REGULAR MEETING MINUTES
ZONING BOARD OF APPEALS~
TUESDAY, Oct 16, 2018
MAIN MEETING HALL
MEMORIAL TOWN HALL, 52 LYME STREET
OLD LYME, CT -~7:00 P.M.
- Meeting called to order at 7:00 PM
The ZBA Meeting was originally scheduled for the Mezzanine Conference Room, but was moved to the Main Meeting Room in case a large number of the public decided to attend. Notices indicating the room change were posted on the doors of the Mezzanine Conference Room and the Town Hall Entrance.
II.~~~~~Roll Call
Present:~Nancy Hutchinson (Chair), Kip Kotzan (Vice Chair), Marisa Hartmann (Secretary), Dan Montano, and Alternates Stephanie Mickle, Tom Schellens.
Absent:~~Steve Dix, Alternate
Also present:~~ David Royston, ZBA Attorney; Keith Rosenfeld, Land Use Coordinator/ZEO
III.~ Public Hearing
Case 18-10 – Scott & Kathleen Boulanger, 73 Portland Avenue,~request variances to allow construction of a sanitary sewage pump station on the vacant lot.
The chair read the case description and reviewed the variances requested: Section 4.4.6.5.f.(ii); Section 4.4.6.5; Section 7.8.2.2.a.(iv); Section 13A.3.11; and Section 20.3.6.2; and then asked if any members would like to recuse themselves. Dan Montano, recused himself.
Seated: N. Hutchinson, K. Kotzan, M. Hartmann, Stephanie Mickle, Tom Schellens.
The ZBA Attorney provided a letter dated October 16, 2018. The Secretary read the Attorney’s letter into the record, as well as a letter dated Oct 6, 2018 by the Chairman of the Old Lyme Shores Beach Association and the President of Old Lyme Shores Beach Association in support of the application.
The applicant’s representative, Matthew Jermine of Fuss and O’Neill, speaking on behalf of the applicants, Scott and Kathleen Boulander, requested a brief recess; the Chair agreed, and the meeting continued with the next several agenda items with the intent to return to this agenda item when the applicant returned later in the meeting.
Case 18-11 – George & Deb Ross, 4 Joel Drive,~request variances to allow construction of a new single-family dwelling that will meet FEMA requirements on the vacant lot.
The chair read the case description and informed the board that the applicant has requested a delay to the opening of the public hearing until the Nov 20, 2018 ZBA meeting. The Secretary to read the applicants request into the record.
A~Motion~was made by K. Kotzan, seconded by S. Mickle, to delay the opening the Public Hearing for Case 18-11 – George & Deb Ross, 4 Joel Drive until the Nov 20, 2018 Regular ZBA Meeting, Mezzanine Conference room, Memorial Town Hall, 52 Lyme Street, Old Lyme, CT.
Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, Stephanie Mickle, Tom Schellens. Opposed:~~none; Abstaining:~~none. The motion passed unanimously: 5-0-0.
The ZBA Attorney suggested that the Board consider making a motion to allow the applicant to add any additional variances that are required to complete the variance application to be heard at the same time as the other variances if they are submitted in sufficient time to meet the publication requirement.
A Motion was made by S. Mickle, seconded by K. Kotzan, to allow the applicant to add any additional variances that may be required to be heard at the same time as the other variances at the November 20, 2018 ZBA regular meeting with the caveat that they be submitted in time to meet the publication notification requirements.
Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, Stephanie Mickle, Tom Schellens. Opposed:~~none; Abstaining:~~none. The motion passed unanimously: 5-0-0.
~V.~~~~~~Regular Meeting
~Meeting Minutes – ZBA Regular Meeting Minutes – September 18, 2018
A~Motion~was made by M. Hartmann, seconded by K. Kotzan, to~Approve~the Minutes of the ZBA Regular Meeting Sept 18, 2018.
Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, Stephanie Mickle, Tom Schellens. Opposed:~~none; Abstaining:~~none. The motion passed unanimously: 5-0-0.
New Business - Approval of the 2019 Regular Meeting Dates
A Motion was made by K. Kotzan, seconded by T. Schellens, to approve the 2019 ZBA Regular Meeting Dates.
Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, Stephanie Mickle, Tom Schellens. Opposed:~~none; Abstaining:~~none. The motion passed unanimously: 5-0-0.
The applicant for Case 18-10 – Scott & Kathleen Boulanger, 73 Portland Avenue returned to the meeting and requested clarification of the procedures and timing for opening the public hearing and when the board would vote. The Chair explained that there were a variety of options for opening and/or continuing the public hearing and timing, with or without the applicant consenting to extensions not to exceed a total of 65 days, depending upon what the applicant would like to do.
