ENFIELD ZONING BOARD OF APPEALS
MINUTES OF A REGULAR MEETING
JULY 28, 2003
A Regular Meeting of the Enfield Zoning Board of Appeals was held on Monday, July 28, 2003, in the Town Hall Council Chambers, 820 Enfield Street, Enfield, Connecticut.
Chairman Peter Yarum called the meeting to order at 7:07 p.m.
PRESENT: Peter Yarum, Chairman
John Rinaldi, Vice Chairman
Kevin Kibbe
David Alexander, Alternate
ABSENT: John LeDoux, Secretary
Edward Furey
Paul Thorogood, Alternate
ALSO PRESENT: Roger Alsbaugh, Assistant Town Planner
PUBLIC HEARINGS
Chairman Peter Yarum gave audience members the option of rescheduling their public hearings to the next Regular Meeting. The reason for this was only four Board members were present and four votes are required to approve a variance. The applicants scheduled for this evening chose to proceed.
Chairman Yarum apprised the applicants of when a variance can be granted.
Alternate member David Alexander was seated.
Kevin Kibbe was appointed as Secretary pro-tem for the evening.
READING OF THE LEGAL NOTICE
Mr. Kibbe read the legal notices for the public hearings.
ZBA 2003-06-02 – Christopher Cutter, 22 Oxford Drive, Map 58 / Lot 292, R-33 Zone: Variance: commercial vehicle exceeding ¾-ton capacity on residential lot. – Sections 4.20.1(3) & 10.10.1(G)
Mr. Chris Cutter of 22 Oxford Drive appeared before the Board regarding this application.
He stated that he is requesting a variance for a commercial vehicle exceeding ¾ ton capacity on a residential lot. He has a mobile tool business and has been parking his truck in his driveway for the past 3 years. At the last meeting, he presented a petition signed by most of his neighbors, who did not mind the truck being parked there. Also at the last meeting, noise, traffic, and safety factors were addressed. He stated that his hardship is the need for the vehicle to be plugged in at night due to the numerous batteries on board. Also, the truck contains valuable inventory and if it were parked at a storage facility, no one would hear the theft alarm.
Mr. Cutter explained that, after the Board’s last meeting, he checked at the local storage facilities and found that power would not be available to his truck on a daily basis, only for occasional vacuuming or other temporary usage.
Mr. Cutter also noted that a similar variance was granted to a resident on Sandpiper Lane, several years ago.
Mr. Cutter conducts no business out of his home, or out of his truck in Enfield. His territory is Vernon and Manchester, Connecticut.
Mr. Cutter stated that the truck is not only his mode of transportation, he is on call and needs quick access to the vehicle.
He noted that the truck is a 2000 model and is well maintained. It can be parked on the side of the house which would shield it from view from the north and south.
In response to a question by Mr. Yarum, Mr. Cutter stated that the hardship is not self-imposed because this is the only type of vehicle available for this type of business. It is imposed by the type of employment he has. Changing employment is not an option. The vehicle must be plugged in daily.
Mr. Yarum briefly reviewed the variance granted on Sandpiper Road. It was granted in 1991 by a different board. New Zoning ordinances have been introduced since then. Also, the variance goes with the property, not the owner, so sale of the property would allow the next owner the right to have a ¾ ton or larger vehicle on the property, which may be an eyesore or safety concern.
In response to a question by Mrs. Heidi Cutter as to why the Sandpiper Road variance was granted, Mr. Alsbaugh noted that the date approved makes it a moot point. It was before Zoning Regulations were updated. Also, variances are decided on a case by case basis. The prohibition of parking commercial ¾ ton trucks dates back to at least 1964.
At this time, the hearing was opened to the public.
The resident of 23 Oxford Drive spoke in favor of Mr. Cutter’s application. He stated that the truck is not an eyesore, is not a problem or a safety issue.
Gary & Kate Agli also spoke in favor, noting that the layout of the property allows the truck to be well hidden.
Mr. & Mrs. Trangita also spoke in favor. Mrs. Trangita noted that her husband had to sell his truck, which was his livelihood. She also noted that since the ¾ ton trucks are sold in town, they should be allowed to be parked in town. She also felt that the Board should take into account that this is the applicant’s livelihood.
