Legal fine points arise in dispute over lake house construction

SALISBURY — It looks like the case of Ann Marie Nonkin versus her Lake Wononscopomuc neighbors has one again stalled at Town Hall, but the town will likely issue a stop-work order against further building by Dean and Margaret Haubrich.

At an exhaustive two-and-a-half-hour public hearing Tuesday night, Sept. 4, attorney Peter Herbst, who represents the Zoning Board of Appeals, ultimately advised the board that it did not have the jurisdiction to hear Nonkin’s appeal of a zoning permit issued by Zoning Administrator Nancy Brusie to the Haubrichs and their builder, Fred Laser of Falls Village.

Nor, Herbst said, did the board have the authority to hear an appeal of a Planning and Zoning Commission decision on the case. After listening to arguments from lawyers representing the commission, Nonkin and the Haubrichs, the board voted to take Herbst’s advice with near unanimity.

Herbst told the board that Nonkin and her attorneys, William Conte and Gregory Nolan, had failed to file an appeal within 30 days of learning of the issuance of the permit in question.

“I think the [state] statutes are very clear-cut,� Herbst said. “We don’t have the authority to expand the time frame.�

Nonkin claims the Haubrichs’ home at 144 Millerton Road was built without proper permits, is too tall and is in violation of the town’s own zoning code, which she says the town itself has failed to enforce.

In June, she also asked the Planning and Zoning Commission to revoke the Haubrichs’ zoning permit, which was issued late last year. The commission then ruled that the remedy for an incorrect permit issued by the zoning administrator is to appeal that decision to the Zoning Board of Appeals.

In July, a Litchfield Superior Court judge denied a motion by the Haubrichs to dismiss the Nonkin’s case seeking an injunction against further building.

At issue is the construction of a new home by Nonkin’s next-door neighbors, who began tearing down most of their modest ranch on a small lakeside lot and replacing it with a much larger structure. Since the Haubrichs’ original home sat on a lot that is smaller than current zoning allows, the home is considered legal but nonconforming. That means their ability to expand it was and is substantially limited.

Chuck Andres, the attorney representing the Planning and Zoning Commission, told the zoning board he recently received a survey from Nonkin’s attorneys indicating that in building the new home Laser went out of the “footprint� (or the original foundation of the house). If true, such an action would run afoul of the town’s zoning law regarding renovations of nonconforming structures.

“Our intent is to issue a stop-work order,� Andres said. He did not indicate when the order would be issued.

Some members of the zoning board, including Roger Rawlings, appeared frustrated at their inability to address what may have been a faulty zoning permit simply because the deadline for appeal had passed.

One of the Haubrichs’ other neighbors, Anthony Bouscaren, a New York attorney who owns a weekend residence on the other side of the Haubrichs, was blunt.

“So if the town violates its own zoning laws and if someone doesn’t find out about it and appeal within 30 days, then that’s OK?� he asked rhetorically. “What you have here is a form-over-substance argument... it doesn’t address substantial justice.�

In a brief interview, Brusie said Wednesday morning she had already issued the stop-work order verbally and was typing up the written order even as she spoke with this reporter just before press time.