SALISBURY — In a stunning reversal, a local zoning board has revoked the certificate of occupancy given to a lakeside property owner who constructed a large home that exceeded the parameters of its zoning permit.
At its Aug. 28 meeting, the Salisbury Zoning Board of Appeals voted unanimously to grant the appeal of Millerton Road resident Ann Marie Nonkin, who had taken the town and her neighbor to court over the building of a large house next door — one that Nonkin and her attorneys claimed was built without proper permits, is too tall and is in violation of the town’s own zoning code.
The board ruled that the construction project of Dean and Margaret Haubrich on the shores of Lake Wononscopomuc went beyond what was authorized by the zoning permit issued by town Zoning Administrator Nancy Brusie on Nov. 17, 2006. That permit allowed for “internal renovations,� but the scope of the project included the demolition of a small existing ranch home and the construction of a large multi-story dwelling with dramatic views of the lake.
“I am so proud of this board,� Nonkin said of the ZBA. “They did the right thing.�
She declined to comment further and referred additional inquiries to her attorney. Asked whether he felt vindicated, Nonkin lawyer William Conti replied, “I’m not sure that’s the right word. We think the second story was improper.�
Ruling follows hearing, court date
The ZBA’s ruling came on the heels of a lengthy public hearing on Aug. 12 that lasted almost three hours and featured four attorneys presenting exhibits and questioning those involved in the case.
Last year, Fred Laser, the Haubrichs’ general contractor, testified under oath in Litchfield Superior Court that the project amounted to more than “internal renovations,� Conti said. Laser, who is also the chairman of the Planning and Zoning Commission in Falls Village, did not return a call seeking comment.
Salisbury zoning requirements stipulate that lot sizes in the lake district must be at least 1 acre. The Haubrich’s lot is only 6/10 of an acre, but since their original home was built before zoning regulations were enacted in the town of Salisbury in the 1950s, the Haubrichs’ one-story ranch was considered nonconforming but legal. In common parlance, its right to exist was “grandfathered in,� but the ability to expand it was and is substantially limited.
Nonkin’s original petition to the Planning and Zoning Commission to rescind the Haubrichs’ permit was denied by the commission on June 12, 2007, because of a legal opinion from one of the town’s attorneys, Charles R. Andres, that the commission lacked the authority to revoke the permit. Rather, Andres said, the remedy for an incorrect permit issued by the zoning administrator is to appeal that decision to the Zoning Board of Appeals.
Regulation was unclear
Almost everyone now agrees that the real culprit is language in the town’s zoning code (in effect at the time the Haubrichs started construction), which was unclear on what constitutes the expansion of a non-conforming use — especially vertical expansion of a structure.
The code states, “No non-conforming building or structure shall be altered, enlarged or extended in any way that increases the area or space of that portion of the building or structure which is non-conforming.� That prohibition extends to adding a second story to “that portion of a building which is non-conforming.�
The policy to allow some vertical expansion was based on an opinion issued by Salisbury’s former town attorney, the late Ralph Elliott, on that portion of the code. Last year the P&Z changed the code to explicitly allow for a second-story addition under certain conditions. But the change was not retroactive, so the Haubrichs’ project is subject to the previous version of the code that was challenged by Nonkin and another of the Haubrichs’ neighbors, Anthony Bouscaren, who sued the town earlier this year.
In an interview, Bouscaren said he was withdrawing his lawsuit in light of the ZBA’s decision to grant Nonkin’s appeal.
“I brought the suit only to force the town to enforce their own zoning regulations,� said Bouscaren, an aviation attorney in Manhattan. “They seem to be getting on track.�
Of Elliot’s decades-old verbal opinion on the zoning code allowing for vertical expansion of non-conforming structures, Bouscaren characterized it as “rank hearsay� that “does not meet any legal standard.�
A first for the town’s ZBA
Jeff Lloyd is a Salisbury native and chairs the zoning appeals board. He said he has never heard of the ZBA declaring a zoning permit null and void. Indeed, the ZBA attorney, Peter Herbst, who was on vacation this week and unavailable for comment, told him the same thing.
“We came to the conclusion that the permit didn’t reflect what was built,� said Lloyd. “It’s as simple as that.�
As for what happens next, Lloyd said it is strictly “up to the parties involved� and that his board’s responsibilities have essentially ended with the granting of Nonkin’s appeal. He was reluctant to blame anyone, but guessed it would end up back in Litchfield Superior Court since the revocation of the certificate of occupancy prohibits anyone from living there or purchasing homeowners insurance, for example.
“It’ll end up going back to Litchfield because the house can’t just sit there,� Lloyd predicted.
Salisbury First Selectman Curtis Rand declined to comment since the matter could end up in court again. He did confirm that the town has spent about $40,000 in legal fees on the case, not including the lawyers’ billings for the month of August — which should be substantial.
The Haubrichs, who live in Princeton, N.J., are represented by North Canaan attorney Mark Capecelatro, who could not be reached by press time.
Asked whether his client would seek to have the top floor of the Haubrichs’ home removed, to conform with the zoning code in effect at the time it was constructed, Conti replied, “I will say this: We will ask the town to enforce its ruling. Where it goes from there I don’t know.�
