|
ENFIELD ZONING BOARD OF APPEALS
MINUTES OF A REGULAR MEETING
FEBRUARY 27, 2006
A Regular Meeting of the Enfield Zoning Board of Appeals was held on Monday, February 27, 2005 in the Council Chambers, Enfield Town Hall, 820 Enfield Street, Enfield, Connecticut. Acting Chairman John Rinaldi called the meeting to order at 7:08 p.m.
PRESENT: John Rinaldi, Acting Chairman
David Alexander, Acting Vice Chairman
Kevin Kibbe, Acting Secretary
Paul Thorogood, Alternate
Richard Scott Hozempa, Alternate
ALSO PRESENT: Jose Giner, Director of Planning
Acting Chairman Rinaldi welcomed Scott Hozempa to the Enfield Zoning Board of Appeals.
Acting Chairman Rinaldi reviewed how business will be conducted this evening for the benefit of the public.
MINUTES
Mr. Alexander made a motion, seconded by Mr. Thorogood, to approve the Minutes of November 28, 2005. The Minutes were approved by a 3 – 0 – 2 vote. Mr. Kibbe and Mr. Hozempa abstained.
CORRESPONDENCE/STAFF REPORT
Mr. Alsbaugh reported receipt of a copy of the decision in favor of the Board regarding Kaplan. Correspondence also included an updated ZBA meeting listing for 2006, the reappointments to the Zoning Board of Appeals, Mrs. Ballard’s resignation, and a memo regarding the Council Chambers sound system.
Mr. Alsbaugh added if any Board member would like to see the text of the Memorandum of Decision on the Kaplan case, he has it available.
VARIANCES - NEW
ZBA 2006-01-01 – KRL Builders, Applicant for Leslie Senio, Owner, 29 Woodlawn Avenue, Map 33/Lot 148, R-33 Zone, requesting side yard setback variance of 6.04 feet, 10 feet required, for unmerging and subdivision to construct new dwelling – EZO Section 4.10.2H.
John Woods, a realtor with Remax Realty Connection with offices at 287 Hazard Avenue, Enfield, appeared before the Board on behalf of KRL Builders and Leslie Senio. The principals of KRL Builders, Rick and Kathy Leno, are in California this month but they were present at the last meeting.
Mr. Woods stated they are appearing before the Board tonight at the direction of the Town Planner. This is a property that consists of three lots of record and the Commission has the maps before them. The lots in question are noted as Lots 14, 15, and 16 on Woodlawn Avenue. The parcels are shown as Lots #14, #15 and #16 on a map entitled “Woodlawn Park, Property of E. C. Halliday.” The map is dated June 6, 1910 and is recorded in the Enfield Land Records in Map Volume 1, Page 14.
Mr. Woods stated there is a single-family dwelling on Lot #15. The home was built in 1917 according to the town records. The map and the dwelling both predate Enfield Zoning Regulations. Mr. Woods stated the Senio family purchased Lots #15 and #16 from Mary Stenson in 1937. The Senio family later purchased lot #14 from Pauline Angelica in 1944 and this gives evidence of a history of separate ownership. Lot #14 which is a 50’ x 150’ lot of record meets all the requirements as outlined in the town’s regulations to be considered a lot of record for building purposes.
Mr. Woods stated they are here tonight because eighty-nine years ago the dwelling was put up on Lot #15 and it was built too close to the lot line between Lots #15 and #14. Mr. Woods reiterated that this was built before zoning regulations were adopted and the nonconformance has existed since the zoning regulations have been in existence. If Lots #14 and #15 were under separate ownership, there would be no need for a variance. Lot #14 is not too close to the dwelling on Lot #15 but the dwelling on Lot #15 is too close to Lot #14. Mr. Woods stated at some point in time the concept of lot merger was adopted by many towns in Connecticut and this allowed the town to merge contiguously owned lots of record up to a size meeting current zoning regulations for the area.
Mr. Woods stated the Enfield Zoning Ordinance allows for merged lots to be unmerged if they meet certain requirements all of which are met by Lot #14. They comply in that the predominant number of lots along Woodlawn Avenue consists of 50’ lots just as Lots #14, #15 and #16 are. They comply seeking a residential use which is consistent both with the existing uses in the neighborhood as well as the intended use.
Mr. Woods stated they are requesting a side line variance for Lot #15. He reminded the Board this issue has existed for eighty-nine years. The existing lot line is 3.96’. There is a concrete stoop off the side of the house and a sidewalk. These will be relocated so they will be entirely on Lot #15.
Mr. Woods stated the hardship is based on the fact that the zoning ordinance affects this property differently than other properties by not allowing Lot #14 to be put to its intended use. This is the use permitted in the lot of record sections of the ordinance because of where the dwelling on Lot #15 is and where it was built in 1917 when it was owned separately from Lot #14. Mr. Woods noted two-thirds of the homes on Woodlawn Avenue are built on 50’ lots. Their requested variance is in keeping with the character of the neighborhood and it is in compliance with the town’s requirements. Other 50’ lots are being built on around the town and have been in the very recent past.
Mr. Woods stated the variance would allow the property to be put to its legal and intended use and it would maintain conformity with the neighborhood. The hardship is not self-imposed. All that the owner did was own the property. They made no improvements or changes to it. It is also not a financial hardship. The variance is requesting that the owner be allowed to put the property to its legal and intended use, a use that other similar properties have been allowed to utilize.
