Wells Zoning Board closes hearing on deck that extends into reduced side setback; appeal likely to be denied

The Wells Zoning Board of Appeals on May 20 heard a variance appeal from property owner Mary Derico of 69 Bachelor Lane (tax assessor map 115, lot 89 A‑1) over a 5-by-7-foot deck that encroaches roughly 2 feet into the property’s reduced side setback of 11 feet 3 inches.

The board closed the public hearing after testimony from the owner’s representative, the town code officer and neighbors, and a presentation of permitting records and emails. The code officer said the deck was installed without a finalized permit and that the item in front of the board had been filed as a “mislocated building” appeal; he recommended the appeal be denied because the deck meets the municipal definition of a structure (a deck is defined in the code as a structure) rather than a building and therefore is not eligible for a mislocated-buildings remedy.

The applicant’s representative, Michael Gagan, said the homeowner believed a permit was not required because the contractor told them it was unnecessary; Gagan said the deck was placed in good faith and that removing two feet would be costly and would make the deck unusable. Code Officer James Moulton said the permit application from March 6, 2023, had been placed on hold; he reported email exchanges from March 2023 through March 2025 in which the contractor at one point stated a permit was no longer needed. Moulton said he replied that a permit was required and that his office later issued a notice of violation on March 20, 2025, after photographs taken March 14 showed the constructed deck.

Neighbors who spoke described the deck as small and aesthetically pleasing and said it did not negatively affect the neighborhood. The board discussed whether the deck is attached to the manufactured home (which could make it part of the building) or freestanding (a structure). Photographs in the packet show posts supporting the deck; the approved application drawings on file do not match the built condition, and the board noted discrepancies between the contractor’s drawings and the photographs.

Board members said they were constrained by code. Several members said the municipal code defines a building as a structure having a roof and intended for shelter; because the deck has no roof it falls under the separate definition of structure and is therefore not eligible for the “mislocated building” appeal the applicant filed. Members also noted that the reduced side setback for the lot is permitted under a nonconforming-lot adjustment (20% reduction) and that the deck intrudes beyond that reduced setback.

Members also discussed the requirement that a mislocated building appeal can be granted only when there was no willful, premeditated action or gross negligence to build within the setback. Several members said the evidence suggested the contractor proceeded despite being told a permit was required, and those members said that fact weighed against granting relief. The board did not make a final decision on formal relief at the meeting; instead the chair closed the public hearing and directed staff to prepare draft findings of fact for vote at the board’s next meeting (noted in the hearing as August 11).

The board took formal action to close the public hearing and later approved meeting minutes and adjourned. The board’s discussion included a straw‑poll direction that, given the definitions in the land‑use ordinance and the apparent willful contractor conduct, the board would likely deny the mislocated building appeal as filed; members noted the applicant could withdraw and refile under a different variance category (for example, a hardship variance) if the applicant chooses.

The town’s code officer advised that, irrespective of the zoning appeal outcome, the deck was installed without required permits and remains subject to notice-of-violation procedures and potential penalties under state statute if not rectified.

Documentation presented to the board included the March 6, 2023 permit application materials, photographs dated March 14, 2025, the March 20, 2025 notice of violation, and email correspondence between the code office and the contractor. The town will circulate draft findings to board members ahead of the next meeting when a formal vote on the appeal will occur.