OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
Tuesday, March 17, 2015
The Old Lyme Zoning Board of Appeals held a Regular Meeting on Tuesday, March 17, 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 Nancy Hutchinson, alternate
Present: Kim Barrows, Clerk and Keith Rosenfeld, Land Use Coordinator
Chairman McQuade called the meeting to order at 7:30 p.m.
PUBLIC HEARINGS
1. Case 15-08 – Ernst & Sandra Perlini, 37 Ridgewood Road, variance to construct a first floor addition over an existing deck.
Chairman McQuade noted the existing and proposed variances and stated that the lot size is 6,970 square feet where 10,000 square feet is required. Jerry Karpuska, who was present to represent the applicant, noted that the existing house is two stories but the addition is only one story.
Mr. Karpuska stated that the house was constructed in 1925. He noted that there are seven existing nonconformities. Mr. Karpuska noted that they are only affecting two nonconformities with the proposed addition, one of which is the floor area ratio which is increasing 3.33 percent and the sideline is currently 6.3 feet and that will be increase to 8.3 feet which is an improvement. He stated that 77 percent of the addition is within the building line.
Chairman McQuade stated that they are increasing the number of bedrooms from four to five. Mr. Karpuska noted that the property is located in Point ‘O Woods and is on sewers. Chairman McQuade questioned the hardship. Mr. Karpuska stated that the dwelling is constructed on a nonconforming lot that was established prior to zoning. He explained that they tried to conform to the Regulations by keeping 77 percent of the addition within the building line.
Mr. Karpuska stated that the addition is 17’2” by 14”. He noted that the existing floor are is 26.37 percent and will increase to 29.7 percent; or from 1,846 square feet to 2,078.76 square feet. Mr. Karpuska noted that their hardship is also the shape of the lot.
Chairman McQuade questioned whether the addition could be reduced so not to increase floor area so much. Mr. Karpuska noted that the lot coverage does not increase. Mr. Kotzan noted that the intent of the Regulations is being violated by this proposal to increase the floor area. He noted that the intent of the Regulation is to prevent overcrowding. Chairman McQuade noted that a fifth bedroom is a want rather than a need. Mr. Karpuska asked for a continuance for the opportunity to rework the plan.
Lou Rossi, 22 Massachusetts, stated that he feels the proposal will be a wonderful addition to the neighborhood.
The Board agreed to a continuance. There were no further comments from the public.
A motion was made by Mary Stone, seconded by Nancy Hutchinson and voted unanimously to continue the public hearing on 37 Ridgewood Road to the next regular meeting scheduled for April 21, 2015 to see if the floor area ratio can be reduced.
2. Case 15-09 – Frances & Donna DeRosa, 32 Brightwater Road, variance to place two propane tanks in setback.
Chairman McQuade noted the existing and proposed nonconformities. She noted that the garage is located 2 feet from the rear property line and the house is 28’ from the rear property line.
Terrence Donovan was present to represent the applicants. He stated that the proposal is to put two 120-gallon propane tanks next to the garage at the rear of the property. Mr. Donovan stated that he installed tanks on another property last year in a similar situation and was not required to get a variance. He stated that if he puts the tanks adjacent to the main structure as allowed by Code, the tanks would be located in the front yard because of all the windows.
Ms. Hutchinson noted that the problem is that the tanks are not being located adjacent to the dwelling. Mr. Donovan noted that the tanks are not a permanent structure. Mr. DeRosa stated that they chose the location because it is the least objectionable. Mr. Donovan noted that they plan to install a fence from the house to the garage and pointed it out on the site plan.
Ms. Stone noted that there were numerous letters submitted in favor and none in opposition to the proposal.
No one present spoke in favor or against the application. Hearing no further comments Chairman McQuade called this Public Hearing to a close.
3. Case 15-10 – Susan Bacarella, 50 Billow Road, variance to allow construction of a 10’ x 40’ front porch, expansion of an existing bedroom and repair/add to an existing garage.
Kevin Gallagher, general contractor, was present to represent Ms. Bacarella. He noted that the architect was not able to attend the meeting this evening.
Chairman McQuade noted the existing and proposed nonconformities.
Mr. Gallagher noted that the homeowner would like to add a front porch between the house and the driveway that would connect to two other existing decks. He indicated that they would like to be able to take to entertain and enjoy the summer activity in the front of the house which is the reason for the porch. He indicated that there are two existing dog shed dormers on the second floor which are prone to leaking and the windows do not work. Mr. Gallagher stated that they would like to combine the two dormers and make one over the existing footprint of the house which would increase the size of the two bedrooms and increase closet space. He noted it would also give them water views. Mr. Gallagher noted that the garage is currently two stories and they would like to add dormers to create
additional storage. He noted that the only way into the basement is from inside the house and currently they do not have storage for lawn chairs, beach equipment, etc. He noted that the proposal would include interior stairs and would give them easy access for storage.