Mr. Alexander asked for a more detailed explanation of lot merger which has been adopted by the Town of Enfield. Mr. Wood gave his view of lot merger. He noted in most of the towns in Connecticut, there were many older sections of the towns which were mapped out before zoning on pretty small lots. In Enfield, there are maps that show 25’ lots. Fifty-foot lots represent a common width. As you go through Thompsonville, you will find many such 50’ lots. A lot of record is a lot that predates the zoning regulations.
Acting Chairman Rinaldi requested staff input at this time.
Mr. Alsbaugh stated the issue of merger of lots of record is not the issue here. He stated the lots in question are legal lots of record. The merger ordinance exists in the Town of Enfield and there is a process for unmerging lots by the Planning and Zoning Commission. This application is before the Board for a variance to allow it to proceed there.
Mr. Alsbaugh stated when lots are owned in the same name and they are under the minimum requirement of the zone, the ordinance automatically merges them for zoning purposes. This is done and is a title issue that has to be settled by whoever brings in an application to unmerge a lot to prove that these are underlying lots of record. They can be merged by name and by the co-development of existing lots and proximity to property lines.
Mr. Woods questioned how Mr. Alsbaugh comes up with proximity to property lines. Mr. Alsbaugh stated this is the other side of the coin to Mr. Wood saying that it was the intention to always build a house on that lot. The other side of the argument would be that the house would not have been built that close to the property line unless the people thought of the property as all one property.
Mr. Woods stated when the house was built, Lot #15 was not owned by the same party as Lot #14. The issue with the lot merger is these had 50’ lots and there were lines. The lot merger effectively erases the lines.
Mr. Alsbaugh disagreed with this comment. He stated lot merger merges for zoning purposes only. They remain distinct underlying lots of record.
Mr. Woods stated the hardship comes in trying to reestablish the use to the property and in his analogy of putting the line back to where it was. When the lots were merged, everything was in compliance. Lot #14 was a 50’ x 150’ lot, it was vacant, and it still is. There has not been an issue with the existence of Lot #14. What they are seeking in the variance is an acknowledgement that the house on Lot #15 is nonconforming and has been since 1917. That issue became an issue because of the lot merger. They are now going through the process of trying to unmerge the lots. The side line variance is between Lot #15 and Lot #14 or in the third section of the property. It is not through any of the neighbors or anything like that. Their contention is the hardship was created by the merger ordinance or the town’s actions in merging the lots. The owners made no building improvements.
Acting Chairman Rinaldi referred to the Enfield Zoning Ordinance, Section 3.20.2 which talks about a lot of record. There is one section included that might clarify why lots might have been merged. It sounds like the town was trying to eliminate small non-building lots. Other reasons why lots would be merged would be the principal building has been constructed within ten feet of the common line or the common property line has buildings constructed directly on it. A lot of record has been used for a driveway or parking purposes for the adjoining lot or a lot of record has been used in conjunction with the adjoining lot.
Acting Chairman Rinaldi asked about the unmerging which surveyors have told him is a division. Mr. Alsbaugh stated unmerging is a two-step process in the Enfield Zoning Ordinance. After the unmerging is granted, then the applicant must apply to the Planning and Zoning Commission for a subdivision.
Acting Chairman Rinaldi asked if this line is where it originally was before the merger. Mr. Alsbaugh stated the underlying property line remains constant. The description of the individual lots of record remains the same. When the lots come together under the same name, then any possible pre-existing nonconformity disappears through the merger. When you want to unmerge it and then subdivide the lots permanently, the merging ordinance then triggers the requirement for a variance. Prior to that, as lots of record under ownership, they are considered as a single entity for zoning purposes. After a certain point, lots may become ineligible for unmerging.
Acting Chairman Rinaldi focused on the side line variance before the Board. He recalled five or six years ago there was an application on Edward Street where there was an area issue. In order to keep the frontage, the property line was jogged to borrow a little bit of the area from one lot and then give it back from the other lot. Acting Chairman Rinaldi asked if this is one parcel, couldn’t the line be jogged and then a variance would not be necessary. Mr. Alsbaugh stated this would be considered gerrymandering of property lines and something that would then be decided by the Planning and Zoning Commission. He added most planning and zoning commissions don’t do that. Mr. Alsbaugh further stated it is not part of this Board’s decision to require a solution from another agency. He stated this is something that they possibly could consider but it is not something that will be reflected in this Board’s discussions for a variance. What is presented to this Board is a straight unmerging of the present underlying line descriptions.
Acting Chairman Rinaldi stated right now when this Board unmerges, they are creating the hardship that needs the variance. Mr. Alsbaugh stated this Board is not unmerging. If they decide to, they are granting a variance. The unmerging comes later and even if this Board grants the variance, the Planning and Zoning Commission does not have to grant the unmerging.
Acting Chairman Rinaldi stated this Board does not have an opportunity to say that they can prevent a nonconformity by jogging the property line. Mr. Alsbaugh agreed with this statement.
Mr. Woods stated he has a copy of the Woodlawn Park map showing Lots #14 through #16 are 50’ x 125’. He added that taking a nonconformity from one property and putting it on the next property is something they are not trying to do. Acting Chairman Rinaldi stated if the applicant was able to establish that line, then there would be two conforming properties.
Mr. Woods added that in the zoning regulations it states that with a nonconforming lot, any new construction has to meet certain requirements. There has to be a minimum front yard of 35’ and they meet that requirement. The maximum lot coverage of twenty percent is also something they meet. The front and rear yard requirements of 35’ are also met. Regarding the side line requirements, anything being done on Lot #14 will comply with the 10’ requirements. They have a vacant piece of land and a lot of record that is fully compliant. Their hardship is because of the location of the house on Lot #15 built in 1917, without a variance the use of Lot #14 is taken away from the owner. Mr. Woods added nothing has changed other than the lots were merged and they are following the procedure to unmerge them. Physically, the property remains as it has for a very long time.
