Zoning Board of Appeals - Regular Meeting

Okay, so we're going to call the order. There's a meeting in the Zoning Board of Appeals, regular meeting for Thursday, July 16, 2026, starting the meeting at 630. Attendance, if we could go around the loop, announcing our presence. Stephanie Mikkel, Amy Hewitt, Clerk. Kip Cotsen, Acting Chair, something like that. Nick Fulton. Richard Kurzweil.

Sylvia, Assistant Counsel.

Eric Dabson, the Enforcement Officer. And we have the, we like to read the instructions for applicants before the start of the meeting to facilitate efficient review. The evidence that an unusual hardship exists based on strict application zone regulations due to some peculiar condition of the property itself and that the condition does not generally affect other properties in the district. Whether any reduction of legal pre-existing nonconformity is proposed. Evidence that the variance required is the minimum necessary to alleviate the unusual hardship and allow reasonable use of the property. And evidence that the variance requests that are in harmony with the intent and purpose of the zoning regulations and the comprehensive zoning plan. And if there is any coastal site plan review, we'll take that into consideration. Okay, so the first case then that we're looking The hearing was case 268C-87 Hillcrest Road. Application for demolition of existing four-bedroom residence and construct a new single-family residence. Just announced that the previous matter is going to be drawn in that webinar. Okay, I love that. Yeah, the case for 300 Mile Creek Road has been withdrawn. So if anybody's here to hear comments about 300 Mile Creek Road, it has been withdrawn. Yeah, that's what we're going for. Yeah, so you can come on up, Wilkins, and anybody that's interested that's going to be presenting. So once again, I'll read the information we have for this application. Application for demolition of existing four-bedroom residence and construct a new single-family residence. Variances requested are maximum stories, maximum height, maximum floor area, maximum building structure coverage, and maximum ground coverage on a non-conforming R10 lot. A coastal site plan review has also been submitted. Karen Galvin, applicant. There is a non-conforming structure on a non-conforming R10 lot. The variances requested are 10.1 point, four maximum stories, 10.1.5 maximum height, 10.1.6 minimum street setback from three streets, 10.1.8 minimum side setback, 10.1.9 maximum floor area, 10.1.10 maximum building structure coverage, and 10.1.11 maximum ground coverage. So if we could get a presentation on what you'd like to say about the case.

Yeah, you got it. My name is Raymond Malinowski. I'm here with Pete and Rich Finnegan, as well as the Galvin's property owners and applicants. Also, Joe Renz is listening in on my phone right now, but he's at his kid's baseball game in Saratoga Springs, if you remember last year. But yeah, I guess just to get started on this one. So what we're proposing here today is a tear down and rebuild of the existing house. This is shaded in yellow here. I hope you can all see. This house is situated on this existing non-conforming lot. It should be noted that this lot is 3,413 square feet, where the minimum required is 10,000 square feet. On top of that, it has the unique hardship of being on this kind of triple corner lot with Hillcrest Road, Champion Road, and Sargent Road. That all eats into the potential buildable area on the lot, such that we have a 25-feet street line setback from each one of these street lines each year. What we're proposing to do is to tear down that existing yellow footprint and bring up this proposed house. The house will be on sewer and public water, so there was no need for public health department review. One thing to note about this house is we have elected to design the house location to be essentially in the same location as the existing house. which is non-conforming, except for the Sergeant Road street line setback of which we are pulling back. The idea behind the placement is we did not want to encroach any further onto any setback. However, we did want to propose at least a reduction where we could, which we did. are electing to do at Sargent Road. We're also reducing existing non-conformities down to Champion Road as there's an existing structure that is closer than anything we are proposing, which is the existing deck. I also want to mention some of the existing impervious features on the lot. We are electing to replace all of these features with pervious, I believe we're electing to replacing with a pervious paper driveways as opposed to existing brick driveways. This plan does require a coastal site plan application. So part of the reason behind some of these variables is to ensure that we are abiding by Connecticut's requirements for their coastal site plan applications. I also want to read a, Just a couple of our items from our CBA application that we have submitted, and you all have copies too. Just kind of like as a refresher from my brief description to start, variances requested to allow, the proposed variances are requested to allow the existing three-story, four-bedroom residence to be demolished and reconstructed with a new single-family residence in substantially the same location to accommodate the proposed design on this highly constrained lot. Variants are requested for max gross floor area from 25% to 72.8% or 2,486 square feet. Max lot coverage, 30% to 37.8%. Total ground coverage, 30% to 38.3%. Building height, number of stories, all setbacks for nearly all structures on the lot. While these variances are required, the proposed project will reduce the existing nonconformities, as I have discussed, with ground coverage, lot coverage, gross floor area, building height, and several setbacks I previously mentioned being reduced. The subject property presents several unique hardship conditions. As mentioned before, the lot is extremely small, nonconforming, with only 3,413 square feet within an R10 zone, which requires 10,000 square feet. The property sits uniquely at the junction of private roads, and therefore the buildable area is restricted to about only 7% of the existing lot area, which is 246.5 square feet. Compounding these constraints, the lot exhibits a natural steep slope exceeding 15%, which presents topographical challenges and Therefore, it does bite into what we can do with building height as well, of which we are reducing. In regard to the unusual hardships, since, you know, many of these point-of-wood properties tend to be smaller than the minimum required. Unlike most in the R10 district, at least, you know, this one does have three street frontages with Sergeant Road, Champion Road, and Hillcrest Road. This unique configuration imposes street-line setback requirements on three sides of the property simultaneously, which is not shared by most other lots in the zone. The lot is further constrained by the steep slopes, which are unusual for the Point of Woods community, and the existing residence was also constructed in 1939. which was before the adoption of the zoning regulations. Furthermore, the proposed project will result in meaningful reductions to existing non-conformities. Max building height will be reduced from 32.8 feet to 26.2 feet, which is a substantial improvement of 6.6 feet. Total ground coverage will be reduced from 46.4% to 38.3%, representing an overall reduction of 6.6%, and an increase in pervious surfaces on the lots. Maximum lot coverage will be reduced from 38% to 37%. Maximum gross floor area will be reduced from 82.2% to 72.8%. Setback distances to Sargent Road and Champion Road will also improve. And the new construction will meet all current building fire safety and energy codes, replacing a structure originally built in 1939. Project maintains the established single-family residential use of the property and is consistent with the character of the Point Hill Woods neighborhood. Because of that, the property becomes more conforming. Major pre-existing non-conformities in the building height and total ground coverage and GFA are significantly reduced. Furthermore, I also have a couple of letters of support from neighbors. Just to confirm if you have these on file already from Margo and Jack Harney. But I'll read these into the record. From Margo Harney to the zoning board, we are writing in favor of the application for demolition of 87 Hillcrest Road. Our home is across the street, 86 Hillcrest Road. The Galvans have shared the plans with us and we believe it will be an improvement. The current home is in need of extensive work and there's a strongly musty slash mildew smell that permeates the house. New home will be better for the family and the neighborhood. Thank you for your time. And we have one more from Rich and Kathy Ramondetta. You don't have his new record, so let me- Oh, okay, perfect.

We have lived across the street from the Kennedy family residence since 1984. The family has meticulously maintained the home, even as it passed to another generation.

We have reviewed their plans and support the new construction project with any needed variances. We request the board to vote in favor of their application. So here are the two of these.

We'll put this one in. Do a two-step. A and B. A and B.

And then we have the letter from the zoning enforcement officer, Eric Knapp.

Okay. Would you like me to read this in another record? They should have all got it, but I mean, if you'd like to read it in. That's the same one we're looking at here? Yeah, yeah, same one. I don't know, up to you.

No, that's a summary for us.

Okay. Quick understanding.

And then I can do a quick rundown of the architectural plans as well, which Pete can chime in in case I miss anything. Yeah, so this is the rear and front elevation views of the property, or of the house at least. Just move on to a couple others.

As far as this goes, what Fred Laliberte, the architect, had indicated on this first page is the existing square footages of each floor.

Could you introduce yourself?

I'm sorry, sure. Rich Finnegan from Atlantis Building Company. I'm the builder for the Galvans for the project. So... When we had designed the new plan, we were obviously very aware of the square footages and made an extra effort to reduce those, which we were just discussing earlier as far as the coverages and height and so forth. But also, each of these floors are less in square footage than the existing. So the footprint of the entire building, of course, is less, as are the first, second, lower area square footages as well.

And the difference in the height is the slope on the property, the one side.

So, yeah, from the average grade, he has a 24-6 versus I believe it was 32-8.

So we've got a three-story there and a story and a half, two-story on the other end of the house. Right, exactly.

So this is the – I don't know which roadside it is.

And the floor that's at the bottom on the taller structure, that goes in all the way through underneath or goes in a little ways and stops because of the slope.

Exactly, exactly. And then square footage-wise, the existing lower level that you were just referring to is 868, and the new one is 860, proposed, I should say. First floor of the current structure is 1,092. The first floor of this structure is 1,044. And then the second floor of the current structure is 616, whereas this is 582. So the reduction in square footage is from 2,576 to 2,486 overall.

And correct me if I'm wrong, but I believe we did spend some time with the design of the restful areas to ensure that they kind

So actually, it's a little bit. I don't have the exact number here when when Erica you're dealing with, but there were there was, which we can get that information as far as what the existing percentages for the second versus proposed.

Why is that not a basement, that bottom floor?

You know, a walkout basement, as opposed to why? Why call it a floor?

Oh, it is a basement level. It's an unfinished level that's got, I don't know if the mechanicals are down there because it's not in the flood zone. So there's a space that he has in the new floor plans. This level, if this is that, so this is the area here, which would be a garage level for golf carts or what have you. And then the mechanical areas in the back. So this area would be less than six feet. So that wouldn't be a, habitable space as far as the square footage goes. And the footprint itself is a little bit smaller than existing.

So on the tax records, it's a two-story home. Why are you calling it a three-story home?

It's just this, there's an existing, there's three levels existing currently.

Looks like two levels and a basement and the tax records are saying two levels. I don't know that it makes a difference, but I would want it correct in the record.

We got Joe. Okay.

Yeah, I think so. As long as the tape can hear me.

I'm up in Saratoga with my son, so I apologize for not being there in person, but I have listened to everything that everyone has said. As far as the basement in Old Line, there's a basement and a cellar, and this is not a cellar because it has full access to the to the exterior level access. So it's defined as a basement. And as soon as it's defined as a basement, then it becomes a gross floor area for the spaces that are over six feet and a storage area. So, yes, looking at it from the street, it looks like a two-story home. Around from the back where the garage is, it meets the definition of a three-story home because of that basement. But it's currently three-story, and it's staying the same, but it's being reduced. That ratio is being slightly reduced. Everything else is being reduced to make it more conformable.

