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MINUTES OF THE ZONING BOARD OF APPEALS
REGULAR MEETING
OCTOBER 19, 2010
NOTICE IS HEREBY GIVEN that the Zoning Board of Appeals of the Town of Old Lyme at its Regular Meeting that was held on Tuesday, October 19, 2010 at 7:30 p.m. at the Old Lyme Town Hall, 52 Lyme Street heard and decided the following appeals:
The Chairman of the Board, Susanne Stutts, opened the meeting and introduced the Board members who were seated and voting for the meeting.
Present and voting were Susanne Stutts, Chairman, Judy McQuade, Vice Chairman, Kip Kotzan, Secretary, Joseph St. Germain and Marilyn Ossmann, alternate, seated for Richard Moll
Present: Richard Smith, alternate, Fran Sadowski, alternate, David Royston, Esquire, counsel for the Zoning Board of Appeals and Kim Barrows, Clerk
Absent: Richard Moll
The meeting was then called to order at 7:35 p.m.
The following public hearings were conducted, as well as the voting session. The meeting has been recorded on tape and the following actions were taken:
PUBLIC HEARINGS:
Case 10-14 Richard Traver Steiner, 22 Buttonball Road
S. Stutts stated that this is a request for variances to allow removal of a structure (room) built on the deck and replace with a structure on a permanent foundation. The existing nonconformities are Section 8.8.3, minimum dimension of a square on the lot, 150’ required, existing is 113’, Section 8.8.7, minimum setback from the streetline, 50’ required, 35’ existing and Section 8.8.9, minimum setback from other property line 35’ required, 5’ on the north side of the house and 17’ for the deck on the north side of the house existing.
The proposal does not comply with Section 8.0.c, yards and lot coverage, Section 9.3.1, enlargement and Section 8.8.9, minimum setback from other property line, 35’ required, 18’ for the proposed addition and a variance of 17’ requested.
Mr. Steiner gave a brief presentation. He wants to remove the existing structure that was built directly on the deck creating moisture problems and difficulty heating and cooling. The hardship is that the home was built in its current location on the lot in 1930, which predates zoning. The lot is an acre lot in an RU-40 zone. The proposed addition will not extend into the setback any further than it does now, it will be enlarged an additional two feet to the southeast. Mr. Steiner went over the pictures of the house that were submitted with the application. S. Stutts stated that there was not a floor plan submitted and Mr. Steiner submitted one for the record and it is in the file. K. Kotzan stated that the square footage of the house is modest, it is only 640
square feet and with the addition it will be 880 square feet. Mr. Steiner stated that he is not adding any bedrooms, it will still be a one bedroom house. S. Stutts went over the dimensions of the proposed addition, it will be 16’ x 16’ by 12 feet high. J. St. Germain asked about the structure and that it would extend about a foot further, Mr. Steiner stated that the existing structure is 12 feet wide and the new one would extend out four more feet, but not exceed the existing deck. If the addition is placed in another area of the house to make it conforming, the whole interior would have to be reconfigured.
The Chairman opened the floor for comments from the audience either in favor or in opposition. There was no audience participation and no further comments from the Board, the public hearing closed.
CONTINUED PUBLIC HEARINGS:
Case 10-11 (a) Appeal of Leonard J. Corto, Manager of On the Beach, LLC
Present: Stephen Penny, attorney for the appellant, On the Beach, LLC, Leonard J. Corto and Leonard T. Corto, Members of the appellant limited liability company, Frank Noe, Manager-Member of the property owner, Sound View Property Management, LLC
Also present: Ann Brown, Zoning Enforcement Officer, Eric Knapp, Esquire, attorney for Ann Brown
S. Stutts stated for the record that this was a continuation of the September 21, 2010 public hearing regarding a Cease and Desist Order for a deck, amplified music and a food cart.
