OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING
Tuesday, March 15, 2016
The Old Lyme Zoning Board of Appeals held a Regular Meeting on Tuesday, March 15, 2016, at 7:00 p.m. in the Auditorium of Memorial Town Hall. Those present and voting were: Judy McQuade, Chairman, Art Sibley, Vice Chairman, Mary Stone, Secretary, Kip Kotzan, regular member, Karen Conniff, regular member and Nancy Hutchinson, alternate. Also present was Keith Rosenfeld, Land Use Coordinator.
Chairman McQuade called the meeting to order at 7:02 p.m. and noted that all regular members would be voting, with the exception of Cases 16-05 and 16-06 where Nancy Hutchinson will be seated for Karen Conniff, who is recusing herself.
PUBLIC HEARINGS
1. Case 16-05 – Heidi DiNino Fields, 49 Hartford Avenue, variance to allow an existing commercial structure housing a deli and package store to containing two, two-bedroom apartments, each with a garage and parking in the rear.
Attorney Bennet was present to represent the applicant. Chairman McQuade noted that he lot is nonconforming as to size, other property line and lot coverage.
Attorney Bennet noted that the building currently houses a deli and a liquor store and in keeping with the Sound View Community the request is to convert this to two residences. He noted that the regulations require 7,500 square feet of land for the first unit and 2,500 square feet for the second unit, which would require a variance for 852 square feet. Attorney Bennet noted that this is the only variance being requested. He noted that all other regulations are met with this proposal.
Attorney Bennet stated that this proposal is highly compatible with the Design District where they favor residential uses. He indicated that the request is a minor nonconformity and if it were not for the rear alley, the property would actually conform. He stated that because this proposal brings the property closer to conformity, under Connecticut law it negates the need to prove a hardship. Attorney Bennet reviewed similar cases where a hardship was not needed when a less offensive use was proposed. He submitted these for the record. Attorney Bennet stated that the total property is being brought more into compliance with the Design District. He noted that this proposal is tied to the next application, Case 16-06.
Attorney Bennet stated that the large sign on the front of the structure will be removed and there will be a garage door added to each side of the front. He noted that the building will not be removed but rather remodeled. Ms. Stone questioned whether curb cuts would be added for the garages. Attorney Bennet indicated that they would add curb
cuts. Chairman McQuade questioned the size of the living areas. She also noted that there is a house currently on the property and Attorney Bennet stated that the house will remain and there will be three two-bedroom living units.
Mr. Sibley stated that the building appears twisted and the roof gives the impression that it has been deformed. He questioned whether they are taking this into consideration. Mr. Fields, the applicant’s husband, stated that they will be dealing with these issues. He explained that they will submit extensive building plans if the variance is approved. Attorney Bennet stated that the units will be approximately 1,000 square feet of living area.
Ms. Stone questioned the determination of the amount of land required. She indicated that it would seem that 7,500 square feet for the first unit and 2,500 for the second and 2,500 for the third unit would be required. Mr. Rosenfeld stated that the conversion is just for the two units. Ms. Stone noted that the entire proposal has three units which would require 12,500 square feet of land, even though one unit already exists. Chairman McQuade agreed that the variance requested for land area needs to be increased. She noted that the proposal will have to go before the Sound View Commission.
Ms. Hutchinson questioned whether the construction would exceed 50 percent of the value of the property. Attorney Bennet replied that it would not. She asked whether he was going on record as stating that the plan is in compliance with Section 4.4. He indicated that if it is over then they will have to come back to the Board if they need to raise the structure. Mr. Fields explained the order of the construction and how he plans to do the roofing and structural work first. Ms. Hutchinson noted that if they are thinking of breaking the work up into sections to deal with this requirement, some of the work would have to wait five years.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman McQuade called this hearing to a close.
2. Case 16-06 – Sound View Holdings, LLC, 61B Hartford Avenue
Attorney Bennet explained that the proposal here is to take the liquor store from 49 Hartford Avenue and move it to a small space, 476 square feet, which used to be a candy store. He noted that the liquor stores square footage is being reduced 30 square feet and there will be off street parking, which will bring it more into conformity. Attorney Bennet stated that the area in which they plan to put the liquor store is an existing commercial use.
