OLD LYME ZONING COMMISSION
PUBLIC HEARING
Monday, January 10, 2011
The Old Lyme Zoning Commission held a Public Hearing on Monday, January 10, 2011, at 7:30 p.m. in the Auditorium of Memorial Town Hall. Those present and voting were: Jane Cable, Chairman, Tom Risom, Jane Marsh, Secretary and Pat Looney. Also present was Kim Barrows, Zoning Assistant.
Chairman Cable called the Public Hearingg to order at 7:33 p.m.
1. Permit Application to permit educational and/or office use (tutoring) on located at 19 Halls Road, Units 104 & 105, Chauhdry Habib Sultan d/b/a Tutelage, LLC, applicant.
Ms. Marsh read the legal notice for both Public Hearings, as published in the New London Day on Tuesday, December 28, 2010 and Tuesday, January 4, 2011, and the list of exhibits for the record.
Ms. Marsh read the conclusion of the Fire Marshal's letter, indicating that he supports the application as an educational facility, limited to 24 students, as long as an updated floor plan is provided.
Mr. Sultan stated that he has supplied a note indicating that he will comply with all the Fire Codes. Chairman Cable questioned whether he was willing to be classified as an educational facility. Mr. Looney pointed out that it is a 24 occupant load, including students and staff. Mr. Sultan agreed, noting that he has discussed this with the Fire Marshal.
Ms. Cable noted that the hours have been changed. Mr. Sultan replied the hours will be 10:00 a.m. to 8:00 p.m., six days a week.
Chairman Cable pointed out that they discussed the application at length at the December Meeting. She asked if there were any questions from the audience or the Commission. No one present spoke in favor of or against the application. Hearing no further comments, Chairman Cable asked for a motion to close the Public Hearing.
A motion was made by Pat Looney, seconded by Tom Risom and voted unanimously to close the Public Hearing on the application for 19 Halls Road, Units 104 & 105, Chauhdry Habib Sultan, applicant.
2. Special Permit Application to permit approval of an open-air summer pavilion constructed behind the existing dwelling on property located at 14 Walnut Road, Gregory and Kimberly Massicotte, applicants.
Ms. Marsh read the list of exhibits for the record, noting the legal notice was read earlier.
Attorney John Bennett was present to represent the applicant. He explained that the applicants are seeking a Special Permit for a pavilion that has already been located on their property at 14 Walnut Road. Attorney Bennett stated that he noted in his cover letter that they are seeking waivers as follows: Soil erosion and sedimentation plan, traffic impact report, water and sanitation report, storm drainage report, and fire protection report. He indicated that these reports are either irrelevant to this type of project or not necessary because the structure already exists.
Attorney Bennett stated the clients applied for and were granted a variance to construct the pavilion. He indicated that it was constructed as designed and approved. Attorney Bennett stated that the applicant was doing much of the work himself and in the process discovered ledge while trying to put in the posts. He then moved the structure 14 feet closer to his house. Attorney Bennett stated that the constructed location of the pavilion does not violate any Zoning setbacks or Codes. He explained that a neighbor brought the location issue to the Town and Ms. Brown issued a cease and desist on the sole issue that the pavilion was located 14 feet closer to the house; no work has been done since the cease and desist order was issued. Attorney Bennett stated that they applied to the Zoning
Board of Appeals for relief and were denied and have since appealed to the Superior Court. He pointed out that in the meantime the Zoning Regulations have been amended to allow this application as a Special Permit (Section 9.1.32).
Attorney Bennett stated that this application meets all the requirements of Section 9.1.3.2, including the Health Regulations. He asked that this application be considered a new application as there are no violations of the Zoning Regulations. Attorney Bennett stated that the pavilion is purely for the owner's recreational enjoyment.
Attorney Bennett stated that there is criteria for the application in Section 13B, as well as in Section 9.1.3.2. He noted that many of this criteria is not applicable to this project. Attorney Bennett submitted photographs of the pavilion/property for the record, which were marked as exhibits. He noted that it is an accessory to the primary residence. He pointed out that the use is typical for a backyard recreational area and noted that the neighboring property has a tent like structure used for the same purpose.
Attorney Bennett reviewed the other criteria, noting that most are not applicable, and submitted a paper addressing each, some of which he briefly addressed. He noted that the lighting plan presented to the Zoning Board of Appeals is inside the roofed structure and the illumination is down. He noted that the outside lights are not on the side toward the easterly neighbor; the ones that are outside are pointing down.
Attorney Bennett stated that there are comments about property values and he noted that this pavilion increases the property values of this home and surrounding homes. He pointed out that in the minutes of the second Zoning Board of Appeals hearing, seven or eight letters were submitted from neighbors with no negative comments. He noted that this Zoning Board of Appeals hearing was after the pavilion was constructed.
Attorney Bennett stated that the pavilion is in keeping with a typical use in a summer recreational community. The Commission reviewed the photographs of the existing pavilion that were submitted with the Zoning Board of Appeals application. It was noted that all the Commission members present visited the property with the exception of Jane Marsh.
Chairman Cable questioned the exterior lighting. Attorney Bennett stated that the exterior lighting is below the eaves of the pavilion roof. Mr. Massicotte stated that the lighting is under the eaves and is pointed down.
Mr. Massicotte stated that there are no dimensions from the house to pavilion on the original plan. He noted that he was most concerned with meeting setbacks which is why he saw no reason that he could not move the structure closer to his house while meeting all setbacks. Attorney Bennett stated that the structure conforms to the Regulations.