So the tax record should be corrected? Yes. Tax records and zoning records are sort of two different things. Tell me. What they're taxed on for their purposes doesn't have to track our zoning regulations. And I think what Joe is saying is for purposes of counting the floor area, for gross floor area, you have to include the basement. For story purposes, though, it talks about, That part of a building, other than a basement or cellar, included between the surface and floor above it, or if there's no floor above it in the space between the floor and the ceiling above it, a story for which the floor area is a ceiling height of six feet or greater, or an area 50% of the floor area, Below it shall be a story. So I think for purposes of story, you're correct. It's a two-story house. For purposes of floor area, I think Joe is correct that they have to count it toward floor area, which is why their floor area is so high at 72%. So I don't think that the assessor has it wrong. I think, in fact, it probably is a two-story house for purposes of definition. But I think, again, for purposes of floor area ratio, we do need to count the space for floor area ratio purposes.

Thanks.

We would definitely prefer to call it a two-story house as well. So if that's the case, that's completely fine with us. We were trying to be as conservative as possible there. But we're not really changing the existing, whether it's a two or a three, it's still remaining the same, just a little reduced from what it has been for many years.

And this is just the proposed first floor and second floor.

And you're saying for, it would be nice, it's not necessary, but it would be nice to have existing and planned sort of on the same drawing. Do you have any of that for the elevations or any of that?

Not on the same architectural. Okay. Did you bring the one that shows the existing... existing plan that you guys probably told the plan and put it side by side if you'd like. You have that just an eight and a half by 11.

Yeah, I think we can do that. Well, yeah, you're one thing that point out as well is that in terms of changes to the grade two, they're all generally remaining the same. In fact, the only improvements that we're proposing is to the Make sure that the driveway on this side of the house, the south side, is not too steep to park one's car on. So generally, everything on the site is remaining the same. There's not going to be this, you know, new house on site. Oh, yes. Got it. Sorry about that. Okay. Oh, over here. Oh, you got that over there.

Okay.

Yeah. So generally, you know, the site is remaining substantially similar to how it is now. there's not all of a sudden going to be a massive jump in height. And that's further exemplified in the building height calculations where, you know, the existing height is actually 32.8, and we are dropping that down to 26.2. And I believe on this sheet, we are showing the elevation differences on the architectural plans.

right here. So these are the right and left side elevation views. Just to kind of visualize those yourselves.

We were trying to compare the old and the new. You have something there that shows the old?

Well, I just haven't even had 11 by 11 before.

We can pass it around. Sure. It's not superimposed, is it? The old and the new? No. Joe knows about this, right, Joe?

He does. He also recommended holding the two plans and putting them together. I don't know if you guys can do that.

Oh, this is the next interior.

Yeah. You can represent to us that it's definitely smaller.

Sure. And actually, these dimensions are also shown on your street.

Not that it's exactly our purview, but it's probably... Interesting to us if it has a similar, like it doesn't have some wild architectural statement.

You're making something that's... No, this is pretty much in keeping with what you'd find at Point of Woods. Okay.

And it's not... And so the reason we're doing this project, you're rebuilding a smaller thing because everything comes to code. Everything's new and it's arranged in a way. How many bedrooms is this one going to be? Is it going to be four still?

Yes. Yes. That'll be the same.

Okay.

Although the bedrooms are, you know, in most cases, slightly smaller.

Yeah. And for the pervious issues, the bricks, are those water? Is that a water brick or is it just laid brick? It's just laid in sand. Okay. So it's not. Yeah.

My father actually. You have to start again with your name. Karen Galvin, 87 Hillcrest Road, Wendell Woods. My father actually put the driveway in himself. by hand, and it's not cemented in. It's just in sand.

Because Joe knows that we love it if there's an increase in perviousness, if there's more water infiltration on the property. It doesn't seem to me that you're going to need to make that case very deeply, but if there's Anything you could give us for details on how...

There's a few concrete pads there.

Okay, those are going to be going... At the end of both the brick drovers, those will be going. There's a small walkway from one of the... Yeah, so that stuff.

It's not a major change, but a change for the better among us.

Joe indicates on his plan that the... any of the solid surfaces would be pervious. Yes.

Yeah. So those driveway areas will be pervious. And we do show in our proposed coverage tables, one, a reduction between existing and proposed, but two, the elimination of those features. Just to back up what Karen was saying earlier.

Okay. Did you say it's going to be floor vision? I'm only seeing three up there.

Okay. Yes, on the first floor. It's sort of a flex room, but according to health code, it would be considered a bedroom because it has access to a bathroom. It won't be used as such necessarily, but that's what it would technically do.

Okay.

I know it is smaller. It's measuring smaller. I just don't really understand how because you have the center section and then the existing house has like the two enclosed porches or something like on either side. And now it's going to be straight up from those porches.

But somehow it's still measuring less.

So this is the front elevation and rear elevation, but side elevation, I think, might highlight this a little better.

More of the floor plan. So this, on the current footprint of the existing home, this part, there's an interior wall here because that's a converted porch like a lot of these houses. And a lot of the beach communities have the same thing. So the difference here is that wall is going to be removed in the new plan, and this is all one open room.

And then there's a floor above that.

Correct, which is back in this vicinity, just like on the existing house that's set back. And actually the second floor on this one, just like the first floor, is actually smaller in square footage slightly, but it is smaller than it existed.

So it wouldn't be even with that front.

No, it's set back. It is set back. Correct. So if we go to this front elevation, the second floor is up here. So here's the roof, right? So if we take... The confusing part might be actually... Here's a side view again. Right. The third... Last page. I always put these in random order. But there we go. So if you take This is the one to look at. So this would be the right side elevation. This is the part that walks out the basement level, if you will. So with this elevation, this second floor line is set back in the front of the home.

But not in the back.

In the back, it's going to be... On the backside, that's this here, which you can see on plan. This is the full wall of the first floor. And the second floor is this portion here. We have a front elevation. Yeah, that's the rear. So that's the rear. There's a reverse gable. But this portion of this space that's above six feet is that middle. It's just less than six feet there. But it's the way the gable comes down.

Oh, in the setback.

Yes, and that wall is pulled back. So if you go back over here, that is the setback that we are reducing. So this existing yellow is the existing footprint. Yeah, we should have picked a different color.

Yeah, green.

I know, we have like the whole red, white, and blue here, but this yellow footprint is existing. We can see this existing crosshatch that is the edge of the existing foundation. And if we look at our zoning table here off of Sargent Road, what we'll see is that the existing house, Sargent Road, is 13.7 feet from that street property line, and we're bringing it back to 15.1. So that bulk is coming in, actually. And, you know, on top of that, all that gross floor area, the gross floor area of the second floor is reducing from 616 to 582. So generally, that's another reduction in non-conformity.

Okay. Anybody have any other questions or comments?

Okay. I'd like to open it up to comments from the public. Anyone like to speak in favor of this application? You're welcome. Yeah, come on up. Just so we can get your name on the register. Yes. Or oppose. Anybody? Okay, so that you're okay.

About the case?

Okay, what about opposed? Anybody have any objections to this? Okay, hearing none, I think we're going to entertain a motion to close the public hearing for this.

So in the beginning, I didn't hear who was seated. Do we have five? You have five, exactly, yes. Okay, okay, thank you.

You okay with that? You guys okay with moving forward with five?

Anybody has any open questions? Anybody's confused about something, has any questions, we could answer any of those now before the hearing's closed. If everybody's comfortable, then we're fine closing the hearing as well.

We're good. Anybody want to make a motion to close the public hearing on this case? Okay.

Second.

Okay. All those in favor of closing the case, open the hearing.

Aye. Aye.

Opposed? Abstain? Okay, unanimous. So the public hearing is closed. We're going to move into a voting session on this case. So at this point, it's just members of the board that are talking and our advisors. Unfortunately, you guys have to just sit and listen from this point.

Everybody's seated. You've got five people. Everybody's seated. No, I'm saying to the people in the audience. I misunderstood. You've got to be checking me.

So, anybody want to start up comments on the issue?

Several reductions in non-conformities. That's going to have to be the major thing that carries us. That major thing, yeah.

Okay. You have heard an argument for classical hardship as well, so you don't have to skip through that. To the extent you find classical hardship, I would suggest that you articulate that as well.

Yeah, I think this is going to be substantially what it currently is, which is a pre-existing non-conforming legal, pre-existing non-conformity, and it'll be reduced and you'll have a safer structure because we're conforming. constrained to build safer nowadays. So that's a net positive for that community.

What's also hard getting to is it's a very small lot. It is three fronts. It is steeply sloped. Those are all traditional reasons to grant a variance without even the reduction. So you might want to sort of incorporate that into what you're looking at.

I also have some stuff written up if you want to hear it. Okay, yeah, go ahead. I don't want to take over anything. So I said that the lot is very small and non-conforming in an R10 zone. It sits at the junction of three private roads, so the buildable area is only about 7% of the lot area. There's a natural steep slope. I just wrote what I had.

Yeah, no, those are all good points to make.

Presenting challenges with building height, which is being reduced, and the street line setback requirements are on three sides of the property. That's what I have. Reduced to two of those three.

Yep. and reducing substantially a whole bunch of other non-conformities.

Is that in the same point? I've got proposed reductions in legal pre-existing non-conformity. I have that the max building height will be reduced by 6.6 feet, total ground coverage. We don't have to put the numbers in there, but if you guys don't want to, total ground coverage will be reduced by 6.6%, increased impervious surface area, max lot coverage will be reduced, and max floor area will be reduced. And then the setback distances to two roads will improve. and the new construction will be code compliant, and it is in character with the neighborhood.

Yeah, and we had no conversation about any conditions imposed on this.

Oh, and to support our neighbors. Pardon? And support our neighbors.

That was great.

Okay, so I guess we're done with our conversations. Yes?

Did you want to... change anything that I have?

That sounded good.

How did that sound to you guys? The only other part which I would need to make here is there's also a coastal area management piece of this. You just need to make sure that you're very spoofed that it is consistent with the policies of the coastal area management.

Okay.

Was your mention of that adequate now?

You have to agree or disagree.

I'm putting it out there that you need to make a finding of this. If someone on your side of the table can make a finding of this, then that would be great. If you put it into the record that you believe is consistent with the policy of the Coastal Area Management Act, that'd be great. So stated.

Yeah. It is consistent with the policies of the Coastal Area Management Act. Coastal Site Plan location was approved. Okay. So I'm going to ask somebody to make a motion. I'll read the motion and you can attach your name to it. A motion to grant the requested variances to section 10.1.4, 10.1.5, 10.1.6, 10.1.8, 10.1.9, 10.1.10, and 10.1.11. to allow demolition of existing four-bedroom residence and construct a new single-family residence for the site plans prepared by Indigo Landscapes Design LLC and dated June 4th, 2026, and the floor plans and elevations prepared by Craig Lalberte, architect, and dated June 4th, 2026, stamped and signed by the ZBA chair with no conditions. Coastal site plan application is approved.

