OLD LYME ZONING BOARD OF APPEALS
SPECIAL MEETING
Tuesday, March 25, 2014
The Old Lyme Zoning Board of Appeals held a Regular Meeting on Tuesday, March 25, 2014, at 7:30 p.m. in the Auditorium of Memorial Town Hall. Those present and voting were: Present and voting were Judy McQuade, Vice Chairman, Mary Stone, Secretary, Art Sibley, regular member, Karen Conniff, regular member and Kip Kotzan, regular member.
Present: Harry Plaut, alternate, Laurie O’Brien, alternate and Kim Barrows, Clerk.
Acting Chairman McQuade called the meeting to order at 7:30 p.m.
OPEN VOTING SESSION
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 and reviewed the facts of the case. She stated that the sign violation has been corrected and is not being considered this evening. She noted that the Public Hearing was closed on March 18, 2014.
Mr. Kotzan stated that the Board must decide whether the current use was established legally. He indicated that even if people like the use and think it’s a good use, the issue is whether it was established legally.
Acting Chairman McQuade stated that the shop existed for 30 years selling candy and it was permitted as a pre-existing nonconforming use. She noted that in the summer of 2013 added to the physical layout by redoing the former office space for the sale and display of pastries, hot and cold drinks and quiches. Acting Chairman McQuade stated that this area is called the café. She noted that in this space a counter and three stools were also added and the hours of operation changed from 11:00 a.m. opening to 7:00 a.m. opening to serve the breakfast crowd. She noted that wi-fi was also added.
Ms. Conniff stated that she believes there has been a change in use. She indicated that parking as grown, although one cannot establish what entity in the complex is being patronized. She stated that she appreciates the business, but doesn’t believe it’s the same use that it has been.
Mr. Kotzan stated that to say it is a restaurant because it has always sold food would be a very loose interpretation and would make a lot of things restaurants. He stated that he does not feel it was grandfathered in for this use just for that interpretation. Mr. Kotzan stated he does not feel it was a restaurant and feels it is now. He noted that there is a Health Permit required now that
calls it a restaurant. Mr. Kotzan stated that he feels the establishment is a nice thing for the Town, but they are not allowed to judge this case on what is nice for the Town.
Ms. Stone stated that the scope of the Board’s decision is very narrow and agreed that they cannot consider what is good for the Town. She indicated that they must base their decision on whether the use has changed. Ms. Stone stated that it is hard to figure out where to draw the line, whether it is the serving of hot drinks, the warming of quiche versus selling chocolate. She indicated that all of it, along with the physical changes, are a change in use.
Mr. Kotzan stated that the installation of wi-fi changes the use as it encourages people to sit down and eat. Ms. Stone stated that wi-fi may be there for office use. Mr. Kotzan stated that the wi-fi is not protected. Ms. Stone stated that the difference is that people can get food and stay to eat it there. She indicated that whether it is good or bad it is a change in use.
Mr. Sibley stated it is a change in use since the hours were increased from opening at 11:00 a.m. to 7 a.m. to sell consumable items to be eaten on the premises. He noted that the candy shop sold things to be put in a bag and consumed somewhere else. Mr. Sibley stated that there are now consumable items to be eaten at tables that were added. He indicated that it this service did not exist and was not available in the past. Mr. Sibley stated that the Town, in the past, decided it wanted to preserve Lyme Street and delightfully they have been able to. He noted that he was on the Zoning Board when a church was finding it difficult to stay within the confines of their building and they waited and purchased a property for expansion. He noted that parking can be difficult on Lyme Street, even
at the Town Hall. Mr. Sibley stated that although they cannot tell what business is being visited, there is increased parking in that area of Lyme Street. He noted that Zoning clearly denotes that this operation is not compliant.
Mr. Kotzan stated that he feels it is clearly a change in use. He indicated that the Board is not making a judgement as to whether there is detrimental to the Town, only that the proper permits were not obtained.
Acting Chairman McQuade stated that Attorney Hudson noted there are three factors to consider in determining whether there has been a change of use: 1) the extent to which the current use reflects the nature and purpose of the original use; 2) any differences in the character, nature and kind of use involved; and 3) any substantial difference in effect upon the neighborhood resulting from the differences in the activities conducted on the property.” She stated that she feels the Board can clearly say these three factors come into effect with this particular case.
A motion was made by Arthur Sibley, seconded by Kip Kotzan and voted unanimously to support the Zoning Enforcement Officer who filed the Cease & Desist Order, 18 Lyme Street.
Election of Officers
A motion was made by Karen Conniff, seconded by Kip Kotzan and voted unanimously to nominate J. McQuade as Chairman.
A motion was made by Judy McQuade, seconded by Kip Kotzan and voted to nominate Arthur Sibley as Vice Chairman. Motion carried 4:0:1, with Mr. Sibley abstaining.
A motion was made by Arthur Sibley, seconded by Kip Kotzan and voted to nominate M. Stone as Secretary. Motion carried 4:0:1, with Ms. Stone abstaining.
A motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to vote on the slate as nominated.
Adjournment
A motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to adjourn the March 25, 2014 Special Meeting at 7:55 p.m.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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