Ms. Hutchinson noted that the proposal changes the roof line and there is no data provided on the height in the file. Mr. Gallagher noted that the architect would have addressed this. He noted that the average grade was used in determining height and the architect indicated that it will remain below 24 feet. Ms. Hutchinson questioned the floor area, building coverage and lot coverage. She noted that it looks like all these might be exceeded. Ms. Hutchinson stated that she is struggling because they have not provided detailed plans. She indicated that she does not feel like there is enough information to adequately assess the proposal. Ms. Hutchinson stated that she spoke with the Zoning Enforcement Officer and he agreed it was lacking information. Mr. Kotzan
agreed.
Mr. Sibley suggested that the Public Hearing be continued.
Ms. Stone stated that there is currently a narrow key-hole view of the water from the front stairs. She noted that there would be no increased water view from the proposed front porch but there would be from the second floor. Ms. Stone stated that granting this variance will not give much more utility but it will change the building lines of a house that is currently very consistent with the others in the neighborhood. She noted that the house is currently very charming. She indicated that she does not see how the gigantic front porch will change anything. Ms. Stone noted that the second floor addition would correct some problems. She indicated that she is having difficulty with the hardship. Mr. Gallagher stated that the home has great potential as a summer home but the applicant
cannot take full advantage of the neighborhood and the beach community and water views without the porch. Ms. Hutchinson noted that it appears that there used to be a front porch and it was enclosed. Mr. Gallagher stated that the house is small and the enclosed porch area is integral interior space. Chairman McQuade noted that a valid hardship must be a hardship of the land.
Mr. Gallagher agreed to continue the Public Hearing to the April Regular Meeting.
A motion was made by Mary Stone, seconded by Arthur Sibley and voted unanimously to continue the public hearing on 50 Billow Road to the next regular meeting scheduled for April 21, 2015 to have plans presented that show height, setbacks and floor area ratios.
4. Case 15-01 A – Appeal of a Cease & Desist Order issued by the Zoning Enforcement Officer dated September 25, 2014 for certain uses not allowed (i.e. barre type exercise, spin bikes, yoga, zumba, acupuncture, personal training and chiropractic services) on property located at 14 Lyme Street (Vitality Spa), Warren Hannas, applicant.
Continued from the January meeting to review newly submitted information.
Attorney Holth stated that it is the appellant’s claim that the activities are an increase in business rather than a change in use. He stated that as it relates to Section 9.2.2, there is not a significant change in the uses, but rather an expansion of the business. Attorney Holth stated that attention has been directed at the parking concerns of the neighbors and noted that no one has shown that tthere has been an increase in parking as a result of these activities. He pointed out that here is a new yoga studio across the street and no complaint on a parking increase there. Attorney Holth stated that Town Attorney Royston’s letter dated March 13 makes valid points regarding the scope of the cease and desist, and there is no mention of an increase in business or parking issues. He
reiterated that the only issue is the uses themselves. He noted that the question is what activities were proposed to occur and what are occurring. Attorney Holth stated that Ms. Eisensmith presented her position at length; she presented peer-reviewed literature as well as how the activities are defined by the industry. He noted that Ms. Eisensmith has been licensed by the State of Connecticut for over 10 years and she is the only person that has testified with any expertise.
Attorney Holth stated that they stand firm that this is an increase in the amount of business. He stated that evidence beyond the cease and desist itself would be illegal to consider. Attorney Holth noted that the ZEO did not submit any information regarding parking and asked that the Board consider only the cease and desist.
Ms. Hutchinson questioned whether, if the Board found there was no problem with group classes as far as the cease and desist goes, would that mean the whole building is approved for the use of group classes? Attorney Holth stated that historically the Town has treated the Shoppes as a single entity, not individual units as far as its illegal nonconformity. He replied that it would, in his opinion, mean that group classes could occur throughout the building. He indicated that if he had an office use approved then there could be several offices throughout the building.
Mr. Kotzan stated that he feels that argument is problematic. He indicated that with this logic someday this building could be a workout world. Chairman McQuade stated that Ms. Eisensmith got approval back in 2010 and any future owner would need approval for a different use. Attorney Holth stated that the Board just needs to determine whether Ms. Eisensmith’s uses are consistent with what’s been there before or consistent with what’s allowed on the zoning permit.
Ms. Hutchinson stated that intensification of use is allowed but the interpretation of intensification and expansion are not straight forward. She stated that the Board needs to remember that Ms. Eisensmith might not be the occupant of the space forever. She noted that the spa is going from one-on-one activities to group classes. She questioned whether there is precedence for group classes in the building. Ms. Eisensmith stated that she always offered group classes, which is defined as two or more. She noted that they have always offered yoga in a treatment room with two to three clients and now they have eight clients in one room.
