TOWN OF WALLINGFORD ZONING BOARD OF APPEALS JUNE 20, 2011 REGULAR MEETING MINUTES

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1 Zoning Board of Appeals 1 TOWN OF WALLINGFORD ZONING BOARD OF APPEALS JUNE 20, 2011 REGULAR MEETING MINUTES A regular meeting of the Wallingford Zoning Board of Appeals was held Monday, at 7:00 p.m. in Council Chambers at Town Hall. Approximately 8 members of the public were in attendance. CALL TO ORDER: Chairman Glidden called the meeting to order at approximately 7:00 p.m. Present were: Michael Glidden (Chairman), Alan Reed (Secretary), Tom Wolfer, Jeffrey Knickerbocker, Ron Souza (alternate), Dennis Murphy (alternate), Joe Rusczek (alternate), Assistant Town Planner Kacie Costello, Linda Bush, Town Planner, and Recording Secretary Sonja Vining. Absent: William Birney (Vice Chairman) All materials submitted in accordance with the following applications are available in the Town Planner s Office at the Town Hall. Chairman Glidden announced that tonight s decisions would be published in the Record-Journal on Friday, June 24, The effective date of your variance will be Friday, June 24, 2011; the date a certified copy is recorded on the land records. The statutory 15-day appeal period will expire on Sunday, July 10, If you commence operations and/or construction during the appeal period, you do so at your own risk. The next regular meeting of the Board would be July 18, READING OF THE MEETING LEGAL NOTICE: Chairman Glidden read the beginning of the published Legal Notice. Voting Members were Mr. Souza voted in place of Mr. Knickerbocker on Application #11-020; Mr. Murphy voted in place of Mr. Rusczek on Application #11-021, Mr. Wolfer, Mr. Glidden, Mr. Rusczek (voting in the absence of Mr. Birney), and Mr. Reed. # variance request from Burke for a front yard of 71 ft. where a minimum of 75 ft. is required to construct a front porch at 55 Maltby Lane. Mr. Reed, Secretary, read correspondence from Kacie Costello, Assistant Town Planner to the Presenting the application was Brian Burke.

2 Zoning Board of Appeals 2 Mr. Burke stated that the house is set back 79 feet from the front lot line. The lot has a very unusual shape to it and the house is only 4 feet back from the setback. He is proposing to put a front porch on the house and in order to do that he needs this variance. No one from the public spoke in favor of or opposed to the application. REASON: MR. GLIDDEN, TO APPROVE. DUE TO THE ODD SHAPE OF LOT AND THE ORIANTATION OF THE HOUSE ON THE LOT CREATES A HARDSHIP. MR. REED ALL VOTING MEMBERS VOTED YES BY A ROLL CALL VOTE AND THE VARIANCE WAS APPROVED. Mr. Knickerbocker arrived and sat for the remainder of the applications. # variance request from Occhibove to allow a dumpster to be located in a front yard at 170 South Cherry Street. Mr. Reed, Secretary, read correspondence from Kacie Costello, Assistant Town Planner to the Mr. Rusczek stated that he would abstain from voting. Voting in his place would be Mr. Murphy. Presenting the application was John Occhibove. Mr. Occhibove stated that currently he has a dumpster located in front of the garage on this site. He submitted some photos showing the current location of the dumpster and the proposed location. He would like to move the dumpster across the driveway behind the bushes. He would make a platform for the dumpster to rest on. The dumpster would be rolled into the street and dumped from that location. The dumpster would not be visible from the street. The hedgerow would remain. Mr. Occhibove stated that he would be willing to install a 6 foot fence behind the dumpster to screen it. The dumpster cannot be placed behind the garage because that is where the tenant parking is. No one from the public spoke in favor of or opposed to the application. REASON: MR. KNICKERBOCKER, TO APPROVE WITH THE CONDITION THAT THE BUSHES REMAIN AND A FENCE IS INSTALLED AS DISCUSSED TO SCREEN THE DUMPSTER. BETTER USE OF THE PROPERTY WITHOUT ALTERING THE CHARACTER OF THE NEIGHBORHOOD AND TO PREVENT THE CONSTRAINT OF TRADE.

