Zoning Board of Review Continued Petitions from June 29. 2021:

Petition of: Cenz Corporation (owner) and GD Middletown West Main I, LLC (applicant) for a Variance from Sections 725(B)(2) & (3) to allow a ground mounted solar voltaic system with less than the required visual screening and electrical lines and connections above ground. Said real estate is located at 0 West Main Road and further identified as lot 9A on tax assessor's plat 111.

Continued from: 7/28/2020, 8/25/2020, 9/22/2020, 11/10/2020, 11/24/2020, 1/26/2021, 2/23/2021, 3/23/2021, 06/29/2021, 08/24/2021, 09/28/2021, 10/26/21, 11/23/21, 01/25/2022. Continued, February 23d meeting.

Petition of: Cenz Corporation (owner) and GD Middletown West Main I, LLC (applicant) for a Special Use Permit and Development Plan Review from Section 602, 725(A) (1), 725(B) (2) (3), 1102 (A) (3) & 1106 to allow a ground mounted solar voltaic system in Watershed Protection District Zone I. Said real estate is located at 0 West Main Road and further identified as lot 9A on tax assessor's plat 111.

Continued from: 7/28/2020, 8/25/2020, 9/22/2020, 11/10/2020, 11/24/2020, 1/26/2021, 2/23/2021, 3/23/2021, 06/29/2021, 08/24/2021, 09/28/2021, 10/26/21, 11/23/21, 01/25/2022. Continued, February 23d meeting.

Petition of: Benjamin J. Contessa (owner) for a Special Use from sections 602 to allow use of existing nonconforming dwelling structure to continue as a two-family dwelling. Said real estate is located at 183 Wolcott Avenue and further identified as lot 282 & 283 on tax assessor's plat 115 SE.

Continued from: 06/29/2021, 08/24/2021, 09/28/2021, 10/26/2021, 11/23/21, 01/25/2022. Continued, February 23d meeting.

Petition of: Benjamin J. Contessa (owner) for a Variance from sections 603 & 701 to allow subdivision of lot 282 and 283 resulting in an undeveloped lot 282 with frontage of 61.24' where 100' is required and lot 283 maintaining the existing two-family dwelling with a right-side yard setback of 2.3' where 20' is required, front yard setback of 7.4' where 25' is required. Lot area is 10,960 square feet where 15,000 square feet is required and frontage of 80.54' where 120' is required. Said real estate is located at 183 Wolcott Avenue and further identified as lot 282 & 283 on tax assessor's plat 115 SE.

Continued from: 06/29/2021, 08/24/2021, 09/28/2021, 10/26/2021, 11/23/21, 01/25/2022. Continued, February 23d meeting.

Petition of: Newport National Real Estate, LLC (owners) by their attorney Robert M. Silva, Esq. for a variance from section 603 to allow the construction of a clubhouse pursuant to plans prepared by DiPrete Engineering and Cordtsen Design Architecture (filed previously) with a main roofline of 35' and a clocktower element of 40' 8" where the maximum height of 30' is allowed. Said real estate is located at 425 Mitchell's Lane and further identified as lot 29 on tax assessor's plat 124.

Continued from: 04/27/2021, 06/29/2021, 08/24/2021, 09/28/2021, 10/26/21, 11/23/21, 01/25/2022. Continued, February 23d meeting.

New Petitions:

Petition of: Kevin Gross (Owner) and Jeffrey Moniz (Applicant) for a Variance from section 603 to permit a garage extension to accommodate two cars with a side yard setback of 5'8" where 15' is required. Said real estate is located at 40 Willow Avenue and further identified as lot 6 on tax assessor's plat 108. The petition of Kevin Gross (Owner) and Jeffrey Moniz (Applicant) for a Variance from Section 603 to allow for the modification of their single car garage to become a two-car garage with a 5' 8" eastern setback (where 15' feet is required) Owner Kevin Gross, having been duly sworn, testified as follows: the purpose of the application is to expand the existing single car garage into a two-car garage at the same time as he is conducting interior renovations to accommodate his growing family. He further testified that due to the location of the current garage, an expansion necessitates development over the side yard setback. Owner also testified that the additional garage space would allow him to enlarge the size of his front yard as he would be able replace a paved area in the front of his home, which he currently uses for parking, with grass. No member of the public spoke for or against the Petition. After closing the hearing on the Petition and based on the testimony and evidence presented, the Board made the following findings:

1.                        That the Lot is unique in its current configuration, having pavement in the front yard for additional parking;

2.                        That Petitioner's hardship is not the result of any prior action of Petitioner,

3.                        That the Petition is primarily motivated to accommodate Petitioner's growing family;

4.                        That the relief requested is the least relief necessary for the full enjoyment of the permitted use of having a two car garage; and

5.                        That the granting of this accommodation will not alter the general character of the surrounding area.