Acting Chairman Rinaldi asked if the property as a whole is being used as a whole right now for this one residence. He noted there is a driveway on Lot #16 and a sidewalk on Lot #14. Mr. Woods stated a difficult aspect of this is everyone here is trying to anticipate what people were thinking back then. Lot #14 is in lawn and has a small strip of sidewalk on it which was installed prior to zoning and when the properties were under separate ownership. As to what people intended, Mr. Woods acknowledged that he doesn’t know. What the letter of the law says is that there is a procedure to unmerge the lots. They are following that procedure. The variance request is on the house and on the interior boundary line and not any of the neighbors’ property lines. This has existed for eighty-nine years.
Mr. Thorogood asked about the stairs. Mr. Woods stated the stairs and the sidewalk will all be removed. The house was built in 1917 according to the town’s records and the map is dated 1910. Vice Chairman Rinaldi asked if there will still be an exit from the house on the side. Mr. Woods stated they will probably relocate the exit and he noted it will all conform. They would relocate it to the jog on that side or to the opposite side of the house. Their intent is to make it as conforming as possible. With an approval from this Board, they would then go before the Planning and Zoning Commission.
Acting Chairman Rinaldi stated Chairman Yarum previously announced that he would be absent for this meeting and he submitted a letter to be made part of the record with some questions and comments.
Acting Chairman Rinaldi read Chairman Yarum’s letter as follows: “Dear Roger: I will be unavailable for the scheduled meeting on February 27, 2006. As the meeting on January 30, 2006 could not be held due to the lack of a quorum, therefore ZBA 2006-01-01 was not heard. I have composed comments/questions that I would have raised at the January meeting or at the February meeting if I were to be present. The questions and/or their responses may be beneficial to the Board in reaching a decision. Please disregard any question if it has already been addressed. If legalities are in order, I am requesting this correspondence be submitted to the Acting Chair on February 27, 2006 at the appropriate time following the opening of Public Hearing ZBA 2006-01-01 and that it be entered into the record. Questions/comments are as follows:
With respect to the response in Question #1 of the application, as the neighborhood consists of other lot frontages of 100’, is it possible that Lots #14 and #15 could have originally been 100’ lots and Lot #16 was 50’?
Mr. Woods responded no because there were separate owners. He pointed out the map dated 1910. He noted two of the lots were acquired in 1937 and the other one was acquired in 1944. He presented the map from 1910 of Woodlawn Park. Enfield Street was called Bostick Avenue. He pointed out their lots on the map and noted dating back to 1910, they have three 50’ lots x 150’ which corresponds to everything on the map. Mr. Woods officially submitted this map as an exhibit. Acting Chairman Rinaldi noted the submittal of Exhibit 2, a map entitled “Woodlawn Park, Property of E. C. Halliday, Hartford, Connecticut.”
Acting Chairman Rinaldi read more questions from Chairman Yarum. With respect to the response in Question #4 of the application, when the applicant refers to the owner, is that the future owner? Mr. Woods stated it is whoever owns Lot #14 or the present owner. Acting Chairman Rinaldi stated a second question was if the applicant does meet a future owner, then isn’t the response to Question #6 of the application contradictory. The answer is no – present owner.
Mr. Woods stated when you receive a variance, you receive it today and it runs with the property. In terms of present or future owner, no one is trying to contradict anything. Mr. Alsbaugh stated he doesn’t believe the question was an issue relating to where the variance lies but it is just trying to discern the use of the property.
Mr. Woods stated the bottom line of the variance is to reestablish Lot #14 as a potentially buildable piece of property because it complies with everything in zoning to make it so given approval from the town.
Acting Chairman Rinaldi went on to the next question. The variance requested and site plan submitted indicate different dimensions. It appears the variance request should be 9’ plus or minus, 51’ plus or minus existing. Mr. Alsbaugh stated he has corrected the figures in the proposed motion. Acting Chairman Rinaldi noted the motion states 53.96’ existing, 10’ required. Mr. Alsbaugh stated the larger number references the existing to the far side of the property line of the underlying lot. The requirements are met until you try to unmerge the lots and subdivide them.
Acting Chairman Rinaldi stated the last question is disregarding any financial constraints and taking into consideration that the neighborhood consists of other properties with 100’ frontages, is the following an available option: seek PZC approval to unmerge and subdivide Lot #16 from Lots #14 and #15. If needed, construct garage on Lot #14. It appears under this scenario, Lot #16 and the combination of Lots #14 and #15 would no longer require a variance. Acting Chairman Rinaldi asked if this is an option.
Mr. Woods stated it would be no different than owning a five-acre parcel in a one-acre zone and only being allowed to do one thing.
Mr. Alsbaugh stated this is probably not a question that you can expect to get a complete answer about. It is a suggestion for a viable option of what is being presented as a proposal.
Acting Chairman Rinaldi stated the Board has already discussed options. Mr. Alsbaugh stated options to what Planning and Zoning can approve - no - but options to what is being presented to the Board – yes. The Board is looking at viable alternatives of the existing property lines. In that manner, the Board can consider whether or not there are reasonable alternatives to what is proposed. Mr. Alsbaugh confirmed that changing of the property lines could not be done by this Board.
Mr. Thorogood stated with the last question, Chairman Yarum suggested flip flopping Lots #14 and #16 based on their ultimate goal. Acting Chairman Rinaldi felt Chairman Yarum’s questions are subdivision questions which this Board is not addressing.
