OLD LYME ZONING COMMISSION
REGULAR MEETING
Monday, October 10, 2012
The Old Lyme Zoning Commission held a Regular Meeting on Monday, October 10, 2012, at 7:30 p.m. in the Auditorium of Memorial Town Hall. Those present and voting Jane Cable, Chairman, Jane Marsh, Secretary, Tom Risom (Regular Member), Pat Looney (Regular Member), Ted Kiritsis (Alternate) and Harland Frazier (Alternate).
Also present: Ann Brown, Zoning Enforcement Officer and Attorney O’Brien, Zoning Commission Counsel.
Chairman Cable called the meeting to order at 7:32 p.m. She noted that the first item on the agenda involves resolving a lawsuit and must be done at a public meeting.
1. Discussion and action on approving settlement of Nicholas J. DiCorleto, Jr. vs. Town of Old Lyme Zoning Commission, United States District Court (3:11-CV-00281JHC) regarding the property located at 42 Breen Avenue in Old Lyme.
Attorney O’Brien stated that his firm was retained by the Town to handle the lawsuit, Nicholas J. DiCorleto, Jr. vs. Town of Old Lyme Zoning Commission. He explained that the terms of the settlement were explained in a letter to the Zoning Commission, which he recapped. Attorney O’Brien explained that the lawsuit claims that the Zoning Commission violated the Plaintiff’s procedural and due process rights in a number of ways. He stated that the Plaintiff’s application to the Zoning Commission was to demolish his home at 42 Breen Avenue and construct a new dwelling.
Attorney O’Brien explained that the Public Hearing began in September of 2010 and was continued several time to January, 2011 at which time new elevation drawings and calculations were submitted. He noted that the Zoning Commission approved the application subject to conditions, one of which was that the applicant submit proper house plans to the Zoning Enforcement Officer to confirm that the proposed dwelling was in compliance with all applicable Zoning Regulations prior to recording the Certificate of Decision on the Land Records. Attorney O’Brien noted that because the plans were never submitted, the Certificate of Decision and the mylar were never recorded. He explained that the Plaintiff subsequently filed this lawsuit.
Attorney O’Brien stated that there has been considerable discovery and many depositions in the matter. He explained that there was a settlement conference recently and in the course of these discussions Mr. DiCorleto indicated that he intended to seek a variance to build a structure in accordance with plans entitled “Modified St. Claire Design, and a Site Plan dated September 13, 2012. Attorney O’Brien stated that through his Counsel, Mr. DiCorleto stated that if he were to receive the variance and subsequent approval from the Zoning Commission to build the proposed dwelling he would dismiss the lawsuit with prejudice, without cost to any party. He explained that the variance application was submitted to and approved by the Zoning Board of Appeals and the notice of variance was recorded
on the land records today. Ms. Brown confirmed that the notice of variance was recorded.
Attorney O’Brien stated that at this time he is asking the Zoning Commission to approve the settlement, which will require the following steps:
1. Commission must approve the settlement at a public meeting.
2. Return to District Court to obtain approval of the proposed settlement by the Court, at which time the Plaintiff will file a stipulation for dismissal of the lawsuit with prejudice, without cost to either party.
Attorney Geraghty, Plaintiff’s Counsel, confirmed that Attorney O’Brien’s explanation of the case is accurate.
Mr. Looney noted that he has not seen a set of plans that meet the Regulations. He indicated that he is willing to stipulate to the request based on the Zoning Board of Appeals approval of the plans that were submitted to them.
Ms. Brown stated that the Zoning Board of Appeals variance application was for a dwelling that exceeded the 25 percent floor area ratio allowed by the Zoning Regulations. Chairman Cable asked whether there were any zoning issues that were not cured by the Zoning Board of Appeals variance. Ms. Brown replied that there are not. Ms. Marsh stated that the Special Permit from the Zoning Commission specifically states that the application meets all other Zoning Regulations. She noted that the Zoning Commission would be undercutting their own Regulations if they let every applicant go to the Zoning Board of Appeals for variances before coming to them for the Special Permit.
