KENT, Conn.—The Zoning Board of Appeals denied an after-the-fact waiver of setback regulations for construction of a garage at 71 Gorham St. when it met Wednesday night, April 15.
The property, located in the St. John’s subdivision, is being constructed by Howard Khuu and Joy Simbulan-Khuu.
With no variance in hand, the Khuus cannot get a certificate of occupancy for their property until they somehow come into compliance with zoning regulations. They have three avenues to achieve that, according to Zoning Enforcement Officer Tai Kern. They can adjust the size of the building, tear it down and relocate it, or work with their neighbor to revise their property line.
Attorney Anthony Palumbo represented the Khuus. He explained that the property in question presents challenges as it is a triangular lot with wetlands, ledge and a large conservation easement that make placement of the buildings, septic system, well and the like difficult.
The Khuu’s received Planning and Zoning Commission approval for their site plan that met all regulations but later, to avoid having to get approval from the Inland Wetlands Commission for an encroachment into the wetlands buffer area, they moved the proposed septic system location 15 feet farther away. As the septic system was located in front of the garage, that pushed the site of the garage farther back.
In repositioning the garage, the Khuus pivoted it so that one corner extended 5.4 feet into the side setback. The violation was discovered when Kern made a site inspection for the IWC and discovered the relocation of the partially constructed garage.
Palumbo argued that the site is fairly secluded and the side yard is all woods. “It will not impede on the neighborhood,” he said.
He turned the description of the project over to Howard Khuu to explain “the elephant in the room” of why it was an after-the-fact application for a ZBA variance.
“Initially, the septic system would have been 85 feet from the wetland,” he said. “After talking to Inland Wetland, we decided to make it 101 feet away, so we didn’t encroach on the wetlands. During construction, we realized that pushed the garage back and we gathered research on the lot and what zoning district it is in.”
The couple believed it was included under a Conservation Development Overlay District, which carried a required setback of 20 feet from the side yard borders. They added five feet to that and began construction.
“In fact, we were in the RU1 [Rural Residential 1] zone, where the setback is 30 feet,” Khuu said, “so we are five feet into the setback on one corner.”
ZBA members were not amused. “So, you made an assumption and didn’t check with Tai,” said John Johnson. Dan Schiesel queried why they had not gone back to Planning and Zoning when they deviated from the approved plan. That, he said, would have avoided any misunderstanding.
Khuu said, “At that time, we were looking solely at the zoning map to determine that we were under the CDOD. We looked at the regulations and had that setback distance in mind. We thought that information was enough.”
Chairman Anne Bisenius observed, “In the original plan, you had 19 feet of wiggle room. No doubt it’s a tricky piece because of its shape and conservation easement, but you had a plan that worked. You didn’t just deviate half a foot; you didn’t just deviate 20 feet—it’s a little concerning.”
Khuu said they varied the original plan and pivoted the building to provide ample space for a car to drive between the house and garage. “It was a judgement call because of the reality we were facing. The reasons for it were practical. Our backs were against the wall.”
He said the relocation of the septic system farther from the wetlands placed the edge of it against the garage wall right where conduits for service lines to the garage would be laid.
They later returned to the IWC for a waiver to fall back to 85 feet from the wetlands so the septic system could be moved back, “but by then the garage was in place.”
ZBA alternate Adam Manes inquired why the septic system had not been planned on the east side of the property where it would not infringe on wetlands. Palumbo explained that there is ledge on that side that would have required blasting.
“So, you pushed the garage back, which worked best for you,” said Manes.
Palumbo said it is not unusual for plans to shift when the realities of construction on a site are considered.
ZBA member Justin Potter observed that the well is located on the eastern side and there is a required 75-foot radius around it.
Required notices of the public hearing were sent to all neighbors and none registered an objection to the variance, even the adjacent owner. Palumbo said that resident’s house is already built at a considerable distance from the Khuu’s property line.
In face of criticism of the belated application, Palumbo said that if the Khuus had applied for a variance before construction they would have still be talking about the same location. “But if you came before us, we could have brainstormed ideas,” said Bisenius. “It boggles my mind that you never called to look for other options. You had approved site plan, but the applicant deviated from it by 25-plus feet.”
Schiesel proposed that the Khuus negotiate with the neighbor for a lot line revision, but Palumbo said this would require amending the original subdivision approval and getting all the owners to sign off on it. “It would be cumbersome,” he said.
Part of the ZBA’s requirements to approve variances is that the hardship being addressed is not self-imposed. ZBA members were not convinced that the Khuus had not created their own problems. “I see no reason why the house could not have been shifted,” said Manes, who voted against the waiver.
“It seems like playing footloose and fancy free and ignoring things or being incredibly naïve,” said Johnson. “Consulting with Tai would have cleared things up immediately. I think this is self-imposed and I am not inclined to approve.”
Two other members, Steve Pener and Potter, were more sympathetic. “It’ a relatively minor incursion and no neighbors have said anything,” said Potter, “I am not happy it occurred, but I am not going to tell them to tear down their garage.”
Pener said he knows the St. John’s development well and appreciates the difficulty of development there. “These conservation areas are kind of a mess and definitely do not allow wiggle room for development,” he said. “Everything is framed up and there’s a roof on it.”
Potter and Pener both rued the lack of communication prior to construction but believed that it would not negatively affect property values in the neighborhood. Johnson and Schiesel did not feel a variance was justified, however. Bisenius broke the tie by “reluctantly” voting for the variance.
The issue was not settled, however, because Kern reminded them that four concurring votes were required for approval and, by statute, the motion failed.
