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Zoning Board of Appeals Minutes 01/17/2007






APPROVED


OLD LYME ZONING BOARD OF APPEALS
SPECIAL MEETING
WEDNESDAY, JANUARY 17, 2007


The Old Lyme Zoning Board of Appeals met on Wednesday, January 17, 2007 at 7:30 p.m. at the Old Lyme Memorial Town Hall.  Those present and voting were Susanne Stutts (Chairman), Richard Moll, Kip Kotzan, Joseph St. Germain (Alternate) and Judy McQuade (Alternate).

Chairman Stutts called the meeting to order at 7:30 p.m. and noted that Mr. St. Germain and Ms. McQuade would be voting alternates this evening.

ITEM 1: Open Voting Session

Case 07-03 Judith Iovanna, 28 Lone Pine Trail, Appeal

Chairman Stutts noted that the discussion on this item was tabled from the January 9, 2007 Regular Meeting.  She reviewed the facts of the case, noting that the applicant applied for and received a Zoning Compliance Permit to construct a new home and after construction began it was discovered that part of the dwelling did not meet the narrow road setback and the ZEO issued a Cease and Desist Order.  Chairman Stutts stated that the Board is being asked whether the ZEO erred in revoking the Zoning Permit and issuing the Cease and Desist.

Mr. Kotzan stated that an error was made and recognized and in that situation the ZEO has the responsibility to issue a Cease and Desist.  He noted that the issue of estoppel came up and the letter from Attorney Royston indicates that estoppel is not to be determined by the Zoning Board of Appeals.  Chairman Stutts stated that the Board table discussion on this matter to get advice from their counsel.  She noted that Attorney Royston indicates that the Supreme Court has held that it is not the function of the ZBA to consider matters such as estoppel in determining whether a variance should be granted.  She noted that he further states that the Board’s powers are restricted to that provided by the Zoning Ordinance in accordance with legislative or statutory enactment.

Mr. St. Germain noted that the ZEO made an error in determining the setback and once the error was discovered she had to abide by the Regulations and issue the Cease and Desist.  Ms. McQuade agreed, noting that Ms. Brown had both the right and the duty to issue the Cease and Desist.

Mr. Moll stated that the attorney presenting the appeal stated that estoppel was the issue.  He stated that Attorney Royston indicates that the ZBA should not consider matters such as estoppel.

Mr. Kotzan stated that the applicant has requested a variance and also has the option of the Courts to seek restitution.

A motion was made by Kip Kotzan, seconded by Richard Moll and voted unanimously to uphold the Zoning Enforcement Officer in her issuance of a Cease and Desist Order and Revocation of Permit, 28 Lone Pine Trail, Judith Iovanna, applicant.

Reasons:

1.      The Zoning Officer did not make an error in interpreting the Regulations.
2.      The Zoning Officer made an unfortunate mistake in issuing the Zoning Compliance Permit.

ITEM 2: Public Hearing Case 06-45 Mark & Maryellen Phelan, 77 Sea Spray Road, variance to allow the construction of a dormer.

Attorney Bennet was present to represent the applicants.  He noted that the Phelan’s were not able to attend this evening because of a prior obligation.  Attorney Bennet stated that he presented an appeal of the ZEO’s denial to allow the construction of a dormer at the January 9, 2007 Regular Meeting and at that time he noted that that action was to preserve his client’s rights.  Attorney Bennet noted that this evening they are requesting a variance.  

Attorney Bennet explained that in March 2006 the Board was asked to consider the circumstances of this property and a similar project.  He noted that this evening’s application is different in that they are seeking a variance from only one Regulation.  Attorney Bennet noted that the proposal before the Board is to add a second floor dormer on the south side of the house to accommodate a second floor bedroom and a small dormer on the north side to provide headroom over a proposed set of stairs.  He explained that the house currently has four bedrooms and will have only four bedrooms after the reconstruction.

Attorney Bennet stated that the single variance sought is from Section 8.9.3, no additions on a nonconforming lot.  He noted that the lot is undersized and does not meet the required square.  Attorney Bennet noted that these are pre-existing nonconformities which go back to the 1930’s when this subdivision was undertaken.  Attorney Bennet noted that there are also existing nonconformities to setback.  He stated that all proposed work conforms to the Regulations; floor area ratio and setbacks.  Attorney Bennet stated Jeff Flower, architect, will go over the plans.

