ENFIELD ZONING BOARD OF APPEALS

MINUTES OF A REGULAR MEETING

JUNE 28, 2010

A Regular Meeting of the Enfield Zoning Board of Appeals was held on Monday, June 28, 2010 in the Council Chambers, Enfield Town Hall, 820 Enfield Street, Enfield, Connecticut.  Chairman Yarum called the meeting to order at 7:02 p.m.

PRESENT:              Peter Yarum, Chairman

                             Brittany Christensen

                             Maurice LaRosa

                             Charles Mastroberti

                             Mary Ann Turner

                             Andrew Urbanowicz, Alternate

ALSO PRESENT:     Roger Alsbaugh, Assistant Town Planner

                             Virginia Higley, Zoning Enforcement Officer

MINUTES

Mr LaRosa made a motion, seconded by Ms. Turner, to approve the Minutes of May 24, 2010.  Mr. LaRosa made an addition to those Minutes on page 8, last paragraph.  The following was added:  “After some discussion, Mr. LaRosa made a motion, seconded by Ms. Turner, to have the Zoning Enforcement Officer look into violations on the Jarmoc property and the Sharren Lane property.  The motion was approved by a 5 – 0 – 0 vote.”   The Minutes, as amended, were approved by a 4 – 0 – 1 vote.  Ms. Christensen abstained.  

CORRESPONDENCE/STAFF REPORT

Mr. Alsbaugh suggested the Board might want to look at the paperwork which has to do with what Mr. LaRosa brought up about the handicapped.  Mr. Alsbaugh is not quite sure it is an automatic given that a handicapped issue trumps everything.  He would advise looking through this very carefully and making sure that you have the right view on that particular subject.  Mr. LaRosa stated it wasn’t that it was an automatic given.  It was just that the Board was allowed to take into account their disability.  Mr. Alsbaugh recommended the Board look at the paperwork that he put together to make sure the Board has a sound view of when to do that.  Chairman Yarum stated it appears it is more on an equal rights basis than just giving carte blanche. 

Ms. Turner asked if she should hold the Minutes until they are amended before signing them.  Mr. Alsbaugh stated they will have to come back for any documents that were the result of this evening.  Ms. Turner will sign them all at the same time after they are updated. 

Chairman Yarum advised the Board of an email from the Town Attorney’s Office.  He read the attorney’s memo which reads:  “Attached is the court’s memorandum of decision ruling in favor of the ZBA dismissing both of the Plaintiff’s appeals.  The decision has been released by the court and is public.  However, please note that there is an appeal period pending so no comments about the decision or any potential next step by the ZBA should be discussed.”  Chairman Yarum noted this is in regard to Robbins v. ZBA.  He added that if anyone would like to see the backup information, he has copies of how the court reached its decision.  Until the appeal process is over, there should be no discussion. 

PUBLIC HEARINGS

ZBA 2010-05-04, cont. and modified – Nancy Grimaldi, Applicant and Owner, 31 Belmont Avenue, Map 79/Lot 83, R-33 Zone, requesting an Accessory Structure setback variance forward of the rear building line – EZO Section 3.30.7A, and a coverage variance of 10.78%, 30.78% proposed, 20% allowed – EZO Section 4.10.2H.

Nancy Grimaldi, 31 Belmont Avenue, appeared before the Board regarding this application.  Chairman Yarum asked what steps Ms. Grimaldi has taken since the last meeting.  Ms. Grimaldi stated she had a map drawn up showing the structure on the property with dimensions leading in from the sidewalk and how wide it is and so forth.  Ms. Grimaldi had the map reviewed by Mr. Alsbaugh and it appeared to be okay.  There may be some calculations to end up with these percentages.  That seemed to be the issue at the last meeting. 

Ms. Grimaldi stated she hopes for a favorable decision based either on grandfathering or the hardships that she had pointed out last time. 

Mr. LaRosa asked if Ms. Grimaldi was aware of the deed guarantee when she bought the property.  Ms. Grimaldi stated she was aware that a permanent structure was not allowed to be built. 

Mr. LaRosa asked how is this not a permanent structure.  A temporary structure in town means that it can only be up for a certain period of time before it has to come down.  Ms. Grimaldi was told by someone in the Building Department that if there is any wood involved, that would get it into classifying it as a permanent structure.  Mr. LaRosa questioned is it not a permanent structure.  A permanent structure would be something that’s permanently there. 