Mr. Baker of 7 Arrow Street also spoke in favor. He has a truck larger than ¾ ton and feels he has a right to make a living. He gave examples of other types of small businesses that this regulation could affect, such as oxygen suppliers, oil furnace repairmen, contractors. In theory, none of those types of vehicles could be parked in a residential area, even during the day when these people might be working at a home.
In discussion with various board members, Mr. Baker pointed out the financial hardship of being forced to park the vehicle at a storage facility, if it is even feasible. In response to a comment by Mr. Alexander, Mr. Baker noted that the cost to park at a facility may not be covered as a business expense or by an employer. Many of the people affected are required to have the truck at all times and is part of their hourly wage. He noted that the trucks are actually tools for the job. He feels the current regulations should be amended.
Mr. Rinaldi noted that it is up to the Planning & Zoning Commission to amend and write regulations. The Zoning Board of Appeals can only grant variances; it cannot change regulations.
Chairman Yarum noted that the Zoning Board of Appeals can, by way of this comment, recommend to Staff that this regulation be considered for amendment by Planning & Zoning.
Mr. Alsbaugh took note of Mr. Yarum’s request and added that this particular regulation is already under review by the Town Council. He also noted that the applicant and audience are making valid points, but the Zoning Board of Appeals cannot entertain these points for granting a variance.
He went on to say that the issues being brought up are financial and that is legally not something the Zoning Board of Appeals can consider, by both state law and case law. The Planning & Zoning Commission will review the Zoning regulation and determine if a problem exists. If there is one, they can fix it.
Mr. Alsbaugh also referred to the variance granted on Sandpiper Lane and stated that the current Board cannot go back and second guess the previous board’s decision or whether or not it was a correct decision.
Mr. Alsbaugh also noted that anyone, even a non-resident, can request a text change of regulations through the Planning & Zoning Commission.
Chairman Yarum opened the hearing to those who wished to speak against the variance request. No one came forward.
This public hearing was closed at 7:48 p.m.
ZBA 2003-06-04 – Michael & Janene Bernier, 150 Bernadino Ave. (a.k.a. Enfield St., ID #00071080), Map 35 / Lot 227, R33 Zone: Appeal of Zoning Enforcement Order, un-permitted residential structure. - Sections 4.10.2 & 4.20
Michael Bernier and his attorney, Carl Landolina spoke to the Board regarding this application. Mr. Landolina explained that Mr. and Mrs. Bernier acquired the property in February, 2003. It had previously been owned for 20 years by Judith Alaimo.
The property consists of one 3-family building and one “outbuilding”, the use of which is the reason for the appeal. The building has been and is being used as a residential unit which violates zoning regulations.
Mr. Landolina stated that this building has been used as a residential unit for approximately 50 years, constituting a legal, non-conforming use. He presented several photographs and documents.
One document is a statement signed by the Enfield Postmaster indicating that the property has 4 official post office addresses, unit D being the freestanding “outbuilding”. There is no indication of how long this has been the case.
Mr. Landolina also presented copies of Assessor Cards dating back to 1949 which indicate that the property had 2 cards, #2 of 2 was specifically for the outbuilding. For it to have its’ own card back in 1949 indicates it was more than a shed or garage. That card also states that the assessment was $1,200. The 3-family dwelling was assessed at $4,600, for a total of $5,800. 25% of the assessment is dedicated to the outbuilding, which seems extremely high if it were just an outbuilding. The card also shows that the building has a cellar, one bathroom, heat, and a total of 4 rooms, also indicative of a residential unit.
A current tenant of the larger house, Donna Bonesteel, has been a resident there since 10/1/1994 and spoke to the fact that the smaller unit has had tenants consistently since she has been residing there.
Mr. Allen Thibideau, who was unable to attend this evening, also noted that while he was working on the property, an older gentleman stopped by and stated that he had lived there in the 1940s’ and was pleased to see that someone was putting siding on it.
In response to a question by Mr. Landolina, Mr. Bernier stated that he applied for and received a building permit for exterior work to be done on the building, which he described as a residence on the building permit application. The permit was initially approved on March 31, 2003. Mr. Bickley signed the permit at that time.
Mr. Landolina then produced a copy of the zoning regulations from the 1920’s through 1955. He stated that they contain nothing that would not permit use as a second residence.
He stated that the applicant’s claim that the residence is legal, nonconforming is that the use was lawful at the time that the new regulations came into existence.
