TOWN OF WESTON, CONNECTICUT

ZONING BOARD OF APPEALS HEARING

April 24, 2007

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

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Chairman Wolf called the Public Hearing to order at 7:30 p.m. and the Board Secretary read the notice of the public hearing into the record.

Roxane Glaser, and Jean Stony came forward and presented updated plans that showed the elevations and the proposed addition. Mr. Snaith asked for the height of the addition and Ms. Stony stated that the existing roof is 16’3" above the first floor and the new roof is 17’4" above the first floor. He then asked for discussion on the hardship.

Ms. Glaser stated that the hardship is based on the bi-sected lot and each portion is subject individually to the setback regulations and because of the age of the house, it was built right up to the property lines.

Ms. Mulcahey asked to see dimensions of the existing vs. proposed for the piece that comes out. Mr. Snaith then commented that that particular dimension in terms of the front elevation of the building is that it is still within the front line of the building would not be projecting out further. Discussion ensued.

The public hearing was then closed at 7:45 p.m.

118 GEORGETOWN ROAD, OWNER, LENHART, AUGUST – MAP 3, BLOCK 1 LOT 19, appeal to order or action by Code Enforcement Officer dated 2/28/07 and

120 GEORGETOWN ROAD, owner, WESTON I, LLC, MAP 3 BLOCK 1 LOT 20, appeal to order or action by Code Enforcement Officer dated 2/28/07.

Attorney Brian McCahn from Halloran & Sage came forward and stated that he represents the owner, Mr. Lenhart, who also came forward. Attorney McCahn stated that they were appealing from an order of the Code Enforcement Officer and gave some background on the issue. He stated that building permits were obtained for single family dwellings on 118 and 120 Georgetown Road. In the process, they found out that a neighbor brought an action claiming a right of way across the property of Mr. Lenhart. Because the property was owned by an Estate at the time, it was brought to Probate Court

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and determined by the Judge that there was no longer a right of way across the properties. The right of way was determined to be personal in nature and did not run with the land. The neighbor has brought an appeal to that decision which is currently pending in Superior Court. After learning of this action, the Code Enforcement Officer rescinded, or withdrew the permits to build the 2 single family residences pending resolution of the neighbor’s claim as to whether a legal right of way exists. Attorney McCahn stated that in giving this order, Mr. Turner has exceeded his authority per the statutes. They believe that the zoning permits for both properties should be reinstated. Discussion ensued.

Mr. Snaith then questioned whether the right of way is ever shown on a map? Attorney McCahn stated that it is not on any map and was only on a 1957 deed given with the conveyance of property, presumably for access to Georgetown Road, but does not appear in a subsequent deed dated 1964. Discussion continued.

Ms. Mulcahey then asked Attorney McCahn to discuss the issue that the right of way would further reduce the properties acreage and increase the nonconformity and discussion ensued. Ms. Mulcahey then read Sec. 400 of Enforcement for the benefit of the Board Members and commented that she reads that to mean that the Code Enforcement Officer has the right to issue a permit and then make it null and void if it is in conflict with the regulations. Discussion continued.

Mr. Wolf then questioned whether Mr. Lenhart would be prepared to remove his buildings if the Superior Court ruled in the neighbor’s favor? Mr. Lenhart explained that, even if the court were to decide that, it would not give the neighbor any ownership rights to any of his property, it would merely mean that the neighbor has the right to travel across the property to access his own and it would not affect any buildings that were on his property.

Robert Turner, Code Enforcement Officer arrived at the meeting. Mr. Wolf asked him to explain in detail why he won’t allow the property owner go forward with his project. Mr. Turner explained that he rescinded the permits because of the court case and he was advised that he could not go ahead and issue permits if, on the basis of the court case, the result would be more non-conformities in the lots as they stood. He held this matter in abeyance until the Court makes its ruling. He noted that Mr. Lenhart drew up a map indicating an alternative right of way should he have an adverse court ruling and further noted that it would reduce the acreage of the property. Mr. Turner then addressed the issue of the deduction of the acreage of a property when you grant a right of way and discussion ensued.

Mr. Turner explained that he is able to issue a permit for the front lot, as it exists today with the current right of way because it pre-exists, but if the hypothetical right of way is added, it will make the front lot less conforming than it was before. That is why he wanted to wait to see what the outcome of the court case is because if it does not go in the neighbor’s favor, then the whole issue goes away.

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Following additional discussion, the public hearing was closed at 8:37 p.m.

106 LORDS HIGHWAY, owner, JPF LORDS HIGHWAY, LLC, Map 15 Block 2 Lot 29, parcel A, & 106 LORDS HIGHWAY, LLC, owner, ADC, Map 15 Block 2 Lot 30, parcel B, appeal to order or action by Code Enforcement Officer dated March 7, 2007.

