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HomeMy WebLinkAboutVariance (806) TOihN OF SOUTH WINDSOR Application# -V APPLICATION FOR Date l ZONING BOARD OFAPPEALS Receipt 913(„ IMPORTANT: This application must be submitted to the Planning Department by the second Thursday of the preceding month to insure being heard at the next meeting. ALL ITEMS MUST BE ANSWERED AND ALL SUPPLEMENTS MUST BE SUBMITTED. 1. The application and supplements must be filed in duplicate,typed or printed in ink. 2. A Class D or better survey of the property in question must be submitted with the application showing streets,lot lines,building lines, zone boundary lines,dimensions,and buildings present or proposed and buildings on adjacent properties and distance from subject property. 3. If a variance is being requested,a legal description and deed of the properly must be submitted with the application. This description can be obtained from the land records. 4. The sign from the Planning Department must be displayed on the property at least 10 days prior to the public hearing in a location visible from all abutting streets. • The applicant, or a representative must be present for the public hearing. The time, date and place of the hearing will be advised by mail. • Inquiries on this application may be directed to the Planning Department at the South Windsor Town Hall. 5. No application shall be a complete application unless it shall be in such form and contain such information as necessary for a fair determination of the issues. Incomplete applications may be denied. SEC0 - 1 L ., O k s, ` 4n 0 1. Applicant: The Grillo Family Limited Partnership 2. Mailing Address: 379 Main Street, South Windsor, CT 06074 3. Telephone#: 860.528.2194 4. Owner of record of property in question: The Grillo Family Limited Partnership 5. Location of property in question: 498 Buckland Road Assessor's Map# 51 Parcel# 12 Zone GD 6. Is applicant a corporation or co-partnership?(If corporation, submit a list of officers. If co-partnership, submit a list of owners). Limited partners: Zachary,Nicholas&Laura Grillo; General partner: Robert M. Grillo FQRM4Tl'Q1y' can d ::. 7. Please indicate if the applicant is owner,lessee, or prospective tenant: Owner 8. `Check one of the following: (X)Request Variances to Sections 3.10.3 and 10.2 of the Zoning Regulations to allow a clarification/modification to four variances granted in application#2613-04 (see attached approvals and narrative)in order to allow construction of a dental office building. ( ) State hearing under Section of the General Statutes for ( }An appeal from the Zoning Officer's decision involving 9. Is this a request for a sign variance? If yes, complete and submit the sign checklist information. NO. 10. If application is for a variance to Section 3.12, are there any liquor outlets within the restricted area, (500 feet)? NO 11. Is this property within 500 feet of another town line?NO 12. Is this property within the Connecticut Water Aquifer area? No 13. If requesting a variance state clearly the unusual hardship or exceptional difficulty on the property that prompts this application and indicate why other options are unacceptable. Use a separate sheet of paper if necessary. N/A SECTION HI-DA TFf AND SIGNATURES I hereby declare that the data&information contained herein is accurate to the best of my knowledge. Dated this 15th day of jje tember Year 2005 Applicant: - -- - - - - ( ga e) f OWNER: (Si tore) SECTIONIV-AC ONOF THE BOARD Approved: Denied: l DESIGN PROFESSIONALS, INC. civil engineers ♦ planners ♦ surveyors gis ♦ gps ♦ landscape architects Direct Abutters Grillo Family Limited Partnership 498 Buckland Road DPI Project No. 1917 Map Lot No. Property Owner Mailinz Address * 51 11 Dennis C. & Sharon E. Platt 97 Box Mountain Drive Vernon, CT 06066 * 51 13 Harold L.Dodd 512 Buckland Road South Windsor, CT 06074 * 51 32 Metro Realty Group, Ltd. 6 Executive Drive Farmington, CT 06032 165 South Satellite Road,South Windsor,Connecticut 06074 Tel:(860)291-8755•Fax:(860)291-8757 Email:dpicivil@aol.com Narrative Statement Variance Application The Grillo Family Limited Partnership Dr. Robert M. Grillo 498 Buckland Road South Windsor, Connecticut DPI Project No. 04-1917 September 15,2005 The purpose of this application is to request that the ZBA clarify, and if necessary, modify,the variances previously approved under application#2613-04, so that the Grillo Family Limited Partnership may proceed with site plan approval of a dental office building at 498 Buckland Road(See attached documents plans). At the time of the original ZBA application, final site plans and final architectural plans were unavailable. The final site plan shows the building footprint over the original(existing house) footprint essentially unchanged(with 1,724± square feet).The addition behind that,however has been reduced to only 1,434±square feet(not 1,829±square feet)for a total building size of 3,158±square feet versus the ZBA-approved 3, 553 square feet. The area of change was the reduced addition area behind the 65' front yard. The proposed building,which is attractive,changes the roofline,windows, doors and other architectural features in order to make it into a functional and aesthetically pleasing dental office building. The interior ceiling height has changed,which changes the volume of the interior. We believe the intent of the applicant is unchanged from the time of the ZBA applications. While the foundation from the existing building will be utilized for the renovated building,most other existing building elements from the dilapidated house, of necessity,will be removed. We believe the original hardships remain unchanged,including but not limited to the parcel's size(substantially under 3 acres),the governmental takings, and the rezoning. We look forward to an open dialogue at the public hearing. � �bf7 ti L Narrative Statement Variance Application The Grillo Family Limited Partnership Dr. Robert M. Grillo 498 Buckland Road South Windsor, Connecticut DPI Project No. 04-1917 March 11, 2004 • Dr. Robert M. Grillo, a South Windsor resident, presently practices his dentistry at 47 Burnside Avenue in East Hartford. Those offices are undersized(only four treatment rooms) and have deficient parking(only nine spaces). Recently,Dr. Grillo purchased a 1.1-acre parcel and residence at 498 Buckland Road for the purpose of relocating his practice_ The subject property is situated on the easterly side of Buckland Road in the Gateway Development zone,just north of Floral Expressions, south of the residence of Harold Dodd and just west of a remote section of the recently approved Berry Patch H elderly apartment complex. After purchasing the property, Dr. Grillo assembled a design team to determine an architectural footprint, general site layout and the extent of any wetlands on the property. Wetlands were determined by Highland Soils, LLC to be only in a small area to the extreme rear of the property. Public sewer and water services are available in Buckland Road. Design Professionals,Inc. has located Highland Soils' wetlands flags and prepared an A 2 boundary survey and topographic survey of the property, including the existing house location. The property has had government takings along its Buckland Road frontage on two occasions. The first was on June 10, 1974 in which a 15-feet deep strip was condemned along the entire frontage. In 1992,the government once again condemned property,taking another 7-9 feet along the entire frontage. Prior maps indicate that the house was clearly behind a 65-feet building line, consistent with the parcel's prior zoning district,restricted commerciftl (RC). The property was subsequently re-zoned by the Planning& Zoning Commission(to the Gateway Development zone), along with all other properties on the easterly side of Buckland Road,up to Ellington Road. The takings resulted in a total loss of 3,975±square feet(down from 52,275 square feet to today's 48,300 square feet)of land area, and a 27.1 feet reduction from the then-required 65 feet of front yard, down to today's 37.9 feet. In 1974,the lot