PUBLIC HEARING AND REGULAR MEETING   Monday, AUGUST 11th, 2008

EAST LYME ZONING BOARD OF APPEALS

MINUTES

A Public Hearing and Regular Meeting of the East Lyme Zoning Board of Appeals was held on Monday, August 11, 2008 at 7:30 PM at the East Lyme Town Hall, 108 Pennsylvania Avenue, Niantic, CT.

PRESENT:                 Bill Mountzoures, Chairman, Tom Boguszewski, Acting Secretary, Leo Mostowy, Craig Mason, Skip Saunders

ALSO PRESENT:       Attorney Eugene Cushman, Representing the Applicant

                                 Fortunata Maluccio, Property Owner/Applicant

ABSENT:                   H. Peter Hunt, Secretary, Shawn McLaughlin, Alternate

1.       Call Public Hearing to Order

Chairman Mountzoures called the Public Hearing to order at 7:30 PM. He noted that they had a quorum and that five regular members were present.

2.       Read Notice of Public Hearing

Mr. Mountzoures asked Mr. Boguszewski, Acting Secretary to read the notice of the Public Hearing:

Case No. 1-2008:  Application of Attorney Eugene C. Cushman for a request of a variance of Section 7.3.1 of the East Lyme Zoning Regulations to allow a two-family home on the property identified in the Application as 4 Bay View Road, Niantic, Connecticut. Said parcel appears on the East Lyme Assessor’s Map 4.5, 38 & 39.

The Public Hearing notice was sent to the New London Day for publication on 7/31/08 and 8/7/08.

Mr. Mountzoures introduced the Board members and polled each for any conflict of interest. Hearing no conflicts of interest, he explained the rules of the meeting and asked that anyone speaking please stick to the subject matter of the application.

Mr. Mountzoures called for the applicant or their representative to make their presentation.

Attorney Eugene Cushman, One Post Hill Place, New London, CT said that he was representing the property owner Fortunata Maluccio who has owned this property since 1984. It is a raised ranch on a hill in the Giants Neck Heights area. It is two stories in the back, but appears as one story from the front. The back yard drops off and is some 20’ to 30’ above the roofs of the other houses. He said that in law school that he was taught that they would need a physical characteristic of the land for a hardship and that he finds that this property suits the textbook example of a hardship in that it is different and has the hardship of the land in the back as if just drops off because the hill is so high. The people behind this house have to look straight up to see it. He then offered a synopsis of the events of this house. In 1972 the house was constructed and a CO was taken out as a single family home however it was used as a two-family. There was a septic system failure in 1984 and the people who lived down below on South Edgewood were victimized by this failure and at that time that person was the Zoning Official for the Town and it was at that time found being used as a two-family home. The owner at that time in 1984 came in for a variance and he was turned down for two (2) reasons: (1) they said that there were a number of two-family homes on the street and in fact; there were not and (2) with the septic failure George Calkins indicated in a letter that the house and septic were only built for three bedrooms and not for six bedrooms. The property was also non-conforming with 70’ of frontage when they needed 80’ of frontage.

In 1992 several Cease & Desists were issued to this property and Kevin Booth represented the owners. He said that since they were not enforced that the use would be allowed by default. He submitted two photos showing the area where the stove and sink were removed which was entered into the record as Exhibit A. He said that another issue was that of egress and that the windows were too small and that has also been corrected – he submitted a photo showing the window replacement on the right hand side of the house – this was entered into the record as Exhibit B. He noted that the doorway in the photo is what the downstairs resident would use. He said that there is plenty of parking on the street for cars and also in the yard. A picture showing the front of the house was also submitted showing that the front of the house would not change and that it would still look like a single story house. This was entered into the record as Exhibit C.

The case in 1992 lasted until 1994 before it was settled and all of the things aforementioned are now finally done. They were not done earlier because Mrs. Maluccio had her family members living there with her, which is allowed. If the variance were granted, the use would not change from what it has been all along. Also, since 1984, 10 feet of property on the side has been acquired so that they now have the 80’ frontage and meet that requirement. However; there is still only 7,000 sf and while they need 15,000 sf the back land is a vertical drop-off and there is no impact to the homes there. There would be minimal impact to the homes on the left and right sides. And – there are now also a number of two-families in the neighborhood and several of them are illegal. He cited the following properties from the assessor cards:

¨    26 Hillcrest – illegal two-family, 7,000 sf lot, listed as a single family. He submitted this for the record and it was entered as Exhibit D.