A motion was made by Eric Kirton and seconded, by Stephen Huttler. The Board voted 5-0 to grant the variance.

Petition of: M. Dehutten Czapski Macomber & D. N. Macomber (Owners) for a Variance from section 603 & 803 to construct a 16' x 38' North side addition to a non-conforming dwelling resulting in 18'. 1" West side yard where 30' is required; and 16.48% lot coverage where 15% is allowed. Said real estate is located at 1276 Green End Avenue and further identified as lot 45 on tax assessor's plat 125. The Petition of M. Dehutten Czapski Macomber & D. N. Macomber (Owners) for a Variance from Section 603 and a Special use permit pursuant to Section 803 to allow for the construction of a 16' x 38' North side addition to a non-conforming dwelling resulting in an 18' 1" West side yard setback (where 30' is required) and 16.48% lot coverage (where 15% is permitted). Owner M. Dehutten Czapski Macomber testified as follows: the purpose of the proposed addition is to create an open plan layout on the first floor of the home, increase the size of the bedrooms and add a laundry room to the second floor, and to alter the staircase to conform with Town Code. She further testified that the original plumbing of the home needs replacing, and it is therefore logical to undertake this addition at this time. M. Dehutten Czapski Macomber also testified that abutting property owners do not have objections to their plans. No member of the public spoke for or against the Petition. After closing the hearing on the Petition and based on the testimony and evidence presented, the Board made the following findings:

1.        That the lot is unique in that the property is located on a hill and given the original placement of the home, the only reasonable place for the addition is within the setback;

2.        That the hardship Petitioners face was not created by anything Petitioners had done in the past;

3.        That the motivation of the addition is to update the home to accommodate modern living;

4.        That the relief requested is the least relief necessary in order to accommodate the addition; and

5.        That the granting of this accommodation will not alter the general character of the surrounding area.

A motion was made by Eric Kirton and seconded by Thomas Heaney to approve the petition. The Board voted 5-0 to grant the Variance and Special use permits. The Board considered the Petition for Variance and Special Use Permits on one vote. The Board recognizes that Special Use Permits and Variances generally require separate votes. Nonetheless, it was clear from the record that the additional Special Use Permit would not result in a significant diminution of property values; would not create a nuisance; would be compatible with the Comprehensive Plan; would not be detrimental to the use of the surrounding properties; and would not be inimical to the public health, safety, or welfare. The Board adopted those additional findings with the same 5-0 vote.

Petition of: Diane L. Difazio & Edward A. Case (Owners) Gerald Vento (Applicant) for a Variance from section 603 to allow the expansion and redevelopment of an existing two-family dwelling with a front yard setback on Stimpson Street of 4'.7" where 25' is required; and a side yard setback of 4'.7" where 20' is required. Said real estate is located at 2 Stimpson Street and further identified as lot 61 on tax assessor's plat 116 SE. Continued from: 01/25/2022. Continued, February 23d meeting.

Petition of: David Green (Owner) Tommy Nasser (Applicant) for a Variance from section 603 & 803 to connect garage to existing dwelling with less than 1' setback where 15' is required. Said real estate is located at 25 Brookdale Road and further identified as lot 99 on tax assessor's plat 107 SE. The petition of David Green (Owner) and Tommy Nasser (Applicant) for a Variance from Section 603 and a Special Use Permit pursuant to Section 803 to connect a garage to the existing dwelling, said garage having a 1' setback (where 15' is required). Applicant Tommy Nasser, having been duly sworn, testified as follows: that the purpose of the application is to connect the existing garage, which is located 1' from the property line, to the existing dwelling unit, which is located entirely within the appropriate setbacks. No member of the public spoke for or against the Petition. After closing the hearing on the Petition and based on the testimony and evidence presented, the Board made the following findings:

1.                     That the Lot is unique in that it is a long and narrow Lot;

2.                     That the hardship Petitioner faces is not the result of any past action of Petitioner;

3.                     That the motivation for the Petitioner is to increase the functionality of the home;

4.                     That the relief requested is the least relief necessary for the full enjoyment of the permitted use of having a connected garage and dwelling; and

5.                     That the granting of this accommodation will not alter the general character of the surrounding area.

