Chairman Domenic N. Moschella called the Zoning Board of Appeals meeting to order at 7:02 p.m. Other members present: Martin Atkins and Jeff Slapikas. Alternates present: Joseph Commendatore, Carl Graveline and George Havican. Absent were Betty Lou Holley and Fred Harkins. Chairman Moschella seated George Havican for Betty Lou Holley and Carl Graveline for Fred Harkins.
Also present: Bill Donovan, Clerk/Land Use Inspector.
CORRESPONDENCE: a.) Appeal to Prospect Zoning Board of Appeals on the Planning & Zoning Commission’s decision regarding Ralph L. Wagner, 24 Straitsville Road b.) The Segal Company: October 2002 Bulletin c.) Letter from Mayor Chatfield regarding the 2003 Budget. d.) Letter from the Prospect Town Clerk regarding 2003 meeting dates. Motion by M. Atkins, seconded by C. Graveline to place correspondence on file. Unanimous.
CLERICAL BILL: Motion by M. Atkins, second by J. Slapikas to pay the clerical bill. Unanimous.
APPROVAL OF MINUTES: Motion made by G. Havican, seconded by M. Atkins to approve ZBA minutes of October 22, 2002 as presented. Unanimous.
NEW BUSINESS:
ZBA meeting dates for the year 2003. Chairman Moschella distributed a proposed ZBA meeting schedule for the coming 2003 calendar year. All meetings are scheduled for the fourth Tuesday of each month beginning at 7:00 p.m. Additional Special Meetings may be scheduled as needed. Motion by M. Atkins, seconded by J. Slapikas to accept the schedule as presented. Unanimous.
PUBLIC HEARINGS:
7:10 p.m. ZBA Application # 31-2002 of Vincent and Lucia Ricci, 12 Woodcrest Drive, for a 23-foot side property line variance of Section 300 of the Zoning Regulations for a detached shed. Chairman Moschella read into the record the Notice of Public Hearings for this application as it appeared in the Waterbury Republican American on November 15 and 22, 2002. Chairman Moschella asked the applicant why the shed couldn’t be placed farther than two feet from the property line. Mr. Ricci replied that the downward sloping of the property to the rear, location of the septic and footing drains and mature trees all limit the location to where he proposes. J. Slapikas related that he did not see the slope being that severe and asked Mr. Ricci if he could build a leveling platform to accommodate the 10’ x 12’ shed in a location that would not require a variance. Mr. Ricci stated he did not see a need for the platform when there exists a level area on the side of his property that would accommodate the shed pending an approved variance. M. Atkins asked if the shed could be placed on the opposite side of the property and farther from the property line. Mr. Ricci related he would prefer the right side as this is where the basement door is located. Chairman Moschella asked for comment from the public. Kathleen Scarpati, 14 Woodcrest Drive at first objected to the variance, but upon learning that the shed would be placed on the opposite side of Mr. Ricci’s property to her property stated she is not opposed. There were no further comments and the Public Hearing closed at 7:25 p.m.
7:28 p.m. ZBA Application # 32-2002 of William and Stacey Doerrer, 1 Buckley Lane, for a 15-foot side property line variance of Section 300 of the Zoning Regulations for a proposed 10’ x 24’ attached rear deck. Chairman Moschella read into the record the Notice of Public Hearings for this application as it appeared in the Waterbury Republican American on November 15 and 22, 2002. Mrs. Doerrer related their house was built before zoning and is only 10 feet from the property line. The proposed deck would extend straight off the back of the house and not be closer than the house is to the side property line. Chairman Moschella noted that he observed a canvas building erected on the property that is not permitted in the Zoning Regulations, and requested the Doerrer’s comply by removing the structure. There were no further comments and the Public Hearing closed at 7:34 p.m.
