OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
Tuesday, January 20, 2015
The Old Lyme Zoning Board of Appeals held a Regular Meeting on Tuesday, January 20, 2015, at 7:30 p.m. in the Auditorium of Memorial Town Hall. Those present and voting were: Judy McQuade, Chairman, Art Sibley, Vice Chairman, Kip Kotzan, regular member, Mary Stone, Secretary and Harry Plaut
Also Present: Jack Mut, alternate, Kim Barrows, Clerk and Keith Rosenfeld, Land Use Coordinator
PUBLIC HEARINGS
1. Case 14-25 – Umars, LLC, 281 Shore Road, Variance to construct a new 50’ x 50’ convenience store, new canopy with pump island (36’ x 46’) and related site improvements.
Chairman McQuade stated that the applicant is requesting a variance to construct a new 50’ x 50’ convenience store, new canopy with pump island (36’ x 46’) and related site plan improvements. She noted that this public hearing was continued from the November Regular Meeting.
Mr. Brown stated that this is an application to reconstruct an existing convenience store/gas station. He noted that they were before the Board in November and received some feedback from the Board at that time. He explained that they continued the hearing to give him time to assemble some information and he is prepared tonight to present this to the Board.
Mr. Brown displayed plans on an easel, the first plan shows the proposed facility, with highlights in red where they are asking for variances; the second shows the existing site plan and the areas highlighted on this plan represent the zoning requirements and the areas of nonconformities. He explained that the existing building is a 1950’s gas station that was converted to a convenience store. Mr. Brown noted that the site also includes the canopy and gas pumps and is somewhat congested and the parking is on the Swan Avenue side of the building. He noted that there are photographs of the existing conditions in the file. Mr. Brown stated that the building, the canopy and the parking do not currently comply with the setback, coverage and landscaping requirements. He explained that the site is
split into two pieces by a 10 foot alleyway that extends from Shore Road all the way down to the beach. Mr. Brown explained that the alleyway is owned by the Town but the applicant has a license to use and maintain the alleyway which he has done for a period of years. He noted that the proposal is to demolish the existing store and construct a 2,500 square foot store on the Swan Avenue side and the gas pumps and canopy will be expanded to provide two gas pumps. Mr. Brown noted that the parking will be located in the front of the building. He pointed out that the landscaping will be expanded to buffer the adjacent residential properties.
Mr. Brown stated that the property is located in a C-10 Zone. He noted that there is an additional setback required on one side because it abuts a residential zone and the setback on Swan is increased due to the narrow road. Mr. Brown stated that on the Swan Avenue side of the building they currently are on the property line and with the narrow street setback requirement the proposed plan increases the setback to 4.5 feet. He explained that the current street setback is compliant, while the rear yard setback is zero and the other side setback is 2.8 feet. Mr. Kotzan noted that part of the issue is that there are two parcels. Mr. Brown agreed, and noted that that is part of the basis for their request. He stated that the existing canopy is two feet from the property line and the
proposal pushes it back another foot to three feet from the property line. He indicated that the existing canopy is 9/10ths of a foot from the side line along the alleyway and 4.1 feet on the other side and in the proposal it is zero at the front and 6 feet at the back. Mr. Brown stated that with respect to lot coverage, on the Hartford Avenue side, the building and the improved parking lot encompass 99 percent of the area and explained that the plan allows them to reduce this number to 95 percent and allowing them to create the landscape strip near the neighbor. Mr. Brown stated that on the Hartford Avenue side where there is a paved parking lot and open lawn area the coverage is currently 35%. He indicated that it would increase to 66% which is 6 percent over the maximum allowed. Mr. Brown stated that with regard to building coverage, the existing building coverage on the Hartford Avenue side is 30% which will decrease to 28% where 25% is allowed.
Mr. Brown stated that the parking on the Hartford Avenue side is 15 feet from the right-of-way and in the proposal it is 10 feet and on the Swan Avenue side the plan shows that there will be an 8’ wide landscape island to give definition to the site where the parking currently goes right up to the street. He explained that there are currently eight parking spaces on the existing site and the proposed plan provides 9 parking spots. He noted that the parking requirement is 13.
Mr. Brown stated that the one of the hardships is the alleyway that divides it in half. He noted that the other properties at the beach that have the alleyway are separate parcels from the parcel behind the right-of-way. He noted that this is a unique hardship. Mr. Brown stated that if they put the building in the building area they would only have a 10’ area to put the parking spaces and likewise, if one respected the landscape requirements and came into the site with an isle and parking, then there wouldn’t be any space for the building. Mr. Brown stated that those two Regulations make development on this site impossible. He stated that any development on this site would require variances of some sort. Mr. Brown noted that the applicant is not asking to the change the use.
He noted that the variance would allow a buffer between the building and the neighbors and will allow for a much more attractive building. Mr. Brown showed the architecture plans, noting that it has a peaked, shingled roof. He noted that the façade fits in with the neighborhood. He explained the floor plan and noted that it will be a more functional and attractive building.
Mr. Brown stated that days after his initial presentation to the Board there was a beach and bikeways meeting and there is now a Powerpoint presentation on the Town website. He explained that the 2,500 square foot building is smaller than the typical convenience store. He pointed out that the church across the street on Swan Avenue is a 6,000 square foot footprint. Mr. Brown noted that the average house is 2,500 square feet. He explained that the Powerpoint presentation points out the two convenience stores as being part of the community. Mr. Brown stated that the traffic exists and the traffic allows the convenience stores to be successful. He noted that this business is symbiotic of the beach area and the parking income and taxes paid by businesses. Mr. Brown submitted the Powerpoint
for the record.
Mr. Brown stated that the Town Plan of Conservation and Development acknowledges the importance of the businesses on the Shore Road and their servicing the needs of the people. He submitted an excerpt from the Town Plan for the record.
Mr. Brown stated that the beach project is on Hartford Avenue and is not directly related to this convenience store. He noted that the proposal does not propose any activities in the street right-of-way on Hartford Avenue. Mr. Brown stated that the proposal is one businessman’s reaction to seeing the community want to invest in the area. He explained that this project could benefit the Gateway project.
