OLD LYME ZONING COMMISSION
PUBLIC HEARING
Monday, March 14, 2011
The Old Lyme Zoning Commission held a Public Hearing on Monday, March 14, 2011, at 7:30 p.m. in the Auditorium of Memorial Town Hall. Those present and voting were: Jane Cable, Chairman John Johnson, Tom Risom, Jane Marsh, Secretary, Pat Looney, Ted Kiritis (Alternate) and Joan Bozek (Alternate). Also present was Ann Brown, Zoning Enforcement Officer and Eric Knapp, Commission Counsel.
Chairman Cable called the Public Hearing to order at 7:31 p.m.
1. South Lyme Property Owners Association Petition to Amend the Text of the Zoning Regulations, Section 11.19A.3 (List of South Lyme Property Owners Association).
Ms. Marsh read the legal notice for all the evening’s Public Hearings, as published in the New London Day on Tuesday, March 1, 2010 and Tuesday, March 8, 2011. She also read the list of exhibits for the record.
Ms. Brown noted that there was a typographical error in the Legal Notice and the agenda. She noted that the correct Section of the Zoning Regulations is 11.19A.4. Ms. Brown stated that many people have come to look at the file. Attorney Knapp stated that he and Attorney Branse discussed this earlier today when it was discovered and they found it not to be a material defect in the publication as it was clear that it was the list of South Lyme Property Owners Association.
Attorney Ken Slater was present representing the South Lyme Property Owners Association. He gave a brief background on the formation of the South Lyme Property Owners Association. Attorney Slater explained that in the early 1990’s the Zoning Enforcement Officer ordered that living in a seasonal property year round was in violation of the Old Lyme Zoning Regulations. He noted that several Superior Court decisions came out that said it was a single-family residential zone and the fact that the lot is too small does not result in an increase of any nonconforming use. Attorney Slater stated that in 1995 the Zoning Commission changed the zone to a seasonal residential zone so that year round use is illegal in the zone and the only way you would be eligible for year round use was by proving that
you were a legal nonconforming use and you had been previously occupying the property in the off season.
Attorney Slater stated that in addition to that there was a procedure put in place to document year round use and only documentary evidence was considered. He noted the school records, heating bills and the like were acceptable, but not testimonial evidence from neighbors. Attorney Slater stated that the association was then formed and legal action was taken at the State level. He noted that the suit involved whether the property owners had legal right to year round use and whether the process used to make this determination by the Town was constitutional. Attorney Slater stated that the case was removed to the Federal Court as allowed when constitutional issues are involved. He noted that the case went forward and the District Judge ruled that the procedure was in violation of constitutional
requirements. Attorney Slater stated that after that the parties entered into settlement discussions and in 2008 terms of the settlement were negotiation with the help of a Magistrate Judge. He noted there were a number of terms, including that a registration system be employed and that property owners of the South Lyme Association would qualify under the registration system as a nonconforming use.
Attorney Slater stated that the Registration Regulations were adopted and the deadline for applications was this past fall. He explained that in 2005 the membership list was provided to the Town during negotiations. Attorney Slater stated in 2008 it was made clear that the list was not complete and prior to the expiration of the application period this past fall, an updated list was provided to the Town. He noted that he was informed that the list was treated as part of the Regulations. Attorney Slater stated that there is a pending lawsuit in Superior Court in which they are seeking an injunction that it be ordered that the new list replace the old one. He noted that at the first appearance they agreed to file this application and report back to the Court.
Attorney Slater stated that the proposed list reflects the ownership and the property address. He noted that the nonconformity runs with the land. Attorney Slater stated that he has submitted into the record an affidavit regarding the list from Joe Russo, President of South Lyme Property Owners Association, which he read in part for the record.
Attorney Slater explained that they appeared before the Planning Commission. He noted that the Planning Commission was under the misimpression that new members were being added to the list. Attorney Slater stated that he suggested to them that they not make a recommendation which by Statutes would be a favorable recommendation and in that way would not affect the vote by the Zoning Commission regarding majority/super-majority.
