» Meeting Minutes
A Public Hearing and Regular Meeting of the Black Point Beach Club Zoning Board of Appeals was held on Friday evening, June 22, 2007 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:
Bill Willetts, Chairman, Paul Bollo, Secretary, Phil Hagaman, Joyce Wojtas, Don Wilkinson
ALSO PRESENT:
Todd & Denise Peretz, Applicants
Charlie Beckham, Black Point Beach Association ZEO
ABSENT:
Bill Greenwood, Alternate, Paul Pendergast, Alternate
1. Call Public Hearing to Order
Chairman Willetts called the Public Hearing to order at 7:00 PM.
Mr. Willetts noted that all Regular members were seated.
2. Read Notice of Public Hearing
Mr. Willetts asked Mr. Bollo, Secretary to read the Notice of Public Hearing:
Case No. 1 - 2007: Application of Todd and Denise Peretz for a variance of Section V of the Black Point Zoning Regulations regarding dimensional requirements to permit the construction of a deck off the rear of the house and in a setback area on property owned by the applicants and located at 4 Sunrise Avenue, Niantic, CT per Zoning Permit Application No. 07-10 on file. The property is further identified in the Application as East Lyme Assessor’s Map No. 05.10, Lot 38.
Mr. Bollo noted that this notice was published in The Day on June 10, 2007 and June 17, 2007.
Mr. Bollo presented the certificates of mailing for the record, from a list of abutters furnished by the applicant.
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 to present his case.
Todd Peretz, 4 Sunrise Ave. said that he would have applied for the deck with the original house construction but the Zoning person had said that it would be fine to put stairs out back where the sliders were as the original elevation was not as high, so they thought that it would be okay as they would still be staying five feet (5’) from the property line and they were already in the setback. He said that the fact is that no matter what he puts out back he is in the setback. He submitted a letter from Peter Wysocki, his neighbor who would be most directly affected by this and a survey that he put together stating that the undersigned would have no problem with them putting a deck out back and that they understand the BP zoning regulations. He said that they would notice that everyone who was mailed notice of the application has signed the form as well as some others who probably see the back even better.
Mr. Willetts called for anyone from the public who wished to speak in favor of this application –
Mary Lou Weidel, Indianola Road said that before she spoke in favor of this that she has some questions. She asked if there was an original variance given for this property.
Mr. Peretz said that the original variance was given on the construction of the home on the front side.
Ms. Weidel asked if there was one given on the back.
Mr. Peretz said no.
Ms. Weidel asked why not.
Mrs. Peretz said that they were told by Zoning that where the old house was set that the new house was going in the same exact spot in the back setback and they had an old shower there so it would not be a problem to have stairs coming out from the slider.
Ms. Weidel summed that when the original permit was given by the Beach Association, it was known that the slider was there – is that correct?
Mr. Willetts said that they do not know that.
Ms. Weidel asked if perhaps the ZEO knew?
Mr. Willetts said that he did not know that –
Ms. Weidel said that is why she is speaking in favor, because the door was on the plans and for that reason she felt that it should be granted.
Mr. Wilkinson asked to speak about the footprint – he asked if there was an 8’ x 16’ footprint there before.
Mr. Peretz said no. He said that he was referring to the foundation footprint.
Mr. Willetts asked Charles Beckham, BP ZEO if he would like to address them.
Charles Beckham, BP ZEO said that on 4/6 the permit was finally approved for the front and side of the property. The plans never had a deck showing so that was not addressed. He added that on the original plans that the walkout basement was on the side and then they went through the Town and moved it to the back. He said that he never did see the re-submission of that and that is probably where the deck out the back came from – they reapplied and that is what brought them here today.
Mr. Hagaman asked if there was a deck on the original plans.
Mr. Beckham said no.
Mr. Bollo asked about the minutes of the Public Hearing of 5/26/06 and according to those minutes it said that they had said that there would be no deck on the new house – he asked Mr. Peretz if that was a correct statement.
Mr. Peretz said yes. He added that he was referring to the front as it was a front porch and the variance was granted for the front. It was made in reference to the front deck that they had on the house.
