OLD LYME ZONING COMMISSION
MINUTES OF PUBLIC HEARING
Monday, April 13, 2009
The Old Lyme Zoning Commission held a Public Hearing on Monday, April 13, 2009 at 7:30 p.m. in the Auditorium of Memorial Town Hall. Members present were Tom Risom (Chairman), Jane Cable (Vice Chairman), Jane Marsh (Secretary), John Johnson, Pat Looney, Beth Sullivan (Alternate), Ted Kiritsis (Alternate) and John Eichholz (Alternate). Also present was Ann Brown, Zoning Enforcement Officer.
Chairman Risom called the Public Hearing to order at 7:32 p.m.
1. Special Permit Application/Coastal Site Plan Application to construct a structure in the Gateway Conservation Zone in excess of 4,000 square feet, 7 Town Landing Road, Steven A. and Barbara Gaudio, applicants.
Attorney Childress was present to represent the applicants Steven and Barbara Gaudio. He noted that the meeting was held open awaiting approval from the Wetlands Commission, which has been received. He explained that they have made some minor revisions to the plans to address concerns of the Wetlands Commission and neighbors.
Jane Marsh noted the following new Exhibits: Exhibit R, letter dated February 12, 2009 from Wendy Goodfriend; Exhibit S, copy of letter from Tom Metcalf, Consulting Engineer, dated February 27, 2009; Exhibit T, letter from Attorney Childress dated February 2, 2009; Exhibit V, letter from Ron Rose dated February , 2009; Exhibit W, letter from CT River Gateway Commission dated March 12, 2009; Exhibit X, Record of Vote from March 9, 2009; Exhibit Y Revised Drawings dated March 4, 2009; Exhibit Z Referral letter dated March 13, 2009 from Health; Exhibit AA, letter dated March 19, 2009 from Ron Rose Sanitarian; Exhibit BB, letter from Tom Metcalf dated March 17, 2009; Exhibit CC, transmittal letter dated 4-9-09; Exhibit DD, Copy of Inland Wetlands Approval Motion dated March 24, 2009; and Exhibit EE, Copy of
Wetlands Permit.
Peter Harkin, P.E., stated that they have submitted revised plans dated March 3, 2009, which address Tom Metcalf’s comments. He indicated that the plans were revised and a meeting was held with Mr. Metcalf to review the changes. Mr. Harkin stated that Mr. Metcalf subsequently issued a letter of approval. He noted that Mr. Rose and Mr. Downes also approved the revised plans. Mr. Harkin explained that most of the revisions were minor in nature and were of a clarification nature.
Mr. Risom questioned whether there were any open engineering issues. Mr. Harkin replied that there are not. He noted that they shifted the house location 25 feet to the south.
Jill Cartagena from Point One Architects, explained the revised landscaping, some based on comments from the Commission and some based on the new house location (marked Exhibit FF). She submitted photographs of neighboring properties (marked Exhibit GG). Mr. Johnson asked her to point out the solar panels, which she did. She noted that they submitted additional photographs that they did not show at the last meeting and these views are taken from across the river in Old Saybrook. Using these photographs she showed the new house location and demonstrated how the house would be less visible from the river.
Ms. Brown stated that the location of the garage is not changing so the distance between the house and the garage is larger. Ms. C indicated that that is correct.
No one present spoke in favor of the application. Attorney Thomas Cronan, on behalf of the Pattrell family, stated that he would like to address two principle areas of concern that his clients have about the application. He stated that his first concern relates to deed restrictions and he submitted an original certified copy of the deed (marked Exhibit II). Attorney Cronan stated that this deed is for Lot #9, the Gaudio property. He explained that this deed is a prior deed and noted that the application makes reference to this deed. Attorney Cronan stated that there is a subsequent deed to Barbara Gaudio in 2008 which states the restrictions to where buildings are to be located. He pointed out that the proposal is in violation of the deed restriction as to structure locations.
Attorney Cronan stated that when he first reviewed the file the site plan on file showed a different location for the house, which shows most of the house and detached garage in this no-build area. He indicated that he believes the revised plan pulls the house out of the no-build area, but not the garage.
Attorney Cronan stated that the Zoning Commission asks for deed restrictions on the application so one would assume that they would enforce them. He stated that the Regulations for Special Permit state that the application must meet the requirements for Site Plan approval. Attorney Cronan stated that there is record evidence that there is a deed restriction to protect views and he does not see how the Zoning Commission could say that property values are not being impacted if a deed restriction is violated.