Mr. Alsbaugh stated he would have to leave that to the Building Official.  He is trying to find the part about the permanent structure in the deed restriction.  Mr. LaRosa read the excerpt in the deed restriction.  It states no building shall be moved on to said lot.  No buildings shall be erected on said lot near 15’ from the street line.  No barn or outhouse shall be erected nearer than 50’ from the street line.  No building (dwelling) costing less than $1,500 shall be erected thereon. 

Mr. Alsbaugh stated the deed restriction does not address the differentiation between temporary and permanent.  It merely states what is not permitted. 

Ms. Turner stated the carport area has been there for years and that is pretty permanent.  Ms. Grimaldi stated it can be taken down and she calls that temporary.  When it deteriorates, she will make a decision as to whether to replace it.  She thinks of it as portable and temporary.  She doesn’t think of it as permanent with a foundation.  How long is permanent is a good question. 

Chairman Yarum opened this hearing to the audience.  No one spoke in favor or against this application.  Chairman Yarum closed this public hearing. 

Mr. LaRosa made a motion, seconded by Ms. Turner, to approve the request for an accessory building rear building line setback variance to allow a carport accessory structure – EZO Section 3.30.7A.  Reference is made to all site plans and all other documentation, photographs and discussion under ZBA 2010-05-04.

Mr. LaRosa stated he doesn’t think he can vote against a property guarantee written into the deed.  The guarantee clearly states that any heir of the property, if the property is sold.  He has an issue if the Board goes against the way the property was divided up and then guaranteed to the surrounding area that certain things weren’t going to happen. 

Ms. Turner stated the Board is focusing on the structure.  Mr. LaRosa stated the Board should be focusing on the coverage.  Chairman Yarum stated the issue is that under our statutes a structure built not in compliance with side or rear yard sideline setbacks cannot be cited if it has been in place for three years or more.  The municipality does not have a suit in court.  Chairman Yarum stated the Board is addressing the wrong issue.  However, the violation falls within the deed restrictions on the building and the reason it does is because whether it is a permanent or a temporary structure is not relevant.  The variance goes with the land.

Mr. Alsbaugh stated the variance for the setback is not really for a side or rear yard setback.  It’s for a specific or an occasional requirement peculiar to our zoning ordinances.  It doesn’t really have to do with setbacks from the property line.  The Board is actually dealing with a setback issue here.

Chairman Yarum stated it is because the structure is in front of the rear building line. 

Mr. LaRosa stated coverage becomes another issue but the building issue is because it is in front of the main structure.

Chairman Yarum stated the structure has been there for more than three years.   Mr. Alsbaugh stated we’re not talking about a side, front or rear setback and he is sure that is what the statute was addressing.  Any subsequent locational issues are separate from those issues.

Mr. LaRosa noted there is no time limit on a coverage violation.  That is part of that ordinance.  Mr. Alsbaugh stated in which case it would be moot because the Board is dealing with it. 

Chairman Yarum stated based on the fact that there is a violation in the deed restrictions, the issue before the Board is coverage.  This is why the Board had asked the applicant to go back and get a drawing of what was on the property and the dimensions.  Staff did the calculations and we see that we exceed the twenty percent site coverage significantly. 

Ms. Turner stated it is the overall coverage of everything – the shed – everything.  She did walk the property.

Mr. Alsbaugh asked if the Board needed any clarification on the deed restriction.  Chairman Yarum stated he doesn’t think so.  Based upon the applicant’s testimony in saying that if there is wood involved, it is a permanent structure.  There are many facilities in town where there is no wood involved.  There is metal, block and brick.  He thinks the relevancy of whether or not it is a permanent or a temporary structure is moot. 

Mr. Alsbaugh stated he was referring to the legal aspect.  It is not something that is variable.  That was really meant to let you know that it wasn’t really something that you would entertain.  The Board can still make their decision about a variance regardless of what the deed restriction says.  Mr. LaRosa, however, has voiced his reservations about such a thing. 

Mr. LaRosa stated right now the property is not conforming to the deed.  If we approve it, we are saying that this guarantee didn’t matter anyway.  If we don’t approve it, it really comes into conformity of the town and conformity of the deed.  An approval gets us away from the deed and away from the town rules.  A denial puts us in line with the town rules and the deed. 

Mr. Urbanowicz stated the original grantors or their heirs have the right to file a suit without the restricted covenant in the deed.  That is where the enforcement right comes.  So it’s not really a town enforcement action. 