Ms. Eisensmith stated that would be more than happy to make reasonable limitations such as hours of operation that would limit that the building could never be a large workout center. She noted that the intention is not to every use the entire 3500 square feet of the complex. Chairman McQuade stated that one of the things that the Board is not sure of is whether yoga was every allowed, as the original permit was for spa activities and the 2013 advertisement does not show yoga activities. Ms. Eisensmith stated that her opening postcard, which she submitted, shows yoga therapy. She noted that there is no Old Lyme zoning code definition for spa so the issue is the definition of spa. She stated that because of her background, spa to her is health and healing; pain and muscle tension are related
to anxiety and depression and these can be relieved with massage. Ms. Eisensmith noted that her yoga and massage and other things were never questioned by Anne Brown and it was obvious with all the marketing that they had put forward. Chairman Quade stated that many of the new activities are part of the wellness clinic, which is different than a spa. Ms. Eisensmith noted that in 2010 she advertised as a wellness spa boutique and at that time offered chiropractic services in the spa. She noted that the first chiropractor left and wasn’t immediately replaced until she found a suitable practitioner. Ms. Eisensmith again read the opening post card. Ms. McQaude noted that the 2013 postcard states referral for chiropractic services and acupuncture. Ms. E stated that she didn’t have practitioners at that time because she had not found a suitable replacement and so for a time made referrals. She noted that she currently does not
have an acupuncturist but will when she finds someone that is suitable.
Ms. Stone stated that the definition of spa has changed over time, according to the level and type of practice. She indicated that she perceive the crux of the matter is in going from treating people one at a time to having classes. Ms. Stone stated that what she has not been shown is why they should not uphold the ZEO as it pertains to classes and the hours of operation. She questioned whether the applicant would be happy with the same hours of operation as the yoga studio across the street. Ms. Stone questioned why Ms. Eisensmith cannot apply for a change in zoning to have classes. She noted that neighbors are complaining about the increase in traffic and the early and later evening hours.
Attorney Zamarka stated that there was no pre-existing nonconforming use as a yoga studio at the Cooney Gallery which is the primary reason that they applied for the permit they did. He noted that when they went to the Zoning Commission for a permit, they looked at it as an abandonment of all the other pre-existing nonconforming uses at the Shoppes. He noted that the third problem was that the fire marshal was going to reclassify the building so that the occupancy of the building would have been limited to one person for every 200 square feet. He stated that the abandonment of the pre-existing uses was not in the best interest of Mr. Hannas.
Ms. Eisensmith stated that the zoning chairwoman indicated that she needed to be in front of the Zoning Board of Appeals not the Zoning Commission, as they felt the spa was within the approved use. She noted that the Cooley Gallery should not have been approved for a permit because they do not have the proper parking and it somehow slipped through.
Ms. Stone stated that she would rather not nitpick which activities are spa and which are not. She noted that once the spa started classes, they were starting a new activity in the building and questioned why it didn’t need a change in zoning to allow classes. Ms. Stone stated that the problem in neighborhood seems to be in the group classes. She questioned at what point the intensification becomes a change.
Mr. Kotzan suggested that this might not be the right building for the spa if they want to expand. He stated that the area is zoned residential and should not become more commercial. He indicated that it needs to blend with the residences. He noted that the next owner could put 20 spin bikes in a class. Ms. Eisensmith stated that she is willing to produce a statement of use indicating no classes before 7:30, no more than 20 classes per week and only 2 each day on weekend days. She noted that the classes are not back-to-back so there is no overlap. Ms. Eisensmith explained that no more than 8 participants can be in a class per the fire marshal. She noted that if it was not the spa it could be a retail business such as an apple store with lines out the door. She noted that the
fact that they have a schedule is good for the Town.
Mr. Sibley stated that the Town has the Town Hall, the schools and lots of activities and a lot of people that come to Lyme Street and park on both sides. He noted that there is no room to expand. He stated that it is going to become increasingly difficult to limit expansion on Lyme Street if this is approved. He indicated that he cannot back new activities on Lyme Street. He stated that he cannot see how this won’t be troublesome as they go forward because of the success that the business has already seen. He indicated that the location is not good. This area is supposed to be undeveloped by commerce with only slight changes.
Ms. McQuade stated that she feels there is a new fitness category. Ms. McQuade stated that chiropractic and acupuncture are more medical uses and that these businesses are coming in under a spa and that is a stretch. She noted that wellness covers a big area but a physical therapist would not be appropriate there as that is another medical use. She noted that these are not part of the original spa permit.