Attorney O’Brien read the proposed motion of approval of the settlement. Mr. Kiritsis stated that the end result is that the property is still not in compliance with the Zoning Regulations. Ms. Marsh stated that the Zoning Commission has not even seen the plans that the settlement is referring to. Ms. Brown stated that through this process, Eric Knapp has been consulted by Attorney Ryan and kept abreast of the details. She noted that Ms. Marsh’s comment is accurate, and she agrees with it. Ms. Brown stated that she is surprised that Eric Knapp did not bring that up. She noted that an application either complies with the Special Permit requirements or it does not. Mr. Looney noted that the Commission is not being asked to approve the Special Permit, but rather the
agreement that they can construct the Zoning Board of Appeals approved plans in settlement of the lawsuit. Mr. Risom stated that the Commission is not approving a set of plans, they are approving a settlement.
Mr. Kiritsis stated that he has a set of minutes from September 2010 and pointed out that he was not in attendance and questioned whether he was able to vote. Attorney O’Brien stated that the decision was made in 2011. Chairman Cable stated that he did not need to be in attendance as long he is familiar enough with the facts. Mr. Kiritsis stated that he is adequately informed and qualified to vote.
A motion was made by Tom Risom, seconded by Pat Looney and voted to accept the Settlement of Nicholas J. DiCorleto, Jr. vs. Town of Old Lyme Zoning Commission, United States District Court (3:11-CV-00281JHC) regarding the property located at 42 Breen Avenue in Old Lyme, as follows: “Subject to approval by the court, the Commission approve the proposed settlement by granting Nicholas J. DiCorleto, Jr. permission to demolish the existing structure located at 43 Breen Ave., Old Lyme and build a new dwelling in accordance with the September 18, 2012 decision of the town of Old Lyme Zoning Board of Appeals and the Site Plan and “Modified St. Clair Design” approved by the Town of Old Lyme Zoning Board of Appeals on September 18, 2012 and the Commission’s Decision dated
January 10, 2011.” Motion carried 3:2:0, with Jane Marsh and Ted Kiritsis voting against.
Chairman Cable recessed the Regular Meeting to conduct the Public Hearing at 7:59 p.m. The Regular Meeting reconvened at 9:23 p.m.
2. Special Permit Application and Municipal Coastal Site Plan Review Application to construct 9’x13’ rear entry on existing accessory structure on property in the Connecticut River Gateway Conservation Zone, where the structure is in excess of 4,000 square feet floor area at 5 Smiths Neck Road, Camille Chwalek, applicant.
Richard Slotzer, Builder and General Contractor, representing Camille Chwalek, who was also present. He noted that the proposal is to move a wall out 13 feet. Chairman Cable stated that they need to show that the addition cannot be seen from the Connecticut River. Mr. Slotzer presented a picture of where the wall is to be brought out. He noted that it cannot be seen from the Connecticut River. Ms. Chwalek noted that Torrance Downs indicated in his referral that it cannot be seen from the Connecticut River as existing structures on the property block it.
A motion was made by Jane Marsh, seconded by Tom Risom and voted unanimously that in compliance with Section 4.10.12.1 of the Zoning Regulations, a Request of an Exception to requiring a Special Permit for construction of a 9’x13’ rear entry on existing accessory structure on property, which is in the Connecticut River Gateway Conservation Zone is granted. The findings are that the proposed rear entry will not be visible from the Connecticut River due to the natural terrain and another structure between it and the river, so the applicant does not need to submit a Special Permit Application and the Special Permit Application will be withdrawn by applicant.
3. Petition to Amend the Old Lyme Zoning Regulations to allow in a Light Industrial District (LI-80) zone the constructing and operating of indoor recreational facilities. This would be a “Special Permit Use” under the provisions of Section 5.12.3 of the Zoning Regulations, Kasie Munson, 7 Duchess Drive and Patrick Pryor, 41 Jericho Drive, applicants.
The Commission agreed to table the decision on this matter to the November 14, 2012 Regular Meeting.