Attorney Bennet stated that the Health Department has indicated their approval.  He presented the photographs of the existing structure.  Attorney Bennet stated that when considering a variance, the Board must consider the impact on the neighborhood.  He explained that the significant difference from the last proposal is that the Phelan’s have gained new land area.  Attorney Bennet stated that he always believed the title was justifiable right up to the wall but in order to rule out any question, they received a quit-claim deed from the Association.  He stated that the new deed is in the file.  Mr. Kotzan questioned whether the percentages shown take this new land area into consideration.  Attorney Bennet indicated that they do.  He explained that the property is 5,948.92 square feet according to the A-2 Survey before the Board; the lot coverage is 20.3 percent; and the floor area ration is 24.92 percent proposed.  Attorney Bennet noted that the maximum floor area allowed is 25 percent.

Attorney Bennet stated that in order to get the quit-claim deed, the Phelan’s went to the Association.  He explained that he attended the meeting of the Association where the vote of 150 people in the room was unanimous, knowing that the reason was the Phelan’s wanted to request this addition from the Zoning Board of Appeals.  Mr. Moll noted that the Beach Association members still have the right-of-way to walk across the top of the seawall.  Attorney Bennet acknowledged that that is correct.

Attorney Bennet stated that the proposed dormers will have no impact on property values in the area.  He submitted photographs of the other homes along the beach and in the neighborhood, noting that many of them have dormers or second floors.  Attorney Bennet acknowledged that there are also single-story homes.  

Attorney Bennet stated submitted a paper with information on other homes in the neighborhood, giving addresses, lot sizes, living area and floor area ratios with an average total.  He noted that this reflects that the Phelan’s lot is larger than the average lot and the living area is almost exactly the average.

Attorney Bennet stated that this is a procedural variance.  He noted that the additions are conforming and do not impact the zoning scheme.  Attorney Bennet stated that the height is only being increased 12” above the current ridge.

Attorney Bennet stated that the hardship is the configuration of the property as it is a long pre-existing lot.  He noted that the impact of the Regulations lead to exceptional difficulty or unusual hardship.  Attorney Bennet stated that the retaining wall cuts into the lot.  He indicated that it is an anomaly to have a Regulation that sets standards that are conformed with and yet another Regulation prohibits expansion because the lot is substandard.  He stated that a variance is a balance between the interests of the owner and the interests of the community.  Attorney Bennet stated that nothing is being taken from the community with this proposal.

Jeff Flower, architect, stated there are a few differences in the proposed addition from the last application.  He noted that the bathroom has been relocated and the stairs, which require the dormer on the north side, have been pulled in.  Mr. Flower stated that the stairs are steeper and the dormer has been brought down lower so that the wall now meets the setback.  He noted that the proposed square footage addition has been reduced to 343 square feet.   Mr. Flower stated that he and Ms. Brown reviewed the application together and agreed upon what areas of the home would be considered living area.

Mr. Moll questioned when the house was constructed.  Attorney Bennet replied that it was existing in 1965 and he believes it goes back to the 1940’s.  He noted that the Phelan’s purchased the property in June of 2000.  Mr. Moll asked the assessed value of the home and the land, asking Attorney Bennet to separate the two.  Attorney Bennet stated that the land is assessed at $243,800 and $43,700 for the structure.  Mr. Moll noted that the significant value is in the land.  He asked that the site plan be marked Exhibit A.

Attorney Bennet noted that the construction date was 1952.

Chairman Stutts read letters from the following neighbors; Farleys at 74 Sea Spray Road  and Carl Ruchbuch, 75 Sea Spray Road, both in favor of the application.

Mr. Moll stated that the expansion of the current attic space is an expansion of the use of the property.  He noted that nonconformities are supposed to be reduced.  Mr. Moll stated that there is case law that would indicate that the Board’s approval of this application would be allowing the expansion of a nonconformity, regardless of how insignificant the increase is.  He stated that he would like clarification as to how the conversion of attic space to living space is not an expansion of a nonconformity.

