Chairman Martin Atkins called the meeting to order at 7:03 p.m.

Other Members Present: Jeffrey Slapikas, Marianne Byrne, Kurt Graveline, George Havican (Alt)
Members Absent: Gregory Harkins, Lori DaSilva (Alt)

Chairman Atkins seated George Havican for Gregory Harkins.

Correspondence: Entered with scheduled Public Hearings

Clerical Bill: Motion by M Byrne, seconded by G. Havican to pay the clerical bill. Unanimous.

Approval of Minutes: Motion by J. Slapikas, seconded by M. Atkins to approve the minutes of the September 23, 2008 meeting as presented. Three votes in favor with two abstentions. Motion to approve carries.

New Business:
a. Antonio Mendes, 55 Straitsville Road. Application for a variance of the maximum 800 square foot structure size limitation and 50% limitation of the living area of the principal residence for a detached garage. Mr. Mendez stated he is seeking a 115 square foot variance of the maximum 800 square foot allowed for a detached garage to add an attached 195 square foot car port onto his 720 square foot garage for a total of 915 square feet. This addition also puts the garage 40 square feet over the maximum allowed 50% of the livable area in the primary residence, and therefore he is seeking a 40 square foot variance to compensate the difference. Mr. Mendez stated he needs the car port for added storage space for electronic equipment. M. Atkins asked if there are other locations where the car port could be placed. Mr. Mendez stated there is no other location he can determine. The car port as shown on the application is within the setback requirements. The existing garage is approximately 75-feet to the front and 36-feet to the left side line. Motion by M. Byrne, seconded by K. Graveline to accept Application 11-2008 of Antonio Mendes as presented. Unanimous. A public hearing was scheduled for Tuesday, November 25, 2008 at 7:10 p.m.

b. Stephen Saxton, 13 Rek Lane. Application for a 17-foot side yard setback variance to place a garage addition 8-feet from the right side property line. Ron Rousseau of New Triple-R Home Improvement, LLC represented the applicant. Mr. Rousseau stated Mr. Saxton is seeking to demolish the existing attached garage which is 8-feet from the right side line and build a new garage with added storage and height on the same footprint. Because the new garage will be higher than the existing garage, he is seeking the 8-foot variance for that portion of the new garage extending above the height of the existing garage. Motion by J. Slapikas, seconded by M. Byrne to accept Application 12-2008 of Stephen Saxton as presented. Unanimous. A public hearing was scheduled for Tuesday, November 25, 2008 at 7:20 p.m.

Chairman Atkins asked for a Motion to add Edward Pilat, 35 Highland Drive to the agenda under New Business. Motion by J. Slapikas, seconded by K. Graveline to add Edward Pilat to the agenda. Unanimous.

c. Edward Pilat, 35 Highland Drive. Application for a 15-foot side yard setback variance for a 12’ x 24’ storage building. Mr. Pilat stated he is seeking a 15-foot side yard variance to allow a storage shed to be placed 5-feet from the property line. Mr. Pilat stated his lot is just under ½ acre in size and he is limited as to where the storage building can be placed. He has a ground level garage built into his raised ranch. K. Graveline asked if there is anywhere else on the property where the building could be placed. Mr. Pilat stated not that would be feasible. There are no wetlands on the property. Motion by J. Slapikas, seconded by K. Graveline to accept Application 13-2008 of Edward Pilat as presented. Unanimous. A public hearing was scheduled for Tuesday, November 25, 2008 at 7:30 p.m.

