Lakeside dispute pits neighbors against each other

LAKEVILLE — As any observer of development on Lake Wononscopomuc will tell you, controversy and building on the lake often go hand-in-hand.

Strenuous objections were raised in 1999, for example, to a large home under construction on the eastern shore of the lake. Two years ago, a ruckus over the measurement of a waterfront setback of another nearby home prompted the Planning and Zoning Commission to sue the Zoning Board of Appeals.

Now a lakeside resident, Ann Marie Nonkin, has taken the town and her neighbor to court over the building of a large house next door — one that Nonkin and her attorneys claim was built without proper permits, is too tall, and is in violation of the town’s own zoning code.

At issue is the construction of a new home by Nonkin’s next-door neighbors at 144 Millerton Road, Dean and Margaret Haubrich, whose primary residence is in Princeton, N.J. Last fall, the Haubrichs began tearing down most of their modest ranch on a small lakeside lot and replacing it with a much larger structure.

Grandfathered in

Zoning requirements stipulate that lot sizes in the lake district must be at least one acre. The Haubrich’s lot is only six-tenths 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.

Many of the questions surrounding the complicated case are in dispute, but all the parties seem to agree that the so-called “footprint� of a nonconforming home — roughly that area covered by the foundation — cannot be expanded. Beyond that, there is much discord.

Nonkin referred questions about the dispute to her attorneys, William A. Conti and Gregory T. Nolan of Torrington.

“The town is not enforcing its own zoning code,� Nolan said in an interview. “They haven’t even investigated the allegations.�

On Nov. 17, Zoning Administrator Nancy Brusie issued a zoning permit to the Haubrich’s and their builder, Laser Building Company of Falls Village. The company’s owner, Fred Laser, is also the chairman of the Planning and Zoning Commission in Falls Village. The reason for the permit application was listed as “renovation,� but another line on the application says “new home.�

The 15-day law

The law gives Nonkin 15 days to seek relief from town officials after the publication of the permit in January. But she waited months before complaining to the town in an April 25 petition to the Planning and Zoning Commission (P&Z) asking that the commission revoke the Haubrichs’ permit.

“She waited months longer than the law allows,� said William Franklin, an attorney from Litchfield representing the Haubrichs. “We are in this predicament because she waited too long.�

Nonkin’s petition to the P&Z to rescind the Haubrichs’ permit was denied by the commission on June 12 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 (ZBA)

Nonkin’s attorneys dispute Andres’ opinion, but the ZBA has scheduled a hearing on the matter for Aug. 14.

Injunction sought

Meanwhile, Nonkin has started a lawsuit against the town and the Haubrichs, seeking an immediate injunction against further building.

At a hearing in Litchfield Superior Court last month, the Haubrichs made a motion to dismiss the suit on the grounds that the law requires Nonkin to exhaust administrative remedies through the town before suing. Judge Robert Brunetti has yet to rule on the motion, Nolan said, but Nonkin is arguing that in seeking an immediate injunction against further building, she does not need to complete the town’s internal appeals process first.

Franklin said the Haubrichs have made two settlement proposals to Nonkin — both of which were rejected. He declined to speak further about possible settlements.

Observers say the real culprit may be language in the town’s zoning code that is unclear on what constitutes the expansion of a nonconforming 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 current policy, which allows vertical expansion, is based on an opinion issued by Salisbury’s former town attorney, the late Ralph Elliott, on the above portion of the code.

“Our view is that you can [build upwards] and that we need to have the regulations rewritten to reflect that in a clear and concise way,� said Jonathan Higgins, the longtime chairman of the Salisbury P&Z. He added that it’s clear a nonconforming building’s footprint may not be expanded, but “the confusion comes in the height.�

Evidently, the town’s current lawyers agree with him. Andres told the commission in a May 11 letter that if the P&Z’s current policy is that vertical additions “are not considered to be expansions of nonconforming structures,� then he recommends “the zoning regulations be amended to reflect that policy.�

As for Nonkin’s claim that the Haubrichs have also exceeded their footprint, Higgins said his understanding is that the builders had to dig a wider hole for the new foundation and then were going to backfill it. If it turns out that the footprint has been exceeded, then “we will remedy it,� Higgins said.

Nolan could not give a timetable for when Judge Brunetti would decide on the motion to dismiss, but the judge has up to 120 days to rule on it.

Lake association concerned

The Lake Wononscopomuc Association, a group of concerned lake residents, is considering recommending a change in lake district zoning that would increase the minimum lot size from one acre to two. While that change would not have prevented the Haubrichs from building their home, the Nonkin situation clearly has the attention of the association.

“The lake is under development,� association member Ed Erbacher said at a meeting Saturday. “We have neighbors fighting each other.