BLACK POINT BEACH CLUB
Zoning Board of Appeals - Case 4 continued.
Public Hearing and Regular Meeting
Friday, June 30th, 2006

A Public Hearing and Regular Meeting of the Black Point Beach Club Zoning Board of Appeals was held on Friday evening, June 30, 2006 at 7:00 PM at the Black Point Beach Club Association Clubhouse located at the corner of Woodland and Sunset Streets in Niantic, CT.

PRESENT: Peter Stempien, Chairman, Sally Cini, Secretary, Don Wilkinson, Steve Whitman, Alternate, Tom Hayes, Alternate

ALSO PRESENT: Harry Danos, Applicant Attorney Thomas J. Londregan, Representing the Applicant

ABSENT: Phil Hagaman, Bill Greenwood, Bill Willetts, Alternate

 1.     Call public hearing to order

Chairman Stempien called this continued Public Hearing to order at 7:07 PM.

Mr. Stempien noted that he had seated Tom Hayes, Alternate at the table.

 2.     Read Notice of Public Hearing

Mr. Stempien noted that they had continued this from their last hearing date in May and that they were now ready to continue. He asked Ms. Cini, Secretary to read the Notice of Public Hearing:

Case No. 4 - 2006: Allegation of error in ZEO action Section V & VI by Harry Danos et al for a building on property located at 5 Woodland Drive and –

Request for a variance in Section VIA (a) (b) (c) & VI by Harry Danos et al for a building on property located at 5 Woodland Drive.

Mr. Stempien noted that this notice was sent to The Day for publication.

3.     Introduction of Zoning Board of Appeals members

Mr. Stempien asked the Board Members to identify themselves for the audience. The members did so.

4.     Poll ZBA Members for conflicts of interest –

Mr. Stempien polled the Board members for any conflicts of interest – hearing none – he noted to the applicant and the audience that they would need four votes in favor for the appeal to be granted.

Mr. Stempien then asked the applicant to present his case.

Attorney Thomas Londregan, place of business 38 Huntington St., New London, CT, representing Harry Danos, the applicant said that he apologized regarding the lack of notification to all of the abutters prior to the last hearing date. He then submitted for the record a black binder of Exhibits 1 through 18 regarding Lot 1015 on Woodland Drive belonging to Harry Danos. (Black Binder of Exhibits filed with these minutes with the Town Clerk) He noted that there was a letter from Attorney O’Connell dated 11/9/05 to Marianne O’Neill, the BP Zoning chair regarding the merging of lots. He said that De facto subdivision approval gives the applicant the protection of CGS §8-26a. He checked to see if this lot ever was part of a subdivision and cited Exhibit 1 dated 5/27/31 – the subdivision map of BP Beach Association. He said that in order to see if this lot was protected he checked the BP Zoning Regulations and found that they adopted the subdivision map of Daboll & Crandall dated 5/27/31 with its regulations that were adopted 8/21/48. All lots shown on this subdivision map were legally approved lots. From 1948 to 1980 when the ‘merger’ clause was amended into the regulations any lot shown on the subdivision lot was an approved lot for building. Also during this time, there was no square foot lot requirement. Thus the lot in question enjoys the protection of CGS §8-26a. Exhibit 2 shows that the subdivision maps are protected. The applicant has the protection of CGS §8-2(a). The regulations protect not only a pre-existing non-conforming use, but also a pre-existing non-conforming lot. He referenced Exhibit 17 where a building permit was recently issued to DiResta at 23 Whitecap for construction of a new dwelling on (according to the Zoning Permit Application) ‘a pre-existing non-conforming buildable lot per Andy McKirdy’. This lot is only 5000 square feet versus the currently required 8000 square feet. He cited Exhibit 4 a deed showing that Mr. Danos acquired two lots in 1972 for 148 Old Black Point Rd. and Exhibit 5 a 1973 deed to Mr. Danos for the lot at 5 Woodland Drive. Exhibit 6 is a building permit for the two lots at 148 Old Black Pt. Rd. in 1974. Exhibit 7 is the 1980 BP Zoning Regulations and he cited that Page 5 states when the square foot requirement per lot came into play. He said that he believes that it was in 1980 that the 8000 square feet was adopted. Lot 1015 is not 8000 square feet and Exhibit 8 on Page 13 is the merger clause that forced a merger. He cited Judge Fuller on this merger clause noting that adjacent lots only have to be combined until a conforming lot can be obtained. Therefore Lot 1015 does not have to be combined with the two lots that are 148 Old Black Pt. Road as that address has over 8000 square feet. The Black Point Attorney and the ZEO suggest that lots continue to merge until they are beyond the maximum required. Judge Fuller suggests that they merge to the 8000 square feet and stop. Mr. Danos merged two for over 8000 square feet and has the one other left. He cited Exhibit 13 where Mr. Redfield who built and lives in a home directly across Woodland Drive from Mr. Danos had purchased the property behind his current lot for $68,500 and then purchased the non-conforming lot that his home now occupies for $1000. Mr. Redfield was allowed to build on 5000 square feet. He also did not have to combine the other lot to the one that he currently resides on.