Mr. Bollo noted that in those minutes that Mr. Whitman had stated that there was a deck on the front of the house and asked if he understood that he wanted the house to come up to that deck area.
Mr. Peretz said that was correct and that he was referring to the front of the house.
Mr. Beckham said that to put a deck off of the rear of the house that they are already three feet to five feet (3’ to 5’) into the rear setback area. To allow relief you would be talking about quite a distance into the setback.
Barbara Johnston, 35 Sea Crest Avenue said that she is against this application. She said that she had a copy of a picture of the old house (submitted) and it was 20’ x 50’ and the new house has been increased to 26’ x 50’. She said that she also has a picture of another house at 31 East Shore, owned by Donahue who requested the same thing, a deck off the back slider and they were denied. She submitted the notice of denial. She noted that both of the lots are non-conforming lots. The Zoning Regulations have 3’ x 5’ as a landing so she said that she could not see how they could even think of submitting something 8’ x 16’. She said that she believes that this is an expansion of a non-conforming lot that was given a variance for an increase of 6’ for a larger house, in violation of the BPBC Zoning Regulations. She stated that it is a general principle in Zoning that non-conforming uses should be abolished or reduced to conformity. The applicant is proposing a deck, not a landing. The applicant has also added a front landing to his already reduced frontage. Modular homes come in any size you order; she noted that she was a builder of such homes and feels that this is a self-created hardship. She asked that they deny this application.
Mr. Willetts asked if anyone else wished to speak –
Frank White, 1 Sunrise/40 Billow Rd. said that he is directly across the street from the Peretz’s. He said that he thought that Charles does a great job as he has spoken to him for various things. What he wants to say is that they have the okay from the people who live right there and even from people who see if from a far and they should grant this. As a neighbor and a friend to them he does not see why they should not give them a variance. He does not think that this is going to impede anyone; this is just going to help the Peretz’s out with what they want to do. He thinks that they did all of this correctly.
Denise Peretz, 4 Sunrise Ave., applicant said that during the construction someone pointed out to them how much money it was costing them to put up a whole new retaining wall and put dirt there and that if they knew what is being said here now, then they would have come to them then. She said that they are honest people and are not trying to pull anything. They would not have put their slider with a walkout and would have continued with their original plan, but they were told that it would be okay.
Todd Peretz, 4 Sunrise Ave., said that he runs everyday and that he sees what people do in Black Point but the bottom line is that if someone down on East Shore Drive wants to do something, this does not pertain to him. What does pertain to him is the people who live around his property and he went around and went to people who were not on the list and asked if they had trouble with his deck and they did not.
Barbara Johnston, 35 Sea Crest Ave., said to Mr. Peretz that he is taking this personally and that there are State Regulations and State Statutes and not the neighborhood that guide the Zoning Board of Appeals, it is State Statute and that is why she brought up the information from the neighborhood cases.
Mr. Willetts said to Mr. Peretz that what troubles him somewhat is that nothing in his presentation addresses hardship and a variance can only be granted by Statute upon a showing of exceptional hardship of applying the zoning regulations as written. This may have come about as he may have been misled as in the original variance, according to the minutes; he was not required to demonstrate hardship in putting a bigger, more non-conforming house on the lot as it stood. Now, there is a new Board and he said that while the new house looks wonderful that the variance that he obtained ended up having a bigger footprint and created an increased non-conforming use. Now, he is coming back to further extend into a rear setback that is already extended into for a deck. The basis for a hardship has to do with the topography of the lot such as ledge, it has nothing to do with the fact that you have a slider or that you did not know and now cannot do anything with the slider. A hardship would be if you had ledge and if you could not use the property if you could not go into the setback, that would be a hardship –
Mr. Peretz interrupted that no matter what he did it would be a hardship as the lot is only 54’ deep and by the standards, the 15’ rear setback and 20’ front setback that at best would leave him with a 19’ house which no one is putting up. That is the hardship.