Ms. Hutchinson questioned whether there was a prior use in the shops where there were group activities such as classes that were held at scheduled times. Mr. Hannas stated that he doesn’t remember if there were any planned group classes. She stated that she thinks the answer is no. Mr. Kotzan stated that when one rents a property that has a constraint, one has to be careful. He indicated that it is a slippery slope. Ms. Eisensmith pointed out that the residents also knew they purchased next to a commercial building.
Ms. Eisensmith presented an article noting that this mixed use is a community center and the concept that it was rezoned residential was not meant to make it a cul-de-sac development and this commercial area is what makes the Town charming. She noted that there are a large number of town residents that are strongly in support. Ms. Eisensmith stated that the village shops have not changed but the neighbors yards have changed. She stated that she could rent property cheaper in Old Saybrook but she wants to serve the Old Lyme community with a loving heart and healing hands.
Mr. Sibley stated that the Town had a church on Lyme Street that started small and it was successful and they got to the point where it was inappropriate for them and they came to the Board for changes and the Board was overwhelmed. He noted that fortunately something opened up further down Lyme Street and they purchased it and did what they were hoping to do. He noted that there are many activities that were established on Lyme Street that died out which is why the Town decided to prevent any more of this from happening and would revert to a residential zone. Mr. Sibley noted that the area is at its capacity with or without the spa. He noted that there are other places in town that could appropriately handle the operation and Ms. Eisensmith could expand.
Ms. Eisensmith stated that she used one of the treatment rooms for small yoga classes with two to three people. She noted that she has had class series that would have 18 people in them at the Birdsall Gallery in the evenings.
Ms. Stone stated that trying to define in specific language which activities are permitted and which are not under the definition of spa is not productive. She stated that they need to address the impact on the neighborhood.
Attorney Zamarka stated that a class is two students and a teacher. He stated that the occupancy per square foot is the same as it was in the past.
Ms. Hutchinson noted that Attorney Royston stated that the Board should focus on what is on the cease and desist not parking. She noted that the meditation class is set up exactly as yoga is. She noted that classes are not on the cease and desist, but brands of things are. Ms. Hutchinson noted that within yoga there are many things and the cease and desist is stating that Ms. Eisensmith can have certain ones but not others.
Ms. Eisensmith indicated that she always offered services from 8 a.m. to 8 p.m. She noted that there is not always a receptionist so the hours listed on the website are indicative of when there is someone available to assist someone who may come in. Ms Eisensmith stated that she would like to start a class as late as 7 pm. Ms. McQuade stated that the Board can only rule as far as the activities in the cease and desist, not hours of operation or parking.
Mr. Kotzan stated that it is a residential neighborhood and the Board needs to consider that when considering what can go on in the shops. He indicated that the Board needs to find justice for the neighborhood. He stated that if they upheld the cease and desist then the appellant can go back to Mr. Rosenfeld and discuss what they can do.
Attorney Royston stated that the Board can condition an appeal of a cease and desist order and they can say for the record that they find that a certain activity comes within the parameters of a pre-existing use and is not a change because of certain limitations on that use. He stated that they could find that a certain number of people does not constitute a change in use and this would not be a condition.
Attorney Royston pointed the Board to section 9 of the definitions and also to the definition of extension which is an increase in the scope of services. There are two decisions; one, does the activity fit within the general parameters of the previous nonconforming use, i.e., are they spa/wellness activities; and then does the scope need to be limited in order to define it as a lawful continuance of that - scope being time and number of people.
Ms. Stone suggested that Ms. Eisensmith find a solution to parking that might be on the property rather than having people parking on Academy Lane. Mr. Hannas stated that the parking on the side of Academy Lane has been the same and he has tried to tell people that work at the shops to park out front. He stated that he would be willing to work with the Town as he always has. Mr. Hannas noted that he cannot park behind the building because that would not be allowed by the Town. He stated that he does not want the building to have a bad impact on Lyme Street but conversely he does not want to have dying businesses. Mr. Hannas noted that he has tried to keep tenants low key and tasteful. He noted that there was a hair salon there at one point that had several women getting their hair done along
with other women getting their nails done and it had more cars at one time then the wellness center does.
Mr. Kotzan asked Ms. Eisensmith to give them an idea of what limitations she thinks are reasonable. Ms. Eisensmith stated that they have removed zumba; barre is a stretching class; spin class intention is spin meditation. She noted that an exercise bike is used, not a spin bike. She noted that the classes are not simultaneous because they are all in the same room. Ms. Eisensmith stated that she would like the hours between 8 am and 8 p.m. with a limit of 8 people per class. She noted that she is a personal trainer but it is not necessarily a service she plans to offer.
Attorney Willis distributed a handout to the Board members. He noted that when they act as the ZBA on an appeal, they can uphold the Zoning Enforcement Officer, reverse the Order or modify it as they are the trier of fact. He noted that the facts are all in the record.