Eric Knapp spoke first, stating he did not know what new information there was to share with the Board. There are some new exhibits that the Zoning Enforcement Officer will enter into the record. He states that Attorney Royston’s letter should be entered into the record and he will answer any questions that the Board may have. Attorney Royston, counsel for the Zoning Board of Appeals, presented a letter dated October 19, 2010 relating to the issues raised at the September meeting. Attorney Royston states that in making the decision the Board is called upon to decide whether the Order to Discontinue/Cease and Desist dated July 15, 2010 should be upheld in whole or in part. The Board, in its decision can take into consideration not only the Zoning Enforcement Officer’s evidence but
evidence given at the public hearing as well as the recollection of individual Board members. With respect to bands, bands have been allowed to play without approval from the Zoning Commission. The appellant claims that “playing of music by live, amplified bands both indoors and outdoors at 88-90 Hartford Avenue is a pre-existing, nonconforming use which has never been abandoned or relinquished”. The Zoning Enforcement Officer claims that even if “amplified bands” may have been played indoors or outdoors at the property in the past, that use has been legally abandoned by reason of the intervening change in the Liquor Control Commission permits which reference “solo acoustic” as the type of live entertainment desired under the Permits. Both parties agree that an intent to abandon a non-conforming use is required, not simple non-use. The Board will need to determine as a factual matter whether or not
there was an “intent” to abandon amplified bands as live entertainment. In determining this issue, the language which the owner or his agents, and/or their predecessors, put on the permit application can be taken into consideration. The Board has also made no determination into the meaning of “solo acoustic”.
With respect to the deck, which has been installed without the proper permits, the Board will need to make a factual determination as to whether or not the deck is a “new structure”. This determination will be made based on the information presented. The appellant claims that the deck is not a “permanent” structure and therefore not subject to the zoning regulations. This determination will need to be made as well.
Regarding the food cart, which has been installed without the proper permits, the Board again will need to make a factual determination as to whether or not it is a pre-existing, nonconforming use as the appellant claims based on the evidence provided.
Eric Knapp does not dispute what is in Attorney Royston’s letter, it is correct in the law. It is their contention that the liquor permits filed four separate times in the last decade have indicated an intent to abandon under the band section, so that is their evidence regarding the intention to abandon. He also notes that the present liquor permit still says solo acoustic. Attorney Knapp showed the picture of the deck with a band playing on that deck. This is a violation of not only zoning but the liquor control permit. The evidence for the deck, and Attorney Knapp stated that the Board could use its personal recollections, is that Attorney Botticello was before the Board last year and indicated that the deck would be removed and the proper permits would be taken out. The Board,
at that time, relied on that statement, but the deck is still there. With respect to the food cart, he stated that evidence was presented that there was a variety of different kinds of food service, i.e. hot dog stand, grill off the side of the property. That was a different kind of food service, i.e. type of cart and service. It is not a previous nonconforming use because the use has evolved over time to be different from it was. Attorney Knapp stated that this is not the first time the Zoning Enforcement Officer has been involved in this property and he handed out copies of other Cease and Desist Orders that have been issued for this property since 2004. There is a pattern of violations here. Attorney Penney objected to this statement. The property owner has only had this property since 2006 and the appellant has only been in the property since 2008 and he did not feel it appropriate for his client to be prejudiced for the conduct of
others before him. Attorney Knapp stated that the only Cease and Desist that does not apply is the one from 2004, all others do apply since they go from 2007 forward. Attorney Knapp stated that the Board is the finder of fact, the Cease and Desist Order can be acted on item by item, upheld entirely or re-written. Attorney Knapp stated that the Board should hold up the ZEO’s issuance of the Cease and Desist, it was well written and well investigated and consistent with the facts as they understand.