Mr. Brown stated that the applicant is looking to upgrade his existing facilities and the upgrade is consistent with the plans of the Town and community.
Mr. Sibley questioned where the gas fill manholes are located as he is concerned about the trailer being out of the way of traffic. Mr. Brown noted the current location of the tanks and fill and noted that they will remain in the same area with the new plan. Mr. Kotzan noted that there would be less traffic through that area of the property with the new building location.
Chairman McQuade questioned the lighting. Mr. Brown noted that they have not yet planned the lighting but they are looking at new LED lights that fit up underneath the canopy and the same with the perimeter of the site. Mr. Plaut questioned whether there would be signs any closer to the street. Mr. Brown stated that they would be keeping the existing sign. Ms. Stone noted that one lot the coverage is being reduced and the other increased, but overall a large increase. She stated that the proposed structure would impact the neighborhood as it is much larger than other structures in the neighborhood with the exception of the church. She questioned how this would improve neighborhood character. Mr. Brown stated that the current structure is a 1950’s gas station with no appeal from
the street. He noted that the proposed building has appeal and will fit in with the surrounding area. Chairman McQuade noted that the proposed structure is twice the size of the existing structure. She noted that if the building size were reduced they could ask for smaller variances for the coverage and parking. Mr. Brown agreed and noted that this facility is much smaller than the average convenience store so it was a compromise by the applicant. Chairman McQuade stated that asking for fewer than the recommended parking spaces is difficult. Mr. Brown stated that they have not counted the parking at the pump which in reality does occur.
Mr. Kotzan questioned the size of the new Henney Penney further down 156. Mr. Brown noted that that structure is 4,000 square feet and has a drive-thru window and a Dunkin Donuts. He noted that this proposal is much more modest.
Mr. Plaut questioned whether there are plans to include a franchise? Mr. Brown replied that there is not. Chairman McQuade questioned the height of the canopy. Mr. Brown stated that it is approximately 17 feet. Ms. Stone questioned how much the building would have to be reduced in order to meet the lot coverage requirement. Mr. Brown stated that he has not calculated it but he would estimate it to be approximately 600 or 700 square feet. Mr. Kotzan noted that the proposal pulls the structure off Hartford Avenue, although he noted it does slide over to Swan Avenue.
Mr. Kotzan noted that All Pro enlarged and made a nice structure out of Doug’s garage and noted that people are not opposed to it. Mr. Sibley noted that this is a clean up of an ugly structure. He stated that this is a viable business and is the first real effort for a long time, to make something a lot better and a lot more useful.
Ms. Stone read a letter from Jim Lampost, 1 Portland Avenue, in opposition to the proposal.
Frank Pappalardo, Swan Avenue, stated that he is addressing the Board as a neighbor and as the Chairman of the Sound View Commission. He noted that at the October meeting he sent a letter addressing his concerns which should be part of the file and since that time the Sound View Commission met and endorsed his letter, as well as the Sound View Beach Commission. He noted that both those organizations request that the variances be denied. Mr. Pappalardo stated that it was said that one of the hardships is that the alleyway splits the property and it only affects this property; he noted that there are four other properties further toward the beach that have the same issue. He stated that the Powerpoint presentation referred to early is about three years old and a newer one has been posted. He
submitted a copy of the improvements that are currently in design. He noted that Hartford Avenue has much more green space and they are trying to control the number of people that come into the area. He noted that they are moving to parallel parking with 6 or 8 foot sidewalks on both sides of the street. He pointed out the park and the lighting and architectural features in the park. Mr. Pappalardo noted that certain areas of 156 are wide enough for separate bike lanes.
Mr. Kotzan stated that it appears they are creating a private neighborhood and questioned whether the plan will be approved by the Townspeople. Mr. Pappalardo explained that they received a grant under the Alternate Transportation Act to establish a bike lane from the Baldwin Bridge to Hartford Avenue and as part of that grant they are able to modify the parking and put in a park and parking lot. He noted that the grant is 700,000.00 and the Town is responsible for 20 percent of that. Mr. Kotzan stated that the commercial area/zone is tax revenue for the Town. Mr. Pappalardo stated that the commercial properties at the beach cannot be profitable in a ten week period. He noted that the owners of the three largest parcels are planning to turn them into condominiums; the owner of the Cool Moose
has stated the same. He noted that besides that there are a few other places that are open for ten weeks out of the year. Mr. Pappalardo stated that there are several commercial buildings on Shore Road that also make most of their money during those same ten weeks. He noted that the beach is only 100 feet wide and there are seven private parking lots and the Town lot. Mr. Pappalardo stated that they also have to think of the quality of life for the owners. He stated that many of the cottage owners don’t rent their homes anymore they are owner occupied. Mr. Pappalardo stated that the demographics of the area have changed. He stated that with a 100 foot strip of beach they cannot have the massive crowds that they’ve had in the past.
Mr. Pappalardo distributed a plan showing the area of Shore Road. He noted that there is no final offering to the Town as everything is in the discussion stage. Mr. Pappalardo stated that one objective is to tie upper Hartford and lower Hartford Avenue together. He noted the sidewalks, street lights, and crosswalks. Mr. Sibley stated that Mr. Pappalardo is submitting planning and zoning work to the Board. He noted that the applicant is trying to improve and modify his business, as well as expand it. Mr. Sibley stated that his planning does not have anything to do with this business.
Mr. Pappalardo stated that the proposal does not meet the current regulations and is not in keeping with the plans for the area. He noted that having a fuel island that close to the street could impede future sidewalks. Mr. Kotzan noted that the fuel island will not interfere with a sidewalk. Mr. Pappalardo stated that Swan Avenue is a residential area and they are pushing the building into the residential area. He indicated that the building is too large and the positioning of it is not appropriate. Mr. Sibley stated that he is satisfied that he understands Mr. Pappalardo’s concerns.
Ms. Barrows noted that he applicant does not have anything proposed on the Town right-of-way. She questioned whether there is going to be a taking by the State or the Town. Mr. Pappalardo indicated that he does not know. He indicated that he would be happy to sit with the applicant’s engineers and discuss how it could all work together. Ms. Barrows stated that their idea is beautiful but they cannot make a future claim to the applicant’s property.