¨    53-55 Edgehill Road – a legal two-family

¨    32 Spring Glen Road – this is listed as a single family but has two families living there

¨    156 Giants Neck Road – has two-families, is a 7,800 sf lot

¨    158 Giants Neck Road – is listed as a two-family with the Town, has a 6,535 sf lot

¨    6 South Edgewood Road – listed as a two-family, has a 4,792 sf lot

¨    122 Giants Neck Road – listed as a two-family and is legal, as it has enough square footage

¨    200 Giants Neck Road – a legal two-family as it has the correct square footage

¨    16 Griswold – legal two-family with the correct square footage

¨    2-4 Park Lane – legal two-family with correct square footage

¨    20 Marshfield Terrace – legal two-family with the correct square footage

¨    53 Oakwood – legal two-family with the correct square footage

¨    20 Park View Drive – this has the correct square footage but it is listed as a single family with the Town

¨    60 Giants Neck Heights – this also has the correct square footage but it is listed as a single family with the Town

He said that this is indicative of the fact that the neighborhood has changed and that there are many two-families within it. This property at 4 Bay View Road has been used as a two-family for all of these years with no impact on the area. There are also sewers in this area now so the septic is no longer an issue. There is no reason to not make this a legal two-family home. It has been 24 years since the last application for a variance and the only item that they need here is the variance on the square footage of the lot and the only reason why they cannot get it is because the land in the back drops off. He said that he feels that there is no adverse effect on the Town with regard to health, safety or property values and that there is no reason in the world not to grant this variance. He noted that there are also sliding doors on the back of the house for access and egress.

Mr. Boguszewski said to Mr. Cushman that he is unclear as to why he is saying that the sloping lot in the back is a hardship as the requirement is for 15,000 square feet.

Mr. Cushman said that it is because even if they could acquire it, the land is useless.

Mr. Boguszewski said that they already have a house on the property that is being used, so there is no hardship. The land is being used.

Mr. Cushman said that it does not make sense to have to acquire the extra land to get to 15,000 square feet as they would not be able to use it.

Mr. Boguszewski said that the 15,000 square feet would allot them to use it as a multi-family home.

Mr. Mountzoures asked if perhaps this is a zoning issue rather than an issue for them as there are many R-10 neighborhoods in the Town.

Mr. Cushman said that they do not have the privacy issue in the rear, but only on the sides whereas other instances without the land dropping off in the back, there would be those privacy issues with the back yard. 

Mr. Saunders said that on 5/13/1993 there was an application from his client and that a meeting was held and the sewers were in place at that time and the variance was also denied. He said that while he was impressed with the Mr. Cushman’s research regarding the assessor’s cards that if the property is listed and the information is given to the assessor’s by Vision, it is just what they see and not what was permitted. He asked if they had checked in the Building Office to see what was permitted.

Mr. Cushman said that he had followed the cards to see if they had the legal square footage.

Mr. Mountzoures said that the assessor’s records are for that purpose only, not for building.

Mr. Saunders said that a two-family would be legal if it complies with the square footage and with the building codes for electric etc., having two stoves etc.

Mr. Mountzoures noted that they do allow in-law apartments.

Mr. Cushman said that has essentially been the use since the 1980’s and that now Mrs. Maluccio is at the age where she could use the income and they feel that this does not impact the Town.

Mr. Mostowy said that he took a ride up there and that it seems there is a lot going on there and that this issue should go back to zoning for review. If they allow this for one family to become a two-family, it would be like opening Pandora ’s Box and they would be seeing a new case every night. If this is meant to be, then let zoning review this and re-write it if they feel that it is warranted and the assessor’s can re-assess the properties and the Town can get the extra income from it.

Mr. Saunders noted that the septic was not an issue in 1993 and that the variance was denied.

Mr. Cushman said that he does not feel that this will impact the neighborhood.

Mr. Boguszewski said that in 1993 they were denied and that they could not find a hardship and that not having a multi-family home is not a hardship and it does not seem that anything has changed since them.

Mr. Cushman said that they have not talked about the land topography in the back.

Mr. Boguszewski said that they require 15,000 square feet and that he is not sure how the topography of the land has anything to do with this.