So let's get a motion and a second on the first thing that you got a motion to a second vote on that and then do the cancel.

Okay. Okay. So would anybody like to make that motion? Okay. Second. Okay. All those in favor of this application? Aye. Opposed? Abstain? Decision is unanimous approval. So coastal site plan application is approved because it is consistent with all applicable coastal policies and does include all reasonable measures to mitigate adverse impacts. Thank you, everyone.

Let's make a motion and a second and a vote on that as well, please.

Okay, on the coastal site plan. Okay. Can we have a motion to approve that? Make a motion.

Second.

Okay.

Perfect.

Thank you. All those in favor?

Aye.

Aye. Opposed? Abstain?

Unanimous decision. In favor? Thank you, everyone.

This goes in the file. Thank you. Thank you.

Thank you.

I don't want to talk about it anymore. He's used to hard-heating questions. That was good. Thank you.

Thanks, everyone. Take care. Good night.

Bye.

Now we're going to be opening case 2610, 50 Short Road, appeal from decision of zoning enforcement official to grant zoning permit of a privacy wall deck screening in an RU40 zone. Robert Nixon and Janet Lage. Close the door. Close the door.

Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door.

Close the door. Close the door. Close the door. Close the door. Close the door. Close the door.

Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. Close the door.

Close the door. Close the door. Close the door. Close the door. Close the door. Close the door. I am here tonight on behalf of Janet Lage and Ray Nixon for the owners of 46 McCurdy Road. And as stated, we are appealing the decision to issue a land use compliance certificate for 50 Shore Road for adding some privacy walls to an existing deck. I previously submitted to ERA online just a copy of the application that was filed. So I don't know if you folks have seen that, but it's just a copy that you should do.

Thank you.

Okay. And the reason that we wanted to submit a copy of the application, because we believe that the application as submitted just is incomplete and contains inaccuracy and that the permit for this wall should not have been issued. If you quickly just take a look at the application itself, you can see that most of the fields are filled out NA. And from our perspective, the most significant thing that's missing is a plot plan or a site plan showing a zoning table which would show compliance with the zoning regulation when the application was submitted which was submitted after these walls were already erected on the deck so this is an after the fact submitted application and if you look at the appeal that we originally filed you can see there's such a what's called a plot climate but in my experience it's not something that I would submit to a zoning officer showing zoning compliance. I mean, it's clearly something that's just been handwritten by the applicant. And we believe that the debt that was previously permitted, I believe back in 2005, in all likelihood, did not conform to the zoning regulations. And in 2005, when the deck was approved, it was another after-the-fact submitted application, and there is no record zoning compliance for the deck. And so it's our belief that in all likelihood, the structure and the deck are nonconforming. And as you folks know, and as we saw from the variance application, you cannot expand or enlarge a nonconformity. And while this may not seem as significant as reconstruction of a house, the improvements that were added are significant to the neighbors next door. And part of that is because of the way that it's constructed. If you look at the pictures, it just doesn't look sturdy, stable, could be dangerous in high winds. But more importantly, it just doesn't seem like the property owner is following the rules and submitting sufficient information to demonstrate that this addition to the structure complies with zoning regulations. This lot is a small interior lot with no street frontage. I believe the only access is through a right of way. It's significantly undersized for the RU 40 zone that it's in, which requires 40,000 square feet. And this is a third of an acre. And finally, If the applicant had submitted a site plan, plot plan, something that showed zoning compliance as to setbacks, as to building coverage, we probably wouldn't be here right now. And we wouldn't be here right now either because the application wouldn't comply with the zoning regulations or it wouldn't and maybe we would be here in the form of a variance as you folks just saw. So we are requesting that this permit be revoked and that the applicant, if they wish to continue to maintain this improvement, submit an application that shows compliance with the zoning regulations.

I don't know if there's anything else that needs to be available.

Oh, as we sort of went back, this is an interesting property in that there was previously an appeal of a zoning enforcement officer decision. I'm not sure how many of you folks were on the board at that time. But, you know, we don't see that many CEO appeals and we don't see that many that go to court. And then the court actually overruled the zoning enforcement officer in that case. And after that involved a different accessory structure or something that was attempted to be called an accessory structure, which was a boat that was on wheels, So it did the boat garage. So the zoning enforcement officer said it did not have to comply with the zoning regulations and the court overturned that decision. And subsequently from that, which we also submitted a copy of, thank you, Janet, for reminding me, there was a prior order from the zoning enforcement officer in 2014 that the applicant, in addition to showing compliance for the boat garage, that the applicant was to show zoning compliance for all accessory structures on the property. And no action was ever taken on that. And somewhat understandably, zoning enforcement officers aren't always have time or bandwidth to do enforcement. But now that we have this permit pending before you, I think it's pertinent to show that this history, the history of noncompliance of this property. And if If it is in compliance and a zoning table is shown that shows that, I think the next door neighbors, you know, would not bring up the issue. But what they would like to see is a full zoning application shown compliance with the regulations.

And what's the deck built?

The deck was built in 2005. And so we are not here appealing the deck. It's the recent addition to the deck, which is not an insignificant change. wall that's relatively high. It's something that the neighbors can see, and it does certainly seem to possibly present some safety issues.

Yeah, I'm a little uncertain about what I should be doing. Should I ask for your reply at this point? No, I mean, I never replied.

I'll walk you through what you're doing this time. So this is an appeal as opposed to variance application. So it's a different standard as articulated. You don't see these very frequently. So I'll just walk through what the process is. So in this case, there is someone that is disagreeing with obviously Eric's decision. That person goes first in making a presentation, which they have. If you have any questions with respect to that, you can ask. And to the extent... Eric, as the zoning enforcement officer, has any questions he can ask as well. Once that presentation is essentially done in the first instance, then Eric can make whatever presentation he sees, essentially explaining why he made the decision that he made and answering whatever questions you have. The applicant or the appellant also has the ability to ask Eric any questions as well until you essentially get as much information as you need. In this particular case, the hardship and everything we talked about in the last application and we talked about most times, not relevant at all. In this case, you're essentially stepping in the shoes of Eric as if you were to make the decision all over again. So at the end of the day, your options are going to be to affirm or uphold Eric's decision, reverse it, or design your own order. So you're literally stepping in his shoes and can do anything that he could have done. you don't have any more authority than Eric did, but you have equal authority and you can essentially start from scratch. It's what we call a de novo review. You're starting from the base evidence. So that's essentially what you're doing here.

Would we be deciding whether they should have come to ZBA? Or this is a decision on this wall?

The decision that they are feeling from, because the issue... One preliminary issue that we've talked about in the past before, and actually the old appeal that you were talking about actually had an issue of whether it was even a decision that could be appealed. Because it sounds like a decision is black and white, right? Either someone issued an order or not. That is actually a subject of litigation all by itself. In this particular case, the decision that's being articulated by the appellant is to approve the zoning permit. So that is the decision that is being appealed from. Correct me if I'm wrong. That's correct. Correct.

So he issued a permit for them to put the lattice up as a... Right. And there's a deck that pre-existed, and that's not part of the... It is not, no. We'll get to that in a second. And I suppose I would like to ask them, I don't know if it's appropriate or not, do you have any documentation about relative distances here from your property to the structure that's been put in place?

Okay.

The same thing with the line of sight.

Yeah. The picture didn't show line of sight from here. The other house is located.

I think that's sort of one of the challenges to this application, because we don't have a survey. We don't have a plot plan. So, you know, we've I mean, and I said to my clients, it's hard for me standing here to say this is compliant. This is noncompliant because we don't have any information. And so I'll let Eric explain his decision for that. But from where we're standing, given the size of the lot, given the size and structure on the lot, it has all the bells and whistles of something that's nonconforming. And expansions and enlargements of nonconformities are prohibited. And so that is why we are here today.

I don't even know how to ask the question. The permitting necessary to fill the side wall on an existing

Well, it doesn't require a building permit, which is one of the usual thresholds. And the deck itself got a building permit, as you heard. But it does require a zoning permit. There is online this permit you can fill out that basically says, I would like permission from the zoning officer to put something up that doesn't need a building permit, but does trigger sort of zoning review. So that's what they did. Again, after the fact, by contesting that it was already there and it's all struggling. So property owner said, I'll submit that. They did submit an application. Very typical for applications of this sort. A lot of the fields are not filled in. This is just three panels on a deck. So the question for me was, did I have enough information to make my decision? Do you have a file on this thing here? Yeah, this is what I've got in here.

Okay. I dig down.

Okay. Now, you copy earlier to the lawyer. This is what you got. Okay, so this is the building permit that was issued for the deck. It was signed by the building official. Okay. By statute, General Statute 8-3 parentheses F, every building permit gets a zoning review. So it was my understanding, even though I didn't see it on here, that this must have gotten a zoning review. I saw nothing to the contrary saying it didn't get a zoning review. The building permit was signed off on and not appealed. There was no appeal of it back then under the zoning statutes. So we have a validly issued building permit, which had, again, as far as I can tell, a zoning review that was associated with it. And therefore, building permit, zoning permit, no appeal, valid permit from my standpoint. Fast forward 21 years, and here we are. They came in for an expansion of what was validly approved 21 years ago. So from my perspective, if the CEO back then had enough information to approve it, I really have no different information. I admit, there's no survey. But in the absence of any contrary information, if the CEO then approved it, I really have no basis to deny it. I can't, you know, again, stepping into the shoes here of the earlier CEO, I can't disagree with what he did or she did. I sort of take it as a given, I guess this is probably Ian Brown, it's 2005. So at this point, if Ian Brown had enough information to grant this or not object to it and let it go forward, then again, I think I would be denying someone property rights if I sort of second-guessed that now and took away the ability to expand that deck. So that's kind of where we are today. which is validly issued deck permit 21 years ago, coming in for the three panels expanding the deck permit. I had no contrary evidence, so I approved it. Regarding issues of safety or sturdy or any of those things, that's not on me for zoning months. My job is simply to look at it and say, does it meet the setbacks? Does it increase the coverage? Is it too high or any of those things? Couldn't see any of that evidence here. All I saw was, three panels on a validly approved deck, seem to be okay from my standpoint. All the rest about whether you fill in all the proper boxes on the permit, again, I have to be honest with you, for most of these, people don't fill in a lot of details. And as long as I have enough information to grant it, I usually grant it. Just because these are not, the people who are filling these out are not experts, they're not lawyers, they're not engineers, they're just people who are again, putting some lattice on their deck. So I try and be as forgiving as possible, I guess, for lack of a better word. And if I think I have enough information, then I evaluate or grant the permit if I can grant it, or I write back to them saying, I can't grant it and here's why, can you solve this problem? Again, in this case, Absent contrary evidence, I had a deck permit. I saw the permit was reviewed and granted. I, again, stepping into the shoes of the CEO from then, I said, oh, they thought it was okay. I'm going to go with it today. And that's really as simple as I can make it, why I granted the permit. I agree. There is no survey. There is, you know, all the things that you would love to see in a very expensive application, we're not seeing here on a lattice for a deck. And I think that's probably the case in most of these applications. When someone is putting in a condenser, when someone is putting in propane tanks, when somebody is putting in a relatively minor accessory structure, I don't get surveys. I just don't. I get people who hand-draw things and just mark the measured distance themselves, and if it meets whatever that measured distance is on my regulations, I grant it. So I don't think it's unusual in that respect. I think this is fairly typical for an application of this sort that I would see. And again, I didn't have any, nothing stood out to me as a reason why I would deny this under the circumstances.