Attorney Cronan submitted a brief that covers his points. He indicated that his other issue is the staggering amount of fill required to complete the project. Attorney Cronan stated that there are 1,600 cubic yards of fill which would cover an acre four or five feet deep. He indicated that 1,600 cubic yards is a lot of dirt. Attorney Cronan questioned why they are not required to submit a separate Special Permit under Section 15 of the Old Lyme Zoning Regulations. He noted that Section 15 refers to excavating, removal and depositing of material. Attorney Cronan stated that he reads Section 15 to say that one cannot excavate or deposit material without a Special Permit. He noted that he does not see anything in Section 15, Exemptions, that this project falls within. Attorney
Cronan explained that 15.3.1 excludes areas within the Conservation Zone; he noted that this property is located within the Conservation Zone. He noted that the property is also excluded because it is located within 1500 feet of a structure designed for human occupancy. Attorney Cronan stated that within the Conservation Zone deposit of fill is limited to 300 cubic yards. He indicated that he is not sure how 1,600 cubic yards of fill is being allowed on this property.
Ms. Cable stated that Section 15 allows for the deposit of reasonable amounts of fill for construction. Attorney Cronan stated that that section refers to projects for which a Zoning Permit has already been issued. He noted that it goes on to say that removal of up to 100 yards is allowed for a landscaping project. Ms. Cable stated that if a Zoning Permit is issued in the future, they will not be able to excavate or fill until that time. Attorney Cronan questioned whether it makes any sense that that is the purpose when the rest of the Regulation goes on to set limits such as 1,000 cubic yards maximum outside the Conservation District and a maximum of 300 cubic yards in the Conservation Zone. He indicated that the Regulation must be read in its entirety.
Attorney Cronan stated that the Regulations as they relate to Conservation Zones discuss maintaining the existing topography and goes on to say that one cannot deposit soil to create a level building surface. He noted that this is in Section 4.10.12.3(b) – structure shall be adapted to the existing terrain rather than building a platform. He noted that this is specific criteria for issuing a Special Permit. Attorney Cronan stated that if this is challenged and goes to the Superior Court, a Judge will look at whether this criterion has been met. He stated that to bring in fill to cover and acre of land four to five feet deep does not fall within the exceptions listed in Section 15.
Attorney Childress stated that the application requested waivers of some of the requirements, which the Commission has not acted on. He stated that the easement is not a Zoning issue and the Commission has no jurisdiction. Attorney Childress stated that Gateway is concerned with views from the river to the land and not the other way around. He stated that they don’t believe the deed restriction is valid and enforceable. Attorney Childress stated that they are aware there is a house behind the project and they have tried to respect that view. He stated that there is no prohibition in the deed that protects the view from landscaping and the view was obscured by very large trees. He submitted photographs of the property showing how the Gaudio’s have enlarged the
neighbor’s views. Ms. C explained the photographs, noting that the top pictures are from before and the bottom pictures show the property after clearing. Ms. Marsh stated that the neighbors might prefer the view of trees rather than a house. Attorney Childress stated that the Zoning Commission is not in the business of litigating views and rights. Ms. Cable questioned why Attorney Childress feels the deed restrictions are no longer valid. Attorney Childress replied that it is because they have not been enforced for a long time. He noted that there have been numerous instances over the years where the deed restrictions have been ignored.
Attorney Cronan stated that 15.2.1 allows fill for projects that have received a Zoning Permit. He noted that no fill will be brought onto the property until the Zoning Commission issues an approval and Ms. Brown issues a Zoning Permit.
Peter Harkin stated that he explained at the opening of the Public Hearing back in February that the amount of fill is required to meet the minimum Public Health Code for the septic system. He noted that the fill is also required to meet the FEMA requirements for the elevation of the house. Mr. Harkin explained that some of the Wetland Commission members wanted the site even higher. Mr. Johnson questioned the current elevation of the site. Mr. Harkin replied that the center of the site is currently at Elevation 9. He explained that they are putting two feet of fill under the foundation which will put the crawl space at Elevation 11.
Ms. Brown stated that the Commission does not have a copy of the approval from the State Health Department for the septic system. She questioned whether the applicant could provide that. Mr. Harkin replied that he could not as Ron Rose, Sanitarian, met with Bob Scully. Ms. Brown questioned whether Mr. Harkin has seen an approval from the State Health Department and he replied that he has not.