Mr. Kotzan pointed out that the island does not encroach any closer on the Shore Road. Mr. Pappalardo stated that they are trying to reduce traffic and the structure is doubling in size. Mr. Kotzan stated that the proposal is about the entire Town, not just this one neighborhood, and he gets his gas there and would like to see it improved. Mr. Pappalardo questioned the need and hardship for this project. He noted that the current gas station services the area quite well and he does not see a reason to double the number of pumps. Mr. Kotzan stated that it is busy in the summer and there are days he drives by because the cars are stacked up and he cannot get in. Chairman McQuade stated that she lives in the area and hasn’t seen that. Mr. Pappalardo stated that there is also no need to
double the size of his structure. Mr. Kotzan stated that the proposal is not a full service gas station and the applicant wants to upgrade his property and it would be a good service for the Town. Ms. Stone stated that the Board’s job is to determine the proposal and its relationship to the variances they are seeking. Mr. Pappalardo stated that what the applicant does now could affect what is done in the future and he would like to work with the applicant to the benefit of all. Mr. Sibley questioned whether Mr. Pappalardo was stating that the entire beach community is against this proposal. Mr. Pappalardo stated that he is speaking for the Sound View Commission and the Sound View Beach Association, not for every individual property owner as they have not polled all 180 people.
Ms. Stone noted that the two items submitted by Mr. Pappalardo were entered as Exhibits D and E.
The owner of 75 Swan Avenue stated that she is not interested in having the traffic from this facility on Swan Avenue. She indicated that she does not want the quality of life affected by the facility.
The owner of the adjacent convenience store stated that the proposal will negatively affect his business.
Mr. Brown stated that there is an entrance on Swan Avenue that will be reconfigured and a loading area on Swan Avenue. He noted that most of the traffic will enter and exit from the Shore Road. Mr. Brown stated that he has quickly reviewed the plan submitted by Mr. Pappalardo and does not see anything that cannot happen if this is proposal is approved. He noted that all their planned work is in the right-of-way. He indicated that he would also be very happy to meet with the Sound View engineers.
Hearing no further comments, Chairman McQuade called this Public Hearing to a close.
2. Case 15-01 A – Appeal of a Cease & Desist Order
Chairman McQuade stated that this case is an appeal of a Cease and Desist Order issued by the Zoning Enforcement Officer on September 25, 2014, for certain uses not allowed, bar type exercise, spin bikes, yoga, Zumba, acupuncture, personal training and chiropractic services on property located at 14 Lyme Street, Vitality Spa, Warren Hannas, property owner.
Elizabeth Carter, applicant number 7 on the agenda, asked to have her application postponed to the next Regular Meeting. The Board agreed.
Attorney Zamarka was present representing Warren Hannas. He indicated that he will no belabor the points in his memo that is before the Board, but he does want to highlight some of them. He explained that Mr. Hannas owns the Village Shoppes and Ms. Eisensmith is his tenant and the reason they are here this evening is the Cease and Desist Order. Attorney Zamarka stated that he would like to present the history of the Shoppes and show that the uses are a continuation of uses that have already been established as nonconforming uses. He noted that the Village Shoppes have been in existence and leasing space to tenants since 1932. Attorney Zamarka stated that in 1941 zoning was adopted and the Shoppes became a pre-existing nonconforming use. He explained that Mr. Hannas has owned the property for thirty
years and in that time has continued the nonconforming uses in anywhere from five to seven units, depending upon the configuration. He noted that page 1 of his memo lists a wide variety of uses that have existed at the location over the years. Attorney Zamarka that at no time were any of these businesses asked to apply for a variance or any type of Special Permit. He noted that all the prior ZEO’s agreed that the Village Shoppes would be dealt with as a complex rather than the individual units, so that a nonconforming use in one unit applied to the building as a whole. He indicated that that has occurred through Ms. Brown’s tenure and her predecessor’s as well. Attorney Zamarka stated that Mr. Hannas has never done anything to abandon the uses so all the uses listed on Page 1 are established legal nonconforming uses and as such they are entitled to both Statutory and Constitutional protection. He explained that the Board must determine
whether the uses of Ms. Eisensmith are legally nonconforming. He noted that in determining this, the Board looks to three factors: the extent to which the use reflects the nature and purpose of the original use; the differences in character, nature and kind of the use involved; and any substantial differences in the effect upon the neighborhood.
Attorney Zamarka stated that it is his view and Ms. Eisensmith will explain in further detail, that her proposed uses are established legally nonconforming uses that have been going on at the Village Shoppes for at least the last 30 years. He stated that the exercise classes are an extension of what has been offered by Ms. Eisensmith and other spas in the past and clearly chiropractic services are a professional service.
Attorney Thor Holth was present representing Ms. Eisensmith. He distributed copies of his summary for the record. Attorney Holth read the Cease and Desist. He noted that holistic health counseling, nutrition and weight loss counseling, corrective exercise, functional movement therapy, massage therapy and meditation were all found as pre-existing nonconforming uses. He stated that the chiropractic use is either within the pre-existing uses or can be found within the pre-existing nonconforming professional office use. Attorney Holth stated that they have withdrawn their portion of the appeal relating to Zumba training. He noted that Ms. Eisensmith’s qualifications are laid out in the summary and they exceed that of which would be necessary to qualify her as an expert in her field.
Attorney Holth provided the history of the business in his summary and, noted that they received a certificate of Special Permit in early September and a Cease and Desist was issued on September 11 and then modified on September 15th and a final one was issued on the 25th. He explained that in the interim, they filed an application with the Zoning Commission because in early September there was a Special Permit issued for a yoga studio at the Cooley Gallery which is located across the street from Village Shoppes. Attorney Holth submitted copies of this certificate of decision for the record. He explained that the Zoning Commission found that the yoga studio could operate as a school and because of this decision, they felt it was appropriate to file an application for Special Permit. Attorney Holth explained that due to issues that came up at the Public Hearing, including a letter from the Fire Marshal indicating that the building occupancy would be exceeded, they withdrew their
application.