Eric, can I ask two questions? And I think I know the answer to this, but I want to put it on the record. You said that the building permit was approved. Did you see any indication of a variance approval for the debt?

No, there was no variance approval for the debt.

So therefore we assume that there was a determination that a variance wasn't needed and therefore a building permit was approved.

Yes, I think that's fair.

And then have the regulations changed in any way since 2005 when the deck was originally to reduce the setbacks?

All of the setbacks and everything are identical to where they were in 2005. Honestly, The setbacks for all of this stuff are probably identical to where they were in 1985 or 1975. The zoning regulations as far as that stuff have really not changed much, almost ever. So I'm pretty confident that it was approvable then. The setbacks have not changed since.

Zoning consideration, that lattice structure at the edge of the fence would not be – something that would take a legal deck and turn it into a non-conforming structure.

It doesn't have a roof. You're not enclosing anything. You're not creating... From a zoning point of view. You're not changing the percentages of things. So I'm not worried that it altered any of the other things you can actually look at, floor area ratio or coverage numbers or impervious surface or any of the things we were looking at in the last application. So again, it doesn't really change much of anything at all.

If that deck was in the setback, it could be increasing bulk in the setback? We don't know.

We don't know if it was. I mean, there's also, again, sort of using a different statute, which is the fact that if it's been there for more than a certain amount of time, they can't enforce against it. That doesn't mean you can't expand it. And I concur, expanding nonconforming structures is a problem. But as a general rule, again, this deck has been there 21 years and no one has brought in evidence in that time that it is non-conforming. The argument is basically they haven't proved it's conforming. Okay, but again, they haven't proved it's non-conforming either. So we're sort of in the absence of evidence.

Will the homeowners be speaking?

So the homeowners will be speaking. Will they be speaking tonight? Oh, they can't. Certainly the other property owner. I thought you meant did the homeowners speak? The homeowners were speaking.

So I have a question for the appellate. What's the safety concern? It looks like it's properly built and secured to two by four posts.

Well, no building permit was issued. And I have to say, if you were to go out and take a look at it, and this property is in a flood zone, it's in a hurricane inundation zone. So it's not something that I would want to stand next to if there were a wind event.

But you could have a grill blow off of there that wouldn't be nailed down.

That's true, but you don't need a zoning permit for a grill. No.

What is the... How does the zoning permit get involved in a structure like this, if that's the right word, structure? What's the reasoning for the zoning permit?

Well, honestly, the reason is that I understood that there was a dispute between the parties here. And, well, potentially on a... Putting up three lattices may or may not require a zoning permit. I understood the importance of issuing a permit here so that they could come in front of you and test the validity of it. Ultimately, they have built more structure to the house. The house is in some way larger than it was. And even though it doesn't require a building permit, and Mark Whalen was pretty adamant it didn't require a building permit, It was an increase in the size in some way, shape, or form of the house, which is why I gave it a zoning permit. Traditionally, for accessory structures under 200 square feet, like a shed, you wouldn't grant a building permit to grant a zoning permit. Again, in this particular case, it was sort of a very minor modification to the structure, which is why, as a minor modification, it doesn't require a coastal area management permit like you saw in the last application. It doesn't trigger the flood zone issue because it's not going to be substantial improvement. All the things that would be triggered for a major application, you're not seeing here. But as an expansion in some way to the house, I granted a zoning permit because I reviewed it based on the fact that, again, there was a prior building permit for the deck.

So is the order of events... everything was there, the deck was there and all, and then they put up the privacy fence or lattice, whatever, and then there was a dispute, and then they came to the town.

Then they came to the town. I understood that the neighbor was unhappy with the lattice and complained it doesn't belong there, there's no permit for it. I contacted the property owner and I said, she's right, there is no permit for it, please file a permit for it. The property owner file the permit that you saw, and I then reviewed it and granted it. So it's an after-the-fact permit, which is not ideal, but it's not in and of itself... We get those frequently. People do things without a permit, and you tell them to get a permit, and they come in and they get the permit if they're able to do so.

So if this deck was not in the setback... Can I just put a lattice up on my deck without talking to you?

I would always prefer if you're going to change your house structure in any way, no matter how small, that you pull up a zoning permit to do that. That said, I don't have eyes and ears everywhere, and if you did put one of these up and I didn't notice it, I probably wouldn't go out of my way to try and find it. It's not really changing your assessment. It's not really... As a structural change to your house, it's relatively trivial. Again, if you're asking me as CEO, if you're making a structural change to your house, does it require a zoning permit? My answer has to be yes. It requires a zoning permit because you're making some sort of structural change to your house. So that's why I issued the permit in this particular case.

Thanks. If this... latticework were not attached to the deck. They were installed as a fence and thrown away.

Fences less than six feet in height are not considered structures. So if this were on the ground and less than six feet in height, it would not be considered a structure. I would have no role in approving. Obviously, it's attached to the deck and the deck itself is elevated. So it's higher potentially than the six feet there. But again, if you took the lattice and we put it on the ground as a fence and it was less than six feet tall, no, I would have no roll over.

Even in a setback?

Even in a setback, except, again, if it's on your front side, it's on the road, we only allow fences of no higher than four feet. But anywhere else in your property, even right up to the property line, you can put a fence of up to six feet in that. I don't recommend it right on the property line, but I encourage people to put a little bit in. But certainly, again, I have no zoning power to stop people from putting fences up to six feet tall right on their property.

Okay.

Do we invite the responding property owners up to... make their comments.

In this particular case, you can.

Yes. Okay. If you come up and try and fill in any of the blanks that we've had questions.

First of all, I'm going to give you pictures of what the offensive panels look like from the property line.

Okay. So, and we're going to make these A and B exhibits A and B.

They were in the online. Yes. Well, I was told to bring copies of them. They're already in the record.

So we don't need to make them. Don't label them as new exhibits. They're already in the record. We can look at them. They don't need new numbers is what I'm saying.

Mention their name for the record. Oh, I'm sorry. My name is Lori Willis. I am the owner of 50 Shore Road. I'm also the owner of 52 Shore Road, which is all the adjoining property except for on the McCurdy Road side. So as far as the setbacks go, I own all the property in front and on the side. That 52, you pass first and then you're 50 in the back. So back in 1950, whatever, the gentleman who owned where the Janet Lage and Andy Nixon lived, he separated his property into smaller lots and hence these small lots. That's why they are non-conforming and they're small. At the time, that was quite acceptable and they did it all over. Across the street, there's quite a few of them. Anyway, so the problem I'm having is that back in 21 years ago, My husband and I, we rent 50 Shore. We were between tenants. We went over, we cleaned up the house, we painted, et cetera, et cetera. And we built a deck on the house because we were told that's what originally was supposed to be there. The builder told us, the owner who sold us the property told us that. As soon as it was done, Janet Lage came over to the property, informed me that it was nonconforming, that I was not allowed to do it. but that she wouldn't turn me into the town if I didn't just do what she said. And I said, well, I'm not going to be beholden to Janet Leach. And so I went to the town the next day, apologized, took a picture of the deck, said, I'm sorry, I didn't realize I needed a building permit. And he said, well, you do. So I said, well, what I need to do is just fill out the permit, which I did.

I have a copy of that permit right here. And then at that point,

He came over, he inspected the whole deck, he measured it, he said it was up to code, there was absolutely nothing wrong with it, it was fine, and I never heard from Janet Lage or Randy Nixon again about the deck. Now, there is a fence between the two properties, and the fence, it belongs to Janet Lage and Randy Nixon, and it has deteriorated and become dilapidated. And as a result, There is a huge gap, if I could present these two pictures. There is a huge gap between their property and my chance of property now. And this happened a year ago, March, and I've been waiting for them to fix their fence. They have not done it. So back in November, I sent Janet an email asking her if she was planning on fixing the fence. And if not, I would attend to it. And I never heard back from her. And come spring, My tenants were complaining that they had no privacy, that they were being watched constantly by the neighbors. And they asked me, what could they do? And I said, well, I said, I think you can put up some privacy panels. And that is exactly what they did. They put up three privacy panels. And at that point, I got an email from Janet Lage telling me that it was once again illegal. I wasn't supposed to do it. So I contacted the building inspector or the building inspector. Mark Willen. And I said, took a picture. I sent it to him. I said, do I need a building permit for this? He said, no. And I said, well, it's on a nonconforming lot. And he said, well, you'll have to talk to Eric. So I came in and talked to Eric the next day and he said, you know what? Fill out a building permit. which is incredibly difficult when you don't build anything. It's three lattice panels stuck to a deck, okay? And it's very nicely done. I have two contractors here who can tell you that it was done very well, okay? So at that point, we filled that out, sent it in, and then we're told, no, you need a variance. So then we went through the process of the variance and they said it was fine. And now, I have a lawyer coming after me and saying one of my funny, I still think it's funny.

Wait a minute. You said you needed a variance and they said it was all right. This is what Mr. Knapp told me.

That you did not need the variance. No, he said I did not. After I filled out the building permit, he said, now you need a variance. So we did the variance also. As far as it being in a flood zone, I have been there for four years. Can we stop you there?

Just clarification. You didn't apply for a variant. You applied for a zoning for a different permit.

Yeah, okay. You talked to us. He can't give you a permit without us saying okay.

Okay, so this is where I'm a little confused because I have a 10-year-old computer. I wasn't even able to do this. My tenant had to do it. So I really have no idea. I don't even have a copy of it. Anyway, as far as the flood zone issue, In the 40 years that I have been at 50 Shore Road, it has never flooded. Even when we had an eight-foot flood surge or tidal surge with Superstorm Sandy, that property has never flooded. It's a line on a map. And as far as hurricane winds, I mean, honestly, it's latticework. Wind is going to go through it. In the meantime, she has a fence that would blow down on my property and shutters on her house that would also blow down. A hurricane winds don't stop between my property and her property. Frankly, this all comes down to the fact that she wants to purchase my property because every time she comes at me, that's what's always right afterwards. By the way, I'll buy your house. I'm not selling my house. I've told her time and time again, if I ever decide to sell, I will give her first refusal, but I have no intention of selling. So that's where I am on this.

Thank you. This is exhibit A, though, right? This was not in the... Was this online? I don't think so.

I don't believe you have it. Why don't you mark that as exhibit A?

Yeah.