Attorney Bennet stated that a variance is need of the SVVD regulations that state that any use not listed as either permitted or as a Special Exception. He stated that there are those who might think a commercial use would require a Special Exception but they will deal with that separately.
Mr. Fields noted that the building contains two storefronts and there are also three apartments, two-upstairs and one toward the rear on the ground floor. Ms. Stone questioned what the front of the structure would look like. Mr. Fields noted that they are not changing the exterior with the exception of a sign. He indicated that he will opens weekends from Memorial Day and full-time at the end of June until Labor Day. He explained that it is only a six month liquor permit.
Chairman McQuade noted that the liquor store is a pre-existing nonconforming use and is grandfathered and questioned whether it would be possible to relocate the liquor store. Attorney Bennet stated that he did not see that to be a problem. He indicated that he feels it is a lateral move and it will be more conforming as it is 30 square feet smaller and has parking. Attorney Bennet stated that if either application is not approved they will have to think about what to do. Ms. Hutchinson stated that simply moving the liquor store does not make it less nonconforming. She noted that the parking exists for all the commercial uses and residences. Attorney Bennet stated that the parking exists for commercial uses and this will be one of them.
Mr. Fields stated that when he purchased this building there was a cease and desist on it because there were two apartments on the first floor. He noted that they brought it back into conformance by removing the two apartments and making them two commercial uses.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman McQuade called this hearing to a close.
3. Case 16-07 – Patricia Nylin, 40 Hillcrest Road, variance for addition/expansion of existing dwelling.
Jeff Flower, architect, and Patricia Nylin were present to explain the application. Mr. Flower stated that the applicant would like to renovate her home and in the process make two small additions to the side of the building. He indicated that they will remove the garage and incorporate that area into the house keeping it within the floor area and coverage ratios. Mr. Flower explained the existing and proposed site plans, pointing out that the garage is located in the setback. He noted that the additions will be inside the setback lines. Mr. Flower stated that they will be reducing the bedrooms from three to two as the existing bedrooms are quite small. He reviewed the floor plans and noted there will be a master suite and a second bedroom that is 11’7” by 10’. Mr. Flower
stated that the floor level will remain the same but they would like to dig out the crawl space and increase it as much as possible, up to 6 feet for storage and to park a vehicle. He noted that there will not be access to this area from inside the house.
Mr. Flower explained the grade around the house and noted that they would like to add about 1 foot to the rear and decrease the front slightly. Mr. Flower indicated that they will come in fairly level from the street. He indicated that they will not be raising the house at all. Mr. Flower explained that they are lifting the roof to create a loft/some storage space but the height will be 6’ in the middle so it will not be habitable. He noted that they will not have stairs leading to it but rather a library ladder.
Mr. Sibley noted that they are proposing to add concrete walls and a poured floor in the basement. He questioned whether the garage doors would face Hillcrest. Mr. Flower stated that they will. Mr. Sibley stated that in the city one cannot put an SUV in a parking garage and most garages are taller than six feet.
Ms. Stone stated that the roof line is being altered. Mr. Flower stated that the average height of the structure will be 21’6”. He noted that the current setback to the existing building is less than it will be so they are reducing some nonconformities.
Ms. Conniff questioned what would stop the applicant from adding stairs in the future. Mr. Flower stated that adding stairs for the garage and for the storage area would take up the square footage of a bedroom. Mr. Kotzan questioned whether the mechanicals would be in the basement. Mr. Flower noted the property is not in a flood zone but the intent is to have mechanicals in the attic area. He noted they may put the water heater in the basement.
Mr. Flower submitted seven letters into the record from neighbors in favor of the proposal. Mr. Sibley asked if they had photographs of the neighboring houses. Mr. Flower noted that both the neighboring houses are taller than Ms. Nylin’s, although he does not have photographs. Ms. Nylin agreed.
Mr. Flower stated that they are reducing the number of bedrooms by one. He noted that they are increasing the size and height but within zoning. Mr. Flower stated that there is no surrounding land to purchase. Chairman McQuade noted that the lot is 4,864 square feet. He noted that removing the existing shed provides more open space.