Attorney Holth stated that section four of his summary sets out the grounds for their appeal and provides definitions, both Statutory and peer reviewed, of the businesses that are being addressed. He reviewed these definitions for the Board as they apply to spin cycling, bar exercises and noted that the yoga classes have been held for three years with no interruption. Attorney Holth noted that on page 9 he has provided a definition of acupuncture, noting that it is a combination of meditation and stress management. He explained that personal training services fall within the pre-existing nonconforming use of meditation and stress management, corrective exercise, weight loss and nutrition.
Attorney Holth indicated that the Board should consider the extent to which the current use reflects the nature and intent of the original use. He noted that Mr. Hannas has described the prior uses and Ms. Eisensmith’s uses are a continuation of those legal pre-existing nonconforming uses. He stated that the next consideration is whether there has been any change in the character, nature and kind of use and pointed out that there has been no change. Attorney Holth explained that the third consideration is whether there is any substantial difference in the effect upon the neighborhood resulting in differences in the activities conducted on the site. He noted that there is no expansion beyond the four walls of the building; the only expansion is within the building and it is an expansion of the
pre-existing nonconforming uses and no change is anticipated in the neighborhood as a result of the continuation of these uses.
Attorney Holth asked that if the Board found that these uses were not pre-existing nonconforming uses and that they find that these are a modernization of those pre-existing nonconforming uses. He noted that modernization of pre-existing nonconforming uses is allowed under Connecticut Law and he provided a citation. Attorney Holth stated that modernization is allowed because the law recognizes that businesses can change and their methods and equipment should be allowed to change to suit the times, although the use may not change.
Attorney Holth explained that an increase in business is not an expansion of a nonconforming pre-existing use. He provided a citation regarding this. Attorney Holth stated that the law holds that if there is an increase or change, the burden of proof is on the municipality and no proof has been presented. He stated that chiropractic services are a combination of nutrition, weight loss and holistic health, corrective exercise and functional movement and body work. He noted that they have provided a description written by Dr. Murphy and it states that she will be there three days a week, not more than 20 hours and no medical waste will be generated. He read the definition of chiropractic care. Attorney Holth stated that if the Board feels that chiropractic care does not fall under any of
these categories, then it would fall under professional offices. He noted that there is a lawyer’s office at the shoppes and over the years there have been insurance agents and real estate brokers. Attorney Holth read the Old Lyme Zoning Regulations as it defines professional offices noting that it includes doctor’s offices.
Attorney Holth stated that for all the reasons he has provided, they are asking the Board to overturn the Cease and Desist issued by the Zoning Enforcement Officer on September 25, 2014 and provided as Exhibit A. He reviewed the other exhibits he submitted. Attorney Holth stated that the Board is allowed to approve or reverse the Cease and Desist Order and asked the Board to address each service or use individually.
Ms. Stone stated that there seems to be some inconsistency between the exhibit of the certificate of decision by the Zoning Commission to allow a Special Permit for the use of the Cooley Gallery as a yoga studio and what Ms. Eisensmith is asking to do. Attorney Holth states that that certificate is for the building across street and their reason for submitting it is to show that they have been granted the right for the same use. He noted that the Cooley Gallery building did not have a pre-existing nonconforming use as a yoga studio or massage therapy. He noted that the Village Shoppes did have these pre-existing nonconforming uses and that is the difference.
Mr. Kotzan questioned why they removed their request for Zumba. Ms. Eisensmith stated that she withdrew that request because it is not a fundamental wellness activity as the other activities are. Mr. Kotzan questioned whether the Special Permit application was withdrawn because of the potential volume of customers. Attorney Holth stated that the limit of loading per the Fire Marshal applied to other areas of the building as well that were not included in the application which affected other business owners.
Ms. Stone questioned whether the applicant is asking for more hours of operation and classes then are noted in the certificate of decision. He noted that that is not a question before this Board. He noted that the question before this Board is whether yoga is a pre-existing nonconforming use. Mr. Kotzan noted that one consideration Attorney Holth noted the Board should take into consideration was any potential impact on the neighborhood resulting from the differences in activities on the property; he suggested that is a volume issue. Ms. Stone stated that the neighbors are present because they feel it will have an effect on the neighborhood so she believes it is germane to the discussion. Ms. Eisensmith stated that her hours of operation have always been 7 a.m. to 8 p.m., not necessarily
every day but they are available during those hours, so they are not changing their hours. She noted that her classroom holds eight people comfortably so there will not be a large volume of people at one time and the classes are not scheduled back-to-back. Ms. Eisensmith stated that hers is a wellness studio and the classes will not create noise because if they did it would impact her other clients. She noted that the Cooley Gallery is much closer to the neighbors and she noted that the neighbors did not express concern about noise with that application.
Mr. Plaut questioned whether the studio is open seven days a week. Ms. Eisensmith explained that it would be, but not the full hours. She noted that the maximum number of people would be ten; eight students, the instructor and a receptionist. Mr. Kotzan questioned whether Ms. Eisensmith has been given a maximum number of people that can be in the facility. Ms. Eisensmith stated that she was originally given a number of twenty-six for the classroom or twelve if they were lying on yoga mats.
Ms. Stone questioned whether the applicant would be amenable to a compromise that limited classes to ending at 8:00 p.m. Ms. Eisensmith stated that she feels that would be limiting because there are many other activities going on on Lyme Street after 8:00 p.m. such as sporting events at the high school and because her groups are so small they would not be impacting the neighborhood. She noted that she has letters of support from Boxwoods and from Barbara O’Connell, Sandy Garvin and others along Lyme Street. She noted that because they serve a wide range of ages, some have to go home and feed their families before they can come back out. Ms. Eisensmith submitted three new supporting letters and Ms. Stone entered them as exhibits and read them for the record. Ms. Eisensmith stated that she
had twenty letters in support from her Zoning Application and there are some neighbors here this evening to show their support. Ms. Stone summarized two additional letters in support and five letters asking the Board to uphold the Zoning Enforcement Officer.