Yeah. That last photograph would be B.

The last photograph. I don't know that I saw this online. You had not previously submitted that.

I just submitted that to show you why we put the privacy panels.

In a new piece of evidence, we need to mark as it exists.

Everything that's in the folder makes sense.

I think these two. That's just an explanation, but yes, that is what it is. These two are on me.

They're all four different.

I guess I'll have to look. They're all four different pictures, but two were online. I'll just, I'll go with this.

Why don't we keep going and we'll figure it out. Okay.

Okay. Do I ask for a response from either of the parties then?

Yes. They both have a right to respond.

Yeah. So in either order or.

Allow the applicants or the appellants to respond first. Okay.

You know, I just want to, I think a lot of things have been said here and I'm a little struck just by the paradigm that Eric has set up, that the applicant was told, you have to apply for a zoning permit, and then he looked at a previously issued permit, which I think Janet and Randy would say, had they had the means at the time, they would have appealed it, and they just didn't. And The fact that the permit was issued in 2005 doesn't mean that it complied with zoning. There's a permit that was issued. There's no plot plan showing coverage, showing setbacks. There is none of that. And we're not here today to appeal the 2005 permit. I think that we would acknowledge that that should be saved. However, if the deck is non-conforming, it cannot be expanded. and adding two by fours with privacy walls on it, you can call it lattice and it might seem insignificant, but Eric has acknowledged that is an extension and expansion and enlargement of the structure. And the burden is not on the next door neighbor to show that it doesn't comply. The burden is on the applicant to show that it complies. So I've never heard a zoning enforcement officer say, Yes, you have to file for a permit, but no, you don't have to show it complies. It does not make any sense. If it has to have a zoning permit, it's got to show compliance. The application says it was filled out by the property owner. It doesn't say that it was filled out by the tenant. And clearly there's a history here between the parties. And I don't think that that's what's before you folks tonight. I think the question is, Was this permit issued in compliance with the zoning regulations? And we don't know. Eric's basing his decision on an assumption that in 2005, Ann Brown properly issued the permit. And we know that in 2013, Ann Brown issued another permit that was not proper. So it doesn't seem fair, or maybe it wasn't an issuance of a permit. She didn't cause a cease and desist of that structure at the time.

Yeah, I was there for that case.

I understand. So I don't want to.

It was an interesting case. I'll say it that way.

But the court and the board ruled in favor of Ann Brown and the court overturned it. So we have I don't think we can make the assumption that because the deck was issued a permit in 2005 and complied with zoning. I don't see a piece of paper that says that.

I'm going to tell him right now and disagree very slowly. It is a basic principle of administrative law that an unappealed permit is valid. Okay? That's just the law. The permit was issued. It wasn't appealed. It is valid. You can't go back and tell me because you failed to appeal something that there's a question of its validity. It was issued 21 years ago. It was not appealed. It is in effect today. It is a valid permit. And therefore, trying to question by something that happened eight years later, Ann Brown issued a permit you didn't like, great. It was overturned, unimportant to this permit. This permit was issued. It was an appeal period. It wasn't appealed in the appeal period. It's a valid zoning permit. permit under 8.3.F. It's a valid zoning permit. I have no discretion in what to do about that permit. If that permit is valid, then this permit is valid. So I don't understand your interpretation of the law that an unappealed permit somehow has questionable validity. Administrative law on this is absolutely clear. Unappealed permits are valid. They can no longer be contested. Your failure to say, you know, whatever the evidence was or wasn't, it wasn't appealed. It's in effect. It has remained in effect for 21 years. So I guess I don't understand your interpretation of administrative law here. I just don't get it.

My interpretation is that if there was any information before this board to show zoning compliance, we wouldn't be here right now. but there was no information to show zoning compliance in 2005, the permit was issued. But now you've allowed them to expand. And so you are allowing potential expansion of a nonconformity. You're doing it on the assumption that the permit was issued validly. You're acknowledging- That's not an assumption. It was issued, it wasn't appealed. It's a valid permit. The permit was valid, so you are going to allow them to expand it. You're right. And you've acknowledged that this is an increase in the structure. You said that, you asked them to get a zoning permit and you said this is an expansion and we have nothing to show that issue validly or not, that this is not non-conforming. And you're asking the next door neighbors to prove that it's non-conforming instead of asking the applicant to demonstrate that it's conforming.

Okay, we have prima facie evidence that a permit was issued for this footprint, okay?

The permit was issued for, not appealed.

I have evidence that I based my decision on that going vertically up from a validly issued permit is not an expansion of a non-conformal. That's, I mean, pre-inflation, a previous permit was issued, not appealed. It's going vertical from a previously issued permit. If you have contrary evidence, I haven't seen it. So I had evidence on my side, a permit was issued and was not appealed. You have no evidence on your side other than speculation about what might or might not have occurred. I don't understand how speculation is sufficient to overturn a previously valid permit. I just don't see that.

I don't believe that expansion of the deck is not... an increase in the non-conformity. And you've just waived the regulations without the requirements in the application. That's what section 18 of the regulations require. You haven't asked for that.

What evidence are you presenting here that the deck is non-conforming?

This is a very small lot. And regardless of the fact that the neighbor owns the property in front of it, it's a small lot located without any street frontage. So it looks like it's got more coverage than it should have, and it could encroach into setbacks, but we don't have a survey or anything to show that.

And your speculation is that the previous permit shouldn't have been issued. Without a variance at least.

There was no plot plan. There was nothing to show. And again, that was another... You don't know that.

My understanding is that we're not to consider that.

I believe... We're only rolling on this. Eric is correct that today, immediately after the appeal period passed from the original zoning permit, that is a valid permit. Period. It's a valid permit. Regardless of how Marches came down and told her it's a valid permit. It's a valid permit. It's a reliable permit. So much so that the other piece that hasn't been referenced in this express way, but I'll put on the record, is it's a valid permit that can be relied on by the property owner from the perspective of municipal software, such that if Eric were to actually enforce against the lattice, there would be an argument for municipal software based on the validity of the original permit. So That original zoning permit, which is being valid and solid and written in stone, is a variable that we need to contend to. And it is evidence of something. The other piece that I'm not sure whether we're contesting is a building permit to be approved. And there's case law that says, unless you have reason to believe that a municipal official did something incorrect or invalid or acted inappropriately, that it's assume that they're acting appropriately, for a building permit to be approved, the law requires that there is zoning compliance determined for the approval of a building permit.

Could you say that again?

A building permit in general. To get a building permit, the building official needs to, there needs to be compliance essentially confirmed with that building, zoning compliance confirmed. So if the building official doesn't confirm zoning compliance, they cannot grant the building permit.

But he confirmed it with the previous building permit.

We have a building permit. So absent evidence of some malfeasance or something like that, we have a building permit. It would have legally required zoning compliance. I believe Eric's testimony is that there is a zoning permit for the original deck.

All I'm saying is we have the building permit, so I am assuming zoning compliance at that point in time. Because I have no contrary knowledge that somehow there was no checking in with the zoning officer. I presume as a regular course of business for all building permits issued at that point in time that the zoning officer had to check off. And knowing Anne Brown back then, representing Anne Brown back then, I can tell you that's just how things were done then. She didn't sign the building permit application back then.

Okay, next step.

If there's nothing else.

Coming. Coming up.

Randy Nixon, 46, McCurdy Road. Whether the agreement here is with Mr. Knapp's position or not on the deck having a valid permit, the question that really comes home to me is you've got an application requirement to be filled out. Almost nothing in the application is filled out. How do you approve a permit application when none of the information that's required and erroneous, untrue information is included in that application? And you say, that happens all the time? If that happens all the time and you approve it all the time, you shouldn't be in this job, mister. That's my position.

What was the erroneous information?

The information, have a look at the application. It's not filled out.

No, the erroneous information.

There's not much you have to fill out to put some privacy panels. There's not that much information you could put in there. It's a minimal, minimal structure.

You could put the height.

Dimensions aren't there. And when we have a case where things are not done to the the description in the permit, then that people will come back and we will say, all right, you made a mistake here. This is not appropriate what you built. And we get cases like that. So that would be something we could confront. But I don't see any evidence that what they're building there would be out of compliance with what they said they were going to do. It's a minimal sketch, but I think it's vaguely adequate.

You built it first without an application.

That happens. People don't understand everything about zoning compliance as they're moving through their weekly tasks. People come in with stuff like that, and basically our job is to, after the fact, judge whether we would have given permission for that, and if we wouldn't, then we're going to ask them to take it down.

Finally, after the fact that the permit being a problem by itself, then you would never be able to cure the fact that there isn't a permit. So it's a circular argument. So you can't deny a zoning permit because you didn't get it before you did the thing. It's frowned upon. Obviously, you shouldn't do that. But the fact that they didn't get a permit in advance is not a basis to deny the permit. The other piece of it that we just talked about that I want to make sure to get on the record as well is, and you've heard me say this with variance applications, an omission on a variance application by itself is not a basis to deny an application. The question, and you've heard me say before, is, is there enough for you to make the decision that you need to? And Eric has testified that he believes that he had enough information to make the decision. So the absence of answering certain questions by itself is a form over substance situation. You have to make the decision based on the actual What you know, and is there enough to make a decision? So the absence of information by itself, in my opinion, is not enough to deny an application.

Yeah, we've seen that in a lot of cases, yeah.

Well, I think we would say, though, that the absence of information is showing zoning compliance. And so not having a plot plan, you know, not showing what the property looks like. And I think that's significant. The folks who came in before you, I mean, you show a zoning table and that is, I mean, sort of the NANA things are one thing, but the requirement for a plot plan and showing what this property looks like short of this hand-drawn structure and deck seems to me to be a substantive requirement that we can't assume zoning compliance. Yes.

It just says here adding three panels to an existing deck, which is what they did. I don't know any proposed first floor area changes. There were none. All those NAs are appropriate responses.

The first requirement is plot plan showing proposed location required. And this is the plot plan showing the proposed location. This is what's required. That's required. This is it.

We've seen things like that before. It's a pre-existing structure. I mean, I'm not saying the panels, because that's obviously an issue we're covering. But the rest of it, the house and the deck, those are pre-existing structures. And they're saying they're going to put the lattice up around the three sides of the deck. That seems vaguely adequate.

It's a pre-existing non-conforming structure.

Why do you say it's non-conforming?

Because we have no information that shows it's non-conforming.

That doesn't make it non-conforming.

But usually when you file an application, you show compliance.

Well, we have the building permit from 21 years ago that said, all right, that's a good deck. The deck's okay. And all they're doing is putting privacy lattice structures on a deck. I can see why Eric did what he did.

Eric required a zoning permit, but didn't require the information needed for a zoning permit.

I think that's adequate information. Put lattice up against a legally pre-existing deck. You put lattice on the three sides of it. They told us that's what they're doing in this application. Just one side. Just one side, but it had permission for three. Is that true? Three panels. Three panels. Fair enough. I was going to ask about that at one point, but it got passed.