3 Zoning Board of Appeals 3 MR. MURPHY ALL VOTING MEMBERS VOTED YES BY A ROLL CALL VOTE AND THE VARIANCE WAS APPROVED. # variance request from Murphy for a rear yard of 25 ft. where a minimum of 30 ft. is required to construct an addition to the house at 82 Hintz Drive. Mr. Reed, Secretary, read correspondence from Ms. Costello, Assistant Town Planner, to the Presenting the application was Elizabeth Murphy. Mrs. Murphy stated that the property has a very unique shape and there is a utility easement that prohibits the expansion of the house toward the north. She is proposing to remove the existing deck and replace it with a family room. The other side of the house is where the garage is so it would not create good flow if the addition were to be placed there. The proposed addition would be approximately 200 sq.ft. Speaking in favor of the application was: Paul Reynolds, Land Surveyor, who created the map for this site. He stated that the property has a unique shape and there are restrictions as to where an addition could be placed. This is a small addition and he doesn t believe there should be any issue. No one from the public spoke opposed to the application. REASON: MR. GLIDDEN, TO APPROVE. THIS IS A DE MINIMUS REQUEST AND THE UTILITY EASEMENT PREVENTS ANY ENCROACHMENT TOWARDS THE WESTERN PROPERTY LINE. MR. REED ALL VOTING MEMBERS VOTED YES BY A ROLL CALL VOTE AND THE VARIANCE WAS APPROVED. # variance request from Carney for a sideyard of 2 ft. where a minimum of 5 ft. is required to construct a detached garage at 1051 Durham Road. (NO ACTION REQUESTED) Mr. Reed, Secretary, read correspondence from Ms. Costello, Assistant Town Planner, to the No action was taken. The application would be heard at the July meeting.

4 Zoning Board of Appeals 4 # Appeal by Papale of the Cease and Desist Order regarding various violations on the property at 991 North Colony Road, including the fact that no approvals were ever granted for the flower stand. Mr. Reed, Secretary, read correspondence from Kacie Costello, Assistant Town Planner, to the Presenting the application was Attorney Vincent McManus and the Applicant Sam Papale, Jr. Linda Bush, Town Planner stated that Attorney McManus has received a copy of everything that is going to be submitted into the record this evening. She submitted to the Board a copy of the original Cease & Desist. There are several issues mentioned in the Cease & Desist which include, illegal outside storage, the sale of merchandise from a truck (which has been corrected), signs, outside storage of metal containers and trailers, site plan approval. Ms. Bush reviewed the items submitted for the record. A1 photos of the property A2 map created by Ms. Bush. There is no survey of this property available. Ms. Bush has requested that the Engineering Department survey the front property line. A3 map created by the Engineering Department B1 Zoning adopted by Wallingford in The Town and the Borough had zoning before that. Anything built before 1958 is considered legal. Original variance for Frank Crasa from B2 Frank Crasa purchased the property in B3 Quit claim from Wallingford from B Sam Papale, Sr. variance request B Mr. Crasa variance application and minutes. B Sam Papale ZBA request variance, denied B ZBA Chairman letter to Town Attorney B ZBA Chairman letter to First Selectman B ZBA Chairman letter to Town Attorney B First Selectman letter to Town Attorney B ZEO letter to district court regarding violations C1 zoning maps C2 zoning maps, setback 50 feet D1 sewer permit in Building permits only go back as far as 1974 D2 relocating 100 amp service in Ms. Bush stated that greenhouses need building permits. E1 the Assessor s card from the 1960 owner Frank Crasa E2 the Assessor s cards from the 1970 E3 the Assessor s card from the 1980 F1 aerial photo from 1964 F2 aerial photo from 1974 F3 aerial photo from 1985 which looks like today