Chairman Cable stated that she got the impression from reading the Zoning Board of Appeals Minutes, that the existing structure is more permanent then they had envisioned; for example, they were not aware that the structure would have stone knee-walls and appliances. Attorney Bennett stated that in the application before the Commission this evening, including the counters, meets the Zoning Regulations. He noted that he believes the Zoning Board of Appeals did not remember the testimony from the original hearing. Attorney Bennett stated that he has a transcript, not an official transcript, but one they prepared from the recording, and the counters were mentioned. He noted that everything in the pavilion meets the Zoning Regulations. Attorney Bennett stated that none of this really matters as
they are before the Commission with a new application.
Mr. Risom pointed out that Section 9.1.3.2 was effective 4-1-09. Attorney Bennett noted that approval was received from the Zoning Board of Appeals in March 2009. He noted that they have suspended their appeal awaiting the outcome of this hearing. Attorney Bennett also explained that until the sewers were activated and they were connected, the applicant would not have had compliance to Health Code.
Mr. Looney stated that the pavilion is large, but it is built to the plans. He stated that he does not see any difference except for the location. Ms. Marsh questioned whether the applicant would be willing to supply a plan showing the type of light fixture and their locations. Mr. Massicotte indicated that he would.
Frances Callahan, 10 and 12 Walnut Road, stated that the Massicotte's have increased the value of their property both with the pavilion and repairing their property in general. He noted that they are very good, quiet neighbors and he is pleased.
Wayne Ashton, 32 Hillcrest Road, wanted to be on record as strongly in support of the pavilion. He noted that he lives eight houses away.
Attorney Matt Burger stated that he is representing the abutters to the east, the Burlingham's. Richard Burlingham stated that he and his wife live at 16 Walnut Road and have for over 30 years. He explained that when the proposal first started he received a set of plans from the Town, which he presented. Mr. Burlingham stated that the plans don't show built in appliances. He noted that the existing location has running water, two grills, a pizza oven; he indicated that it is like another room in their house. Mr. Burlingham stated that they have to sit in the front of their house when the Burlingham's are using the grills or oven; they use fans to keep it out of their house. He noted that this structure as constructed is right across from his existing deck. Mr. Burlingham
submitted a photograph of the pavilion by the Tennis Courts in Point 'O Woods which is the type of pavilion he thought they were constructing. Mrs. Burlingham stated that their pavilion is like a professional kitchen. She noted that the fumes are noxious and they use fans to keep the odors out of their home. Mrs. Burlingham stated that the lights are bright and were on all winter long. Mr. Burlingham stated that the lights were on on the shed, not the pavilion. Mrs. Burlingham stated that the homes are too close for this type of thing. She asked them to deny the application.
The Burlingham's submitted a photo of the smoke coming out of the grill. They submitted an additional seven photographs of the structure for the Commission's review. Attorney Burger stated that he first saw the plans and then visited the property. He stated that his first impression was that it is an exterior room to the house, noting that it is a full kitchen. He noted that the structure has a stone oven, two built-in gas grills, a stone counter top with a metal sink and water. Attorney Burger stated that two sides of the gazebo are stone. He noted that there is a considerable variance between what was approved by the Zoning Board of Appeals and what was constructed.
Attorney Burger noted that there is a considerable increase in impervious area. He stated that this is the only house in the neighborhood with a detached kitchen; he noted that if it is okay to put a kitchen outside, he can only imagine how many people with follow suit. Attorney Burger stated that the Regulations allow the Commission to consider the light and privacy of adjacent lots. He noted that the original proposal was further back and farther from his clients house where the soot and fumes would pass over their yard, not into their house.
Attorney Burger stated that this is an accessory kitchen outside the house and should be denied. He indicated that there is also excessive imperious surfaces. Attorney Burger stated that he would like them to consider the light and privacy issues facing his clients.
Attorney Bennett stated that the counters and built-ins were mentioned at the original Zoning Board of Appeals hearing. He noted that they would be allowed if they were grills on wheels with small counters that are now available. Attorney Bennett showed the photograph that depicted the smoke coming out of the oven pipe and noted that the smoke is not drifting toward the Burlingham's house. He noted that the separate terrace was approved under another permit and is allowable under the Zoning Regulations. Attorney Bennett explained that in the process of constructing the pavilion a survey revealed that the Burlingham's had constructed a portion of their driveway and landscaping on the Massicotte's property. He noted that he believes this is the motivation. Attorney Bennett stated
that the stories of horror heard this evening are not true. He stated that the Burlingham's have a deck upon which they can grill, as do all the other neighbors. Attorney Bennett stated that the odors are cooking odors.
Attorney Bennett reminded the Commission that this is a new application and it meets the Regulations. Ms. Marsh questioned if there was anything that could be done to mitigate the smoke and reduce the impact. Attorney Bennett stated that he does not believe there is an impact. He noted that they have screened it with bushes; they have gas grills and a gas fireplace, not charcoal or wood burning. Attorney Bennett stated that they have been trying to accommodate right along. He indicated that they would happily accommodate more if they could so they would be open to suggestions.
Mr. Looney stated that he noticed a 50 gallon propane tank in the photographs and noted that their placement is regulated by Zoning. Attorney Bennett stated that the propane tank is allowed to be within the setback as long as it is screened. He indicated that he would be happy to screen the tank, if required. Attorney Bennett stated that the tank is unconnected and not used at this time.
Hearing no further comments, Chairman Cable asked for a motion to close the Public Hearing.
A motion was made by Tom Risom, seconded by Pat Looney to and voted unanimously to close the Public Hearing for the Special Permit Application for an open-air summer pavilion constructed behind the existing dwelling on property at 14 Walnut Road, Gregory and Kimberly Massicotte, applicants.
The Meeting adjourned at 8:55 p.m. on a motion by Pat Looney; seconded by John Johnson and voted unanimously.
Respectfully submitted,
Susan J. Bartlett
Recording Secretary
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