Zoning Board of Appeals - Regular Meeting

We call the meeting to order at 7.32. Roll call, William Johnson. Here. Thomas Graffagnino. Here. Lisa Krekeler.

Here.

Phil Diorio is here. Lynn Colligan is excused. And we also have present via Zoom, Tim Hill, the ZVA attorney. First order businesses to review and approve the May 27, 2026 minutes. Can I have a motion to approve?

I'll make that motion.

I'll second it. All in favor?

Aye.

Aye. We have two applications on our work session agenda tonight. The first is 44 Gardner's Bay Drive, Alphanet LLC. We had asked for a couple of things to update from them, positioning of their cisterns and also the size of the cisterns and how much water they plan on using each day. they supplied us with all that information. So I don't know.

And they also provided us with the vegetation.

So I guess, you know, we could talk a little bit about application, it's a large lot, about six acres. I think we're looking at 10,115 square feet of living area total, divided between three buildings, and I guess the one bathroom in the maintenance building is included in that as well. And they're going to use cisterns for their irrigation. They have offered to use the slower pump that our a town engineer had asked for, and they have also offered to insulate the place from any further subdivision of the property so that the poverty can never be sub-divided. I don't know if there's any specific things, because I think there's some odds and ends maybe we should just address here, if anybody's got some things to bring up.

I think it's just important to note on this 1 that we did, you know, we required them to go the extra mile and and. We had the environmental, we had somebody, the. Teresa looked at it, you know, the environmental land planning, and they were very receptive and there was some good suggestions in there and they, they took those suggestions, which include the cistern. And we did also discuss some solar. Options, but the applicant said that, you know, they're familiar with the solar and they weren't sure that the position of the house would be appropriate. But, but I think it's worth noting that we did go the extra step for this 1, because it is a large ask.

Yeah, on the other side, it's a large law and makes, you know, it's if I do believe that they would. probably be able to get at least a two-lot subdivision and perhaps a three-lot subdivision there. In which case, you know, they could either build 12,000 or 18,000 square feet with really no .

And they're, you know, they're keeping for the most part with the existing, what's existing there.

Except for the new house.

Except the new house in the swimming pool pool house, but it's in the, it's like, in proximity, like, they're, they're asking for to move it.

Right. And then they look, they're not getting very close to the water. Yeah.

You know, 50 square feet.

Yeah. Um. And so, are there any thoughts that there are some restrictions that we need to put in there? Because as far as I can tell, they presented all the things. That we asked them to do, so they're in now included as part of their plans. I think it's just, you know, if we want to restrict any further subdivision, I think that's something that would be good to make sure to the TV.

And.

know is is it worth saying that there should be no future uh development of the property i mean i don't know how like if they do decide at some point to develop it further they would still have to come here right development as far as dwelling right dwelling whatever any kind of living area that's yes and if there is sort of any type of living area they would have to come here but it might not have they might not have to come here for other structures that were not and they've already removed plumbing from that one out building right right but they're they're they're allowed to put it back right the building has no problem with that correct so you know does it make sense to say something you know to prevent i don't know a 5,000 square foot barn to go up for car storage or something. I don't know.

Yeah.

To just say no further development. And look, then they can always appeal. Is that right, Tim?

We can't hear you, Tim. Sorry, sorry. Yes, that is correct.

And do you see a downside to saying something like that in the resolution?

No. Any condition imposed has to be reasonable and has to have some nexus to the variance that's being granted. And if you find that to be the case here, that's appropriate.

I think it's a fair thing to add in. Lisa, do you feel good about that?

Yeah. The only other note I had, and I don't know if we want to make this condition goes back to a point before Phil. To have a use a variable speed pump. Do we make that a condition or we just, they said they were going to do it right? Is that something that we care about?

Is there a way to say something like, hey, you have to do what you said you were going to do, Tim?

That's always implicit there, but you don't have an enforcement wing of the board.

Yeah, that's, yeah.

Okay. All right. So, and anything else? So, the things that we'd be thinking about then are... The deed restriction for future subdivision and future development.

Right?

Yes.

Um, the, uh, and anything else?

I didn't have anything else. Any other notes about conditions?

Can you just clarify the deed restriction would be for subdivision, but future development that would then be on the sheet.

The last part again, future development would be what that wouldn't be being restricted.

Just a resolution restricted. Right.

I mean, I think that makes sense.

Yeah, good. They'd have to come back to you.

Yeah. Is that good with everybody?

Yep. Should we go through the worksheet? Sure.

I think maybe that's probably a good thing.

I didn't want you to jump the gun there.

