‘I Do Not Appreciate Being Put In the Position We Are In Now’: Zoning Board Grudgingly OKs Variance on Silvermine


Scolding a contractor for moving forward with construction work on a Silvermine Road house without proper authorization, zoning officials on Monday night grudgingly approved a variance that will allow the building project to continue.

A rendering of what's happening at 406 Silvermine Road in New Canaan, subject of a heated ZBA discussion on Feb. 1, 2016.

A rendering of what’s happening at 406 Silvermine Road in New Canaan, subject of a heated ZBA discussion on Feb. 1, 2016.

Fred Nigri told members of the Zoning Board of Appeals that what started as an interior renovation (basically, a master bedroom and bathroom overhaul) at 406 Silvermine Road evolved into a larger project when workers discovered mold and rotted framing at the 1948-built Cape.

Specifically, Nigri on an architect’s advice and with the homeowner’s consent, installed a pitched roof where a flat roof had existed (for several reasons, see below)—a change that required approval from the ZBA because it’s located closer to a side-yard setback than the 35 feet allowed (see page 58 of the Zoning Regulations here, the home is in the 2-acre zone).

“We had to make a decision because after we had the roof off, it was open, it would have been all open, so rather than put a tarp over it or whatever, after discussing it, we did enclose it, so that this way the house was not all the way open,” Nigri told the ZBA during the group’s regular monthly meeting, held in a board room at Town Hall.

Yet that work was not permitted and is now at least partially finished, board member John Mahoney noted, putting the ZBA “in an awkward situation, where we now either have to grant it—in part, because it is there—or we would have to ask you to remove it.”

Nigri responded that it was not his intention to put the board in a difficult spot.

“It certainly does, though,” Mahoney said.

He added: “The thing I am really troubled by is the fact that we are now dealing with a fait accompli rather than being able to have a discussion around hardship.”

Mahoney later added: “My own point of view, I would not let this happen again and have to come in front of this board—at least with me here. You are not the first one who has done it. I don’t appreciate being put in the position we are in now. By going ahead without a building permit and closing it and where we now would have to ask you to remove the construction does put us in a difficult position and don’t like to be that way with members of the town.”

Other members of the ZBA debated whether, even if the pitched roof hadn’t been constructed, they would consider granting a variance.

Board member Laura Edmonds said she didn’t see that the ZBA would have granted a variance with a properly executed project and “struggled with” doing so now.

ZBA member Jeanne Rozel said, “I have to say I don’t struggle very much because to me that is common sense: You open it up, it’s open and we have a blizzard or whatever. It’s open and you have got to decide what are you going to do. Are you going to put on a flat roof, like you had, which was not very effective?”

Ultimately the zoning board voted 5-0 to grant the variance, though with warnings to Nigri, and other contractors, to avoid performing work without check-in with the ZBA, when required.

Board member Becky Walsh said she was concerned that “going down the road, if other people say, ‘Well they got away with this.’ ”

“I don’t want to keep hearing it come back to us, not just with you [Nigri] but anybody else who might say, ‘Well, the ZBA is pretty lenient.’ ”

Board members asked how much the roof is out of compliance (a couple of feet), whether the original plan was to preserve the flat roof (yes, insofar as the original plan had been interior work only), whether Nigri expanded the room (not really, the footprint of the home remains the same), whether the interior of the “new” roof is finished (no it’s just studs and insulation to protect against the weather) and how tall are the knee walls in the room with its pitched roof (about 3.5 feet).

Nigri explained that there are many advantages to installing a pitched roof as opposed to the flat one in place before (following a 1974 addition to the home): “Aesthetically, without a doubt, from an insulation point of view, putting a conventional roof on will give them a much better insulating factor, and it also gives them a small amount of additional area in their bedroom upstairs which would be pretty much a closet area. We feel that in doing so there would not be any structural issues in doing the roof. We feel the advantages certainly outweigh the disadvantage of replacing a flat roof.”

Mahoney conceded that Nigri did not appear to move forward with the pitched roof for economic reasons and that he did obtain a building permit for the initial interior renovation, though he has larger concerns about the practice of performing unauthorized construction work in town.

“I am increasingly frustrated by being put in a position where I’m either having to ignore discussion or to stretch rationale to be able to—and ‘stretch’ not over the line, not unreasonably so—but after the fact having to rationalize something because the homeowner or their agent, contractor or architect, has done something, now we put a resident in a position of tearing something down that we might agree to or have agreed to,” he said.

6 thoughts on “‘I Do Not Appreciate Being Put In the Position We Are In Now’: Zoning Board Grudgingly OKs Variance on Silvermine

  1. I’m concerned about a pattern i’m seeing here. Wasn’t Inland Wetlands faced with a similar “after the fact” problem recently? Why aren’t we making contractors face penalties for decisions that are not done with appropriate authority? Bad weather is always going to influence construction projects. I fear that this decision will give cover to more builders who say they had to do something in haste because of the weather. I am not doubting the intentions of this builder, but i am concerned about the strength of enforcement, and hope that our town bodies give this some thought.

  2. It sounds as though the remedies available to the zoning board need to be strengthened. What disincentive is there for a property owner or builder to simply flout existing regulations when the likely penalty is a reprimand?

  3. Jane: You are correct, Inland Wetlands often deals with violators and, when that happens, those homeowners may be fined and nearly always incur additional application expenses as well as the costs of remediation which come with attendant consulting fees.

    Steve: The ZBA gets its power from Section 8-5 of the Connecticut General Statutes, as is noted in Chapter 17 of the Town Charter. Whether or not the town can change its powers I do not know, though New Canaan right now is undergoing Charter revision. I would imagine there are two major reasons that the ZBA, like P&Z, is especially careful in denying applications: 1. These deal with private property and most people here would agree it’s very important for people, as much as is allowable, to do what they want on their own properties, for which they pay such a premium, and 2. The only recourse for someone who is turned down by either municipal agency is to file a lawsuit, and in a town where people are perhaps rather willing and able to take up that course of action, you’re talking about a costly prospect for New Canaan.

  4. We encountered the same kind of issues – on a much larger scale – with our own home and the contractors prepared our home as best they could for the weather, while we worked out a reasonable (and permitted) solution to the issues.
    Our neighbor also had these issues, and their home spent a snowy, cold winter wrapped in tarps, while work was done from the interior.
    Why would a contractor/ homeowner proceed without consulting with the building inspector/ ZBA on an emergency basis?
    Add this to the above mentioned wetlands issues that the town has encountered and it sounds like enforcement needs to be stepped up.

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