ENFIELD ZONING BOARD OF APPEALS
MINUTES OF A REGULAR MEETING
OCTOBER 26, 2009
A Regular Meeting of the Enfield Zoning Board of Appeals was held on Monday, October 26, 2009 in the Council Chambers, Enfield Town Hall, 820 Enfield Street, Enfield, Connecticut.
PRESENT: Peter Yarum, Chairman
Maurice LaRosa
Mary Ann Turner
Kevin Kibbe, Alternate
Charles Mastroberti, Alternate
ALSO PRESENT: Roger Alsbaugh, Assistant Town Planner
APPROVAL OF MINUTES – August 24, 2009, Special Meeting / No meeting on 9/28
Mr. LaRosa made a motion, seconded by Ms. Turner, to approve the Minutes of August 24, 2009. The Minutes were approved by a 5 – 0 – 0 vote.
CORRESPONDENCE/STAFF REPORT
Mr. Alsbaugh stated the Board has the notice for the November 5, 2009 P&Z Meeting for the regulation changes that this Board recommended. The files are available if the Board wanted to look at the actual wording. Ms. Turner would like to make sure they are worded properly. Mr. LaRosa asked we should make sure that it is included that it is part of the primary structure whether it is attached or not. Chairman Yarum read the legal notice and confirmed that it does include the language that “structures that provide access to a principal building are to be considered part of the principal structure.”
Chairman Yarum discussed the procedure for tonight and stated when a variance can be granted.
Mr. Kibbe read the legal notice.
Kimberly Castaldo, 67 Sharren Lane, stated she is here because when she bought her home there was a pool and a shed. Over the last six years, she has taken down both and put up new ones and moved them. The shed is in the same spot but it is just larger than the other one. The pool got pushed over about eight or ten feet to the left and she attached a deck to it and didn’t even know she needed permits for any of these things. She found out when she got a letter in the mail. She is pleading ignorance because she just didn’t know. Before she put up the deck, she had a talk with her neighbor whose cement permanent structure is close to her property about six inches and their water runoff runs into her yard. Neither one of them have ever had a problem except for the neighbor back washing his pool into her yard. He said he didn’t have any problem with Ms. Castaldo putting the deck there. When she got the letter, she spoke with Ms. Higley who said that someone had complained. She doesn’t believe it was her neighbor because she discussed with him where the deck would be and he didn’t have any problem with it. Ms. Castaldo reiterated that she didn’t know she needed a permit. She stated she paid a stiff penalty and it cost about $1,000 for the permits and variance application. Her permit fees were doubled when she went to apply for her permit.
Mr. LaRosa asked if Paradise Pools or Tremain Home Improvements ever mentioned to Ms. Castaldo about permits. Ms. Castaldo stated Paradise Pools did but Tremain Home Improvements did not. She told Paradise Pools that there was already a pool there. She had just taken it down and they were putting it back up. He didn’t tell her she needed a permit to put up another pool even though she was moving it. He said it would be put up to code.
Ms. Turner stated she viewed the property and Ms. Castaldo has other options. Ms. Castaldo stated because it is a corner lot it has to be 28’ from Brainard Road. The only other option would be to have it dead center in the middle of the back yard. She doesn’t think the pool is the problem. It’s the deck. Where the pool is is okay.
Mr. LaRosa asked if she could swing her deck to be in the back between the pool and the shed. Ms. Castaldo stated if she wanted it in the shade but she doesn’t want it in the shade. She wanted it to be in the sun most of the day. There are trees and it would have been in the shade all day long. She acknowledged she did have other options.
Mr. LaRosa asked when Ms. Castaldo purchased the shed was she ever told that permits would be necessary. Ms. Castaldo stated she bought it from the Barn Yard and they never said anything. She did say to him that there were two trees and she didn’t know if he would be able to maneuver it between the trees and he said it would be no problem. He never said anything about a permit.
Mr. LaRosa stated he went to the property and looked at both the Castaldo’s and her neighbors. If she were the neighbor, he asked how would she feel about someone being right on top of you like this. Ms. Castaldo stated she talked to her neighbor and they stated they didn’t have a problem. She didn’t have a problem with their cement deck to their pool being one foot away from her fence. Mr. LaRosa stated because that is a patio on the ground, it is like having grass. Ms. Castaldo stated she doesn’t have any problem with them being that close to her when they sit by their pool. She wouldn’t have a problem with someone being that close to her property.
