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ENFIELD PLANNING AND ZONING COMMISSION AND
ENFIELD ZONING BOARD OF APPEALS
COMBINED WORKSHOP/SPECIAL MEETING
JANUARY 10, 2012
A combined workshop/special meeting of the Enfield Planning and Zoning Commission and the Enfield Zoning Board of Appeals was held on Tuesday, January 10, 2012, in the Enfield Room, Lower Level, Enfield Town Hall, 820 Enfield Street, Enfield, Connecticut.
CALL TO ORDER
Mr. Duren and Mr. Yarum called the meeting to order at 7:00 p.m.
PRESENT FOR THE PZC:
Chairman Charles Duren, and Commissioners Lori Longhi, Charles Ladd, Jr., and Dominic Alaimo.
PRESENT FOR THE ZBA:
Chairman Peter Yarum, and Commissioners Maryann Turner, Maurice LaRosa, Charles Mastroberti, and James Bailey Brislin.
ALSO PRESENT: José Giner, AICP, Director of Planning, Virginia Higley, Zoning Enforcement Officer, and Kathleen DeGray, Recording Secretary.
Chairman Yarum explained that there were four items for discussion at tonight’s meeting and provided meeting attendees with a summary of each item:
Certificate of Compliance/Building Permit (Item A)
An application came before the ZBA a couple years ago, and the applicant received his variance to build an accessory building on his property. However, he overbuilt the property; overbuilt the structure. There was a court case, and ZBA won the court case. However, at some of the ZBA’s recent meetings, the question was asked, How do we know he is in compliance with everything before he gets his Certificate of Occupancy? Nobody had a good answer.
Chairman Yarum said that it was through Commissioner Turner that activity regarding this matter started in the Town offices. Chairman Yarum referenced a memo dated December 14, 2011 from Mr. Giner to Mr. Warren that explains the difference between getting a Certificate of Occupancy and getting a Certificate of Zoning Compliance. This is what will be discussed at tonight’s meeting.
As-Built Foundations (Item B)
Chairman Yarum explained that an applicant came before the ZBA on July 28, 2011, requesting a variance to put a required means of egress off the rear of his property. The question ZBA has is, Why are we at this point where he needs a variance? Why wasn’t this reviewed by the Town prior to him getting his building permit? Again, there was not a good answer. Chairman Yarum referenced a letter he put together to James Taylor, Chief Building Official, and he provided copies of the letter to the Commissioners for discussion later in the meeting.
Decks/Lot Coverage (Item C)
Chairman Yarum explained that an applicant came before the ZBA at their December meeting, and the application was somewhat confusing. The applicant had already built a storage shed on his property. This was found out, and it was determined that he needed to come in and get a variance in order to keep the storage shed. During the application process and all of the materials that ZBA received for review, there was some confusion as to lot coverage and whether or not the applicant exceeded his 20 percent. At first, ZBA was informed that he did; then after further review by the Planning Department, it was determined that he didn’t. So there is a lot of confusion as to what makes up the 20 percent lot coverage.
Fine Ordinance (Item D)
The issue on this is that ZBA does not believe that the two respective groups, ZBA and PZC have gotten together to do the final “okay” before going before the Town Council. ZBA understands that it is before the Town Council, and they were rushed to send it to the Town Council before the November elections, but it is still an agenda item for the Council and has not been discussed. ZBA wants to make sure we are all on the same page when talking about the Fine Ordinance.
CERTIFICATE OF COMPLIANCE/BUILDING PERMIT
Chairman Duren commented that when Wayne was here, he had his own process for doing things. Some things got done, some things got let go.
Commissioner LaRosa said that while ZBA was reviewing the Town regulations, it doesn’t suggest that this should be done, it specifically says that it shall be done. This is on Page 104, Section 12, Item G. This is something that the Town may not always have been following, but if it is in the regulations, the regulations should be followed.
Mr. Giner said the question was what constituted a certificate. For many years it was something called a CORF form, which the ZEO signs off on, and the practice was that this signature served as a certificate that the permit was in compliance with Zoning.
Mr. Giner also stated that there was a stamp that the ZEO had which he suspects was primarily used with as-builts. He also said that Public Act 84-174 was mostly concerned with the initial review of the permit. A lot of times, under the statutes, the term Certificate of Zoning Compliance was used in conjunction with a determination that a permit application was in compliance. The ZEO would certify that it was in compliance, and the Building Department would issue the permit.
This kind of morphed over the years, and now the Certificate of Zoning Compliance is tied to the Certificate of Occupancy. This causes a problem with buildings that are not occupied and thus not issued a Certificate of Occupancy. This is what is falling through the cracks.
Chairman Duren asked Mr. Giner why the Legislative bodies, the PZC and The ZBA, are ignored when the regulations are very clear (Page 104, Section 12, Item G) in stating that a Certificate of Zoning Compliance is required. There are no ifs, ands, or buts, it is clearly stated. Nobody ever came before the PZC to say that this regulation is a problem and needs to be amended.
