Correspondence

ZBA Budget printout dated 7/31/03.

Theresa Ashford Home Business renewal. The Board agreed that based on the application as presented, there were no material changes. The Board approved the Home Business Renewal.

Outgoing

Attorney Peter Solomon dated 7/10/03 re: Paul Currier rehearing approval.

Paul Bjork, dated 7/10/03 -Exempt Home Business Approval, 11 Rock Ridge Drive.

Arguello/Councilman dated 7/10/03 - Exempt Home Business Approval, 35 Academy Avenue.

Donald Naugler, dated 7/10/03 - Exempt Home Business Approval, 5 William Pond Road.

Dennis Parrish, dated 7/14/03 – SE/Accessory Living Unit approval, 11 Village Drive.

Steven Lewis for Kuldip Baines, dated 7/14/03 re: Wetland Variance approval, 14 Brushwood Drive.

Zoning Board Budget Printout dated 7/31/03.

Terri Ashford dated 8/4/03 re: Home Business Renewal notice.

John Sinclair dated 8/4/03 re: Home Business Renewal notice.

MINUTES:

The minutes of July 9, 2003 were reviewed with the following additions/corrections made;

Page 3, number 2 under the criterion change to Mr. Lewis assured the Board that this was not going to have an in-law apartment.

Page 5, first sentence of the motion, changed "call" to "called"

Mr. Carter made a motion to approve the minutes as amended. Mr. Ashford seconded the motion and it was unanimously approved.

Public Hearings: 8:00 P.M.

Rehearing - Paul Currier request for Variance from Article IV, Section 410:8 of the Zoning Ordinance to permit construction of a dwelling within the 100’ wetland buffer on property located at Sleepy Hollow Road, Map 3, Lot 80, TR2 Zone.

Abutters list was read with the following present:

Mr. Currier; Attorney Solomon, representing the Currier’s; Mr. Lavalle

Attorney Solomon outlined the request as an original request for a Variance with regard to the 100’ buffer requirement. It was denied by the ZBA, subsequently appealed and further denied. There was a trial before Judge McCue. Attorney Solomon stated that the Judge gave the ZBA the opportunity to place the proposed dwelling in a different location. Mr. Polito stated that he was present in the Court during the trial. Mr. Polito said that the biggest concern for the Board is the proposed size of the dwelling since it does not appear to correspond to what was represented to the Judge in Court. He also said that if the applicant is before the Board tonight with the same size house as was submitted to the Board after the trial, there will be a problem. Attorney Solomon stated that he is not before the Board with any size house. He contended that they are not before the Board to review a house, but rather the position of a house on the lot. Attorney Solomon claimed this is what the Judge ordered. Mr. Polito stated that this was not good enough. Attorney Solomon asked why wasn’t it good enough. Mr. Polito stated that Attorney Solomon represented to the Court a size house that was like other houses in the neighborhood. The plans that the Board has seen are for a house that is over 2500 square feet (from plans submitted by the applicant to the board after the trial). Mr. Polito stated that the vast majority of the homes in this neighborhood are 1000 to 1500 square foot 2 bedroom ranches or capes. Mr. Polito believed the representation at the trial was to build a modest two-bedroom house on this lot and not just any size house the applicant wanted. The Board is more than willing to work with the applicant to put a house on the lot, but the Board will not grant carte blanche to the applicant. The Board made it quite clear at the last hearing that the applicant was to come in with a plan showing the size of the house and the number of bedrooms. Attorney Solomon asked if it were a zoning requirement to show the size and shape of the house. Mr. Polito said it was at the discretion of the Board at the granting of the Variance that they can request any information that they believe is pertinent to meet the five criteria. Mr. Polito told Attorney Solomon that it was not a hardship if the applicant is trying to place a 3000 square foot executive home in a neighborhood of one half and one-quarter acre lots where the average size of the house is 1200 – 1500 square feet. Mr. Polito stated that he is quite disappointed that the Board still does not have a valid and complete application from the applicant.

Attorney Solomon read the Court Order into the record. Mr. Polito asked Attorney Solomon what he represented to the Court in terms of what specifically the applicant was building. Attorney Solomon stated that he did not recall. Mr. Polito stated that since Attorney Solomon could not recall, then the minutes should show that Attorney Solomon does not know what the Judge ruled on in terms of what the Board should rule on with respect to the setbacks and size.

