TOWN OF WESTON, CONNECTICUT

ZONING BOARD OF APPEALS HEARING

March 27, 2007

Present: Board Members: Chairman Richard Wolf, Carolyn Mulcahey, MacLeod Snaith, Nick Noyes and Alternates: Robert Morse and New Members: Robert Gardner and Harriette Heller

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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.

Mr. Wolf asked the new members to introduce themselves and then noted that the 5 voting members will be Mr. Wolf, Ms. Mulcahey, Mr. Snaith, Mr. Noyes and Mr. Morse. He also noted that the 107 Georgetown Road appeal had been withdrawn.

Mr. Wolf noted that Attorney Rubin, the attorney in this matter, had represented him in the past and after discussing it with the Town Attorney, he felt it would not create a conflict of interest in this matter.

Mr. Rubin came forward to present the proposal. He summarized by stating that in the 1970’s, CN Builders bought 7 acres of land, and in that sale, CN Builders retained a right of way and reserved the right to relocate and in doing so, eliminated its frontage and became land locked. He presented additional maps and explained that there are currently 2 properties using the right of way and pointed out that the property does not have frontage on Lyons Plains Road. If the owner could get an easement over the adjoining lot, it would then create a split lot for that owner. Attorney Rubin then noted that the subdivision regulations limit the number of houses using a permanent dead end to 12 and there are at least 14 houses using that on Fern Valley Road.

Attorney Rubin then explained that during the Guidera P&Z subdivision hearing, CN Builders asked for easement but were denied and presented copies of that decision the the Board. He stated that the hardship is that the property is land-locked and would need a variance in order to have access to the property. Discussion ensued.

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Mr. Wolf questioned whether there was any way to widen the roadway to allow for the third house. Mr. Snaith noted that the owner seems to have created the hardship when he sold off the portion of the parcel that would give access to this lot. Discussion continued.

Mr. Wolf then asked for public comment:

Dr. Lisa Miller, 272 Lyons Plains Road, came forward to clarify false impressions in the documents and pointed out that the current easement is shared by 3 families as one of the properties is a duplex. The proposal from CN Builders would increase the use to 5 families because there are 2 buildable lots across the road. She noted that her home is the original "Wood property" and they use that easement to get in and out of her property. She then indicated on the map where the neighbors live and stated that she has signatures from the neighbors that they consider the proposal dangerous. Dr. Miller then summarized by stating that her first concern is for the safety of the 3 families currently using that easement, the second concern is that area is the surrounding wetland area and her third concern is that based upon the contract made decades ago, property values were purchased and maintained, and any additional useage of that right away would affect her property value.

Susan Feliciano, 264-266 Lyons Plains Road, came forward on behalf of her and her husband and read from a prepared statement which she then submitted to the Board. She noted that for a property to obtain a variance, it must be found that the applicant has a clearly demonstrated hardship and that any hardship must not be self-created. She further noted that the applicant created this hardship and his intention is to develop the property and they would oppose that intention. She thanked the Board for its time.

Attorney Rubin the commented that it is not the number of families that use the right of way, it is based on the number of lots. There could be 8 families living there, but it is still one lot. He stated that they will have to go to Conservation and to P&Z and would go through administrative approvals if it were to obtain a variance approval from the ZBA. He further noted that the owners took ownership subject to the right of way and that even though CN Builders has a legal right to use the right of way, it does not have a zoning right to use.

Ms. Mulcahey then asked Attorney Rubin to elaborate on conversations they had with Mr. Guidera or the developer of the adjoining property.

Gene Varance, 262 Lyons Plains Road, came forward and stated that his property is adjacent to this lot and he has lived there for 62 years. He noted that the Town has zoning laws for a purpose and to circumvent those or to ask for a variance, it must be really well intentioned. He further stated that the self created hardship is not a hardship and that Mr. Niewenhouse created this hardship and was paid for the land he sold when he created this hardship.

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Following some additional discussion and hearing no further public comment, the Public Hearing was closed at 8:31 p.m.

Roxane Glaser, came forward to discuss their proposal. She noted that they live in the Stonybrook section of town where the lots are small and irregular. Her lot is made up of 2 smaller lots with Bridge Road bisecting their property. The house is already non-conforming, it is a bisected lot with the house right on the property line. There is an existing patio that they would like to enclose and to also add a porch along the side.

Mr. Snaith commented that there is nothing that they can do to this house that would be in compliance and all the work that they are proposing is still within the building footprint. It would be basically in-filling, and wouldn’t project past the existing front lines. Discussion ensued.

Following discussion, Mr. Wolf stated that the Board would need to see a more detailed set of drawings in order to consider approving a variance. Mr. Snaith noted that the detail needed is the dimensions and a plan that shows the differentiation between what is existing and what is proposed.

The hearing was then continued to the next meeting.