was clearly conforming to the RC zone requirements of 30,000 square feet lot area(52,275 square feet), lot frontage(150 feet), front yard(65 feet),and side yard (10 feet). The re-zoning rendered the parcel non-conforming to lot area(3 acres), side yard(25 feet)and lot frontage(200 feet). The residence on the property has approximately 1,200 square feet of interior floor area, plus a breezeway and garage. Dr. Grillo has approached the neighbor to the north,Mr.Harold L. Dodd of 512 Buckland Road, pursuant to securing an arrangement for a common access driveway to serve both properties as recommended in Section IIIA of the zoning regulations, and Mr. Dodd declined the invitation. Mr. Grillo's architect and interior dental space planner have laid out a plan to utilize the existing residence and an addition thereto. The total floor area of the expanded one-story building is approximately 3,553 square feet. This consists of the 1,724 square feet existing footprint, along with an 1,829 square feet addition to the rear of the building. The interior layout features a large reception room at the main entrance, a business office, consultation area, private offices, a laboratory, dark room, bathrooms, staff lounge, storage, and six treatment rooms. Variances will be required due to the existing non-conforming setbacks of the residence, and to accommodate the addition. A driveway is proposed well to the north of the building and a a "parking lot to the rear of the building is contemplated with at least 25 parking spaces, far exceeding the 9 spaces currently available to him in East Hartford. There will be a primary office entrance on the north side of the building. The existing driveway will be removed, as it will be replaced by the driveway to the north. A number of trees on the property, reflected in DPI's survey, should be preserved. The building's facade will be upgraded_ Mr. Grillo hopes to commence construction during this building season, following Planning&Zoning Commission approval of his site plan. The variances requested are as follows: 1, Section 3.10.3 to allow a non-conforming building to be altered, improved, enlarged, extended, reconstructed,repaired or rebuilt. 2. Section 10.2 to allow a side yard of 12f feet(13±feet variance), a front yard setback of 37.9 feet(27.1 feet variance) for the existing residence and a front yard setback of 56.3f feet(8.7+-feet variance) for a proposed addition. The specific hardships or-peculiar circumstances that support this application are: 1_ Condemnation of property along the frontage of this lot by governmental authorities in 1974 and in 1992 reduced the size of the lot and rendered the building non-conforming to the front yard setback requirement in the RC zone,and subsequently in the GD zone. It rendered the ultimate parcel even more non-conforming to the GD zone. 2. Re-zoning by the Planning&Zoning Commission of the subject parcel and of the neighboring parcels all the way up to Ellington Road from the RC zone to the GD zone, with its greater dimensional requirements, resulted in a non-conforming side yard. 3. The side yard variance would have been unnecessary, even with the addition, if the RC zoning for this property were still in effect. 4. -The side yard variance is necessitated,in part,by an extension of the building's southerly facade, and by interior layout requirements. 5. The existing building and foundation cannot be reasonably relocated. 6. The site has available public sewer and water utility services to support the development. 7. To our knowledge,this proposed development would conform to all zoning requirements had it not been for the actions of governmental agencies to reduce the lot's size on two occasions and to re-zone the property to a more demanding zone_ 8. Many aspects of the GD zone can be adhered to with the new plan, e.g., no parking in the front yard and all parking to the rear of the building. 9. The front yard variance to accommodate the building addition is necessitated by interior layout requirements. 10. This application is consistent with the purposes of the Buckland Road Gateway Development zone, in that it will help to create an attractive entrance to South Windsor, it will be a high quality development with careful attention to building appearance and professional landscaping. While access management has been given due consideration by the applicant, it would require the cooperation of the property owner to the north, and that property owner has declined Dr. Grillo's request to provide a common driveway along the common property line. Dr. Grillo and his family respectfully request consideration of the above-referenced variances. Thank you. 4' t S0'NN Sf7 y r Wove O-P Saau V&uy&)t o � a ` s � 1540 SULLIVAN AVENUE • SOUTH WINDSOR, CT 06074 SOR•c° TELEPHONE(860) 644-2511 April 13, 2004 CERTIFIED#70001670000775519997 Design Professionals, Inc. 165 South Satellite Road South Windsor, CT 06074 Re: Appl. #2613-04—The Grillo Family Limited Partnership, 498 Buckland Road, GD zone `Cbear Mr. DeMallie: K At the meeting of the South Windsor Zoning Board of Appeals held on April 1, 2004, the Board approved the following variances: A variance to section 3.10.3 to allow expansion of a non-conforming structure. wThe Board concluded the hardship to be as follows: 1. The two governmental takings for road widening have created the existing structure to become significantly nonconforming, making It difficult to use the property In ;1conformance with the Towns comprehensive plan. 2. The re-zoning of the property to the Buckland Gateway zone requires larger setbacks than the previous zone. The following conditions were placed on this approval: 1. Approval is based on the plans prepared by Design Professionals, Inc. dated 2/26/04. 2. The use is subject to site plan approval by the Planning & Zoning Commission. 3. The use is subject to an approved use in the zoning regulations. A 13' variance to section 10.2 to allow a side yard of 12' (25' required). The Board concluded the hardship to be as follows: 1. The placement of the original structure conformed at the time it was built and the re-zoning of the property to the Buckland Gateway zone requires larger setbacks. 2. The property line is not perpendicular to the structure, making the expansion encroach further into the side yard. Y t 0 The Grillo Family Limited Partnership April 13, 2004 Page 2 3. The two government takings for road widening have created the existing structure to become significantly non-conforming, making it difficult to use the property in conformance with the Town's comprehensive plan. The following conditions were placed on this approval: 1. Approval isDased nith plans prepared by Design Professionals, Inc. dated 2/26/04. 2. The use is subject to site plan approval by the Planning & Zoning Commission. 3. The use is subject to an approved use in the zoning regulations. 'An 8.7' variance to section 10.2 to allow 56.3' setback for proposed addition (65' required). The Board concluded the hardship to be as follows: 1. The two government takings for road widening have created the existing structure to become significantly non-conforming, making it difficult to use the property in conformance with the Town's comprehensive plan. 2. The re-zoning of the property to the Buckland Gateway zone requires larger setbacks than the previous zone. i The following conditions were placed on this approval: 1. Approval is based on the plans prepared by Design Professionals, Inc. dated 2/26/04. 2. The use is subject to site plan approval by the Planning & Zoning Commission. 3. The use is subject to an approved use in the zoning regulations. Any new building, or alteration/additions to existing buildings, requires a building permit prior to start of construction. These actions are effective upon your filing the enclosed form in the Town Clerk's Office at your own expense. Very truly yours, tephen Wagner, Chairperson Zoning Board of Appeals SW:dr cc: Building Department . tO,M M SE,1 low (-! Sou�G/G 70&U&Ot C ` 1540 SULLIVAN AVENUE • SOUTH WINDSOR, CT 06074 R-CO TELEPHONE(860)644-2511 May 14, 2004 CERTIFIED#70001670000775519959 Design Professionals, Inc. 165 South Satellite Road South Windsor, CT 06074 Re: Appl.