Attorney Penny stated that he also has no quarrel with the letter that was presented by Attorney Royston tonight and that it is correct on the law. Attorney Penny summarized by stating that the band music constitutes a legal nonconforming use of this premises, they believe that the evidence put before the Board establishes that that use predates the 2005 adoption of the regulations that bring them to the Board tonight, to the extent that in the Sound View Village District (SVVD) zone, that most anything that one does requires the issuance of a Special Permit from the Zoning Commission. He states that since the use predates that regulation they are not subject to that requirement. It has been the Zoning Enforcement Officer’s view that the 2005 regulation applies and has been enforcing it on that
basis. Evidence was presented at the previous hearing that Mr. Noe was under time constraints and did not pursue the fact that he cold not have bands, but was limited to only solo acoustic. Attorney Penny has presented for evidence the actual application document that shows a “white out version” of what type of entertainment that was to occur on the site, which originally stated band, disc jockey, juke box, etc. Attorney Penny stated that the Board did not have to concern themselves with the liquor permit itself, only the regulations of the Town which regulate “restaurants with entertainment”. A legal nonconforming use is a constitutional right that accrues not to commercial tenants but to property owners. Mr. Noe reiterated his previous testimony that he was under duress when he relented to solo acoustic music on the permit. Attorney Penny admitted a postcard of Sound View into the record that shows a deck
belonging to a previous tenant, Ziggy’s. He also submitted other evidence which is in the file to show the history of the property with respect to bands, the deck and food service.
K. Kotzan asked if the appellant got permits, would it be permitted. Attorney Knapp stated that if it really is a pre-existing nonconforming use, permits should be issued and there should be a site plan approved by the Zoning Commission. Ann Brown the Zoning Enforcement Officer stated that this property does not have a Special Permit, but came before the Zoning Board of Appeals in 2003 for a small addition in the rear and extending the roof and at that time a plan was submitted. Ms. Brown discussed what was to be on the property at that time, raw bar, no grill, seating outside and music. Ms. Brown stated that there was a lot of discussion at that time regarding the music aspect. K. Kotzan gave his recollection of that meeting since he was a member at that time as well as S. Stutts and J.
McQuade. K. Kotzan stated that during that 2003 approval, the Board was concerned about the noise level in that area of Town and he felt that was how “solo acoustic” music came about.
With respect to the Special Permit process, Attorney Penny stated that there are 38 pages of regulations regarding the SVVD and an additional 15 pages in Section 13 A and B. Why should this applicant have to comply with all of those regulations. Attorney Royston stated that those that do not apply can be waived.
The Chairman opened the floor for comments from the audience either in favor or in opposition. There was no audience participation and no further comments from the Board, the public hearing closed.
Case 10-13 Karen Montanaro Kingston & Richard J. Kingston, Jr., 12 Old Colony Road
Present: Michael Cronin, Jr., Esquire, agent for the applicant, Mr. & Mrs. Kingston, applicants
S. Stutts stated that this is a request for variances to allow occupancy of the existing premises for year-round use. The existing nonconformities are Section 8.8.1, minimum lot size, required 10,000 square feet, existing is 7,470 square feet, Section 8.8.2, minimum lot area for each dwelling unit 10,000 square feet required, 7,470 square feet existing, Section 8.8.5, maximum number of stories is 1 ½, currently there exists 2 stories, Section 8.8.8, minimum setback from rear property line, required is 30 feet, existing is 29 feet to rear steps of house and 2 feet to garage, and Section 8.8.10 maximum floor area as percent of lot area 25% required (1,867.75 s.f. permitted), 28.6% exists (2,139 s.f.).
The proposal does not comply with Section 9.1.3.1 (General Rule), Section 9.3.1 (Enlargement) and Section 11.19.B 1 (a), the lot shall contain a minimum of 10,000 square feet and there shall be no more than one dwelling unit located on the lot.
Attorney Royston, counsel for the Zoning Board of Appeals, presented a letter dated October 19, 2010 relating to the issues raised at the September meeting. These issues relate to a) is the distinction between a “seasonal” use and a “year round” use an unconstitutional distinction, b) does the distinction between “seasonal” and “year round” constitute a violation of the uniformity requirements of Section 8-2 of the CGS and c) do the new Old Lyme Zoning Regulations which reference a list of property owners exempt from classification as seasonal under those regulations, constitute a violation of the constitutional right of equal protection under the law? Attorney Royston advised the Board that it is within their purview to interpret the Regulations and to determine
there applicability to certain actual situations, but in only very limited areas do they have jurisdiction to address constitutional issues. He does not believe that the issues outlined above to be within the jurisdiction of the Zoning Board of Appeals. The ZBA should decide this case upon the standard definitions applicable to hardship as they relate to the facts and to this property.
