While the decision ultimately came down to questions about the building process, the Zoning Board of Appeals (ZBA) received more information than it may have wanted regarding an application for a zoning variance at 30 Colburn Road. During the sometimes heated public hearing, it was often hard to understand the question at hand.
What it all boiled down to was this: Ralph and Norma Faber started putting an in-ground pool in their backyard back in 2019 after hiring Juliano’s Pools. They assumed that hiring a contractor meant everything was being done properly and by the book, but permits were not pulled, which led to a big mistake. The pool company started digging and cutting down trees on the neighbor’s property. Erik Schaefer of 34 Colburn Road was understandably none too happy about this. The Fabers offered to buy the property but Schaefer was not interested in selling. Once the town got involved a cease and desist order was issued, a survey was done, and the site of the pool was moved closer to an existing non-conforming garage/barn. The barn is too close to the property line but was essentially grandfathered in.
Once the pool was finished, the Fabers began noticing a runoff problem and called then Zoning Enforcement Officer (ZEO) David Perkins out to the property, asking what to do. Faber says Perkins told them it was “their problem,” though Perkins put it a different way, saying that he told the homeowners to seek the help of a professional. It is not within a ZEO’s purview to solve the problem. Ralph Faber says he began reconstructing the building to deal with the erosion and also added eight more feet to the building’s height so that the roof overhang was not in the way of the pool. However, Faber seems to have started construction without permits, which would have required a variance from the ZBA.
There was also a lot of confusion about the footprint of this existing non-conforming building. The Fabers say the footprint has not changed, and Perkins seemed to agree, though the neighbors did not. Ralph Koplar of 28 Colburn Road said a lean-to was added at some point, perhaps around 2015, to turn what was once essentially a one-bay garage/barn into a two-bay garage/barn. He provided an old photo from Bing Images, dated 2015, to illustrate his point. However, it seems the footprint expansion issue predates any of the permitting questions at hand, which is why Perkins says that, as far as he knows, the footprint has not changed.
Ultimately, much of the problem seemed to extend from Ralph Faber’s confusion over the permitting process. He said that after he paid the zoning office and submitted an application he was told he was “all set.” However, that did not mean he had a permit, only that he had begun the application process. Perkins said he eventually followed up with Faber for additional information regarding the site and construction plans.
When the town realized construction had begun before permits were issued, the Fabers were once again told to cease and desist, though the Fabers say they never received that notice. The town, however, presented evidence it had been signed for. Construction continued until they received a summons to court. For about two years, the construction has been at a standstill.
John Parks, the attorney for the Fabers’ neighbor, Ralph Koplar, informed the ZBA that last week the lawsuit between the town and the Fabers had been adjudicated, and the judge found in favor of the plaintiff. (If you really love legal documents, you can read through the case files here.) The judge gave the Fabers 60 days to either demolish the building or bring it into full compliance. The judge also awarded the plaintiff $21,175 for 847 days of zoning violations.
Getting a variance from the ZBA could bring the building into compliance. Attorney Parks, however, told the board that there is no hardship in this case, even as determined by the judge in the lawsuit, because the hardship must be beyond the control of the party involved. In this case, Parks argued, if you are adding something to your property and it causes the problem, it essentially falls on the property owner as a “self-inflicted” hardship and does not rise to the standards needed to issue a variance. “Not only shouldn’t you [grant a variance], but you can’t,” he told the board.
The town attorney, Ken Slater from Halloran Sage, was also on hand and agreed with Parks. He said that if the board were to grant the variance, it would almost certainly be appealed and overturned. He pointed to Pollard v. Zoning Board of Appeals, where the State Supreme Court decided that even a mistake by a property owner or their representatives does not create a hardship that warrants a variance.
In one of the more raucous meetings this reporter has ever attended, a lot of information that was ultimately irrelevant to the question at hand was thrown around. The lawyers occasionally intervened to point out that the meeting minutes would be impossible to keep because members of the public kept talking over one another. It’s clear, neighborly tensions are running high on Colburn Road.
Schaefer, however, said several times that he did not care if the Fabers built a garage as long as they followed the same rules and processes that he, as a contractor, had to. He suggested the building was constructed with improper timbers cut and milled from the property rather than with properly dried timber and that the foundation was not poured but built with concrete blocks. Of course, none of that would be allowed if the permitting and inspection process were followed.
Schaefer also said he and Faber reached a "gentleman's agreement" after the initial mistake involving the pool. Faber was to put up a white vinyl fence, move a shed that was on Schaefer's property and that would be that. According to Schaefer, the shed was never moved, and the Fabers continued to push the boundaries of his property, letting kids ride dirt bikes on his land and building a wood burner to heat the pool. The Fabers said they stopped using the wood burner after the State Police showed up at their house and told them they could not use it.
In the end, though, Schaefer seemed more concerned with the building conditions. “We can’t have two standards of building in this town,” he said. He suggested that if the ZBA approved the variance they would be “cutting the legs off the building department.”
The debate went on for nearly two hours. In an attempt to move the discussion past sentiments that had little to do with the legal matter at hand, current ZEO Andy Marchese said, “We’re here because permits were not approved.”
ZBA member Danele Rhoads, who was the most active board member in the conversation and indicated several times that she felt bad for the Fabers, continued to ask questions about the guidance given by the town when the erosion problems first began and how the garage would address the erosion. Essentially, it seems as though the foundation of the building is acting as a retaining wall.
Marchese asked the Fabers, “Do you have a signed and approved permit?” Ralph Faber answered, “No, we never had one for the pool either.” That could have opened a whole other can of worms, but the meeting moved on anyway.
Judith Mordasky, an alternate on the ZBA who was seated for Aaron Hoffman, moved to close the public hearing but Rhoads made one last call for public comment, saying she thought it was useful to let the neighbors “get it out here.”
After more back and forth among the gathered public, Dr. David Mordasky, a member of the Planning & Zoning Commission, who was also in attendance, spoke to remind Chair Dennis Kaba that there was a motion on the floor and to either ask for a second or deny the motion but to take some control of the meeting. Once the public hearing was closed, and the board’s discussion began, Judith Mordasky said that “a variance is not a tool of convenience” and that the board had to rule based on the regulations and not the people involved. She also noted that the state regulations say non-conforming buildings should not be extended.
Rhoads said she had a problem with the town moving the pool in the first place, though it’s unclear what alternative there was given that it was partially on someone else’s property. “We have the power to approve this,” she said of the variance application, and pointed out the Fabers had "been through an awful lot.”
Arlene Avery pointed to the unsigned permits that Faber had submitted as evidence. Kaba said it all started with the pool, which seemed like a clearly “self-imposed hardship.” He added, “If we approve this, it’s going to get kicked out.”
Avery moved to deny the application, Janene Berriault seconded, and the motion passed 4-1, with Rhoads voting against the motion.