Old Business: None

Public Hearings:
a. 7:15 p.m. Application 08-2008 of Elaine Schieffer, 133 Cook Road for a 0.66-acre variance of the minimum 2-acre requirement for a rear lot; a 12.66-foot variance to satisfy the minimum 40-foot width requirement for 2 adjoining driveways to rear lots, and a variance allowing an existing rear lot to be located behind a proposed rear lot. Chairman Atkins read into the record the “Notice of Public Hearings” for this application as it appeared in the Republican American on October 17 & 24, 2008. Elaine Schieffer with Paul Reynolds of Stone Wall Boundaries, LLC presented the application. Mr. Reynolds began with the 12.66-foot variance for the 2 adjoining driveways. He stated in 1988 the ZBA granted a 3.12-foot variance for these driveways based a subdivision map presented that assumed the driveways were parallel to each other up until the point when they would split for each separate lot. That survey did not accurately describe the narrowing of the driveways approximately 290-feet from the street. The 12.66-foot variance addresses the inconsistency in total width of the two driveways. Mr. Reynolds stated Mrs. Schieffer had begun the process in 1988 to subdivide the property to create an additional rear lot, but personal circumstances prevented that plan from going forward. At that time, however, the regulations allowed a proposed rear lot in a one-acre zone to also be one acre in size. Mrs. Schieffer did receive Inland Wetlands approval in 1988 for a one-acre rear lot. Current zoning and subdivision regulations now require a rear lot to be a minimum of 2 acres. The proposed rear lot is 1.34 acres, and the 0.66 acre variance would satisfy the minimum 2-acre requirement. Finally, in 1988 there was no restriction on placing a rear lot behind another rear lot. The current regulations prohibit this placement of rear lots behind other rear lots—referred to as “stacking” in the regulations. Mr. Reynolds stated the hardship are the changes in the regulations that now prevent creating the same rear lot that was permitted in 1988 when Mrs. Schieffer first intended to subdivide her property. Chairman Atkins read into the record letters of correspondence from Mr. & Mrs. Beard, 131 Cook Road and Mario and Lisa Calabrese, 135 Cook Road, both supporting Mrs. Schieffer’s variance requests. Mrs. Schieffer submitted receipts of the required certified mailings to adjoining property owners. Chairman Atkins asked for comments from the public. Ann Stein, 22 Cook Road expressed concerns with granting variances to create non-conforming lots in violation of the regulations. There were no further comments and the public hearing closed at 7:30 p.m.