5 Zoning Board of Appeals 5 G1 problems on site Ms. Bush stated that the entire Sam s Flower Store should not be there. The building creates a traffic hazard. Some of the parking spaces are in the State ROW. G2 photo copy of road improvement plan for Rte 5 for the Lowe s project. G3 photos of storage trailers on site. Ms. Bush stated that she does not believe that the flower stand/greenhouses should not be on this site. Those buildings do not have permission to be there. Ms. Bush discussed there term laches. She gave the definition of the word and submitted two pages discussing CT land use laws. She understands that if the Board believes that it has been too long for the Planning Office to take enforcement action against the property the Board doesn t have the authority to not take action because of laches. Chairman Glidden asked if Town Attorney Small had an opinion about the application of 8-13a. Ms. Bush did not ask for a legal opinion. Attorney McManus stated that Statute 8-13a is the cornerstone of his argument. Mr. Papale gave some family history on this site since Mr. Papale indicated that everything that is there was built by Mr. Papale submitted two photos for the record and a copy of the deed. Attorney McManus stated that the business began on this site in From 1958 through 1970 all of the buildings were built on that site. Attorney McManus read from Connecticut General Statute 8-13a. His position is that this case was over in The Town of Wallingford authorities had three years to act. He feels that this Statute specifically prescribes a statute of limitations for zoning enforcement actions having to do with area of the lot, sideline setback, and frontline setback. Attorney McManus pointed out that the Town clearly new all about this site and had plenty of notice and chose not to do anything about it while the legal statute of limitation ran. Statute 8-13a exempts this structure as it sits today and creates in what is out there today the statutes of legally existing non-conforming. Attorney McManus referred to the Cease & Desist dated March 26 th. He stated that no certificates of occupancy are required. He read from CT General Statute His position is that these buildings were all built prior to the requirements of a certificate of occupancy. Attorney McManus stated that building codes are all State Statutes and are not a part of the Zoning Code of the Town of Wallingford. The Town Planner has no jurisdiction or authority to enforce the building codes of the State of CT. Attorney McManus read from CT General Statute 8-2. He stated again that this use was clearly in operation by the 1980 s and 1990 s and the regulations that Ms. Bush sited do not apply. He closed by stating that Statute 8-13a establishes a three year statute of limitations on all of the basic zoning objections brought up by Ms. Bush. Chairman Glidden asked Mr. Papale when the storage trailers were brought to the site. Mr. Papale stated that they have been there for over 35 years and they are used for storage. He keeps

6 Zoning Board of Appeals 6 items associated with the farm stand in those trailers as well as some personal items. Mr. Papale stated that the stand was built in 1981 and he believes one of the aerial photos that he submitted was taken in approximately 1970 and the other one around 1983 or Mr. Knickerbocker asked what businesses are being run on this site. Mr. Papale stated that there is the flower stand, he sells comic books, and fireworks seasonally. For the last three or four years he has been selling comic books on the site. Mr. Murphy asked if the Applicant has received any permits from the State to allow parking along the State highway. He stated that parking is not allowed on a State ROW. Attorney McManus doesn t know for sure but he suspects not. He stated that the State and Amtrak have never given them any trouble. Mr. Murphy read from CT General Statute regarding parking in the State ROW. Ms. Bush pointed out that all of the signs on the site are illegal. She stated that the storage trailers would not be grandfathered in under 8-13a. The only thing that could be grandfathered in under 8-13a would be a building. Ms. Bush stated that she provided the Board with an aerial photo from 1974 showing two separate buildings. She believes that there has been a lot of work done on this site since the 1970 s. Ms. Bush pointed out that Mr. Papale testified that the stand was built in the 1980 s. She feels that this property needs site plan approval. Ms. Bush stated that if the Board wanted to wait and get a legal opinion from the Town Attorney she would be fine with that. Mr. Papale submitted a photo of the building that clearly shows a sign on the building dating back to Attorney McManus asked that the Board deny the Cease & Desist on the basis that all of the evidence heard this evening proves that whatever violations are out there, have been there for a lot longer than three years. He believes Statute 8-13 and 8-2 addresses all of the zoning issues. No one from the public spoke in favor of or opposed to the application. Ms. Bush stated that the comic book sign has only been on the building for 3 or 4 years. Mr. Knickerbocker suggested that the Board get a legal opinion from the Town Attorney specifically on Statutes 8-13a, and 8-2. Chairman Glidden agreed. The Board would get a legal opinion and continue the hearing to July 18, MR. GLIDDEN, TO CONTINUE THE HEARING TO JULY 18, 2011 PENDING A LEGAL OPINION FROM THE TOWN ATTORNEY. MR. KNICKERBOCKER ALL VOTING MEMBERS VOTED YES BY A VOICE VOTE AND THE HEARING WAS CONTINUED.

7 Zoning Board of Appeals 7 APPROVAL OF MINUTES: May 16, 2011 Regular Meeting Mr. Wolfer made a motion to approve the Minutes of the May 16, 2011 Regular Meeting as submitted. The motion was seconded by Mr. Knickerbocker and passed unanimously by a voice vote. Chairman Glidden announced that Mr. Murphy would be resigning from the Zoning Board of Appeals. He has accepted a full-time appointment to the Inland Wetlands and Watercourses Commission. ADJOURNMENT: MR. KNICKERBOCKER, MOTION TO ADJOURN MR. WOLFER ALL VOTING MEMBERS VOTED YES BY A VOICE VOTE. The meeting adjourned at approximately 8:45 p.m. Respectfully submitted, Sonja Vining Recording Secretary Wallingford Zoning Board of Appeals