Attorney Cronin expanded on his original presentation given on September 21, 2010 and presented a summary of statement of hardship. He states that the intensity of use of the property was downsized when a Special Permit was granted by the Zoning Commission to convert from a two-family dwelling with four bedrooms to a one-family dwelling, with three bedrooms. The use of the property during the winter months at Old Colony Beach should be a minor consideration because in the winter months, the area is largely deserted, with little or no traffic and activity in the area. The property has been improved to meet all of the winterization requirements under the zoning regulations; including, but not limited to a new septic, new electrical, water system, foundation and insulation. The house complies
with all the regulations except for the size of the lot. There is no additional land available to make the lot comply with the 10,000 square feet requirement in the Zoning Regulations. Although the lot is 7,000 square feet, it is larger than many other lots in the area, all of which were divided and set out before zoning regulations were adopted in the town. The property is “unique” in that all that needs to be done for year-round use is to simply turn on the public water supply pipe leading to the house. The year-round, single family dwelling use is specifically a permitted use in this zone. Under the zoning regulations, four hundred and six properties in the shoreline area, many of which have similar characteristics to that of the subject property, are specifically allowed to be used or converted to year-round use without the necessity of seeking a variance from the Zoning Board of Appeals for lot area. This is the result of a court “settlement” between the town and these
property owners, from which settlement the applicants’ property has been excluded. The applicants have tried to join that lawsuit but have been unable to. Because of this regulation, the applicants’ property is subject to an unconstitutional and illegal discrimination from an otherwise permitted use of the property because of the doctrine of equal protection of the law. Also, this regulation is specifically in violation of the provisions of Section 8-2 of the Connecticut General Statutes which requires zoning regulations to be uniform in their application to like properties in the same zone. The zoning regulation is a particular hardship to the applicants because presently this is their only home and place of residence.
The following letters of support were read into the record: Beatrice Gold of 2 Old Colony Road dated October 1, 2009; Leo Kraimer of 7 Old Colony Road dated September 22, 2010; Gerald & Marie Orfitelli of 58 Old Colony Road dated September 24, 2010; Roberta Plaut of 57 Old Colony Road dated October 12, 2010; Victor Strazdas and Patricia Grenier of 8 Old Colony Road dated September 30, 2010; Mildred Tucker of 13 Old Colony, no date; Harvey Wallet of 80 Old Colony Road dated September 27, 2010 and Lisa Wesnak of 16 Old Colony road dated October 12, 2010.
The Chairman opened the floor for comments from the audience either in favor or in opposition. There was no audience participation and no further comments from the Board and the public hearing closed.
VOTING SESSION:
Case 10-14 Richard Traver Steiner, 22 Buttonball Road
S. Stutts stated that this is a 43,996 square foot lot in an RU-40 zone. The proposal doesn’t comply with yards and lot coverage, Section 9.3.1 enlargement and the minimum setback where they are asking for a variance of 17 feet. It is a small house on a large lot, the hardship is the placement of the house on the lot. The existing structure was built on top of the existing deck and there is a moisture problem. The height of the structure will be 12 feet, there is not an issue with the percentage of lot coverage. K. Kotzan stated that the things that represent setback issues already exist as setback issues, there is no expansion on that. J. St. Germain stated that there will be no additional bedrooms added.
A Motion was made by K. Kotzan, seconded by J. St. Germain to GRANT the necessary variances to allow removal of a structure (room) built on deck and replace with foundation and permanent structure, as per plans submitted. Discussion: the roof line is not to change it is to match other roofline, replacing what already exists. No further discussion and a vote was taken: In favor: S. Stutts, J. McQuade, K. Kotzan, J. St. Germain, M. Ossmann In opposition: None Abstaining: None The motion passed unanimously. 5-0-0
The hardship is the oversized lot and the house was built too close to the property line in 1930 and the existing addition was built without a foundation. The looks of the structure will greatly improve, it will not change the impact on the neighbors, it will be a one bedroom house and will be built in accordance with the plans.