The house was built approximately 1915. It is unknown if it has been used as a residence from the beginning.
Although she was unwilling to appear before the Board, Mrs. Alaimo stated to Mr. Landolina that she had rented the outbuilding as a residence the entire time she owned the property.
In response to a question by Mr. Rinaldi, Mr. Landolina stated that the deed doesn’t state exactly what the property buildings consist of and the mortgage contains a rider for “four family or less”.
Mr. Alsbaugh stated that a real estate listing is not considered an official document, in response to a comment by Mr. Rinaldi. He also noted that even a title search may not reveal details of the buildings.
Mr. Bickley then spoke to the Board. He stated that only one dwelling is allowed per lot. Also, the postal document doesn’t say how long the outbuilding has been considered a dwelling unit.
He also noted that the building permit application states one family but also a garage and exterior repairs and demolition.
The Assessor’s cards, in subsequent years, do not indicate a dwelling unit. The 2001 revaluation shows the building to be a one car detached garage with no living quarters.
Mr. Alsbaugh noted that the 1949 card references a garage & fruit stand which might affect the assessment. He recommended that the Board review the cards carefully.
Mr. Landolina responded that the card indicates a porch used as a fruit stand. The building had plumbing, 4 rooms, a cellar and heating. It is unknown if the assessor actually entered the property in 1971.
Also, the building does not even have a garage door – only a 36” entry door. It is reasonable to interpret the use of the building as a dwelling in 1949.
Mr. Alexander asked if a garage would have had its own Assessor card. Mr. Alsbaugh replied that it has happened and reminded Board members that zoning regulations state what is allowed. In this case, it references “dwellings, up to four families, must be fireproofed.”
After Mr. Bickley retrieved an old zoning map from his office, members reviewed the location of the property and found that it was in the “B” zone.
Chairman Yarum recommended that the Board defer further discussion and decision on this matter until the September, 2003 meeting to allow members to review all the information presented. If the public hearing is closed now, no new information could be presented.
No one in the audience came forward to speak for or against this application, when invited to do so by Chairman Yarum.
At 8:22 p.m. this public hearing was closed.
ZBA 2003-07-01 – George A. Colli, 1 Katie Lane, Map 116 / Lot 18, R-44 Zone: Rear yard variance of 6 ft., 54 ft. proposed, 60 ft. required, to construct new deck. - Section 4.10 Table
Mr. George Colli, developer of Katie Lane and Mr. David Palmer explained to the Board that the subdivision is complete except for lot 1. He is requesting a variance for this lot. It is surrounded by State land.
There is a 60’ building line and his request for a variance of 6’ is for one part of the 300 square foot deck. It consists of 27 square feet to allow residents to get in and out of the door to the deck. The lot is irregular due to the curve in the road. The house is complete, except for the deck.
Mr. Colli went on to explain that the lot is like a peninsula. The state land in the rear is open space and eventually will be part of the Scantic River Recreation area.
Mr. Palmer explained that the proposed deck will be 24’x14’ and jags 8’ on the north side, where the variance is being requested.
Mr. Colli added that they plan on only needing 4’ but are requesting 6’ just in case.
Chairman Yarum noted that the plan submitted with the application does not show a hatchway, however a plot plan dated 6/14/02 does show one.
Mr. Alsbaugh noted also that the actual hatchway, if drawn correctly on the plan, is over the building line.
Mr. Palmer explained that in other towns, the hatchway is not considered part of the footprint.
Mr. Alsbaugh stated that in Enfield, if it is on the property and attached to the house, it is part of the footprint.
Chairman Yarum added that it should be part of the “as built” plan. The Board needs to be able to determine the correct dimensions in order to make a qualified decision on the application.
Mr. Palmer stated that the “as built” plans have not been filed yet.
At this time, due to being able to provide complete information to the Board, Mr. Colli requested that his application be withdrawn.
ZBA 2003-07-02 – John J. Shepard, 1 Belinda Lane, Map 53 / Lot 289, R-33 Zone: Appeal of Zoning Enforcement Order & Variance: commercial vehicle exceeding ¾-ton capacity on residential lot. - Sections 4.20.1(3) & 10.10.1(G)
Mr. Alsbaugh explained that he filed and advertised Mr. Shepard’s application as both an appeal and request for variance because the text that Mr. Shepard submitted was a description of a hardship.