You know, I thought there was a pretty interesting, when the zoning enforcement officer in 2014 sent a letter to the property owner stating that they had to apply for certificate of zoning compliance for all accessory structures located on the property. What I thought was an interesting note, he said, Please understand that zoning permits ensure that residential properties are utilized in a proper way and nuisances, no matter how they are perceived, are kept to a minimum. So I understand that the lattice doesn't seem like a big deal to some of the commissioners, but if it doesn't comply with zoning, if it's an expansion of a nonconformity, you can't prove it.

And you have no evidence to say those things are true. that it's a nonconformity. Why do you say it's an expansion of a nonconformity? There's no evidence in front of us that it is.

Even survey, how could a next door neighbor owner survey their neighbor's property and show concerns? How could the next-door neighbor show noncompliance?

You don't have a good remedy to that, but we do have this. The only evidence we have in front of us is that the deck was given a building permit, and that building permit implies a zoning analysis. And so that's our only evidence whether that's a compliance structure or not. And Legally, 21 years later, it's definitely considered legal structure. So I think we don't have any evidence in front of us that there's something wrong.

You don't have evidence that this is an expansion of that structure. Eric acknowledged that he said it's an enlargement of the structure. And if it's non-conforming, that's prohibited under the regulations. But again, we don't know. We don't have any evidence. No, because the application is incorrect. We'd like to submit some additional...

Yeah.

Oh, speak up. Speak up.

Just want to make sure they've been heard. Yeah, I just was going to suggest, I think this specific discussion has just reverted to a circle. If somebody has new information to add, I'd like to hear it.

Yeah, I mean, Janet Lage.

Janet Lage. And you're

adjoin the property on the side of the fence, the side of the lattice? Is that where your property is?

They're 100 foot window is what, because it's a horseshoe property. I'll show you better. And we're on the side. Do you have a map? I do. Great. Well, here is my view. And I've got different things, flood zone, wetlands. This goes for, this can go with that. And well, you can see on the, let's pass it down then. And my house is here. I didn't know I had to bring pictures of my house. I mean, it is a client stable. Actually, you know what? I'm going to just leave this with you. I'd like to just really, these folks, you say you don't have information. We have information. And the current permit is inaccurate. I think now I know why. Because you didn't fill it out. Someone else filled it. Because you know the size of the deck. So that's, you wanted evidence, Sarah? Yeah. That's incorrect. The deck is not 12 by 12 feet. Okay. There's no information about how tall it is. And we are in the process of engineering a new fence costing almost $40,000 to do that whole length. I'm sorry it's taken so long, but it takes time to redo this. I mean, it's not my responsibility to make sure someone, a neighbor, has privacy. I'm trying to get the privacy by putting a fence. Okay? But I'm sorry it's taking too long, but that's the way it goes. Anyway, this addition to the deck, I can't put a fence, a privacy fence, 10 feet high. That's how tall this is. The panels are eight feet tall to start with, and so it's at least nine feet tall. So you're going to get a permit, right? Yes. I don't need a permit. My fence is going to be six feet tall.

Oh, I thought you said that.

Oh, you see what I mean? That's what I'm referring to. The structure that was added on is now taller than a fence. And Mr. Knapp has made it quite clear to me and us. We've been in communication for almost two months before finally Mr. Knapp asked for, I think, And I haven't seen any paperwork on how you were approached to do this, to get a permit, but it took two months. And I'm going to ask you folks, here are all the emails back and forth. This I want you to do. How do we do this?

Let's go back a second. Yes.

We've got two big folders full of papers. I don't know what to do with them. It's sort of a late onset.

So you can put whatever you want in the record.

Thank you.

But if you do, I want to be careful that we articulate what we're putting in. So just having a folder is quite sufficient. So let's discuss, and I'm not clear as to whether there are multiple folders or just multiple copies of the same folder. So let's go through. Okay. This document was passed over this way. I want to make sure.

No, that's my reference. I will put a packet for you to keep.

I just want to make sure it stays where it belongs. Okay.

Yeah, it was in the sound book. Okay.

Anything that the board sees has to be marked as an exhibit and officially made a part of the record.

I want it part of the record.

So I want to make sure that this is referenced, and I'll hand it to you so you can see what was passed along to the board, so we can articulate it, because we have a recording and all of us in the room know what we're looking at. So can you just describe what this is, and is this the rest of the folder?

Right. You can take the liberty of making the announcement. Exhibit number one. Okay. Do you want me to do that?

We already have some exhibits. So it can't be number one. Did those pictures come from a folder so that we all have that picture? Or is that an addition to the folders?

No, no, it was part of the folder. Part of the folder. Now we're using this one. I was going to be three for you to just be able to pass around.

But this is new to the board tonight.

Yes.

Okay, that's what's important. If any new material is presented tonight, it has to be recorded. in some organized way so we know what was presented and obviously would have to go into the record.

And if they're all in the same order, that would be great.

So can I see the one you're looking at? Make sure that everything is in there. Because that picture was being passed around. Oh, correct. It might have been out of that folder. Okay, that's in here. That's fine.

The manila folder that you have in front of you, is that? That's what we have. Okay.

That's the file that we have.

And this will be different.

The new stuff hasn't been added to this at all yet.

So in that folder.

This was the original stuff.

Yeah, that has the original.

Almost no pictures. There's one little page full of it.

Yeah, it's the pictures that was in the application.

Can you say the original folders? Do you mean the town's original folder?

That's what I think it is. That's what I got in my...

Meaning the town's record is what you have in your hand.

That's what I believe is usually true. That is the record that was transmitted to the ZPA by the ZPA. Okay.

So I want to make sure because I know you passed around some folders, but... Yeah. No. So you're assuming that's your folder, that's the town record.

That's the town record.

So you can go through your folders and if there's anything that you think they don't have that they should, let's talk about it.

Okay. So is everything in that folder what you see on... I only know what... I see online. Yes. So is everything in that folder what you can see online?

Other than what we are presenting.

Materials. Other than what we are presenting. Good. So I have other stuff for that.

Yeah.

All right. So I'm going. Okay. So I'll give you a new folder. So this is. Okay. Yeah. Let me make sure that everything is in it.

Do we need that?

You have this already, so I'm going to take this out. Okay.

Okay. Can we do it and don't take the actual folder?

Yes.

Take the papers.

Absolutely. They'll end up in here. I'm going to make a file here that's going to be transferred into there.

I'm getting rid of the folder. Okay. All right. So here is what a Zoni table template. And just to give you an idea, there is nothing filled out in that.

So this is what we look at every day.

Okay.

So that's, this is not relevant to this thing. It's filled out with, I don't know what problem.

No, no. It's just, it's a question. Yes. It's an example. And the only thing I know about the property is that it's, has 15,000 feet as opposed to 40,000. And I know the minimum square is off because it requires 150 and it only has 100. And it requires no more than 35% wetlands. And we don't know. It's not wetlands. It doesn't require wetlands. No. Yeah, wetlands. how much can be in the wetlands? How much of the land can be wetlands to I assume. Help me out here. I'm not sure. I don't know either. I'm not a zoner. I don't know.

I'm not sure why we're bringing this into the case. It has nothing to do with the less.

It does.

It has nothing to do with the less.

The lot itself has not been used. I'm not going to argue this. I'm just saying this is just what is a zoning table. And just to let you know, I can't tell. if it complies to anything.

So I don't know if it's... You've given us our standard zoning requirements and a table full of question marks, and this is an exhibit. Because we don't know what it is. Okay, that's what it... Should I accept that as an exhibit?

She's offering you to use an exhibit as an exhibit. There you go.

This will be F. Okay. And here we have another point I had about the application was that The photos that are in this folder that the owner put in was sent before it was finished. There wasn't as much lumber holding it together, et cetera. So this is a live, and it was the day it was built, a live photograph. It gives you the time date and where you can see better how it's constructed. It's a structure.

Exhibit G. This is what you're saying is the complete structure.

Okay, so this is just you can do the same with all the forms.

Okay, and then this is exhibit and if you would describe that.

So they're all bound together. You put for the record just how many pages are in exhibit G. One, two, three, four, five pictures.

Okay. So that is my view of the structure.

So this is your view of the structure. Correct. Where was the other fence, the dilapidated fence? Is that short in any of these?

That 300, so I have many, many feet. There's only one section left, and that happens to be because what- And that was something that you, as an owner of the property, had built as a privacy- Right, of the whole line, yes. Okay. Okay.

But there's no additional pictures of that.

No.

It's on my side. Just asking.

I didn't...

It's not... Well, she made the case that they were putting up the screening because the fence between your two properties had... collapsed, and they wanted privacy, so they put up a fence.

It collapsed, and I took it out, but there's one section still there that still remains, but the whole thing is going to be replaced. It has nothing to do with whether they have privacy or not. I can't control that. Anyway, and this is the next alphabet letter. This is from inside my house to let you know I can't escape it right now.

This is two pictures from inside.

Is a paperclip sufficient?

Can I ask you to just, we're getting a lot of feedback from the audience, and everybody can have rights of their opinion, but we're going to pick this stuff up on the recording, and we're going to have a muddled transcript.

Yeah, if we could. Everybody's got to wait their turn for vocalizing, whatever. important issues and you're all here and you're going to all be invited to have conversations to say whatever you feel you need to say but we do have to keep a clean transcript here.

Is the paperclip sufficient to call it one exhibit? Yes.

Great. Okay. And I'd just like to put in the record the reason why I did this is because I was trying to wrap my head around also how in the world someone could get a permit for something when they don't have all the information, how Mr. Knapp could actually give a permit when he didn't know the, did he look at the information? Did he look at anything? So here you go. It is in flood zone. So that is documentation of the zone. It's in a E and I am disagreeing with missing that. And I sent, emails on this, and that will be part of all this. There is a state, I don't know, what do you call the laws for the states? That you have to, in flood zone, you have to have, you're adding now this sail to a structure And it needs a permit. And it needs a building permit specifically from the state of Connecticut because of it. And I sent specific information to them from the state that said, yes, it needs a special permit because it's so high. And still the permit was given. Excuse me? Do you have that correspondence with the state? You're going to get all of my correspondence as an exhibit.

Kip, can I just make sure we're at this high?

This is I, and this is the zones.

Yeah, it looks like it's a printout of the flood zone map where the subject property is located.

Yeah, four pages of printouts.

Two pages that reference the wetlands that it's in. It's supposed to be exhibit.

Okay. You've already got all this stuff down here.

Yeah, but there's those things. Okay.

This isn't mine, is it? Well, I do the same, so... I'm getting confused, too, myself. So, and now to reference, I don't know why we're dealing with the debt. I know this much. It's pre-existing now. It's going to stay that way. No one here, my husband and I, never ask for the debt to go away now.

You have no right to ask.