Jeff Flower stated that the clients have gone a great distance to make very minimal changes to the bulk of the home to accommodate floor area in the attic.  He stated that the two bedrooms on the first floor are being abandoned to create the bedrooms on the second floor.  Mr. Flower stated that there will not be more people in the house or more use of the house because of the addition.  He noted that there is not more functional floor space because of the creation of closets, the stairway and a bathroom.

No one present spoke in favor of or against the application.  Hearing no further comments, Chairman Stutts called this Public Hearing to a close.

ITEM 3: Public Hearing Case 07-02 Frank & Joanne Lishing, 307 Swan Avenue, variance to convert dwelling from seasonal use to year-round use.

Attorney James Mattern was present, along with the applicants Frank and Joanne Lishing, to present the application.  He stated that at the January 9, 2007 Regular Meeting the public hearing for the appeal on this matter was heard by the Board and the Board has ruled that Ms. Brown was correct in her interpretation of the Regulations.  Attorney Mattern stated that the application was originally brought to Ms. Brown and she denied the application on two issues of zoning; one that it did not meet the minimum square and the second being that the house is located in the setback.  He noted that when the original application was made, the house did not have potable water and since that time the Lishing’s have a fully operational well located on the property.  Attorney Mattern stated that a year or so ago a new septic system was installed.  He noted that the Sanitarian has submitted a letter stating that the property now meets the Health Requirements for year-round status.

Attorney Mattern stated that the property is located on the corner of Swan Lane and North Lane, which is a commercial zone.  He noted that the property has the required land area and all bulk requirements are met.  Attorney Mattern stated that the house is a pre-existing nonconforming house in its location because of the setback from Swan Avenue.  He noted that the property does not meet the minimum square requirement and the setback.  Attorney Mattern pointed out that the 100’ minimum square regulation was adopted long after this property was subdivided, noting that the house goes back to at least 1960 in its present location.  He noted that the lot is L-shaped and contains over 15,000 square feet, fifty-percent more than the minimum lot size.  Attorney Mattern stated that the shape of the lot is the unique hardship.

Attorney Mattern stated that all the requirements of Section 21.2.5c, which are standards for the conversion of seasonal use dwellings to year round use, adopted June 5, 1995.  He noted that the only standard not met was #9, which the question as to whether the property is in violation or not.  Attorney Mattern stated that having lost that argument before the Board last week, he is taking the position that the violations are the setback and the minimum square.  He reiterated that if not for those two aspects, the owner would have the ability to use the home on a year-round basis.  Attorney Mattern stated that they are requesting a variance to allow the conversion from seasonal to year round.

Attorney Mattern submitted Ms. Brown’s decision of October 27, 2005, where the nonconformities are listed and asked that it be marked as an Exhibit.  

Ms. McQuade noted that the health approval is for a four bedroom home and she thought she saw something else that indicates a five bedroom house.  Mr. Lishing noted that the house has had five bedrooms since he’s owned it.  Attorney Mattern noted that the floor plans submitted as part of the application show five bedrooms.

Chairman Stutts questioned whether the Lishing’s were aware that the property was nonconforming when they purchased it.  Mr. Lishing stated that he was not aware that it was nonconforming until he had an A-2 Survey done.  Attorney Mattern noted that the previous owners had no evidence of historical use.  He noted that the Lishing’s purchased the property in 2005.

Mr. Kotzan questioned whether the applicant’s tried to purchase additional land.  Attorney Mattern stated that the abutting neighbor cannot reduce the size of their lot.

No one present spoke in favor of or against the application.  Hearing no further comments, Chairman Stutts called this Public Hearing to a close.

ITEM 4: Public Hearing Case 07-04 Judith Iovanna, 28 Lone Pine Trail, variance to construct dwelling in the narrow-street setback.

Attorney Bennet was present to represent the applicant Judith Iovanna.  Also present was her son Matt Iovanna.  Attorney Bennet noted that the applicant appealed the Zoning Enforcement Officer’s issuance of a Cease and Desist Order and revocation of the Zoning Compliance Permit.  He explained that the ZEO’s actions were upheld and they are now applying for a variance.  Attorney Bennet noted that the property is owned by Judith Iovanna and her son Matt is constructing the house for her.  He stated that they are seeking a variance to the narrow-street setback, Section 7.4.2.  Attorney Bennet stated that there were many conversations between Matt Iovanna and municipal officials, the first series of conversations having to do with the location of a septic system.  He explained that there were discussions on the location of the house and issues about a Bilco door that was eventually taken off the plan.  Attorney Bennet stated that the permit was issued and construction commenced.

