» Meeting Minutes
A Public Hearing and Regular Meeting of the Black Point Beach Club Zoning Board of Appeals was held on Saturday morning, November 18, 2006 at 10:00 AM in the Olive Chendali Room of the Town of East Lyme Community Center located on 41 Society Road in Niantic, CT.
PRESENT: Bill Willetts, Chairman, Phil Hagaman, Bill Greenwood, Alternate, Paul Pendergast, Alternate, Roberta Jordan, Alternate
ALSO PRESENT:Kevin & Elizabeth Brouillard, Applicants, Charlie Beckham, Black Point Beach Association ZEO
ABSENT:Don Wilkinson, Joyce Wojtas
1. Call Public Hearing to Order
Chairman Willetts called the Public Hearing to order at 10:00 AM.
2. Read Notice of Public Hearing
Mr. Willetts read the Notice of Public Hearing:
Case No. 6 - 2006: Appeal of Kevin and Elizabeth Brouillard seeking to overturn the ZEO’s recission of, and Cease and Desist order in connection with, Zoning Permit No. 06-22 for the modification of an existing deck and construction of a new deck, and other structures on property located at 7 Park Court Niantic, CT, owned by the appellants. The property is further identified as East Lyme Assessor’s Map 05.9, Lot 20. - and –
Application of Kevin and Elizabeth Brouillard for a variance of the Black Point Zoning Regulations Sections V and VI, to permit the construction of a deck, and other structures, on their above property, as per their application (#06-22) on file, in the event their appeal, above, is denied.
Mr. Willetts noted that this notice was sent to The Day for publication on 11/6/06 and 11/14/06 and that the abutting property owners had been notified.
3. Introduction of Zoning Board of Appeals members
Mr. Willetts asked the Board Members to identify themselves for the audience. The members did so.
4. Poll ZBA Members for conflicts of interest –
Mr. Willetts 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. Willetts then asked the applicant or their representative to present their case.
Kevin Brouillard, 7 Park Court, applicant, said that he had several conversations with Charlie Beckham, both on the phone and onsite regarding his application. He said that he had outlined these events in the information that he had supplied with his application (Attached at end of Minutes). He said that Mr. Beckham had first given verbal approval to his wife, Elizabeth on 8/18/06 to proceed with the proposed deck and patio and had said that they could begin that day. Early Saturday evening 8/19/06 Mr. Beckham left a phone message that said that based on the additional time that he had to review the application that he had to alter his approval and that they would have to make a minor change. He said that they would have to take the second tier of 9.5” down. They reviewed this with Mr. Beckham in person on Sunday morning and received his approval. The permit was approved on 8/25/06 with conditions. They went to the Town Hall on Monday morning with all of the paperwork and even though approval was given it was held because of the ‘Cease & Desist’ letter that was issued by Mr. Beckham regarding placement of sonnet tubes without a permit and the proposed placement of a fence. In this letter options for compliance were also given regarding the patio. He said that they did exactly what it said and what they had agreed upon. The patio is at ground level and they feel that they have acted in good faith.
Elizabeth Brouillard, 7 Park Court, applicant, added that they and their neighbors had been friends and that with what was a tenuous situation to start with regarding this circumstance, has now grown into a dispute that has been painful and has grown out of proportion. She said that what upsets her most is that this has turned into a very painful misunderstanding. Beyond the patio, she said that she is a teacher and her husband is a businessman in this Town and what they most want here is to have their name cleared of this misunderstanding as they feel that they have acted in good faith throughout all of this.
Mr. Willetts asked that they now put into the record what they feel is the hardship for the variance.
Mr. Brouillard said that he thought that it was one or the other that they were here for.
Mr. Willetts explained that the appeal is based upon the actions of the ZEO and that in order to continue they would need to have a variance and in order to obtain the variance they need to prove a hardship that is not personal or financially driven. He said that his understanding is that the ZEO thought that he made a mistake in first granting the permit and so they have to go on that. Because this is a structure, it has to meet the setback rules.
Mr. Brouillard said that he was not sure where he was going with this.
Mr. Willetts presented the site plan map that was done for Mr. Bonelli when he built the house. He asked Mr. Brouillard if he would go along with it in terms of the setbacks on the property.
Mr. Brouillard said that he had no objection to the site plan.
Mr. Willetts entered the ‘Proposed house location’, 7 Park Court, site plan dated 3/30/1979 done by Mr. Coonrod into the record as Exhibit A. He noted the buffer in the back and that there is an existing deck that protrudes another 12’ off the back of the house which brings it into the silt screen area. He asked if Mr. Brouillard would agree that the decking is well within that buffer area.