Ms. Turner asked that Mr. Urbanowicz repeat his comments.  Mr. Urbanowicz stated the person who grants the property originally, that is where the right to enforce that restrictive covenant comes in.  They have the legal right to sue to enforce it.  They could file a suit and win.  Mr. LaRosa asked if they could file a suit against the town if the Board allows it.  Mr. Urbanowicz stated whatever the town does is not going to contribute to that.  Their standing and their right comes from what is in the deed. 

Mr. LaRosa asked if we know of this document and we say go ahead and build, can the family come back to the town and sue.  Mr. Urbanowicz stated no, the town doesn’t have the duty.  It’s the original grantor’s duty to enforce it.  Mr. LaRosa asked to enforce to the owner of the property or to any entity taking part in violating this guarantee.  Mr. Urbanowicz stated it would be the owner or the lessee of the property.  It wouldn’t be the municipality.  Mr. LaRosa stated if we grant a variance to an owner, we are giving permission.  Do we then fall into that same category?  Mr. Urbanowicz stated his legal opinion is no. 

Ms. Turner stated if you bought a property knowing when you go to your closing and your lawyer reviews this piece of information at your closing, but you violate it – you are basically saying so what.

Mr. Urbanowicz stated if you have knowledge of it, it is going to be an easy case for whoever the heir is to prove it.

Mr. LaRosa stated he doesn’t see that the property is not useful if not granted.  But he noted to more than double your allowed coverage.  Mr. Urbanowicz stated on the coverage issue, you have more than enough to deny it. 

Mr. LaRosa doesn’t see a hardship with this application.

Chairman Yarum stated in the definition of when a variance can be granted, it states that a self-imposed hardship cannot be granted for a variance.  This is clearly self-imposed. 

The motion was denied by a 0 – 5 – 0 vote. 

The reason for denial is the hardship is self imposed.   In addition, there are deed restrictions on the property that do not allow for this type of application.       

Variances – New – One

ZBA 2010-06-01 – Traci Youngberg, Applicant and Owner, 32 Glenwood Street, Map 76/Lot 88, R-33 Zone, requesting an Accessory Structure setback variance forward of the rear building line – EZO Section 3.30.7A.

Chairman Yarum discussed when a variance can be granted and how business will be conducted this evening. 

Traci Youngberg, 32 Glenwood Street, appeared before the Board regarding this application.  She stated she is here because they would like to put a pool back where there was a pool in their yard when they moved in.  They went to get the permit and were told that the location of the pool, which had been there for sixteen years, was not done properly and a variance was needed to put the pool back where it had been.  There was a 24’ round pool and a deck when she moved in in 2006 and it was in fair condition.  They took it down this past September with the intention of putting another one in.  They went to get the permits and were told they needed the variance. 

Mr. Urbanowicz asked if Ms. Youngberg was aware of this drainage easement to the northwesterly side of the property when she purchased the home.  Ms. Youngberg stated the water that runs into the brook behind the house.  Mr. Urbanowicz stated he is referring to this map that is an engineered drawing from July, 1988 which depicts a twenty foot right of way with fifteen feet on the side of Ms. Youngberg’s lot.  Ms. Youngberg stated it is on the other side of the chain link fence and the water runs down along the property line and then into a brook behind the property.  Mr. Urbanowicz asked if the chain link fence is on the side of the easement.  Ms. Youngberg stated the easement is on the other side outside of the chain link fence.  It is still actually her property but they don’t use the area.  Mr. Urbanowicz stated this is showing a twenty foot total width which would come up right along the side of the house and where Ms. Youngberg wants the pool would be in the easement area.  Ms. Youngberg stated it is not like that at all.  The pool itself is on the upper part of the yard.  The yard slopes off and the easement is as you start to go down the incline.  Mr. Urbanowicz stated he is talking about what is actually depicted on the map.  It is showing a width of 14.7’ from the front of the house.  The pool location would be seven feet into the easement area and if someone has an easement right, that may be a concern.  They have the right to occupy that space for whatever purpose because they were granted an easement.  If it is for drainage and there is a pipe under there, they could dig it up.  If Ms. Youngberg builds in the easement, they are not liable for the pool.

Ms. Youngberg stated she doesn’t think the easement actually touches where the pool is.  Where it empties out is further away from where the pool sits. 

Chairman Yarum stated the easement is always bigger than what is actually there.  In case they have to bring equipment in, they don’t want to be on the property.  They have the right to come in if something happens to that drainage pipe.  If the pool is in the way, they are going to move the pool but they have no responsibility to replace it.  Ms. Youngberg noted nothing has happened since the original pool was in. 