The applicant indicated they would like to open the public hearing today, to begin discussion, and also to request that the public hearing be continued until at least the November ZBA meeting so that the applicant could perhaps bring additional supportive information to that meeting.
Based on the applicant’s request, the chair opened the Public Hearing for Case 18-10 – Scott & Kathleen Boulanger, 73 Portland Avenue, request variances to allow construction of a sanitary sewage pump station on the vacant lot.
A Motion was made at the request of the applicant, by K. Kotzan, seconded by M. Hartmann, to move the completion of the public session of this case to be continued to the November 2018 meeting.
Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, Stephanie Mickle, Tom Schellens. Opposed:~~none; Abstaining:~~none. The motion passed unanimously: 5-0-0.
Mr. Jermine described that he came up with the requested list of variances (“waivers”) based on his reading of the Old Lyme Zoning Regulations, as he felt that this was the list of regulations that had the potential to be a “road-block” to their proposed plan for the community.
The Chair acknowledged that it can be difficult to identify the applicable regulations, and suggested that it may be helpful to review the regulations associated with each variance request. She noted the first variance request was to Section 4.4.6.5.f(ii), which specifies a prohibited use, which the ZBA may not be permitted to vary; thus, the ZBA attorney’s guidance that the applicant seek guidance from the Zoning Commission regarding this use or to seek a text amendment to the Old Lyme Zoning Regulations to permit this use. The next variance requested is for that portion of Section 4.4.6.5 of the Flood Hazard Regulations that requires breakaway walls below base flood elevation. The Chair noted that it is tough to justify varying FEMA regulations, so she requested that as Mr. Jermine goes through their
presentation it would be helpful to understand that justification and how it aligns with the zoning regulations. The Chair then noted that the last three variances requested are related to procedural regulations, and will seek guidance from the ZBA Attorney as to whether the ZBA can grant variances to these procedural regulations. She noted that the first procedural variance requested is to Section 7.8.2.2.a.(iv), which relates to Accessory Apartments, which does not seem to apply to this application. The second is to Section 13A.3.11, which relates to the application criterion for a Site Plan relevant to a Special Permit, and she again questioned whether the ZBA is able to grant this procedural variance request, especially since the Zoning Commission has the ability to waive certain requirements related to their Special Permit procedures if they determine that they don’t apply. Finally, the variance requested to Section 20.3.6.2 is essentially asking the ZBA to
make a decision on behalf of the Health Sanitarian as to whether a procedure applies, so it may not be appropriate for the ZBA to vary this procedure.
Mr. Jermine said that he wanted to discuss each of these variances from the bottom to the top of the list, but first wanted to review the proposed project, its history, and its purpose: to support the construction of sewers for Old Lyme Shores Beach Association, Miami Beach Association, Old Colony Beach Club, and Soundview Beach communities in Old Lyme, using a regional approach. Mr. Jermine reviewed the materials submitted with the application and the rationale for locating a gravity-fed sanitary sewage pump station in a Coastal High Hazard Area. Mr. Jermine noted that 73 Portland Ave. is one of three potential locations for the sewage pumping station in this area, and that the Board should be prepared to have a similar discussion in a few weeks when the Town explores the 72 Portland Ave. location across the
street. The third location is in the Old Lyme Shore Beach Community. All three locations are in the Coastal High Hazard Area. Part of the intent of the 72 Portland application is to begin this potentially lengthy discussion on the process sooner rather than later. Mr. Jermine said the applicant has no issues with continuing the discussion to the subsequent month.
Board members K. Kotzan and T. Schellens asked technical questions about the proposed sewer, including the proposed depth, how the system would be kept watertight, where the pumps will be located, where the sewage pumping station will be located, and what components integral to the sewage pumping station will be located in the above-ground structure. In addition to addressing these questions, Mr. Jermine noted that all of the control elements, including pump control systems, electrical panels, a back-up generator, and telemetry to report if a pump fails, would be located in the above-ground structure that will be raised to at least three feet above base flood level.
The Board then asked several questions about the justification for requesting a variance to waive the FEMA requirement for breakaway walls below base flood elevation, especially because of the added risk that would result to this critical infrastructure. It was also noted that this variance, if granted, would need to be reported to FEMA. Mr. Jermine highlighted Section 21.6.2.c, and claimed that this lot is contiguous and generally surrounded by lots with existing structures constructed below the base flood elevation; therefore, there was a desire to avoid the use of breakaway walls in order to be in harmony with the neighborhood. Ms. Hutchinson noted that the lots contiguous to 73 Portland Ave were all parking lots and vacant lots, so that it did not appear that Section 21.6.2.c applied. Mr.