Mr. Thorogood stated the Chairman is looking at an option for Lot #16 but then there is an existing garage and he questioned if that meets the 10’. Mr. Alsbaugh stated the Board is relating to the impacts on the neighborhood and whether it is the least amount required for a variance. Also considered is whether a variance is required at all. Sometimes it is found that the information is incorrect and there is no need for a variance as has occurred in the past. Mr. Alsbaugh stated he is trying to observe the sub sets of options available to the Board.
Mr. Thorogood stated the variance is being requested for where the house sits to the line on Lot #15. It has nothing to do with Lot #14. In his mind, the variance they are requesting is more realistic than trying to deal with Lot #16 where there is an existing garage.
Mr. Woods stated Lot #14 does conform. If the Senio family had not bought Lot #14 in 1944, if the Jones family owned it instead, there would be no variance required to go on to Lot #14 other than a zoning approval for the lot requirements. This is where the merger comes up. In a lot of situations he noted the only thing people have done is own land and then they find out that they can’t do with it what somebody five doors down or the next block over can do. Mr. Woods stated he understands the wording on the variance because their technical side line goes all the way over to Mr. Sarno’s property and they go right through Lot #14. The issue is the location of the house to the old boundary line on the map of E. C. Halliday from 1910.
Mr. Alsbaugh stated this is an interesting contradiction. He stated the lot to the left was acquired after the two to the right. If you go by that theory, then under current law a house with less than the required setback is grandfathered in after three years.
Acting Chairman Rinaldi stated with a variance, the Board is looking for the exception to the rules and any information offered is helpful.
Mr. Woods stated the bottom line on this is that Lot #14 complies. If the dwelling on Mr. Sarno’s property to the other side were too close to the boundary line, that is not their issue and that is how the merger aspect comes in. Acting Chairman Rinaldi noted that by taking the action of unmerging now they are close to that. Mr. Woods stated Lot #14 as a piece of land conforms and anything that is done to it will conform. Acting Chairman Rinaldi stated right now Lot #14 is not a lot. It is one lot of all three of these and as soon as it is split off, there is a nonconformity created on Lot #15. This is a concern to him.
Mr. Woods stated this nonconformity has been in existence since the day Enfield adopted zoning regulations. The merger aspect is to show that they are claiming a hardship. They are claiming that the utility of the land, the right to use it, was confiscated. Mr. Woods stated other people on other 50’ lots on nearby streets have been able to put these lots to use. This is the specific hardship and it has nothing to do with dollars and cents. It has to do with the utility. What is going to happen will have to go through the process of zoning and the guidance of the Building Department and others involved. They are into one of those things where it is a hardship and it happened. It was nothing that this owner or any prior owner did because when this house was built, there was no zoning and no requirements. They are trying to acknowledge an eighty-nine-year-old nonconformity.
Acting Chairman Rinaldi stated presently if you look at question #3 – is the use of the property being enjoyed? – It is and it is conforming. As soon as you unmerge, that is where the problem is.
Mr. Woods stated in real estate, the entire concept is that the value of anything lies in its utility. Real estate comes with it the right to quiet enjoyment. Quiet enjoyment is to put your property to the highest and best legal use as you determine it. If the use is allowed, then that is part of it.
Mr. Alsbaugh stated this is the crux of the matter that the recent Kaplan appeal was denied on. He felt it is not a valid point here. It has just been proven again in case law that the highest and best use is not something you have to deliver.
Acting Chairman Rinaldi stated the Board always hears the term land use compared to land ownership and this is land use that stays with the property and not the owner. Who is to say that it absolutely has to have x, y and z? Acting Chairman Rinaldi stated he is trying to focus on what is happening right now and the property is being enjoyed. If it is unmerged, the applicant is unmerging it and this is where the problem is. Mr. Woods stated if the property is unmerged, it will be unmerged by the town. Acting Chairman Rinaldi stated the applicant or current owner is requesting the town to unmerge it.
Mr. Woods reminded the Board that they predate everything, every ordinance in the Town of Enfield as it applies to zoning, along with lot requirements and setbacks. Mr. Woods stated Lot #14 will continue to comply with everything laid out in the zoning requirements for a lot of record. It does today. They are before the Board seeking the variance on Lot #15. Without the variance, there is a definite hardship. The hardship is the owner cannot do with that parcel what somebody can do with an identical parcel located elsewhere.
Acting Chairman Rinaldi stated he is not questioning Lot #14. He is questioning Lot #15.
Mr. Woods stated without the variance on Lot #15, there is no Lot #14. This is a very specific situation that does create a hardship because if Lot #14 were four doors down the road or on the next street owned by a separate party with the identical circumstances in terms of a house being too close next door if it is owned by someone else, they could use it in a manner consistent with its intended use. The question is does it prohibit the property from being put to a use that is consistent with the neighborhood. No, they are very consistent with the neighborhood. They conform to the requirements and over sixty percent of the lots have 50’ frontages. There are 50’ lots being utilized in town and they are just trying to keep that as a consistent right.
Mr. Alsbaugh pointed out there is no guarantee regarding building lots and any lot, regardless of how it is configured, has to comply with the current zoning regulations. There is no guarantee that the desired level of use is grounds for granting a variance. Mr. Alsbaugh stated when Mr. Woods makes statements about maintaining the viability of use for someone’s property, this is a real estate stance but has no bearing on considering whether a variance is justifiable. The use of the land as a separate lot is not guaranteed under the law. The level of use that resolves the issue may become more of the solution than the full use of the lot separately. Mr. Alsbaugh stated in this instance, he is trying to make sure that the Board understands Mr. Woods’ statement properly in relationship to their duties. His intent is to inform them of the issues.