Attorney Bennet stated that the septic system is located in the very corner of the property and it is located in, effectively, the only place it can be located.  He explained that the septic location is based on neighboring well locations.  Attorney Bennet stated that the pre-existing circumstances of the neighboring wells are part of the hardship.  He indicated that $10,000.00 was spent on the construction of the septic system, not including the engineering.  Attorney Bennet stated that Mr. Iovanna preceded to layout the house and noted that the garage portion thrusts toward the road; this is the portion that does not conform to 7.4.2.  He noted that it is too late to flip the house because now the foundation is in. Attorney Bennet stated that the existing foundation would have to be filled in.  He noted that had Mr. Iovanna, his engineer or Ms. Brown been aware of the narrow street setback then Mr. Iovanna could have requested a variance based on the evidence presented here this evening; the well locations and the necessity of putting in a septic system.

Attorney Bennet read a portion of Emir Valesco vs. Fairfield Zoning Board of Appeals, a State Court decision out of Bridgeport.  He explained that this Case cites a CT Superior Court decision where it was found that the issuance of improper building permits and errors made by independent contracted surveyors are not self-induced hardships.  Attorney Bennet stated that this is his position in the Iovanna matter and noted that the house complies in all other aspects to the Zoning Regulations.  He noted that the foundation is located in its current location because of a collective error by the engineer who did the surveyor and by Ann Brown, Zoning Enforcement Officer, by issuing the permit and an error on the part of his client, perhaps.

Attorney Bennet stated that many of the homes in the area are setback, although a few are close to the road.  He noted that the neighboring house is setback the same distance from the street as this property.  Attorney Bennet stated that $90,000 has been invested in this structure before the trusses went on.  He noted that the trusses were paid for and in transit when the C&D was issued and he acknowledged that Mr. Iovanna proceeded to put them up.  Attorney Bennet stated that the photographs show that many trees have been left in front of the house and the applicant is willing to put in more trees or other screening to soften the garage out toward the road.  

Attorney Bennet stated that on June 14, 2006 the plot plans were on file with the Town and on September 21, 2006, Mr. Iovanna received the building permit which he paid for.  He noted that there were issues about the Bilco door imposing on the rear setback and that Bilco door was removed.  Attorney Bennet stated that on September 28, 2006 the footings were inspected and okayed and construction progressed.  He explained that 6 weeks later on November 9, 2006, the Cease and Desist Order was issued.  Attorney Bennet stated that he does not believe this is a self-created hardship based on the interpretation of the law and any effort to tear this structure down will be a hardship.

Mr. Kotzan stated that a two-car garage is a reasonable use on a property if the property can support it.  He indicated that this plan seems like an overly ambitious version of what the Board occasionally grants variances for.  Mr. Iovanna stated that the plans have been in the Town offices since 2004.  Mr. Kotzan stated that there is a possible injustice to Mr. Iovanna in the course of events, but that is not what the Board considers.  He explained that the Board looks at this proposal as an empty lot, which may sound awkward.  Mr. Iovanna stated that the garage is bigger than most because he has a hobby of working on boats, which he currently does outside in tents.

Attorney Bennet stated that case law shows that the Board has to look at other circumstances which is why he provided the Appellate citation.  He indicated that the circumstances tie into the hardship.

Mr. Moll asked the applicant to explain the large garage/storage area.  Attorney Bennet indicated that it is just that, a garage and storage area.  Mr. Moll questioned whether this is normal for a first floor plan of a dwelling.  Attorney Bennet stated that it is a perfectly appropriate use and it is conforming.  Mr. Moll said it’s not normal.  He questioned whether the living filter septic was a new type of septic design versus sand filters.  Attorney Bennet indicated that he does not know.  Mr. Moll stated that if it is a new type of design it is unusual that they are not talking about a repair, but an undeveloped lot.  He asked why the proposal architecturally shows a garage door on the back, along with two on the front.  Attorney Bennet stated that it is for the convenience of his client’s use, as he cannot get around to the back without going over the top of his septic system.  Mr. Moll stated that a future owner may not know where the septic system is and he feels this location encumbers the property.  He noted that he is concerned with the rear garage door.  Attorney Bennet agreed that it is a difficult piece of land.

