The owners of a Pastures Lane home last week filed a lawsuit seeking to overturn a recent decision regarding the issuance of a permit for a driveway gate.
The town in July issued a permit for the owner of 78 Pastures Lane to install an automated driveway gate. Later that month, neighbors filed an appeal with the town regarding the permit itself. In their appeal, they didn’t voice concerns over the driveway gate, pointing instead to what they described as an overly tall and insufficiently screened deer fence on the same property.
Running south off of Silvermine Road between Canoe Hill and Valley Roads, Pastures Lane is a cul-de-sac of seven homes and one undeveloped lot. The gate in question is located on the cul-de-sac.
The matter came before the Zoning Board of Appeals in October. At a public hearing, the neighbors’ lawyer—Todd Lampert of New Canaan-based Lampert, Toohey & Rucci LLC—clarified that his clients were appealing the town’s decision to issue a zoning permit (the driveway gate) while there were existing zoning violations on the property (the fence—see page 156 of the New Canaan Zoning Regulations).
At the same hearing, an attorney for the property owner, a Wilmington, Del.-based limited liability company, noted that the driveway gate itself complies with local regulations and that state law does not allow for a ZBA to require a zoning officer to enforce violations on a property (the fence) prior to issuing an unrelated permit (the gate). The property owner’s attorney, Amy Zabetakis of Darien-based Rucci Law Group, also noted that even if there were separate (non-gate-related) violations, the town’s failure to enforce its Zoning Regulations is not appealable to the ZBA.
Even so, the ZBA at its meeting the following month voted 5-0 in favor of upholding the neighbors’ appeal, a decision reached by the appointed body “illegally, arbitrarily and in abuse of its discretion,” according to a Nov. 20 complaint.
“The Board failed to make any factual determination that the ZBA appellants were aggrieved by the assistant zoning inspector’s decision” and “granted the ZBA appellants’ appeal even though the appeal was not timely” and “failed to claim that there was any error with the decision but rather argued that the town planner had failed to enforce the town’s Zoning Regulations which is not an appealable decision,” Zabetakis said in an appeal of the ZBA’s decision, filed in state Superior Court on behalf of the property owner, RKVN LLC.
“The Board based its decision in part on alleged violations on separate property owned by the Plaintiff that was not the location of the Zoning Permit and “the record before the Board lacked substantial evidence to support the Board’s decision,” she said in the appeal.
The property owner is “statutorily aggrieved by the Board’s decision,” according to the filing, which calls for the court to “sustain the present appeal and declare the decisions of the Board to be null and void; order the assistant zoning officer to grant the plaintiff’s zoning permit, award plaintiff its costs and such other and further relief as the Court may deem just and proper.”
A separate lawsuit brought by the neighbors against the owners of 78 Pastures Lane, regarding the deer fencing, is active in state Superior Court, records show. According to the Connecticut Judicial Branch, a hearing is scheduled for Tuesday in that case, with a pretrial conference scheduled for Dec. 11.