Commissioner Longhi said that she knew there were changes when Wayne left, and asked when the Certificate of Zoning Compliance disappeared. Mr. Giner said that there was never a Certificate of Zoning Compliance. The stamp, and example of which is on Mr. Giner’s memo to Mr. Warren dated December 14th, is not a Certificate of Zoning Compliance.
Commissioner Turner referred to the Zoning Regulations, Item E. She said that this is where the discussion started, and she went to see Mr. Warren to discuss some options. Commissioner Turner said that the bottom line is not that the Building Department shouldn’t make sure that the building is or is not in compliance for how it is built, ZBA is fine with that. ZBA has an issue with things like the Robbins building. This was such a mess and such a big issue, that the ZEO should go back on site to be sure that the Zoning part is completely finished. Commissioner Turner said that when she discussed this with Mr. Warren, his response was, Well why isn’t it being done that way. She said that this gives the impression that the ZEO is not doing her job, and that isn’t the case.
Commissioner Turner said that ZBA has now started making this a condition of approval and has been doing so for the past month or so. She again referred to the regulations that specifically state that “this shall be done”.
Commissioner LaRosa said he has seen it before where the Building Department has signed off on something that still has zoning issues. The Building Department is not looking for zoning issues, they are concerned with Building Code compliance. Zoning needs to be signing off on these applications to be sure they are in compliance with Zoning Regulations. The regulations say it shall be done, and ZBA should be enforcing that.
Chairman Duren said that when the PZC changed the Zoning Regulations, people upstairs had plenty of time to take care of Section 12-20 if they wanted it changed. He said that this is the first time it has been brought to his attention that this regulation is not being complied with.
Commissioner Turner said one of the comments made to her was that this would be tying the end-user’s hands, giving them more things to do. She says this is not the case. The end-user goes to get their permit, and at the end, it needs to be signed off on for zoning compliance. This would cover those buildings that no one is occupying and that won’t be issued a Certificate of Occupancy.
Mr. Giner said that he did not think any of this was intentionally done by Wayne or anyone else. He said that years ago the CORF form was used and this form had a line specifically for the ZEO to sign stating the building was in compliance with Zoning Regulations.
Several Commissioners discussed looking for this form and not being able to track it down. Chairman Duren said that it should not be in the Building Department. Commissioner Turner said that the Building Department should not be generating the outcome of the ZEO doing her job.
Mr. Giner said that this was a flaw in the process. The Building Department initiates the form. They send the form around saying a building is ready for final inspection and gets different departments to sign off. The flaw is that only buildings that are “occupied” get signed off.
Commissioner LaRosa said that what they talked about within ZBA is adding this to the application. When the applicant signs off on the application, there should be something stating that the applicant has to come back to be sure their building is in compliance with Zoning Regulations. This way, the applicant knows up front that they will have to come back for this step.
Commissioner said that the ZEO has to be able to complete their task. They don’t have to wait for someone to tell them, they don’t have to get flagged. They need to know when the permit is being put in place, and there needs to be a final sign off by the ZEO. The Building Department is not responsible to tell the Planning Department what to do next.
Mr. Giner said this is especially true for the smaller projects that don’t require Certificates of Occupancy. He said that the projects approved by the PZC all require the Building Department to sign off on the final Certificate of Occupancy and that is when the ZEO gets to see the as-built. If there is no Certificate of Occupancy, this isn’t happening and these projects are falling through the cracks.
Commissioner Longhi said that this is the problem of the zoning tech signing off on things that the ZEO never sees. Several Commissioners said that she is not a “zoning tech”, but rather a building tech. Mr. Giner said that this is not the problem, as the building tech has only been signing off on things since July and this has been going on a lot longer than that. There was discussion as to what this tech was actually signing off on. Mr. Giner said that it was limited to things that did not have any kind of a relationship to a standard in the regulations and it was being done within the Town Attorney’s interpretation of the State Statues.
Mr. Giner said that the building tech and what she is signing off on is a discussion for another time. He referenced a memo that PZC already has from the Town Attorney providing guidelines as to what can and cannot be signed off on by the building tech.
Mr. Giner again stated that the building tech is not the reason for the lack of Certificates of Zoning Compliance. She has only been signing off on limited things since July, and the lack of a Certificates of Zoning Compliance form goes back long before that.
Chairman Turner used the Robbins building as a specific example of the need for a Certificate of Zoning Compliance. The court case was won, the building was lowered to meet the specifications of the original permit. The Building Department will go out and sign-off on the building, but not on zoning issues. The ZEO has to be sure that Zoning Regulations were followed and that the conditions required as part of the permit process were complied with.
Mr. Giner said that in this case it was certified to the court that the building was lowered to be in compliance with the regulations and was now in conformance. We are not surveyors, we are not technicians, we don’t climb ladders. The engineer takes the grades and sends a letter certifying that the height is at the required level. This letter was received, and then Mr. Giner was asked by the Building Department to look it over, and he said it looked like all requirements were met. Mr. Giner explained that if a surveyor says something is 25 feet, he accepts that. He does not go out and re-measure things.
Mr. LaRosa asked if once Mr. Giner was done with his inspection he asked the ZEO to issue a Certificate of Zoning Compliance. Mr. Giner said no because these certificates have not been being issued. Mr. LaRosa said that until such certificates are issued, the ZEO has privilege to be on the property in question.