Case 10-11 (a) Appeal of Leonard J. Corto, Manager of On the Beach, LLC
The Board decided to take each item listed in the Cease and Desist individually during deliberations. J. St. Germain stated that there needed to be a timeline established with respect to the property and zoning. The contention of the applicant is that his conditions pre-existed zoning regulations. There is a long history with the issue of the bands. J. St. Germain stated that from personal knowledge, bands have been down there for a long time, he only lives a mile and a half away and he can hear the bands. K. Kotzan stated that that was absolutely true but the Board needs to focus on the contention of the Town that the pre-existing use was abandoned in 2003 with Jib 88 and that subsequent owners/users reconfirmed that abandonment of the live band music outside. S. Stutts stated that nothing
has been contested since those permits. Bands have showed up on the property but were they there as a continuing existing nonconforming use or was it abandoned in 2003 and with new owners were they going to give it a go again. K. Kotzan stated that he did not think Mr. Noe particularly abandoned it consciously and intentionally. His description was probably accurate, when he went in to get the permit he was under a time constraint and went along with it to get this going. K. Kotzan stated that he feels it was abandoned in 2003 when Jib 88 went before the ZBA for modifications to the building and there was discussion about the noise. J. McQuade and S. Stutts were on the Board at that time and recollect the same thing. Discussion of solo acoustic, is it not amplified, yes. S. Stutts asked if the Zoning Enforcement Officer was acting correctly by issuing the Cease and Desist. The Board concurred, if there was solo acoustic being played
in the “cage”, then they would not be here. There were numerous complaints regarding noise.
With respect to the deck, there is a photo in the file that the deck has doubled in size. The appellant stated that it was not a permanent structure and was moved in the off season to become a loading dock. The Board felt the deck was a “structure” and needed the proper zoning permits. Also in 2009, the attorney representing the appellant stated before the Board that the deck would be removed and if put back they would obtain the proper permits.
With respect to the food cart, K. Kotzan stated that there was a history of use that can be demonstrated, but it needs to be regulated. S. Stutts stated that none of these things are disallowed, they need permits. The Health Department cited the food cart. K. Kotzan felt the Zoning Commission should waive some of the regulations with respect to obtaining the Special Permit. The Board further discussed food service, they are not disputing the service of food, but they need proper permitting. The food cart is an expansion of the service of food.
A Motion was made by K. Kotzan, seconded by J. St. Germain, to UPHOLD all three (3) aspects of the Cease and Desist Order as presented for the Appeal of Leonard J. Corto, Manager of On the Beach, LLC. No discussion and a vote was taken: In favor: S. Stutts, J. McQuade, K. Kotzan, J. St. Germain, M. Ossmann In opposition: None Abstaining: None The motion passed unanimously. 5-0-0
Case 10-13 Karen Montanaro Kingston & Richard J. Kingston, Jr., 12 Old Colony Road
S. Stutts stated that this is a request for variances to allow occupancy of the existing premises for year-round use. The house is in an R-10 zone and the lot size is 7,470 square feet, a variance of 2,530 square feet is being requested. The applicants have gone through the Special Permit process in 2008 to convert from a 2 family dwelling to a one family dwelling and enclosed the front porches. The height is 22’ with no change in footprint and the house went from 4 bedrooms to 3. The hardship is the land meets all technical requirements, i.e. water, septic, electrical, etc. There was discussion of intensity of use going from a 2 family to a one family home. S. Stutts stated that for her what it boils down to is making a decision on seasonal houses going to year-round on
