TOWN OF WESTON, CONNECTICUT

ZONING BOARD OF APPEALS HEARING

January 23, 2007

Present: Board Members: Chairman Richard Wolf, Carolyn Mulcahey, MacLeod Snaith, Nick Noyes and Jennifer Hunt ________________________________________________________________________

Chairman Wolf called the Public Hearing to order at 7:37 p.m. and the Board Secretary read the notice of the public hearing into the record.

Attorney Mel Barr came forward and explained the proposal. He presented the plans and noted that on the property is an existing 1.5 story building which has been in the same location for 30 years. Thirteen years ago the current owners improved the building and it is currently being used as an "exercise building". He also indicated that there are mature trees on all four sides of the structure and topographical and septic constraints as well. The owners would like to divide their 4 acre property into two 2-acre lots but the lot line would have to be within 15 ft. of the "exercise building". They are asking for a variance so that they would not have to move the existing structure. Attorney Barr also noted that Mr. Sloane owns the adjacent lot and would make any future purchaser aware of the location of the building and they also would plant trees as a screening for that structure as a condition to approval.

Mr. Noyes commented that they had a 4 acre lot that had to be cut to conform to the 170 x 200 with 2 acres on both sides, but that followed, by decades, the construction of this building and asked Mr. Barr to address the concept of a self-inflicted hardship. Mr. Snaith commented that there was major construction to the structure in 1993 under the Sloane’s ownership. Ms. Hunt posed a question regarding how the structure was changed from a shed to its current condition and Mr. Barr noted it was enlarged from a 1 to a 1.5 story building. Ms. Mulcahey questioned whether the building could be slid back to the back corner and Mr. Barr noted that they would still have an encroachment at the point of the shed and sliding it back does not solve the problem. Mr. Wolf then brought discussion to the issue of hardship.

Following discussion, Mr. Robert Turner came forward stated that he wrote a letter on June 7, 2006 to indicate that the lot could be divided, but both lots would have to meet zoning regulations. Mr. Wolf read that letter into the record. Mr. Noyes then read a paragraph from a Connecticut case [C. Dupont vs. ZBA 80 ct app. 327 (2003)] which

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stated that a property owner’s desire to subdivide his property is a self created hardship and cannot form the basis for granting of a variance.

Mr. Barr commented that in this instance, both lots are conforming. Mr. Snaith then questioned whether the owners had looked into moving the structure and Mr. Barr stated that they are trying to avoid that disturbance to the building and surrounding area.

Mr. Dean Sloane came forward and commented that when the shed was improved, they did not increase the perimeter because of the location of the trees and the septic system. They would have to cut the trees to move it. Mr. Barr noted that they have received approval for the layout of the septic system for the other proposed lot. Mr. Sloane also noted that they had to put in a separate septic system for the "exercise building".

Following some additional discussion, the public hearing was closed.

Kevin Funk, owner, came forward to present his proposal and stated that this would amend a variance which was granted in 2002 to improve a one-car garage on the property. He noted that in April 2002, a variance was granted for a 12’ x 20’ garage and in 2004 they purchased the neighboring property at 267 Newtown Turnpike. They would like to make the garage 4 more feet wider to a 16’ x 20’ garage.

Mr. Snaith noted that he wants to see plans showing the proposed garage on a survey. Mr. Wolf commented that he needs to have dimensions from the property line and also the dimensions of the proposed structure. It was then noted that Mr. Funk had completed the wrong form. The matter was continued to next month.

Robert Turner commented that P&Z had a hearing on this matter which was continued to another hearing on February 5, 2007. Continued hearing, may be that decision by commission, no decision yet. Made clear in meeting do not have role in approving , special permit. Submitted memo. Can’t appeal form action – haven’t taken an action. Appeal premature, no final action. Hold off until final action. No one present to present decided not to hear.

Carl Pugh, owner, came forward and presented maps showing his proposal. Ms. Mulcahey commented that she is familiar with Mr. Pugh from business, although not very well, and it would not affect her judgment on this matter.