Chairman Yarum stated unfortunately this Board has to abide by the law and in reading the application, everything speaks about a financial hardship. The hardship is based on money – the cost of what it would take to move it or remove it. When Chairman Yarum gave the definition of a variance, he said self-imposed and financial hardships cannot by law be considered in granting a variance. He sees that she falls under both categories, both self-imposed and financial.
Ms. Castaldo stated she would have to cut off three feet of the deck on one side and pour new piers in order to be five feet away from the property line. She would have to hire someone to do it and she doesn’t know when she would be able to do it. She understands it is not a reason for the Board to grant a variance but she doesn’t think it is bothering the neighbor where it is or if it were three feet away from where it is now. All it will cause her to do is move it back three feet. Mr. LaRosa asked outside of a financial hardship, what reason does Ms. Castaldo have why the Board should grant this variance. Ms. Castaldo stated it is already existing, it is self-imposed and it is up. They have been using it for two years and no one has ever complained to her. She doesn’t think she put it up in malice to bother people. It’s been up for two years and it’s been utilized for two years and it hasn’t bothered anyone and it is not bothering anyone still. She doesn’t think it will bother anyone where it is now than it would if it is pushed back three feet. That is all she is going to do if she has to.
Ms. Castaldo stated there are bushes that create plenty of privacy. The hedges in the neighbor’s yard are about thirty feet high and create nice privacy between both properties. Mr. LaRosa stated his only concern is those hedges might not be there forever. Ms. Castaldo stated they might be there longer than the deck.
Ms. Turner asked if it has to be five feet. Ms. Castaldo stated it is three and a half in certain sections and it’s closer because of the property line. Ms. Turner stated she is here for three and a half feet on one side but if she goes with the idea she is going with, she is going to have to do a lot of sawing. Ms. Castaldo stated that is the only thing she can do to make it five feet away. It has been utilized for two years and as far as she knows it hasn’t bothered anyone.
Chairman Yarum opened this hearing to the public. No one spoke in favor or against this application. Chairman Yarum closed this public hearing.
Ms. Turner made a motion, seconded by Mr. LaRosa, to approve the request for two side yard setback variances: 1) for a pool deck of 3.5 ft., 1.5 ft. proposed, 5 ft. required, and 2) for a shed 2 ft., 3 ft. proposed, 5 ft. required – EZO Section 4.10.2H
Reference is made to a hand drawn plan showing 67 Sharren Lane stamped “Received, August 31, 2009, Planning Office, Enfield, CT. and to all documentation and discussion under ZBA 2009-09-01.
Mr. LaRosa stated everything in the application points to a self-imposed and financial hardship. By law, he can’t see that he can grant that.
The motion was denied by a 0 – 5 – 0 vote.
The reason for denial is the zoning regulations are very explicit to the five foot setback. It goes for both the shed and the pool. Due to the applicant stating it is a financial hardship, the Board cannot grant the variance.
ZBA 2009-09-02 – Steven Jarmoc, Applicant & Jarmoc Real Estate, LLC, Owner, 147 Abbe Road, Map 85 / Lot 16, R44 Zone, requesting an accessory building (farm stand) height variance of 2 ft., 14 ft. proposed, 12 ft. allowed, - EZO Section 3.30.7Ai
Mr. Kibbe read the legal notice for this public hearing.
Steven Jarmoc, 33 School Street, stated he is here tonight because they had a fruit stand at this location for years and years. It was built in the mid seventies and one of his bus drivers knocked it down and caught it with the bus. He did bring in a plot plan. If you are looking to the lower left of the existing building, when he was here the first time to put that up, Mr. Yarum was on the board and it was their camp facility they put up. The stand got knocked down and they knocked the rest of the building down about a year ago and left the concrete pad. They put the new building up and made sure they didn’t encroach above the front line of the stand. Mr. Jarmoc filed his building permit application and he said it would be a barn like structure and the woman said no trouble, you’ll have your permit in the mail. On the weekend, they started working. Friday they poured some concrete piers and they built the stand by Monday. He didn’t get a permit in the mail but on Tuesday the building official came and slapped a cease and desist order on the stand. That is what brought him to this point. He said the building is much bigger than the one that was there that was preexisting and since it would be closer to the road, he would need to come and get a special use variance. He is here but if you look at the site plan, there is a darker border of where the new building is and then there is a very broken line border of where the overhang was on the old stand. It is in the same spot. They built it as a barn to try to be consistent with the area. The whole area is a farm and the peak of the roof is about twenty feet. The existing building which is their farm labor camp, the peak is twenty-two feet. Further to the left is about twenty-eight feet. His father’s house has thirty-five to forty-foot peaks and there is a hay barn in the yard with a 30’ peaked roof to the ground. Across Abbe Road, every barn there has thirty-foot peaked roofs. There are five barns on the farm. This is very consistent with the buildings surrounding it on the same farm by the same owner.