Jermine noted that it would actually be easier to comply with the FEMA requirements, and the proposal to avoid breakaway walls was just to please the public.
Ms. Hartmann asked about the height of the roofline, and there was discussion that this structure as proposed would be a 2-story structure if the lower level were not breakaway walls, and a 2-story structure is not allowed in the R-10 district. The board pointed out that there are attractive breakaway walls available, if aesthetics is the concern. K. Kotzan stated he felt it was more important to be FEMA compliant. Mr. Jermine stated that he was glad to get this feedback, and that this discussion has been very helpful. T. Schellens noted the importance of breakaway walls was not only important to be FEMA compliant but also to ensure that the lower level never evolves into habitable space.
After reviewing a printed copy of Section 7.8.2, Mr. Jermine agreed that this section, which describes requirements for “Accessory Apartments”, may not apply to this application. In discussing the other two procedural variance requests, the ZBA attorney noted that it would be challenging to justify a variance for a procedure because it would be difficult to demonstrate a “hardship” and difficult to demonstrate that the granting of the variance would align with the intent and purpose of the zoning regulations. Mr. Jermine acknowledged that these two variances may not be needed, and was glad to hear that there is flexibility in the procedures if it is determined they do not apply.
With respect to the variance requested for Section 4.4.6.5.f.(ii), Mr. Jermine felt strongly that the proposed project is a Public Utility Facility, and that he will bring additional information regarding that definition to the November ZBA Public Hearing. He highlighted the definition of “Public” under Section 3.149, and stated that the State of CT created Water Pollution Control Authorities for this purpose. N. Hutchinson referred back to the guidance provided by the ZBA attorney, who noted that “Public Utility Facility” is a very general term, whereas the term “sewage pumping stations” is specifically prohibited, which either conflicts with, or supersedes, the more general definition. This is a reason the Board suggests going to the Zoning Commission to ask for guidance or request a text
change in the regulations to permit this use. Mr. Kotzan acknowledged the potential conflict and noted that the ZBA is not supposed to grant a variance that thwarts the zoning plan. T. Schellens noted that the ZBA is limited in what it can grant; it adjudicates whether a hardship exists due to the application of the zoning regulations and it must be aligned with intent and purpose of zoning regulations and the health and safety of the public. Ms. Hutchinson noted that this zoning regulation actually states that the reason for the prohibition relates to health and safety concerns.
Mr. Jermine stated the hardship is the State consent order on the shoreline communities and the Town. Ms. Hutchinson suggested that the applicant go before the Zoning Commission and make the case that technology has evolved and the risk to public health and safety for a sewage pumping station in the Coastal High Hazard Area is not as serious as it was when the regulations were originally written, so that this prohibition should be lifted, as one option forward.
The ZBA Attorney noted that even if it is determined that the “Sewage Pumping Station” is a “Public Utility Facility” which is a permitted use in the R-10 zone by Special Permit, there still needs to be a variance for the use in the Coastal High Hazard Area, and the application must meet all of the criteria required for granting of a variance: hardship specific to the land and alignment with intent of zoning plan. In the case where it is a “generic” hardship for the Town or the shoreline community, that is not a hardship applicable to a specific piece of property, and where a use is prohibited, it is not aligned with the intent of the zoning plan. Mr. Kotzan noted the Catch-22 of the need to demonstrate a hardship to a specific property to get the variance, but having a generic hardship
to the Town of needing a sewage pumping station in the low lying Coastal High Hazard Area, and agreed that the best action would be to go to the Zoning Commission and make the case that the ability to locate a sewage pumping station in a Coastal High Hazard Area is needed by the Town but the current regulations make it really difficult to act on it.
Mr. Jermine expressed his concern that the Zoning Commission would push back on allowing this to be a permitted use due to a concern that if they remove this restriction what’s to prevent many pumping stations from being installed. Ms. Hutchinson noted that this use would still be subject to a Special Permit, and the Zoning Commission can add whatever criteria they feel are necessary to maintain public health and safety in association with approving a Special Permit for this specific use.
Ms. Mickle asked how high the flood vulnerable components would be above the 100-year flood zone, and would they be protected against a 500-year flood. Mr. Jermine explained that these components would be in the portion of the building that would be at least 3 feet above the 100-year flood level.