Ms. Cini asked about the dates that this happened.

Attorney Londregan said it was 1984 and then cited that Dorothy Adler in 1993 appealed to the ZBA for a variance of minimum lot size regulations to construct a new house at 4 Waterside Avenue. The ZBA made No Decision because the Zoning Enforcement Officer was instructed to give the property owner a permit to build. This instruction came from the Attorney for the Black Point Beach Club Assoc. Exhibit 15 shows that the BP ZBA granted a subdivision of lots for 59 Sea Crest leaving one conforming building lot on Sea View Ave. He noted that in 1998 that this left an undersized lot and it was not required that it be merged. He said that CGS §8-2(a) protects the party in that the general principle of law is that if there is any ambiguity in the regulations then decisions should be in favor of the property owner. He said that Exhibits 10 & 11 show the separate tax bills for the properties and that Exhibit 16 shows a variety of other same type and size lots in Black Point as Mr. Danos’. He then submitted Exhibit 19 – a poster board of color pictures of other houses fairly recently constructed on lots the same size as 5 Woodland Drive. He also submitted Exhibit 20 – the sample of the mergers beyond 8000 sq. ft. and up to 8000 sq. ft. He said that this would be the first case where two different addresses would not be allowed to be developed. He said that they could also grant a variance as the application has two parts. The first part is regarding the appeal of the ZEO’s decision and the second is the request for a variance. The basis of this is that the regulations are the hardship and are creating the inability to use one’s property in a reasonable manner in a residential zone. The variance is not for the foundation as they can fit that within the property, the variance is for the porches. He said that they are asking for fairness here. He then said that his client wanted to say a few words.

Harry Danos, 148 Old Black Point Road said that in 1966 he purchased property at 10 Woodland Drive. Then in 1973 he purchased two lots facing Old Black Point Road and also the 5 Woodland Drive lot. In 1974 he obtained a building permit for the two lots on 148 Old Black Point Road. That lot size is 8400 sq. ft. and the lot density is only 14% whereas the current regulations allow for 35%. He said that he could build a house twice the size of the one that is there now. He said that he is an architect by profession and that he does not buy lots that he does not think that he can build on.

Attorney Londregan asked if Mr. Beckham, the ZEO was present as he was told that he would be here this evening.

Mr. Stempien said that he was not present.

Mr. Stempien called for those who had signed up to speak to address the Board –

David Tretter, 9 Woodland Drive provided Mr. Stempien with a copy of a sewer map of the area and said that there is no lateral however they could hook in by digging down 15 feet. He said that he was told that the ZEO would be present this evening and that they had an A-2 survey that would be available for people to look at. He said that he needs the A-2 survey by Gaffney as there is a discrepancy regarding the foundation of the storage attachment to the house that is in part of the Woodland Drive lot.

Attorney Londregan provided a copy of the A-2 survey mounted on poster board. This was entered into the record as Exhibit 21.

Mr. Tretter said that if they stand where the pins are and look at the attached shed that it is on the other property and that it is on concrete. He said that Mr. Beckham, the ZEO was supposed to be here with the actual A-2 survey and that this one is not the same.

Ms. Cini said that she had seen Mr. Beckham today and that he had said that he would be here tonight.