Chris Callahan, neighbor, stated that he is in favor of the proposal. He noted that the current house is dilapidated and this will be a great improvement to the neighborhood.
Hearing no further comments, Chairman McQuade called this hearing to a close.
4. Case 16-08C – William L. Bailey, applicant, Garvin Family Corp., Inc., owner, 80 Hawks Nest Road, variance to remedy a pre-existing nonconforming problem whereby a single family cottage on the lot next to the subject property goes over the property line and encroaches into the subject property; lot line adjustment so that the encroaching property would be completely on it’s own lot.
Attorney Jeffrey Londregan, along with Mr. Bailey, Mr. Garvin, Mr. Grider, neighbor who will be receiving the land, and the surveyor, Brian Florek were present to explain the application. He noted that his client and his wife are potential purchasers of the subject property. Attorney Londregan stated that the lot line modification is a benefit to all.
Attorney Londregan stated that the application is really about nothing as no buildings are being removed or transferred or altered. He indicated that the separation between the structures is not changing. Attorney Londregan stated that the only thing changing is ownership of the land. He noted that his client is the contract purchaser of the property, a condition being receiving a variance for the lot line transfer. Attorney Londregan noted that this is a requirement of the bank. He submitted a copy of the purchase agreement for the record.
Attorney Londregan stated that they need a variance of the minimum lot size requirement and the floor area ratio requirement. He indicated that the minimum lot size is 4,042 square feet in a zone that requires 10,000 square feet. He explained that they currently have 23.5 percent floor area ratio which is conforming but after giving away 407 square feet of property the floor area ratio will increase to 25.9 percent where 25 percent is allowed. Attorney Londregan stated that they are asking for the least possible variance. He noted that they are proposing to give just enough land to so that the house next door owns five feet from their house. Attorney Londregan explained that they chose five feet after consulting with Mr. Rosenfeld to be consistent with other areas in the regulations that
might have that as a setback. He stated that the Appellate and Supreme Courts have upheld that there is an exception in needing to demonstrate a variance and that valid grounds exist for granting a variance when the proposed variance will result in decreasing a nonconformity; he submitted two legal cases demonstrating this for the record. Attorney Londregan stated that they feel they have that situation here as they are correcting a property that has a negative setback.
Attorney Londregan stated that they have completed a CAM Application and again noted that there will be no changes on either property and there will be no adverse impacts.
Ms. Stone questioned whether there is currently a maintenance agreement for the property that exceeds the property line. Attorney Londregan stated that there is a use and maintenance agreement on the land records and this agreement will be removed. Ms. Stone questioned if the agreement has an expiration date. Mr. Londregan replied that it does not, but the agreement does not satisfy the bank and they will not issue title insurance. Ms. Stone stated that the Board is not supposed to consider financial matters in the granting of a variance. She questioned why the Board should consider a financial factor. Attorney Londregan stated that because they are lessening a nonconformity so a hardship is not required. Ms. Stoned noted that they are lessening one nonconformity and creating a
nonconformity by increasing the floor area ratio to 25.9 percent on the other property. He stated that if the nonconformities are netted out, with one being a negative setback situation, outweighs the .9 percent increase in floor area ratio. Mr. Sibley noted that with the variance both properties will be legal lots with viable title searches, which they are not now. He stated that that is a very desirable thing.
Jerry Grider stated that he is very much in favor of the lot line modification.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman McQuade called this hearing to a close.
5. Case 16-09C – Steven & Carol Rosenfield, 28 West End Drive, variance to raise dwelling, construct decks and platforms to access the main level of the house, to meet FEMA compliance.
Chairman McQuade indicated that the lot is 2,391 square feet. She noted that it is a two-story dwelling by definition, although it looks like a one and one-half story. Chairman McQuade stated that the house is nonconforming to the front setback.
Peter Denali, Urban Planner, was present to explain the application. Jason ?? architect, working for the department of housing. Mr. Denali stated that the house was constructed in 1955 and in 1986 the Rosenfield’s purchased the property and began living there year round in 1995. He noted that it is a three bedroom dwelling. Mr. Denali explained that they are before the Board because the home is susceptible to flood damage, and was heavily damaged in Superstorm Sandy. He stated because of this they are required to raise the dwelling to meet flood standards and one variance in particular is to raise the house 11’4”, which would exceed the allowable height. Mr. Denali explained that the other variance is required for the stairs needed to access the main level of the home.