Mr. Alsbaugh stated there is a hand drawing showing the pool slightly beyond the edge of the house.  He would be reluctant to place total concern on the hand drawn map because it is less likely to be true. 

Chairman Yarum stated it appears that it is even.  The pool being put in is 24’ and the pool that was removed was 24’.  Ms. Youngberg stated they placed the pool in the same location thinking there wouldn’t be an issue because it was there. 

Ms. Christensen asked how come she can’t put the pool to the right side.  Ms. Youngberg stated there is a patio and a deck.  Mr. Alsbaugh stated the back of the house under the regulations is not the rear building line.  The rear building line is the patio and deck further south.  When the pool was put in originally, there was no patio and deck.  Mr. Youngberg stated there was a porch. 

Mr. Alsbaugh stated if you look at the aerial photos from 2006, those three components were not there.  The existing porch was not in violation.  Some discussion followed on when in 2006 the photo was taken.  Mr. Alsbaugh stated it could be either the spring or fall of 2006 because there are no leaves on the trees.  Aerial photos are usually flown in the fall. 

Chairman Yarum asked when Ms. Youngberg purchased the home.  She stated in February, 2006. 

Mr. Alsbaugh stated the real issue is the repeated nature of the definition of the rear building line of the house that keeps pools and sheds behind that.  He hasn’t done the research but this has come up a number of times.  When he thought about it, it appears to be one of those things that the Board might want to consider referring to Planning and Zoning.  He gave a what if scenario to the Board.  If he wanted to build a u shaped house, it would be perfectly legal but if he wanted to put the pool in the middle of that u, it could not be done.  It has to be behind the end of the house. 

Mr. Alsbaugh stated the issue the ZBA has dealt with in the past is that when issues come up, is there a problem or isn’t there a problem.  If there is a problem, it’s more appropriate to be referred to Planning and Zoning.  Mr. LaRosa stated in two years the Board has not seen this before so he doesn’t know if it is an issue yet. 

Chairman Yarum stated the regulation, 3.30.7i states “accessory buildings shall be located behind a line established by the rear of the principal building on the lot.”  Mr. Alsbaugh stated anything attached to that building becomes part of the principal building.  Ms. Turner asked if that was because of the new regulation the Board recently passed.  Mr. LaRosa stated the Board just made it so they couldn’t detach a deck. 

Mr. Alsbaugh stated decks and any entrances to the house are considered part of the main structure. 

Chairman Yarum asked the applicant a question.  Nothing in the documentation of this map on this aerial photo shows that this photo was taken in 2006.  Looking at the photo, this is either a spring or fall photo.  If Ms. Youngberg purchased the home in February of 2006, when was the deck put on.  Ms. Youngberg stated the deck was there when they purchased the home.  They put in the patio and put new rails on the deck and the connector from the porch to the deck.  Chairman Yarum noted the deck is not in the photo.  Ms. Youngberg questioned how do we know the photo was taken in 2006.  Mr. Alsbaugh stated that is when they are usually flown.  The 2010 photo would make it even worse.  Ms. Higley stated the town’s GIS has the 2006 maps and that was taken from there.  Mr. LaRosa stated it is not known if they were done in 2006 or if it is a fall, 2005 photo.

Mr. Alsbaugh stated the only thing that photo can point out is that at that time the patio and the deck were not there.  Ms. Youngberg stated the grass looks way better than hers does right now.

Mr. Alsbaugh stated the issue is not so much the legality of the deck and the patio and connector but it might be more germaine for the Board to consider the existence of the pool and when it first went in and whether or not it’s a reasonable decision to allow the pool to go where it was before.

Chairman Yarum stated under the advice of staff he proposes that this Board look at the issue before them on location of where the pool is to be placed.  The issues of when the photo was taken and the issues of the patio, the deck and the connector will be addressed by the Zoning Enforcement Officer.  The Board’s issue is whether or not there is a hardship in putting a new pool where the existing pool was.

Mr. Alsbaugh stated he is not inferring that a variance is not required.  The regulations, because of the construction of the deck, patio and connector, do rule as to whether a variance is required.  Mr. Alsbaugh is trying to clarify where the germaine issue of appropriateness may lie for this Board.

Mr. Mastroberti stated the deck was there when they purchased the house.  Ms. Youngberg confirmed this.  She added the connector was not there nor was the patio. 

