Agenda - Planning Commission - 08/08/2005

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Page 6 -- July 25, 2005 a three-story addition. The variance was necessary because the addition did not comply with town setback and height regulations. Daw, a neighboring landowner, intervened, At that time, the variance was rescinded. Even so, Benson began construction knowing an appeal was pending. After several other hearings and interventions, the addition was completed in December 1997. However, appeals and litigation contin- ued, In 200 t, Westport's Zoning B card of Appeals voided the previously issued permits, it then ordered Benson to remove the addition. Benson sued, and Daw was allowed to join the lawsuit. The court ruled in favor 'of the board and Daw. Benson appealed, arguing neither the board, nor Daw ever took the cor- rect action to enforce the zoning ordinance, namely by filing'a lawsuit to enforce the zoning code within three years after the addition's completion in- 1997. Under the applicable statute, when a building violated lot boundaries, if "such building has been so situated for three years without, the institution of an action to enforce such regulation, such building shall be deemed a non- conforming use." DECISION: Reversed. Neither the board nor Daw properly initiated an action to enforce the regu- lation. The applicable statute was enacted to protect landowners and the public interest by requiring municipalities to act reasonably quickly on certain zoning violations and to protect innocent landowners from being able to provide mar- ketable title when a land survey uncovered an ex/sting setback violation. It was true Benson knowingly built the addition over the setback line while -the zoning appeal .was pending. To that extent, the second part of the policy was not served. However, the first part of the policy., was served in that' the board and Daw, although they took action, did not take the approphate action in a timely fashion. Limitations on the time to initiate an action often protected, and were intended to protect, wrongdoers, although the court did not feel Benson was a wrongdoer for choosing to build an addition 'during the pendency of a variance appeal. Ultimately, the steps the board and Daw took to oppose the construction and maintenance of the home addition, although considerable, did not satisfy the local requirement that an action to enforce zoning regulations be filed within three years. Therefore, Benson's addition became a valid, noncon- forming structure. see also: Daw v. Zoning Board of Appeals, 772 A.2d 755 (200t ). see aisc: Horace v. Zoning Board of Al~peals, 855 A.2d 1044 (2004). © 9..005 Ouinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 224