Mr. Jarmoc stated he is seeking a two-foot variance for height. He presented a picture of the farm stand. Chairman Yarum entered into the record a colored photograph, 6” x 8”, of the new farm stand.
Mr. LaRosa asked if this is the first building Mr. Jarmoc put up in town. Mr. Jarmoc stated no, they probably put up twenty-five barns in town since the early eighties. He came in and filed and they said it was no trouble. You will get your permit in the mail. He filed and they started to build.
Mr. LaRosa asked for a copy of the original building permit. Mr. Alsbaugh stated it is in the meeting packet. Chairman Yarum stated it appears the application Mr. Jarmoc filled out for the building permit only shows the footprint and it doesn’t show any elevations. Mr. Jarmoc stated they gave him a half-size sketch of what the barn would look like. He never granted the building permit. He received a laundry list of twelve different things from the building inspector. He asked for snow and wind load strength on the roof, he asked for a site plan with handicapped parking, he asked if he had a plan for handicapped bathrooms, he asked how he is going to access the second floor of the structure, what is going to be on the second floor of the structure and he asked for a table of how he came up with the costs for the building. Chairman Yarum stated Mr. Jarmoc had this application that he filled out and went into the Building Department with this application and then based on a verbal okay to start, they started without receiving the actual permit. It was a clerk that gave the okay. Mr. Jarmoc stated the girl at the desk told him it was okay. He said what they are doing is putting up a fruit stand where there was one that was torn down and she said that is fine, and you should have your building permit by Monday or Tuesday. That was on a Thursday afternoon. On Friday because they were in the middle of a season with workers they started building. Chairman Yarum stated Mr. Jarmoc was not given a verbal to go ahead. Mr. Jarmoc stated she said okay, you’re going to have your permit by Monday or Tuesday and he took that as it is fine to start. The building or the structure is no different than any of the other barns they put up in town since they started. It is the same framing, the same everything. The picture the Board has shows how far they got by Tuesday afternoon. On the center pole, the placard is the cease and desist from the building inspector.
Ms. Turner asked what is the original size. All she can find is the size of what he wanted to build. She asked if the original fruit stand was smaller. Mr. Jarmoc stated he always thought the foot print was the view you get looking over the top with the roof overhang. That’s why they put the front wall out further. The overhang was about six feet from the old fruit stand and maybe a little more all around. Those are where the new walls are now.
Mr. LaRosa stated the old farm stand was built in the seventies. He asked if there is a town record of a special use permit. Mr. Jarmoc stated it was prior to special use designations. Mr. LaRosa asked if Mr. Jarmoc has applied for a special use permit for this one since you can’t use the farm stand without it if it goes over 200 square feet. Mr. Jarmoc stated he has not.
Mr. LaRosa asked why so big and why so tall. Mr. Jarmoc stated there isn’t going to be a second floor. It’s going to be a loft. He thought in all honesty it was more characteristic of the neighborhood. The peak looks like all their other barns on the same farm. He thought it fit in a lot better than a flatter roof. The same pitch is on their existing labor camp building. Mr. LaRosa stated he understands that but the labor camp building meets the zoning rules. It is 100’ from the road. That’s where a farm building needs to be. You can have it as tall as you want it as long as it’s 100’ from the road. It’s not an issue that that one has a twenty or thirty foot peak. This one is forty-five feet from the road.
Mr. LaRosa stated he is trying to understand why the new farm stand is so much bigger than the original one. The other question he has is how much of the building did the bus damage because the zoning laws permit the fixing of a damaged building but it doesn’t allow taking it down. Once you take it down, you are not allowed to resurrect the building. Mr. Jarmoc stated it was structurally unsafe. The bus came backing in and the stand had a peaked roof but there was one ridge line and it had four corners. When the bus came around, it caught the edge of the roof. He kept going and it pulled the old stand right off its foundation and it buckled the back wall. Could you fix it? Mr. Jarmoc stated anything can be fixed but it was old. It was built in the seventies and you could see where the plywood on the roof was rotting. They didn’t tear it down to make a bigger one. They tore it down because they didn’t think it was safe. It was an eyesore and they thought they could reconstruct one right there.
Ms. Turner stated he could if he stayed with the footprint that he originally had. She asked why Mr. Jarmoc is here and what is the hardship.
Mr. Jarmoc stated the hardship is the stand is up and it is two feet too high. There is nothing about it being further in front or closer to the road. When he talked to the zoning official, it was the two feet.