He explained that they will have minimum allowable stairs in both the front and rear of the home and noted that access is required for utility meter reading, which is the reason for the deck on the front of the house on the right side.
Mr. Denali noted that the property has to meet a narrow road front setback of 35 feet which they are unable to meet. He noted that the home encompasses almost the entire lot so they are unable to move the house to meet this setback. Mr. Denali noted that the house is remaining the same as are the decks. He explained that they are only constructing stairs and raising the existing decks. Mr. Denali noted that the maximum allowed height is 24’ and they will require a variance of 9’. He stated that in order to be in this program the house needs to be raised to the 500 year flood requirement; he explained that they would need a variance even to elevate the structure to the 100 year flood requirement. Mr. Denali stated that with minimally code compliant stairs they will be a little more
than two feet from the property line where the deck is currently 4 feet from the property line. He noted that the lot coverage is 44 percent and will be at 53 percent with the proposed deck and stairs.
Mr. Denali explained the site plan, pointing out the existing deck to the rear and reviewing the existing and proposed setbacks. Referring to the CAM Application, he explained that they are located 110’ to the coastal wetlands and does not believe there will be any impact to resources. Mr. Denali stated that they are 80 feet to the beach.
Mr. Denali submitted three letters from neighbors in favor of the application. Mr. Rosenfeld noted that the Board is in receipt of a letter from Marcy Balint, OLISP, giving some insight into things that can be done but generally in favor. Mr. Denali noted that there are a few houses between this house and the beach.
Mr. Denali noted that a house down the street was renovated in 2014 to meet the 500 year flood requirements. He reiterated that all alterations were designed at the minimum requirement to meet the 500 year flood standards.
It was noted that the underneath of the house will remain open but the applicant could, in the future do some type of screening such as breakaway walls.
Ms. Hutchinson questioned whether they thought about reducing the size of the deck to make up for the additional coverage. Mr. Rosenfield stated that the one deck is the minimum required size and the other deck is the same size as it exists today, only elevated.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman McQuade called this hearing to a close.
OPEN VOTING SESSION
1. Case 16-05 – Heidi DiNino Fields, 49 Hartford Avenue
Chairman McQuade reviewed the facts of the case. She noted that the variance required for having three dwelling units on the property should be 3,352 square feet not 852 as noted on the application.
Ms. Hutchinson stated that she can see not needing a hardship for reducing nonconformity but noted that they are increasing the nonconformity in that they need a variance for the land requirement for multiple structures. She expressed concern over the fact that they are in a flood zone and not elevating the properties in a high hazard flood area. Ms. Hutchinson stated that without information as to the cost of the renovations she feels the application is incomplete.
Mr. Kotzan stated that he feels it may be something they bump into as they go farther along in the process. Ms. Hutchinson stated that this is part of the health and safety of people. Mr. Kotzan stated that the applicant testified that it will not exceed fifty percent of the value and if it turns out it is not true they may have to revisit the case. Ms. Stone questioned the elevation of the property. Ms. Hutchinson stated that they did not provide the elevation of the property. Mr. Sibley stated that they are first going to move the liquor store because there is major work that needs to be done. Mr. Sibley stated that the rule is fifty percent of the value of the structure, not the property. He noted that there is major work that needs to be performed. He noted that
the roof is held up with columns. Mr. Sibley stated that he feels the concept is an improvement. Chairman McQuade stated that it is more compliant with the Sound View District. Mr. Sibley stated that there is a lot of information that needs to provided on the reconstruction of the property.
Ms. Hutchinson stated that the only reduction in nonconformity is moving the liquor store and questioned moving the liquor store is really reducing a nonconformity. Mr. Sibley stated that there are two commercial businesses leaving the building and only one moving.
Mr. Kotzan stated that he thinks the project reflects what the Sound View District would like on Hartford Avenue by reducing the commercial uses and adding residential units. Mr. Sibley stated that this is a good step in the right direction.