Charles Myles, 12 Lone Pine Trail, stated that he is concerned that the granting of this variance would set a precedent.  He noted that most of the homes are set back the full 35’, with the exception of the home directly next door to the subject property.  Mr. Myles stated that the garage has only a 2’ footing and the removal would not be difficult.

Jim McInerny, 9 Shore Drive, stated that the variance should be denied.  He noted that the applicant or his agent should have known about the narrow street setback requirement.  Mr. McInerney stated that 90 percent of the homes on Lone Pine are set 35’ back.  He stated that Mr. Iovanna continued work for 3 to 4 weeks after the Cease and Desist was issued so the financial hardship has been self-inflicted.  Mr. McInerney stated that the structure is 3200 square feet, including an 825 square foot garage.  He noted that the garage would be 23 x 25’ if the 10’ located in the setback were removed.  Mr. McInerney stated that there is no hardship to justify the need for this large of a garage.  

John Albright, 7 Shore Drive, stated that he did not see a stairway off the front.  He noted that any stairs would be in the front setback.  Attorney Bennet noted that there will be front steps which are allowed under the Zoning Regulations.  Mr. Albright stated that it appears that Mr. Iovanna is planning some type of porch in the front, and if so, it will be too close to the road.

Damian Ranelli, 30 Lone Pine, stated that he has been a member of the community for 42 years.  He noted that the applicant’s pictures show the joist hangers and the framework for a covered porch that’s to be built in the front.  Mr. Ranelli stated that this would be in the setback and is not shown on the site plan.

Mr. Ranelli read submitted a letter signed by 27 neighbors in opposition to the application.

Mr. Moll questioned whether Mr. Ranelli lives in the property next door.  Mr. Ranelli stated that he owns the property and does not live there.  He noted that he put the for sale sign out when they discovered the size of the house being constructed next door.

Mr. Ranelli stated that a developer or home owner who signs a Zoning Compliance Permit Application takes the responsibility to meet the Zoning Regulations.  He stated that in the applicant’s own testimony he states that there is a code compliant septic system and a well with a buildable square of 2600 square feet.  Mr. Ranelli stated that the fact that the owner wants a larger home does not constitute a hardship.

Mr. Ranelli stated that Mr. Iovanna had the opportunity to discover the narrow street setback regulation upon reading the Zoning Regulations.  He explained that he gave Mr. Iovanna his site plan and his elevation drawings when he himself tried to get a variance.  Mr. Ranelli stated that he explained to Mr. Iovanna how the Zoning Regulations affected the design of his house.  Mr. Ranelli stated that Mr. Iovanna attended the Zoning Board of Appeals meeting for his project.  He explained that Mr. Iovanna’s site plan references Mr. Hendriks site plan on the neighboring property.  Mr. Ranelli stated that Mr. Iovanna got one by the Buidling Official and noted that there were many distractions with the property with the well and septic.

Mr. Ranelli stated that the cases presented by Attorney Bennet this evening are fact specific and there was no evidence in these cases that the applicant was aware of the regulations.  He stated that in this case the applicant was aware of the evidence that the regulation existed.

Mr. Ranelli stated that the design of the house is such that a wall could be put up and another bedroom created which would be in violation of the Health Code.  He noted that there are unique things in the plans that get around other regulations.  Mr. Ranelli stated that the whole house is badly designed.  He indicated that there is no hardship.

Mr. Ranelli stated that the problem could easily be rectified by removing 10 feet off the building and there would be minimal loss.  He indicated that he believes Mr. Iovanna knowingly deceived the Town officials and now comes back requesting a variance.  Mr. Ranelli stated that when he looks at the blue-print he sees a two-family house with a commercial garage next to it.  He stated that the house is clearly designed to become a multi-family dwelling.  Mr. Ranelli stated that he is a licensed builder in the State of Connecticut.  