Attorney Slater stated that his office tried to focus in on the changes between the two lists, showing address corrections, people that resigned and brand new addresses.
Attorney Eric Knapp stated that Attorney Slater made it clear that the list of 2008 was not the current list. He noted that the Commission used the best list they had at the time the Registry Regulation was adopted. Attorney Knapp stated that the settlement agreement did require that the complete list be made part of the Regulation. He explained that it is up to the Zoning Commission to determine if the proposed list is suitable and in keeping with the requirements of the settlement of the case. Attorney Knapp stated that he has no problem with the list in terms of the property owners’ names being changed due to sales and purchases. He indicated that he does not agree with adding new addresses in cases where property owners have moved and asked Attorney Slater if this is the case.
Attorney Slater stated that no new addresses have been added; he noted that the total number of properties on the list has not increased. He explained that they had 400 members at the time of the settlement and the parameters at that time were 400. Attorney Slater stated that under the Freedom of Information Act he asked for a copy of all the applications that indicated that they were a member of the South Lyme Property Owner’s Association and there were only 261 such applications, far fewer than the 400 noted in the settlement. He noted that the settlement was clear that if any of the South Lyme Property Owners Association members did not apply by the deadline they would lose their right.
Ms. Marsh questioned how the Commission would know that that was part of the settlement. Attorney Slater stated that it was part of the settlement and he just stated it for the record. He indicated that he communicated with the members directly and explained that exact point to them.
Attorney Knapp stated that there are many changes to the list, some appear to be typographical errors; he noted that Dimitri Tolchinski’s address changes from Shore Road to Purtil Avenue. Attorney Knapp stated that some of the people that resigned from the list have already been granted year round status. He stated that he is not sure how they can now go back and take away year round status because Statutes provide that the Regulations in place at the time an application is filed are applicable. Attorney Knapp stated that in cases where people moved and their new address was added, there will be two addresses given year round status when the intention was to give one year round status. Attorney Knapp pointed out an example of 15 Sea View. Attorney Slater stated that he stated in
2008 that the 2005 list was not the complete list and he is a little frustrated that year round status was provided to people on an incorrect list.
Attorney Slater stated that the list of resigned members includes people whose addresses were incorrect too. He noted that Dimitri Tolchinksi is shown as resigned for 266 Shore Road, but has been added to the list at 14 Purtil Avenue. Ms. Cable stated that #25 states Boggy Hole Road which is not in the R-10 Zone. Attorney Slater stated that there were some people who moved but retained their membership.
Attorney Slater stated that the actual membership list effective 2008 has 299 names on it. Ms. Cable stated that she is concerned there will be public confusion between the list in the Zoning Regulations and the one on file in the Town Clerk’s Office. Attorney Knapp stated that the final Registry List in the Land Records will have all the names of people who have been granted year round status. Attorney Knapp stated that the Commission can amend the Regulations in the future and remove the list, noting that it has been superseded by the Registry on file in the Land Records in the Town Clerk’s Office. He noted that this would alleviate public confusion.
Ms. Brown stated that it is very difficult to ascertain the changes to the list. She stated that she has a list provided a year or so ago and it shows payments by every single person on the list and their dates of payment. Ms. Brown submitted the list for the record. She noted that this list should alleviate concerns as to when people joined. Ms. Brown stated that she believes what has been presented to the Commission is an accurate list.