Mr. Stempien asked Mr. Tretter what he is saying – if the shed is in the other lot.

Mr. Tretter said that it shows intent to use that lot. He said that Mr. Danos also never appealed his street card although he did appeal his water. And, he did not appeal the fact that the lot had no lateral. He then cited a letter from Mary Cahill of Black Point to Mr. Fraser the then First Selectman and Chairman of the Water & Sewer Commission listing unbuildable lots in Black Point. 5 Woodland Drive is on this list.

Attorney Londregan asked Mr. Tretter if it wasn’t true that he once offered to buy that lot at 5 Woodland Drive from Mr. Danos or to split it with him half-and-half?

Mr. Tretter said yes, that was true but it was done so that he would not build on it. He added that it was not Mr. Danos intent to build on that lot and that he could have located his house on the other lots closer to the road but he did not.

Mr. Stempien said that he did not think that was pertinent to the issue they were discussing here.

Ms. Cini said that Mr. Tretter had given them a list of the lots that are to be considered not buildable in Black Point – she asked if they were to consider Mr. Danos lot to be buildable – would it also make these others on the list buildable? She said that she thinks that he can use the lot as a side yard or a back yard and that the use has not been taken away.

 Attorney Londregan said that this is a separate lot on the original subdivision of Black Point.

 Ms. Cini then read a letter into the record that was submitted by Michael Gilbertie of 8 Woodland Drive who could not attend the hearing this evening. Mr. Gilbertie said that he did not think that Mr. Danos should be allowed to build on the lot as he chose to merge his property and a 20’ wide house across the street from him will devalue his own home and property. This letter was entered into the record as Exhibit 22.

Marianne O’Neill, BP Zoning Chairman said that Attorney Londregan had contacted her last fall and that she had contacted Attorney O’Connell for an opinion. This opinion letter she said she gave the Board members a copy of so that they could review it prior to this meeting. She added that Mr. Beckham had said that he would be present this evening and that she had not heard from him that he would not be here.

Andrew McKirdy, BP Board of Governors member said that he wished to speak in opposition to this appeal and wanted to urge the ZBA to uphold the BP Zoning Regulations. He said that he identifies with many of Mr. Tretter’s comments and would not repeat things that have already been mentioned. He submitted a letter from Mike Giannattasio, Director of Public Works stating that no sewer assessment has been levied on 5 Woodland Drive. This was entered into the record as Exhibit 23.

Joyce Wojtas, 6 Woodland Drive said that she is in opposition to granting the appeal and that the issue of the merger keeps coming up. She said it is a permissive venue and that Section V of the zoning regulations are very clear on this and that proper notice was given when these were to be changed and regarding the intent of that provision. There are also some 40 other non-conforming, unbuildable lots besides Mr. Danos in Black Point.

Barbara Johnston, 35 Sea Crest Ave. said that it is interesting that the Black Point Beach Association writes a letter in 2004 to Mr. Fraser regarding a list of non-conforming, non-buildable lots. She said that she is not sure if she is on that list however, that letter and list should have been sent to everyone who is on it as it is basically a ‘black list’. Mr. Thumm said that Mr. Danos could have a lateral. There are a lot of mistruths here and Mr. Danos is trying to follow the laws and regulations and there are twists and turns that these regulations take with respect to lots and mergers.

George Fries, 26 Nehantic said that he is against this and that he agrees with a lot of the points that have already been brought up. He said that we paid for the sewer to come to Black Point.

Michael Halloran, 23 Sea Crest Ave. said that he wished to speak about Harry Danos and the upstanding citizen that he is and he asked that they make a reasonable and fair decision for Harry.

Kathryn Tretter, 9 Woodland Drive said that she has a letter in Harry’s own handwriting dated 1/15/86 stating that he could not build on that lot. She also said that on 1/20/86 that the Town abated his taxes.

Mr. Stempien said that Mr. McKirdy had researched the BP Zoning Regulations and that it was in 1980 that the 8000 square foot building lot size was adopted.

Attorney Londregan said that was what he had said earlier. He then submitted a copy of the permit for a shed for 148 Old Black Point Rd. that Mr. Danos had constructed.