#2613-04—The Grillo Family Limited Partnership, 498 Buckland Road, GD zone Cwvi" Dear Mr. DeMallie: 61 0.01 At the meeting of the South�dsor Zoning Board of Appeals held on M�r6-2004, the Board approved our request for 27.1' variance to section 10.2 to allow the front yard setback of the PP Y q existing structure to remain at 37.9', for property located at 498 Buckland Road, GD zone. r�e riJ The Board concluded the hardships on the property to be as follows: 1. The placement of the original structure conformed at the time it was built and the rezoning of the property to the Buckland Gateway zone requires larger setbacks. 2. The two government takings for road widening have created the existing structure to become significantly nonconforming, making it difficult to use the property in conformance with the Town's comprehensive plan. The Board placed the following conditions o n thi anoval: t,.p.t 1. Approval is based on the pans prepared-by Design Professionals, Inc.da66(1 2/26/04. 2. The use is subject to site plan approval by the Planning &Zoning Commission. 3. The use is subject to a permitted use in the zoning regulations. Any new building, or alteration/additions to existing buildings, requires a building permit prior to start of construction. These actions are effective upon your filing the enclosed form in the Town Clerk's Office at your own expense. Very truly yours, Stephen Wagner, Cha rperson Zoning Board of Appeals SW:dr cc: Building Department VOL. 16271 NGE DAGE�Z�TCu7-- SCHEDULE A That certain piece or parcel of land with all improvements and buildings thereon located at 498 Buckland Road,South Windsor,Connecticut,and more particularly bounded and = described as follows: Beginning at a point in the easterly line of Buckland Road which point is marked by a =F, merestone set on the division line of the property herein described and property ownednow or formerly by Frank Ahearn,Trustee; `w`-" Thence easterly along land now or formerly of the said Frank Ahearn,Trustee,a distance of 305.59 feet to a merestone; Thence in a northerly direction along land now or formerly of Peter Karmazyn,a distance - _= of 80.68 feet to a merestone; Thence in a northeasterly direction along land now or formerly of said Karrnazyn,a distance of 112.83 feet to a point; ~£ ` Thence in a westerlydirection aloe land now or formed of H - -8 y any W.Snow,et al.,a distance of 347.60 feet to a point in the easterly line of said Buckland Road; Thence in a southerly direction,a distance of 185.00 feet to the point and place of " beginning. For a more particular description of said premises,reference is made to a map entitled "Property surveyed for Harry W.and Clara B.Snow,Oakland and Buckland roads, ` .;?`- Wapping, South Windsor,Conn.,Scale linch=30 feet,Sept_ 1948,Peterson& �'�=�-• Hoffman,En rs,Successors to S g' Spencer&Washburn,Inc."ine which map is on file in the Town Clerk's Office in the said Town of South Windsor. --= A�•":� Excepting that portion of the premises taken by the Town of South Windsor to widen Buckland Road,as more particularly described in a Certificate of Condemnation dated 5-31-74 and recorded 6-10-74 in Vol 180 Pg 233 of the South Windsor Land Records- ----------C - iVED FOR AE R DATE T1M M'y RE 1 ED FOR RECORD: 'OWN GL YI ER OUT WIND-fftS > ATE O4TIME g:aS M. OWN CLERK,SOUTH WEND R. Cr `�` n } ' 6 25o.i1 a sse.aa 103 _A ffi 00 g x 8 g — tao.o ts3.ze tao.o tto(s) tta(s) tso(s) ... ROAD '.„ _. OAKLAND .. sr9" mzw ROAD foz�s 9 16e.o 'OAK R tuts y HMO 41D!s) ao.o $ 3 fio ass es.zz 34p1s) rr's 95.z r/'e> zeo(s) R es.o res.o ray foo.o re tot.51 1s,o 115.37 115(S) Fi 519.35 f0p(S) p^9 y ,0 ,y m 3202G 2011(5) 399.82 >9.38 � 301 $ ?t 4,o(SJ tatxa roo,sr zoo az sz roosr �9'a 31t.9D 83t.19 O D3W(s) N p yo3(s) � a LEASE LINE 11s AG ror,fo Town of South Windsor 498 Buckland Road N PARCELS Connecticut , IE ROAD NAMES Date Printed: October28,2005 ROADS 0 300 Feet Property boundaries are derived from the Town of South Windsor Tax Assessor maps,digitized at a scale of 1 inch=100 feet,and include the same data limitations and disclaimer as the Assessors maps. All other data portrayed is representation only and,due to inherent mapping limitations,should be used as a guide only. The intent of this map is to present a graphical representation of property boundarie and selected data,and the map is subject to change as more accurate surveys may disclose. Property boundaries mapped as of June 4,2001. y C0W N Sf4 r Town 0-ps-oar � y 1540 SULLIVAN AVENUE • SOUTH WINDSOR, CONN. 06074 soa•co�'� AREA CODE 860/644-2511 Mr. Stephen Wagner, Chairman October 10, 2005 Commission Members Town of South Windsor Zoning Board of Appeals Re: Application 2664-05, Grillo Application Chairman and Commission Members: At its September 27, 2005 meeting the EDC voted unanimously to support the above application. On behalf of the Economic Development Commission I submit this letter. It is the EDC's unanimous opinion that the general concept represented in this application is in the best interests of the Town and its citizens. Redevelopment of existing properties is most challenging, this give us the opportunity to fill an existing building. We also feel that this building will add to the aesthetics of Buckland Rd. and this type of activity will fit well in this location. The parking is more than adequate and will be shared with other businesses. The EDC feels that arrangement will improve the safety of the patrons and as well as any on coming traffic. Further, the applicant has worked cooperatively and diligently with Town staff to meet requirements and strategic policy objectives. The approval of this application will allow the quicker reuse of the property and facilitate it, bringing valuable personal property to the Town of South Windsor. Vital revenue is acquired while maintaining the uniqueness of this project. Having demonstrated a commitment to the best interests of our Town and a respect for our regulatory process, the EDC recommends your approval of this application. Please feel free to contact me with your questions or if you would like additional information. Sincerely, Marjori S. Anthony, Chairman Economic Development Commission � 4N01re� Craig Stevenson, Economic Development ,�y Town Hall 'O o 1540 Sullivan Avenue ��t ftw South Windsor, CT 06074 "dSOR 860-306-8325 November 3, 2005 Mr. Steve Wagner Commission Members Town of South Windsor Zoning Board of Appeals Re: Appl#2664-05— The Grillo Family Limited Partnership Ladies and Gentlemen: As the Town's economic developer, I share the opinion of the Economic Development Commission that the above application is in the best interests of the community from an economic and quality standpoint: The action under consideration will facilitate the development of an important economic development project. This project's positive impact on the future of South Windsor and in particular the enhancement of this highly visible commercial corridor is obvious. The project will bring a high quality and help achieve previously established goals and objective. For many years there has been an emphasis toward making this area a focal point of commercial development this project is consistent with and in the best interest of such planned growth. Due to physical conditions as illustrated by the presenters of the application it is clear that the variance will be crucial to the future of this project. The project as presented to the commission seems to maintain the current quality and value of the area and will succeed in improving these attributes. It also seems to meet the statutory requirements that allow your commission to approve the request. Understanding that your decision will be based upon the law and that your parameters are very specifically designed, the Economic Development Commission and I urge you to work with the developer of this project in every way permissible. Members of the Commission will be in attendance at the meeting. If you should have questions or require more information