OLD LYME ZONING BOARD OF APPEALS
REGULAR MEETING MINUTES
Tuesday, May 15, 2018
The Old Lyme Zoning Board of Appeals held a Regular Meeting on Tuesday, May 15, 2018 at 7:00 PM in the Mezzanine Conference Room in Memorial Town Hall.
I. Meeting called to order 7:00 PM
II. Roll Call
Present: Nancy Hutchinson (Chair), Kip Kotzan (Vice Chair), Marisa Hartmann (Secretary), Dan Montano and Alternates Stephanie Mickle, Stephen Dix, and Tom Schellens.
Absent: None
Seated for continued Public Hearing for Case 18-03C: N. Hutchinson, K. Kotzan, M. Hartmann, D. Montano and T. Schellens
Also present: ZBA Attorney David Royston, Old Lyme Land Use Coordinator Keith Rosenfield, and clerk Mary Ellen Garbarino
III. Continued Public Hearing
Case 18-03C – Christopher Calvanese, 6-1 Pond Road, requests variances to allow reconstruction of the dwelling above base flood elevation in the Flood Hazard Area which requires variances for exceeding the height by 8’ (from required 24’ to proposed 32’), an increase in maximum lot coverage (from required 25% to proposed 29%) and minimum setback from other property line (12’ required / 5.1’ existing).
Representing the Applicant: Mr. and Mrs. Christopher Calvanese, Donald Snyder, Craig Laliberte
Before the Applicant continued their presentation, N. Hutchinson confirmed that all Members had received the forwarded email from Attorney Royston with four attachments, and hard copies of those materials were provided to all Members and the applicant’s engineer. She also advised the Applicant that Keith Rosenfeld, the Town’s Land Use Coordinator, was available to answer any questions the Applicant or the Board may have regarding his calculations and conclusions.
ZBA Secretary M. Hartmann read Attorney Royston’s letter into the Record of the Public Hearing, before the matter was turned over to the Applicant to continue their presentation.
Architect Craig Laliberte, representing the Applicants, made a presentation showing changes that have been made to the plan since the March ZBA meeting, in an attempt to address the concerns raised by the Board. Changes include removing the cupola, lowering some of the roof and decreasing the square footage and volume extending into the side setback. New drawings and Zoning Tables were shown that had not been submitted in advance. They highlighted proposed changes to the plans, and a comparison with raising the existing structure 8 feet. There is an increase of the floor area. The plan conforms with V zone FEMA regulations. Mr. Laliberte stated that when one considers only the 6-1 dwelling on the property, the only non-conformity being increased is height, up to 32 feet to achieve FEMA
compliance, and that there was a decrease in setback non-conformity. When the Zoning Table incorporates all three dwellings on the property, he noted the Floor Area Ratio increases from 33% to 38%.
Ms. Mickle asked Attorney Royston how the shed should be considered based on his letter. He stated that the shed is not legally protected existing living space, and case law states that this is regardless of how long the illegal use has been in existence.
Mr. Kotzan asked if the Applicant could demonstrate that the use predated the zoning regulations. Ms. Hutchinson noted that in the Zoning Compliance Permit application submitted in November 2017, the applicant did not include the shed in the description of the dwelling’s dimensions and square footage.
Mr. Schellens noted that there is also expansion of living space into the rear setback by the addition of a second story of living space over the previously single-story porch area. Ms. Hutchinson noted that the DEEP had raised concern with increasing living space in the VE flood zone.
Ms. Mickle asked Attorney Royston how demolition and rebuilding of the structure affected the required variances. Her understanding from the ZEO is that variances would be needed for each existing non-conformity because it becomes a “voluntary demolition”. Attorney Royston disagreed because the applicant would only demolish if the variances exceeding existing non-conformity were granted. This is unlike the situation when an applicant has already demolished a structure and then requests maintaining non-conformities they used to have, but no longer exist. He did not agree with the charade of keeping one wall up in order to maintain legal existing non-conformities in the case when a proposed demolition and rebuild was prospectively proposed and approved. Ms. Hutchinson reminded the applicant
that a 2-story designation means that the second-floor area is greater than 50% the area of the first story, not necessarily equal in area.
Mr. Snyder, a licensed professional engineer representing the applicant, noted that much work had gone into addressing the feedback from the board at the March meeting, and thanked the ZEO for visiting the property. One concession, in addition to those described by Mr. Laliberte, is a decision to remove the rear patio in its entirety. This addresses one of the DEEP comments and reduces total lot coverage from 46% to 40%. The applicant is agreeable to work with the board to come to a positive outcome. The building must be raised, and they feel the proposed structure will be more attractive than raising the existing structure.
He reviewed the variances again. He noted it is not possible to raise a structure to meet FEMA requirements without a height variance, so he felt everyone understood the need for the 32 foot height variance. He next mentioned the side setback variance and read a letter from the Applicants regarding the status of the property when they purchased it. He felt their proposal to use as a full-time family home, rather than a rental, is an improvement for the neighborhood. With respect to living space, like-it-or-not, the shed is currently a bedroom. He said there was agreement with Attorney Royston’s letter, and asked him to summarize the specific concerns he had with respect to the shed. Attorney Royston summarized that the current assessors map lists it as a shed, and without additional
evidence to the contrary, the board cannot ratify an illegality (conversion of shed into living space). Mr. Snyder said that “we are agreeable” and willing to take the path of least resistance. They would be willing to speak with their client about modifying the plan, if needed, to take that issue off the table.