Attorney John Meerbergen came forward to represent the applicant along with Michael Buturla, P.E., L.S. Attorney Meerbergen presented copy of letters regarding the issue to be entered into the record. Mr. Buturla came forward and presented a chain of title going back to 1907 until the current owner and certified deeds from 1938 to present as asked that they be entered into record. He presented a map showing the two properties and stated that Mr. DeCarlo purchased the front property and then the rear lot and went on to explain the related maps. Mr. Wolf questioned whether the properties are taxed separately and Attorney Meerbergen explained that up until just recently, they were taxed separately but somehow recently the tax assessor combined both pieces, which they believe was an error and not binding on this Board, especially since they are in separate ownership. He then explained that JPF purchased Parcel A by deed dated 11/30/06 and ADC purchased Parcel B on 11/22/06 and that what is on an assessors card does not determine whether they are 2 lots, the deeds indicate that they are two separate parcels.

Mr. Buturla then went on to describe the chain of title of the properties for the Board Members and also read the deed for their benefit.

Robert Turner, Code Enforcement Officer then came forward and pointed out Provision 311.5 and stated that he is not disputing any of the title searching done here. His point is that it doesn’t matter what the origins were, or how it may have been sold to Mr. DeCarlo, 311.5 occurs when there is a non-conforming parcel that abuts a conforming parcel and they are in the same ownership, they automatically merge without any initiation of the owner. At one point, Mr. Schilling owned both parcels in same name and that is the point at which they merged. Discussion ensued.

Attorney Meerbergen then noted that they are challenging Mr. Turner’s decision based on his interpretation of the regulation. They disagree with Mr. Turner’s interpretation and he continued to describe the reasons for their interpretation. Mr. DeCarlo then commented on his interpretation of the regulation.

Attorney Pat Sullivan commented that Mr. DeCarlo has one conforming lot and then a residual piece. It may be one acre, but because it is not over two acres, that one acre gets merged into the two acres that exist. In response to a question posed by Ms. Mulcahey regarding the land records indicating that they are separate lots and the tax assessors says that they are combined, Attorney Sullivan pointed out that you can own a parcel of land, but that doesn’t make it a building lot. There could be different reasons why a parcel of land could not be considered a building lot, such as no access, shape or wetlands. The day those two parcels were put into common ownership, in this case, Mr. Schilling, is the day that those two parcels were merged. Attorney Sullivan further noted that if the property already had a house on it, it would be a different situation, but if you are looking

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to build on a piece of property that is undersized and you own adjacent property, they merge. Discussion followed.

Ms. Mulcahey posed a question regarding what would happen if there were two non-conforming lots that when combined, would still not create a conforming lot and Attorney Sullivan explained that it would make a lot that was less non-conforming. Discussion continued.

Attorney Robert Sakowsky from Robinson & Cole came forward and stated that they represent the owner of 107 Lords Highway. He commented that intent is one way to measure a merger under case law, the other way to talk about merger is what is in the regulations. Regulatory merger is what is at issue here and asked the Board to uphold the determination of the code enforcement officer. He further commented that the Warranty Deed, to JPF Lords Highway states that the property was conveyed for $1.

The Public Hearing was closed at 9:35 p.m.

Attorney Jim Murphy, came forward and stated that he represents the owners in their plan to build new house and take down old house. They are requesting a variance because the lot is very narrow and only 104 feet wide. He pointed out the existing house on the plan and then the proposed which, although still non-conforming, would be more conforming than it is now. The property is only 1.3 acres, legally non-conforming, The side of the house currently meets the setback, but it is very close. They are asking for 21 feet because they want to account for any "mistake zone". Attorney Murphy pointed out the difference in grade from the ridge to the pond is 24 ft. making a very steep drop off and where the wetlands line was located. The new house will be kept at the top of the hill where the existing is and compatible with the other houses in the neighborhood.

Attorney Murphy then addressed the issue of hardship noting that it would be difficult to make the new house narrower and pointed out that they would be decreasing, not increasing the nonconformity and they are asking for a side yard setback on one side only.

Mr. Noyes pointed out that when a building on a non-conforming lot is demolished, the regulations say you cannot rebuild short of obtaining conformity. Attorney Murphy explained that is why they were coming for a variance first and went on to clarify their position. Discussion ensued.

Mr. Noyes commented that he thought it was a good plan but his reservation was if they were to knock the house down, would they lose the pre-existing "grandfather" status and he thinks that Attorney Murphy pointed out that it is a building lot and they would not

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lose that which clarified that issue for him. He further commented that the incursion into the side setback from 12 to 20-something feet is an improvement.

Mr. Snaith commented that he agrees with Mr. Noyes and doesn’t have a problem with the proposal but thinks that they should try to minimize the encroachment by swinging the house to the east setback line and suggested 25.6 feet on the west. Some discussion ensued in which they verified in Sec. 312.1(a) that the chimney can project into the setback up to 3 ft.

The public hearing was closed at 10:11 p.m.

