BOARD OF APPEALS MINUTES
Monday, September 28, 2009
7:00 p.m.
Present: Chairman Lisa Beauvais, Secretary Christine Kumiega-Provost, and Alternate Chet Zymroz
Absent: Vice-Chairman Gregory Neffinger
The Chairman called the meeting to order at 7:02 p.m.
1. Acceptance of Minutes
Ms. Kumiega moved to approve the minutes of July 27, 2009, as presented; Ms. Beauvais second. Two in favor; Mr. Zymroz abstaining.
2. Public Hearings
7:00 p.m. (7:03 p.m.) – Pocket Communications (Special Permit) –Special Permit to amend existing special permit under Section 4.21 of the Zoning Ordinance for a change of one non-conforming use to another non-conforming use at the property located at 1362 Westfield Street in the Neighborhood Business (NB) zoning district. Continued from June 22, 2009.
Mr. Werbiskis said Attorney Sypek has requested a continuation to the January meeting of the Board. They are still meeting and negotiating with Exxon for improvements on the site. The asphalt plants will be closing in mid-November, so they would likely be starting construction early next year.
Ms. Beauvais moved to continue the hearing to January 25, 2010, at 7:00 p.m.; Ms. Kumiega second. UAV.
7:05 p.m. (7:05 p.m.) – Rhoda & Nathan Crowell (Variance) – Variance from Table 6-1A of the Zoning Ordinance that requires a 20-foot side yard setback for the property located at 433 Brush Hill Avenue in the Residence A-1 (RA-1) zoning district.
Rhoda and Nathan Crowell came forward and said they would like to add a deck on to the side of the house where there currently was an existing deck. This would make it easier to get in and out of the house. They would also be screening in the part of the porch near the kitchen. The original deck was put on in 1987, and when she went to the Town Hall to get a permit she found there is only 22 feet there.
Ms. Beauvais said the existing porch is now 6 feet by 6 feet and extends to the front of the house. Ms. Crowell said yes, that was correct and she has received approval from her neighbors regarding this project. There is a steep slope coming off the back driveway and soft soil conditions as well.
Ms. Beauvais said the extension would be uniform and “L” shaped with part of the porch remaining open and the existing deck would be extended and covered. The porch itself is not creating a new non-conformity, but by covering it, the porch would extend out two feet more. Ms. Beauvais asked what are the current setbacks?
Mr. Crowell said it is 16 feet now from the porch to the property line. Ms. Beauvais said for approximately one half of the porch the setback would be 14 feet. Mr. Werbiskis said they need a variance because this is not considered pre-existing, non-conforming, there is no provision in the Ordinance for encroaching on the side yard setback for porches, only for front or rear yards.
Ms. Beauvais asked if there were issues with the topography of the land where the porch was currently located? Ms. Crowell said the driveway goes across all the way to the back and slopes on the left and into the back yard. Ms. Beauvais said the porch could not go on the other side because of the topography of the land.
Ms. Beauvais asked for comments from the Board. Ms. Kumiega asked if the current front porch is already covered and is the home on city sewer? Ms. Crowell said yes, it was covered and the house is connected to city sewer.
Ms. Beauvais asked for comments from the audience.
Ms. Beauvais moved to close the public hearing; Ms. Kumiega second. UAV.
Ms. Kumiega said there are issues with the topography that result in a hardship and they cannot put the deck elsewhere. Ms. Beauvais agreed the porch would not be creating a new non-conformity, except the two inch overhang. The Board would have to make sure to be clear about the significant slope of the land to meet the criteria of granting a variance.
Ms. Kumiega said in the past the Board was always concerned about allowing access for emergency vehicles, but the driveway is on the opposite side with plenty of room for access.
Ms. Beauvais moved to approve the variance application and the Board finds that the slope of the land creates a condition that affects the land and the project and creates a hardship by not being able to put a roof over a portion of the porch and the porch could not be placed on any other part of the property due to the slope. Mr. Zymroz second. UAV.
7:10 p.m. (7:19 p.m.) – Zoning Board of Appeals (Variance Amendment) – amendment to decision granted January 2, 2009, to allow for a fence more than 4 feet in height or greater than 50 percent solid along the rear property line extending to the street line for property located at 706 Prospect Avenue in the Residence A (RA) zoning district.
Ms. Beauvais said the Variance Amendment relates specifically to the rear property fencing.
Attorney Brighenti said the issue was the original decision stated the fence needed to be 50 percent translucent and less than 4 feet in height. After reviewing the decision and the minutes, it appeared the Board did not have an issue with the rear portion of the fence. The side yard fence has been brought into compliance and is all set, but the rear fence was not renovated. Attorney Donahue and Mr. Werbiskis decided to hold a new hearing to amend the decision and to leave the back portion of the fence as it currently exists.
Ms. Beauvais said the Board did state there were no problems with the back fence, but the fence was denied based on the fact that no hardship could be found for the side part of the fence.