Mr. Jon Shepard and his daughter spoke to the Board. Mr. Shepard explained that the large truck is required by his employer, whose location is over 100 miles away. His territory is Connecticut and Western Massachusetts. The truck has very expensive equipment – high pressure washers and floor care equipment. The truck requires heat for the equipment and a block heater for the motor. The truck is parked at his home only nights and weekends.
The truck is parked toward the rear of his property, barely visible from the street. Mr. Shepard provided photos to this effect, showing the property from the front and from neighboring properties.
Mr. Shepard also provided letters of support from his neighbors.
He explained that the home is on a corner lot, near heavily trafficked Post Office Road. He installed a driveway and garage in the back of the house and parks the truck 100 feet back from the road. The truck enters and exits directly onto Post Office Road. Neither safety nor noise is an issue.
Chairman Yarum noted that Mr. Shepard provided 12 photos and letters from owners at 2,3, & 4 Belinda Lane and 168 Post Office Road.
Mr. Shepard also provided a letter dated 11/21/02 from a Certified Appraiser, Cindy Nemeth, stating that the parking of the truck on this property has no effect on his property or that of surrounding properties.
He noted that the complainant used to work for the same company that he does and he had the same type of truck that he parked at his home.
Mr. Shepard’s daughter asked why these appeals are taken on a case by case basis if a previous case on Sandpiper Lane was approved, with exactly the same circumstances.
Chairman Yarum explained that the variance goes permanently with the property.
At this time, Chairman Yarum opened the hearing for public comment.
Mr. William Sempel, owner of Power America, Mr. Shepard’s employer, is in favor of the appeal and variance. He stated that he felt this is discrimination. He noted that transportation costs are high and many types of employers require employees to take their vehicles home, such as cable, heating, and others. Mr. Shepard often has morning appointments as early as 6 a.m. Storage facilities are not plowed out in the winter on a timely basis and often cannot supply the electricity required to keep the truck and equipment warm. He noted that he has ten employees that take their trucks home in Connecticut, Massachusetts, New Hampshire, and Vermont and he has never had this problem before.
In answer to a question by Chairman Yarum, Mr. Semple responded that the truck has a 4 to 5,000 lb carrying capacity.
Mr. Alsbaugh stated, in answer to a question by Mrs. Shepard that the current regulations apply only to commercially registered vehicles over ¾ ton capacity not the gross weight of the vehicle.
He again noted that citizens are allowed and even encouraged to request a change in the regulations from the Planning and Zoning Commission if they feel the current regulations are incorrect.
Mr. Charles Pike of 4 Belinda Lane stated that Mr. Shepard’s truck is not an eyesore, not visible and he has no objections.
Carl Shewinski of 2 Belinda Lane also is in favor of Mr. Shepard’s application and hopes that officials are able to find a solution to solve the problem.
Dianne Dugan of 168 Post Office Road also spoke in favor of Mr. Shepard’s application. She lives 20’ away from the truck and stated that it is no bother.
Mr. Dugan also spoke in favor and added that the Shepards have one of the nicest yards in town.
Mrs. Cutter of 22 Oxford Drive, also in favor, felt it would be in the town’s best interest to look at the intent of the regulation, to keep neighborhoods nice and neat and feels the neighbors are qualified to determine what is acceptable.
She also added that she was disappointed that the Staff and Board did not look into the Sandpiper Lane approval more and feels the application & appeals process is not clear to the average citizen.
Mr. Baker spoke in favor the application.
Mary Ann Turner of 7 Meadow Road spoke against the application and explained that she filed the original complaint because of neighbors renting across from her home. She understands the frustration of those present but noted that the regulations can be changed.
Mr. Bob Tkaz of 1300 Enfield Street stated that he took photos of approximately 35 commercial vehicles and gave them the Zoning Enforcement Officer. His truck is registered with combination plates.
This public hearing was closed at 9:35 p.m. and a brief recess called.
REGULAR MEETING
1. Call to Order
The regular meeting was called to order by Chairman Peter Yarum at 9:45 p.m.
2. Roll Call
Chairman Peter Yarum and regular members Kevin Kibbe and John Rinaldi, and alternate member David Alexander, seated.
3. Approval of Minutes –June 30, 2003:
Mr. Alexander made a motion which was seconded by Mr. Rinaldi to accept the minutes of the meeting of June 30, 2003 as presented. Vote was 2-0-2 (Kibbe & Yarum).