Mr. Johnson questioned the size of the parcel. Mr. Harkin replied that it is 3.46 acres. Mr. Johnson questioned how much of the land would be covered with the fill. Mr. Harkin replied that they are moving dirt from the front to the back across 1.6 acres and adding the 1,600 cubic yards of fill, but not necessarily across the whole area.
Attorney Childress stated that most of the Special Permit requirements do not apply to an application to construct a dwelling in the Gateway Zone in excess of 4,000 square feet, so they are asking for waivers of all Sections not included in the application materials.
Attorney Cronan stated that if the Commission is not going to address deed restrictions when reviewing an application then they should change their application form to eliminate this requirement. He indicated that he is very familiar with FEMA Regulations and noted that fill has nothing to do with FEMA Regulations. Attorney Cronan noted that many homes are constructed on stilts to meet FEMA Regulations. He stated that what is being presented is that the applicant wants to build this house on this lot and it has nothing to do with FEMA requiring the amount of fill.
Hearing no further comments, Chairman Risom asked for a motion to close this Public Hearing.
A motion was made by Jane Cable, seconded by John Johnson and voted unanimously to close the Public Hearing for the Special Permit/Coastal Site Plan Application to construct a structure in the Gateway Conservation Zone in excess of 4,000 square feet, 7 Town Landing Road, Steven A. and Barbara Gaudio, applicants.
2. Petition to Amend the Old Lyme Zoning Regulations to create a new Section 5.14, School District (SD) as a new Zone, Regional School District 18, applicant. Petition includes amendments to Schedule B-2 to incorporate the various bulk requirements of the new Zone.
Attorney Ken Slater and John Rhodes, Direction of Facilities for Regional School District 18, were present to represent the applicant.
Ms. Marsh read the legal ad as published in The New London Day on Tuesday, March 31, 2009 and Tuesday, April 7, 2009.
Attorney Slater stated that he and John Rhodes will present for this Public Hearing and the next Public Hearing which requests that the High School Campus property be rezoned. He explained that the high school renovation project is well under way and the School District had to get a variance from the Zoning Board of Appeals for the new track because of a very unusual zoning district situation on the parcel. Attorney Slater referred to the site plan and noted that the property is divided into three Zones, R-15, R-40 and RU-80. He noted that because of that there are separate calculations that must be performed for each Zone even though it is one parcel, one campus. Attorney Slater noted that the Zoning Board of Appeals suggested that the School District have this rectified. He noted that after
reviewing the three options informally with the Zoning Commission, it was decided that creating a School District was the best route.
Attorney Slater stated that schools are allowed by Special Permit in residential districts. He noted that Mark Branse provided comments to the initial version and the text was rewritten to more closely meet the format of the comprehensive zoning revisions done last year by this Commission. He explained that the Commission retains the same level of review that they currently have as a Special Permit is still required. Attorney Slater stated that the Regulation refers to the type of accessory structures that are more typical for a school and it changes the bulk requirements to make sense for the whole site. He noted that all the Statutory referrals were made. Attorney Slater stated that they received a favorable report from the Planning Commission with a comment that the setbacks should
be increased five feet to meet the RU-80 bulk requirements. Attorney Slater stated that they incorporated this comment before the application was advertised and the Town Attorney was in agreement with the change. He noted that they also received favorable reviews from the Gateway Commission, CRERPA and OLISP. He noted that there was a request that the Regulations contain some references to other sections of the regulations and this also was incorporated with agreement from Attorney Knapp.
Attorney Slater stated that there is a little finger of land that goes through the center of the property which was never conveyed to the School District and remains in ownership of the Town of Old Lyme. He indicated that the Zoning Commission Attorney Mark Branse has suggested that the Town’s consent be received to change the Zoning District for this small finger of land. He explained that he is assuming that the land will be transferred to the school district, but in order to not slow this process, the Board of Selectmen met and consented to changing the land to the new School District.
Mr. Kiritsis questioned the setback on Line 10 of Schedule B-2. Attorney Slater stated that the current RU-80 requirement is 35’ and he chose 35’ to keep it consistent with the current requirements. He noted that a Special Permit is required and he does not envision the Zoning Commission letting them build a structure within 50’ of a residential structure, much less 35 feet.