Mr. Giner asked what would be the reason for the ZEO to go out to the Robbins site. The only issue was the height of the building. Mr. LaRosa said that there isn’t an issue with the ZEO not going out in this case. He said that the ZEO has jurisdiction over every property seen by the ZBA until they are closed out. Mr. Giner said this is true and that he has the same jurisdiction.
Mr. Giner said he and Ms. Higley work together regularly, and that what is needed is a mechanism to issue Certificates of Zoning Compliance. There is no form, something needs to be created. That is the problem. Up until now, sign-off has been on the CORF form, and buildings without Certificates of Occupancy are falling through the cracks.
Commissioner Turner said she agrees there is no mechanism, and it is a goal for 2012 to develop one. Should it be in MUNIS? Should it be a signature on part of another form? Should the ZEO create a specific form? She doesn’t care how it is done, as long as it is done.
Commissioner LaRosa said that there should be a system in place, and it is done in other towns, where even if there is no zoning issue, it should still go to the ZEO for sign-off that everything is in compliance. Everything should go through all the channels so that everybody sees what is going on.
Commissioner Turner said that this would also be good for the end user to make sure everything is complete and in compliance so that they are not blindsided in the future is a possible violation.
Mr. Giner said we need to come up with a certificate. He said that up until now, everybody has been using the Building Department form as a certificate. Whether that is right or not, that is what is being done. The Town Council got rid of zoning permits, the building permit is the only place where the ZEO can sign off. It isn’t physically in the Planning and Zoning office, but it is in MUNIS, and it is in the building. He said the Town is trying to get away from too much paper. Mr. Giner said that when he wants to see a building plot, he goes to the Building Department. He said what they have is good and he does not need to duplicate it in his office. Planning and Zoning currently signs off on a portion of the building permit stating that everything is in compliance with Zoning Regulations. He does not see the need for a separate form.
Commissioner Turner asked Mr. Giner if the Building Department was using the Certificate of Occupancy to have the ZEO somehow sign off on Zoning Regulation compliance. She pointed out on the Certificate of Occupancy all of the different areas where different departments will sign off. Mr. Giner said, yes, that is the form this is being used and that has been in use for some time.
Commissioner LaRosa said that this process only works if it is a living building. Mr. Giner said that is correct. He said that he wasn’t aware that Building wasn’t signing off on decks and garages. This is a problem. Those type of small structures that don’t get Certificates of Occupancy are not getting a final inspection and are not getting signed off on because Planning and Zoning does not know when they actually are built. There is not a mechanism for Planning and Zoning to be kept informed of these structures and there needs to be. Mr. Giner mentioned the possibility of some form of permit alert in the software system that would keep everyone informed.
Commissioner Longhi said that the Certificate of Occupancy was what you would get if you were coming in to build a new house, but that is not if you were coming in to do your basement over. Mr. Giner said that is true, unless what you were doing required a Certificate of Occupancy, you would not have this form.
Ms. Higley said there was confusion as to exactly what would generate a Certificate of Occupancy. She said she discussed this with Mr. Taylor, and the answer is a brand new structure. If you build a new house, you get a Certificate of Occupancy. If you later add a garage to that house, you do not. If you add an addition on the that house, you do not. There needs to be something for the ZEO to sign off on in these instances. Ms. Higley showed the group a form she put together for discussion. She found a State of Connecticut form for zoning compliance on line and modified it.
She gave an example of a resident that was having trouble with his neighbor. He asked Ms. Higley to give him an official certificate saying that he was in compliance with Zoning Regulations. She gave him this form, as an unofficial form, with a cover letter. She would like to make this form official.
Commissioner Turner said that based on the regulations, he should have received a Certificate of Zoning Compliance and should not have had to beg for one. Commissioner Longhi agreed and suggested the group figure how we can make this happen.
Mr. Giner said the one of the first things that needs to be done is that a line needs to be included on the building permit stating that the applicant must call the Zoning Office upon completion of your project to obtain a Certificate of Zoning Compliance. Mr. Turner asked what would happen if the applicant completes their project and just decides not to call. Ms. Higley needs a way to be sure she is triggered to follow up on these applications. Regardless of whether or not the project is completed immediately or six months from now, the follow-up process needs to be in place. Ms. Turner suggested having the techs receive a list of permits issued and having them follow-up on a continuous basis to keep tabs on the status of projects.
Mr. Giner had other suggestions to keep tabs on the status of projects, such as checking on the progress when out on inspections if properties are visible from the street, creating alerts in Outlook, or having something in MUNIS.
Chairman Duren said we’ve identified the problem and we can fix this right now. We need a form. Ms. Higley has a form that she made up. She needs to submit it to PZC and we will take care of it. Chairman Duren also referenced Section 12-20, B of the regulations, which says that no building permit shall be issued until the ZEO has signed off on it for such use or work certifying a proposed use or structure as requirements of the Zoning Regulations. This is not happening. Chairman Duren said that someone is changing the regulations without P&Z doing it.