A motion was made by Thomas Silveira and seconded by Eric Kirton. The board voted 5-0 to grant the Variance and Special Use Permits. The Board considered the Petition for Variance and Special Use Permits on one vote. The Board recognizes that Special Use Permits and Variances generally require separate votes. Nonetheless, it was clear from the record that the additional Special Use Petition would not result in a significant diminution of property values; would not create a nuisance; would be compatible with the Comprehensive Plan; would not be detrimental to the use of the surrounding properties; and would not be inimical to the public health, safety, or welfare. The Board adopted those additional findings with the same 5-0 vote.

Petition of: William J. & Elizabeth M. Gill (Owners) and their attorney David P. Martland, Esq. for a Special Use from section 803(G) to replace existing 1,120' legal nonconforming barn/garage with a proposed 24' x 60' (1,440') barn/garage for use with the existing landscaping business pursuant to plans filed with said petition. Said real estate is located at 1032 East Main Road and further identified as lot 4 on tax assessor's plat 118. The petition of William J. & Elizabeth M. Gill (Owners) and their attorney David P. Martland, Esq. for a Special Use from section 803(G) to replace existing 1,120' legal nonconforming barn/garage with a proposed 24' x 60' (1,440') barn/garage for use with the existing landscaping business pursuant to plans filed with said petition. Mr. Martland spoke on behalf of the owners and testified as follows: the Gill's are going to demolish the existing barn and replace it with a new barn. The Gill's plan to continue with its current use, storage of landscaping vehicles and equipment. This is a barn, with electricity only; it will not be used as living space. No member of the public spoke for or against the Petition. A motion was made by Thomas Heaney and seconded by Thomas Silveira. After closing the hearing on the Petition and based on the testimony and evidence presented, the Board made the following findings: the special use would not result in a significant diminution of property values; would not create a nuisance; would be compatible with the Comprehensive Plan; would not be detrimental to the use of the surrounding properties; and would not be inimical to the public health, safety, or welfare. The Special Use Permit was approved 5-0.

Petition of: William J. & Elizabeth M. Gill (Owners) and their attorney David P. Martland, Esq. for a Variance from section 603 to allow for the replacement and expansion of the existing barn/garage with a front yard setback of 22.4' where 40' is required and a side yard setback of 5' where 20' feet is required. Said real estate is located at 1032 East Main Road and further identified as lot 4 on tax assessor's plat 118. The petition of William J. & Elizabeth M. Gill (Owners) and their attorney David P. Martland, Esq. for a Special Use from section 803(G) to replace existing 1,120' legal nonconforming barn/garage with a proposed 24' x 60' (1,440') barn/garage for use with the existing landscaping business pursuant to plans filed with said petition. Mr. Martland spoke on behalf of the owners and testified as follows: the Gill's are going to demolish the existing barn and replace it with a new barn. The Gill's plan to continue with its current use, storage of landscaping vehicles and equipment. This is a barn, with electricity only, it will not be used as living space. No member of the public spoke for or against the Petition. A motion was made by Eric Kirton and seconded by Thomas Silveira. After closing the hearing on the Petition and based on the testimony and evidence presented, the Board made the following findings:

1.         That the Lot is unique in that it is a long and narrow Lot;

2.         That the hardship Petitioner faces is not the result of any past action of Petitioner;

3.         That the motivation for the Petitioner is to increase the functionality of the home;

4.         That the relief requested is the least relief necessary for the full enjoyment of the permitted use of having a connected garage and dwelling; and

5.         That the granting of this accommodation will not alter the general character of the surrounding area.

The Variance Permit was approved 5-0.

Petition of: Kendall Tucker Holmes (Owners) and their attorney David P. Martland, Esq. for a Special Use from section 602 to construct a two-family dwelling pursuant to plans filed with said petition. Said real estate is located at Wolcott & Briarwood and further identified as lot 52 on tax assessor's plat 116 NE. The petition of Kendall Tucker Holmes (Owners) and their attorney David P. Martland, Esq. for a Special Use from section 602 to construct a two-family dwelling pursuant to plans filed with said petition. Mr. Martland had the owner Kendall Tucker Holmes testify as follows: the purpose of the proposed petition is to construct a two-family dwelling for Mr. Holmes and his in-laws to reside. The real estate is currently vacant. A two-family dwelling requires at least 15,000 sq. ft. the lot has 18,500 sq. ft. A number of neighbors spoke against the Petition. Their primary objection was due to the concern over the property becoming a rental unit. Mr. Holmes assured the neighbor the two-family home was for him and that he would not use it as a rental. In addition, they voiced concern over the size of the dwelling. The Board pointed out to the neighbors that M. Holmes was building within his allotted footprint and actually could build a larger structure without any variance required. A motion was made by Thomas Heaney and seconded by Eric Kirton. The Board found the special use would not result in a significant diminution of property values; would not create a nuisance; would be compatible with the Comprehensive Plan; would not be detrimental to the use of the surrounding properties; and would not be inimical to the public health, safety, or welfare. The Special Use Permit was approved 5-0.

