October 30, 2014

Essex Board of Appeals Continues Public Hearing on Cease and Desist Order for 33 Plains Road Property

ESSEX— The zoning board of appeals has continued the public hearing on an appeal of a town cease and desist order for alleged zoning violations at 33 Plains Road. The hearing will resume at the board’s next meeting on July 15.

Property owner John Finkeldey is appealing a cease and desist order issued last January by Zoning Enforcement Officer Joseph Budrow for a structure that Budrow maintains was constructed without zoning and building permits from the town. Budrow also maintains the structure is being used as a dwelling on a section  of the property that is located in the town’s limited industrial zone, where residential dwellings are not permitted under zoning regulations.

Tuesday’s session was continued from May 20 to allow for completion of a detailed current survey map of the property. But local attorney Terrance Lomme, representing Finkeldey, told the board he did not receive the survey in time for the meeting. Lomme said the survey map is “critical,” and asked for a continuation of the public hearing.
Lomme also serves as the elected judge of probate for a nine town region that includes Essex. Elected to the newly created position in 2010, Lomme, a Democrat, is seeking a second four-year term in the Nov. 4 election.

While granting the continuance, board members also asked Budrow to begin presenting his case for the order. Budrow said he learned of the structure in June 2013 based on information provided by a town police officer. Budrow said Finkeldey later maintained the structure had been in place for more than three years, which could make it a legal non-confirming use if there was no town enforcement action taken within that time.

Budrow said further investigation, including reviews of town records and aerial photos, confirmed the structure has not been in place on the property for more than three years.  “Clearly we have a second house on a property with another house,” he said.

Peter Sipples, lawyer for the zoning commission, said the panel is most concerned about use of the structure as a dwelling in the limited industrial zone. Sipples said the residential use would have to have been active before 1973, when the regulation on limited industrial zones was adopted, to have valid nonconforming status.

Michael Wells, lawyer for the ZBA, told Lomme he should be prepared to present documentary evidence the structure was built before January 2011, three years before the issuance of the cease and desist order, when the public hearing resumes next month.