Chairman McQuade stated that Ms. Eisensmith did some advertising that indicated she was offering new services. Ms. Eisensmith noted that she did, and stated that it was created by her marketing director to raise awareness of what the spa offers. She stated that many people have come to her indicating that they had no idea of what the spa had to offer or that it even existed. Ms. Eisensmith stated that the new services were subsets of existing services, such as a new organic facial for the fall, but it is still have a facial. She stated that a stretching class can become popular and become a trademark, but it is still a stressing class and that’s where marketing comes in. Ms. Eisensmith stated that she is not trying to establish a fitness facility, she is promoting health and wellness.
Chairman McQuade questioned whether the bikes are a new feature. Ms. Eisensmith acknowledged that they are new and stated that they are a modernization of a technique, corrective exercise and meditation. She noted that she is happy to define it in such a way that there could be no confusion between what she offers and what a gym would offer, such as weightlifting which would not be corrective exercise or meditation. Ms. Eisensmith presented an advertisement of her business from before December 2010 that lists yoga and corrective exercise, acupuncture, health coaching, etc.
Mr. Hannas stated that he had a tenant for 15 years that provided facials before Ms. Eisensmith opened her spa.
Mr. Rosenfeld, Zoning Enforcement Officer, stated that there were several communications between he and Ms. Eisensmith which culminated in a final Cease and Desist Order. He noted that this was triggered by a Zoning Compliance Permit Application that he felt was not in line with the uses that were described in the original permit. Mr. Rosenfeld stated that when Ms. Eisensmith acquired the new area of the building he did not consider it an expansion of use because the area was pre-existing nonconforming. He indicated that they had numerous communications and using her advertising he came up with a series of dates which show what he believes are continuing uses and those he believes are new uses.
Mr. Rosenfeld read the list of uses that he believes are pre-existing nonconforming and the list of uses that he believes are new uses and therefore nonconforming. He noted that it was his idea that she apply for a holistic school, which is the application that Ms. Eisensmith withdrew from the Zoning Commission.
Mr. Sibley questioned whether Mr. Rosenfeld thought to seek counsel from a medical professional to verify that the uses are new activities. Mr. Rosenfeld stated that he used a variety of sources, including his own professional and personal experiences and Ms. Eisensmith’s advertising to come to his conclusions. He indicated that he has been to a chiropractor. Mr. Rosenfeld stated that he did research. Chairman McQuade questioned whether Mr. Rosenfeld felt there was an increase in intensity, density and use. He stated that he does feel there is an increase in use from the original zoning compliance permit. Mr. Sibley questioned whether Mr. Rosenfeld was acting on a complaint. Mr. Rosenfeld indicated that he was not, that he was acting on the review of a zoning compliance permit
that he approved; he noted that after his approval he reached out to Ms. Eisensmith to full understand what activities were taking place. Ms. Stone stated that this is similar to what happened with the chocolate shell and trying to substantiate what uses are new or what uses are allowed and what are new. She noted that many of the approved activities are one-on-one activities and the group activities seem to be new. Ms. Stone stated that the Zoning Commission allowing a yoga studio at the Cooley Gallery has her confused. Mr. Rosenfeld stated that the Zoning Commission allowed a yoga studio as a school by Special Permit. Mr. Kotzan stated that many of the activities blend to the next. He indicated that he likes the idea of one-on-one activities being a limiting factor. Mr. Kotzan stated that exercise bikes seem to be new. Ms. Stone questioned whether the Cooley gallery is a pre-existing nonconforming commercial use. Mr. Rosenfeld
indicated that it is. Ms. Stone questioned whether Ms. Eisensmith has the same option as the Cooley Gallery to apply for a special permit. Mr. Rosenfeld indicated that they do have the same option. He noted that the applicant, in the Cooley Gallery application, presented their studio as a single use of a yoga studio. Mr. Rosenfeld stated that the Zoning Commission issued a special permit to establish a school. He noted that under this permit they cannot do anything but yoga.
Mr. Sibley stated that the property use is what the Board is concerned about. He indicated that he cannot understand how Mr. Rosenfeld could make the determination as to whether the use was expanded when he is a layperson. Chairman McQuade noted that Mr. Rosenfeld had to determine whether the new uses were an expansion of the allowed use or an extension of the allowed use and whether it was an illegal extension of the use. She noted that making this determination is his job.
Ms. Eisensmith stated that she had several conversations with Mr. Rosenfeld and was not aware at the time that she should have included her attorney. She stated that it is for that reason that she has submitted additional documentation since the Cease and Desist was issued, such as the yoga flyer. Ms. Eisensmith explained that if she had provided different or more evidence up front, the Cease and Desist may not have been issued. She noted that she does not always explain things well because she is an expert in the field and assumes some things are known by others. Ms. Eisensmith noted that when she opened her spa, Ms. Brown issued her a permit for a spa and the type of spa activities were never documented.
Chairman McQuade suggested that the Board may want to hold this public hearing open because of the volume of material presented this evening.
A gentleman indicated that he belongs to LA Fitness. He explained that he has bad knees and the room there has 60 bikes and loud music which is not what they are talking about at Vitality Spa. Ms. Eisensmith noted that she has nine bikes and one instructor. She explained that she does Zumba because it opens up the hips, but she can see where people might get the wrong impression and think there will be a lot of people and very loud music, which is not the case at her spa. She noted that this is why she decided to take Zumba off the appeal.
Annie Oakley, 27 Lyme Street, indicated that she lives right next door to the Cooley Gallery. She stated that the gallery openings that go much later than 8:00 p.m. are more disruptive to the tranquility of the neighborhood.
Julie S., Lyme Street, stated that the spa is an asset to the community.
Chris Hannas stated that her husband owns the building and he has never had to go through anything like this for a tenant before. She stated that this situation is a colossal waste of money. Ms. Hannas stated that the building has been a commercial building since 1932 and has had multiple uses including a supermarket, drug store, ladies clothing store and many professional tenants. She noted that in the old days spas did not offer yoga and other services but times have changed, society progresses and evolves. Ms. Hannas stated that the spa should be allowed to operate without restrictions.