Attorney John Bennet was present representing several neighbors. He stated that the Order should be sustained and in his opinion it does not go far enough. He stated that this proceeding is not to consider an application as Ms. Eisensmith did not apply to do things, she just did them and is now attempting to slide into similar uses. Attorney Bennet noted that the neighbors have conforming properties and have rights and are entitled to protection by the zoning regulations. He noted that this is not a negotiation and the Board cannot submit standards that his clients don’t have the opportunity to comment on. Attorney Bennet stated that the hours of operation of 8 a.m. to 8 p.m. may not be agreeable to his clients but they won’t have the opportunity to comment because the Board will set
these limitations in deliberations. He noted that this does not have anything to do with who likes yoga or the appellants or the neighbors. He noted that this is a consideration of the law which is the regulations and they state that nonconformities should not be expanded.
Attorney Bennet stated that the activities in the cease and desist order are an increase to the nonconformities. He noted that what is proposed is a use that is less conforming then what was there before. He noted that there is no dispute about that. Attorney Bennet stated that the CT Supreme Court is emphatic about reducing nonconformities and reviewed several citations and submitted them for the Board to read along.
Attorney Bennet stated that he is happy that the business is a success but noted it needs to go somewhere where it is allowed. He noted that a lot of the stuff that is going on at the establishment is new. Attorney Bennet presented a printout of the class calendar for March where there are 9 instructors listed, there is now youth yoga, there are 26 classes scheduled. Attorney Bennet pointed out that not shown on the schedule is a special event session with a Ms. Tyler on the 22nd. He indicated that Jane Schellens submitted a letter that analyzes the printouts. He noted that there is a fashion show noted as an event this month which is not a wellness activity. Attorney Bennet noted that there are 11 additional people listed as employees in addition to the instructors. He also stated that while the yoga classes are ongoing, there are other services going on as well. Attorney Bennet stated that the question is “what goes past intensification to a change of use.” He
provided many examples of decisions from the Supreme Court. Attorney Bennet stated that CT law is consistent with the Old Lyme zoning regulations in restricting nonconformities.
Addressing parking, Attorney Bennet stated that off street parking is required, defined to be outside of the street right-of-way. He noted that there may be preexisting parking. He read the zoning regulations concerning parking and loading. Attorney Bennet noted that the burden is on the appellant to prove they are in conformity, not the ZEO or the Board. He noted that there is no off street parking provided. He stated that the parking plan shows parking on the street. He reiterated that they have not shown they have adequate parking and they cannot show that they can provide adequate parking, therefore they cannot expand. Attorney Bennet stated that the ZEO should be sustained. He indicated that if the applicant wants to come back and make application, they are able.
He noted that a negotiated settlement for something that does not meet the regulations is not appropriate. He noted that they are in violation of the permit, the zoning regulations and Connecticut law. Attorney Bennet stated that his client took a nonconforming property and brought it into compliance and they, and the community are entitled to protection from the Zoning Regulations. He noted that they purchased the property knowing that there were zoning regulations in effect and knowing what the uses were. Attorney Bennet stated that what went on across the street with the other yoga studio has nothing to do with this.
Attorney Bennet stated that he saw sketches of the building and noted that there are areas of the building that are now being occupied by the appellant which were not part of the original permit. He reiterated that it is not fair of the Board to negotiate with the applicant and deliberate privately.
Attorney Royston stated that the Board needs to decide 1) whether a specific use which has been prohibited by the ZEO is considered by the Board to be within the parameters of the original use. He asked Attorney Bennet whether any of the six uses would not fit within the parameters. Attorney Bennet said none of them would. He noted that the definitions are being spun. He noted that it is no longer spinning as it was last month; this month it is meditation. He noted that there are no defined definitions, which is why they need to apply f or a permit.
Attorney Royston stated in the absence of a definition, they need to use the ordinary meaning. Attorney Bennet agreed that that is the law. Attorney Royston stated that the Board needs to make that determination. Attorney Bennet noted that in his opinion none of the activities in the cease and desist are part of the common definition of a spa. Attorney Bennet stated that there is no agreement on the terms as spin bikes are presented as meditation. He noted that there is no agreement on the activities.
Ms. Hutchinson questioned that as long as it is therapy it doesn’t really matter what kind of therapy it is. Attorney Bennet stated that it is a matter of what is going on in the room. He noted that there has to be a definition. He noted that they are increasing it to classes of eight which is an expansion.
Attorney Royston stated that Attorney Bennet indicates that there is a violation of the existing permit not just because of what is being done but because there is an increase in the number of participants. He noted that as he understands the Order, the ZEO is saying that the uses themselves are not permitted. He noted that the ZEO’s position is the number of people is not the issue, but the fact that the uses are not within the nonconforming use parameters or that the use of space or number of instructors takes you into a change from what they are doing now. He noted that that is a factual decision on the Board’s part.