Petition of: Christopher Deperro (Owner) for a Variance from section 603 to construct a single-family dwelling located 5' from the Western property line where 25' is required; and 5' from the Eastern property line where 30' is required. Resulting in 28.8% lot coverage where 25% is required. Said real estate is located at 15 Seascape

Avenue and further identified as lot 103(B) on tax assessor's plat 115 SE. The Petition of Christopher Deperro (applicant and owner) for a Variance from Section 603 to construct a single-family dwelling located 5' from the Western property line (where 25' is required) and 5' from the Eastern property line (where 30' is required). Applicant Christopher Deperro, having been duly sworn, testified as follows: that he purchased his home at 15 Seascape Avenue in 2013 and that with the purchase was included Lot 103(b), an approximately 2,000 square foot, nonconforming lot which abuts the lot on which sits his primary residence. Applicant also testified that Lot 103 (b) is taxed as an independent property, is landlocked, and currently hosts a small shed and a garage. Applicant testified that he intends to build a small home on Lot 103 (b) to reside in with his family and to rent out the current residence on the adjacent lot to a long-term renter. Applicant's architect, Daniel Herchenroether also testified on Applicant's behalf. He testified that the footprint of the house is just 14' by 39' and that the single-family home would actually be more in conformance with the setback requirements than are the present structures located on the Lot 103 (b). Moreover, the total square footage of the proposed home is about one-third the amount of square footage of homes that Mr. Herchenroether is typically dealing with. No member of the public spoke for or against the Petition. After closing the hearing to public comment, a motion was made to approve the petition by Thomas Silveira and seconded by Thomas Heaney. The following discussion ensued:

Board Member Stephen Huttler expressed concerns as to the density of the neighborhood and the fact that Lot 103(b) has no frontage. He also stated that the Section 903 requirements had not been met because the Applicant's Petition was motivated by financial gain; Applicant had testified that he intends to generate rental income on the existing residence adjacent to Lot 103 (b). Furthermore, he expressed that the proposed house was too large for the lot and the Petition was not the least relief necessary.

Secretary Thomas A. Heaney Jr. disagreed with Board Member Huttler and voiced his support for the application. Secretary Heaney emphasized that Lot 103(b) and the adjacent lot are two separate lots and that their common ownership should not play a factor in the Board's decision. Due to the uniqueness of Lot 103 (b) and the fact that Applicant had not done anything to create the hardship, he would support the Petition.

Board Member Eric Kirton expressed that the general characteristics of the neighborhood would be altered if the Petition were approved. He expressed that he had concerns with the density of the neighborhood and that the setback requirements are in place to manage density.

Vice Chairman Thomas Silveira agreed with the position of Secretary Heaney.

Chairman James Miller expressed support for the Petition and felt that the Board would be viewing the application more positively had the Applicant not owned the adjacent lot.

Following discussion, the Board voted 3-2 to approve the Variance. The findings of the Board members voting favor of the Petition are:

1.     That Lot 103(b) is unique in its extremely small size of just 2,044 square feet;

2.     That the hardship Petitioner faces is not the result of any prior action of Petitioner; That the motivation for the Petition is to build a dwelling on a buildable lot;

3.     That the relief requested is the least relief necessary to build a dwelling on Lot 103(b);

4.     That the granting of this accommodation will not alter the general character of the surrounding area.

The findings of the Board members voting against the Petition are:

1.     That the Lot is unique in its small size;

2.     That the hardship Petitioner faces is not the result of any past action of Petitioner;

3.     That the Petition is motivated primarily to realize financial gain by allowing Petitioner to rent out the adjacent lot;

4.     That the relief requested is not the least relief necessary for the full enjoyment of Lot 103 (b) because the dwelling proposed could be scaled down to a smaller footprint; and

5.     That the granting of this accommodation will alter the general character of the surrounding area by continuing to increase the density of dwellings in the neighborhood.

The Variance Petition, having failed to receive a minimum of 4 votes, was denied.

A motion was made by Thomas Silveira and second by Thomas Heaney to adjourn the meeting at 7:30 p.m.

All items on this agenda may be considered, discussed, and voted upon.

POSTED: FEBRUARY 4, 2022

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