Mr. Brouillard said yes.
Mr. Willetts asked Mr. Brouillard if he would agree (referencing the site plan) that the construction in place now is closer than 15’ to the rear line.
Mr. Brouillard said yes.
Robert Dawes, 5 Park Court asked if it states how many feet of buffer zone extends into the property.
Mr. Willetts said that it says that the 20’ buffer runs north of the lot line.
Mr. Beckham, BP ZEO said that he had received a call from the wetlands people at Town Hall that when the house was built it had a 50’ buffer but that permit has expired and it is now a 100’ wetlands buffer.
Mr. Willetts noted that is a wetland question and not a zoning question.
Mr. Beckham agreed and added that he just wanted to bring it into the record.
Mr. Willetts asked Mr. Brouillard about the hardship with relation to the variance for some 3’ that he would be asking for.
Mr. Brouillard said that unfortunately the amount of money that has been spent would be a factor as these issues that are coming out now are coming out after everything had been discussed and agreed upon. A considerable amount of money has already been spent on this project.
Ms. Brouillard said that the point is that they have followed Charlie Beckham’s directions to get the grade up in order to be able to do the project. They would not have done it were they told otherwise and this needs not to be their problem. They certainly cannot put anymore money into this as they have already spent some $20,000 on this and also now have neighbors who hate them when they once were friends. This has turned into a nightmare and they have followed every directive.
Mr. Willetts said that with every action of the ZEO that there is an appeal period and anyone not happy with the ZEO’s decision could have taken an appeal. Perhaps the ZEO should not have issued the permit in the first place but that is not the issue here, now.
Mr. Beckham, BP ZEO said that on 8/25/06 that he issued the permit and that on 9/8/06 he rescinded it as he discovered that he was in error. He said that the A-2 survey was not provided during the permit process and that there is a question of if it is a patio or a deck and his interpretation was that it is a deck and not a patio.
Mr. Willetts said that the deck was going to include overhead structures –
Mr. Beckham said that it was going to have a pergola, an open overhang.
Mr. Willetts asked Mr. Beckham why he had changed his mind.
Mr. Beckham said that he changed his mind when he realized that it was going to be a deck and he found that it would not suit the setback requirements.
Mr. Willetts asked Mr. Beckham if he was aware of the 10’ side yard variance and that this was going to be constructed closer than 15’ to the rear line.
Mr. Beckham said no, that came to light afterwards.
Mr. Willetts called for anyone from the audience who wished to speak in favor of this application –
Hearing no one –
Mr. Willetts called for anyone from the audience who wished to speak in opposition to this application –
Robert Dawes, 5 Park Court said that he and his fiancée are neighbors and that there are two issues that he has had all along regarding this project. He said that he has submitted a letter for the record regarding this. (entered as Exhibit C and attached) The first issue is the fire pit in the center of the pressure treated wood deck. This creates toxic fumes when it burns and it is also a fire safety issue. He said that when he asked Mr. Brouillard about a building permit and he did not have one that he called the Town of East Lyme building department and was told that there was no building permit issued and that no building should be going on without one. After the Cease & Desist was ordered a load of loam was brought in the driveway and he was concerned with run-off to his property. He discussed this with Mr. Beckham and Mr. Beckham said that there is nothing that he could do about ‘someone who was re-seeding his lawn’. Because he was concerned with run-off to his property he reviewed the regulations and they state that a property cannot be graded such as to cause run-off to a neighboring property. He questioned Mr. Beckham about this and asked him about enforcing these regulations and Mr. Beckham told him to call the police if he has a problem. He then decided to e-mail Mr. Beckham regarding the situation and he now finds out that Mr. Beckham ordered the grading which is why he would not reply and fix the problem. He said that he also asked Mr. Beckham for a copy of the application documents and if he would fax them to him as he told him that he would be out of Town and could not be reached to get them. He said that Mr. Beckham gave him several excuses and when he finally received them this Tuesday, none of the documents that he had asked for were included so he called Mr. Willetts and asked if he could fax them to him. Mr. Willetts very nicely faxed him the documents that he had requested. He said that he does not think that it is for the ZEO to selectively omit information from an application that someone has requested a copy of or to authorize someone to put loam in their yard to cause run-off to a neighboring property. The two issues are the fire pit in the middle of the deck and the filling in with loam. He said that he does not think that the ZEO has done his job properly and that he is totally out of line with his handling of this application and obviously does not know his job. He said that he thinks that the ZEO has to follow the guidelines and not make up rules as he goes along. He has to follow the regulations in place. This grading affects his property and Mr. Beckham is making a bad situation worse.