The Chair opened the hearing to Public Comment for those speaking in favor of the application. Mr. Joseph Halloran, Old Lyme Shores, spoke strongly in favor of the application and expressed the reasons he felt this should be considered a Public Utility Facility, including such a designation by the CT-DEEP. Mr. Frank Noe of 58 Hartford Ave, 59 Swan Ave and 88 Hartford Ave, spoke in favor of the pump station at this location and expressed his view that the Consent Order was a hardship for either the 73 or 72 Portland locations, and requested that the Board grant any variances that are needed.
The Chair opened the hearing to public comment for those speaking against the application. Mr. Lawrence Osowiecki, of2 Columbus Ave, questioned why the applicant is seeking variances for 73 Portland Ave, when the Beach Associations and the Town have already agreed to pursue a Sewage Pumping Station at the 72 Portland Ave. He felt it more appropriate to first seek variances for 72 Portland Ave, and only if that location does not work pursue variances for 73 Portland Ave. Mr. Alfred Derena of Miami Beach, spoke against the application and echoed the concerns expressed by Mr. Osowiecki, and was concerned about potential conflict of interest with locating the sewage pumping station at 73 versus 72 Portland Ave. With no one else wishing to speak for or against the application, or to provide general
comment, Mr. Jermine was given the opportunity to respond to the comments.
Mr. Jermine noted that 73 Portland is one of three potential locations, and the purpose of this application is to start the discussion about the process now, rather than 6 months from now, with one of the other locations. Starting the conversation now does not mean that this will be the final location. As the 72 Portland Ave. location may also including bathrooms, that could raise another potential set of issues to be addressed. The Chair thanked everyone, including the ZBA Attorney, for their comments and noted that the public hearing for this case will continue in November, unless the applicant decides after going to the Zoning Commission they don’t need to return.
IV. Open Voting Session
Case 18-10 – Scott & Kathleen Boulanger, 73 Portland Avenue,~request variances to allow construction of a sanitary sewage pump station on the vacant lot.~– Continued until the Nov 20, 2018 ZBA Meeting
V.~~~~~~Regular Meeting – cont’d
Old Business - Review of materials related to proposed ZBA process improvements. ~
- Discuss final changes of variance applications and Guide document
Members of the Board asked the ZBA Attorney several questions about ZBA processes and regulations before he left. N. Hutchinson then reviewed responses to several questions raised at the last ZBA meeting after review of the proposed ZBA process improvement documents, and explained the minor changes that were made to the documents based on that follow-up. For example, she noted that a Zoning Compliance Permit Application denial is not a legal requirement for a Variance Application, but that Kim Barrows explained that it helps the Old Lyme Land Use Department keep track of land-use applications; that a sentence was added to the guide stating that in some circumstances the ZBA is allowed to consider whether a substantial reduction in legal, pre-existing non-conformity may replace the need to demonstrate an
“unusual hardship”; and that the number of copies of the variance application was revised to be three, rather than two. The reason for increasing the number of applications is to facilitate the Chair’s review of the variance applications for completeness. In response to the question as to whether other members also wanted to receive a full copy of the application, or whether they were OK with receiving a scanned copy of key portions of the application via email and then to review the rest of the application and plans at Town Hall, the response from the ZBA members was that the latter was fine with them.
A~Motion~was made by T. Schellens, seconded by K. Kotzan, to~Approve~the ZBA process documents as amended at the Oct 16, 2018 ZBA meeting, including an increase in the required number of copies of the variance application and supportive documents and plans to be submitted from two to three, with an effective date of Nov 1, 2018.
Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, Stephanie Mickle, Tom Schellens. Opposed:~~none; Abstaining:~~none. The motion passed unanimously: 5-0-0.
VI.~~~~~Adjournment
A~Motion~was made by K. Kotzan, seconded by T. Schellens, to adjourn the Oct 16, 2018 Regular Meeting.
Voting in favor:~N. Hutchinson, K. Kotzan, M. Hartmann, Stephanie Mickle, Tom Schellens. Opposed:~~none; Abstaining:~~none. The motion passed unanimously: 5-0-0.
The meeting was adjourned at 9:17 PM.
Respectfully submitted,
Nancy Hutchinson
The next regularly scheduled ZBA Meeting will be held on
Tuesday, November 20, 2018 at 7:00 PM, in the Mezzanine Conference Room,
Memorial Town Hall, at 52 Lyme Street, Old Lyme, CT.
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