Zoning Board of Appeals

CITY OF NORWICH ZONING BOARD OF APPEALS MEETING MINUTES Tuesday, July 14, 2015, 7:00 PM 23 Union Street, Lower Level Conference Room Members Present: Marc Benjamin, Henry Olender, Peter Cuprak (alternate, not seated), Dorothy Travers, Mark Kulos, and Raymond Dussault Members Absent: Dave Martin Also Present: Tianne Phoenix Curtis, Zoning Enforcement Officer Atty. Kim McGee, Brown, Jacobson et al Corporation Counsel Melinda Wilson, Recording Secretary A. Call to Order: Marc Benjamin called the meeting to order at 7:02 PM. B. Pledge of Allegiance C. Roll Call D. Determination of a Quorum: It was determined a quorum was present. E. Communications: None F. Acceptance of June 9, 2015 Minutes: On a motion by Mark Kulos, seconded by Marc Benjamin, the minutes of June 9, 2015 were unanimously accepted as presented. G. Old Business: None H. New Business: On a motion by Mark Kulos, seconded by Peter Cuprak, the Board voted unanimously for a suspension of rules in order to hear agenda item V15-04 prior to V12-14(A). 2. V15-04 – Request of Nadeem Khalid for property located at 275 Washington Street in a Residential (R40) zoning district. In accordance with Sec. 12.1; 50’ front yard setback required request to 20’; and 10% lot coverage – request to increase to 19% for the construction of a 24’ x 30‘ canopy over existing pump station. Nadeem Khalid presented a technical drawing of the lot and proposed canopy which would cover existing fuel pumps. He stated the canopy is needed to cover the customers during inclement weather. He referred to Exhibit E. Marc Benjamin asked him to state his hardship. Mr. Khalid said set back issues. Marc Benjamin confirmed with Mr. Khalid that the canopy will only be down lit & will have no signage. Mark Kulos confirmed that the variance request is only for the front set back which was confirmed by ZEO Tianne Curtis. 1 Marc Benjamin asked if anyone was present to speak in favor of the request. No one came forward. He asked if anyone as present to speak in opposition. No one came forward. He asked if there were any other questions from the Board. None were presented. The public hearing was closed. I. Discussion/Decision on Applications 2. V#15-04 – Request of Nadeem Khalid for property located at 275 Washington Street in a Residential (R40) zoning district. In accordance with Sec. 12.1; 50’ front yard setback required request to 20’; and 10% lot coverage – request to increase to 19% for the construction of a 24’ x 30‘ canopy over existing pump station. Per Mark Kulos, the hardship was that the lot is small and location of pumps cannot be moved, the proposed location is the only location for the canopy on the lot, and no opposition was presented. Mark Kulos made a motion to approve with the following conditions: 1. The canopy is to be removed in the event of a change of use from filling station. 2. The canopy must be void of any signage or advertising. 3. The canopy lighting must be down-lit. Upon second by Ray Dussault, the Board voted unanimously to APPROVE V15-04 with the conditions as stated. H. New Business 1. V#12-14(A) – Request of John Burgess for property located at 74 Russell Road in a Multi-Family (MF) zoning district. In accordance with Sec. 12.1; MF side yard setback 10’ required, request reduction to 2’ for the construction of 20’ x 20’ deck with 8’ x 20” stair. ZEO Tianne Curtis entered to the record Exhibits A-O. Property owner & applicant John Burgess, 74 Russell Road, Norwich, presented additional exhibits entered to the record as: O – Letter of Support P – Outline Q – Superior Court’s Decision R - Petitions and testimony S - 3 Year Statute of Limitations Mark Kulos questioned the setback requirements. Tianne Curtis referred to Exhibit F. On a motion by Henry Olender, seconded by Mark Kulos, the Board unanimously voted to accept public testimony out of order. James Broznya, 74 Russell Road Rear, spoke to the Board. He stated the deck is close to his property but he has no problem with the deck. 2 Mr. Burgess gave an overview of the history of this variance request. In 2012, he built the deck against his existing garage and mistakenly thought it didn’t need a permit. On July 12, 2012 he received a Cease and Desist Order from the City of Norwich citing that the allowance had been stricken from the code and the deck had been built too close to the property line. In September 2012, the variance request for setback reduction was not approved. He appealed in Connecticut Superior Court. On March 6, 2015, a