Sometimes I get a little eager.

Yeah, you're getting a little eager.

It's good. I think it's been restrained. All right. So whether an undeniable change will be produced in the character of the neighborhood or detriment to nearby properties. I'm going to say no. I'm going to say this is sort of fitting in with the new development of Hay Beach on the large lots. Um, anybody disagree with that or no, I think the neighboring property also got a, you know, about the same thing too. Or whether the benefits off by the applicant can be achieved by a feasible alternative to the variance. I don't see how you get a feasible alternative to. A bigger other than with that. No, I say, no, whether the requested variance is substantial. Yes. Yes. Would the variants have an adverse impact on the physical or environmental conditions in the neighborhood? I would say no. You know, I think that based on the restrictions that they've imposed on themselves, I think that this would have a minimal environmental impact compared to what is there now. I mean, there's already a house there. There's already a... The property is already developed.

Yeah, they couldn't tear it down and put a second house in. But where they're leaving just one parcel, I think it's a good thing.

So would the variance have an adverse impact on the physical or environmental conditions in the neighborhood? We're going to say no. No. Where the alleged difficulty was self-created. Yes.

Yes.

OK.

I want to close the work session on 44 Gardner's Bay Drive. Tim, do we need to have some sort of roll call, Volta, on that or no?

Not now, no. Okay. Okay.

All right. Then we're going to open up work session for 44 St. Mary's Road. There's actually a two-parter. The first part is that the applicants are appealing the determination by the building department that the car building garage should be considered square foot living area. And then the next part is if we agree with the building inspector, then they are requesting a variance from the square foot living area restrictions to if this is going to be counted as a living area. And so, Tim, we heard about placement of commas, the law of construction, I, from my reading of the law as when I read it, it seems to me clear that the only kinds of garages that should be exempted from counting are ones that are unconditioned spaces. But perhaps you can help us here with some of this because we're not the legal experts.

Sure. So I can give you my thoughts. Ultimately, it is your function to do the code interpretation. But just as you might as an engineer, as a consultant for some engineering advice, as an attorney, I can provide my thoughts on this argument that the applicants presented with respect to this appeal and interpretation question. The application really focuses on one section of the code where SFLA is addressed, which is in the definition section in 131-1, the very beginning of the zoning code. But the actual decretal part of that, where the regulation comes in, is in 133.10 .

Christina, is it possible that you can work that up for us over time here?

133.10 , right? Something like that? B10 .

133.10 . Sorry.

And so there are, as the Epkins Council referred to, what they call canons of statutory construction, which are different rules or guidelines for how to interpret a statute. There's also plain old grammar that helps understand what a sentence means. And one of those canons of statutory construction is that any provision that should be harmonized with other provisions in the code. So looking at the definition, which was what the applicant was focused on in the definition section, should certainly be cross-referenced with the regulatory provision in 133-10b-6. And it's a little bit I think that cross-reference clarifies this entirely because 10b6 has the benefit of, I'll just read it, the square foot living area of a one-family dwelling in any condition accessory structures shall not be more than 5,999 square feet, nor less than 1,200 square feet, which a minimum of 850 feet must be on the first floor. excluding the following unconditioned structures, colon, porches, breezeways, attached garages, and basements. So the list of the structures that follows after the colon describes all of them as being unconditioned. And I think that is the same reading as you had, Phil, of the definition section where that is perhaps less perfectly laid out in the definition section, but I think is equally clear that that's what that means. So that's my two cents on that. I agree with your reading of the definitional section, and I think it's clarified beyond any question when you cross-reference it against 133.10. you know, the argument was somehow that you have to kind of contort yourself to come to the interpretation that the applicant had suggested, which was that, so I'm going back to 133.1 now. In the definition section of the code, square foot living area is defined as the square footage of heated and or air-conditioned area within the outer walls of all structures on a residential lot, not including an unfinished basement or attic, comma, garage structures without heat or air conditioning. And they wanted that to mean that the garage in that list there is a standalone word that is not modified at all by whether it's conditioned or not. I don't see that reading making sense from a grammatical or a legal interpretation standpoint.

Thank you, Tim.

Again, you can take that for what it's worth. I know that you're... know not attorneys but it is your function to interpret the code so i was happy to provide that you know guidance um ultimately that's your decision um to adopt that reasoning reject it or something else all right tim so i guess now it's it's up to us to discuss this as a group

come to some sort of consensus and then do what, you know, we don't, we're not really very experienced in the interpretation business.