Attorney Bennet stated that sustaining the Zoning Enforcement Officer does not endorse any other activities or remedy any other activities.
Attorney Holth stated that the cases quoted by Attorney Bennet don’t read the way he presented them; he noted that there is much more to them. He noted that there were other factors that the Court considered then the one or two sentences provided.
Attorney Holth stated that they have provided expert testimony and evidence explaining how and why the terms are defined by the industry. He noted no one else has provided definitions or testimony. Ms. Hutchinson stated that just because something is defined some way by an industry it does not make it allowed use in this nonconforming situation.
Mr. Sibley stated that the Board needs to come to a conclusion on the use of the property and whether the services are acceptable.
Ms. Barrows noted that there are two new letters in the file, one from Jane Schellens and one from Tom Schellens.
Mary Poulin stated that it was brought up that the Board could limit it to 8 people per instructor. She noted that it has crossed her mind that there could be four instructors with 8 people each. Chairman McQuade noted that that would be up to the Fire Marshal
Attorney Zamarka stated that Attorney Royston’s framework is very instructional. He noted that spa is not defined in the regulations and because of that the Board needs to come to a common sense definition of what a spa is. He stated that the activities in the cease and desist are spa activities and the activities are part of a spa as defined in 2014.
Attorney Bennet questioned what spa every existed on that property. He noted that that at is the definition they work from, not some generic spa that a peer review feels a spa is.
Spa Employee Sarah stated that she was going to weave in a letter which refutes much of what was said at the last meeting by Mr. Schellens. She introduced her letter as part of the record so that the Board could review it when they deliberate. She stated that the restrictions of parking on Academy Lane are due to the trees on Academy Lane. She indicated that the photographs show how far the cars stick out. Neighbors complain that cars cause a restriction on Academy Lane. She stated that parking is not the issue here but it is brought up time and again. Ms. Eisensmith stated that there is not another single business on Lyme Street that has off-street parking.
Attorney Royston questioned if the ZEO made a decision that acupuncture did not come within a medical doctor’s office because there was evidence that there were doctors’ offices there previously. He indicated that he reads the order to say that within the definition of spa, those items are not encompassed. Attorney Royston indicated that he doesn’t think they are dealing with the fact that chiropractors could not be in the building, but just whether they come in within the definition of spa. Mr. Rosenfeld agreed noting that he felt it was not under the umbrella of the zoning compliance permit and these activities are not part of a spa.
Ms. Barrows identified the new letters received since the last public hearing.
Hearing no further comments, Chairman McQuade called this Public Hearing to a close.
Attorney Royston pointed out that the Board has 65 days to make a decision and can use that time to review the new information in the file. When asked, Attorney Royston suggested that the Board avoid reading any articles and if they do they should put it on the record. Mr. Kotzan stated that he would like time to read the newly submitted information.
Zamarka – Hannas
Holth - Eisensmith
OPEN VOTING SESSION
1. Case 15-08 – Ernst & Sandra Perlini, 37 Ridgewood Road
No action taken. The Public Hearing has been continued to the April 21, 2015 Regular Meeting.
2. Case 15-10 – Susan Bacarella, 50 Billow Road
No action taken. The Public Hearing has been continued to the April 21, 2015 Regular Meeting.
3. Case 15-09 – Frances & Donna DeRosa, 32 Brightwater Road
Chairman McQuade reviewed the facts of the case.
A motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to grant the necessary variances to place the propane tanks as indicated on the plans submitted.
4. Case 15-01 A – Appeal of a Cease & Desist Order issued by the Zoning Enforcement Officer dated September 25, 2014 for certain uses not allowed (i.e. barre type exercise, spin bikes, yoga, zumba, acupuncture, personal training and chiropractic services) on property located at 14 Lyme Street (Vitality Spa), Warren Hannas, applicant.
Ms. Stone stated that it would appear that the Board has 65 days from the January 20, 2015 meeting to make a decision.
Chairman McQuade noted that the Board’s charge is to decide whether the uses in question are part of the previous, nonconforming uses there. Ms. Hutchinson stated that she heard the Attorney state that the Board should consider whether the uses listed are part of the definition of a spa. Ms. McQuade stated that the uses might be part of the modernization of the definition of spa but she does not feel they are allowed in the complex because those uses have not previously existed in that building. Ms. Stone stated that she would rather not put the Board in the position of defining what constitutes a spa. She would rather focus on the substantial difference in the use and its effect on the community. She indicated that she does not feel qualified to make the decision on what constitutes a spa. She stated that her only issue is group versus single activities.
Chairman McQuade stated that the only use that existed prior to the expansion into the gallery was the yoga. She noted that the other uses are new. Chairman McQuade stated that Ms. Eisensmith went from spa to spa and wellness. She noted that wellness is new with added services.