Mr. Willetts said that Mr. Peretz has a pre-existing non-conforming use and they are supposed to disappear over time and that historically they cannot be expanded. He said that he already had a non-conforming livable house on this lot and was given a variance to expand that to the 26’. Basically on a 40’ lot, they do give a variance to allow for a 20’ house, but they already had a 20’ house on this lot. While the deck might be nice to have, without a hardship, he could not see how they could grant it.
Denise Peretz, 4 Sunrise Ave. said that she has a hardship and that as a single family home that if there was a fire that there would be no way for her son to get out if they don’t have something on that back side. She said that they talked to the Fire Marshal and that because it is a single floor home that he said that he could not give them that hardship. But for her, she said that it is a hardship.
Mr. Hagaman said that he did not think that they would be able to get that as there are plenty of people with two stories and a rope ladder can be thrown out of the window and it is not a hardship.
Mr. Bollo asked Mr. Peretz if there were any physical conditions of his property that affected his property that do not affect other properties in the area.
Mr. Peretz said that he was not sure of what Mr. Bollo was asking.
Mr. Bollo said that they are trying to come to a hardship and Mr. Peretz has said that there should be no issue if all of the abutters have signed off on this application. However, it is the hardship that determines this and he is asking what physical conditions affect this property that do not affect any neighboring properties.
Frank White, 1 Sunrise said that there would be no way that they would impede on their neighbor as they have a retaining wall there.
Mr. Bollo said that what he was getting at is defining the hardship for this parcel that does not exist for other similar parcels near him. He asked if there is something unique to this property that makes it different.
Mr. Peretz said that the ones near him are double lots. The slope of his back yard is a hardship.
Mr. Bollo asked what hardship that causes.
Mr. Peretz said that he thought that it was mostly a financial hardship.
Mr. Bollo said that is not the type of hardship that is allowed.
Mr. White asked what type of hardship they allow.
Mr. Willetts said that the regulation states that it is ‘solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of the regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured by granting a variance.’
Mr. White asked if they were talking about someone who was handicapped.
Mr. Willetts said that was a whole different ball game.
Mr. White said that he still did not understand what a hardship is.
Mr. Wilkinson said that it means that you cannot use the property for what it was originally intended to be used for.
Mr. White said that they had to change the house because they could not use the property.
Mr. Wilkinson said that there is no hardship there.
Mary Lou Weidel, Indianola Road said that it is very difficult for people to understand what a hardship means in a zoning situation as most people think of it as financial. She said that the way that she sees this is because Billow Road is so steep that it affects the way that they place their house. Now they have a second floor.
Mr. Hagaman said that the original house had a crawlspace and they put in a full basement that made the back a second story that they did not have before. That is what made it higher.
Ms. Weidel said that there is a sliding glass door there and asked if anyone on the Board had noticed that there was a sliding door on the back of the house.
Mr. Hagaman and Mr. Willetts said that the variance was for the front and it was not for them to review the plans.
Ms. Weidel asked if anyone had done that since they were given the variance.
Denise Peretz, 4 Sunrise said that the only thing that they changed was the location of the walkout basement door from the side to the back and that was done due to the slope. She said that they did this due to the amount of dirt and the wall that they would have to do anyways. The sliders were on the plan for the back of the house. She said that they are looking for a landing as zoning may be changing their regulations.
Mr. Hagaman asked what about her son getting out that she had asked for, and what are they asking for as the plan only shows a deck with no stairs.
Mr. Peretz said that there would be stairs.
Mr. Bollo and Mr. Hagaman said that the drawing do not show any stairs only a deck.
Mr. Hagaman said that a landing can go into the setback and that zoning is talking about expanding the 3’ x 5’ landing to a 4’ x 4’ landing. He asked Mr. Beckham if they could do that.
Mr. Beckham said that they are already in the setback by around the three feet (3’) that the stairs would be allowed to go in so they would be extending beyond that setback.
Todd Peretz, 4 Sunrise said that they are two feet (2’) into the setback.
Mr. Beckham said that during the whole process that the deck should have been brought up from the start and that it was not his responsibility to design this for them. It should have been there and it was picked up down the road and that is the problem.