Clara indicated that she has worked at the spa since 2010 and noted that Ms. Eisensmith always looks at the appropriateness of an activity before she incorporates it, considering both the spa community and the location. She noted that it will be difficult to write advertising if she has to worry about how it will be interpreted.
The owner of the Chocolate Shell stated that this process is a waste of time and is very similar to what she went through. She indicated that Ms. Eisensmith should not have to come back and get approval every time she adds a service to the spa. She noted that businesses in Old Lyme get their knees cut off. She noted that the building has been commercial since 1932 and has been under constant attack over the past three years. She noted that Lyme Street is a public street that people can park on and there are many businesses in the area and it does not affect the neighborhood.
Helen Medera, Sill Lane, stated that when the Cooley Gallery got its approval for yoga, no one objected.
Diane Mallory, 20 Lyme Street, stated that she has lived on the corner of Lyme Street and Academy Lane for 5 years. She indicated that she enjoys having these businesses nearby. She noted that when the spa opened it had three treatment rooms, a retail area and a reception area. Ms. Mallory noted that when it expanded into the gallery area in August, the spa was expanded to include fitness classes, chiropractic services and more retail. She indicated that this increased parking on an already narrow Academy Lane. Ms. Mallory stated that it is not uncommon to have 15 cars parked perpendicularly on Academy Lane, some sticking out into the street. She noted that the Zoning Application that Vitality Spa had filed with the Zoning Commission and subsequently withdrew acknowledges change and
expansion. Ms. Mallory submitted the 2010 Plan of Conservation and Development with many passages highlighted. She read four of these passages for the record. She noted that the Plan of Development does not call for commercial use on Lyme Street or in the Historic District. Ms. Mallory stated that the Cease and Desist Order should be upheld. She submitted her written statement for the record.
Jane Schellens, 1 Academy Lane, indicated that she would like the Board to uphold the Cease and Desist. She stated that she purchased her house adjacent to the Village Shoppes in 1984, knowing that they were a pre-existing nonconforming use in a Residential Zone and she would be protected by zoning. Ms. Schellens stated that she is here this evening because Vitality Spa has expanded and intensified their use and which has a negative impact on her enjoyment of her property. She stated that the spa has increased their hours of operation and has increased from low intensity, one-on-one services to group classes, seven days a week. Ms. Schellens stated that the traffic has increased on Academy Lane and noted that Academy Lane bears the burden of traffic from the Village Shoppes. She noted that in
the summer of 2014 Vitality Spa expanded their space and their services and they do not reflect the nature and purpose of the original use. Ms. Schellens noted Exhibit B in the packet she provided to the Board and stated that it shows the services offered in November of 2013 which are traditional spa services and indicates that they make referrals for chiropractic and acupuncture care. She stated that Ms. Eisensmith had a Special Permit Application before the Zoning Commission in November and stated at that time that the industry standards for spas have changed and how they need to offer holistic wellness services in order to remain competitive and relevant. Ms. Schellens stated that she looked at spas within a 20 mile radius of Old Lyme and none of them offer other than the traditional spa services. She indicated that she looked at all the yoga studios within a 20 mile radius of Old Lyme and found that they did not offer traditional spa services. She
noted that Ms. Eisensmith may have a brilliant business plan, but it is clearly not allowed in this zone and is a change and expansion of the nonconforming use.
Ms. Schellens stated that the Village Shoppes has typically had five small, low intensity businesses with a low employee to client ratio and has had little impact on their neighborhood. She noted all of Ms. Eisensmith’s offerings and asked the Board how many businesses are allowed to be located in the Village Shoppes. She noted that this is clearly an expansion in a nonconforming zone. Ms. Schellens stated that the offerings have been extended to well beyond traditional spa services and noted Exhibit C in the packet which is Vitality Spa’s current offerings as shown on their website and new is noted next to each service that was not on the 2013 brochure (Exhibit B). She noted that the hours of operation have increased 26 hours per week which greatly affects her enjoyment of her property. She
noted that Exhibit D shows the original hours of operation and Exhibit E shows the new hours of operation. Ms. Schellens stated that she can hear the chirp of people locking their car doors early in the morning and that negatively impacts her enjoyment of her property. She noted that Exhibit F shows the multiple group classes offered each day and some of them are offered back-to-back. Ms. Schellens stated that Ms. Eisensmith stated this evening that there are eight students per class and at the Zoning Meeting she indicated there are twelve students per class plus an instructor. She noted that when the classes are back-to-back it could mean twenty-plus cars down Academy Lane. Ms. Schellens stated that this number does not include the other clients that may be there for a service. She indicated that this is very different then a one-on-one spa type use. Ms. Schellens stated that if Ms. Eisensmith wants to expand her business she should do so
in a commercial zone. She noted that Lyme Street is a residential zone.
Tom Schellens, 1 Academy Lane, stated that zoning protects the peaceful enjoyment of property. He indicated that he sat on the Zoning Board of Appeals for 10 years and he is familiar with the Zoning Regulations. Mr. Schellens noted that the Village Shoppes are a pre-existing nonconforming use in a residential zone. He stated that a few years ago the Village Shoppes began testing the limits of zoning by allowing some tenants to expand without application. He noted that the arguments presented are the protection of small business; he noted that these people do not live in the area. Mr. Schellens stated that this is about fairness to the neighbors who have purchased their homes and have their lives here in the residential zone. Mr. Schellens read several sections from the Zoning
Regulations regarding nonconformities.
Mr. Schellens stated that he started his own small business in his home five years ago and when production began he moved it to the Old Saybrook Business Park. He noted that many small businesses began on Lyme Street and moved in order to expand. Mr. Schellens noted that both the activities and hours of operation of Vitality Spa have expanded. He asked the Board to adhere to the uses identified in the permit issued in September. Mr. Schellens stated that testimony this evening indicates that there are now four, not five businesses in the Village Shoppes which brings the building more into conformity and it should not be allowed to expand back to five businesses in the future.
Mary Poolin, 6 Lieutenant River Lane, stated that she has lived in her home for thirty years and has witnessed the increase in traffic on Lieutenant River Lane and Academy Lane. She noted that a great deal of the traffic goes down Academy Lane to Lyme Street. Ms. Poolin noted that the increase in traffic caused the Town to install four stop signs at the intersection of Academy Lane and Lieutenant River Lane. She indicated that she likes that small businesses start out on Lyme Street but when they want to grow and expand they move to Halls Road.