ZBA Application # 33-2002 of Selma Halperin, 20 Peter Gilkey Road, requesting a variance of Section 4.3 of the Road Ordinance that requires a minimum separating distance of 350 feet between roadway intersections onto a common Town road. Chairman Moschella read for the public and board a letter from Jim Kulpa of Milone & Macbroom Engineering, acting as agent for the applicant, Selma Halperin stating that they were withdrawing their application at this time. Chairman Moschella noted the withdrawal of ZBA Application # 33-2002 and stated for the benefit of the public that because the application was withdrawn there would be no public hearing. Chairman Moschella would again repeat the announcement of this withdrawal at later times during the evening.
7:35 p.m. ZBA Application #26-2002 of Peter M. Sydoriak, Lot 77, Morris Road for a 27-foot street line variance of Section 300 of the Zoning Regulations for construction of a new house. This public hearing was continued from the September 24th and October 22nd meetings. Chairman Moschella read into the record the Notice of Public Hearings as it appeared in the Waterbury Republican American on November 15 and 22, 2002. Mr. Sydoriak was not in attendance due to health reasons, and Attorney Franklin Pilicy addressed the Board as agent for this application. Mr. Pilicy related his presentation would address the matter of confiscation, self-created hardship and the purchase with knowledge rule as they apply to this case. Mr. Pilicy stated that without the granting of a variance, the buildable area for Lot 77 Morris Road is approximately 140 square feet which renders it impossible for any reasonable use as a building lot. Mr. Pilicy further stated the variance being requested is for only one of the three sides of the lot and as such is the minimum needed. Mr. Pilicy presented copies of Section 9.4 of Robert A. Fuller’s book “Land Use Law and Practice” and copies of various Connecticut court decisions that in Mr. Pilicy’s opinion clearly support his position that the Prospect ZBA must grant Mr. Sydoriak relief by variance in order for Mr. Sydoriak to have reasonable use of his property. This information was presented to the board and made part of the record. In referring to and reading from Fuller and the court cases, Mr. Pilicy stated that if a lot is made nonconforming by the creation of the Zoning Regulations and not from any self-created hardship caused by the property owner, the property owner, even with knowledge of the nonconformity has the right to apply for a variance. In regards to confiscation by zoning Mr. Pilicy noted a specific court case (Chevron Oil Company v. ZBA of the Town of Shelton) in which the court overturned that denial of a variance saying that denying the variance is tantamount to confiscation. Mr. Pilicy reiterated the same circumstance in the Chevron case applies to Mr. Sydoriak, namely without relief from a variance the property owner is denied any reasonable use of his property. Mr. Pilicy stated the board’s responsibility is to take this type of an unusual situation or unusual lot and provide the elasticity needed to avoid the confiscation. D. Moschella queried that there is value in property even though a structure may not be possible. Mr. Pilicy in response referred to The October 18, 2002 letter by the Town’s attorney (on file) that referred to a case entitled “Grillo v. Bd. Of Appeals” in which the court found that a property that can not be built on may still have value as a side yard for adjacent property. Mr. Pilicy stated Lot 77 Morris Road is a different situation in that this parcel is not contiguous to an adjacent yard, but rather is bordered by town roads. D. Moschella stated that that is precisely why this property is unique and unlike other properties considered in the mentioned court cases. Mr. Pilicy responded the size of this parcel is not atypical of the neighborhood and with a minimal variance a modest house could be built that would fit rather nicely in that neighborhood. And as this is the primary permitted use within this zone, i.e. to have a residential home, denying that use is confiscation. Mr. Pilicy continued by citing court cases (on file) that support Mr. Sydoriak’s right to seek a variance even though he was aware that when he purchased the property he knew a variance would be needed to build a house there. J. Slapikas asked why safety and aesthetic concerns should not apply in the board’s decision. Mr. Pilicy responded that per the court cases cited, a permanent