Mr. Kotzan questioned how a barre type exercise is different than massage therapy.
Chairman McQuade noted that they now have a fitness expert who introduced the barre exercises, spin and yoga.
Mr. Sibley stated that this brings up exactly what he does not want the Board to do. He feels they should vote specifically on the fact that this concept is not appropriate and that if they want to try to continue the operation they will have to come back and apply for whatever they want to do. He indicated that it is ridiculous for the Board to define something that is hard to define. Mr. Sibley noted that the operation is not appropriate for the location and that is what they should vote on.
Mr. Kotzan questioned why Mr. Sibley is so certain. Mr. Sibley stated that the appellant can come in and apply for a specific operation. Ms. Hutchinson stated that she would like to discuss the situation because defining everything would be challenging. She questioned what is reasonable to do in that space that won’t have a big influence on the community and is not substantially different from what has been offered there in the past.
Ms. Hutchinson stated that acupuncture and chiropractor services are professional services but are they within the definition of spa activities. She noted that professional services have existed in the building previously.
Ms. McQuade stated that the original use has been extended and changed. Ms. Hutchinson stated that none of the grandfathered uses are group classes. She noted the difference between bringing someone into a treatment room and running a class. Ms. Stone agreed. She noted that the definition of spa is a moving target as noted by the applicant. Ms. Stone stated that she feels the Board needs to get out of the definition business and discuss the impact on the neighborhood. Ms. Stone stated that the question is did the activity exist within the preexisting use and does the scope need to be limited. Ms. Stone stated that it is the number of people she wants to focus on because she does not feel the Board can define a spa. Mr. Kotzan stated that if the Board upholds the ZEO, perhaps
the appellant would apply and explain exactly what she is doing and get approval for that. Ms. Stone stated that for her the issue is class or individual. She indicated that classes are going to impact the neighborhood. Ms. McQuade stated that the Board needs to determine whether these activities are a new use or part of the old use. Mr. Sibley stated that the alterations were all deliberate. Mr. Kotzan stated that the appellant is providing services that the town wants. Mr. Sibley stated that he disagrees. He stated that the people are coming in for what was offered and she is offering more services to accommodate. He indicated that the appellant needs to make a description of what she wants to do there and make an application.
Ms. Hutchinson stated that counsel is telling the Board that they can decipher between what is allowable and what is not. Mr. Kotzan stated that he did say they could do a line item analysis. He noted that he feels the activities are grandfathered. Ms. Hutchinson stated that the difference is, even if one came for spa services, it’s different if one comes for a treatment or a group comes for a class. Ms. Stone agreed and stated that the definition of spa is a moving target and it’s not fair to limit this spa by comparing it to what Faces offered in 2002. She indicated that she believes they should discuss neighborhood impact, which is why they have a problem.
The Board reviewed Mr. Rosenfeld’s Cease and Desist Order. Mr. Kotzan noted that there are six activities listed. MS. Stone stated that the issue for her is class and individual and she feels that the individual sessions are fine. Chairman McQuade stated that the ZEO determined that the services were new and more than a minor change. She noted that the Board needs to decide whether it is a minor change or an expansion.
Mr. Sibley stated that the alterations and subtle changes in direction were all deliberate. He stated that the patients are coming in for what it has to offer, it is the appellant that is adding services. Mr. Sibley indicated that the appellant needs to apply with a description of what she wants to offer. He indicated that the Board is not in a position to decide what she can and cannot have.
Ms. Stone stated that the Board is basing their decision on the advice of their counsel. Chairman McQuade stated that she is not sure whether the activities are appropriate, but she feels they are different then what was previously offered. She stated that according to the history of the spa as detailed by Mr. Rosenfeld, she cannot consider any of the activities minor changes. She stated there are differences in the character and nature of the business. Ms. Stone asked, in the context of minor change, if there was yoga before with only a few people and now there are many at a time, would it be okay for yoga to continue. Chairman McQuade stated that Ms. Eisensmith testified that she always had yoga with one or two people; eight people is an expansion.
Ms. Stone agreed that there have not been large group classes in the past. She noted that although yoga is allowed, expansion is a problem, so the Board can find to allow it as it existed. Mr. Kotzan stated that if the Board wants to allow some of the item, they can. Chairman McQuade stated that the applicant has not proved that all the activities are spa activities.
Mr. Sibley stated that the Board should vote on the issue. He indicated that he is opposed to what the Board is doing.
Ms. Hutchinson asked if there was proof that there had been barre exercises in the past: agreed, no; spin bikes, agreed, no; yoga, agreed, yes. She asked what criteria would keep it from being an expansion which would be a limit to three people in a class. Acupuncture, agreed, yes; personal training was taken off. She asked whether acupuncture and chiropractor were professional services and did not exist prior. It was agreed that they are professional services and are new services which should be reviewed and permitted, if applicable. Ms. Stone agreed and noted that they should uphold some activities on the Order and not others.