Mr. Snyder then listed a number of ways that the space has been converted into living space from a structural perspective, without addressing the zoning legality. Mr. Schellens asked if it would be helpful for the applicant to request a separate variance for the conversion of the shed to living space. Mr. Snyder said they are willing to be accommodating, and would be willing to apply for additional variances if needed. He reviewed their proposed hardships for height (Flood Hazard Area and Topography), set-back (narrow, non-conforming lot) and coverage (three dwellings on the property). He offered to maintain 60 feet of wall if necessary. The board responded, based on Attorney Royston’s advice, that would not be necessary.
Mr. Kotzan asked Attorney Royston what would be the legal status of the shed if the house was raised (without the shed). He responded that if it remained a shed that would be fine, but if it was still used as a bedroom it would be an issue to be addressed by the ZEO.
Mr. Snyder stated that the current dwelling is a four-bedroom structure, counting the shed bedroom. He also noted that the portion of the proposed structure that will be in the side setback will no longer be a bedroom, it will be an enclosed stairwell. The removed patio will be landscaped, reducing the impervious surface. Although they are requesting additional floor area and living space, some of that increase is due to the need for a new stairway to access the elevated living area. He also noted there will be a large reduction in lot coverage, and a small reduction in building coverage. It was discussed with Attorney Royston that a substantial reduction in legal existing non-conformities can be a basis of granting a variance for increased floor area independent of a hardship.
Ms. Hutchinson asked Attorney Royston if the Board could grant a variance for increased floor area based on the public notice as written. He said no. To address the procedural issue, he recommended that the applicant consent to an extension of the public hearing for the existing variance application until the next meeting; also to suggest to the applicant that they apply for whatever additional variances are needed (e.g.: increase in % floor area) and request that the applications be considered jointly, with the understanding that this does not mean that the Board has agreed to all of the proposals. He also suggested that the Board authorize its Attorney to meet with the architect, in consultation with the ZEO, to determine what additional variances will be needed to apply for based on their proposals. This will assist the applicant without prejudice and get the proper public notice.
Ms. Mickle asked if they were planning under building parking and if the 32-foot elevation proposed meets the minimum required to meet the FEMA Flood requirements. Mr. Laliberte indicated that it may be a foot higher, and will be used only for parking and FEMA-allowable storage.
Mr. Snyder, on behalf of the Calvanese family, consented to continue the Public Hearing until the conclusion of the June 19, 2018 meeting.
A motion was made by Kip Kotzan, seconded by Tom Schellens, to authorize a meeting between the ZBA Attorney and the Applicant to clarify the variances required for the application.
No Discussion
Voting in favor: N. Hutchinson, K. Kotzan, M. Hartmann, D. Montano and T. Schellens
Opposed: None
Abstaining: None
The motion passed unanimously 5-0-0
A motion was made by Tom Schellens, seconded by Dan Montano, to continue the Public Hearing for Case 18-03C – Christopher Calvanese, 6-1 Pond Road to the June 19, 2018 Public Hearing.
No Discussion
Voting in favor: N. Hutchinson, K. Kotzan, M. Hartmann, D. Montano and T. Schellens
Opposed: None
Abstaining: None
The motion passed unanimously 5-0-0
IV. Open Voting Session
Case 18-03C – Christopher Calvanese, 6-1 Pond Road, requests variances to allow reconstruction of the dwelling above base flood elevation in the Flood Hazard Area which requires variances for exceeding the height by 8’ (from required 24’ to proposed 32’), an increase in maximum lot coverage (from required 25% to proposed 29%) and minimum setback from other property line (12’ required/5.1’ existing).
CONTINUED until the June 19, 2018 ZBA Meeting
V. Regular Meeting
a. New Business
Plans were discussed to invite Attorneys David Royston and Sylvia Rutkowska to a future meeting with ZBA members to answer general legal questions and discuss potential process improvements. No date was set at this time.
b. Old Business
N. Hutchinson confirmed the 90-minute Land Use Course that will be given by UConn's Land Use Academy at the Old Lyme Town Hall to be held the evening of June 5th at 5:30 PM.~
c. Correspondence and Announcements - none
d. Meeting Minutes
ZBA Regular Meeting March 20, 2018 – Tabled to next month
ZBA Regular Meeting April 17, 2018 – Tabled to next month
VI. Adjournment
A motion was made by Stephanie Mickle, seconded by Dan Montano, to adjourn the May 15, 2018 Regular Meeting at 8:45 PM.
Voting in favor: N. Hutchinson, K. Kotzan, M. Hartmann, D. Montano and T. Schellens
Opposed: None
Abstaining: None
The motion passed unanimously 5-0-0
The next regularly scheduled ZBA Meeting will be held on Tuesday, June 19, 2018 at 7:00 PM in the Mezzanine Conference Room, Town Hall at 52 Lyme Street, Old Lyme, CT.
Submitted by,
Mary Ellen Garbarino, Clerk
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