A motion was made by Pat Looney, seconded by Ted Kiritsis and voted unanimously to table the decision on the Petition to Amend the Zoning Regulations to the next meeting which is scheduled for Wednesday, November 14, 2012.
A motion was made by Tom Risom, seconded by Harlan Frazier and voted unanimously to modify the agenda to add the Special Permit Application to demolish existing structure and construct a new single family dwelling in accordance with Section 9.1.3.2 of the Zoning Regulations on property located at 14 Oak Road, Grampa Fred and the Girls, LLC, Applicants to Receive Application and Set Public Hearing and renumber the agenda.
4. Special Permit Application to demolish existing structure and construct a new single family dwelling in accordance with Section 9.1.3.2 of the Zoning Regulations on property located at 14 Oak Road, Grampa Fred and the Girls, LLC, applicants.
A motion was made by Tom Risom, seconded by Pat Looney and voted unanimously to receive the Special Permit Application for 14 Oak Road and set a Public Hearing for Wednesday, November 14, 2012.
5. Special Permit Application to construct a 3 car detached garage on property located at 18 Clifton Street, Lawrence and Judith Odishoo, property owner.
A motion to approve was made by Jane Marsh and seconded by Tom Risom, as follows:
Whereas, the Zoning Commission has received a for Special Permit Application dated September 5, 2012 for construction of a garage on a non-conforming lot, with list of abutters, Assessors Card, Deed; elevation drawings – front, left, right; foundation/floor plan; roof cross-section; truss drawing sketch. 11” x 17” copy of survey for proposed garage location for 18 Clifton Street Hawks Nest Beach Lawrence & Judith Odishoo Old Lyme, Connecticut dated 8-31-12 prepared by J L Surveying; and
Whereas, the Zoning Commission has held a duly noticed public hearing on October 10, 2012, and the Commission has had an opportunity to hear testimony from the public and from the applicant; and
Whereas, the proposed use is allowed by Special Permit under section 9.1.3.2 of the Old Lyme Zoning Regulations, the Commission finds that the applicant has provided sufficient evidence to demonstrate compliance with the technical provisions of this section:
1. the septic system is in compliance with the current Public Health Code without the use of any exceptions provided by such Code;
2. there is no new nonconformity, nor increase in any existing nonconformity, with respect to setback, coverage, and other Bulk requirements;
3. an A-2 Survey shall be provided in support of this application;
4. Height shall be 24’ from existing grade.
Whereas, the Commission has considered:
a. the density or intensity of the Lot and the surrounding area, including the area and topography of the Lot, its coverage by Buildings, the height and volume of such Buildings, the number of Dwelling Units or bedrooms, and the ratio of impervious surfaces;
b. the natural resources on the Lot and in the vicinity of the Lot which may be adversely impacted;
c. the access to the Lot, including whether access roads are public or private, their surface condition, width, grade, flood hazard, drainage, existing traffic volume, and suitability for increased traffic or population to be served;
d. Access to the existing or proposed Building(s) or Structure(s) on and Abutting the Lot for emergency vehicles and public safety personnel;
e. the character of the neighborhood, including the scale of other Buildings or Structures in the area, the streetscape, impact on marine or coastal vistas as viewed from public Streets or other public viewing areas;
f. the goals of the Connecticut Coastal Management Act, despite the exemption from such Act for Single Family Dwellings; and specifically including a consideration of the protection of the coastal resources on or adjacent to the site; and impacts to such coastal resources shall be found to be acceptable for the proposed application. Such review shall also include a recognition that many areas of the R-10 District are within coastal flood hazard areas and that the potential danger to life and property shall be reduced or minimized by the proposed application.
g. privacy, light, and air for the subject Lot and Abutting Lots;
h. increased effluent disposal volumes, the condition of the existing septic system on the Lot, and the impact on potential future repair or expansion of any such septic system; and
Whereas, the Commission finds that the applicant has provided sufficient evidence to demonstrate compliance with the technical provisions of Section 13A and Section 13B of the Regulations.
