TOWN OF WILLINGTON
ZONING BOARD OF APPEALS
MINUTES
April 8, 2004
PUBLIC HEARINGS:
1. File 2004-02 – Application for a variance to construct a detached garage at 43 Laurel Dr. (Map 53, Lot 20-46, R80) Owner/Applicant: Dana J. Woods (Received 3/11/04; Hearing 4/8/04; Decision by 6/10/04)
Hearing opened at 7:30 p.m. Present for meeting were members: R. Maloney, N. Wilson, T. Smith, P. Wright, A. Poole seated for C. Deskus. Also present was applicant Dana Woods.
A site walk was held on 3/20/04 at 1:30 p.m. Present for site walk T. Smith, A. Poole, N. Wilson and D. Woods.
[Mr. Donald Brown a newly appointed alternate arrived at 7:33 p.m.]
D. Woods explained that his house is on a corner lot and that it is situated in such a way as to essentially have three front yards according to Section 8 of the zoning regulations. Mr. Woods is requesting a variance of Section 4.05 of the zoning regulations to place the garage in the front yard.
N. Wilson explained the regulations regarding front yards.
No one was present to speak either for or against the application
Closed hearing at 7:36 p.m.
REGULAR MEETING:
Members present: R. Maloney, N. Wilson, T. Smith, P. Wright, A. Poole seated for C. Deskus,
D. Brown alternate was welcomed by R. Maloney.
CALL TO ORDER: Opened at 7:38 p.m.
OLD BUSINESS:
1. File 2004-01 – Application for a variance for a business at 93 Latham Road. (Map 4, Lot 13, R80) Owner: Betty Cydylo, Applicant: Roland Savoir.
Seated for the decision are members R. Maloney, N. Wilson, T. Smith, P. Wright and A. Poole seated for C. Deskus.
N. Wilson made a motion to discuss the application pertaining to the lot. P. Wright seconded the motion. Vote: all in favor.
N. Wilson stated that the lot was a 30 acre farm lot. The land use in the zoning regulations state that there is only one principle use per lot, therefore, Mr. Wilson wanted to know if section 4.22 would have to be varied?
R. Maloney stated that hypothetically if the board was inclined to grant a variance they could vary that regulation of the one principle use.
N. Wilson also wanted to know that in any future subdivision plans would void any hypothetically approved variance? R. Maloney stated that nothing would void the variance other than coming back to the board and amending it, the variance goes to the deed. N. Wilson wanted to know if a condition could be added that voided the variance if a subdivision was applied for in the future. R. Maloney stated you couldn’t sunset a variance, it might have been done with a home occupancy because it would have to be renewed every year but once the variance goes on the deed it’s there forever.
T. Smith stated that he is sympathetic to what the applicant wanted to do and their attorney’s presentation. The way T. Smith sees it the board is prohibited from issuing a variance allowing a use that is not zoned for what the applicant wants to use it for. Mr. Smith referenced section 21.01.03 when he explained that according to the general statutes “the board is hereby prohibited from approving a variance which has the effect of permitting a use in a zone that is not permitted by these regulations”. Mr. Smith stated that it was very clear to him what that means and that if you go back to the statute, the statute gives the Town and their regulations the authority to make those regulations. In other words, some towns may not have such a stringent regulation, some towns may allow a
variance like this, Willington has chosen not to allow the ZBA to issue a variance allowing a use if it is not zoned properly.
R. Maloney asked T. Smith if councils argument that the use is prohibited because you have a home occupancy process to go through, which would be section 11.01, and that was councils argument that it is permitted under the home occupancy therefore you can grant it under your variance?
P. Wright stated that her interpretation of 21.01.03 is if it’s not allowed anywhere in the zoning regulations such as a grave yard or crematorium it was not allowed. R. Maloney said that council argued that it is allowed because you have a home occupancy use and you have to go further than that because the other use for a machine shop would be designed industrial use you could then apply to the home occupancy.
T. Smith said he did not believe that was the way the regulations were intended to not allow certain uses in certain zones. The home occupancy section was another avenue for people to take.
R. Maloney felt that weaving the zoning regs in such a convoluted manner as to go all they way through and grab that use and then move it to another zone would then affect the comprehensive plan of the town.
T. Smith felt that the regulations prohibits the board from zoning as they see fit. People coming before the board and saying they would like to put something here or there, that’s a planning and zoning board issue. If someone wants a zone change they need to go planning and zoning, which in effect is what this issue is.
R. Maloney referred back to Mr. Gary Jones’ memo of 2/23/04 to bolster T. Smith’s argument. Mr. Jones stated that although the home occupancy is allowed in zoning it is going to affect the comprehensive plan of the town in that every commercial business is then going to come to the board for this path that has been now constructed and pull from designed industrial home occupancy uses throughout the Town. That is R. Maloney’s concern and asked P. Wright to address that issue.
P. Wright stated that had this been a home occupancy application she didn’t see where you could not grant it.
T. Smith agreed that was a PZC function.
P. Wright said that she did not feel the board needed to go that route when a change of approach of occupancy would solve the problem and take the decision out of ZBA’s hands and put it into the PZC’s.
R. Maloney agreed and also said that the problem with a variance is, as Mr. Wilson described, it goes to the deed and we can’t change that, with a home occupancy use you have to come back year and renew.
P. Wright said that in that way you would not have every industrial business saying that the board established a precedence in this particular case so therefore the board would be discriminating against every other industrial business if the board doesn’t then use the same path.