Attorney Solomon stated that he had a septic plan (with him and shown to the ZBA that night), which shows the footprint of a two-bedroom home. Mr. Polito asked Attorney Solomon what Court record and what exhibit this plan was identified as in order to ascertain whether the plan before the Board was the same plan that was used by the Judge at the trial to make his decision. Attorney Solomon explained that he did not bring the whole Court record with him. Mr. Polito asked that the minutes show that Attorney Solomon did not bring evidence that the Board is looking at the plan that was discussed in the Court. Mr. Lavelle stated that this was the approved septic system plan that was before the Court. Mr. Polito asked what was the square footage of the house on this septic plan being presented tonight. Mr. Lavalle stated that it was a 26’ x 36’, two-story house which is 1872 square feet. Mr. Polito asked Attorney Solomon how this size house compared to other houses in the neighborhood. Attorney Solomon claimed that he would not do that. Attorney Solomon said that he is not before the Board to defend what went on in the Court and is not pertinent to this discussion. Attorney Solomon stated that he was not under cross-examination and that there was a Court Order. Mr. Polito wanted the minutes to show that Attorney Solomon refused to answer the question of the Chairman as to what he represented to the Judge in the Court case with respect to the size of the house the Plaintiff was proposing relative to other houses in the neighborhood. Attorney Solomon appeared upset and angry and accused Mr. Polito of cross-examining him. Mr. Polito stated that Attorney Solomon was out of order and that as Chairman he could have him removed. Mr. Polito then asked Attorney Solomon to proceed. Attorney Solomon stated that he had proceeded and that a plan was being presented tonight according to the Court Order. Attorney Solomon said the Court Order states that the Board can relax other setbacks if they so desire. He also said that they are willing to work with the Board to adjust the setbacks as the Board may see fit, to move the house away from the wetlands. Mr. Polito wanted the minutes to show that as someone who was present at the trial, he disagrees with Attorney Solomon interpretation of the Judges intent that the Board was limited considering setbacks only and not the size or footprint of the house.

Attorney Solomon wanted the minutes to show that the issue is not the size of the home, because that is not what was before the Board or the Judge. Mr. Polito stated that was his (Attorney Solomon’s) opinion. Attorney Solomon stated that they have met the criteria. Mr. Polito stated that the five criteria have to be met. Mr. Polito told Attorney Solomon if he were so sure of himself then the Judge would have ruled to not send it back before the Board. Attorney Solomon stated that Judge granted discretion to the Board to relax setbacks. Mr. Polito said there was nothing in the Order that granted the applicant the right to any particular footprint. The intent of the Judge was to place a house of reasonable character and size corresponding to what is on that street today and that is what the Board is willing to do.

Attorney Solomon disagreed and said he would take it back before Judge McCue. Mr. Polito said Attorney Solomon read part of the Court order and stated that the "location" is the only decision that the Board is there to make. The Applicant can ask the Court for a further review if they feel the Board is unreasonable per the Order. Attorney Solomon accused the Board of refusing to locate the house at all. Mr. Polito wanted the minutes to be clear that the Board was willing to entertain a presentation of the house to be built, but not willing to be restricted to the absolute footprint the applicant is bringing in on a septic plan tonight. He said the Board is willing to relax setbacks. Attorney Solomon asked the Board what footprint they wanted. Mr. Polito said he made it clear at the earlier hearing (following the trial) that the applicant come before the Board with a house of similar size to others in the neighborhood as was represented to the judge at the trial. He went on to say that the size and footprint affects the setbacks and is relevant to the protection of the wetlands. The applicant has proposed a house that is larger than just about any house in that neighborhood and that is not what was represented to the Judge. Attorney Solomon said that he was going to go back before the Judge with this septic plan, which is what was given to the Judge and will ask him to order this Board to recognize his Order. Mr. Polito asked Attorney Solomon where in the order it says the Board couldn’t affect the size of the house. Attorney Solomon read from the Order that "notwithstanding that restrictive standard the Court finds in the case based upon review of the certified record that the Zoning Board of Adjustment’s decision denying the Variance request of the plaintiff is at least unreasonable and maybe even unlawful". Mr. Carter stated that the Judge was under the impression that "the proposed size of the house is similar to the houses in the surrounding area" (quoted from the Order). Mr. Carter stated that the Judge was persuaded by something that happened in the Courtroom to have stated this in the Order. Mr. Polito claimed the Judge was persuaded by the presentation by Attorney Solomon.

Mr. Polito asked Attorney Solomon how he wanted to proceed. Attorney Solomon stated that he had completed his presentation. Mr. Polito told him his presentation was not complete and that he had to go through the five criteria. Attorney Solomon stated that he was not here to get a Variance because the Judge has ordered the Variance. He does not understand why this is not clear to the Board. Mr. Polito stated that the Board could go through the setbacks. Mr. Polito asked Mr. Carter if he agreed. Mr. Carter read part of the Order where the Judge sent the matter back to the Board. The Board then agreed that they do not need to review the 5 criteria.

Attorney Solomon stated they have a plan with setbacks shown as they exist now and are asking the Board where they would like the Applicant to locate the house. Mr. Polito stated that the plan is for a house that is 26’ x 36’. Mr. Lavalle believes this is not the largest house in the neighborhood. Attorney Solomon stated that he has made his presentation; he has a plan and is asking the Board where they want the house located pursuant to the Court Order. Mr. Polito asked that he come in with a more reasonably sized foundation. Attorney Solomon said he would not do that. Mr. Polito told Attorney Solomon it was his choice to go back to Court. Attorney Solomon stated that the Board was declining to move the footprint that was presented to the Judge and that he is presenting tonight and are requiring the applicant to come before the Board with a smaller footprint. Mr. Polito wanted the minutes to show that Attorney Solomon has not presented evidence that what is before the Board tonight, is in fact what was presented to the Judge. Attorney Solomon claimed that it was. Mr. Polito asked the applicant if they were willing to reduce the footprint of the house to be equivalent to footprints of other houses in the neighborhood, so that it can be adjusted fairly to the lot.

Attorney Solomon stated this was the footprint they were proceeding with, it was the footprint presented in Court and a footprint that basically corresponds to others in the neighborhood.

Minutes transcribed from tape Respectfully Submitted

Rebecca Russo _______________________