restriction of the property from any use outweighs any argument about aesthetics, character of the neighborhood, safety, etc. Other commissioners questioned whether some of the cases and circumstances cited were relevant to Mr. Sydoriak’s variance request in this instance. M. Atkins asked about the tax status of the property. Mr. Pilicy responded that Mr. Sydoriak at one time did request and receive tax relief for this parcel. Chairman Moschella asked for public comment. John Pinto, 40 Sorghum Mill Drive, Cheshire, CT asked what role does the Tax Collector who sold the lot have in these proceedings. Mr. Pinto, who is a son-in-law of Mr. Sydoriak, presented for the record a packet of information by Mr. Sydoriak supporting Mr. Sydoriak’s right to build on Lot 77. Linda Hennessey, 72 Morris Road reminded the commission that there are three court cases that exist under the name “Peter Sydoriak vs. The Town of Prospect” that directly relate to this property in which the court has found each time that this is not a building lot. Also, because Mr. Sydoriak has successfully reduced his taxes for this property, by now allowing him to build would set a dangerous precedent. Mrs. Hennessey also believes other reasonable uses for this property exist. M. Atkins reminded Mrs. Hennessey that a recent court case determined that this lot is a legal non-conforming lot. For it or any other lot to be a building lot comes once the Town issues both an approved zoning permit and building permit for a primary structure. M. Atkins also stated that in his opinion changing the tax status of a property is really not relevant to the zoning issues before a Zoning Board of Appeals. Sam DeSantis, 2 Terry Road is concerned that grading the lot for a new house will cause water problems for his property. Also concerned with line of sight problems for motorists if a fence is placed on this property. Additionally concerned with the small size of the proposed house and what could become a transit-type occupation. In response to Mr. Desantis, Mr. Pinto read into the record a letter from R.M. Lugi, P.E. stating that development of the lot will not cause drainage problems with the existing Town storm water system. Mr. Pilicy also reiterated that Mr. Sydoriak was not aware at the time of purchase that this lot was considered by the Town as a parcel never to be considered or approved as a “building lot”. Irving Davis, 3 Terry Road saying water runoff will be a problem if this lot is developed. Saying the original subdivision plan shows this parcel as a separate unidentified piece without subdivision lot identification. Considers this parcel to be unbuildable. Linda Hennessey stated what Mr. Sydoriak is saying with regards to the assessor’s remarks that this is a building lot is heresay, and should not be considered on this application. Also very concerned with safety, for motorists and for children who might live and play on this parcel. Chairman Moschella read into the record a letter from Carol Mastrantonio, 75 Morris Road opposing the variance. J. Slapikas questioned whether the Chesprocott Health District has approved the new proposed location of the house. Mr. Pilicy understands that if the variance is granted, all other requirements as needed, including the approval of the Health District must also be obtained prior to construction. There were no other comments and the public hearing closed at 9:10 p.m.
ACTION ON APPLICATIONS:
ZBA Application # 31-2002 of Vincent and Lucia Ricci, 12 Woodcrest Drive, for a 23-foot side property line variance of Section 300 of the Zoning Regulations for a detached shed. Chairman Moschella called for a motion. Motion by M. Atkins, seconded by J. Slapikas to approve Application #31-2002 of Vincent and Lucia Ricci, 12 Woodcrest Drive for a 23-foot side property line variance. Discussion: J. Slapikas is of the opinion the shed can be placed elsewhere with proper grading. M. Atkins agrees that there is ample room to place the shed within the setback and does not believe there is a valid hardship. C. Graveline and M. Moschella also agreed there is no hardship. Chairman Moschella called for a vote. In favor: None. Opposed: 5. The motion to approve the application does not carry. Reasons: There is no demonstrated hardship.
ZBA Application # 32-2002 of William and Stacey Doerrer, 1 Buckley Lane, for a 15-foot side property line variance of Section 300 of the Zoning Regulations for a proposed 10’ x 24’ attached rear deck. Discussion of this application was tabled to the next meeting.