Attorney Steve Cohen, representing the owner, came forward and explained that the Code Enforcement officer had issued a C&D against the fence that topped the stone wall in front of the property. In order to have the C&D lifted, they are seeking a variance for the location of the wall with fence on top. He explained that the property was purchased in 2005 and at the time, there was the original stone wall in front of the property. He stated that in a conversation with Mr. Turner, he stated that if they move the wall back 10 feet it would be in compliance. They did not know at that time that the location was wrong. Mr. Wolf then read the Cease & Desist Order into the record. He noted the only the height of the fence was the issue. Attorney Cohen commented that the builders acted in reliance on what Mr. Turner told them. Bill Trudeau, from Aspetuck Builders, commented that Mr. Turner told him that if they move the wall back 6 feet it will be in compliance.

Kathryn , who was the realtor that represented the sale commented on her knowledge that a conversation was had with Mr. Turner regarding the location of the wall.

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Attorney Cohen also presented pictures of properties around town with comparable wall/fence height and distance issues. Mr. Wolf then asked Mr. Turner why this specific property was chosen to issue a Cease & Desist on when there seem to be a number of non-compliant fences in town. Mr. Turner commented that this property is one of a number of properties that he is currently taking action on. Discussion ensued.

Roger Staker, licensed land surveyor, came forward and stated that he was not involved in the construction, but ultimately the Board should consider the unusual location of the property, which is located on the busiest road in town, and whether it warrants leaving the fence in. He questioned whether this present condition would be detrimental or whether it would be beneficial given the location. It provides an attractive screening for the home, reduces noise and light pollution and is in general harmony with the community. He urged the Board to vote in favor of the variance.

Hearing no additional comments, the public hearing was closed at 9:45 p.m.

DELIBERATIONS:

Lyons Plains Road - CN Builders:

Mr. Noyes began the deliberations by commenting that the term self inflicted comes to mind. Mr. Niewenhouse owned all of that property and sold off the access, counting on alternates from the other side of the river to access this 4 acres of land that he retained. He further commented that his inclination is to deny the variance because he can’t justify the hardship out of the context of self created. Mr. Snaith commented that he had nothing to add and would concur that this hardship is self created. Mr. Morse stated that he also agrees that it was of the owner’s own doing. Ms. Mulcahey added that the road across street has a lot of traffic coming out of it and it would make for a very congested area with a big safety issue.

RESOLVED

Mr. Noyes made a motion to deny the application for a variance to Sec. 321.4(c) for CN Builders to permit three lots to be served by a shared 30’ right of way and Sec. 321.4 to permit a lot without any frontage. The denial is based on an insufficient and self created hardship together with traffic safety concerns. Mr. Snaith seconded the motion. All in favor, the motion to deny carried (5-0).

171 Weston Road - Steve Merrick.

The Board members reviewed the stated hardship. Ms. Mulcahey commented that there should have been a permit in place for the fence regardless of a verbal comment. She stated that she would not want to open the door to other builders to circumvent the permit process then come back and say "Bob said…". Mr. Wolf commented that the responsibility to conform to the zoning regulations rests on the shoulders of the property owner. He stated that if the request for a variance was coming in fresh, on that busy road

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and on a straight-away where the height of the wall and the fence is really not impeding anyone’s vision, he would be inclined to approve it, but he has trouble seeing a real hardship. Mr. Morse commented that it seemed like there was good faith in trying to comply with the regulations and that leaving it would not seem unreasonable. Mr. Snaith commented that if they were to approve the variance, then they create the problem of "spot zoning". Mr. Wolf noted that they don’t have the ability to change the zoning laws and the hardship seems to be completely financial.

Appeal from Cease & Desist Order:

RESOLVED:

Ms. Mulcahey made a motion to uphold the Cease & Desist Order regarding the height of the fence on top of the stone wall on the grounds that the Cease & Desist is in compliance with the Town’s regulations. Mr. Noyes seconded the motion. All in favor, the motion carried (5-0).

Variance to Sec. 313.2 to permit current location of fence:

Mr. Snaith made a motion to deny the variance to 313.2 to permit the current location of the fence on top of the stone wall due to the lack of demonstrable hardship. Mr. Noyes seconded the motion.

Mr. Morse commented that he feels that there is enough "wiggle" room as this property is in an area where there is traffic 24 hours a day traffic and with so much nonconformity in Town already, he doesn’t see why there can’t be some le-way here.

The motion to deny was voted on and carried (3 [Noyes, Snaith, Wolf] -2 [Mulcahey, Morse]).

MOTION TO ADJOURN:

Mr. Wolf made a motion to adjourn and Ms. Mulcahey seconded. All in favor, the meeting adjourned at 10:40 p.m.

Respectfully submitted,

Delana Lustberg

Board Clerk