Ms. Marsh stated that she thinks they should spell out the accrediting agencies. Mr. Rhodes indicated that that would be very difficult to do because there are many different accrediting agencies because this zone is not specifically for public schools. Ms. Marsh questioned the difference between Academy and School and suggested that if it cannot be differentiated then Academy should be eliminated. She suggested that accredited be removed if it cannot be defined. Mr. Johnson stated that he feels that would create even more problems.
Ms. Marsh stated that 5.14.4 mentions the word stadium and she would like that removed if it is not there for a reason. She noted that there is a word missing on the next page. Attorney Slater stated that “shielding in such” should be removed. Referring to lighting, Ms. Marsh stated that residences should be changed to property line or something similar. Ms. Brown noted that the Regulations prohibit trespass lighting beyond the property line. It was suggested that “a” be eliminated. Referring to “b”, Ms. Marsh stated that 35’ does not mean anything for a lighting setback if the lamp is high in the air. Mr. Risom stated that earlier in the lighting section it notes that all other lighting requirements of the Regulations must be
met.
Terry Holcombe of 73 Lyme Street, stated that he understands the differences with respect to the landscaping. He asked for the same explanation as it relates to lighting. Attorney Slater stated that the parking lot lighting will have to be shielded, but athletic lighting cannot be shielded and it is a possible use for a school. He stated that that is why the requirement was written to be less restrictive than other lighting, but still must go through the Special Permit review process. He noted that the school does not have any plans for athletic lighting.
Hearing no further comments, Chairman Risom asked for a motion to close this Public Hearing.
A motion was made by Jane Cable, seconded by Pat Looney and voted unanimously to close the Public Hearing on the Petition to amend the Old Lyme Zoning Regulations to create a new Section 5.14 School District (SD), Regional School District 18, applicant.
3. Petition to amend the Old Lyme Zoning Map to apply the new School District (SD) zone to the property containing the Old Lyme High School
Campus, Lyme Street, Regional School District 18, applicant.
Ms. Marsh read the legal ad as published in The New London Day on Tuesday, March 31, 2009 and Tuesday, April 7, 2009.
Attorney Ken Slater and John Rhodes, Direction of Facilities for Regional School District 18, were present to represent the applicant. Attorney Slater explained
Chairman Risom questioned whether it is a conflict to hear an application for a zone change to a zone that does not exist. Ms. Brown pointed out that the Commission agreed to hear them both the same evening.
Attorney Slater stated that there is the presumption that by the time this application is acted upon by the Commission that the School District will exist. He noted that he raised this point earlier. Attorney Slater explained that the application speaks for itself and noted that they are requesting that the entire campus be changed to the new School District. He noted that the strip of land owned by the Town of Old Lyme has been included in this application. Attorney Slater stated that the Board of Selectmen has consented to this zone change.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Risom asked for a motion to close this Public Hearing.
A motion was made by Jane Cable, seconded by Pat Looney and voted unanimously to close the Public Hearing on the Petition to amend the Old Lyme Zoning Map to apply the new School District (SD) zone.
4. Special Permit Application to add dormer addition, 83 Shore Drive, Michael C. Brady, applicant.
Ms. Marsh read the legal ad as published in The New London Day on Tuesday, March 31, 2009 and Tuesday, April 27, 2009. She also read the exhibit list for the record.
Mr. Looney recused himself and Ted Kiritsis was seated in his place.
Jerry Karpuska was present to represent the Michael Brady, who was also present. Mr. Karpuska stated that the proposed dormer is located in the front of the structure and it meets all current setback regulations. Mr. Karpuska stated that it is a small dormer, only four feet in height. He noted that the number of bedrooms was not changing. Mr. Karpuska stated that the added space will be used for storage.
Ms. Brown stated that the application is before the Commission because the property is nonconforming and it order to make any additions a Special Permit is required. Ms. Brown stated that all bulk requirements are met with this proposal. No one present spoke in favor of or against the application. Hearing no further comments, Chairman Risom asked for a motion to close this Public Hearing.
A motion was made by John Johnson, seconded by Jane Marsh and voted unanimously to close the Public Hearing on the Special Permit Application to add a dormer addition, 83 Shore Drive, Michael C. Brady, applicant.
5. Special Permit/Coastal Site Plan Application to permit renovations and changes to an existing single-family four bedroom dwelling, 92-1 Hillcrest Road, Richard and Kathleen Ramondetta, applicants.
Chairman Risom noted that Mr. Looney rejoined the Commission.
Ms. Marsh read the legal ad as published in The New London Day on Tuesday, March 31, 2009 and Tuesday, April 7, 2009. She also read the exhibit list for the record.