7:35 p.m. ZBA Application #26-2002 of Peter M. Sydoriak, Lot 77, Morris Road for a 27-foot street line variance of Section 300 of the Zoning Regulations for construction of a new house. Motion by M. Atkins to approve Application #26-2002 of Peter M. Sydoriak as amended for a 27-foot street line variance on Clark Hill Road for construction of a new house at Lot 77, Morris Road. Seconded by C. Graveline. Discussion: M. Atkins related taxes, traffic, drainage and other issues presented are not relevant in this decision on the granting of a variance. C. Graveline concurs there are implied rights to utilize this property in a reasonable way. G. Havican also believes without a variance there is a confiscation effect on the property. J. Slapikas strongly believes there is a very real safety problem in constructing a house on this parcel relative to traffic, and that the house and location would likely result in a continual changeover of occupants that would not be harmony with the neighborhood. J. Commendatore affirmed that the cases presented by Mr. Pilicy made excellent points in support of this variance request, however if there had been an opposing attorney appearing tonight, the board would likely have been presented with several court decisions that support the not granting of a variance. J. Commendatore also feels that Mr. Sydoriak had knowledge of the restrictions involved with this parcel for building purposes at the time of purchase. D, Moschella also believes that Mr. Sydoriak had to have had knowledge of the restrictions for building on this parcel, and that anyone creating a subdivision would not consider this parcel as a buildable lot. D. Moschella recognizes this parcel is a non-conforming lot by definition, however he believes there was never an intention for future development here. D. Moschella is also concerned with safety, particularly if children should occupy the house. He commended Mr. Sydoriak on reducing the application to only one variance, however the variance is still a 50% reduction of the 50-foot setback requirement. M. Atkins added that what Mr. Sydoriak is requesting is a minimal variance for one side. This is a residential zone and he is asking for relief to build a residential home. C. Graveline further stated that this is a legal non-conforming lot, and the question now is what can the owner do with this lot? D. Moschella remarked that there is value in this property, and that granting a variance would be making a mockery of our zoning by saying that if you have a non-conforming piece of property you are allowed to build whatever you want because of the non-conformity. By using our regulations and common sense, D. Moschella stated the response is not to grant the variance. J. Commendatore agreed and feels if this application ends up back in court that the judge upon seeing the unique layout of this triangle being totally surrounded by roads would hopefully understand why there is no logical reason for a house there. J. Slapikas stated that the cases presented tonight stressed approvals being granted for variances in similar circumstances, however none of the cases dealt with a house being built on a traffic island. He too feels that given time, an opposing attorney could produce an equal number of cases supporting the denial of this variance. He does not see the denial of a variance as being confiscatory because there are other uses that can be applied here. M. Atkins again stated while he does not like the safety factor, he does feel that denying the variance is confiscatory. C. Graveline agreed with M. Atkins. Chairman Moschella called for a vote. In favor: (3) M. Atkins, C. Graveline, G. Havican. Opposed: (2) D. Moschella, J. Slapikas. Motion to approve carries, however because four approving votes are required to grant a variance, the variance is denied. Reasons: C. Graveline feels not granting the variance is confiscatory; M. Atkins feels this is a pre-existing non-conforming lot and to deny the variance would be confiscatory. G. Havican stated we have granted other variances in the neighborhood and by denying would be practical confiscation. D. Moschella believes this is a self imposed hardship in that Mr. Sydoriak should have known what the pertinent regulations were at the time of purchase, what unique restrictions this lot presents for development, safety issues relative to surrounding traffic and by denying the variance does not limit other uses besides residential for this property.
J. Slapikas considers purchase with knowledge to be at issue in that Mr. Sydoriak knew what he was buying, also safety relative to a house being placed on a traffic island.
PUBLIC PARTICIPATION: None
ADJOURN Motion by J. Slapikas, seconded by G. Havican to adjourn at 9:50 p.m. Unanimous.