Attorney Adam Keller, representing several people, submitted a letter to the Commission for the record (Exhibit R). Attorney Keller stated that there has been a lot of reference to a settlement and he questioned whether there is a document that is available for public review. Attorney Keller stated that he has looked at both Town and Court records and cannot find any record of a settlement. He stated that he cannot find a Town Record where the Zoning Commission or the Board of Selectmen agreed to a settlement. He noted that there is no Court approval or Court order regarding any settlement. Attorney Keller stated that the public has a right to review the terms of the agreement. He stated that the Commission, in 2009, adopted Regulations that refer to the settlement, yet the document is
not available to be reviewed. He stated that he has also question what is means to be a “member in good standing” of the South Lyme Property Owners Association at the time the list was compiled. Attorney Keller stated that he thinks the Commission gave a private group the ability to decide who was going to have a very valuable privilege. He indicated that he does not understand how they can now add properties that were purchased after the settlement date by South Lyme Property Association Members. Attorney Keller stated that this certainly makes it a list of people, not properties. He stated that in 2009 the Commission went down a very dangerous path by granting a special privilege to 400 people when it might be better to decide what to do with the 2,000 properties in a way that is fair and equitable to all properties owners.
Attorney Keller pointed out that there is no judgment in the South Lyme Property Owner Associations lawsuit with the Town of Old Lyme; he noted that they may have been on their way to winning, but they didn’t win. He noted that a settlement is a private agreement between people, no different than people making an agreement with the First Selectman in the back room.
Attorney Keller stated that it makes more sense to have all 2,000 properties be regulated by the Health Department and Building Department to determine their year round suitability.
Attorney Keller stated that the original list indicated dates of payment which raises the question of members of good standing.
Attorney Knapp stated the creation of the regulation is not the subject of this application. He noted that the application to amend the list is the subject of the Application which is all that the Commission should discuss this evening. Attorney Knapp stated that there is litigation involving the Regulation and it will be dealt with at the appropriate time. Attorney Kelly stated that there is nothing that prohibits discussing the entire Regulation. He indicated that he asked that the list be amended to include all the properties in the R-10 zone that are nonconforming. Ms. Brown questioned whether Attorney Keller could provide a list of those properties. Attorney Keller stated that he believes the Town would have the list. Ms. Brown stated that the complete list of properties in
the R-10 Zone contains other than nonconforming properties.
Attorney Slater stated that Attorney Keller’s request is the same as asking to be a owner of IBM stock after it has split three times. He noted that Attorney Keller’s clients are not members of the Association. Attorney Slater stated that the members of the Association are nonconforming property owner’s who claimed year round use. He noted that the settlement does not have to be filed with the Court to be a valid settlement. Attorney Slater stated that the Association members are being treated differently because they filed a lawsuit and in Court proved their nonconforming, pre-existing use.
Hearing no further comments, Chairman Cable asked for a motion to adjourn.
A motion was made by John Johnson, seconded by Pat Looney to and voted unanimously to close the Public Hearing on the Petition to Amend the Old Lyme Zoning Regulations, South Lyme Property Owners Association, Applicants.
2. Special Permit/Municipal Coastal Site Plan Application to permit construction of a new 4 bedroom residence in the Gateway Zone in excess of 4,000 square feet; and a Special Permit Application for the existing house to be converted and used as a one bedroom accessory apartment on property located at 62 Buttonball Road, Alex and Patrice Romeo, applicants.
Ms. Marsh read the list of exhibits for the record, noting the legal notice was read earlier.
Ms. Collins explained that the owner currently lives on the property in the 720 square foot house which is located on a conforming lot. She noted that it contains one bedroom, a bathroom, a kitchen and a living room. Ms. Collins stated that the applicant is asking to keep this house as an accessory apartment and noted that it meets all requirements for an accessory apartment; two parking spaces will be provided.
Ms. Collins stated that the new main residence is before the Commission because it is over 4,000 square feet and is located in the Gateway Zone. Mr. Looney asked to review the house plans; he questioned the dimensions of the house and the detached structure. Ms. Collins stated that the wetlands setback is noted on the plan.