Mr. Giner talked about Mr. Warren’s request for the Town Attorney’s opinion, which generated his September 26th memo, which is an ongoing PZC agenda item. The question was, what does the State Statute require for building permits, because you can only do what the State Statute requires for Zoning.
There was some disagreement among the Commissioners. It was stated that you have to do at least the minimum required by State Statute, but there is nothing stopping Zoning from doing or requiring more than what the State Statute requires.
Chairman Duren again stated that somebody is not following the P&Z Regulations. Mr. Giner started to explain Mr. Warren’s position, and Chairman Duren pointed out that Mr. Warren does not run P&Z. Mr. Giner said he understood. He said that you have to ask the Town Attorney, and that is what Mr. Warren did. Mr. Giner started to say what the Town Attorney said; but Commissioner Longhi said that she asked the question about what was in the State Statute, and the Town Attorney never responded.
Commissioner Turner had a question about the proposed form before it is decided on. She said there have been suggestions in the paperwork she has seen floating around, from Mr. Warren as an example, about having a MUNIS check-off. It would be in the computer system. Commissioner Turner said that electronic sign-off should be beside the new certificate in P&Z’s electronic documents. However that has to happen, it should be done.
Commissioner LaRosa said that this would force them to send everything to everybody and would ensure that everything went through proper channels. This way everybody would know what is going on.
Mr. Giner said that he has to think that if someone builds a large deck, there has to be a final inspection, something in the file where the Building Department says that it complies. Mr. Giner used as an example times where someone’s deck collapses and people are hurt and they go back to the Building Inspector who did the final inspection.
Chairman Duren suggesting wrapping up this topic. He asked Ms. Higley to send the form to the next PZC meeting (January 19th) and the Commission will add it as an agenda item for discussion at the meeting subsequent to that (February 2nd). He also asked if Mr. Giner would look into the electronic side of this to see if an alert in MUNIS or Outlook was possible.
Commissioner LaRosa asked if there was a way to add this to the original building permit. This way the customer knows when they sign their name to the building permit that they need to come back for Zoning. Commissioner Longhi said that this would make it easier for the applicant. They would know what steps they had to take.
Chairman Duren asked where it would be put on the permit. Mr. Giner said that the applicant gets a printout, and that it would most likely go at the bottom of this, stating that Zoning sign-off was required.
Commissioner Turner said that the whole idea behind a Certificate of Zoning Compliance is a good one, but she said a whole package has to be designed, not just a certificate. The permit needs to be modified, MUNIS needs to be modified, and we need the Certificate of Zoning Compliance. Chairman Duren said that modifying the building permit would not fall under the purview of the PZC; this would be up to the Building Department.
Commissioner Brislin asked whose obligation would it be to seek the certificate? Is it the landowner’s obligation to seek the certificate, or is it the obligation of the ZEO to follow up. Mr. Giner said that ultimately it is the landowner’s responsibility to tell P&Z that their project is done. If they don’t, there needs to be a mechanism for flagging projects so the ZEO is alerted to follow up. Mr. Giner said we can come up with a mechanism. All PZC has to do is tell the staff to find a mechanism. It doesn’t need to be micromanaged. We know our operation, we know the MUNIS system, we can figure out the best mechanism.
Chairman Yarum said the issue is the homeowner doesn’t know that they need to come back for Zoning compliance. Commissioner Brislin said that was his concern as well. Chairman Duren said our group put together a booklet that should still be up in the office of things the homeowner should do. Maybe it could be added to that. Mr. Giner said that that the booklet is not necessarily for homeowners but rather for those appearing before boards and commissions.
Chairman Duren asked if the question was, if the homeowner wants proof he has complied, for example if he is selling the property, what would he get. Commissioner Turner said this is another issue/area. Let’s just say this person got a permit, didn’t get a Certificate of Compliance, and five years later he wanted to sell the building. His land deed is not going to show that he has compliance. Chairman Duren said that the landowner’s attorney would have to take care of that. Commissioner LaRosa said that doesn’t always work.
Chairman Duren asked if the discussion was finished regarding Certificate of Zoning Compliance. Mr. Giner said it was. We are going to come up with a form for the PZC to review. Chairman Duren asked if there was a need for another meeting regarding the form. Chairman Yarum said this would not be necessary. If ZBA has any questions/concerns, they can go through Ms. Higley. Chairman Duren said he wasn’t sure how the MUNIS part of this would be handled to provide alerts when projects should be done so that Zoning can follow-up. Commissioner LaRosa said that other towns are doing it, and it can be figured out.
The consensus was to send everything to Ms. Higley. This way, if action is required, she can take action. If no action is required, she can just sign off and send it on to the next area.
Chairman Yarum referenced his August 1, 2011 letter to James Taylor, Chief Building Official. He summarized by saying an application came before ZBA where the applicant needed a variance for his rear yard setback in order to put in his egress set of stairs that was required under State Building Code.
The question was, how did we get to this point. This was new construction on a non-conforming lot. Why didn’t one of the departments try to work with the builder so that they wouldn’t need a variance. Commissioner Longhi said that basically when you are building a house and you get a foundation inspection, that is the reason for the inspection; for somebody to go out there and make sure everything is in compliance. Chairman Yarum said the point is this should have been nipped in the bud before the foundation goes in. Let’s get the drawing and let’s see what’s going on.