Attorney Bennet stated that Mr. Miles brought up precedent.  He noted that each variance is judged on its own merits and facts; there is no precedential value to variances.  Attorney Bennet stated that Mr. MacInerney raised the issue that work was not stopped when the C&D was issued.  He noted that the Order allowed work to continue and specific discussions were had with Ms. Brown.  Attorney Bennet stated that if there is going to be a porch on the front there would be a permitting process that will be followed.  He noted that Mr. Ranelli has asserted that Mr. Iovanna is a liar who will violate the law.  Attorney Bennet stated that this is untrue.  He noted that Mr. Ranelli has indicated that it will be converted into a two-family, apparently he knows because he has experience with this type of thing.  Attorney Bennet stated that converting this structure to a two-family would be a violation of the Zoning Regulations and he pointed out that the Board may not consider this based on what someone might do.  He noted that Mr. Ranelli got his permits, made his improvements to his property and now it is for sale.  

Attorney Bennet stated that Mr. Ranelli’s assertion of Mr. Iovanna’s intentions are outrageous.  He stated that to suggest that the Board is being lied to is an outrage and should not be the basis for the Board’s decision.  Attorney Bennet stated that there is case law that states the Board is not entitled to assume that people are going to violate the law.  

Mr. Moll stated that there were black and white photos dated November 6, 2006, and additional photos send November 30, 2006.  He indicated that it appears a large amount of construction seems to have gone on, perhaps more than basically buttoning the structure up.  Attorney Bennet stated that he stated earlier that the roof trusses has been ordered and were being delivered and they were put up, along with the appropriate framing to support them.  He indicated that sheathing and shingles were put on the roof.  Attorney Bennet stated that he had that specific conversation with Ms. Brown to confirm that despite the Cease and Desist Order, they could do work to tighten-up the structure.  He acknowledged that some people feel that putting a blue tarp over it would have been enough but it is not.  Attorney Bennet stated that there are wood products that need to be protected and the basement could fill with water.  He indicated that to the extent the applicant does not get a variance and has to take it down, then he will fund that expense.

Mr. Moll asked Mr. Ranelli the purpose of the narrow-street setback.  Mr. Ranelli stated that he assumed that it was for possible road expansion or possible utility installation.  

Hearing no further comments, Chairman Stutts called this Public Hearing to a close.

ITEM 5: Open Voting Session

Case 06-45 Mark & Maryellen Phelan, 77 Sea Spray Road

Chairman Stutts reviewed the facts of the case.  She noted that the applicants would like to construct a second floor onto their seasonal house.  Chairman Stutts noted that the applicant was able to obtain additional property for a total of 5,948 square feet.  She stated that the only variance required is for Section 8.9.3, no building on a nonconforming lot may be enlarged or extended.  She explained that the additional floor area is 343 square feet.  Chairman Stutts noted that there are no additional bedrooms proposed.

Chairman Stutts noted that the hardship provided was the shape of the property in a long-existing nonconforming subdivision.

Mr. Kotzan stated that there are significant changes between this application and the one originally submitted.  He noted that the applicant reduced the proposed floor area to stay under the 25 percent allowed and moved the dormer locations so that they meet setback.  Mr. Kotzan stated that the applicants have approached their request in a way that minimizes their request for a variance and the proposal is a reasonable use of the property.

Ms. McQuade agreed and noted that it is a very reasonable request.

Chairman Stutts stated that several neighbors and the Beach Association were in favor of the proposal.

Mr. St. Germain noted that the property has been enlarged, which is what the Board encourages.

Chairman Stutts stated that a lot of work went into maximizing additional floor area for a small variance.

A motion was made by Kip Kotzan, seconded by Judy McQuade and voted unanimously to grant the necessary variances to allow second floor dormer, 77 Sea Spray Road, as per the approved plans.

Reasons:

1.      Lot size has been increased.
2.      Number of variances reduced.
3.      No increase in bedrooms.
4.      All setbacks are met; meets floor area and coverage requirements.
5.      Consistent with the neighborhood.
6.      Within the intent of the Plan of Zoning.

Case 07-02 Frank & Joanne Lishing, 307 Swan Avenue

Chairman Stutts reviewed the facts of the case.  She noted that the existing nonconformities are 22.3.3, minimum square, 100’ required, 83’ provided; 22.3.7, minimum setback, 35’ (narrow street), 12’ provided, 21.2.5c(ix) conversion of a seasonal use dwelling to year round.  Chairman Stutts explained that due to the L-shaped lot the property lacks the required square and a portion of the home is located in a nonconforming location.