Gerri Deveaux, Architect was present to represent the applicants.
Ms. Deveaux stated that revised plans have been submitted in response to comments from the Commission’s engineer, Tom Metcalf. She indicated that the zoning analysis data has also been revised based on comments from Ann Brown. Ms. Deveaux explained that the property is located in Point ‘O Woods on the Point. She noted that this particular lot is irregularly shaped and consists of 11,759 square feet but lacks the required square of 75 feet. Ms. Deveaux presented and explained several photographs of the property and neighboring homes. She noted that there is an existing 25 foot right-of-way that allows them access. Ms. Deveaux pointed out the well on the survey map, and although it is on the neighbor’s property, it is a deeded use. She explained that they will be
keeping this water supply after the sewers/public water is installed.
Ms. Deveaux read the revised Statement of Use for the record. She submitted a copy of the year-round use determination for the record. Mr. Johnson questioned whether there is a basement. Ms. Deveaux indicated that it currently has and will have a crawl space.
Ms. Deveaux stated that the existing structure is one and one-half stories with an existing deck on the first floor. She noted that the renovations hope to improve the use of space on the second floor where there are currently two bedrooms with limited headroom, accessed by a non-code compliant spiral stairway. Ms. Deveaux stated that the revised site plan shows the proposed grading. She noted stated that they plan to demolish the existing structure and reconstruct it; the first floor will be the same with a little re-arrangement of space. Ms. Deveaux explained that the plan is to have conventional stairs to the second floor which will contain 3 bedrooms. She noted that the house will remain one and one-half stories. Ms. Deveaux stated that the proposal includes reconstructing the house
on the current footprint in order to respect the views of the neighbors. She presented and explained the architectural views, noting that the roof design is gambrel. Ms. Deveaux stated that the grade will remain largely the same, with the exception of the addition of approximately 3 feet to reduce the slope to the existing deck. She stated that they have slightly reduced the existing porch and plan to relocate the outside shower which is currently located on the side. Ms. Deveaux explained that the relocated shower will meet setbacks.
Ms. Deveaux stated that the height of the house will not exceed 24’ from the existing grade. She explained that the property received a variance in order to be subdivided and recognized as a legal lot. She noted that no additional nonconformities have been created by this proposal. Ms. Deveaux stated that they have also submitted a Coastal Site Plan Application.
Ms. Brown stated that the reason the applicant is before the Commission for a Special Permit is that the property is nonconforming as to shape and the house violates some setbacks. She noted that a variance is not required because the proposal does not increase the nonconformity.
Mr. Looney noted that there is quite a bit of floor area for the house to be considered one and one half stories. Ms. Brown stated that there was an error in the original Regulation Rewrite that improperly defined one and one half story. She explained that although it was corrected effective April 1, 2009, this application was submitted and received prior to April 1. Ms. Marsh stated that because this is a Special Permit and could be subject to the new regulation because that regulation was the Commission’s original intent, she questioned what the applicant would have to do to comply with the limitation of one and one half stories. Ms. Deveaux replied that one of the options she presented was to change the location of the house and but it changed many of the neighboring views. She noted
that this proposal has the least impact on the site and to the neighbors. Ms. Marsh stated that she is referring to the current location of the house with a limit of one and one half stories as currently defined. Ms. Deveaux stated that she would have to reduce the pitch of the roof and reconfigure the second floor which would create a more cramped area.
Ms. Deveaux noted that there is currently a shed/storage building on the property. She noted that they would like to remove this building and add a 12’ x 24’ accessory building. Ms. Deveaux stated that this new building would be in a different location and would encroach 2 feet into the setback, less than the 4 feet encroachment of the existing accessory building. Ms. Marsh questioned whether the new building is larger than the existing building. Ms. Deveaux replied that the proposed is larger. Ms. Marsh questioned the height of the accessory building. Ms. Deveaux replied that it will not exceed 12 feet in height.
No one present spoke in favor of or against the application. Hearing no further comments, Chairman Risom asked for a motion to close this Public Hearing.
A motion was made by Jane Cable, seconded by John Johnson and voted unanimously to close the Public Hearing on the Special Permit/Coastal Site Plan Application for changes to existing single-family four bedroom dwelling, 92-1 Hillcrest Road, Richard and Kathleen Ramondetta, applicants.
Chairman Risom adjourned the Public Hearing at 9:40 p.m.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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