Commissioner Longhi said that this is what the engineers are for, to measure everything and to be sure everything is correct. Commissioner Turner said that in this particular case, she went to the engineer and asked how did we get here. She pointed out where the engineer had signed off on “steps and decks”. The response from the engineer was “I never looked at the as-built plan.
Mr. Giner said that the whole point of asking for a foundation permit is to be sure everything is as it should be before the whole house is put up and variances are needed. He said that once the house is up, you are between a rock and a hard place. The variance almost has to be granted or the house would have to be torn down. Commissioner Turner said that this was the case with the application being discussed.
Mr. Giner said the foundation permit was designed to put a hold on any work above the foundation until there is an as-built. Commissioner Turner said that she went to the engineer and he admitted to signing off without seeing the as-built plan. She wanted to know how this could have happened when they were knowingly short on their setback. Mr. Giner said that he would look into why this was happening and what the solution would be. He said there has to be a way to put a hold on the project until there is an as-built and it is reviewed.
Commissioner Turner said that in this case they knew they were short on their setback, because they designed the stairs to indent into the building so they would not extend out beyond the foundation. She said this put Zoning in a position where they had to grant a variance or the building would have to come down and this would upset the neighborhood.
Chairman Duren asked what the solution is. Mr. Giner said the solution is to find out why are we are not getting an as-built foundation plan from each applicant to review before the framing is allowed to continue.
Ms. Higley said that she went to Mr. Taylor and asked if he inspected damp proofing on new structures and backfilling. He said he did and she asked to be notified when someone made an appointment to have him come out for either damp proofing or backfilling. This way if there is no as-built, she can go out and stop the work. This would be a way to make sure there is an as-built, and if there wasn’t it would be gotten quickly. Ms. Higley said that her request has fallen on deaf ears and that she cannot get them to notify her.
Mr. Giner said this is the first he has heard of this problem and he will look into it. He said that if there continues to be resistance, they are going to end up having to tear down a house if the Building Official is going to allow framing without an as-built. Mr. Giner said he does remember getting as-builts at one point, and is not sure why this stopped. He mentioned the possibility of personnel changes being the reason.
Commissioner Turner said that she would like to have a special meeting just on this issue once Mr. Giner finds out more details.
Chairman Duren said that the PZC has expressed concern right along about the building tech signing off on things that should have been signed off on by the ZEO. He said that she should not be signing off on anything that has not been authorized yet by PZC. He said that this as-built issue could be a result of that.
There was discussion that the as-built issue was more likely a Building Department issue where the inspectors are signing off just by looking at the foundation and saying everything is okay. They should not give the go ahead to start framing until an as-built is submitted. It is that simple.
Commissioner asked for clarification that on an as-built, the architect or engineer would have to put his signature on specific lengths, widths, etc. If something was short, it would say so on the as-built. Commissioner Longhi said that the applicant is already paying for this, it won’t add any additional costs. Commissioner said one reason not to require an as built would be if the builder wanted to hide something. She thought this was this case in this instance.
Commissioner Longhi said when a foundation is off, you can take down a wall of the foundation and re-pour it to fix the problem. You can’t do this once the house is up.
Chairman Yarum cited a residence on Abbe Road as an example. This home was built by a husband and then turned over to a wife in a divorce. The house was built four inches over his property line – not the setback, the actual property line.
Commissioner Turner referred to the Town Council and how it wants boards and commissions to be more customer friendly. She said they are trying to do that and that they want to be customer friendly. She did say, however, that when a builder blatantly does something dishonest like the builder on the Bernadino Avenue property did, it makes the Town look bad all the way around.
Mr. Giner said that the regulations are very specific – they say that upon placement of the foundation or lowest floor, prior to backfilling or further vertical construction, the builder shall submit an as-built plan for approval before construction goes any further.
Commissioner Turner asked how the Building Department can be letting this happen, and Mr. Giner said he would look into it before the next special meeting. He said he would get to the bottom of it and find out if the Building Official knows this is being done and if so, why is it being done. Mr. Giner said that the regulations were being followed at one time.
Mr. Giner said he would report back to both Commissions once he had some answers. Commissioner Turner stated that she is not looking to be mean or point fingers. She is looking for consistency. The same steps should be followed with every application.
DECKS AND LOT COVERAGE
Chairman Yarum explained that an application came before ZBA and it has been tabled until the next public hearing hoping that we can get some clarification as to what we are looking for here.
The issue is the applicant built a structure that he didn’t have a building permit for and he was caught. Mr. Giner did a review and thought the applicant was over his 20 percent lot coverage. Upon a second review, it turns out the applicant was not over his 20 percent and all he had to do was worry about his setbacks.
Chairman Yarum referenced Mr. Giner’s October 26, 2011 memo to Ms. Higley. He said that the memo goes by definitions of what lot coverage is, what a building is, and what a structure is. In order to consider any kind of building and/or structure in the 20 percent, it has to have a roof; it has to be intended for shelter housing or enclosure of persons, animals or materials. Any other structure more than eight feet tall shall be considered a building, including a solid fence or wall, but excluding a public utility pole or flag pole. Chairman Yarum said that in most cases a deck is considered a structure, not a building and cannot be included in the 20 percent.