Mr. Cushman said that this is a topographical situation with the steep slope in the back.

Mr. Mason asked if this is the only property there with the slope.

Mr. Cushman said no, there are some three to four in the same area so you would not be opening this up to everyone to do, only the few with the slope. He added that they are elected to make these types of exceptions.

Mr. Mountzoures called for anyone who wished to speak regarding this application –

Hearing no one –

Mr. Mountzoures asked the Board members if they had any other questions.

Hearing none - he said that he would now close the Public Hearing.

Mr. Mountzoures closed this Public Hearing at 8:15 PM.

Mr. Mountzoures said that they would now deliberate and make a decision on the application.

Mr. Mountzoures explained that the only comments that they can take now are from the applicant and only if they have technical questions that they need answered. He also informed the applicant that in the event that they wish to contest the decision that they have 15 days to appeal it to the Superior Court.

REGULAR MEETING

Mr. Mountzoures opened the Regular Meeting at 8:16 PM.

Case No. 1-2008:  Application of Attorney Eugene C. Cushman for a request of a variance of Section 7.3.1 of the East Lyme Zoning Regulations to allow a two-family home on the property identified in the Application as 4 Bay View Road, Niantic, Connecticut. Said parcel appears on the East Lyme Assessor’s Map 4.5, 38 & 39.

Mr. Mountzoures called for discussion.

Mr. Saunders said that this is an interesting case and that he understands the applicant’s need and desire to rent however, he feels that approval would set a poor precedent by doing spot approvals. He said that this is a personal hardship and that the applicant needs 15,000 square feet and the fact is that they have less than half of that. There has been a constant abuse in the use of this property over many years without electrical and other upgrades that would be necessary to have a legal two-family. He said that he feels that is a short amount of time that it will be back in use as an illegal two-family and suggested that they get the electrical upgrades that are necessary for safety reasons. He added that most of the roads there are like this one and the land just drops off. Giants Neck is an old community that does a lot of very different things in the summer when the population swells. He said that he thinks that there may be a lot of issues up there and while the assessor’s cards may say one thing, he said that he is not sure that they are correct with respect to building codes and standards.

Mr. Boguszewski said that it was mentioned that the only reason for the lot requirement is privacy and that he is not sure that is true. He said that he agrees with what has been said that that he does not see where the use of the property is being denied here as they can and do use this property.

Mr. Mostowy said that he feels that this is a zoning issue and that policing it would be a nightmare. He suggested that zoning should review it and if they decide to change it, let the Town enforce it once it is changed. If they were to grant a variance here with the violations up there, it would surely create trouble.

Mr. Mason said that he agrees with all that his fellow Board members have said and added that they would be superseding zoning laws by granting this without a true hardship of the land and that it is not their place to change zoning laws.

Mr. Mountzoures that while he sympathizes with them, that he finds that the hardship seems to be personal. The requirement is for 15,000 square feet and perhaps having sewers would mean that they could have less square footage however that would have to be looked at with respect to all areas of the Town that are R-10 as this is not just one isolated area.

Mr. Mountzoures asked if they were ready to make a motion.

**MOTION (1)

Mr. Saunders moved to DENY the Application of Attorney Eugene C. Cushman for a request of a variance of Section 7.3.1 of the East Lyme Zoning Regulations to allow a two-family home on the property identified in the Application as 4 Bay View Road, Niantic, Connecticut. Said parcel appears on the East Lyme Assessor’s Map 4.5, 38 & 39.

Reasons for denial are that the lot does not meet the minimum square footage required for a two-family home in an R-10 zone and that there is a lack of a defined hardship inherent in the land.

Mr. Boguszewski seconded the motion.

Mr. Mountzoures called for a vote on the motion.

Vote in Favor to DENY:  5 – 0 – 0.  Motion passed.

Mr. Mountzoures asked if anyone had any other business –

Hearing none –

Mr. Mountzoures called for a motion to adjourn.

ADJOURNMENT

**MOTION (2)

Mr. Saunders moved to adjourn Case #1-2008 of the East Lyme Zoning Board of Appeals at 8:30 PM.

Mr. Boguszewski seconded the motion.

Vote:  5 – 0 – 0.  Motion passed.

Respectfully submitted,

Karen Zmitruk,

Recording Secretary