Mr. Pugh stated that he is asking for front setback variance on his house which was built in 1958 and is a pre-existing, non-conforming structure 36.7 ft. from the road. It is the last house on the cul de sac where the road is wider than normal contributing to the

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reduction of the setback. He submitted a letter from the neighbors across the street in support of his proposal. Mr. Pugh would like to improve the cramped condition of his entranceway and the only way to improve and enlarge the area is to go 4ft. towards the road. He indicated the location on the A-2 survey and plans and the Board members reviewed those. Discussion ensued.

During discussion, it was confirmed that Mr. Pugh was asking for an additional 6 ft. according to the plans, making the structure 30.7 ft. from the property line. Mr. Noyes commented that the essence of the hardship is the door and there are other ways to tackle that problem. Mr. Pugh commented that it is not just for functionality, but he also wants to make the entrance safer and nicer and did not feel that he was not asking for a lot. Mr. Snaith commented that the front is already non-conforming. Discussion continued.

Following discussion, the public hearing was closed.

DELIBERATIONS:

Ms. Mulcahey commented that they would be creating nonconformity where there is none which is contrary to the purview of the Board and does not see the hardship. Mr. Snaith commented that what hardship there is was self-created. Mr. Noyes commented that he cannot get past the self-inflicted hardship. The owners are making a conscious decision to subdivide, and the fact that they did not contemplate that they would have to come close to the outbuilding with the property line was a lack of foresight. He cannot find justification to grant a variance. Mr. Wolf commented that they are not preventing the owner from developing property and any decision will not prevent the owners from subdividing.

RESOLVED:

Ms. Mulcahey made a motion to deny the request for a variance to Sec. 321.5 for 44 Kellogg Hill Road to allow a proposed new lot line which would create a 15’ side setback instead of 30’ setback on the ground that the applicant has failed to show the requisite exceptional or undue hardship. Mr. Snaith seconded the motion. All in favor, the motion carried (5-0).

Mr. Noyes commented that this request appears to be that of desire rather than hardship. Mr. Wolf commented that he thinks this is a common case where the owner is looking to improve the way the home functions on a very limited scale. Mr. Snaith noted that this is not a grand gesture. Ms. Mulcahey commented that she is in agreement that it is de minimus, the house is already nonconforming and they are not increasing it dramatically. It is a modest house and you can’t move the front door to the side of the building. Ms. Hunt commented that she would vote in favor of granting the variance and thinks this is a typical case. Mr. Noyes commented that it is not a major lifestyle hardship, there can be more justification for bedrooms. He noted that the Board has recently denied an appeal

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that had the same situation and the Board should work toward conformity. Discussion ensued.

Following discussion, the following motion was made:

RESOLVED:

Ms. Hunt made a motion to approve the request for a variance Sec. 321.4 for 47 Salem Road for a 30.7 ft. front yard setback. The hardship is created by the existing non-conforming front setback and in order to correct a problem with the existing entranceway in terms of useage, circulation and safety, the only reasonable option is to build out towards the front property line. The proposed one story addition and covered platform is to be no closer than 30.7 feet from the front property line as shown on the submitted zoning location survey dated 4/25/06 (with correction to the front setback from 32.3 to 30.7 ft.) and 3 Architectural drawings entitled "Pugh Residence", latest revision dated 11/21/06, numbered A-1, A-2 and A-3 prepared by Patricia Miller. Mr. Snaith seconded the motion. The motion carried (4-1 [Noyes]).

Mr. Noyes made a motion to approve the minutes from the November 28, 2006 meeting and Mr. Wolf seconded. All in favor, the motion carried (5-0).

OTHER BUSINESS:

Mr. Wolf read a letter from Ms. Hunt regarding her resignation from the Zoning Board of Appeals effective February 1, 2007.

MOTION TO ADJOURN:

Ms. Hunt made a motion to adjourn the meeting and Ms. Mulcahey seconded. All in favor, the meeting adjourned at 9:44 p.m.

Respectfully submitted,

Delana Lustberg

Board Clerk