Mr. Alexander stated when the Board considers granting a variance, they look at the unique aspect of the land and they do not look at whether the applicant can have full use of the land. While it may be the end result, it is not the legal basis for the Board’s decision.
Mr. Woods stated if they receive a variance, they would have to go before Planning and Zoning. In terms of what exactly will go where, they have to go through a subdivision process.
Mr. Alsbaugh stated if they should get a variance, they will be going to Planning and Zoning and the Planning and Zoning Commission will be deciding those issues. He is focusing the Board on the variance issue and not the other issues which are handled by another agency.
Mr. Hozempa asked how far does the sidewalk come out on to Lot #14 and where does the sidewalk go. Mr. Woods stated the sidewalk goes back to the sidewalk along Woodlawn and it splits the property line. Part of the sidewalk is on one side and part is on the other. Mr. Hozempa stated it looks to him like a sidewalk going to the back of the house according to the plans. Mr. Woods stated he is unsure how far back the sidewalk goes.
Vice Chairman Rinaldi opened this hearing to the audience.
Thomas Sarno, 433 Maple Road, Longmeadow, Massachusetts spoke to the Board along with his father, Mr. Sarno. He stated his father owns #23 Woodlawn. Mr. Sarno stated ever since he was a child, the Senio property consisted of many lots all the way to Munda Drive and it was always maintained as one piece of property. There was a vacant lot on the other side of his father’s house and they built a home on that lot higher then his father’s. All the water drains into his father’s property. Mr. Sarno, Sr. stated the grading extends three feet into his property.
Mr. Sarno stated if this variance is granted, there will be a house built on a 44’ wide lot.
Mr. Sarno, Sr. stated he bought his home in 1951 and he always assumed the Senio house next door was one piece of property. As far as he knew, there was not another building lot there.
Acting Chairman Rinaldi clarified that the frontage would still be 50’ on each of the lots. They are requesting a variance because the house is supposed to be 10’ away on the side yard and the request is for permission for the house to be only 6’ away.
Mr. Sarno, Sr. questioned what will happen to the value of his property if they construct another house. He added the area is already crowded with automobiles.
Mr. Sarno stated since 1951, the Senio property has been one piece of property. Now they are going to put two houses on the lot and take away the whole character of the neighborhood.
Mr. Thorogood also confirmed that Lot #14 is still a 50’ lot. Mr. Sarno asked if they are going to encroach on Lot #15 and make Lot #15 smaller. Mr. Thorogood stated no, they are not changing anything. The existing house should have been built six more feet to the left originally. What the applicant is saying is this does not meet the regulations and they want to remove that off the line, put it in the back or on the side and leave the line as it is. What would happen is if any type of building would occur, they would still have to meet 10’ on each side. The maximum length of the house would be 30’. Mr. Thorogood stated with the variance, they would be making lot #15 legal even though the house was built in an incorrect spot years ago. Mr. Thorogood stated any questions regarding the drainage would be taken up by Planning and Zoning.
Mr. Sarno asked about the merging lot lines. Mr. Alsbaugh stated they are only considered for zoning purposes. It doesn’t mean the lot lines disappear. They are only considered for zoning purposes under the zoning ordinances. Any requirements of the zoning ordinances apply to that as a single entity.
Mr. Thorogood asked if Mr. Sarno was assuming they were going to come in six feet on to Lot #14 and then have to move further to the right toward his father’s property. Mr. Sarno stated he knew they had to maintain the 10’ on that side. However, they are going to be encroaching on the other side and now Lot #15 is going to be a nonconforming lot. Mr. Alsbaugh stated it would be legal nonconforming if they get a variance. For zoning purposes, considering the house place on all three lots, it isn’t conforming. But to unmerge and subdivide, it requires a variance which would then make it legal nonconforming.
Mr. Sarno stated this would be the only house on the street with a nonconforming lot. Mr. Alsbaugh stated it would not be a nonconforming lot but a nonconforming structure as to location.
Mr. Thorogood stated the Board would have to know where every home is situated on every one of these lots to be able to determine how many more were built prior to zoning not abiding by the 10’ setback. Mr. Thorogood asked if Lots #15 and #16 are still merged. Mr. Alsbaugh stated they are.
Mr. Alsbaugh stated the Board’s function if a variance is granted is to allow it to go forward to unmerging and subdivision. The Planning and Zoning Commission still has the option of saying yes or no.
Mr. Sarno stated he does not want a house built on this lot and neither does his father. Mr. Sarno stated it will be the only house on the street that is nonconforming. He added as long as he has been alive, Joan Senio had some of the lots and the other Senio had the others. This was all one big piece of property and was maintained as one piece of property. Mr. Sarno, Sr. stated that is a reason he bought the property.
Mr. Thorogood stated the Board is not ruling on Lot #15. They are just ruling on Lot #15 and that area to make it comply. Mr. Sarno reiterated that Lot #15 is going to be the only lot on the street that is not compliant.
Mr. Thorogood stated Mr. Sarno, Sr. has merged two lots, Leslie has merged three lots, Wayne and Roxanne Peret have merged two lots. Many of the other property owners own 50’ lots. Mr. Sarno noted all their houses are 10’ from each side of the line. Mr. Thorogood stated that is also what the requirement would be for Lot #14 if they got a variance.