Chairman Stutts stated that the home is located very close to the road.  She noted that there is a new septic system and year-round potable water is provided by a well.  Mr. St. Germain noted that the applicant cannot purchase more property to get the required square.  He noted that they property is adequately sized.  Mr. Kotzan agreed that the lot is oversized.  He stated that he does not believe allowing this property to become year-round will be an imposition on the neighborhood.  

Mr. Kotzan stated that he feels lot size is important for a conversion.  He noted that the subject lot is has more than enough area.  Mr. Kotzan stated that he is not sure that the setback has any effect in considering year-round use, nor the required square.

Ms. McQuade noted that there was no neighbor opposition to this proposal.  Mr. Moll noted that the applicants have put in a new septic system.

A motion was made by Judy McQuade, seconded by Kip Kotzan and voted unanimously to grant the necessary variances to allow conversion from seasonal to year-round, 307 Swan Avenue.

Reasons:

1.      L-shaped property with considerable land-area.
2.      Proposal is within the intent of the Plan of Zoning.

Case 07-04 Judith Iovanna, 28 Lone Pine Trail

Chairman Stutts reviewed the facts of the case.  She stated that a 10’ narrow street setback variance is being requested.  Chairman Stutts stated that the house was configured to fit on the lot taking into consideration neighboring wells and septics.  She stated that the house is 40’ x 50’ x 32’6” high.  Chairman Stutts stated that in driving around the neighborhood she noticed that there was a variation in the setbacks from the street.  She indicated that she also saw a taller house a few streets up.  Chairman Stutts noted that the height of the house is not the issue.

Mr. Kotzan stated that he does not believe a reasonable use of the property is being prevented by the narrow-street setback regulation.  He indicated that the property could support a smaller garage and it would still be a reasonable use of the property.  Mr. Kotzan noted that there is also a full basement.

Ms. McQuade agreed noting that there is a reasonable use of the land without invading the narrow-street setback.  She noted that there appears to be plenty of living area and storage with a smaller garage.

Mr. Kotzan stated that it may be for a Court to decide whether the current garage needs to be removed.  He indicated that he cannot consider liability to the Town.

Mr. Moll stated that during the Public Hearing there was much discussion as to who was responsible for the error.  He noted that the applicant had a licensed surveyor do the site plan.  Mr. Moll stated that the house is an unusual design.  He noted that he is concerned about the rear garage door and a future owner taking out the septic system.   Mr. Moll indicated that the current garage could be reduced.

Mr. Kotzan stated that it is not his responsibility to consider the course of events and who is at fault.  He stated that he is looking at the plan as if it is being submitted before construction and he cannot see a hardship to construct in the front setback.  Mr. Kotzan stated that the applicant has reasonable use of his property without encroaching on the front setback.

Chairman Stutts stated that 27 neighbors were opposed to this proposal.  Mr. Kotzan noted that the applicant also had 18 neighbors who were in favor of the application.  Ms. McQuade stated that she did have questions as to why so much work was done after the Cease and Desist.

Mr. Moll stated that the garage holds for the possible expansion of use from hobby purposes.  Mr. Kotzan stated that the structure is large is not suited for this small residential property.

A motion was made by Kip Kotzan and seconded by Judy McQuade to grant the necessary variances to construct garage in the front setback, 28 Lone Pine Trail, as per the approved plans.  Motion did not carry, 0:5.

Reasons:

1.      No hardship to warrant the garage extending 10 feet into the setback; there is enough buildable area to accommodate a reasonable garage not in the setback.
2.      Proposal is not in character with the neighborhood.





ITEM 6: Approval of Minutes of the December 12, 2006 Special Meeting

A motion was made by Richard Moll, seconded by Judy McQuade and voted unanimously to approve the minutes of the December 12, 2006 Special Meeting as clarified.

ITEM 7: Adjournment.

The meeting adjourned at 10:26 p.m. on a motion by Kip Kotzan and seconded by Richard Moll.  So voted unanimously.

Respectfully submitted,



Susan J. Bartlett



 
 
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