However, if a person has a deck in their back yard that is 10 feet off the ground, it would be considered a building, not a structure, and this would be included in the 20 percent. This was often the cause of confusion.
In December of 2009, the definitions were amended. ZBA went before PZC and explained the situation, and the regulations now read accessory building or use, and building or use in addition to the principal building or use, which is clearly subordinate to and customarily incidental to and located upon the same lot as the principal building or use. Structures which provide principal access to the building, including but not limited to decks, landing, porches, etc. are considered part of the principal structure and shall not be considered accessory structures. Further, the Zoning Board of Appeals shall have no authority to vary this provision.
Chairman Yarum said now there are conflicting definitions. Mr. Giner said that isn’t the case. He said you are using the word structure. It can be part of a principal structure and still not be considered part of the building. Commissioner LaRosa said that when ZBA wrote this regulation it was designed to close loopholes. That deck attached to the primary structure for all purposes is the primary structure for lot coverage, for anything.
Mr. Giner said that decks have never been considered buildings as defined in the regulations. Chairman Yarum asked Mr. Giner how he can say that a deck can’t be considered part of the principal building, but if it is eight feet in the air then it is.
Mr. Giner said that you have to understand why building coverage is there. Building coverage is not an environmental standard like impervious coverage. Impervious coverage is there basically so that you don’t pave everything and cause flooding. Building coverage is more a consideration for the building environment. On the lot, the scale of how everything looks in the neighborhood. Low lying decks and patios don’t count for coverage because you can’t see them. If they are eight feet in the air, our Town decided to count them.
Mr. Giner said we have the exact same regulations and he read the definition for building coverage from a publication titled “The Latest Illustrated Book of Development Definitions”: “The ratio of horizontal area measured from the exterior surface of the exterior walls and ground floor of all principal and accessory buildings on the lot to the total floor area. Comment: In single family residences, porches and decks are usually excluded.”
Commissioner Turner asked about where the deck is – is it attached to the house, is it sitting in the middle of the yard? Mr. Giner said the house is a building. Anything that has a roof and walls is a building. You can have a principal structure and decks become part of the principal structure because it doesn’t exclude them from setbacks. By making them part of the house or building, it got rid of the setback loophole.
Commissioner LaRosa said the Mr. Giner is interpreting a definition that was written by himself and Chairman Yarum and the definition is being interpreted wrong. Mr. LaRosa said that our purpose was solely to say that in all purposes not matter what that deck is measured and considered part of that house. Mr. Giner said that this means you have to go back and change the definition of a building then.
Commissioner LaRosa asked for a minute to fight Mr. Giner’s argument. He said he could write an encyclopedia on this definition. However, he asked Mr. Giner to remember a couple months ago when someone came in and they wanted permission to have ducks and chickens. Mr. LaRosa fought with everyone involved, and he said there is nothing in our regulations that say that I cannot have a chicken for a pet. Everybody involved said, If it is not there, then it is not permitted. So which is it – an encyclopedia for each definition, or if it’s not there it’s not permitted.
Mr. Giner said that the definitions in the regulations are black and white, they always have been. Commissioner Turner said to Mr. Giner that ZBA has denied people who have come in front of them for decks because ZBA has interpreted the regulations from December of 2009 forward a certain way. Mr. Giner said the regulations are being misinterpreted.
Commissioner Turner asked how much deck you can put on a property – can you cover the whole property? There was discussion back and forth about this simultaneously among many of the Commissioners.
Chairman Duren referenced Section 2.10, the 2nd line, which reads, the word structure includes the word building. If you reverse that, does the word building include the word structure? There was discussion back and forth about his simultaneously among many of the Commissioners.
Mr. Giner said, in reference to 2.10, that we specifically say that a building is a structure having a roof and walls. Any other structure more than eight feet high shall be included in the building definition. .
Chairman Duren referenced a time when someone told an individual if they disconnected it, it was an accessory, not part of the main building. Commissioner Longhi said that she always thought decks were part of lot coverage, and Mr. Giner said they are not. Commissioner Longhi asked him how says so, besides him.
Commissioner Turner said if there are not specific regulations there will be decks everywhere.
Mr. Giner referred to page 6, 13 Building – this is a specific definition. A building is a structure, but a structure is not necessarily a building.
Chairman Duren asked the Commissioners to read point 88 – he read into the record: a structure, anything constructed or erected which requires location on the ground or attached to something having location on the ground, including signs and billboards, and not including fences and walls.
Mr. Giner said that is a structure. Commissioner LaRosa said, no, if it is attached to the building, it is a building. Mr. Giner said we do not say structural coverage, we say building coverage and we clearly define what building coverage is. There was simultaneous discussion among the Commissioners about attached versus detached “structures”.
Commissioner LaRosa told Mr. Giner that he could not have it both ways. Mr. Giner said is isn’t both ways. Commissioner LaRosa said they wrote a definition that specifically says that the deck as described is a part of the primary building.