Whereas, the Commission finds that the applicant has demonstrated compliance with the General Standards of Section 13B, in particular that the proposed use, buildings and other structures and site development are designed and arranged as follows:
a. to achieve safety, comfort and convenience;
b. to conserve as much of the natural terrain and provide for vegetation on the site to the extent practical;
c. to be in architectural harmony with the surrounding area;
d. to protect nearby residential and preservation areas;
e. to show that reasonable consideration has been given to the matter of restoring and protecting the ecosystem and habitat of Long Island Sound and reducing the amount of hypoxia, pathogens, toxic contaminants and floatable debris therein; and
Whereas, the Zoning Commission has deliberated and considered the evidence presented at the hearing as well as the input of its staff and professional consultants; and
Whereas, the Zoning Commission has received comments from the Office of Long Island Sound Programs of the Department of Energy Environmental Protection, after submitting the application materials to them for review, and the Commission determines that the application and plans as they may be revised are consistent with the goals and policies of the Coastal Management Act;
Now, therefore be it resolved that the Old Lyme Zoning Commission grants approval a for Special Permit Application dated September 5, 2012 for construction of a garage on a non-conforming lot, elevation drawings – front, left, right; foundation/floor plan; roof cross-section; truss drawing sketch. 11” x 17” copy of survey for proposed garage location for 18 Clifton Street Hawks Nest Beach Lawrence & Judith Odishoo Old Lyme, Connecticut dated 8-31-12 prepared by J L Surveying.
Ms. Marsh read an exhibit, an email expressing concern that the second floor might contain rooms. The Commission agreed that they did not need to add a condition that limits the second floor to storage only.
So voted unanimously, 5:0.
6. Approval of Minutes
A motion was made by Jane Marsh, seconded by Pat Looney and voted unanimously to approve the Minutes of the Public Hearing and Regular Meeting of September 10, 2012 as submitted.
7. Any new or old business
None.
8. Correspondence
None.
9. Zoning Enforcement
a. Zoning Enforcement Report
Ms. Brown stated that she and Kim Barrows were given a tour of Finkledey. She stated that there is a berm around the perimeter and piles in different states of composition. She indicated that they were told that most of the materials come from the Town of Old Lyme and the Public Works Department is grateful to sort spoils that the Town of Old Lyme brings in. Ms. Brown stated that they have agreed to remove the junk vehicles. She indicated that they are in the process of investigating what the last approval was for Finkledey from the Town. Ms. Brown stated that the head of Public Works has already called her and told her how helpful it is that they can bring things there to be processed. She indicated that she is not sure that processing of dirt is allowed there.
Ms. Brown stated that Finkledey has indicated that they will begin cleaning up the site, especially in areas that can be seen from the road while Ms. Barrows researches the approvals.
Ms. Brown stated that she received a complaint that there was a woman living there in the building for security purposes and it was confirmed by Mr. Finkledey that there was at one point in time but she no longer is and will not again in the future.
Mr. Kiritsis questioned whether Ms. Brown visited the Pasqualini site. Ms. Brown stated that there is a big dirt pile at the Pasqualini site but it does not appear to be active. Chairman Cable questioned whether these dirt piles should be covered or have a silt fence around them. Ms. Brown stated that she does not believe there is any run-off. She indicated that she will have to research the approvals on the Pasqualini site and have a meeting with Mr. Pasqualini.
b. Site Inspection Report
None.
Addressing the settlement, Ms. Marsh stated that she is aware that when the Zoning Commission adopted 9.1.3.1 they did not want to take ZBA powers. Ms. Brown stated that in the R-10 district, if everything is met, an applicant can come to the Zoning Commission, and if they do not, they go to the Zoning Board of Appeals. Ms. Brown stated that a requirement of a Special Permit cannot be varied. She indicated that she will discuss this with Attorney Branse.
9. Miscellaneous/Adjourn
The meeting adjourned at 10:03 p.m. on a motion by Pat Looney; seconded by Ted Kiritsis and voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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