b. 7:30 p.m. Application 09-2008 of Richard LaChance, 477 Matthew Street for a 5-foot maximum height variance for a residential house to be 40-feet high. Chairman Atkins read into the record the “Notice of Public Hearings” for this application as it appeared in the Republican American on October 17 & 24, 2008. Mr. LaChance stated when they were ready to build their house they submitted detailed plans to both the Building Inspector and Land Use Office. He received approved zoning and building permits and built the home as shown on his plans. Because of previous issues with a neighbor, Mr. LaChance stated he anticipated the numerous inspections by Town officials that occurred during the construction process. He received his Certificate of Occupancy in 2006. He was never advised there was any problem with the house until he was notified by the Zoning Officer that the house exceeds the maximum height allowed. He stated removing the upper portion of the roof to correct the zoning violation at this time would result in extreme financial hardship and disruption to his family. The house is over 200 yards down grade from Matthew Street and surrounded by woods. Chairman Atkins asked when the C.O. was issued. Mr. LaChance stated April 2006. Chairman Atkins asked for a description of the property. Mr. LaChance stated the house is located on a flat portion of the property. The land then drops off to extensive wetlands. M. Byrne asked if the entire house exceeds the 35-foot maximum height. Mr. LaChance stated no, only the front section; the remaining body of the house is one story. K. Graveline asked what the size of the lot is. Mr. LaChance stated 3.93 acres. Mr. LaChance again stated his confusion on why there is a problem now, after the plans were approved and this problem was never brought to his attention during construction. Chairman Atkins confirmed with Bill Donovan if this 35-foot height restriction was in effect at the time of Mr. LaChance’s house construction. Bill stated it was. M. Byrne questioned if the 35-foot height restriction had to do with safety issues, mainly during a fire. Chairman Atkins stated yes. Mr. LaChance stated no one stated this was an issue with his house plans. He stated there are two 4’ x’ 6’ windows on the upper floor that provide escape access to the lower roof of the house that is below the 35-foot level. Chairman Atkins read into the record letters of correspondence from (1) Robert Chatfield, Chief of Prospect’s Volunteer Fire Department saying there are dormers at the house that can be used for an emergency rescue; (2) Dorothy Kiley, 23 Putting Green opposing the variance; (3) Kimberly Holland 3 Farmwood Drive is also opposed to the granting of this variance. Chairman Atkins asked for comments from the public. William Scarpati, Prospect Building Inspector stated he did receive a full set of plans for the house. His responsibility is to the State Building Code requirements, which may be different than zoning requirements. In his opinion the house satisfies the code’s safety requirements. He stated both he and the Zoning Officer missed the height requirement during their inspections. M. Byrne asked for clarification on meeting his code requirements. Mr. Scarpati stated egress, more than height in footage, is the basis for the safety code. William Donovan, Land Use Inspector stated he is very familiar with the house and property due to the issues with the wetlands and the public hearings with the Inland Wetlands Commission. His inspections concentrated on erosion control measures, drainage and the inland wetlands. He stated he did not specifically check on the houses’ height. Mr. Donovan stated the Zoning Application form that Mr. LaChance completed in 2005 asked for the building’s height as either a 1 story or 2 story structure. Since then, the application form has been revised to ask for the specific height in feet of the proposed structure. Ann Stein, 22 Cook Road questioned if the maximum height is to allow an additional floor. J. Slapikas stated the height is a measurement taken from the ground to the peak of the roof. Mrs. Stein stated she is opposed to this variance. Richard & Christine Hinckley, 471 Matthew Street are opposed to the variance. They presented a copy of the plot plan for the house submitted for Inland Wetlands that lists maximum height at 35-feet and other Town requirements for residential houses. Chairman Atkins stated this plan was for wetlands; other plans for the building construction followed inland wetlands approval. Mrs. Hinckley presented a copy of Section 3.2.8 of the Regulations stating no floor providing living space shall be more than 21 feet above average ground level. The Hinckley’s believe the third floor is more than 21 feet above ground level. J. Slapikas questioned that assumption. M. Byrne asked why they are opposed to this variance. The Hinckleys stated because the house is an eye sore and in their back yard. Mrs. Hinckley had asked Bill Donovan and the Chairman of the Planning & Zoning Commission to resolve this matter. Lisa Degoes, 22 Apple Hill Drive expressed disappointment that the problem was missed by Town staff. There were no further comments and the public hearing closed at 8:00 p.m.

c. 8:00 p.m. Application 10-2008 of Kollcinaku LLP, 22 Union City Road for a 12-foot rear property line setback variance for a building addition. Chairman Atkins read into the record the “Notice of Public Hearings” for this application as it appeared in the Republican American on October 17 & 24, 2008. James Kollcinaku stated he would like to square up the back end of the building to provide additional storage for the commercial businesses located in the building. Chairman Atkins asked if the additions would be more non-conforming than the existing building. Mr. Kollcinaku stated they would not be. He stated he utilized the neighbor’s recent survey pins to locate the rear property line, placing the rear of the building 28-feet from the rear property line. The building was constructed in 1947 and is nonconforming to the 40-foot setback required. Chairman Atkins asked for comments from the public. William Scarpati, Prospect Building Inspector stated Mr. Kollcinaku has already constructed the additions he is now applying for variances. Mr. Scarpati stated Mr. Kollcinaku constructed the additions without first obtaining the required building permits and Mr. Scarpati has since issued him a “Cease & Desist” order. Chairman Atkins asked if there have been other occasions when buildings have been constructed without the proper building permit. Mr. Scarpati stated they have, and he has addressed those violations in the appropriate manner. There were no further comments and the public hearing was closed at 8:07 p.m.