they will be on hand to offer it. Thank you for your attention to this very important matter. Please feel free to contact me with your questions or if you would like additional information. Sincerely, Craig R. Stevenson Economic Development Coordinator 11/01/2005 14:46 860-226-1638 NA UND PAGE 01101 Facsimile Transmission Cover Sheet CIGNA HealthCare Transmit to FAX number 644-7280 To � Q�� c=L` Ct"l✓�✓ f V y�l.j/12 a r t �1' C Name Michele Lipe g� ' rd,-- ` - �uff v Company South Windsor Planning Depar �j l✓ Phone ° 2, Address COmm9hts Michele: Sharon and 1 had the opportunity last month to.review the site development plan for 498 Bu.ckland.Road With the owner, As an abutting property, we're obviously concerned that development of that property not only creates "an attractive entrance to South Windsor" but is conducive to our retail business. The current condition of this adjacent property does not provide this attractive entrance an.d detracts from our property. We support this building and site development plan and believe that it will be an asset both to this portion of Buckland road and the surrounding businesses. Conceptually we agree with limited curb cuts. However.,we are concerned that as shared driveways and interior service drives are phased in, there will be a ia.ega.tive impact to a .retail shop such as Floral Expressions. If small retail shops,where quick access for customers is a business.requirement, a reduction or perceived reduction in access will have a negative business impact. 1✓J�l-' COATFIDFNTL4LFTV.NOTICE-;if yozz have received flris rfcsl►aile in efTor,pledjr itnnfedfately rrotlfl'the.sender by telephone at the number above, 77te dnrurne'nts acrompanying dti.s facsimile transrnlssion cnrrtain confidential(nrormation. This Informntion Is intended only r)r the use orthe individual ft)or efltity named above. 777ank you r)r ynur roinpliance, "CIGNA"an(I"CIGNA HonllhCare"arc rePtcrad scrvlrr,nmrks and rrfer to vaHaus operating sulrs}dlarles or CIGNA Corporation. prmluds dnd servlrrp nre provided by there subsldinriCp and not.by(AGNA Corpornuon. These 11,W)diaries includr connocticut Genetal Life Tnsunnce Company,GIGN A VI lon Cnie,Inc.,TO-Drug.Inc.and Its affllrales, CIGNA Rehnvioral Ifenith,Inc.,fnturcorp,and HMO or ce vio!company whSidiaries of CIGNA Health C,nrporatlon and CIGNA Denral I-Irn lrh,Inr.. [ ]Aoknowlodgment Requested To Fax a reply,dial:860 2261638 MEMORANDUM Re: Grillo Application August 16,2005 I. Whether the ZBA May Impose Conditions in Granting a Variance It is well settled in Connecticut that land use agencies may attach conditions to approval of an application depending upon the nature of the condition imposed. See miller, Connecticut Land Use Law and Practice Vol. 9, PP. 504-505. More specifically, the ZBA may, without express authorization, attach reasonable conditions to the granting of a variance. Town of Burlington v. Jencik, 168 Conn. 506, 509 (1975). This is true even though the statutes defining the powers of the ZBA, Sections 8-6 and 8-7 of the Connecticut General Statutes, have no specific provision on conditions. Id. Where a variance is granted subject to conditions, the variance is contingent upon satisfaction of those conditions. Id. at 510. There are several prohibitions and one major requirement with respect to any condition attached to the granting of a variance. Approval may not be conditioned upon the approval of another agency or official. This would be an illegal delegation of power from the ZBA to some other agency or official and would, therefore, not be permitted. See, Fuller, Connecticut Land Use Law and Practice, Volume 9, Pages 504-505. There are also prohibitions that the condition imposed may not be impossible for the applicant to meet, nor may it interfere with the transfer of the variance to subsequent purchases of the property. This is because all variances, once approved, Tun with the land and are, .thus, automatically transferred to subsequent property owners. There can also be no time limit imposed upon a variance for the same reason. The one major requirement is that the condition attached to the variance must relate to the property which is the subject of the variance and not other land owned by the applicant. Applying this analysis to the facts of the Grillo applications, both before the ZBA and the PZC, it is my opinion that the ZBA had the authority to attach a condition to the granting of the variance. That condition could have imposed a restriction upon the applicant to use the existing non-conforming building. That is, a condition could have been imposed that the building could be remodeled and refurbished but not torn down or expanded. This leads to the next issue of whether the conditions imposed by the ZBA in granting the variance to the Grillo Partnership imposed a requirement that the existing building not be torn down, but that it be renovated and used together with the new proposed addition. H. Whether the ZBA Imposed a Condition that the F istin Structure Be Used and Not Tom Down It should first be noted that the ZBA is empowered to interpret the variances it approves, as well as the conditions which are imposed'relating to those Page 2 of 7 MEMORANDUM Re: Grillo Application August16,2005 variances. It has even been held that in certain instances, an appeal may be required to the ZBA for the interpretation of the terms of a variance where it is claimed that use of the property violated the conditions or terms of the variance. Simko v. Ervin, 234 Conn. 498 (1995). Since an opinion has been requested of me, however, I will provide my legal opinion in this regard. In determining what use is allowed under a variance granted by the ZBA, Connecticut courts have ruled that the specific use proposed by the applicant in the application can be considered..., in addition to the language of the variance certificate itself. L & G Associates, Inc. v. Zoning Board of Appeals of City of Danbury, 40 Conn. App. 784, 787 (1996), citing Raymond v. Zoning Board of Appeals of Town of Ridgefield, 164 Conn. 85, 87-88 (1972). If the language of the application can be used in determining the use which will be allowed, this'would logically apply in determining the nature of the condition imposed, as in the present case. This would also seem to apply to any comments or statements made by the applicant during the public hearing on the application. Although I am unable to find any case law supporting the last two suppositions, they would seem to be logical extensions of the original legal principal. That is, if the language in the application may be considered to determine an appropriate use, there is no reason that should not equally apply to the nature of a specific condition. Also, if the language in the application is considered, it would seem to be a logical extension that comments made by the applicant at the public hearing would carry the same weight as language in the application and, therefore, also be considered in determining whether a condition has been met. Prior to preparing this opinion, I have reviewed the ZBA Minutes and the tapes pertaining to the Grillo application for variances, as well as the Plans submitted as part of that application and a recent narrative which was received from the applicant, Dr. Grillo and his attorney. In reviewing all of this documentation, I believe that the ZBA could have been much clearer in describing the variances and the conditions attached thereto. It is not, however, required under Connecticut law that variances or their conditions be defined with absolute clarity. The courts have frequently recognized that decisions of land use agencies are being made by volunteer lay people working under sometimes extreme pressures of an ongoing meeting and very short deadlines. In light of this situation, the courts have recognized that land use agencies do not always have the luxury enjoyed by "Monday morning quarterbacks" of virtually unlimited time to analyze every conceivable aspect of an application and to choose the precise wording to be used. It is my opinion that conditions were imposed