Charles Hinkley, 31 Lyme Street, stated that he has been a real estate developer for over twenty five years. He indicated that his property is located across the street to the north of the Village Shoppes so his view is Academy Lane and the building. He stated that the applicant is not an expert witness and should have brought a medical doctor. Mr. Hinkley stated that the applicant applied to Zoning and made the decision to withdraw and now they are trying to not get permission and skirt the fire safety issued that came up at that hearing. He indicated that the fact is that the new store area is new and so are some of the uses. Mr. Hinkley stated that the parking along Academy Lane is unacceptable. He noted that the people are not present tonight because clients are going to yoga instead of
getting facials, they are here because their lives are being impacted negatively. Mr. Hinkley noted that the parking along Academy Lane is dangerous; often the cars are blocking Academy Lane. He stated that he fully supports the Zoning Enforcement Officer.
Ms. Barrows read a letter from the Historic District Commission asking that the Cease and Desist be upheld and noted that the document is not signed. She read three additional letters from townspeople who were requesting that the Cease and Desist be upheld.
Chairman McQuade suggested that the Public Hearing be continued to the February Regular Meeting to give the Board the opportunity to consult with their attorney and review the material submitted. Mr. Kotzan noted that it will also give more time for the applicant to address audience comments from this evening.
A motion was made by Mary Stone, seconded by Harry Plaut and voted unanimously to continue the Public Hearing for Vitality Spa, 14 Lyme Street, to the February 17, 2015 Regular Meeting.
3. Case 15-02 – Nicholas J. DiCorleto, Jr., 44 Breen Avenue
Chairman McQuade noted that the applicant is requesting a variance to demolish and reconstruct a 1.5 story dwelling to meet FEMA Standards.
Attorney Paul Geraghty was present representing Mr. DiCorleto. He distributed photos of the existing house which was built in the 1930’s. Attorney Geraghty stated that they are proposing to demolish the existing house and reconstruct a new house in its place. He noted that the existing house has several nonconformities. Attorney Geraghty submitted drawings of the proposed house. He explained that because the existing house is so old, it was not feasible to raise it. Attorney Geraghty noted that the house is currently two stories and it will be reduced to a conforming 1.5 stories. He indicated that they will be raising the house 6 inches, the rear setback will become compliant and the second floor area is being reduced and the first floor area increased. He pointed out that
the house is currently noncompliant as to floor area for a two story dwelling but will be compliant in regards to floor area for a 1.5 story dwelling. Attorney Geraghty noted that the total lot coverage allowed is 30 percent and they will be at 21 percent.
Attorney Geraghty noted that the Board has approved several similar applications in the past year, allowing homeowners to demolish nonconforming homes and reconstruct them to meet FEMA standards. He provided case law where the Court found that the Board can consider nonconformities being reduced when considering a variance.
Attorney Geraghty noted that 42 Breen has its own septic which has been approved by the Sanitarian. Ms. Stone questioned the height of the current house. He noted that the house is currently at 23.5 feet and the proposed height is 24 feet.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman McQuade closed this Public Hearing.
4. Case 15-03 – Henry Elsesser, et al., 64 Hillcrest Road
Chairman McQuade stated that the applicant is requesting a variance to placement of 100 square foot shed within one foot of rear property line and front setback, cellar access within rear and front setback, placement of condenser unit within rear and front setback change existing window to a door.
Geri and David Deveaux were present to explain the application. Mr. Deveaux noted that they are renovating the existing home, although not changing the shape. He explained the proposed changes. He noted that they would like to remove the kitchen window with a door and relocate the basement access. Mr. Deveaux stated that they would like to locate the shed on the existing driveway surface up against the existing fence. He noted that the driveway is impervious so there would be no increase in total coverage. Mr. Deveaux stated that the cellar access would not stick out any further than the existing home. Ms. Deveaux explained that the property line is located on a point of land and has three street setbacks. She noted the green line on the plan which is the setback which leaves 80
square feet of buildable area. Mr. Deveaux noted that the setback line runs through the corner of the house and the chimney. Ms. Deveaux pointed out that the owners would like a ground level terrace to enjoy their yard which is why they would like to relocate the bilco doors.
Mr. Deveaux noted that there is no storage in the house which is why they would like a 10’ x 10’ shed. He noted that they would like to add a condenser unit for heating and ventilation. Mr. Kotzan questioned whether they had a drawing of the shed. Mr. Deveaux stated that they do not.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman McQuade closed this Public Hearing.
5. Case 15-04 – Christopher Shelton, 37 Sea Spray
Chairman McQuade stated that the applicant is requesting a variance to allow demolition and reconstruction of a garage without any change of location, width or height. She noted that the property is 8,000 square feet and the garage is located 3’ from the rear property line. Mr. Shelton explained that the garage is 13’ x 18’. He indicated that he reviewed his plans with his three neighbors and they are all in favor of his plan. Mr. Shelton stated that the concrete floor was popped in half by water that entered the garage which is why they are going to rebuild. He explained that they are creating a small swale in front of the garage so the water does not enter as it has in the past. Mr. Shelton stated that the structure was a garage with a garage door and the plan is to install
doors and use the structure for storage. He noted that they will not be changing the drainage on the lot with the exception of the swale in front that will direct the water toward the wetland area. Mr. Shelton stated that the height of the shed is 11’6” which is identical to the current structure.
Mr. Shelton noted that he applied for a demolition permit and a building permit. He noted that he demolished the garage after receiving the demolition permit and when he went to get the building permit he was told he would need variances because the garage was three feet from the property line.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman McQuade closed this Public Hearing.
6. Case 15-05 – Nancy Aron, 101-1 Hillcrest Road
Chairman McQuade stated that the applicant is requesting a variance to allow reconstruction of an existing shed utility area of the same size in the same area. Russ Smith, contractor, stated that this application is very similar to the previous one. He noted that the applicant would like to reconstruct a shed that was poorly constructed onto the home. He indicated that the structure has not been removed. Mr. Smith noted that the proposed structure is 10’8” x 15’8” which is the exact same size as the existing structure. He indicated that he will side it to match the house.