Ms. Collins stated that there is an appropriate area on the parcel to install a new septic system if the current septic system fails. She noted that this should be in the letter from the Sanitarian. Ms. Marsh indicated that there is a letter from the Sanitarian. She read the list of Exhibits for the record. Ms. Marsh read the letter from Marcy Balint, OLISP, in its entirety. Chairman Cable stated offered copies of the exhibits to anyone who would like to read them.
Ms. Collins indicated that she would like to review her letter to the Commission, as it addresses the comments of all the people who reviewed the proposal and provided comments.
Torrance Downes asked that the Site plan be modified to show the 100 foot tributary setback in addition to the tidal wetland setback, which she has done. He also asked that the vegetative buffer be shown and she has shaded the vegetative buffer. Ms. Collins stated that Mr. Downes also asked for clarification of the height. She noted that the renderings show that it is within 35’ height maximum from the existing grade.
Ms. Collins stated that the land is currently mowed down to the vegetative buffer area. Chairman Cable questioned whether they have submitted a landscaping plan. Ms. Collins replied that they have not, although they will be landscaping around the foundation. Chairman Cable stated that landscaping is critical to the final look of the house and also to preservation of the environment. Ms. Collins stated that in the winter the trees appear sparse, but in the summer there is a large green canopy. Ms. Marsh stated that she would like to see a plan that shows the existing trees. She noted that it is the Commissions job to maintain the existing trees or be sure they are replaced.
Mr. Looney questioned whether there is a plan showing the final grading. Ms. Collins explained the grading plan.
Mr. Risom stated that there are many small conversations going on. He suggested that they wait until the end of the presentation to ask questions so that everyone benefits from the answer.
Ms. Collins stated that a small portion of the property is located in Flood Zone A8. She noted that the house is located in Flood Zone C. She noted that the total ground coverage is 22 percent. Ms. Collins stated that they propose a gravel drive with a portion of it being paved. Ms. Cable questioned the purpose of the accessory apartment. Mr. Romeo stated that the intention is to rent the accessory apartment in the summer.
Mr. Risom stated that he was concerned about the drainage on the road, but after reviewing the plan he sees a drain that goes back toward the river. He noted that Lot A and B are served by a single well. Ms. Collins stated that the attorney is working on an easement.
Ms. Brown noted that when the Commission approves an accessory apartment they typically have an existing dwelling and an existing outbuilding. Ms. Bozek stated that this seems to comply with the revised Accessory Apartment Regulations.
Chairman Cable stated that the applicant still needs to submit an existing tree plan and a well easement. Mr. Looney indicated that he would like to keep the Public Hearing open to receive architectural plans.
Mrs. Romeo stated that this next month is critical to the timely completion of the house and asked that the Commission not continue the Public Hearing. Chairman Cable stated that she could make the first two items a condition of approval, but not reviewing the architectural plans would deprive each Commissioner of a chance to comment on the plans. She noted that this plan is an integral part of the application.
A motion was made by Pat Looney, seconded by John Johnson and voted unanimously to continue the Public Hearing for the Special Permit/Municipal Coastal Site Plan Application to permit construction of a new 4 bedroom residence in the Gateway Zone in excess of 4,000 square feet; and a Special Permit Application for the existing house to be converted and used as a one bedroom accessory apartment on property located at 62 Buttonball Road, Alex and Patrice Romeo, applicants, to the April 11, 2011 Regular Meeting.
3. Town of Old Lyme Petition to Amend the Zoning Regulations: Definition Section 3.71 Floor Area, plus other miscellaneous changes as shown in the text on file which correct omissions and typographical errors.
Ms. Brown stated that the Planning Commission has not yet provided comments so the Public Hearing for this item will have to be continued. Ms. Marsh read the exhibit list for the record.
A motion was made by Tom Risom, seconded by John Johnson and voted unanimously to continue the Public Hearing to the April 11, 2011 Regular Meeting on the Petition to Amend the Zoning Regulations by the Zoning Commission in order to obtain a referral response from the Planning Commission.
The Meeting adjourned at 9:51 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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