Mr. Werbiskis said a new hearing was being held because the substance of the decision would change and approve the variance for the rear portion of the fence, but the decision would still have to deny the fence that abuts Quarry Road. The minutes were forwarded to Mr. Zymroz for review and to give him the knowledge to amend this decision. Mr. Zymroz stated he was in attendance during the original hearing, even though he did not actively participate in the original hearing.
Mr. Werbiskis said the Board can amend the decision to allow the fence to remain along the rear property line but uphold the denial of the fence that runs parallel to Quarry Road. Ms. Beauvais confirmed the fence on the rear property line is 6 feet in height, and it is opaque and installed to block the lights that shine in the home from Quarry Road.
Ms. Beauvais asked for comments from the Board and the audience. No comments followed.
Ms. Beauvais moved to close the public hearing; Ms. Kumiega second. UAV.
Ms. Beauvais moved to clarify the decision to amend the variance decision made by this Board on December 22, 2008, and stamped with the Town Clerk on January 2, 2009, to allow for the fence extending to the rear property line to Quarry Road to remain at 6 feet in height and more than 50 percent solid and the Board upholds the denial for the fence that runs parallel to Quarry Road, which allows for a 4 foot high structure; Ms. Kumiega second. UAV.
7:15 p.m. (7:31 p.m.) - Oksana Vlasynk (Special Permit) – Special permit to allow for a non-conforming structure to be used for retail and storage purposes at the property located at 476 Main Street in the Business A (BA) zoning district.
Ms. Vlasynk came forward and told the Board that she bought this property to fix it and resell it and then she ran into financial trouble. Ms. Vlasynk said she planned to live on the first floor, rent the second floor and have a store front with a coffee shop. Ms. Beauvais said the application states the use would be storage and retail, but now the use will be retail and residential.
Mr. Werbiskis said the building use has been non-existent for more than three years. Previously, the property was a mixed residential and commercial use. This use is not allowed in the Business A (BA) zoning district. They could use the property for commercial purposes, but there is no parking on site. The re-occupancy of the property for commercial purposes requires a special permit through this Board. To have a use as a residence would be stretching the special permit because it should be a variance due to the fact that the residential use is not allowed in that zoning district. Mr. Werbiskis said it has been hard to narrow down the applicant’s intention for the use of the property. Mr. Werbiskis has suggested Ms. Vlasynk retain legal counsel to
assist in this matter.
Mr. Werbiskis noted this has been one of the problem properties in the Merrick neighborhood and the town is trying to keep it up to code. This property is in disrepair and the Health Department would like it removed and they have put the demolition of the property out to bid. There are hazardous material issues that need to be addressed before it can be removed. The bids are due to expire at the end of the month. The Town needs to take some active action to move forward with the demolition of the property. The goal of the town is to put the structure to use, but there are concerns with a mixed residential/commercial use. There are many code issues to be addressed with the building itself. If the structure is removed, no structure can be put on the property
because of the lot size.
Ms. Beauvais said the property is not zoned for residential, and it would require a variance. Ms. Kumiega added if the residential use is going to derogate from the bylaw, they may not get there either. She said it would be a hard case to make, but the coffee shop would work because it is a commercial use. Ms. Beauvais agreed they may not meet requirements for a variance. Mr. Werbiskis said the property is non-compliant with parking requirements, so they would need a special permit for a commercial use. In the future, there may be revision to the Zoning Ordinance to allow for mixed use residential and commercial on the Main Street and Union Street areas, but there is nothing in existence today in the Ordinance.
Ms. Beauvais informed Ms. Vlasynk the Board could hear the case this evening or she could ask for a continuance. Mr. Werbiskis said the Board could also hold a special meeting because the Health Department is looking for some direction since this has been ongoing since late spring. The Board discussed the options.
Ms. Vlasynk said she did not want to proceed with the demolition because of the financial hardship to her. Mr. Werbiskis said the Health Department wants the structure rehabilitated and put to use, but they must move forward with their demolition plans because no action has been taken to date to bring the building up to code.
Ms. Beauvais asked when Ms. Vlasynk purchased the property? Mr. Werbiskis said it was purchased in February 2006, but has been unoccupied since 2003. Mr. Werbiskis suggested the owner clean up the property in the interim by having the fence repaired and removing all the trash and yard waste. Even if no one is at the property it still needs to be maintained.
Ms. Beauvais moved to continue the public hearing until November 23, 2009, at 7:00 pm with the requirements that the applicant have an attorney present and plans for the use of the property designed by a licensed architect. The property must also be cleaned up on the outside and the fence repaired. Ms. Beauvais requested before and after pictures by the next meeting also, to show the applicants intent for the property; Ms. Kumiega second. UAV.
3. New/Old Business
No new or old business was discussed.
4. Date of Next Meeting
The next regular meeting of the Board will be held on Monday, October 26, 2009, at 7:00 p.m.
5. Adjournment
Ms. Beauvais moved to adjourn the meeting at 8:00 p.m.; Ms. Kumiega second. The vote was unanimous.
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Christine Kumiega Provost
Secretary, Board of Appeals
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