Second lawsuit filed in lakeside zoning dispute

LAKEVILLE — A second lawsuit has been filed in the case of a partially constructed large home started last year on the shore of Lake Wononscopomuc.

Anthony G. Bouscaren, a Manhattan attorney who owns property next door to Dean and Margaret Haubrich, has filed a suit dated Feb. 13 in Litchfield Superior Court against the town of Salisbury seeking an injunction against further construction, the denial of a certificate of occupancy and damages in excess of $15,000.

"I was reluctant to bring the suit," Bouscaren said in an interview. "But my view is if the town has rules, they ought to follow them."

At issue is the construction of a new home by the Haubrichs, who last year began tearing down most of their modest ranch on a small lakeside lot on the Millerton Road (Route 44) and replacing it with a larger, multi-story structure.

Since the Haubrichs’ original home sat on a lot that is smaller than current zoning allows and since portions of it are only 15 inches from the nearest property line, the home is considered legal but nonconforming.

In addition, the code governing structures for that zone requires a 25-foot setback from neighboring properties. That means the Haubrichs’ ability to expand it was and is substantially limited.

The controversy has mostly centered on 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." At the suggestion of Chuck Andres, one of the town’s attorneys, the Planning and Zoning Commission last week passed regulations clarifying that the zoning code permits some vertical expansions of non-conforming uses. But that change is not retroactive and will not affect the status of Bouscaren’s lawsuit or that of another Haubrich neighbor, Ann Marie Nonkin.

Nonkin, who sued both the town and the Haubrichs last year after battling both the Planning and Zoning Commission and the Zoning Board of Appeals, said her case will likely go to trial within the next couple of months.

"We’re preparing to go to trial," Nonkin said in a brief interview. "Negotiations fell apart." Nonkin’s suit seeks an injunction against further building and removal of that portion of the Haubrichs’ new home that is nonconforming.

Jonathan Higgins, the longtime chairman of the Planning and Zoning Commission, said Monday he had only recently received a copy of Bouscaren’s lawsuit. Since he had not yet had a chance to read it, Higgins declined to comment.

Bouscaren and his wife live in New Canaan. They bought their lakeside home in 1999 as a weekend retreat and the couple, now in their 60s, plans to retire there soon.

But Bouscaren insists in his lawsuit that his "property value is diminished as the result of P&Z’s failure to enforce its own regulation." He scoffed at the notion that the zoning code as it existed last year allowed for vertical expansion.

"It’s very specific," Bouscaren opined. "The intent of the law is that you can’t expand a nonconforming use."

Bouscaren acknowledged that, if the zoning department ordered the Haubrichs to take down the nonconforming part of their house, the town would likely face a third lawsuit — this time from the Haubrichs themselves. So Bouscaren offered to contribute $1,000 toward a settlement.

"I suspect it can be worked out," said Bouscaren, a lawyer for the airline industry. "That’s what I do. My job is to settle lawsuits."

Bouscaren, who is acting as his own attorney, said he expects to hear back from Litchfield Superior Court soon. The return date on the lawsuit is March 13.