Attorney Sullivan came forward and stated that she agreed to bring a letter from Attorney Fallon with a proposal from the owners to reduce the requested variance on side. Ms. Mulcahey asked Attorney Sullivan to describe the appellate procedure for the Board. Attorney Sullivan then read from the letter from Attorney John Fallon where he indicates that the owners have, in an effort to resolve the matter amicably, revised their plan to reduce the width of the porch to 6 feet and asked whether the Board would consider a review of the current proposal.

Ms. Mulcahey questioned what would have happened if the owners did not appeal their decision and if there was a time frame in which they could have returned? Her thought is that, what if anyone who did not like their decision threatened a lawsuit with a hope of negotiating into a compromised position? Attorney Sullivan noted that strategy is not unheard of, but it is entirely up to the Board to decide what position it will take. Discussion ensued.

Mr. Noyes pointed out that the stoop that they are claiming as 5 feet 9.5 inches is at ground level and is not a structure in any sense and what they are looking to build above it is a whole structure. They are trying to equate a ground-level slab with a whole structure in terms of setback. Mr. Wolf commented that in looking through the minutes, he does not see a reason to reverse their decision. Ms. Mulcahey commented that she would not be inclined to make a decision now, but would be inclined to have them come back with a new application or part of the appeal process. Mr. Snaith commented that he does not see anything new except that they are proposing 2 feet less and there is still no hardship.

MOTION:

Mr. Noyes made a motion to not entertain a settlement of the litigation and Mr. Snaith seconded. The motion was voted on and carried (4 in favor, 1 abstain [Gardner]).

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Deliberations:

GLASER - 7 BRIDGE ROAD:

Mr. Wolf commented that the house is already non-conforming and they are just filling-in.

Mr. Snaith made a motion to approve the request for a variance as shown on a plan prepared by Walter Skidd, Land Surveyor, LLC dated 4/17/06, and Stoney-Disston Architects, drawings labeled S-001, D100, D101, D102, A-100, A101, A-201, A202. The ZBA has included additional dimensions on the marked-up copy of the drawings. The hardship is based on the lot pre-existed zoning, it is bisected by a road servicing one additional house, there is no conforming way to expand this house and it does not increase encroachment. Mr. Gardner seconded the motion. All in favor, the motion carried (5-0).

118-120 GEORGETOWN ROAD –

Mr. Wolf commented that he is not sure why the property owner should be prevented from going forward with construction. Ms. Mulcahey commented that if the pending litigation is going to increase the non-conformity then he will have to come back for a variance. Mr. Snaith stated that if the right of way is deemed legally existing, than it pre-existed zoning and would not be increasing the non-conformity. Either case, the owner should have right to build on the lot, understanding that if the easement goes through the property it is the owner’s problem. Discussion ensued.

Mr. Gardner made a motion to sustain the appeal of the appellant and Mr. Noyes seconded. The motion was voted on and carried (4 in favor and 1 abstain [Mulcahey]).

Mr. Snaith commented that it appears that the language of the regulations indicates that the two pieces became one or merged when they both came under single ownership. It would seem to him that Bob Turner’s position to deny a permit for parcel A should be sustained. Mr. Wolf commented that the Seller and the Buyer did not go into this transaction blindly and you don’t get a building lot in 2006 for that amount of money. The Seller did not consider it a building lot and the owner took his chances. Mr. Wolf commented that he believes that they should uphold the Zoning Enforcement Officer’s decision. Mr. Noyes agreed. Ms. Mulcahey commented that the regulations can be interpreted in many ways and no one should be forced to merge two properties, but this regulation speaks to whether you want to build on those two properties and she can’t see that lot A is a buildable lot.

Mr. Noyes made a motion to support the decision of the Zoning Enforcement Officer dated 3/7/07. Mr. Gardner seconded the motion. All in favor, the motion carried (5-0).

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24 SPRING VALLEY ROAD –

Mr. Noyes commented that he did a very thorough site inspection and is sympathetic to the needs on the property. The lot is a hardship as pointed out by the applicants. They have tried to design a house compatible with the neighborhood with a minimum incursion into setbacks. He stated that he tends to favor this given the clear topographical hardship on the pre-existing building lot. Mr. Snaith commented that they requested that the applicant agree to reduce the encroachment on the east side to 25.6 feet, which they did, and it should be noted that there is a decrease in the nonconformity.

MOTION:

Ms. Mulcahey made a motion to allow a variance to Sec. 321.5 to allow for a side yard setback of 25.6’ as shown on plans prepared by Civil One, dated 8/23/06 and revised 3/22/07 with handwritten notations made tonight indicating the revised east setback line showing the 25.6’. The hardship is based on the pre-existing nonconformity and topographical hardships. Mr. Gardner seconded the motion. All in favor, the motion carried (5-0).

MOTION TO ADJOURN:

Ms. Mulcahey made a motion to adjourn and Mr. Noyes seconded. All in favor, the meeting adjourned at 11:25 p.m.

Respectfully submitted,

Delana Lustberg

Board Clerk