Mr. Sarno, Sr. asked if they had any plans on where they want to build a house if they got the variance. Acting Chairman Rinaldi stated that would be a subject of the Planning and Zoning hearing and Mr. Sarno, Sr. is welcome to attend that hearing. He stated the Board’s concern is if Lot #14 is cut off, the result will be a house on Lot #15 that should be 10’ away from the line and it would only be 4’ away from the line. Mr. Sarno felt the entire neighborhood would be affected by having one house only 4’ from the property line.
Mr. Thorogood stated it would be an injustice to tell them to remove the house and move it six feet to the right.
Mr. Sarno stated he fails to see where there is a hardship because there is a lot of land there.
Mr. Alexander asked if two homes would be built. Mr. Sarno stated that is what the builder told him.
Mr. Alexander stated this Board has a very narrow scope in deciding this variance and that is something that would not be a factor in the Board’s decision in granting the variance just on Lot #15. Mr. Sarno stated there is a garage on Lot 16 that they were planning on destroying.
Mr. Alsbaugh stated the Board was presented with a request for a variance based on knowledge given by the applicant relating to the intent to build a house on the lot that was going to be unmerged. It is up to the Board to decide whether or not there is relevance to the second lot. If it is planned to be sold off, that has a relationship to whether or not the garage can be moved. If it is intended to be removed for a third house, then the option that the Chairman brought up has more relevance here.
Mr. Alexander asked if this would be an issue for Planning and Zoning instead of this Board. Mr. Alsbaugh responded the legal process for acquiring it is; however, there is a relationship to how much information is or is not given to this Board in their decision on what will affect the neighborhood if the variance is granted. The Board needs to determine whether a third house is actually planned.
At this time, since there was no further input from the public, Mr. Woods responded to the issues raised.
John Woods stated as this is now an R-33 zone, there is not a property on the street that conforms to zoning. Even Mr. Sarno’s land which is 100’ x 150’ is 15,000 square feet. Mr. Alsbaugh stated the distinction is between legal nonconforming and illegal nonconforming. The new nonconformity that is proposed to be created on Lot #15 would become a legal nonconformity like the rest of the neighborhood if the variance is granted. If the variance was not granted and the property was divided, it would be an illegal nonconformity. Mr. Alsbaugh stated while all the other properties don’t meet the regulations for R-33, they are legal nonconforming.
Mr. Woods stated he understands that but he did not want the Board to be confused about the characteristics of the neighborhood which include 50’ and 100’ lots. With regard to the intentions of the land, they have to go before Planning and Zoning for a subdivision. Mr. Woods stated what he would go back to is how this was created, when this was created, and the hardship that other people have been able to put similar types of property to whatever uses they choose. If he erred in saying high and best, he acknowledged that is his realtor hat. Perhaps the term is a legal use. They conform on Lot #14 with every requirement in the regulations to put Lot #14 to use. The variance for Lot #15 allows them to do that. The properties were acquired separately. 1917 was the house and 1910 was the creation of the lot. The lot lines have not changed in 97 years and there is no intention of changing them. Mr. Woods stated there have been applications before the town where lot lines have been changed. They contend it is a legal use and the merger aspect of the regulations creates a hardship. In instances the town has unmerged lots and in some instances where houses straddle lines and other things, unmerging of lots has not been allowed. Their contention is they comply and they predate. Mr. Woods reminded the Board that before anything can be done with this property, it has to go through the balance of the approval process in the town. This request is for the variance on the side line. With the variance granted, they will be in conformance with the predominant characteristics of the neighborhood because over sixty percent of the lots on Woodlawn are 50’ lots. They will not diminish anybody’s property values and it is not an intensive use.
Acting Chairman Rinaldi asked if the lots are unmerged and the variance is granted, are they planning to build a house on Lot #14. Mr. Woods stated if this is unmerged, there will be a subdivision application for Lots #14, #15 and #16 and all that requires. Lot #16 is in the same situation as a lot of record. They are not seeking any variance there because there is nothing needed on that side. All they are seeking is the side line variance on the lot that has been there since 1910.
Mr. Alexander stated Mr. Sarno mentioned the possibility of two homes being built here and the possibility of the garage being moved. He asked that Mr. Woods address this because someone speaking against the application mentioned this.
Mr. Woods stated if they are granted a variance, they will be going before the Planning and Zoning Commission for the unmerging of all three lots – Lots #14, #15 and #16. They have no issue with the Board tonight on Lot #16 because they do not need anything in terms of a variance to proceed. The variance request is on Lot #15. At some point, if the Planning and Zoning approves it, there will be an application for two homes – one on Lot #14 and one on Lot #16. That has been their intention and Mr. Woods discussed this informally with the Sarno’s at the last meeting.
Mr. Alsbaugh stated he was not aware that a third house was planned. It was never presented to him. He was also not part of previous discussions Mr. Woods had with Mr. Giner. Mr. Woods questioned why they would need a subdivision to cut one lot. Mr. Alsbaugh stated because this entire property was subdivided previously. Mr. Woods stated that is not what was explained to him. They met with Mr. Giner and were told to go to three lots they were going to need subdivision but to apply for the variance first. Mr. Giner guided them to this Board. Mr. Woods stated they went to the town and asked where to go first and they were told to go to the ZBA for the side line variance and then proceed. Mr. Woods stated he is not trying to slide anything by anyone.
Mr. Thorogood asked if it is two homes or three homes. Mr. Woods stated there would be two new homes in addition to the existing home. He asked that the Board keep in mind that Lot #16 has nothing to do with their application tonight.
Mr. Alsbaugh stated there is a relationship between all three homes. The Board is not deciding about an unmerging or a subdivision but they are determining whether there is a legitimate hardship and that this is not a financial gain issue to justify granting the variance. This is in relation to Lot #15.
