ZBA upholds zoning officer's permit for privacy panels at 50 Shore Road after neighbor appeal

The Old Lyme Zoning Board of Appeals on July 16 upheld the zoning enforcement officer's decision to issue an after-the-fact zoning permit for three privacy panels attached to an existing deck at 50 Shore Road, ruling 5-0 that the record did not provide sufficient contrary evidence to overturn the officer's determination.

Neighbors Robert Nixon and Janet Leach (represented by attorney Danielle Mercury) had appealed the permit, arguing the online zoning application lacked a required plot/site plan and zoning table, that the panels were erected before permit approval and therefore the permit should be revoked, and that the lot and existing deck are nonconforming so any enlargement is prohibited.

"We are requesting that this permit be revoked and that the applicant, if they wish to continue to maintain this improvement, submit an application that shows compliance with the zoning regulations," attorney Danielle Mercury told the board, citing a history of enforcement letters and a 2014 order that the property owner provide certificates of zoning compliance for accessory structures.

Zoning enforcement testimony and the municipal record were central to the board's decision. The enforcement official explained the town had a valid building permit for the deck dating to about 2005 and that the earlier permit had not been appealed; under administrative principles that unappealed permit creates a presumption of validity. He told the board that, in his judgment, the lattice panels were a minor addition to a legally permitted deck and did not require a variance.

"In the absence of any contrary information ... if the CEO then approved it, I really have no basis to deny it," the enforcement officer said, explaining that many accessory-structure or small-works permits in town are reviewed and granted without full surveys and that the town often accepts simplified plot sketches for such minor applications.

Homeowner Lori Willis, who owns 50 Shore Road, told the board the panels were installed by a tenant in response to a collapsed shared fence and privacy concerns. She said the building-permit and zoning-permit steps had been followed as instructed by town staff and that she did not intend the panels to be hazardous.

Board members debated whether pre-application emails and a voluminous exchange of correspondence should be reviewed in full or whether the ZBA should act on the evidence supporting the enforcement officer's decision. Citing precedent and administrative law, board counsel said the controlling material for a ZBA appeal is the officer's decision and the evidence that supported it; pre-application communications generally carry limited weight. After closing the public hearing, the board deliberated and concluded the town record provided a reasonable basis to uphold the permit.

The board's action preserves the enforcement officer's after-the-fact zoning permit; the exhibits and correspondence submitted during the hearing were accepted into the municipal record. The decision affirms that, absent clear contrary evidence, long-standing, unappealed permits and the officer's judgment about minor accessory work can support subsequent approvals.

The board's written order and the case exhibits will be filed with the town; parties were informed of appeal rights to the appropriate court if they wish to pursue further review.