with respect to each of the variances. One of the conditions to each variance was a'reference to the Page 3 of 7 4 • MEMORANDUM Re: Grillo Application August 16,2005 Plans submitted with the application. This condition, taken in conjunction with statements made by the applicants in the application, at the public hearing and in the Plans themselves, leads me to the conclusion that the existing building was to be retained and refurbished, with an addition being constructed to the rear of the existing structure. This opinion is based upon several factors. First, the minutes indicate that a specific condition was imposed noting that "approval is based on the plans prepared by Design Professionals, Inc. dated 2/26/04." Those Plans do not indicate that the existing structure will be torn down and replaced by a new building on the old footprint. The Plan specifically references the existing structure as a "frame house", without making any indication that it will be torn down or that a new structure will be rebuilt on the old footprint. It is also significant, in my opinion, that the Plan does note that the driveway is "to be removed" but does not similarly state that the frame house is to be removed or torn down and reconstructed. My opinion is also based upon numerous statements throughout the public hearing made by the applicant's representative, Peter DeMallie, to the effect that the existing structure would be used. Among those statements and comments are the following: 1. "The building is there, we're using that building, we can't really move that building." 2. "So we're asking for a variance to improve, to refurbish and to modify the residence now standing to a conforming commercial use as opposed to today it is a non-conforming residential use in a commercial zone, a gateway zone." 3. "We're asking for permission to adaptively reuse that building...and put on an addition." 4. "Applicant could knock down the existing building and build a new building with an addition, if they met all of the front yard and side yard requirements", which they do not. The "existing building doesn't allow for that and it's reasonable to be able to refurbish it." 5. The applicant is using the existing building, they can't really move that building. In the application itself the applicant specifically states that "Mr. Grillo's Architect and Interior Dental Space Planner have laid out a plan to utilize the existing residence and an addition thereto." (emphasis added.) It is Page 4 of 7 } MEMORANDUM Re: Grillo Application August 16,2005 also significant that the application contains the statement "the existing driveway will be removed, as it will be replaced by the driveway to the north." There is no similar language in the application regarding the removal or tearing down of the existing structure and replacing it with a new structure on the old footprint. The first three variances granted at the ZBA meeting of April 1, 2004 were (1) that the non-conforming existing structure could be enlarged or expanded by the proposed addition in the Plans, (2) that the proposed addition could be constructed with, and the existing structure maintain, a 12' side yard (25' required) and (3) that the proposed addition could be constructed with a 56.3" front yard (65' required). Each of these variances was made subject to the condition that the applicant would substantially follow the Plans which had been filed with the ZBA. But each of these variances dealt almost exclusively with the addition and not -the existing building. The sole variance dealing exclusively with the existing structure is the last variance approved at the next meeting of May 6, 2004. That variance was to allow the existing structure or footprint to maintain a front yard setback of 37.9' (65' required). There were references by some members to rebuilding, but this was where the existing structure was destroyed by fire. After a great deal of discussion regarding the limitations to be imposed by the variance, the motion -approving the variance was read back as containing the condition that the footprint must be the same as that displayed on the Plan "to allow the same floor area and cubic content." (The Minutes state the condition differently, but the tape contains the condition as stated above and it remained unchanged for the vote.) Based upon the discussion above, the condition regarding the last variance allowed rebuilding of the structure, but only on the same footprint, with the same floor area and with the same cubic density. It is not entirely clear whether this applied only if the existing structure was destroyed by fire or otherwise. This would be an area where the ZBA would be in a better position to interpret and/or clarify the variance and the precise condition being imposed. This leads to the final question of whether the current plans filed with the PZC conform to the condition imposed by the ZBA or violate that condition, thereby rendering the variance inoperable. Page 5 of 7 MEMORANDUM Re: Grillo Application August 16,2005 M. Whether the Current Plans Conform to or Violate the Condition Imposed with the Variances As noted previously, the courts have suggested that the interpretation of the terms of a variance or a condition attached to a variance is best obtained from the ZBA itself. It may, therefore, make sense to deny the current application without prejudice to allow the applicant to apply to the ZBA for either a clarification or a modification of the conditions imposed with respect to the variances in this matter. This would apply not only to an interpretation of the condition itself but also whether the current plans submitted by the applicant conform to that condition or violate that condition. Since my opinion has been requested, however, I will provide it. My understanding is that,the current plans;call for the tearing down of the old existing residential structure and rebuilding it using the existing foundation and footprint, with an addition to the rear of the existing foundation. Although the condition imposed by the ZBA with respect to the variances could have been more clearly stated, it does appear from the surrounding statements and comments by the applicant in the application and at the public hearing that the proposal called for the use of the existing structure rather than tearing it down. It appears to have been understood that the existing structure would be refurbished and renovated, but that it would not be torn down. This is especially true with respect to the first three variances. - The first three variances apply primarily to the addition, however, and the ZBA seemed to be most concerned that the addition be restricted to the size and location indicated on the Plans. Whether the existing building was torn down would not appear to have any impact on the addition to the rear of the building. With respect to the final variance, the condition imposed appears to allow the rebuilding of the existing structure, but limited to the same footprint, floor area and cubic density. It is not clear whether this condition allows rebuilding immediately or only if the existing structure is destroyed by fire or Act of God. If it is the former, an engineer would have to review the current plans to determine if they are within the same footprint, contain the same floor area and cubic density. If they do, they would conform to the condition. If the existing structure can only be rebuilt if it is destroyed by fire or Act of God, it is my opinion that the Plans are not in conformity with the condition imposed by the ZBA. For the applicant to construct the building as proposed by the Plans before the PZC, in my opinion, would require a new Page 6 of 7 s MEMORANDUM Re: Grillo Application August 16,2005 application to the ZBA to remove the existing condition, modify it, or clarify it as noted above. Once again, one option would be for the PZC to deny the current application withou_t prejudice to allow the applicant to file such an application with the; ZBA for either a modification or a clarification of the original condition. Page 7 of 7 v SOWNco Sf4` a T101wn O-P sou� ?V&U&01t C, 1540 SULLIVAN AVENUE • SOUTH WINDSOR, CT 06074 J�OSOR-CO TELEPHONE (860) 644-2511 December 15, 2005 CERTIFIED # 70020460000197444460 Design Professionals, Inc. Attn: Peter DeMallie 165 South Satellite Road South Windsor, CT 06074 RE: Application #2664-05—The Grillo Family Limited Partnership, 498 Buckland Road, Buckland Gateway Development zone Dear Mr. DeMallie: At the meeting of the South Windsor Zoning Board of Appeals held on December 1, 2005, the Board approved with conditions your request for modifications to the four variances granted previously with appl. #2613-04—to allow construction of a dental office on property located at 498 Buckland Road, Buckland Gateway Development zone. The Board concluded the hardships and conditions on each request to be as follows: A 13' variance to section 10.2 to allow a side yard of 12' (25' required): Hardship: 1) The placement of the original structure conformed at the time it was built and the re- zoning of the property to the Buckland gateway zone requires larger setbacks. 