Mr. Willetts asked if the primary concern of this appeal is the grading issue on their property that is causing water to back up on Mr. Dawes property.
Mr. Dawes said yes and added that they have also started to put up a stone block wall on the property line and that all of this work was done after the Cease & Desist was issued.
Mr. Willetts asked Mr. Dawes if he had written down the dates.
Mr. Dawes said that he had not but that it was done at least a week after the Cease & Desist was delivered.
Mr. Willetts asked Mr. Dawes if typically he has or has had flooding in his back yard.
Mr. Dawes said no.
Mr. Willetts asked Mr. Dawes how long he has lived there.
Mr. Dawes said four to five years.
Mr. Brouillard said that his property is lower than Mr. Dawes property and that he has not seen any run-off and that he would ask for an impartial third party to go out and look at it and make a determination.
Pat Williams, 5 Park Court said that this whole issue has caused stress upon both of their families (they not only no longer get along but their children no longer play together) and that Mr. Beckham has been disrespectful in representing the BP Beach Community. She said that she spoke with Mr. Brouillard about the fence placement and that Mr. Brouillard was very defensive about it. She also said that she just wanted to know where it would be placed and she had asked for a building permit and he said that one would be put up and then they found out that there wasn’t one. Everything above ground level would require a building permit. Mr. Brouillard said that Mr. Beckham had told him that as long as he does not extend the deck out to a certain level that it would be okay. Mr. Beckham had also told the Brouillards’ that they were taking pictures of their deck and sending them to all the Board members and they were doing no such thing. Negligence of the law is not an excuse and as far as the ZEO goes, he approved something that he had no right to approve in the first place.
Mr. Dawes said that in looking at the plans that there are X’s on areas that are crossed out. He asked about them and also said that what was actually built seems to be the same as what is shown on the plan – three levels. He said that he is not sure of the 9.5”. He asked if that was the original application that was approved and if the changes were made after the approval because if that was so, they did not follow what was actually approved.
Ms. Williams said that Mr. Beckham said to them, that he approved a ground level patio and not a deck.
Mr. Brouillard said that the areas that have the X’s were not done and that the three levels were taken out and that there is a three-step stairway there instead. This was attached to the ZEO’s approval of 8/20/06.
Mr. Beckham said that the X’s are his and that the plan is correct regarding the 9.5” of back filling and grading. He noted his letters of 9/28/06 and 9/29/06 where he let them go forward with the grading and when the neighbors complained he asked the Brouillards to put up a silt fence – which they did.
Mr. Dawes said that he had forgotten about the silt fence, as it does not solve the problem.
Mr. Willetts said that it appeared that they agreed that the fence was not the issue but rather that the building permit was an issue.
Mr. Brouillard said that at Town Hall that they had said that everyone had signed off on the building permit but they never got one because the Cease & Desist was issued.
Mr. Willetts asked if there were any other questions from the Board.
Mr. Hagaman asked if the property could have been graded for a patio as they could go to the setbacks with a patio without a permit.
Mr. Brouillard said that it probably could have been.
Mr. Willetts entered the Certificates of Mailing into the record as Exhibit B. He also entered the letter from Robert Dawes of 5 Park Court dated 11/16/06 into the record as Exhibit C (Copy attached at end of Minutes). He then asked if there were any other questions or comments.
Hearing none –
Mr. Willetts closed this public hearing at 10:57 AM.
REGULAR MEETING
Mr. Willetts opened the Regular Meeting for Case No. 6-2006 at 10:57 AM.
Case No. 6 - 2006: Appeal of Kevin and Elizabeth Brouillard seeking to overturn the ZEO’s recission of, and Cease and Desist order in connection with, Zoning Permit No. 06-22 for the modification of an existing deck and construction of a new deck, and other structures on property located at 7 Park Court Niantic, CT, owned by the appellants. The property is further identified as East Lyme Assessor’s Map 05.9, Lot 20.
- and –
Application of Kevin and Elizabeth Brouillard for a variance of the Black Point Zoning Regulations Sections V and VI, to permit the construction of a deck, and other structures, on their above property, as per their application (#06-22) on file, in the event their appeal, above, is denied.