decision was made by the Superior Court vacating the 2012 zoning decision. Mr. Burgess quoted the Court’s decision. Mr. Burgess referred to Exhibits (pictures). He demonstrated the abutting properties and named the owners. He verified that Mrs. Kaiser, an abutter, had a professional survey done. He has not. Tianne entered Exhibits T, U, V and W, various photos of the property and views of the deck. Mr. Burgess spoke of hardship, including being unaware of zoning regulations and non- conformity upon purchase of the property in 2006. The non-conformity of the lot, including the property line only 2’ off the back of the garage, creates an unusual hardship. He referred to Exhibits A-J which are duplicates of originals from 2012. Ray Dussault questioned the arbor being added after the original decision. It was determined the arbor was existing in 2012 at the first review. Mr. Burgess read aloud comments by neighbors which were included in the Exhibits. Mrs. Kaiser wrote she reached an agreement with the Burgesses and she has no problem with the application approval. Mark Kulos suggested coverage area would be near 38%. Tianne Curtis clarified that only roof coverage counts. Marc Benjamin verified the pergola would not count. Mr. Burgess brought into the discussion the three year statute of limitations which went into place in 2013, an Exhibit, which he quoted. Civil Action would have had to take place during three years. Ray Dussault asked if the city’s action would negate the 3 year statute of limitations. Kim McGee, Counsel to the City, stated the Superior Court has ordered this hearing so the hearing needs to go forward regardless of statute of limitations. Ms. McGee noted that separate and apart from the City’s action, nothing indicates the statute of limitations would be retroactive. Marc Benjamin clarified with Mr. Burgess that he was asking for a variance to build a deck. In order to obtain a variance, he must demonstrate a legitimate legal hardship. Mr. Burgess replied that the lot is non-conforming with very limited out door space and no front yards. He and his wife have two children and they fence the yard for the dog. The back of the property is shaded and grass doesn’t grow. The deck maximizes use of available space and allows for privacy. The deck’s purpose is to use as much available yard space as possible. Marc Benjamin asked if the Inland Wetlands Commission needs to be involved, Tianne replied yes, activity within 100’ of inland wetlands, the Inland Wetlands Commission needs to be involved. 3 Mark Kulos asked if the property was an unusually small size. Mr. Burgess referred to the Exhibits to show the relative size of the property to neighboring properties. Mr. Burgess said for the neighborhood the lot is small. Discussion ensued regarding moving the deck forward to accommodate the 10’ side setback. Tianne confirmed the Russell Road set back is 25 feet on the lot. The stairs were also discussed. Mrs. Burgess spoke regarding the support of all Russell Road residents and reasonable use of lot. Marc Benjamin stated the Zoning Board of Appeals (ZBA) is obligated by the state to make legal binding decisions and is not a court of public decision. He said state statutes and city zoning laws have to be upheld. The ZBA will consider statutes and testimony presented. Mrs. Burgess noted that the extensive vegetation around the lot leaves the space muddy and unusable; grass does not grow therefor they built the deck. Mr. Burgess stated that a variance is part of the legal process. Marc Benjamin stated variances are given based on a hardship to a particular property regardless of the resident. Mark Kulos also noted the ZBA is looking out for the land as a variance runs with the land; a variance is for the life of the property. Mr. Burgess said the property’s other deck doesn’t have access to the yard and is 12’ off the ground off the kitchen. Marc Benjamin asked ZBA members if they had any more questions. Mrs. Burgess spoke again about zoning regulation intentions. Marc Benjamin explained how the public hearing works; once the hearing is closed, the ONLY open discussion will be by the board. The variance needs a vote of 4-1 to pass. He asked if anyone present would like to speak in favor of the variance: Mark Fisher, 73 Russell Road, Norwich: Mr. Fisher stated the Burgess’ are great neighbors. He confirmed the area near the deck is totally shaded and cutting off 8’ of the deck would leave unusable space. He has no objections. Lacy Arndt, 262 Washington Street, Norwich: Ms. Arndt said the small yard is a hardship. She is in favor of the variance. Al Mayo, 17 Russell Road, Norwich: Mr. Mayo is in support of the variance. It is a beautiful deck. He has no problem with deck. Catherine Osten, 184 Scotland Road, Baltic: Ms. Osten spoke in favor of the variance. The hardships are unusable real estate, small lot, and existing nonconforming use. The deck seems like a good use of space and seems appropriate. The applicants have done due diligence and been respectful. She sees similar approvals in her town. John Burgess, 72 Rhode Island Blvd, Portsmouth RI: Mr. Burgess said for 45 years he was a city planner and is recently retired. Not every situation will be solved by the letter of an ordinance. It takes common sense to read the intent of an ordinance. The lot is already non- 4 conforming. The Burgess’ are trying to making the best of a bad situation. He asked for a common sense approach to the variance. LeeAnn Scheff, 22 Russell Road, Norwich: Ms. Scheff spoke in favor of the variance. She thanked the Burgess’ for beautifying the neighborhood. Leonard Wisneski, 206 Old Canterbury Turnpike, Norwich: Mr. Wisneski spoke in favor of the variance. Michelle Henry, 15 Russell Road, Norwich: Ms. Henry spoke in favor of the variance. There is no room for the kids to play and it’s really, really muddy. Jocelyn McPherson, 21 Phillips Rd, Lisbon: Ms. McPherson spoke in favor of the variance. The property is small and muddy. She is very much in favor. Mabel Ojieyan, 110 S. 2nd Ave, Taftville; Mabel spoke in favor of the variance. Marc Benjamin asked if anyone present would like to speak in opposition. No one came forward. Mr. Burgess said the deck can be taken down in the future. It has been very difficult on the family for three years since the original variance request. They are only asking for an additional 8’ side setback. The property is on a dead end street near wetlands. Mrs. Burgess appreciates the board’s time and hopes for a positive result. Marc Benjamin closed the public hearing. I. Discussion/decisions: 1. V#12-14(A) – Request of John Burgess for property located at 74 Russell Road in a Multi-Family (MF) zoning district. In accordance with Sec. 12.1; MF side yard setback 10’ required, request reduction to 2’ for the construction of 20’ x 20’ deck with 8’ x 20” stair. Seated were Marc Benjamin, Henry Olender, Ray Dussault, Dorothy Travers, and Mark Kulos. Marc Benjamin made a motion to approve and open discussion. Henry Olender said he will vote in favor. The deck is reasonable use, near woods on a dead end with no opposition. He said it’s the ZBA’s job to take testimony and see what the circumstances are. Ray said reasonable use is not an argument and the hardship doesn’t stand. The deck could be in built in compliance and the remedy needs to be enforced. 5 Dotty Travers support approving the variance. The location is near wetlands on the end of a street with no opposition. She cannot justify removing it. There are multiple factors, including poor terrain. Mark Kulos spoke of the hardship of the property as a small, corner lot. The setbacks are oddly placed on the very small property. The existing kitchen deck doesn’t meet family’s use. However, the subject deck could have been built in conforming space if it had been built forward towards Russell Road. The deck was originally built without first consulting with the building department but with no malicious intent. There is no visual impact and the deck is actually improving neighborhood. He questioned the wetlands issues and possible positioning of the deck due to inland wetlands. The deck is making decent use of the land. The only issue he sees is the Broznya future owner might have issue with deck positioned where it is; that’s the only property effected. He prefers to see 8’ cut off of the deck; a 12’x20’ deck could exist on conforming space. He said the ZBA is tasked to not add to non-conformity of structure within the city. Marc Benjamin brought up 3 year statute of limitations. Discussion ensued. The Board agreed the ZBA would leave that determination to legal Counsel. Marc Benjamin asked for clarification of motion. Henry Olender made a motion to APPROVE V12-14A, 2nd by Dorothy Travers. Voting in opposition were Marc Benjamin, Ray Dussault, & Mark Kulos. Motion DENIED 2-3. J. Other Matters: None K. Adjournment: On a motion to adjourn by Henry Olender, seconded by Ray Dussault, the ZBA adjourned at 9:26 PM. Respectfully Submitted, Melinda Wilson Recording Secretary 6