was present along with the surveyor and Mr. Borchert to present this evening. He explained that by realigning the property lines they have tried not to affect the lot area, but are attempting to align the property lines by use, i.e., where people park their cars, have their clothes lines, etc. The surveyor, Mr. Marine, stated that the boundary lines were not where the owners thought they were. He explained the site plan, noting that the yellow lines represent the existing property lines. Mr. Marine stated that the proposed lines keep the same lot areas within 2 to 3 square feet. He noted that they are trying to improve a bad situation by straightening out the property lines and making them more parallel with the structures.
No one present spoke in favor of or against the application. Hearing no further comments, Acting Chairman McQuade closed this Public Hearing.
OPEN VOTING SESSION
1. Case 14-04 A – Appeal of a Cease & Desist Order, 18 Lyme Street, Barbara
Crowley, applicant
No action taken. The decision on this matter was tabled to a Special Meeting on Tuesday, March 25, 2014.
2. Case 14-05 A – Appeal of a Cease & Desist Order, 2 Moss Point Trail, Patrick & Diane Looney, applicants
No action taken. The Public Hearing for this item was continued to the April 15, 2014 Regular Meeting.
3. Case 14-02C – Warren E. Hannas, 9-1 Halls Road
Acting Chairman McQuade reviewed the facts of the case. Ms. Stone questioned whether the expansion of the building has already been approved by the Zoning Commission. Acting Chairman McQuade stated that it has not been; that is what the applicant is before the Board. Ms. Stone stated that she was under the impression that the structural additions have already been approved by zoning and the variances are for the terraces. Ms. Brown stated that if the variances are granted the applicant will still need to go before the Zoning Commission. Acting Chairman McQuade noted that there have been many additions to the property over the years and there is no compelling reason to allow more. She noted that the neighbor is not in favor of the granting of this variance. She indicated that Mr. Hannas
has reasonable use of the property without this additional expansion.
Mr. Sibley stated that they specifically asked what the future plans were and how the property would operate. He noted that the applicant indicated that they hoped it would continue to grow, at which time it was pointed out that there is no room for expansion. Ms. Stone stated that she would prefer to add a condition that the existing terrace and steps not be extended any further toward the river. Ms Conniff stated that the only thing nonconforming is the lot and she does not see a problem with the additions.
Ms. Barrows read the hardships provided by the applicants.
A motion was made by Mary Stone and seconded by Arthur Sibley to grant Variance Application 14-02C – 9-1 Halls Road, per the plans submitted and in accordance with the Site Development Plan prepared by Angus McDonald Gary Sharpe & Associates, Inc. entitled “Site Development Plan property of Warren E. Hannas 9-1 Halls Road Old Lyme, Connecticut, date: October 17, 2013, Scale: 1” =20’ Sheet 1 of 1 revised to 12/5/13” and “E.W. Hannas Building Renovations and Additions 9-1 Hall Rd. Old Lyme CT 06371 – 1st Floor Renovation & Proposed Addition prepared by Arthur Hurst Design, LLC dated 10/14/13 Drawing numbers A-1, A-2, A-3 and A-4”. The Coastal Site Plan Review Application is approved as well because it is consistent with all
applicable coastal policies and includes all reasonable measures to mitigate adverse impacts, with the following conditions:
1. No removal of trees on the property and the orientation of the proposed addition in relation to the existing structure is critical to the minimal visual impact finding made by the Gateway Commission.
2. Existing terrace and steps be renovated, but are not to extend further into the setbacks.
Motion did not carry, 2:3:0, with A. Sibley and K. Conniff in favor and J. McQuade, M. Stone and H. Plaut voting against.
Reasons for Denial:
1. Further expansion of a building on a non-conforming lot.
2. Owner has reasonable use of the property as it exists.
3. Existing building could be renovated and not expanded.
Mr. Sibley stated that he objects to the loading of the agenda.
CORRESPONDENCE
A letter dated March 14, 2014 from Deveaux Architects regarding 52 Gorton Avenue, Castanho Residence.
Mr. Deveaux went over the changes to the plans that were originally approved at the July 16, 2013 ZBA meeting. She noted that the modification is requested to allow adjustment to the exterior stair locations and expansion of the deck area to accommodate mechanical equipment required to be elevated above the Base Flood Elevation (BFE); the front stair will be reduced in size by 34 s.f. and relocated to reduce intrusion into the front setback by 4’-0”; the rear stair will increase in size by 46 s.f. and will comply with side and rear setbacks; the deck area will increase by 55 s.f. for placement of (2) HVAC condensers elevated above BFE and will also comply with side and rear setback; and the placement height of “On-Demand” waters heaters in the structure have been installed 7”
above the base flood elevation, although the Zoning Regulations require one foot, but the heaters are in compliance with the Building Code and FEMA.
The items were discussed and the Board made the following motion:
A Motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to accept the amendments to the plan as they are within the intent of the original variance. Motion carried, 5:0. In favor: A. Sibley, J. McQuade, M. Stone, K. Conniff, K. Kotzan
OPEN VOTING SESSION
4. Case 14-06 – Margaret M. Borchert, 58 West End Drive; Garry R. & Margaret Legein, 60 West End Drive; The Heckman Family Limited Partnership, 56 West End Drive and Vincent Marino as applicant
Acting Chairman McQuade reviewed the facts of the case.
A motion was made by Mary Stone, seconded by Kip Kotzan and voted unanimously to grant Variance application 14-06 – to reconfigure the lot lines for 56-57 West End Drive, 58-59 West End Drive and 60-61 West End Drive per the plan submitted entitled “Plan Showing Existing Conditions Survey on Property of Margaret M. Borchert 58 West End Drive and proposed boundary line adjustments between properties located at 56, 57, 58,59, 60 & 61 West End Drive Old Lyme Connecticut, Scale 1” = 10’ Date: February 21, 2013 prepared by Gerwick – Mereen, LLC”.
Reasons to grant:
1. The new lot boundaries will more nearly define the areas of historical use by each property owner.
2. Lot sizes will remain virtually the same, but side setback distances will change, some longer (less non-conforming) and some shorter (more non-conforming).
3. A Boundary Line Agreement will be recorded on the Land Records as well as a mylar of the boundary line adjustments between the properties.
ELECTION OF OFFICERS
Election of Officers was tabled to the March 25, 2014 Special Meeting
APPROVAL OF MINUTES
Minutes deferred to the April 15, 2014 Regular Meeting.
Adjournment
A motion was made by Kip Kotzan, seconded by Arthur Sibey and voted unanimously to adjourn at 1:00 a.m.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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