properties with less than 10,000 square feet. The Board needs to be consistent and will be faced in the future with a lot of these requests and at what point does the Board draw the line, an arbitrary amount of property can’t just be picked. The hardship is what the Board needs to find and with respect to the land, it is no different than any other property in the beach area. This property has only half of the front setback that is required, it is a two story house, it is over the percentage of floor area to lot size. K. Kotzan stated that the Board looks at the regulations being varied. The lot size is 10,000 square feet and how can the Board start varying the sizes of all the lots, there needs to be extenuating circumstances. With this appeal, the one extenuating circumstance with applicants is that they are retiring and this is their only home. J. McQuade stated that the granting of this variance would substantially affect the
comprehensive zoning plan. She also stated and the Board agreed that there needs to be unique hardship which in this case is certainly not. K. Kotzan stated the Board has no other recourse except to say there is no substantial unique hardship here that is different from most of the properties in the beach communities. They could all come in and winterize, many could probably get an adequate septic on the property and the lot sizes could be substantially smaller. The lot sizes in these communities were originally set out for seasonal cottages. S. Stutts stated that when the applicants received their Special Permit from the Zoning Commission they knew the house was to be seasonal. J. McQuade stated that remaining seasonal does not destroy the value of the property, it is a disappointment in use. S. Stutts stated that eight letters of support heard as well as several people at the public hearing. M. Ossmann stated that each case should
be looked at individually and this one is unique since they reduced some of the existing nonconformities. J. St. Germain asked how many other properties in that area could meet all of the aspects this home did, but not the 10,000 square feet. S. Stutts stated that this is a very large house on a small lot, the maximum floor area as percentage of lot area required is 25% (1,867.75 s.f. permitted), 28.6% exists (2,139 s.f.). The increase in percentage has always been a big concern of the Board. J. McQuade also stated that it is a two story house, not one and a half. Even though they are not asking for variances of those regulations since they already exist, the house is large compared to the others in the neighborhood. S. Stutts stated that this is not an easy decision. K. Kotzan stated that the Board needs to be consistent.
A Motion was made by K. Kotzan, seconded by J. McQuade, to DENY granting the variances for Case 10-13 Kingston, 12 Old Colony Road. No discussion and a
vote was taken: In favor: S. Stutts, J. McQuade, K. Kotzan, J. St. Germain, M. Ossmann In opposition: None Abstaining: None The motion passed unanimously. 5-0-0
Reasons: It violates the comprehensive zoning plan, it is an undersized lot with and this situation is no different from others in this district. Sufficient hardship has not been shown and it is not within the intent of zoning.
Approval of Minutes of the September 21, 2010 Regular Meeting and the September 27, 2010 Special Meeting
A Motion was made by K. Kotzan, seconded by M. Ossmann to approve the September 21, 2010 minutes with the following corrections: on page 9 at bottom, “J. St. Germain stated that now there are fewer bedrooms, so is this an expansion.” J. St. Germain changes to “so this is a reduction”. Also, “S. Stutts, stated that the Zoning Commission would like everything to be more conforming . . . “ The change is to end the sentence after “conforming”. No further discussion and a vote was taken. The motion passed unanimously.
A Motion was made by K. Kotzan, seconded by J. McQuade to approve the September 27, 2010 special meeting minutes with the following corrections: delete Kip Kotzan as present and voting, he was absent; page 1, last line “deep with a garage in the back corner”, it should read “a bathroom in the back corner” and on top of page 3 “Two bedrooms will remain, applicants will to interior upgrades” change “to” to “do”. No further discussion and a vote was taken. The motion passed unanimously.
Adjournment
A Motion was made by J. St. Germain, seconded by K. Kotzan to adjourn the October 19, 2010 Regular Meeting; no further discussion and a vote was taken. The motion to adjourn passed unanimously. 5-0-0 The meeting adjourned at 10:20 p.m.
The next Regular Meeting of the ZBA will be on Tuesday, November 16, 2010 at 7:30 p.m. at the Town Hall, Auditorium/Meeting Hall, 52 Lyme Street, Old Lyme, CT.
Respectfully submitted,
Kim N. Barrows, Clerk
Old Lyme Zoning Board of Appeals
Old Lyme, Connecticut 06371 Old Lyme, Connecticut 06371
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