Mr. Sibley stated that he thinks the motion should state to stop all the activities and to reapply for the activities. Ms. Hutchinson stated that they cannot tell the applicant what to do in the future; the board needs to uphold or not, or partially uphold.
Mr. Kotzan suggested that the Board uphold the ZEO for five of the six activities, allowing yoga. Mr. Sibley stated that he would vote that down. Mr. Sibley stated that he is going to leave.
Ms. Stone stated that she would propose a motion to allow the activities named in the cease and desist order with the provision that they be limited to no more than two people at a time. She stated that that would allow them spa activities as long as they are not classes. Chairman McQuade did not agree. Ms. Barrows noted that Ms. Stone is making up definitions by defining a class as no more than two people. Chairman McQuade stated that the Board is to determine whether there has been an expansion of the nonconforming use. Mr. Kotzan noted that the Board is going to have to come to a definition of spa based on the testimony of the Public Hearing and common sense. Ms. Hutchinson stated that the only pre-existing activity that was proven was yoga. Ms. Stone stated that it’s a
losing game to define spa activities. Chairman McQuade stated that this may be a spa of 2015, but it is not a spa in a nonconforming location. Mr. Kotzan stated that there is a little bit of a gray area. Chairman McQuade stated that there was hands-on stretching before and now there is equipment, such as the barre.
A motion was made by Mary Stone and seconded by Judy McQuade to NOT UPHOLD the Cease and Desist Order except that any activity must be limited to two people.
In favor: M. Stone Opposed: J. McQuade, A. Sibley, K. Kotzan, N. Hutchinson Abstaining: None . The Motion failed to pass, 1-4-0.
Ms. Hutchinson stated that she would like to uphold the Cease and Desist
A motion was made by Judy McQuade, seconded by Kip Kotzan to UPHOLD the Zoning Enforcement Officer’s Cease and Desist Order in its entirety with the exception of yoga for which there is evidence that that went on prior to the expansion into the new space.
Ms. Hutchinson suggested a clarification to limit yoga because as stated it means that they can have unlimited class sizes for yoga.
Mr. Sibley left the meeting room leaving only 4 voting members.
No further discussion and a vote was taken. In favor: McQuade, K. Kotzan, N. Hutchinson Opposed: M. Stone Abstaining: None. The Motion failed to pass, 3-1-0.
A Motion was made by Nancy Hutchinson to say that the acceptable yoga activity in the spa setting is a one-on-one activity, not a class activity because that was not a prior pre-existing use.
Mr. Kotzan suggested three participants. Ms. Stone stated that it is more the number of people at once that seems to be the expansion. She noted that the Board cannot find on the services. Ms. Stone stated that she is not an expert and cannot make a decision on the activities and whether they are spa activities. Chairman McQuade noted that the activities are new, with the exception of yoga, and therefore an expansion.
Motion was not seconded.
Ms. McQuade agreed with Mr. Sibley’s prior suggestion and suggested that they uphold the entire order. She indicated that the reason would be that they are all expansions.
The Board discussed whether the previous motion passed 3:1:0.
Ms. Barrows noted that the Board would usually ask the applicant whether or not they would like to proceed with four voting members versus five voting members as it states in What’s 2004 Legally Required?: “The concurring vote of four members of the Board is necessary to sustain an appeal from a zoning enforcement order or decision; to grant any variance, special permit, or special exception; or to decide in favor of the applicant any matter upon which the Board is required to rule under the zoning regulations.”
It was noted that the previous vote of 3:1:0 did not carry.
Ms. Hutchinson stated that there is a middle ground and both sides are asking them to take one position or the other. She indicated that she feels that the Board should not talk about the activities but rather limit them to one-on-one to limit the impact.
Ms. Hutchinson stated that because Mr. Sibley walked out she thinks he should resign.
Ms. Stone suggesting upholding the cease and desist on the activities the Board members can agree on. Attorney Bennet stated that the Board voted twice and it failed. He noted that they voted twice and therefore the order stands. He stated that any further discussion is inappropriate.
Attorney Holth suggested that the Board consult with their attorney. Attorney Bennet agreed.
New Business
Election of Officers – Action on this item was tabled to the April 21, 2015 Regular Meeting.
Minutes
The approval of the Minutes of the February 17, 2015 meeting have been tabled to the April 21, 2015 Regular Meeting.
Adjournment
The meeting adjourned at 12:20 a.m. on a motion by Kip Kotzan and seconded by Judy McQuade and to seek advice from their attorney regarding whether their votes were effective; so voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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