2) The property line is not perpendicular to the structure, making the expansion encroach further into the side yard. 3) The two government takings for road widening have created the existing structure to become significantly nonconforming, making it difficult to use the property in conformance with the Town's comprehensive plan. Conditions: 1) Approval is based on the updated plans prepared by Design Professionals, Inc., last revision date of 7/1/2005. 2) The use is subject to site plan approval by the Planning &Zoning Commission. 3) The use is subject to an approved use in the zoning regulations. Grillo Family Limited Partnership December 15, 2005 Page 2 A modification to allow a 27.1' variance to section 10.2 to allow the front yard setback of the new structure to remain at 37.9'. Hardship: 1) The placement of the original structure conformed at the time it was built and the re- zoning of the property to the Buckland gateway zone requires larger setbacks. 2) The property line is not perpendicular to the structure, making the expansion encroach further into the side yard. 3) The two governmental takings for road widening have created the existing structure to become significantly nonconforming, making It difficult to use the property in conformance with the Town's comprehensive plan. Conditions: 1) Approval is based on the updated plans prepared by Design Professionals, Inc., last revision date of 7/1/2005. 2) The use is subject to site plan approval by the Planning &Zoning Commission. 3) The use is subject to an approved use in the zoning regulations. A modification to allow a 27.1' variance to section 10.2 to allow the front yard setback of the new structure to remain at 37.9'. Hardship: 1) The placement of the original structure conformed at the time it was built and the re- zoning of the property to the Buckland gateway zone requires larger setbacks. 2) The two government takings for road widening have created the existing structure to become significantly nonconforming, making it difficult to use the property in conformance with the Town's comprehensive plan. Con ditions: 1) Approval is based on the updated plans prepared by Design Professionals, Inc., last revision date of 7/1/2005. 2) The use is subject to site plan approval by the Planning &Zoning Commission. 3) The use is subject to a permitted use in the zoning regulations. A variance to section 3.10.3 to allow expansion of a nonconforming structure and an 8.7' variance to section 10.2 to allow 56.3' setback for proposed addition are both variances that are no longer necessary due to the changes in the plan. Any new building, or alteration/additions to existing buildings, requires a building permit prior to start of construction. r 'r Grillo Family Limited Partnership December 15, 2005 Page 3 These actions are effective upon your filing the enclosed form in the Town Clerk's Office at your own expense. Very truly yours, tephen Wagner, Chairperson Zoning Board of Appeals SW:dr cc: Building Department e I, Stephen Wagner, Chairman of the South Windsor Zoning Board of Appeals hereby certify tfiat on December 1, 2005, the Zoning Board of Appeals granted to: The Grillo Family Limited Partnership, a modification to the four variances granted previously with appl. #2613- 04—to allow construction of a dental office on property located at 498 Buckland Road, Buckland Gateway Development zone. Conditions: 1)Approval is based on the updated plans prepared by Design Professionals, Inc., last revision date of 7/1/2005; 2) The use is subject to site plan approval by the Planning & Zoning Commission; and 3) The'use is subject to an approved use in the zoning regulations. on premises located: 498 Buckland Road and more particularly bounded and described as follows: SEE ATTACHED OWNER OF RECORD: South Windsor Realty Co., LLC Dated at South Windsor, Connecticut this 15th day of December, 2005. tephen Wagner, Chaffperson PUBLIC ACT#75-317 Received for Record this day of 2005 at VOLUME PAGE TOWN CLERK VOL. 62 r �~ ° PAGE 2 J 2 }= SCHEDYILE A `tom`f That certain piece or parcel of land with all inprovements and buildings thereon located at 498 Buckland Road,South Windsor,Connecticut,and more particularly bounded and ,n�^ described as follows: � �:,• . - Beginning at a Point is the easterly line of$uckland Road which point is marked by a =L.- merestone set on the division line of the property herein described and property owned ''=T now or formerly by Frank Ahearn,Trustee; Thence easterly along land now or formerly of the said Frank-Ahearn,Trustee,a distance of 305.59 feet to a merestone; Thence in a northerly direction along land now or formerly of Peter Kannazyn,a distance s of 80.68 feet to a marstone; ; Thrace in a northeasterly direction along land now or formerly of said Kwmazyt:,a kt distance of 112.93 feet to a point; s Thence in a westerly direction along land now or formerly of Harry W.Snow,et al.,a distance of 347.60 feet to a point in the easterly line of said Buckland Road; - Thence in a southerly direction,a distance of 185.00 feet to the point and place of :s beginning. - r For a Uwe particular description of said premises,rcfacttce is made to a map entitled .` "Property surveyed for May W.and Clara B.Snow,Oakland and BucMand Roads, WaPPing>South Windsor,Conn.,Scale 1 inch=30 feet,Sept 1948,Peterson do •', Hof xian,Exers,Successon to Spencer do Washburn,Inc."which map is on file in the ` Town Ckrk's Office in the said Town of South Windsor: Excepting thafportion ofthe premises taken by the Town of South Windsor to widen = ' Buddu d Road,as mono particularly described in a Certificate of Condemnation dated Y ' 5-31-74 and recorded 6-10-74 in Vol 180 Pg 233 of the South Windsor Land Records. ' R iVED FOR RE D: zS P. w. DATE ;z " RECIBYED F�Oy�R� RECORD: ' 0� 1 NY1E�•�J '• TOWN G6ER19 �!11f1ND ITS' . .�•- - ,/f TOWN CLERK.SOUTH WIND • �� yam:`�"'?l SOWN St 4 x ap sou� � U710'Wn 1540 SULLIVAN AVENUE• SOUTH WINDSOR, CT 06074 SOR CO TELEPHONE(860) 644-2511 August 29,2005 Certified Mail Dr. Robert M. Grillo The Grillo Family Limited Partnership 379 Main Street South Windsor, CT 06074 Re: Appl#05-38P, Grillo Site Plan Dear Dr. Grillo: We regret to inform you that the Planning and Zoning Commission, at their August 16,2005 meeting,voted to deny without prejudice,the above referenced application for site plan approval. The reason for the denial was that the site pl an did not appear to conform to the Board o condition set b the Zoning f Appeals in granting Y mng 1 gY g the necessary variances on the the plans submitted to the ZBA. property that the plans be substantially similar to The denial was without prejudice to allow you to resubmit your site plan application either after it to conforms to the condition imposed by the ZBA or after you have received clarification from the ZBA that the current site plan conforms to that condition. We highly encourage the applicant to consider a preliminary ary meeting with the Planning and Zoning Commission, as discussed during deliberations, for a creative redesign of the property. The applicant may wish to consider creative approaches to the use of the site,including changes to the storm water retention that would not require the use of such significant variances. The Commission also voted to waive the application fee for a resubmission of a revised application. Very truly yours, ..,...