Mr. Wilkinson asked what they are looking for here – a deck or a landing.
Mr. Peretz said that they would like a deck but if they won’t be granted that, then they will have to go for a landing if that is what they can get.
Mr. White said that the Peretz’s are good people that he trusts to watch his kids and that he thinks that accounts for something here and that it should be considered.
Mr. Hagaman said that in the regulations that they are bound by the law and the Statutes and not by the type of person they are.
Mr. Bollo said that they are here to consider their application only and that they need to show a hardship that supports the variance.
Mr. Peretz said that he had saved this for now and said that he thinks that it is appalling that he did not receive notice or a phone call of this hearing. He said that he heard about it from a neighbor.
Mr. Bollo said that he followed the letter of the law regarding notifications and apologized that Mr. Peretz did not receive notice. He said that he did two newspaper notices and the letters to the abutters and that he was not aware of what the prior Board had done. He said that he would be certain to include applicants at all times in the future.
Barbara Johnston, 35 Sea Crest Ave. noted that it is accepted that a legal notice is the notice. She said that the previous Board did not send notices either.
Mr. Willetts asked if there were any other questions or comments regarding this application –
Hearing none –
Mr. Willetts closed this public hearing at 8:00 PM.
REGULAR MEETING
Mr. Willetts opened the Regular Meeting for Case No. 1-2007 at 8:01 PM.
Case No. 1 - 2007: Application of Todd and Denise Peretz for a variance of Section V of the Black Point Zoning Regulations regarding dimensional requirements to permit the construction of a deck off the rear of the house and in a setback area on property owned by the applicants and located at 4 Sunrise Avenue, Niantic, CT per Zoning Permit Application No. 07-10 on file. The property is further identified in the Application as East Lyme Assessor’s Map No. 05.10, Lot 38
Mr. Willetts called for discussion.
Mr. Bollo said that he thinks that this case points out the difficulty in legal hardship and in defining it. He said that unfortunately there is a very narrow area that defines a legal hardship and in this case he said that he could not support the granting of a variance as he does not think that the applicants have met that narrow standard in spite of the fact that they have pointed to other hardships in general.
Mr. Wilkinson said that he thinks that there are other ways to access that slider without a deck and that not having a deck does not cause any hardship to the occupancy of that building and because of that it does not meet the requirements for granting a variance.
Ms. Wojtas said that she agrees with her fellow Board members and that the zoning laws are pretty strict and unfortunately you have to live with them. She said that she also lives on a non-conforming lot and that it is a 40’ lot and you have to have the buyer beware and look in to these things before buying.
Mr. Hagaman agreed with the comments of his fellow Board members.
Mr. Willetts said that unfortunately this is a small community of many non-conforming lots and that there is a desire to put a stop to the willy-nilly granting of variances and it has been his policy to look for the hardship. He said that they have a nice house but unfortunately he could not find a hardship. The deck is not critical to this house, it would be nice to have but it is not critical.
Mr. Willetts called for a motion.
**MOTION (1)
Mr. Bollo moved to DENY, due to the failure to show a legally defined hardship, the Application of Todd and Denise Peretz for a variance of Section V of the Black Point Zoning Regulations regarding dimensional requirements to permit the construction of a deck off the rear of the house and in a setback area on property owned by the applicants and located at 4 Sunrise Avenue, Niantic, CT. The property is further identified in the Application as East Lyme Assessor’s Map No. 05.10, Lot 38
Mr. Wilkinson seconded the motion.
Mr. Willetts called for a vote on the motion.
Vote in Favor of the motion to DENY: 5 – 0 – 0. Motion passed.
ADJOURNMENT
**MOTION (2)
Mr. Bollo moved to adjourn the June 22, 2007 meeting of the Black Point Beach Club Zoning Board of Appeals at 8:10 PM.
Mr. Hagaman seconded the motion.
Vote: 5 – 0 – 0. Motion passed.
Respectfully submitted,
Karen Zmitruk,
Recording Secretary