So it's, it's a, it's an appeal from the determination of the building inspector. So you either deny the appeal, which means that you're affirming the interpretation that was given by the building inspector with respect to what the term means. With respect to, you know, they've also obviously made a variance application and that will be treated separately. But to approve the interpretation portion of this application would be to adopt their interpretation and reject that of the building inspector, or you would deny the appeal and affirm the determination and the interpretation of the building inspector.

all right and and just as a a very simple take on this the building inspector says the building department says that this building needs to be included as square foot living area because it is in fact finished and conditioned all right um so um is there anyone here that thinks that That that interpretation is incorrect. Now, after we've taken a look at the, which the building department's interpretation that the building department's interpretation is incorrect. I believe that they are correct. I believe they're correct. Is everybody on board with that? Yeah, that's that's the way the code is. And, you know, the thing about having a comma or not having a comma. As far as I can tell doesn't tie our hands legally here.

So, I think it's, you know, the spirit of of. The code is in alignment with the building department's interpretations.

Okay. Um, so are we all on board with that? So then Tim, is this something we can vote on now and move on to the, uh, um. The variance, or is this something that we have to save for the next meeting?

The, the vote, um. Formally would be done at. The meeting, but they've made, they've. They've made a dual application, so you can proceed to the other one. Obviously, the working consensus is to reject the... To deny the appeal, yes. Correct.

Okay.

I should say that there's like a third argument that they make in between the appeal and the interpretation question and the variance that you would be moving on to, which is what's called legally an equitable estoppel argument, that they were relying on things they were hearing from the building department and those that information was influencing or they were relying on what they were being told. Generally, there is no estoppel against the government. You can't say, well, the person at the desk told me this, and therefore I did that. So it bleeds into their variance argument a little bit because they continue to argue interpretation questions. So just point that out, but you can pivot now to the variance argument.

OK, so we can move on to the variance now. Is that correct?

Yes.

OK. So the second part of this is they would like, if we are denying their appeal, To get a variance for square footage that on the lot with total want that 14,155 square feet. The lots around 9 acres. They've agreed to limit any further subdivision to 3 lots in total. That's correct. There's no bathroom in this barn. And Lisa, do you have the numbers for the buildings? I'm sorry. I just want to get these right. Yeah.

Okay. The main house total is 5,220 square feet. Okay. The gate house is 752 square feet. And the car barn is 8,183 square feet. 8,183. Thank you. So, you know, with the house and the gatehouse, they would be just under the 6,000. Correct. Correct.

this building you know if if it was unheated and on air-conditioned they wouldn't require anything at all the they want to put a classic car collection in there and I guess classic cars need to be a nice you know I have a nice yeah I'm in control the Just if they were loading that place up with horses, everybody would be excited, right, I think. And this just has horsepower as opposed to horses. But it does need conditioning. And there were two neighbors who expressed some concerns. Both of them seem to have been assuaged and come around to supporting the application. We spoke to them about moving their HVAC stuff. They agreed to move that stuff.

They have substantial vegetation buffers.

Right. Yeah. So I feel like everything that we asked them to do, they did. Yeah.

I think they also made it clear because there was concern about servicing the vehicles in the area and the noise associated with that. And they said that they take them elsewhere to do.

And, you know, we did discuss briefly something about, you know, events being there. And I think the What my read on what they were talking about was that if they were going to have a cocktail party or whatever at their house, that they wouldn't be able to have people in there, but that it would not be turned into some sort of event space. I don't know if that's something that is worth saying, hey, we don't want this turned into some kind of event space.

I think. I think the fact that, I mean, what I would like to see the condition that they also agreed to, which was no water. To the building, right? I think that will help. the functionality of it, you know, they're not going to have a bathroom there. They're not going to have running water there. Sure, they can get, you know.

That was something I brought up in question because I get the fact of no bathroom or sinks. But again, here's a garage, conditioned garage, where the guy even wants to pull a dipstick out of his engine and check the oil. can't wash his hands anywhere in there or it's a garage and they can't even wash their car outside the garage which it i i get the water pot but um if they agree to it yeah i mean that's yeah that's what they put forth right right

And then as far as the stuff with the he said, she said, and the emails and that, I really don't think that that plays any part in this for us here. I feel like it's, whatever, it's third person. It just can't play any part in this discussion for us. I mean, Tim, that's really where the truth of that, right?

Yeah. It's really not an issue.

Yeah. Because probably the reason why I don't have water in there, because of the insurance on the cars. Case of pipe grapes. Oh, that's interesting. I'm sure that's probably what it is. Oh, that's interesting. You know. Right. The collection of the cars and what it's worth. Right. I'm sure the insurance company don't want anything in there. could damage the vehicles.