� C Ctt� Timothy H. Wentzell, Chairman Planning and Zoning Commission rs cc: Town Engineer Chief Building Official Assessor Superintendent of Pollution Control Fire Marshal Design Professionals, Inc.- Ms. Becky Meyer 1540 Sullivan Ave. South Windsor,CT 06074 Phone:(860)644-2511 ext.279 TOWN OF • Fax(860)644-3781 WINDS • TO: South Windsor Planning and Zoning Commission -FROM: Barry D. Guliano, Town Attorney DATE: August 16, 2005 RE: Grillo Application - Variance Granted by ZBA, with h Conditions, for Property at 498 Buckland Road There is currently an application pending before the Planning & Zoning Commission (hereafter "PZC") for site plan approval by the Grillo Family Limited Partnership (hereafter "Grillo") for the construction of a dental office at 498 Buckland Road. The Plan calls for an existing residential structure to be torn down and replaced by a. new office building on the same foundation and footprint, but includingan addition to the original n addition building. In 2004 the g e South Windsor Zoning Board of Appeals "ZBA" Pl� (hereafter ) granted several variances with respect to the property with.conditions noted in the minutes. of their meetings that "approval is based on the plans prepared by Design Professionals, Inc. dated 2/26/04." The . general question that has been relayed to me for a legal opinion is whether the current plans meet. the conditions imposed- at the time the variances were granted or whether the current plans would violate any of those conditions. I believe that this request for an opinion can be best addressed by reviewing three separate but related issues: 1. Whether and to what extent the ZBA may impose conditions mi granting a variance; 2. Whether the ZBA imposed any conditions with respect to the Grillo application and, if so, the precise conditions imposed; and 3. Whether the current site plan submitted by Grillo to the PZC violates the conditions attached to the approval of the variances or whether it is in conformity with those conditions. This opinion will discuss each of these issues separately. Page 1 of 7 MEMORANDUM Re: Grillo Application August 16,2005 I. Whether the ZBA Mav Impose Conditions in Granting a Variance It is well settled in Connecticut that land use agencies may attach conditions to approval of an application depending upon the nature of the condition imposed. See, Fuller, Connecticut Land Use Law and Practice Vol. 9. PP. 504-505 More specifically, the ZBA may, without express authorization, attach reasonable conditions to the granting of a variance. Town of Burlington v Jencik, 168 Conn. 506, 509 (1975). This is true even though the statutes defining the powers of the ZBA, Sections 8-6 and 8-7 of the Connecticut General Statutes, have no specific provision on conditions. Id. Where a variance is granted subject to conditions, the variance is contingent upon satisfaction of those conditions. Id. at 510. There are several prohibitions and one major requirement with respect to n condition attached to Y the granting of a variance. Approval l may not be conditioned upon the approval of another agency or official. This would be an illegal delegation of power from the ZBA to some other agency or official and would, therefore, not be permitted. See. Fuller. Connecticut Land Use- Law and Practice. Volume 9 Pages 504-505 There are also prohibitions that the condition imposed may-not be impossible for the applicant to meet,* .- nor may it interfere with the transfer of the variance to subsequent purchases of the property; This is because'all variances, once approved.. run with the land and are, thus, automatically.-transferred to subsequent property owners. There-can also be no time limit imposed up on pon a variance -for the same reason. The one major requirement is that the condition attached to the variance must relate to the property which is the subject of the variance and not other land owned by the applicant. Applying this analysis to the facts of the Grillo applications, both before the ZBA and the PZC, it is my opinion that the ZBA had the authority to attach a condition to the granting of the variance. That condition could have imposed a restriction upon the applicant to use the existing non-conforming building. That is, a condition could have been imposed that the building could be remodeled and refurbished but not torn down or expanded. This leads to the next issue of whether the conditions imposed by the ZBA in granting the variance to the Grillo Partnership imposed a requirement that the existing building not be torn down, but that it be renovated and used together with the new proposed addition. II. Whether the ZBA Imposed- a Condition that the Existing . Structure Be Used and Not Torn Down It should first be noted that the ZBA is empowered to interpret the variances it approves, as well as the conditions which are imposed relating to those Page 2 of 7 MEMORANDUM Re: Grillo Application August 16,2005 variances. It has even been held that in certain instances, an appeal may be required to the ZBA for the interpretation of the terms of a variance where it is claimed that use of the property violated the conditions or terms of the variance. Simko v. Ervin, 234 Conn. 498 (1995). Since an opinion has been requested of me, however, I will provide my legal opinion in this regard. In determining what use is allowed under a variance granted by the. ZBA, Connecticut courts have ruled that the specific use proposed by the applicant in the application can be considered.:., in addition to the language of the variance certificate itself. L & G Associates. Inc. v. Zoning Board.of Appeals of City of Danbury, 40 Conn. App. 784, 787 (1996), citing Raymond v. Zoning Board of Appeals of Town of Ridge 164 Conn. 85, 87-88 (1972). If the language of the application can be used in determining the use which will be allowed, this would logically apply in determining the nature of the condition imposed, as in the present case. This would also seem to apply to any comments.or statements made by the applicant during the public hearing on the application. Although I am unable to find any case law supporting the last two suppositions, they would seem to be logical extensions of the original legal principal. That is, if the language in the _ application may be considered to determine lap appropriate use, there is:no .-reason that should not equally apply to the nature of a specific condition. - Also, if the language iri-the application is considered, rt would seem to be a logical extension that comments made by the applicant at the public hearing . - would carry the same-weight as language in the application and, therefore, also be considered in determining whether a condition has been met. Prior to preparing this opinion, I have reviewed the ZBA Minutes and the tapes pertaining to the Grillo application for variances, as well as the Plans. submitted as part of that application and a recent narrative which was received from the applicant, Dr. Grillo and his attorney. In reviewing all of this documentation, I believe that the ZBA could have been much clearer in describing the variances.and the conditions attached thereto. It is not, however, required under Connecticut law that variances or their conditions be defined with absolute clarity. The courts have frequently recognized that decisions of land use agencies are being made by volunteer lay people working under sometimes extreme pressures of an ongoing meeting- and very short deadlines. In light of this situation, the courts have recognized that land use agencies do not always have the luxury enjoyed by "Monday morning quarterbacks" of virtually unlimited time to analyze every conceivable aspect of an application and to choose the precise wording to be used. It is my opinion that conditions were imposed with