 The following exhibits were submitted and entered into the record during the hearing:

Exhibit 24 – Water Assessment Board of appeals Letter – re: Danos submitted by Kathryn Tretter

Exhibit 25 – Copy of the letter to Mr. Fraser citing the non-buildable lots in Black Point, the street card assessment and the water assessment Board of Appeals documents submitted by David Tretter

Exhibit 26 – Copy of the sewer map for Woodland Drive and Old Black Point road submitted by David Tretter

Exhibit 27 – Copy of the building permit for a shed for Mr. Danos submitted by Attorney Londregan

Exhibit 28 – Case Law regarding ‘taking’ of property and what constitutes a taking submitted by Ms. Cini

Exhibit 29 – Note stating that in 1980 Black Point adopted regulations for building lots to be a minimum of 8000 square feet in size submitted by Andy McKirdy

Exhibit 30 – Copy of a Quit Claim deed on the Danos lot submitted by Kathryn Tretter

 Mr. Stempien asked if there were any other questions or comments regarding this application –

Hearing none –

Mr. Stempien closed this public hearing at 8:55 PM.

 

REGULAR MEETING

Mr. Stempien opened the Regular Meeting for Case No. 4-2006 at 8:56 PM.

Case No. 4 - 2006: Allegation of error in ZEO action Section V & VI by Harry Danos et al for a building on property located at 5 Woodland Drive and –

Request for a variance in Section VIA (a) (b) (c) & VI by Harry Danos et al for a building on property located at 5 Woodland Drive.

 Mr. Stempien called for a motion for discussion on the first action regarding the decision of the ZEO. He said that the ZEO decision was based on the issue of a contiguous non-conforming lot.

**MOTION (1)

Mr. Wilkinson moved that the ZEO was not in error in making his determination that the property located at 5 Woodland Drive owned by Harry Danos et al is not a buildable lot.

Mr. Whitman seconded the motion.

Mr. Stempien called for discussion.

Mr. Wilkinson said that he could not see how they could disagree with their attorney’s opinion.

Mr. Whitman said that it seems that there has been a feeling/intent all along that this is a non-conforming lot and that it would not be built upon.

Mr. Hayes said that he agrees with the fact that it is a non-conforming lot and non-buildable.

Ms. Cini said that putting intent aside –

Mr. Stempien said that the first issue regarding the decision of the ZEO is a factual point and they either agree or disagree with it. He asked that they discuss this issue first.

Ms. Cini said that she does not think that Mr. Danos’ past intent is relevant here or the issue of water and sewer so that comes down to the zoning issue of contiguous and non-conforming. She said that she tends to think that the ZEO decision is agreeable.

Mr. Stempien said that he thinks that Mr. Londregans’ issue of defining ‘merger’ opens up a lot of questions that cannot be answered. He said that he thinks that the intent of the regulations was that those size lots not be built upon. Mr. Londregan brings up many good points about ‘taking of property’ however the ZEO here followed the regulations in place and that is what the ZEO is supposed to do. Based upon this, he would have to agree with a the action of the ZEO.

Ms. Cini said that she does not agree with the taking of the land aspect.

Mr. Stempien called for a vote on the motion. 

Vote in Favor of the motion: 5 – 0 – 0. Motion passed.

Ms. Cini asked about the second part of the application regarding the variance request.

Mr. Stempien said that she could make a motion that, based on the previous decision that no action be taken.

 

**MOTION (2)

Ms. Cini moved that no action be taken regarding the request for variance in Section VIA (a)(b)(c) & VI by Harry Danos et al for a building on property located at 5 Woodland Drive based upon the decision in MOTION (1) regarding the action of the ZEO.

Mr. Whitman seconded the motion.

Vote in Favor of the motion: 5 – 0 – 0. Motion passed.

 ADJOURNMENT

 **MOTION (3)

Mr. Wilkinson moved to adjourn this June 30, 2006 Public Hearing and Regular Meeting of the Black Point Beach Club Zoning Board of Appeals at 9:12 PM.

Mr. Whitman seconded the motion.

Vote: 5 – 0 – 0. Motion passed.

 

Respectfully submitted,
Karen Zmitruk,
Recording Secretary