No, I don't have any right to ask that. But I do have a right to say. You know that. I mean, we know that.

Just an agreement on it.

That's wonderful. But because of the emphasis Mr. Knapp was making all the time that, oh, it was legal when they did it or whatever, it was faulty. It didn't have all of the sign-offs from health and whatever at the time. So that has nothing to do. I don't want it to go away. It's just so that you know there's always been Because of not making sure everyone fills everything out in an application, things tumble and grow into nonconformities. I'm asking a question.

Is your objection to this lattice because you believe it's a threat to health and safety? Well, especially with the small animals.

Is that your primary? No, the primary thing is because I do everything to the code and I get permits and everything else. And this thing, put a fence up there.

Put it six foot tall. Okay. Your objection is you think they're flouting the regulation? Yes. And it has nothing to do with the appearance.

Oh, well, the appearance isn't great either, but no, it's because they're not, I can't, what I think is lovely isn't what anyone else would think it was. I get that. I can't, I'm not in the historical district, even though I have a historical home. that's when they can decide, no, you can't have a pink door. You see what I mean? We're not arguing that at all.

Could I get asked for a response on whether this we should take as evidence that these permits were not achieved back when the deck went on? No, I'm not saying that it was never achieved.

It's just saying it was an uncompleted application. Someone else can make that judgment, not me. It's just so that you know there's a history of everything that has been built on that. I've lived in my house for 44 years. So I've seen everything that's going on. And there's a history that there's a reason why someone doesn't want to fill an application and put everything on it. And is it so that you don't know what's in it? I don't know. But anyway, that's why that's in here. Okay, and just to reference, there was a building permit 5-4, and you'll be able to, this is another exhibit that was archived by, I believe it was Mr. Knapp stopped it, and then Mr. Whalen archived it. Once the proper zoning permit was applied for it. So, and I don't know now after, because there is, the state of Connecticut has a code that you have to get a building permit for that sale of some building. So.

So this board can't make a decision about whether they need a building permit or not.

Okay.

So if you disagree with the building official's opinion that there isn't a need for a building permit, that's a separate thing.

Okay.

They can only remove Eric's decision.

Okay, and fine. But I want that to be on record. That's another example that the property owner, when she fills out an application, leaves things out, doesn't put everything in, and I'm going to build it myself. It's written right on that building permit, and it's already been built. In her application, see right there? You're allowed to build things yourself. It was already built. We know that. It was built by... the person that lives in the house, not her. I believe he rents the property. It was built by the tenant, not by her. That's just an example. Is there anything you see yellow on that? Okay.

So can I just clarify? I think we missed the enumeration of the last one.

Oh, sorry. I didn't say it out loud.

This is L. I think that was in building permit.

Yes. Yes. It's archived. Right. It was the application that was made first. And then someone in town told Lori that she needed to do the zoning compliance first. And on the zoning compliance permit, it does reference it's all set to go to get to go to buildings. So does it now need to go to building? I don't know. I can't answer that. And you already have... That's already in there. That's already in there. So I just hear... Because it's... Did you want to submit your emails? Yes. Let's see. That... The board will have to just... I mean, I just want that on record. How do they know what all this stuff... Yes, there we go. Let me just see if I can just make this.

They're both together.

These are, Attorney Danielle Berkury, these are just correspondence between Janet and Eric regarding the... And my husband, Talia Sumner.

So for two months, almost every other day, I would respectfully ask Mr. Knapp Please tell me why you believe adding the structure. I think we have that answer.

Yes, now I think.

No, no. I mean, the permit was valid because it wasn't. But that's the law. We're a legal board. We're not just making our opinion. We have to follow law. And that's what we were trying to wrap our heads around was, okay, but we're not saying that the debt, Because bringing that up, let's forget about whether the debt was legal or not. The point is, it's been enlarged. And the property is nonconforming. The house is nonconforming. It doesn't even have a minimum square. Everything about that property is nonconforming. So now they have added to the bulk and everything. Because this thing is 12 feet long and 8 feet tall. and whatever thickness is with the framing. So it's adding at least 990 something square feet and every foot counts in something that small. How do you get that? Are you counting the vertical square feet? Yeah, it's a wall. It's a wall. So the math is it's eight foot tall attached to depth, but the panels themselves, the lattice panels, frame lattice panels, is eight feet tall and 12 feet wide. So that's a structure. And now you're adding more bulk to a non-conforming building. So let's forget about the deck. Where did you get the non-conforming? Yeah, we can't. That's what we can't. Oh, well, it's on a lot that isn't conforming.

It's like people have the structure non-conforming.

Well, we would know for sure if there was a zoning table, so we'd know about all of the percentages, if the bulk and the ground coverage and all that was in existence, we would know that. But it just seems obvious that something that's so small compared to what you need, so the nonconformity of the size of the property We've covered that, so we don't have to do that. Anyway...

I think Janet wanted to submit the emails.

Yes. This would give you folks... Can we make that one exhibit of many pages?

This will be Exhibit Emma.

That will give you where we were just trying to understand and offering information, especially what this is. Because now, I didn't really remember this from after the boat garage with wheels. I thought this was just basically, I didn't really probably read it correctly. Because I thought it was, okay, they've got to get rid of the boat garage because of the lawsuit. That had to go away. But when this all... Well, years later, I'm digging everything up, but here we go again. Because Mr. Knapp had said, oh, it's not a fence. So they don't need, it can be tall. I consider it a wall and it can be 30 feet tall. And I'm thinking, oh no, this is going to be like the magic wheels again. So that's why I went looking for all my information. And I realized that there's other structures on this property. that are performing too, that are white. But that's another issue you could come to us. Well, because there is an order that doesn't sunset, that order doesn't go away. It never was. I looked in every part of this town hall to try and get information if that was satisfied.

If they haven't done that accessory building thing,

approval whatever checking yes that would be another issue right no no is that no no lawyer to our lawyer another accessory structure they have an approved deck yes and and daniel will help me on this approved deck because it still has this order which was no one can you can't get a permit until this is satisfied they're both there over the summer they put a little canopy over it And it, because it had wheels, but it was considered permanent, even though it had wheels, we had to get, they had to get rid of it. Okay. That's what the court decided. Okay. We had decided at a board that it was temporary because it was on wheels and they could move it and they did move it. But the court found that they had to remove it. So it's removed. Okay. The deck is legal. The deck is legal. Eric had that to look at when he was deciding, all right, they want to put a privacy screening, attach it vertically to the deck. He had no reason to just consider the deck non-compliant. So he said, all right, what you're adding does not require any kind of variance. So I'm saying yes to it. That's the way I see it.

Okay, but I'm not done yet. So could you not give me your opinion yet?

No, I'm explaining to you facts that I know about this case.

Okay, so anyway, I'm just bringing the point to you about this is... There's an outstanding order on the property to have a zoning order.

And because it's not- Well, how would you report that? Is it worded? What does it say? What's your outstanding order said?

What she's referring to is after- They have to remove the boat.

But it's not- The boat's gone for 12 years. Well, the boat's there, but- You're bringing it up. I'm bringing it up.

You just did. You just did.

That's not-

keep this to the board between, okay, Ms. Lage and the board. That's all we have to do, right? You just need to get to the end of Ms. Lage's presentation and then we'll go from here.

It's down here. Yeah, just a minute.

Yep.

Wait, this is a different, no, this is a different letter.

That's a different letter. Oh, sorry, thank you. I thought I was losing my mind at this point. Okay. So this was in December of 2014 when Keith Rosenfeld said that the Beau Farage had to be removed. Because of the court's decision, you are hereby ordered to obtain a necessary certificate of zoning compliance for the identified accessory boat garage, as well as any other accessory structures now located on the property. So she's referring to the order from the zoning enforcement officer to get a certificate of zoning compliance for all accessory structures on the building, down the property, which did not happen. And that did not happen. So that's what she's referring to. So you have... And that's at the end of our initial... That's not an accessory structure. No, but there are... There are other accessory structures. So I think Janet's point... Are they relevant to this case? What we're trying... Okay.

It's got to be the board.

We can't have the audience jumping in. We just can't. Okay? I know I'm a party in this case. I shouldn't be shushing you, but... Really, we've got to do this right. Okay. Thank you.

Okay. We're just showing noncompliance in 2014. There was the, you know, the boat garage was noncompliant. There was an order from the zoning enforcement officer in 2014, and now we have another after-the-fact permit, and we question zoning compliance. So I think that's Janet's point.

And also, I'd like to ask this board, Obviously, I'm concerned now that the owner did not file the application. And it's checked off that she signed it. And you know how we feel that there's inaccuracies in it. And especially I'll build it myself or whatever. There's a message at the bottom of that application that says if anything is found not to be truthful or whatever, it's reversed.

So what evidence do you have that there's an untruth in the application?

Well, first of all, the current application, the deck is not 12 by 12. A. She didn't do the application. How did you get the measurements of the deck? from the original permit. And the tax record gives you the dimensions of the deck.

If that is the case, then there's an error in the application that doesn't void it.

Well, it's an error. Okay. But the same person supposedly made a building permit in the same day with the correct measurements. Just saying, put that to be on record. And also because of this, and Mr. Knapp should know this on regulations, if there's an outstanding order that hasn't been fulfilled, how can that owner can get another permit when there's still an outstanding order that hasn't been fulfilled?

Are you asking?

Yeah, I am.

They're unrelated. It doesn't matter. Of course they're unrelated. No, of course it's not related. It's unrelated. At this point, if there was an accessory structure there in 2012, under 813A, it gets to stay there. There's nothing I can do about it. So I can't take any enforcement action against an accessory structure that's been there for 12 years. If someone comes in 12 years later and submits a new zoning permit application, I evaluate the new zoning permit application based on the conditions I have in front of me. The conditions here, as we've gone through ad nauseum, were that the prior deck was okay, the new expansion's okay. Nothing has changed.

Right. I believe, what about Section 21? I think it references things like that.

Okay, we're going back to Connecticut General Stations.

Eric, I'm going to stop you. We're here for an appeal of Eric's decision. You are welcome to talk to your zoning official at another time about any other opinions you'd like him to make. But for today, we're only here on the decision that's made to approve the zoning permit. So, you're welcome to have those conversations, but for this board, it's a volunteer board that's hearing this, it needs to be considered in a conversation. Well, that's a conversation.

Okay. Yeah. All right. So anyway, there are several structures on that property, non-conforming and without permit. And they didn't get zoning compliance for those structures. And to my understanding, that does not go away. That doesn't disappear after three years. Like if you built something and didn't get a permit, didn't get caught, nothing you can do about it. Nothing I can do about that deck. I know that. My husband and I know that. But I do know it's a non-conforming lot. It doesn't have the square. And that's easy because we all know what the width of the property is. A 100 by 150. And you need 150 by 150.

We've been over this. It's not relevant to this application. Can we just narrow in on what is relevant to this application?