respect to each of the variances. One of the conditions to each variance was a reference to the Page 3 of 7 MEMORANDUM Re: Grillo Application August 16,2005 Plans submitted with the application. This condition, taken in conjunction with statements made by the applicants in the application, at the public hearing and in the Plans themselves, leads me to the conclusion that the existing building was to be retained and refurbished, with an addition being constructed to the rear of the existing structure. This opinion is based upon several factors. First, the minutes indicate that a specific condition was imposed noting that "approval is based on the plans prepared by Design Professionals, Inc. dated 2/26/04." Those Plans do not indicate that the existing structure will be torn down and replaced by a new building on the old footprint. The Plan specifically references the existing structure as a "frame house", without making any indication that it will be torn down or that a new structure will be rebuilt on the old footprint. It is also significant, in my opinion, that the Plan does note that the driveway is "to be removed" but does not similarly state that the.frame house is to be removed or torn down and reconstructed. My opinion is also based upon numerous statements throughout the public hearing made by the applicant's representative, Peter DeMallie, to the effect that the existing structure would be used. Among those statements and comments are the following- I. "The building is there, we're using that building, we can't really move that.building." 2. "So we're asking for a variance to improve, to refurbish and to modify the residence now standing to a conforming commercial use as opposed to today it is a non-conforming residential use in a commercial zone, a gateway zone." 3. "We're asking for permission to adaptively reuse that building...and put on an addition." 4. "Applicant could knock down the existing building and build a new building with an addition, if they met all of the front yard and side yard requirements", which they do not. The "existing building doesn't allow for that and it's reasonable to be able to refurbish it." 5. The applicant is using the existing building, they can't really move that building. In the application itself the applicant specifically states that "Mr. Grillo's Architect and Interior Dental Space Planner have laid out a plan to utilize the existing residence and an addition thereto." (emphasis added.) It is Page 4 of 7 MEMORANDUM Ro: Grillo Application August 16,2005 also significant that the application contains the statement "the existing driveway will be removed, as it will be replaced by the driveway to the north." There is no similar language in the application regarding the removal or tearing down of the existing structure and replacing it with a new structure on the old footprint. The first three variances granted at the ZBA meeting of April 1, 2004 were (1) that .the non-conforming existing structure could be enlarged or expanded by the proposed addition in the Plans, (2) that the proposed addition could be constructed with, and the existing structure maintain, a 12' side yard (25' required) and (3) that the proposed addition could be constructed with a 56.3" front yard (65' required).- Each of these variances was made subject to the condition that the applicant would substantially follow the Plans which had been filed with the ZBA. But each of these variances dealt almost exclusively with the addition and not -the existing building. The sole variance dealing exclusively with the existing structure is the last variance approved at the next meeting of May 6, 2004. That variance was to allow the existingstructure.or foot .. s. print to maintain.a front yard setback of - .37.9'.(65'required). There were references by some members to rebuilding,' but this was where the existing structure was destroyed by fire. After a great deal of discussion regarding the limitations to be imposed by the: variance, the motion .approving the variance was read back as containing the condition that the foo rint must .be the same as that displayed on the Plan "to allow the same floor area and cubic content." (The Minutes state the condition.differently, but the tape -contains the condition as stated above and it remained unchanged for the vote.) Based upon the discussion above, the condition regarding the last variance allowed rebuilding of the structure, but onlyon the same footprint, with th the same floor area and with the same cubic density. It is not en tirely c. ty leas whether this applied o y pp my if the existing structure was destroyed by fire or . otherwise. This would be an area where the ZBA would be in a better -position to interpret and/or clarify the variance and the precise condition being imposed. This leads to the final question of whether the current plans filed with the PZC conform to the condition imposed by the ZBA or violate that condition, thereby rendering the variance inoperable. Page 5 of 7 MEMORANDUM Re: Grillo Application August 16,2005 III. Whether the Current Plans Conform to or Violate the Condition Imposed with the Variances As noted previously, the courts have suggested that the interpretation of the terms of a variance or a condition-attached to a variance is best obtained from the ZBA itself. It may, therefore, make sense to deny the current application without prejudice to allow the applicant to apply to the ZBA for either a clarification or a modification of the conditions imposed with respect to the variances in this matter. This would apply not only to an interpretation of the condition itself but also whether the current plans submitted by the applicant conform to that condition or violate that condition. Since my opinion has been requested, however, I will provide it. My understanding is that the current plans call for the tearing down of the old existing residential structure and rebuilding it using the existing foundation and footprint, with an addition to the rear of the existing foundation. Although the condition imposed by the ZBA with respect to the variances could have been more clearly stated, it does appear from the surrounding statements and comments by the.applicant in the application -and.at the public hearing.that the.proposal called for the use of the existing structure rather than tearingit down It . appears to have been understood that the existing structure. would .be refurbished and renovated, but that it would not-be torn down. This is especially true with respect to the first three variances. The first three variances apply primarily to the addition, however, and the ZBA:seemed to be most concerned that the addition be restricted to the size and location indicated on the Plans. Whether the existing building was torn down would not appear to have any impact on the addition to the rear of the building. With respect to the final variance, the condition imposed appears to allow the rebuilding of the existing structure, but limited to the same footprint, floor area and cubic density. It is not clear whether this condition allows rebuilding immediately or only if the existing structure is destroyed by fire or Act of God. If it is the former, an engineer would have to review the current plans to determine if they are within the same footprint, contain the same floor area and cubic density. If they do, they would conform to the condition. If the mistingstructure can only be rebuilt if it is destroyed by fire or Act of God, it is my opinion that the Plans are not in conformity with the condition imposed by the ZBA. For the applicant to construct the building as proposed by the Plans before the PZC, in my opinion, would require a new Page 6 of 7 f MEMORANDUM Re: Grillo Application August16,2005 application to the ZBA to remove the existing condition, modify it, or clarify it as noted above. Once again, one option would be for the PZC to deny the current application without prejudice to allow the applicant to file such an application with the ZBA for either a modification or a clarification of the original condition. Page 7 of 7