Ms. Hutchinson stated that she asked the Building Department about the 50 percent rule and they told her that it is a Zoning issue, not a Building issue. She indicated that they stated that if the use is changed the entire building will have to be brought to current codes. Mr. Sibley stated that the concept of the development is what the Town wants and he would like them to have the opportunity to explore and develop, if possible.
Ms. Hutchinson stated that the house is in a high hazard flood area. Chairman McQuade stated that the Board is voting on the concept and the applicant will have to meet all requirements of the building code and FEMA. Mr. Kotzan noted that the applicant has testified that he will not exceed 50 percent of the value of the dwelling.
Ms. Hutchinson noted that the plans are only schematics and are not signed.
Mr. Rosenfeld stated that this project will have to go before the Zoning Commission for a Special Permit. He noted there will be a zoning review on the value of the project.
A motion was made by Mary Stone, seconded by Arthur Sibley and voted to grant the necessary variances to allow conversion of an existing commercial structure housing a deli and a package store into two conforming, two bedroom apartments, each with a garage and outside parking in the rear, as per plans submitted. Motion passed, 4-1-0, with Nancy Hutchinson voting against.
Reasons for granting:
- Plan is in accordance with intent of Sound View Village District to create affordable housing and improve structures.
- Plan improves the safety and the building code compliance of the existing structure.
2. Case 16-06 – Sound View Holdings, LLC, 61B Hartford Avenue
Chairman McQuade reviewed the facts of the case. She noted that the question is whether the liquor store can be moved as it is grandfathered in its current location. Chairman McQuade stated that the store will be 30 square feet smaller in the new location and will have parking so it will be more conforming.
Ms. Stone stated that most of the problems in Sound View are excessive alcohol consumption. She noted that they would be moving the store closer to the bars and putting it in a storefront in place of a candy store. Ms. Stone questioned whether it is up to the Board to make this choice. Mr. Sibley stated that it is up to the State whether the liquor permit can be moved to the new location. Chairman McQuade stated that it will be up to the Sound View Commission to first decide whether it can be moved. She noted that they would not be allowing a new package store, just allowing this one to move.
Ms. Stone stated that there is no objection to a package store but does not feel that reducing the square footage 30 square feet and counting existing parking does not reduce the nonconformity. She noted that no additional parking is being added. Mr. Sibley stated that if the liquor store is not moved, the first project will not go through.
Mr. Kotzan reiterated that the liquor store is being moved, they are not adding a liquor store. He stated that he does not see the location change as an insult to the street. Mr. Kotzan stated that one of the problems in the area there is that it is so difficult to get things done because of Zoning. He indicated that overall, it is a good project with a net benefit to the area.
Ms. Hutchinson stated that the Board is granting a variance to 61B to allow a change of use to allow a package store.
A motion was made by Mary Stone, seconded by Arthur Sibley and voted unanimously to grant the necessary variance to allow moving the existing package store located at 49 Hartford Avenue to the subject property, 61 Hartford Avenue, to occupy a reduced retail space, as per plans submitted.
Reasons for granting:
- Off-street parking available.
- Reduces size of existing package store.
3) Does not add to the net total of non-conforming uses in the area.
3. Case 16-07 – Patricia Nylin, 40 Hillcrest Road
Chairman McQuade reviewed the facts of the case. She noted that removing the existing single car garage reduces the nonconformities on the property as it is currently 1.5 feet from the property line; it reduces lot coverage as well.
Mr. Kotzan stated that reducing the number of bedrooms is a good thing, the plans were well done and nothing was added in the setbacks. Ms. McQuade stated that the property will be upgraded and will be building code compliant.
A motion was made by Kip Kotzan, seconded by Arthur Sibley and voted unanimously to grant the necessary variances to allow adding on to compliant areas of the first floor and the existing single car garage which is 1.5 feet from the easterly property line will be removed. A new basement under the structure will be added, as the current one does not meet code. The number of bedrooms will be reduced from 3 to 2, as per plans submitted.
Reasons for granting:
1) Removing the existing one-car garage will increase conformity of setback and lot coverage.
2) Structure will become building code compliant.