Chairman Yarum stated when Ms. Turner asked about the hardship, Mr. Jarmoc stated the stand is up and it’s two feet too high. He asked how is that not self-imposed. Mr. Jarmoc stated he guesses it is self-imposed. Chairman Yarum stated by law this Board cannot grant a variance on a self-imposed hardship. Mr. Jarmoc stated if there is not an appeal granted, the structure cannot be utilized at all. Chairman Yarum stated until it is brought into compliance.
Mr. LaRosa stated he doesn’t think the issue is the size of the structure. The issue is the height. Mr. Jarmoc confirmed that.
Mr. Alsbaugh stated the only issue before this Board is the height. Anything to do with the size would have to be dealt with through Planning and Zoning.
Chairman Yarum opened this hearing to the audience.
Attorney Bruce Fader stated he represents two interested property owners, Bob and Donna Robbins of 29 Weymouth Road. He doesn’t know if he is in favor or against Mr. Jarmoc’s application. It is just at this point that he would like to ask a couple of questions. One of them is we know that this accessory building that is being proposed but he is uncertain if it is called a fruit stand or a stand that is going to be selling fruits and vegetables which can be distinguished from what he will call an accessory use which can be used as a garage or a barn. Attorney Fader asked what is the particular use. Is it just strictly as a farm stand that is going to be selling produce or is it a garage that is going to store farm equipment or is it going to be a use that is going to use both of those uses.
Chairman Yarum thought under the circumstances because the Board has a case pending between the Robbins and the Zoning Board of Appeals and because Attorney Fader has no connection to Mr. Jarmoc, the Board would defer that question to the Town Attorney.
Attorney Fader stated this Board would keep the public hearing open until they get a response from the Town Attorney. Chairman Yarum stated he didn’t say that. If Attorney Fader would like to get an explanation, he needs to get it from the Town Attorney. Attorney Fader stated this is a public hearing that is open to the public at large. Whether or not he represents Mr. Jarmoc or someone else, he still has a right on behalf of his client to ask the questions that he is. He asked for a simple clarification. Chairman Yarum stated he is answering the question. Attorney Fader stated he is responding to it but he is not answering the question. Whether or not he is representing his client in a pending litigation truly is not germaine to the issue at this point. It may have some relevancy but he is asking questions that are specific to Mr. Jarmoc’s application and he thinks he has a right to ask those. He is not trying to be confrontational.
Chairman Yarum stated his response is he cannot answer that question. You need to get a response from the Town Attorney. That is his response. Attorney Fader stated essentially Chairman Yarum is stiff arming him. Chairman Yarum stated in the Board’s documentation, it says a farm stand. Attorney Fader just wanted to defer that question to the applicant so that he can obtain a clarification. He doesn’t think it’s an unreasonable request particularly knowing that the applicant is here. The question is presented to this board but it is one which can be answered very quickly by the applicant.
Chairman Yarum read the legal notice for this application which says the applicant is requesting an accessory building (farm stand) height variance of two feet, fourteen feet proposed, twelve feet allowed. Attorney Fader assumes from the legal notice that it is limited to a farm stand. Attorney Fader will accept that. He assumes that by the Chairman repeating that, that this is an application for a farm stand. Chairman Yarum stated accessory structure (farm stand). Attorney Fader stated the reason he is asking the question is when taking a look at the zoning regulation that is at issue which is 3.30.7a which deals with accessory buildings, he is asking this Commission if there is a distinction in how the height requirement of twelve feet is applied to a fruit stand as distinguished from a farm accessory building that may be used for the storage of equipment and farm trucks. He is asking if that twelve foot height restriction applies just to the farm stand or does it apply to farm stands and other kinds of farm accessory uses.
Mr. LaRosa stated he would like to entertain the conversation but he doesn’t think it is ethical. Chairman Yarum stated he will read the legal notice one more time if Attorney Fader would like. Attorney Fader stated he is asking a question about the enforcement of this regulation. Is this regulation, 3.30.7a applied to farm stands or farm stands and other farm accessory barns.
Mr. Alsbaugh stated Attorney Fader has a case against this Board in Superior Court which has raised questions about the definition and terminology of the zoning ordinances. The Board should not discuss this outside of the court. Any question regarding this needs to be directed to the Town Attorney’s Office. Chairman Yarum stated this was his point – that Attorney Fader should take it up with the Town Attorney’s Office.