Mr. Willetts said that they would first take up the appeal of the ZEO action and then the variance. He said that in his opinion that there is no question that what is being constructed here is a deck with a pergola roof and that Mr. Beckham pulled the permit because it is a deck and exceeds the 35% build-out area of the building plan. It appears to be clear that this is not in accordance with the Zoning Regulations. He asked if others had a different opinion.
Ms. Jordan said for clarification, that a pergola is not a roof but just open supports.
Mr. Greenwood said that when the house was built that it had to have a side yard variance to 10’ from 15’ and asked if there was a backyard or other variance granted also.
Mr. Willetts said that he had looked it up and that this lot and another were granted the variance on the side yard but none to the back.
Mr. Greenwood said that it appears that part of the problem here came up due to the lack of an A-2 survey and not knowing where the back yard line was.
Mr. Willetts said that Mr. Beckham mentioned that and that he was not aware of the back yard line. He said that they also have some non-zoning issues here such as the wetlands – and the question of changing the elevation of the land here. He said that he thinks that the party looking to make the change should not be increasing run-off to others and it is the contention of Mr. Dawes that run-off is happening. It is also the contention of Mr. Brouillard that his property was lower to begin with and now is higher and may very well cause run-off due to the creation of the earthen dam. He said that he is not sure if this is a Zoning issue.
Ms. Jordan said that it is a regulation that you cannot increase or decrease run-off to adjacent properties so it is a zoning issue.
Mr. Willetts said that a patio has to be built on level ground as it exists so the ZEO is correct in rescinding the permit. And - in so far as it applies to the raising of the grade to turn the deck into a patio he believes that this also is in violation of the regulations. He called for other comments or a motion.
**MOTION (1)
Mr. Pendergast moved to DENY the Appeal of Kevin and Elizabeth Brouillard seeking to overturn the ZEO’s recission of, and Cease and Desist order in connection with, Zoning Permit No. 06-22 for the modification of an existing deck and construction of a new deck, and other structures on property located at 7 Park Court Niantic, CT, owned by the appellants. The property is further identified as East Lyme Assessor’s Map 05.9, Lot 20.
Mr. Hagaman seconded the motion.
Vote in Favor of the motion: 5 – 0 – 0. Motion passed.
Mr. Willetts called for discussion on the request for a variance.
Mr. Hagaman said that in order to do the patio, the grade would have to be brought up and that will cause run-off to the neighbors yard. He asked if the hardship is the grade.
Mr. Brouillard said the he cautions them that the statement of run-off is an allegation and not a fact and that he will get a third party if necessary to evaluate this.
Mr. Hagaman said that he is not talking about that – he asked if the hardship is due to the contour of the land.
Mr. Willetts said that the variance is not clearly drafted – is it the rear line?, the 35% lot coverage? Under the circumstances it appears that they feel that they are improving their house and he is not clear that it is appropriate to do this.
Mr. Greenwood said that the back yard is substantially sloped and they need fill to use it. The current setback is 15’ in back and they are already beyond that.
Mr. Hagaman said that they have already been allowed to use their property in the best way possible.
Mr. Willetts said that if the patio were to be done that it could go up to the setback lines but because they have to raise the grade of the property in order to do that, it is no longer a patio. (Relevant BP Zoning definitions and regulations attached at end of Minutes)
Mr. Hagaman said that if they raise the grade then they would get run-off. He asked if there was any way to grant a variance and also be in compliance.
Ms. Jordan and Mr. Willetts both said that the deck is already built beyond the back yard setback.
Mr. Willetts said that they could build a patio there but the irony is that if they built the patio then they would not have had to get a permit from Mr. Beckham unless they changed the grade, which would have been an issue.
Mr. Willetts asked if they were ready to make a motion
**MOTION (2)
Mr. Pendergast moved to DENY the Application of Kevin and Elizabeth Brouillard for a variance of the Black Point Zoning Regulations Sections V and VI, to permit the construction of a deck, and other structures, on their above property, as per their application (#06-22) on file.
Ms. Jordan seconded the motion.
Vote in Favor of the motion: 5 – 0 – 0. Motion passed.
Mr. Willetts called for a motion to adjourn.
ADJOURNMENT
**MOTION (3)
Mr. Pendergast moved to adjourn this November 18, 2006 meeting of the Black Point Beach Club Zoning Board of Appeals at 11:24 AM.
Mr. Hagaman seconded the motion.
Vote: 5 – 0 – 0. Motion passed.
Respectfully submitted,
Karen Zmitruk,
Recording Secretary