3. Correspondence
Mr. Alsbaugh briefly reviewed the correspondence with the Board. Included in the correspondence was a copy of the pertinent Enfield Zoning Ordinance Section, Decision letter from the meeting of June 30, 2003, a formal withdrawal receipt letter, a copy of the Town attorney Report for July, 2003, a copy of PA 03-184, effective 10/01/03 which adds the option to municipalities for the decision making process for vehicle sales and repair and gasoline service businesses, and a memo from the Director of Planning And Community Development on the regulations prohibiting commercial vehicles over ¾ ton capacity in a residential zone.
5. Old Business
NONE
6. New Business
ZBA 2003-06-02 – Christopher Cutter, 22 Oxford Drive, Map 58 / Lot 292, R-33 Zone: Variance: commercial vehicle exceeding ¾-ton capacity on residential lot. – Sections 4.20.1(3) & 10.10.1(G)
Mr. Rinaldi made a motion, seconded by Mr. Alexander to approve a variance for a commercial vehicle exceeding ¾ ton capacity on residential lot. EZO Sections 4.20.1(3) & 10.10.1(G)
Reference is made to a site plan titled "Megson & Hyppa, Civil Engineers, Survey of Lot #115, (from Final Plan, S.L. Starr, dated 8/20//65), and dated 10/4/66", as submitted for this application, and to all documentation and discussion under ZBA 2003-06-02.
Vote was 0-0-4. Mr. Rinaldi explained that the request for variance is not unique and no acceptable hardship was proven.
ZBA 2003-06-04 – Michael & Janene Bernier, 150 Bernadino Ave. (a.k.a. Enfield St., ID #00071080), Map 35 / Lot 227, R33 Zone: Appeal of Zoning Enforcement Order, un-permitted residential structure. - Sections 4.10.2 & 4.20
Tabled for clarification of information from Staff.
ZBA 2003-07-01 – George A. Colli, 1 Katie Lane, Map 116 / Lot 18, R-44 Zone: Rear yard variance of 6 ft., 54 ft. proposed, 60 ft. required, to construct new deck. - Section 4.10 Table
Withdrawn by applicant.
ZBA 2003-07-02 – John J. Shepard, 1 Belinda Lane, Map 53 / Lot 289, R-33 Zone: Appeal of Zoning Enforcement Order & Variance: commercial vehicle exceeding ¾-ton capacity on residential lot. - Sections 4.20.1(3) & 10.10.1(G)
Mr. Alexander made a motion, seconded by Mr. Rinaldi to approve the appeal, under Section 11A of the Zoning Ordinances of the Town of Enfield, of the order, requirements, decision or determination as rendered and delivered by certified mail to the applicant by the Enfield Zoning Enforcement Officer under EZO Section 4.20.1(3) and dated June 18 2003 and as discussed under ZBA 2003-07-02.
Reference is made to a building permit site plan, untitled, and stamped "Received Planning Office Enfield, CT 06082 - JUN(e) 30, 2003", as submitted for this application, and to all documentation and discussion under ZBA 2003-07-02.
Vote was 0-0-4. Mr. Rinaldi explained that this issue seems to be beyond the scope of the Board. He agreed with Chairman Yarum that this issue needs to be passed on and looked at by the Planning & Zoning Commission. Also, the Zoning Enforcement Officer did not err in his decision making and the Board upholds his interpretation.
Mr. Kibbe agreed and recommended that audience members also encourage the Planning and Zoning Board to look into the matter.
Mr. Kibbe made a motion, seconded by Mr. Alexander, to approve the request for a variance to allow storage and parking of a commercial vehicle exceeding ¾-ton capacity on residential lot – Sections 4.20.1(3) & 10.10.1(G).
Reference is made to a building permit site plan, untitled, and stamped "Received Planning Office Enfield, CT 06082 - JUN(e) 30, 2003", as submitted for this application, and to all documentation and discussion under ZBA 2003-07-02.
Vote was 0-0-4. The applicant did not prove an acceptable hardship.
ADJOURNMENT
A motion was made by Mr. Kibbe and seconded by Mr. Alexander to adjourn the meeting at 10:02 p.m. Vote was 4-0-0.
Respectfully Submitted,
John LeDoux, Secretary
Enfield Zoning Board of Appeals
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