Chairman Duren asked how we would tighten up the wording so that there is agreement.
There was discussion about structure versus building. Mr. Giner said that the definitions are very specific, and that that is what would hold up in court. The court will look to the definitions for clarification, and building and structure are not interchangeable.
Simultaneous discussion ensued among the Commissioners about the definitions and how to clear this up.
Mr. Giner said that the definitions all went through the Town Attorney and it was agreed that that is what the definitions were. Commissioner Turner said her concern is potential lawsuits as ZBA has been denying applicants based on their interpretation of the regulations.
Chairman Duren said it is obvious there is a problem, let’s stop arguing and solve it. Commissioner Brislin said that the way to solve it would be to either change the definitions to conform with the new regulations, or change the regulations to conform with the definitions. It has to be one or the other. He went on to say that he doesn’t know of any other community where decks are included in the lot coverage. This would be unique for Enfield.
Mr. LaRosa said he thought that’s what they had done already. Mr. Giner said that it isn’t what was accomplished and that there will be problems with interpretation. Commissioner Turner said that if there is no limit to deck size, that people will cover their yards with wood and then when we are not looking, they will enclose them.
Mr. Giner said if you want to include decks as part of lot coverage, then our definition of building needs to be changed or get rid of “building” and just use structure. Just say structural coverage. Chairman Duren said that it does say that. It says that structure includes the word building. Mr. Giner again referred to the specific definition of Building on page 6. Mr. LaRosa said we sub-defined it by saying if the deck is attached it is part of the building.
Commissioner Turner said that this was the intent, but may not be the interpretation. Mr. Giner agreed and said that making the interpretation clear is easy – it is just a matter of wording it properly.
Commissioner Turner was concerned that if new language was proposed tonight, what would be done about applications that come before ZBA in the meantime, until the new language is implemented.
Chairman Duren asked what was wrong with the regulation being discussed (Number 3). Chairman Yarum said it uses the words “are considered part of the principal structure”. Mr. Giner again emphasized that structure is different than building.
Commissioner Yarum said if you go back and review definitions, a structure is not a building. But ZBA is acknowledging that the structures include decks, landings, porches, etc. We are saying the exception to the rule is those structures when they are attached to the building are part of that building. Therefore, both the building and the structures attached to it would have to meet all setback requirements.
Mr. Giner again stated that this is not what is said, and is not how it is going to interpreted legally. Commissioner LaRosa said that he would never tell Mr. Webster that he disagreed with a definition in his dictionary and I am going to interpret it this way. He said you should take the interpretation of the people who wrote the definition and say, this is the primary building, period, end of story.
Mr. Giner said, what about the people who wrote the definition of Building – a building is what it is as defined in the regulations – there is not room for interpretation.
Chairman Yarum referred the Commissioners to the middle of the paragraph being discussed and read the following proposed modification into the record: . . . structures would provide access to the principal building included but limited to decks, landings, porches, etc. are considered part of the principal structure and shall not be considered accessory structures and shall be considered as part of the 20 percent lot coverage. It was suggested that the word attached be removed from this definition so that detached structures were also included.
Commissioner Turner said the concern was primarily with lot coverage. Commissioner Brislin suggested changing the definition of lot coverage then as an easy way to solve the issue. This would only be one sentence: Lot coverage, that portion of the lot covered by a building or buildings and attached structures. That gets you to where you want to go.
Commissioner Turner suggests that Chairman Yarum’s and Commissioner Brislin’s suggested wording somehow be combined.
Chairman Yarum referred back to his definition above, and suggested adding the following after accessory structures – and shall be included in the 20 percent lot coverage.
After considerable discussion among the Commissioners, this is the wording that was decided upon:
Lot Coverage: That portion of a lot covered by a building or buildings and structures attached to said building or buildings.
Commissioner Turner referenced the reason we are having this discussion tonight. She said the applicant in question comes out of his sliding glass door and steps on his deck and then has access to his yard. He is using the deck for egress.
Mr. Giner said, let’s make this simple. Do you want decks to be included in lot coverage? The Commissioners said they did. Mr. Giner said he would work on it with the Town Attorney and make sure there is not ambiguous interpretation.
Chairman Duren and Commissioner Longhi asked why the Town Attorney was needed. They agreed that it takes too long to get a response. Mr. Giner said it is necessary to make sure the language will hold up legally.
Mr. Giner made it clear that these changes will not go backwards and cannot be applied to applications already voted on; they can only be used going forward. Some of the Commissioners wanted to know what this would mean legally if someone who was previously denied came back questioning it. Commissioner Brislin said that if there was a lawsuit, the actual definitions will trump what is in the regulations if there is any doubt of interpretation.
Mr. Giner said that it takes at least 35 days to change a regulation because it has to go through proper channels.
Chairman Duren asked to have the changes to number 3 read again - - - and shall be considered as part of the 20 percent lot coverage. And then on page 9, number 54 - - That portion of a lot covered by a building or buildings and structures attached to said building or buildings.
The Commissioners also reviewed 12 and 14 to be sure there were no other issues.