Attorney Fader stated even though it may be an issue that it is part of pending litigation, it is still an issue that is part of this particular application. He is trying to raise it only as it relates to this application. Whether or not it is relevant to the pending case is really not germaine to what he is doing right now. He thinks that the answers to this question may be helpful to the applicant. What he is going to be making part of this record is he is going to be submitting a letter dated June 3, 2008 which he did provide to this Board as part of the earlier application of his client where it does state that there is an interpretation of 3.30.7a where this twelve foot height restriction does not apply to farm accessory buildings. He thinks that letter along with his client’s application would be helpful to Mr. Jarmoc. But if it’s this Commission or maybe the zoning staff says that yes, that that twelve foot height restriction does not apply to farm accessory buildings such as barns but it does apply to fruit stands or produce stands, that is a distinction that is important. At this time, Attorney Fader is only asking questions because the answer would provide an understanding for him as well as Mr. Jarmoc about how the town’s zoning ordinances are interpreted and enforced. Chairman Yarum stated he has given Attorney Fader his answer.
Attorney Fader stated it sounds as if he is not going to be able to get the answers he is requesting which he thinks may be helpful to your cause with respect to his client’s situation but we’re talking about Mr. Jarmoc. Attorney Fader stated as part of Mr. Jarmoc’s application, he wishes to submit his letter of June 3, 2008 which does confirm that this regulation that is an issue to Mr. Jarmoc’s application does not apply to farm accessory buildings as they are being used for the storage of farm equipment but it leaves open the issue does it apply to farm stands. The Board has a copy of his client’s variance application which as the Board may know by their decision that they had denied his variance request. He also wishes to enter the August 26, 2008 notice of decision regarding his client’s application. Attorney Fader is assuming that Mr. Jarmoc’s application is part of today’s record and he does see where it does say describe your application. They did state accessory farm building (fruit and vegetable stand) is built too high. That is why he asked the question about the distinction but if the Board wishes not to answer it, he is not able to resolve the questions he has.
Attorney Fader stated during Mr. Jarmoc’s application, he made reference to the fact that the zoning department or the building department indicated to Mr. Jarmoc that the application was okay. Was that the zoning authority or the building department? Chairman Yarum stated he has no idea. It was a building technician.
Mr. LaRosa stated any questions that Attorney Fader has can be answered by the Town Attorney’s Office. Chairman Yarum agreed because his comment was is there anyone in the audience that wishes to speak in favor or against. The Board is voting on Mr. Jarmoc’s application. Is Attorney Fader here to speak in favor or against? Attorney Fader stated he is probably in favor but he did preface what he was saying. Chairman Yarum stated he probably shouldn’t have let him go so far because he is not speaking in favor or against but instead asking the Board a lot of questions. Attorney Fader stated he has a right to ask those questions. Chairman Yarum stated they pertain to his client. Attorney Fader thought because of due process rights and the fact that this is a public hearing, he has the right to ask those questions. Based on the answers to those questions, his client is going to be able to formulate a response.
Mr. LaRosa felt Attorney Fader was being unethical right now.
Attorney Fader didn’t know about being unethical but he thinks he has a right to ask questions. It’s a public forum and he is not trying to be offensive. He is asking certain questions and if the Board wishes not to answer them, that is their decision.
Chairman Yarum closed this public hearing.
Mr. LaRosa made a motion, seconded by Ms. Turner, to approve the request for an accessory building (farm stand) height variance of 2 ft., 14 ft. proposed, 12 ft. allowed – EZO Section 3.30.7Ai.
Reference is made to a site plan titled “Existing Condition Plan Prepared for Stephen Jarmoc, 147 Abbe Road, Enfield, Connecticut, William Palmberg & Son, LLC – 1 of 1”, dated 9-15-09, and to all documentation, pictures, elevations and discussion under ZBA 2009-09-02.
Mr. LaRosa stated again this is a self-imposed hardship. Having to come into compliance for it to take place, it would be a financial self-imposed hardship. By law, this Board cannot issue a variance under those pretenses.
The motion was denied by a 0 – 5 – 0 vote.
The reason for denial is the hardship was self-imposed as stated in the applicant’s testimony.
ORGANIZATIONAL MEETING
· Approval of 2010 meeting dates
Mr. LaRosa made a motion, seconded by Mr. Kibbe, to approve the 2010 meeting dates. The motion was approved by a 5 – 0 – 0 vote.
ADJOURNMENT
Ms. Turner made a motion, seconded by Mr. Kibbe, to adjourn. Following a unanimous vote, the Board adjourned at 8:00 p.m.
Respectfully submitted,
______________________
Kevin Kibbe, Acting Secretary
Enfield Zoning Board of Appeals
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