Action on Public Hearings:
a. Application 08-2008 of Elaine Schieffer, 133 Cook Road for a 0.66-acre variance of the minimum 2-acre requirement for a rear lot; a 12.66-foot variance to satisfy the minimum 40-foot width requirement for 2 adjoining driveways to rear lots, and a variance allowing an existing rear lot to be located behind a proposed rear lot. Motion by M. Byrne, seconded by K. Graveline to approve Application 08-2008 as presented. M. Byrne questioned the board’s limits on the number of variances that can be granted for one application. J. Slapikas stated there is no limit on a specific number, but the board tends to limit applications to one variance only. J. Slapikas questioned if Planning & Zoning needs to approve this application should the variances be granted. Bill Donovan stated a re-subdivision approval is still required. J. Slapikas stated he will oppose this application because of the number of variances being requested. Chairman Atkins is in favor if this application. He feels the driveway variance was granted in 1988 and this application is actually a re-survey of that same driveway to correct a previous error of measurement. He stated the original application received inland wetlands approval and would have received Planning & Zoning approval also, given the regulations in effect at that time. M. Byrne is in favor of granting the variances. She also feels had Mrs. Schieffer been able to go forward with the final Planning & Zoning application in 1988 that this re-subdivision would have been approved. Chairman Atkins called for a vote. In favor: 4; opposed 1. Motion to approve carries.

b. Application 09-2008 of Richard LaChance, 477 Matthew Street for a 5-foot maximum height variance for a residential house to be 40-feet high. Motion by J. Slapikas, seconded by M. Byrne to approve Application 09-2008 as presented. K. Graveline stated everyone is right in this situation in that the paperwork was reviewed and approved as presented and the house was built and inspected per the approved building plans. J. Slapikas stated the maximum height regulation itself is unclear and needs to be rewritten. He stated other towns have different height definitions than Prospect’s and from each other. This is an admitted oversight with the Town’s officials who reviewed the plans and inspected the property. He further stated because the house is under 35-feet at the soffet line this is not a safety issue as far as egress during a fire. He also believes the height of the 3rd floor is under 21-feet given normal building design specifications. K. Graveline does not believe there was a malicious intent to ignore the regulations and does not see how the applicant can be ordered to lower the roof because of the Town’s oversight. M. Byrne agreed adding the Prospect Fire Chief also confirmed the fire safety code for access during a fire has been satisfied. Chairman Atkins stated the Board’s responsibility is to review each application on its own merits. This variance resulted from an oversight on the public officials’ part and he is in favor of granting approval. The Chairman called for a vote on the Motion to approve this variance. In favor: Unanimous.

c. Application 10-2008 of Kollcinaku LLP, 22 Union City Road for a 12-foot rear property line setback variance for a building addition. Motion by J. Slapikas, seconded by M. Byrne to approve Application 10-2008 as presented. K. Graveline is concerned that the additions have already been built. J. Slapikas stated this application had been before the board in 2002 and was denied. He was in favor of the application then, and is in favor of granting the variance now. However, he would like to see a fine issued or other enforcement taken for ignoring the regulations. K. Graveline agreed an enforcement action should be taken on ignoring the building regulations. B. Donovan stated Mr. Kollcinaku could not obtain either the zoning or building permits without first getting the needed variance. If the board does approve the variance, then Mr. Kollcinaku can apply for other permits as required. Chairman Atkins stated the concern of the board needs to focus on the merits of the variance request only. The Chairman called for a vote on the motion to approve. Unanimous.

Public Participation:
Ann Stein, 22 Cook Road asked how she would go about filing for a reversal of judgment on variances already granted. The variance she is referring to occurred 9 years ago. The Chairman expressed his opinion that a variance approved many years ago probably cannot be reversed.

Adjournment: Motion by M. Byrne, seconded by J. Slapikas to adjourn at 8:35 p.m. Unanimous.

Martin Atkins, Chairman