Mr. Thorogood stated the Board needs to focus narrowly on Lot #15. Mr. Alsbaugh stated narrow in what is justifiable as a hardship and not narrow in exclusion of the other properties or of the neighborhood. There are three related parcels that will be affected by this approval and a neighborhood that will be affected by the decision. These are legitimate grounds under the law for this Board to consider regarding what will be the impact on the neighborhood.
The Board requested further explanation. Mr. Alsbaugh stated the variance is specific to Lot #15. The issue is whether a hardship exists. Part of the criteria the Board can use for a hardship is the impact the variance will have on the rest of the neighborhood – all lots considered. There is a broad outlook there. The Board has a narrow outlook for what is a justifiable legal hardship. The narrowness is restricted to what is a legal hardship and not the property. You view all of the property and try to balance what you feel is the proper solution. The narrowness comes from what is actually a legal hardship.
Mr. Sarno spoke to the Board again and requested that Board members visit the property. He noted you cannot really see what is actually there on a map. You have to view the property and see the situation. He felt this would give the Board a better understanding. Acting Chairman Rinaldi stated Mr. Sarno’s point is to show that the property is being enjoyed as one lot presently right now. Mr. Sarno stated not just that but he would like the Board to see the entire layout of the neighborhood, the situation with cars and the impact it would put on the neighborhood.
Acting Chairman Rinaldi stated this would be more of a Planning and Zoning issue. This Board would take a look at the size of this lot, the frontage compared to surrounding lots, and lot coverage. He personally does not feel this Board has to go see this house or that there is something unique that has to be seen. He added if Mr. Sarno can convince the Board otherwise, that might be an issue. This application, compared to many previously before the Board, has provided the needed information to the Board. If there are pictures, they may be submitted.
Mr. Thorogood stated he understands the concerns regarding traffic and the cars but those are really things that would be looked at from a subdivision standpoint along with drainage and other items. These are all part of the subdivision process. This Board is just looking at Lot#15 and the variance requested.
Mr. Alsbaugh stated this Board is deciding whether or not the law can be varied. This is why they are restricted to a narrow review of what constitutes a legal hardship.
Mr. Woods stated they feel they have shown a legal hardship exists. In coming before the Zoning Board of Appeals, the hardship cannot be created by the property owner and it was not. They did absolutely nothing to diminish the utility of their land. This lot unmerging is the first step. Their variance is based on the fact that the existence of the location of the house on Lot #15 is where it is and is where it has been for a very long time but that that existence is impacting the utility of the property owner’s property.
Acting Chairman Rinaldi requested a motion to close this public hearing. Mr. Alexander made a motion, seconded by Mr. Kibbe, to close this public hearing. The motion was approved by a 5 – 0 – 0 vote.
Mr. Alexander made a motion, seconded by Mr. Kibbe, to approve the request for a 6.04’ variance of the side yard setback, 3.96’ proposed, 53.96’+-existing, 10’required, to allow unmerging of an underlying lot of record – EZO Section 4.10.2H. Reference is made to a site plan titled “PROPERTY SURVEY PREPARED FOR KRL BUILDERS, 29 WOODLAWN AVENUE, ENFIELD, CONNECTICUT, LANDMARK SURVEYS, LLC, dated 11/15/2005, revised to 1/6/06,” showing existing and proposed conditions by the applicant as submitted for this application, and to all documentation and discussion under ZBA 2006-01-01.
Acting Chairman Rinaldi stated the Board discussed why things could possibly be merged to determine why the ordinance was written. He noted this has nothing to do with this particular house being situated away from the property line but if lots were merged and there was a house on top of the property line, would the Board still be going through a variance process. Mr. Alsbaugh stated legally they could ask as long as it did not go over the property line. If it was right up and on the property line, it becomes a matter of degree and that degree would be reflected in the review of the Zoning Board of Appeals in their decision making.
Mr. Alsbaugh confirmed that if it was right on the property line, they could apply. The request would be a 10’ variance with a 0’ setback.
Mr. Alexander stated looking this over, the thing that he is relying on in his decision is that this house was built in 1917 and it predates the zoning ordinance. That makes this a unique parcel of land. In considering his decision, he is not looking at further use or the actual subdivision aspect of it because that is not the Board’s purview. The house should not have technically been built where it was built. If this was a lot by itself, it would be an illegal nonconforming building. Mr. Alexander felt this does make the land unique and in his opinion this is enough to constitute granting this variance.
Acting Chairman Rinaldi stated this Board is looking for the exception to the rule as is done with all other variances. If he assumes that these people are enjoying this property the way it is without changing anything and if they request to unmerge it, he questioned why this is not self-imposed. If they are unmerging it to build a house, he questioned why isn’t that solely for financial gain.
Mr. Alexander stated it is not self-imposed because the owners purchased the house as is. The piece of property and the way it is set up with Lot #15 was unique prior to the applicant purchasing the parcel of land. That house should not have been built there but you cannot undo what occurred in 1917. Mr. Alexander also reminded the Chairman that lots have been unmerged in this town in the past and this is not something that has never been done before. Acting Chairman Rinaldi agreed there is a provision to unmerge lots in the regulations.
Mr. Kibbe stated even if this Board grants the variance, the applicant would have to go through the entire Planning and Zoning process to complete it. That agency would do the investigative work in making their decision.
Mr. Alexander stated he is sensitive to some of the things he heard tonight from Mr. Sarno regarding traffic and drainage. If this was not to be addressed by Planning and Zoning, his vote might be different. However, since those issues will be addressed by Planning and Zoning at a later date, he feels more comfortable with voting to grant this variance.
