Wilton ZBA overturns decision

WILTON – After more than two hours of sometimes heated debate Tuesday, July 8, the Zoning Board of Adjustment agreed with NTV, LLC and reversed a decision by Building Inspector John Shepardson. The buildings erected between Forest Road (Route 31 north) and Stoney Brook, replacing a dilapidated former fishing camp, will be allowed to stay.

Shepardson said in a letter dated July 30, 2012, that the existing structures on Lot D-155 could not be replaced or rebuilt on the grounds that the buildings were non-conforming with regard to lot area, lot width, and setback requirements of Section 6.2 of the town’s zoning ordinance, and that the structures were not grandfathered under Section 17.1 of the ordinance since they had been abandoned for more than a year and were not habitable.

The ZBA found that the structures, although severely dilapidated, had not been “destroyed” or “demolished” as stated in the ordinance, and therefore Section 17.1(d) allows them to be replaced.

Board Chairman Neil Faiman released the board’s findings Wednesday morning. The hearing had been postponed from an original hearing in March.

The camp, known in the 1940s and 1950s as “The Last Outpost,” had not been occupied for many years, although the property has been used regularly by fishermen.
Shepardson said the floors had rotted away and it could not be lived in.

NTV did not apply for a building permit after Shepardson stated in the letter that he could not provide one and listed several reasons.

John Griffith, representing NTV, said because it was a “fishing camp,” under the ordinances, no permit was needed.

Shepardson, and several members of the board, argued that the building is within the setback and that no structures are allowed there. He said an unofficial measurement (the lot was not surveyed) was 53 from the road but the actual edge of the state right-of-way was not known. He also noted that it was less than 20 feet from the brook.

It was noted that the camp was within the flood plane and was affected by the state’s Shoreline Protection Act, but that the state had declined to get involved, saying it was a local issue.

The Wetlands Bureau and the Department of Environmental Services stated they were satisfied that the camp was “grandfathered” and could be rebuilt on its original footprint.

The lot has neither town water nor sewer, and sanitary requirements are met with an outhouse.

Griffith argued that the “use” of the lot was fishing and that that had not changed, that fishing was permitted anywhere, and the condition of the building was not relevant.

The meeting began with the ZBA debating whether Shepardson’s letter was an actual denial and whether the fact that no building permit had been applied for, and therefore had not been denied, gave the board jurisdiction.

The board decided, based on wording of state statutes and legal interpretations, that the decision of the building inspector did not have to be preceded by a formal application, and that the board had the right to hear the case.

Griffith began his presentation by saying that Faiman could not act in a “neutral way” by his interpretation of the regulations and that had biased the board. He demanded that the entire board recuse itself and be replaced by another one.

Board member Bob Spear countered that he was not prejudiced since he had not sat on the original hearing last March. The board declined to step down.

Griffith referred to the “so-called decision of the building inspector” that the use was non-forming. “That is not so. It is a fishing camp as allowed. He knows it is not going to be a residence.”

NTV replaced the collapsing buildings with two new structures, and was issued a cease-and-desist order while the question was taken to court. The court allowed the case to continue. That finding was not part of the proceedings Tuesday since it happened after the issuance of the letter in question.

Griffith argued that the lot, which he said “extends under the river (to the railroad right-of-way) and for a quarter mile along the road, met all size requirements. “I’d ask the building inspector to prove it hasn’t been used for fishing.”

Faiman countered, “As I read (the ordinance) it means the structure and not fishing.”

Shepardson said there were other issues. “The exception (allowed for camps) is overridden by our zoning” and it has to meet building and sanitation codes.

Faiman agreed. “The ordinance does not provide an exception. This is just another building.”

Shepardson said, “If you allow this, you still have two extremely illegal buildings by Stoney Brook, which have to be dealt with somehow. They violate building codes.”

Griffith said a shed “was put there for use during work and will be removed.”

In the end, the issue came down to whether the building was “grandfathered,” that it predated the zoning ordinance, and whether it had been “demolished.”

In its deliberations following the public hearing, the board agreed that a new structure “probably couldn’t be built” on the site.

Spears said, “A camp implies you are going to live there” at least short-term.

It was agreed that the camp predated zoning and that “demolishment” was a deliberate act or natural disaster, not the gradual decay of neglect.

The selectmen, or any party to the action, have 30 days in which to apply for a rehearing of the case.