R. Maloney explained that if you then define that path for the town residents that being you can come to the board for a home occupancy variance and grab a design industrial use to put in your back yard. Once that path is established it affects the comprehensive plan of the town.
Everyone agreed that the applicants needed help and the board was deeply committed to assisting them. They felt the applicants had been part of the Town for a very long time and that another approach would affect the same results, that being Mr. Savoir may want to live in that home in some capacity and go to the home occupancy use. Ms. Wright agreed. They were not sure how that would happen, they felt the applicant would have to go back and figure it out.
P. Wright felt there was a huge opportunity if the right steps were taken. She explained that going before the ZBA was the hardest way to try to get approval because the applicant would be setting a precedent and it is a precedent she felt the town would want. The home occupation approach would seem to be the path of least resistance. Ms. Wright also stated that she would be glad to help in anyway she could as a fellow town resident.
T. Smith referenced an application for Cedar Ridge apartments where they wanted to put an office in a storage room and the chairman at that time sited the very issues that the ZBA is unable to grant a variance in a non-conforming lot. This use was prohibited in this zone by the regulations unless it were a home occupation.
N. Wilson referred to Atty. Branse’s letter suggesting that it is within the ZBAs power to act on this.
R. Maloney stated that the ZBA has such great discretion to act but what we have to take into consideration is the Comprehensive Plan. He goes back to section 21.01.03, does this affect the Comprehensive Plan, are we going to set precedence so that this is going to be a path for all residential home owners in this town that they will be able to grab design industrial uses and apply them to residential lots. He would have to argue yes, it would be and if we have other applicants then come at us and say, “Look I am going to put a cell tower in my back yard, and I am going to put a waste furnace or whatever the design industrial use permits the board would have to give it due consideration.
P. Wright stated that after listening to the presentation and attorneys and all the different approaches they have all come to the conclusion what the impact this could potentially have but that she felt it could be done.
R. Maloney said that if it was done under the auspices of home occupancy he was much more comfortable with applicants going forward in that direction because it doesn’t go on the deed and when the ownership is transferred it doesn’t continue. The home occupancy goes with that use specifically year by year.
A. Poole stated that was what her issue was, there is no basis for a home occupancy
right now.
T. Smith moved that we deny application 2004-01 for a variance at 93 Latham Road due to the fact that the board is constrained by Willington zoning regulations 21.01.03. R. Maloney seconded. No discussion. Vote: Yea – R. Maloney, P. Wright, T. Smith, A. Poole. Nay – N. Wilson. Application 2004-01 is denied.
R. Maloney took this time to welcome Donald Brown to the Board and introduce him to the other members.
2. File 2004-02 – Application for a variance to construct a detached garage at 43 Laurel Dr.
P. Wright made a motion to approve the variance. N. Wilson seconded.
R. Maloney asked that the motion site the hardship of the application.
Discussion was that the house is pretty much surrounded by the road. The road establishes the front of the property, not necessarily the front of the house, the front of the property, thus eliminating quite a bit of his property as side, rear or other side property. Because of the configuration of the road wrapping around his property, the well situated on one side and the septic on one side. It was agreed that the hardship was attributed to section 4.05. The zoning office had told Mr. Woods that technically he had three front yards. Ms. Wright then explained how the front yard designation works as explained to her by the Assistant Zoning Officer Gary Jones.
R. Maloney stated there were a couple of motions. One to approve variance and one was to amend the application to represent exactly what the board is going to vary which is section 4.05, buildings in front or rear yards not section 8.
Vote: All in favor. Motion carries.
MINUTES:
R. Maloney stated that there was a question in the selectmans meeting about the March 11, 2004 minutes. Mr. Patton was wondering if R. Maloney had had a discussion with Mr. Eldredge about the letter R. Maloney wrote to Ms. Yorgensen about the enforcement of the zoning regulations. In answer to that question Mr. Maloney stated no, he never had a conversation with Mr. Eldredge and Mr. Maloney wanted it to be reflective in this set of minutes. He did speak with Mr. Blessington about the letter but the only conversation he had was one sided, he told Mr. Blessington he was concerned and he referred Mr. Maloney to the chairman of the zoning board, Mr. Radell who Mr. Maloney spoke to about the issue. So in essence Mr. Maloney did not go into any detail with Mr. Blessington
about the issue he simply referred Mr. Maloney to the chair of the zoning commission.
Two corrections to 2/12/04 minutes were made by members. On page 2 under #3, 5th paragraph T. Smith added that the conversations with zoning and assistant zoning agents were concerning procedural matters. He also clarified that under old business file 2003-22, 3rd paragraph….Discussion concerning hardship regarding position of pond, septic and right-of-way… Mr. Smith wanted to add “that the structured emits smoke from a chimney”.
On page 4 of March 11, 2004 minutes 2nd paragraph, …property to seed… should be see. And 4th paragraph should come after 5th paragraph.
CORRESPONDENCE:
NEW BUSINESS:
DISCUSSION:
A motion was made to table discussion about retaining Attorney Branse as the ZBA attorney until next meeting. T. Smith moved to table discussion, R. Maloney seconded. Vote: All in favor.
ADJOURNMENT:
Motion made by T. Smith to adjourn meeting, seconded by R. Maloney.
Vote: All in favor. Meeting adjourned at 8:30 p.m.
Respectfully submitted,
Andrea Jordan, Clerk for ZBA
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