Mr. Hozempa stated he thinks what Mr. Alexander is trying to say is because Lot #14 was purchased after Lot #15 and if Lot #14 was owned by someone else, the Board would not be discussing this because there would be no variance needed for Lot #15. Mr. Hozempa stated his question, which could not be answered, was did the owners create the problem. If they bought Lot #15, who put the stairs in and the sidewalk on Lot #14 and when was that done? In Mr. Hozempa’s opinion, that would have had to have been done after they purchased Lot #14. Otherwise, they were building on someone else’s property. Unfortunately, Mr. Woods could not answer the question and he is not sure when that was done or if it was done prior to 1944 when they purchased the lot or if it was done after.
Mr. Kibbe stated the applicant plans to remove the stairs.
Mr. Thorogood stated he agrees with Mr. Alexander that the concerns brought up are things that Planning and Zoning needs to see. They will do the survey of the property and look at the sewer system and items like that. Right now Lot #15 is an illegal nonconforming lot. The Board’s judgment is to make it legal nonconforming without dealing with more hardship of removing the property off Lot #15. If they go forward, this Board is not unmerging that property. Everything will be reviewed by Planning and Zoning and the issues need to be addressed at that time. Mr. Thorogood stated he is hoping the Sarno’s attend those meetings. He noted the Board does not want to step over their jurisdiction on what they have to decide on.
Acting Chairman Rinaldi asked if at this time would it be a concern of the Board’s if the variance were to be granted and the stairs were to be removed, that the side entrance may be a safety factor. Should this Board be considering a conditional approval or is this something to be considered by Planning and Zoning? Acting Chairman Rinaldi suggested moving the entrance off the space of the abutting side line since the remaining distance would only be 4’.
Acting Chairman Rinaldi, in further discussion, stated the applicant stated he would most likely move that house exit. If the exit stays there and the stairs are removed, there still has to be an entrance to the house. This Board has always considered a small space such as 4’ in considering other side line variances to be a safety factor should bushes be planted and someone try to exit the house on that side. He suggested this be a condition.
Mr. Alsbaugh stated the Board needs to determine if that exit is going to remain an exit and where the steps are going to come off because the variance is very specific. It is not for the entire property line. It is for removing the steps and just that distance. If they are going to have more steps and they are going to be at the same reduced distance, the Board has to know about it. The variance and the site plan have to reflect precisely where the variance is. The Board has received information regarding case law where towns did not delineate specifically enough where a variance occurred and a judge granted a variance for the entire property line. Acting Chairman Rinaldi stated in this case the variance is to the main house foundation and not the steps.
Mr. Alsbaugh recommended such a condition about the exit and steps be added to the site plan and forwarded to the Planning and Zoning Commission. If the Board wants to narrowly define where the variance is going to be allowed and not the entire property, there has to be something added to the variance. It would need to be drawn on the map by the applicant or made a condition of approval which this Board is allowed to do.
Acting Chairman Rinaldi stated what he is trying to avoid is if the stairs are labeled “concrete steps and sidewalk to be removed” what he does not want is to have another problem where another variance has to be granted down the road. He cited the Rashe application on Shaker Road where he had a house and now he needed a variance for the steps. Acting Chairman Rinaldi would like to avoid such a situation and address it at this time.
Following some discussion, Mr. Alsbaugh stated if they want to put steps in at a perpendicular at the same point of entry, they would need another variance. This is what the Chairman is trying to avoid.
Mr. Thorogood suggested the condition state that the steps have to be removed and the entrance has to be relocated to the back or the other side of the house. Mr. Alsbaugh questioned if the Board can be this specific and he noted the Board can only make a condition to protect the area they are considering.
Mr. Thorogood stated it is his assumption they have to remove the concrete steps to get the 3.9’. For that to be an entry way, the Zoning Enforcement Officer would have a serious problem with that. Mr. Thorogood stated the 4’ distance is to the foundation and there is no room for steps. Mr. Alsbaugh stated there is basis to add a condition to relocate the exit.
Mr. Thorogood stated the line does not move from Lot #14 to Lot #15. Acting Chairman Rinaldi stated this is what occurred previously on another application and with a door without any steps, you need a variance for the steps. Mr. Alsbaugh stated the length of the foundation becomes the dimension of the variance.
Acting Chairman Rinaldi suggesting adding a condition to relocate the door from that wall because it still could be on the same side where the jog is. Some discussion followed on how to word the condition with the final language being that the door has to be removed from the wall that is the recipient of the variance.
Mr. Alsbaugh discussed the process the Board needs to follow to add the condition. Further discussion followed regarding the wording of the condition.
Mr. Kibbe made a motion, seconded by Mr. Alexander, to amend the motion to add a condition that the existing side exit, concrete steps and walks must be removed from the wall which is the recipient of the variance as heard in ZBA#2001-01-01. The amendment was approved by a 5 – 0 – 0 vote.
The main motion, as amended, was approved by a 4 – 1 – 0 vote. Mr. Hozempa voted nay.
The reason for approval is a structure built prior to zoning regulations on Lot #15 and Lot #14 were previously owned by different parties.
ORGANIZATIONAL MEETING [January biennial organizational meeting: election of officers and review of bylaws; even numbered years]
The organizational meeting was rescheduled to the March meeting from January due to a lack of a quorum at the January meeting.
ADJOURNMENT
Mr. Kibbe made a motion, seconded by Mr. Thorogood, to adjourn. Following a unanimous vote, the Board adjourned at 9:15 p.m.
Respectfully submitted,
________________________
John LeDoux, Secretary
Enfield Zoning Board of Appeals
jmr
|