Changes were made to items 3 and 54 and that is all. These changes will be given to PZC for consideration at their next meeting.
Mr. Giner brought up impervious coverage and the fact that P&Z does not regulate this. He said that impervious coverage causes a lot more problems and damage than lot coverage. He said this was just something to think about – it is regulated for industrial and commercial, but not residential. Maybe something can be done to regulate the amount of impervious coverage in a residential area.
There was discussion about how paving property was becoming more popular, and Commissioner Ladd said that Washington D.C. actually has an impervious surface tax for residents that choose to pave their yards.
Chairman Yarum said he believed that the ZBA and the PZC never actually approved what was before the Council regarding Fine Ordinance. Commissioner Turner said that she sat with Ms. Higley and went line by line, and what was submitted was the same as what was shared between ZBA and PZC.
Chairman Duren is concerned that the Council has the Fines Ordinance but does not have the procedures that are in place that will be associated with these fines. He said the Council should have both the procedural process and the requested fines, or they will not approve it. Mr. Giner said he would make sure the Council got the procedures.
Commissioner Brislin asked what the procedures are that the ZEO goes through. It is a very lengthy procedure that takes forever. Ms. Higley explained that P&Z has adopted standard operating procedures. Sometimes she gets a call, and sometimes it is something she sees while she is out and about. She then writes up a complaint form in the computer and sends a notice of violation. The person has 30 days to remove the violation. After the 30 days, Ms. Higley goes back out to confirm that the violation has been taken care of. If it hasn’t, she then issues a cease and desist, which gives the violator another 30 days plus 10 days.
The 70 days is not even the worst issue – the issue is, the 70 days go by, the violator stops, and then they start back up again, and the process starts all over. Repeat violators can keep on violating, because the Town cannot take each and everyone of them to court.
The purpose of the fine would be to give a penalty to repeat and habitual violators. If the 70 day process is complete and there is still a violation, hit them with a fine. If they pay the fine and start violating again, you wouldn’t have to go back through the process again, you could just hit them with another fine. It is hoped that continual fines will deter repeat violators.
Commissioner Alaimo asked if there was a way to speed up the process – rather than enacting fines, could there just be a tax levied on violators. Chairman Duren said that this was not possible.
The Fine Ordinance has been approved by the Town Attorney and is before the Council. P&Z cannot fix fines. The Council has to do that. The problem is, the Council is looking at the fines without the standard operating procedures that were adopted to go with them. Looked at in a vacuum, the Council may misinterpret the purpose of the fines and deny the application.
Commissioner Longhi brought up the subject of having more than one hearing officer for ZBA appeals, as this would be more equitable. There are three hearing officers for tax appeals, why not for ZBA appeals. She is baffled by why there cannot be three hearing officers for ZBA appeals.
Commissioner Alaimo asked why it takes so long. He talked about Thompsonville and how important it is to him. He referred to properties in Thompsonville that are littered with trash and debris and have been for some time. Can’t someone come in and clean the mess up and then lien the property of payment?
Ms. Higley said that situations like that can be handled by the Blight Officer – Kassie Huhtanen. She has the ability to issue fines, so this may be a way to get this taken of more quickly.
Mr. Giner said that there were issues brought before the Town Council regarding changes to the Blight Ordinance and forcing people to clean up their properties – he used “clean and lien” as an example. The Council voted it down. Commissioners stated that the Council wants its boards and commissions to be user and business friendly. It was the general consensus that this is not a P&Z problem, but rather a Town Council process.
Commissioner Ladd said that nothing in Government is ever accomplished quickly, as there are so many levels, each with its own set of checks and balances.
Commissioner Alaimo said he would like to take Ms. Huhtanen through Thompsonville to point out some of the properties that are most troublesome. He said this is not just an issue of unsightliness, but also a health issue.
Commissioner LaRosa discussed P. C. Richards and the fact that signage was approved based on a total square footage that he believes was purposely misrepresented. JoAnn’s Fabrics is now next to P. C. Richards in space that was supposed to belong to P. C. Richards. Chairman Yarum tried for diplomacy by suggesting that perhaps all of this property was indeed leased by P. C. Richards and maybe they sublet that portion to JoAnn’s Fabrics. Commissioner LaRosa was not convinced. He said it is one thing to be user and business friendly, it is quite another to be duped by a dishonest applicant.
Chairman Duren did speak to some Council members informally about the Fines Ordinance. He let them know that there were standard operating procedures that went along with the ordinance. He was told that they had not seen the procedures. Chairman Duren asked Mr. Giner to please get the procedures to the Council.
Commissioner Turner suggested a special meeting with the Council and members of the PZC and ZBA to discuss the Fines Ordinance and accompanying procedures.
Another suggestion, made by Commissioner Ladd, was to have the two Chairmen meet with Matt so see if this could be expedited.
Commissioner Longhi made a motion, seconded by Commissioner Alaimo, to adjourn tonight’s meeting. After unanimous agreement, the January 10, 2011, Special Meeting of the ZBA and PZC was adjourned at 9:00 p.m.
Peter Falk, Secretary
Enfield Planning and Zoning Commission