3) Decrease in number of bedrooms diminishes use.
4. Case 16-08C – William L. Bailey, applicant, Garvin Family Corp., Inc., owner, 80 Hawks Nest Road
Chairman McQuade reviewed the facts of the case. She noted that both lots are very small and they are requesting the lot line modification that will increase nonconformities on one property and increase it on the other. Ms. McQuade stated that the lot line change is required for title insurance.
Mr. Kotzan noted that nothing is physically changing on the properties.
A motion was made by Arthur Sibley, seconded by Kip Kotzan and voted unanimously to grant the necessary variances to remedy a pre-existing nonconforming situation whereby a single-family cottage on the lot next to the subject property was built over the property line and encroaches onto the subject property. For liability purposes, the contract purchaser of the subject property wishes to have a lot line adjustment done so that the encroaching cottage would be completely on its own lot, as per plans submitted. The Coastal Site Plan Review Application for this appeal is approved because it is consistent with all applicable coastal policies and includes all reasonable measures to mitigate adverse impacts.
Reasons for granting:
1) Title cannot be cleared without lot line adjustment.
5. Case 16-09C – Steven & Carol Rosenfield, 28 West End Drive
Chairman McQuade reviewed the facts of the case.
Mr. Kotzan noted that the applicant has proposed the minimum to elevate the property to meet FEMA regulations.
Ms. Stone read a list of reasons for approval provided as part of the application:
1) The lot is grossly undersized relative to the current zoning regulation.
2) It would be impossible to construct a habitable house on this lot that conforms to all zoning regulations.
3) Elevating the main level of the structure above the floodplain requires a new means of outside access to that level.
4) Elevating the main level of the structure simply above the 100 year base flood elevation would still require all of the variances requested, although the degree of variance would change for Section 8.8.6 (building height).
5) Utility meters are required to be located above the floodplain, which need a means of access to read the meters.
6) There are no additions to the main house structure proposed.
7) The house would have to remain at its current elevation, below the 100 year base flood elevation, and would be highly susceptible to further damage and flooding by future storms if not elevated.
The Board agreed these were all valid reasons for approval.
A motion was made by Karen Conniff, seconded by Mary Stone and voted unanimously to grant the necessary variances to elevate the existing structure to meet FEMA flood requirements and to construct new stairs, decks and platforms to read utility meters in order to access the main level of the house, as per plans submitted. The Coastal Site Plan Review Application for this appeal is approved because it is consistent with all applicable coastal policies and includes all reasonable measures to mitigate adverse impacts.
Reasons for granting:
1) The lot is grossly undersized relative to the current zoning regulation.
2) It would be impossible to construct a habitable house on this lot that conforms to all zoning regulations.
3) Elevating the main level of the structure above the floodplain requires a new means of outside access to that level.
4) Elevating the main level of the structure simply above the 100 year base flood elevation would still require all of the variances requested, although the degree of variance would change for Section 8.8.6 (building height).
5) Utility meters are required to be located above the floodplain, which need a means of access to read the meters.
6) There are no additions to the main house structure proposed.
7) The house would have to remain at its current elevation, below the 100 year base flood elevation, and would be highly susceptible to further damage and flooding by future storms if not elevated.
New Business
Chairman McQuade stated that she is in receipt on an e-mail from Mr. Paul Gianquinto, Co-chair of the Boathouse Project, requesting a Special Meeting on April 5, 2016 at 7:00 p.m. to hear a new ZBA application for the Hains Park Bouthouse Project, 166 Boston Post Road.
A motion was made by Mary Stone, seconded by Karen Conniff and voted unanimously to schedule a Special Meeting for April 5, 2016 at 7:00 p.m. for the new ZBA Application for the Hains Park Boathouse, 166 Boston Post Road.
Minutes
A motion was made by Mary Stone, seconded by Arthur Sibley and voted unanimously to approve the minutes of the February 16, 2016 Regular Meeting with the following correction: Nancy Hutchinson abstained from voting on the January minutes.
Correspondence
None.
Adjournment
The meeting adjourned at 9:55 p.m. on a motion by Kip Kotzan and seconded by Art Sibley; so voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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