Mr. Smith stated that the entire property is noncompliant to the rear setback.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman McQuade closed this Public Hearing.
7. Case 15-06 – KCA Realty, LLC, Elizabeth Karter, 4 Joel Road
A motion was made Mary Stone, seconded by Kip Kotzan and voted unanimously at the applicants request that due to the lateness of the hour to postpone the opening of the Public Hearing to February 17, 2015 at 7:00 p.m.
OPEN VOTING SESSION
Chairman McQuade noted that Harry Plaut will be voting on all the cases with the exception of Breen Avenue; Jack Mut will be seated for the Breen Avenue case.
1. Case 14-25 – Umars, LLC, 281 Shore Road
Chairman McQuade stated that a motion to grant a variance requires four votes. She noted that the Board received a letter against the proposal from a Portland Avenue neighbor and two people spoke in opposition at the hearing. Ms. Stone stated that she is in favor of the proposal in all aspects but the size. Mr. Kotzan noted that if the Board denies the applicant could come back right away with a plan that addresses the concerns of the Board. Ms. Stone suggested a motion to deny without prejudice. Ms. Stone stated that just because a particular size is a standard in the industry doesn’t mean a structure of that size will fit on any lot.
Mr. Kotzan stated that the people that spoke lived nearby and strongly opposed. He noted that here are probably more people that would like to see a nicer gas station but they aren’t motivated to come to the public hearing. He noted that he gas station is located in a commercial zone. Mr. Kotzan noted that Laysville and All-Pro are two examples.
Mr. Plaut stated that the existing gas station he is selling drug paraphernalia and other things that are not neighborhood friendly. Ms. Stone noted that the Board cannot address that and cannot speculate what may or may not be sold. Mr. Plaut stated that he has not been a good neighbor in the community. Chairman McQuade noted that the application also requests doubling the number of gas pumps. Mr. Kotzan agreed that that may not be necessary. Mr. Plaut noted that with two bathrooms there will be a lot more congestion on the site with people using the restroom. Mr. Sibley noted that although the proposed building is doubled in size, the first building was so small it really isn’t big enough for any business. Ms. Stone noted that an increase of 50 to 60 percent would be less of an
impact and would give him increased use of the property. She noted that this reduction would reduce/eliminate nonconformities. Chairman McQuade noted that the proposal would not affect the Gateway plan and the Gateway Commission probably would appreciate a reduction in size.
A motion was made by Mary Stone, seconded by Judy McQuade and voted to deny without prejudice the necessary variances requested by Umars, LLC, 281 Shore Road for the reason that the proposed structure is too large for this land in this location. Motion carried, 3:2:0, with Arthur Sibley and Kip Kotzan voting against.
2. Case 15-01 A – Appeal of a Cease & Desist Order
The Public Hearing for this case has been continued to the February Regular Meeting.
3. Case 15-02 – Nicholas J. DiCorleto, Jr., 44 Breen Avenue
Chairman McQuade reviewed the facts of the case. Ms. Stone noted that the proposal makes the property less nonconforming and will be building code and FEMA code compliant. It was noted that the current structure is irreparable.
A motion was made by Kip Kotzan, seconded by Jack Mut and voted unanimously to grant the necessary variances to build as per plans submitted for the reasons that the existing structure is irreparable and the new structure will be code and FEMA compliant and less non-conforming. (Jack Mut was voting in place of Harry Plaut).
4. Case Case 15-03 – Henry Elsesser, et al., 64 Hillcrest Road
Chairman McQuade reviewed the facts of the case. She noted that the property only has 80 square feet of buildable land and has to meet three street setbacks. Chairman McQuade noted that the applicants are remodeling the home without changing the size or shape. Mr. Kotzan noted that a shed is a reasonable use for a house that has only a crawl space. He noted that the house will be modernized without increasing any nonconformities.
A motion was made by Arthur Sibley, seconded by Mary Stone and voted unanimously to grant the necessary variances to build as per plans submitted for the following reasons:
- the entire home is on a lot extremely constrained by three streets: only 80 s.f. buildable area without variances.
- the shed will supply the home’s only storage.
- the house will be modernized without increasing any nonconformities.
5. Case 15-04 – Christopher Shelton, 37 Sea Spray
Chairman McQuade reviewed the facts of the case. She noted that the applicant would like to demolish and reconstruct a structure in the same location and not changing the size or shape of the structure. Chairman McQuade noted that the structure has already been demolished.
A motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to grant the necessary variances to build as per plans submitted.
6. Case 15-05 – Nancy Aron, 101-1 Hillcrest Road
Chairman McQuade reviewed the facts of the case. She explained that the applicant would like to demolish and reconstruct an existing shed/utility area in the same area and the same shape. Chairman McQuade noted that the structure is 10’8” x 15’8”.
A motion was made by Mary Stone, seconded by Judy McQuade and voted unanimously to grant the necessary variances to build as per plans submitted for the following reasons:
1) the replacement of existing structure does not change the non-conformities.
2) the structure is in extremely bad shape.
7. Case 15-06 – KCA Realty, LLC, Elizabeth Karter, 4 Joel Road
The Public Hearing for this case is continued to the February Regular Meeting.
New Business
Election of Officers – tabled to the February 17, 2015 Regular Meeting
Letter from Mr. Mortimer to the ZBA dated December 26, 2014 requesting an additional one year extension for the variance granted for 26 Seaview Road, previous extension due to expire February 19, 2015 – Action tabled to the February 17, 2015 Regular Meeting
Minutes
A motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to approve the Minutes of the November 18, 2014 Regular Meeting with the following corrections: page 9, item 2 Chairman McQuade is referred to as Chairman Cable and under reasons for item, 1, it should be “Sound View Commission,” not Sound View Village District.
Adjournment
A motion was made by Arthur Sibley, seconded by Kip Kotzan and voted unanimously to adjourn the November 18, 2014 Regular Meeting at 12:03 a.m.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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