Well, so are we all okay with their proposal for limiting it to three subdivisions?

Yeah, I think that that's, yeah.

Does that make sense for this?

I mean, it's, I prefer if it was never any subdivision, but it's.

It is a, you said nine acres.

Yes, it's right around nine acres. I can, you want me to get that number here? Give me a minute.

Which originally it was four, right? And then they knocked it down.

Knocked it down to three. That's right.

Does the three include, so it would be.

Three total.

Three total. We want to make sure that that wording is.

So it's 8.119 acres. Okay.

I just want to make sure if. In the condition and the resolution that it's worded properly, like, if this counts as 1, then is it 2 additional?

No matter what. There could only be 3 lots on this part.

Yeah. I'm okay with that. I just didn't want, you know, all of a sudden, like, oh, 3 additional then it turns into 4.

all right um is there anything so what were we talking about lisa we were talking about no water no water limit to three three lots subdivision anything else um we did not really determine the events yeah tim is there a way for us to say like hey you know have your own parties but you know you don't want to turn into like uh an event space that's what the amount of cause that he was talking about putting in there what's he how many yeah well i mean i you know i just i want to get too crazy here too if you think we're we're we're

you know uh searching for a problem that doesn't exist let me know yeah i i think that condition would be a little bit hard to yeah okay all right what's the cause worth just have to have one kid or some person lean against one no cause

Okay, I know so we just his own he he knows better not to have people in there, so so. Really, then the only conditions are no water in the three lots.

Right, I mean is. I mean i'm thinking like very much in the future. can we i mean tim you have to wait and i could be totally in left field on this but can we literally condition it for car storage and nothing else like what if they sell the property 10 years down the road and then a new owner comes

I want to make a house.

I mean, they'd have to come to us anyway, but I'm just trying to think of any scenario. And if it even is possible to condition it just for car storage specifically, or is that the thing is let's say that it does get sold and somebody instead of car storage wants to have art storage, right?

Right. Like it's, you know, it's, I think that to turn it into any kind of, uh, space that would actually be used to for dwelling right because you have to have water it will be conditioned space right so do we say no do we need to restrict any livable a fur fur there's a dwelling something dwelling space like i can't we got a we've got a term for that tim you know all of a sudden we don't want that just have a space right um

i think the problem is you know this type of thing is best addressed at the hearing when you could elicit from the applicant what we're really talking about which is a a narrow kind of use limitation it's the kind of thing that would go on a co for example you know or a building permit sometimes for storage purposes only or something like that um it's it's a little bit um imperfect for a condition for the floor to do without.

Can we say no water space? If there's no water, there's no habitation.

No. You don't have water, you can't have livable space.

I mean, to get water, they'd have to come back.

Again, you could put a lot of beds in that shed, is all I'm saying at some point.

Water or no water. Yeah, but you got to have a toilet. Yeah, I guess I can't imagine that.

I just, I just, I just wanted to raise the. And see what the board thought about it.

At this point, I think I'm good with the no water and 3 lots. Right? Everybody feel good about that. That's right.

It's a building. It's a store. Like you said, if it was article cars or.

All right, and as long as there's no water there, I just, it's hard for me to imagine. What other uses, you know, they would be getting out of it. Um, you never know, right? Crazy ideas. I know you can find out the hard way. I understand that, but I trust that these folks are. Planning to do what they say that they're doing.

Yeah.

Um, and, uh. You know, that's and that's the application that's here in front of us.

Okay. Do we do the checklist? Sure.

Okay. All right. Whether the undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties? No.

I'm going to say no. I'm going to say no, because the act of conditioning it, which is what they're here for, would not.

Has no effect. Um, well, actually, you know what it could have had a small effect with the, with the noise from the condensers, but they did now move them.

They moved them, but originally they met the criteria that the decibel level met the criteria anyway.

They went above and beyond whether the benefits sought by the applicant can be achieved by a feasible alternative to the variance. Not that I can say, no, no. Whether the requested variance is substantial? Yes. Yes. Would the variance have an adverse impact on the physical or environmental conditions in the neighborhood?

I can't see how it would. No.

No. But you could have a lot more houses there. Sure. So it's at least...

Whether the alleged difficulty was self-created. Self-created. Yes. Yes. all right and then the conditions we're talking about there is no water to the building and maximum future development of the property build that would be three lots maximum total right um is there uh anything else i don't think so all right i'm gonna close that workshop session and then uh i'd like to get a motion to close the meeting I'll make a motion to close the meeting. Second. All in favor? Aye.

At 8.09.

Yep. Okay, so.