Mr. LaRosa stated therein lies the problem.  The deck was in place not attached to the house.  If the connector was not there, the deck would not be part of the house and they would be in compliance.  Ms. Youngberg questioned if they take it down, they don’t need the variance.

Mr. LaRosa stated there is a deck and patio in the hand drawn map.  There is a connector connecting the deck to the house.  The problem that the Board has is Ms. Youngberg can’t legally remove that connector now.  It would violate the zoning rule that went into effect last year.  A deck cannot be a freestanding entity.  It has to be part of.  Chairman Yarum stated we didn’t say that.  It was a deck and it was attached to the home.  It is part of the main structure.  Mr. LaRosa stated the issue was the house on the north end of town who had the deck attached to the structure and he needed a variance.  He didn’t get the variance so he detached the deck and then he was in compliance.  Ms. Turner stated he built a raised ranch.  Mr. LaRosa stated it had something to do with access to a structure. 

Mr. Alsbaugh stated a deck used for access to the house is considered part of the house.  Mr. LaRosa stated if she removed the connector, she would be okay.  If she were to remove the connector between the screened porch and the deck, she would be okay.  Ms. Youngberg stated she can do that.  It would be annoying because you have to step down and then back up but they can do that. 

Chairman Yarum opened this hearing to the public.  No one spoke in favor or against the applicant.  Chairman Yarum closed this public hearing.

Mr. LaRosa made a motion, seconded by Ms. Turner, to approve the request for an accessory building rear building line setback variance to construct an above ground pool – EZO Section 3.30.7A.  Reference is made to the site plan submitted by the applicant on graph paper showing the proposed location of the pool and titled “Backyard of 32 Glenwood Street/square = 5 ft.”, and to all documentation, photographs, and discussion under ZBA 2010-06-01.

Chairman Yarum stated he looked at the property and there is a grade variation.  If Ms. Youngberg was to take the existing location and move the pool back to be beyond what is now the existing rear building line, it would fall right into the root system of an existing tree and eventually kill that tree or damage the pool in the future.  Because of the topography of the property, there is no other location on the property to place a pool.  There are numerous rights of ways and easements throughout the property to the rear and to the sides. 

Mr. LaRosa agreed.  He went out to the property and looking at the topography of the property, there is no other location for a pool.  It really needs to go where it is and any other place would not be feasible. 

The motion was approved by a 5 – 0 – 0 vote.

Ms. Youngberg asked if she can leave the connector in.  Chairman Yarum stated yes. 

The reason for approval is given the topography of the property, the applicant is restricted in locations.  In addition, there are numerous easements and rights of way on the property.

Other Business

Ms. Higley wanted to let the Board know that she has been doing property maintenance.  It is not an excuse but just an explanation.  They are supposed to hire someone next month to do property maintenance which will allow her to do what she was hired to do.  She has not had a chance to respond to the Jarmoc and the Sharon Lane properties but she will get an answer. 

Ms. Turner asked if a variance is not granted and if it is over six months and they haven’t made the change, what is done.  Ms. Higley stated you take them to Housing Court or you can have them arrested.  She gave the example of the swimming pool and deck without a permit in the wrong place too close to the property line and a shed.  They moved the shed back away from the property line and chose to ignore the deck and the pool.  They then went to Mr. Giner and asked for an extension which they got.  Now that she has direction from the Board, she will take care of it.  Ms. Turner stated she wants it in writing.  She wants to know that it has been taken care of and how it has been taken care of.  Ms. Higley will email the Board a copy of her letter. 

EXECUTIVE SESSION    

Mr. LaRosa made a motion, seconded by Ms. Turner, to go into Executive Session.  The motion was approved unanimously and the Board went into Executive Session at 8:05 p.m. Mr. LaRosa made a motion, seconded by Ms. Turner, to come out of Executive Session.  The motion was approved unanimously and the Regular Meeting resumed at 8:10 p.m.

Mr. Alsbaugh noted there is no meeting in August and he has not received any applications for July.  Ms. Turner stated she would be willing to meet in August if the need arises.    

ADJOURNMENT

Mr. LaRosa made a motion, seconded by Ms. Turner, to adjourn.  Following a unanimous vote, the Board adjourned at 8:11 p.m.

                                                Respectfully submitted,

                                                __________________________
                                                Mary Ann Turner, Secretary

                                                Enfield Zoning Board of Appeals

jmr