Well, I believe it's relevant because it's non-conforming.

The lot has not change size. It will not change size no matter what happens tonight. But the building is changing size.

So that's what our concern is. The building is changing size.

But the building is not the lot. And you're making claims about the lot that have nothing to do with what I read.

We'll end that conversation and just have the emails are already in there. And I really would want this board to really go through all of those emails. I realize it probably won't be tonight, but it's going to be in the record. So that's all I have to say. What about you, Andy?

I think we've covered it. May I say just one?

Certainly come up and make sure your name's on the record.

Repeat your name, who you are. I'm Lori Willis. I'm the owner of 50 Shore Road. This zoning thing you keep talking about that when the boat house came down, I was supposed to have all this stuff. I never received that. I have no idea what you're talking about. I did have work done on 50 Shore Road and I pulled every permit I was supposed to have at the time. I had the house resided, all that. So I am not some scofflaw that does not know to pull permits. But honestly, I'm not building the Taj Mahal. I'm not putting a second floor on my house. All I did was tell my tenant he could put up three lattice panels for privacy. As far as filling out the permits, I have a 10-year-old computer. My tenant came to my house. The two of us worked on it together. I could not submit it. My computer is too old. OK, I'm not computer literate. I'm 67 years old. So on top of that, we then submitted it. I was there. He did it at my house on his laptop. He had to do it with his email because it wouldn't go through with mine. And then when he did the second one, it was the same thing. This is why he did the applications and I did not. I apologize if I am not computer literate and I don't have a really expensive computer. I don't need one. I live on a farm for Christ's sake. I garden, I have dogs. So anyway, once again, I pull permits when I do work that I think everybody on the board would consider permit ready, permit necessary. But for things like this, no. And she's talking about this other structure, which quite honestly was the two dugouts from the old lime little league that was on the property. And Jimmy Noyes placed them together and made a little shed. And it was there when I bought the house in 1996. And that's the only other structure on the property. So I'm really sorry. This is what, an hour and a half of our lives. We won't get back. But I just wanted you to know I don't mean to be ignorant with these things. I am not trying to make anybody mad. I'm just trying to put up a couple of pieces of lattice on a deck. Okay. So just letting it all, letting you all know that, that I'm not doing anything nefarious here. Right? Okay. Thanks.

I asked for comments from the audience. You've had a lot of, anybody wants to come up and make any statements?

Okay. So now... Coming up? Are you coming up? Coming up?

Yes. Okay. I'm asking for some advice about what our next procedural move would be.

It is an appeal, so the appellant gets the last word to the extent they have anything else they want to say.

Yep.

I mean, I think we've, you know, we've put our position in the record that, you know, we believe that zoning... Permit application should show zoning compliance. We don't think that the previously issued 2005 building permit allows what looks like an expansion of non-conformity. And I believe that, you know, we've submitted all the evidence that we have to that.

Very important. It was public character.

Not to know. Well, just we've submitted significant evidence into the record, you know, in addition to what was previously submitted. So if the board would like to review that and withhold its judgment until you've had the opportunity to go through all those communications, we think that would be appropriate.

Would you recommend that we follow that advice or do you think it's up to us?

It's up to you to determine. It's up to you to determine. There was an articulation as to what those emails were about. Right. So to the extent that is something that you believe is material or necessary for you to review, you can have it continuous, or you can move to continue to do it.

But I think that it would be fair to state on the record, if we haven't reviewed them, that you're making the decision without... We've spent an hour and a half on a very small issue.

It's a small issue, and we've listened very patiently, spreading ourselves across massive amounts of information. The conversations you two had across the email from each other I'm not sure how they would materially affect my decision.

Well, you wouldn't know unless you read them. And I understand that it seems like a small matter to the board, but I'm not sure that it's fair to characterize it that way. It's an appeal that's been brought before you. There's evidence before you. Eric and I disagree about the expansion of nonconformity. We disagree about whose burden of proof it is to show compliance. And so while the... issue might seem small to you. It might seem small to the neighbor. It does not seem small to the appellate.

I'm offended that you characterize it that way. I'm not saying it's a small thing to me. It matters a lot.

You just said it was a small matter. You just said that.

It is a small matter. You can't.

Are you saying there is material evidence in the email that has not been presented?

If it's material, it would be up to the board to decide.

I think there was a lot of... Well, you know your case. Right. Do you have something key that we should have heard that we haven't heard that's in that email that we got to read?

Well, Eric did say in the email that if she applied for a zoning permit, he was going to issue the permit before the application had been filed. And I do think that's significant. And there is considerable back and forth on that point. Whether or not you folks think that's material, I... Not one to say, but I thought it was significant enough to put into the record before the board. And I apologize to the chair. I believe the chair said it was a small matter. So that's why I was characterizing that.

The structure. We do a lot of zoning. That is probably the smallest structure we've ever had to make a decision on this year. I'm not saying it's trivial. I'm not trivializing your anguish over the issue. I understand it's real.

Thank you. I would really like you to go through those emails.

So there's been a request made. That doesn't mean you need to continue it, okay? It's up to you to determine whether or not you want to continue it. I think your point is fair. I don't think it's fair to suggest that you can hand the board a ream of paper and say, look through it to see what's material. It's up to you. Right. If there are things that are in there that are material, then I do think you should point them out, and then they consider it. I'm just responding to your counsel's articulation, okay? So they're not going to state on the record that they haven't reviewed things. You've articulated various things, and you've shown documents and proofs and so forth, and we've obviously entertained all of the exhibits coming in and so forth. So the emails are in. It's up to you to articulate what's in those emails and what you believe is in there, why they're relevant and so on and so forth. They heard that. And I appreciate that there may have been a dissatisfaction with the way that Eric handled the situation and that you're now here today just hearing his explanation. Fair. Understood. That's fair. They're not Eric's boss. They can't scold him for any kind of bad bedside manner, even assuming that that was the case. all that they can do is do an interpretation as if they were eric and determine whether or not that permit should be granted regardless of whether he was a gentleman or the alternative to a gentleman so you know i appreciate your frustration and you're welcome to put things on the record but i just want to make sure that you understand what they're deciding they need to be looking at the evidence that's material to whether or not the zoning permit should have been granted um So that's really, they don't have any problem with that.

And I don't think that we're submitting it to say that Eric was not a gentleman.

Yeah, and I wasn't implying that he worked, but it sounds to me like it was my understanding of what you're putting into the emails, and please correct me if I'm wrong, is that it was communication prior to his decision. No, he decided right away. Or emails about why he made the decision.

No, I think some of them do predate the decision because there wasn't an application that was pending. And so it was, if they apply for a permit, I'm going to grant before the permit was applied for.

So no information.

And truthfully, I don't think our intention to us, zoning compliance and an applicant submitting zoning compliance seems pretty straightforward to us. I mean, to Randy's point, you know, just to follow the rules, to follow the application, to have a plan. So I certainly did not anticipate being here for as long as we are. I didn't anticipate the temperature in the room to be what it is. And so it was not our intention initially to put all of the emails into the rep. And so that's why we've done it this way. And so if the board wants to go through them, if the board feels that we've explained it, that's the board's decision.

For point of information, it's 50 pages.

If I may just interject here, having previously been involved in this case, there is an appellate court case called Hescoff v. Stoning Board of Appeals. It involves whether anything the ZTO says prior to an application match. And the appellate court held, or by objection, I was representing the person who got overruled here, that anything that was said by the zoning enforcement officer in Stonington to my client prior to an application being filed didn't count, didn't matter. The only thing that mattered for purposes of a ZBA decision was what, the decision was and the evidence supporting that decision. So I would respectfully say that this 50 pages of evidence is completely irrelevant to the decision you need to make tonight, which is, is this permit validly granted? And that narrows it down as much as I can narrow it down. You have the evidence, you have heard a lot of testimony, but I think you have enough to make your decision.

I would just add for the record, Eric hasn't gone through the 15 pages, so he can, you know, I'm not sure it's fair for him to testify as to what they are.

Well, but I believe that you're articulating their emails with Eric. To the extent he would like to point anything out on them, he can do that. I'm just saying that sitting here right now, he has not gone through the 15 pages. Who would like to go through the pages? I really would not.

Honestly, I believe the ZBA has enough material and enough information to make its decision tonight based on what it is in front. I really don't think extending this any further will have any meaningful impact on where the ZBA needs to go.

So you have the option to go forward. You have the option to continue. You also have the option to take a brief recess and look through the emails to the extent there's anything that you want to look at. to make the decision.

How many people feel like they would need to look at the emails to feel confident about your decision?

No.

Okay. I think we're unanimous about that. It doesn't seem like we have been given inadequate information. I think what Eric's purporting as case law here, that the decision is what matters, not the communications you guys had along the way that might or might not have been frustrating. And I mean, honestly, if I like to exaggerate things to think of my way through it. If that was a thousand pages of email, you can't force us to do that. Sorry.

Well, that's why I asked.

Yeah. Yeah. And I'm not, I'm not, I'm not saying you're being a pest by doing that. You're doing what you're trying to do legally. You're trying to have things turn out the way you would like them to turn out. And that's what you're supposed to do in this room. Um, so I guess we're going to have a, uh, Motion to close the public hearing on this. Is that what we do next?

If someone makes a motion to close, to continue, whatever the preference is.

What would we prefer? I move we close the public hearing. Okay. Seconded. Second. Okay. All those in favor? Aye. Opposed? Abstain? No. Unanimous. We'll close the public hearing. So now it's just our legal counsel and the voting members will have a conversation.

Can I just request a very brief bio break?

Yeah, bio break. Bathroom break. Anybody that needs to take a walk around.

At 8.49 p.m. Can I leave?

Oh, yeah. You can't add another sentence anyway, so you get the Public hearings closed. You can stay. You're more than welcome to stay and hear what happens, but you're more than welcome to leave.

Just to be clear, because I'm according to this appeal, I can no longer speak either.

Yeah, yeah. I got you. Right. You're done, too.

But you're going to sit there, huh? Well, I'm kidding. I'm kidding. We're in recess. I'm recessed.

There's more machinism I have to go through.

So I have to stay around.

How are you doing with this part?

Best I can tell, there's not much I need to say.

Yeah, not much to say.

Yeah. I'll just summarize the... I'll summarize the discussion with it at a higher level.

Yeah.

Yeah, I don't think. I just looked at it quickly. Is that the.

Is it what Nancy? Yeah.

Oh, is he seeing survival?

Are you doing okay? Yeah. Yes, absolutely.

Okay, if she doesn't have anything else that we need to fill out, it's just the motion and then the decision. Okay.

Okay, cool.

in her script this is she's added down which doesn't usually show them it was made too yeah so i'll just i'll give you a minute

We're all that good to go? Yes.

Okay. So if we're resuming the meeting at 8.53, I've got. Yes. Okay. So closed public hearing. The best thing to do is to have people just start sharing their ideas. I'd like that if we could.