November 24, 2014

Essex Zoning Board of Appeals Continues Hearing on 33 Plains Road Cease and Desist Order

ESSEX— The zoning board of appeals has continued its public hearing on an appeal of a town cease and desist order for a disputed structure at 33 Plains Road to an August 19 session. The board agreed to continue the hearing after a meeting Tuesday where it received new evidence about a structure that Zoning Enforcement Officer Joseph Budrow maintains was constructed without permits and is being improperly used as a residential dwelling in the town’s limited industrial zone.

Budrow issued a cease and desist order in January to property owner John Finkeldey after an investigation that began following receipt of a complaint in the summer of 2013. Finkeldey is appealing the order, represented by local lawyer Terrance Lomme, who also serves as the elected judge of probate for the nine-town region.

The hearing began in May, and resumed at a June 17 session where Lomme requested a continuance because a current survey map of the two acre parcel was not completed. Lomme presented the survey map Tuesday, along with letters from a current and former “tenant” in the structure.  The survey map shows three buildings on the parcel, including the house where Finkeldey lives, another structure that is also used as a dwelling, and a third structure on the northwest corner of the property that is the subject of the zoning dispute.

Budrow, in the cease and desist order, maintains this structure was constructed without zoning, building, or health department permits from the town, and is being improperly used as a dwelling because it is located on the limited industrial zone where town zoning regulations prohibit residential dwellings.

Lomme said the letters from tenants support Finkeldey’s claim the structure has been in place for more than three years without enforcement action from the town, making it a legal structure under state law. David Burke reported in his letter that he lived in the structure from 2000-2004, and that it contained running water and plumbing facilities.  Jane Graham reported in a letter that she has lived in the structure since October 2009. Lomme also presented a letter from Finkeldey’s father, Robert Finkeldey of Old Saybrook, maintaining the structure was built in the 1950s, and has had people residing there in subsequent years.

Peter Sipples, attorney for the zoning commission, said the panel maintains the structure can not be used as a dwelling in the limited industrial zone, even if has been in place for more than three years. He said the structure would have to have been used continuously as a dwelling since before 1973, when the town adopted the regulations defining the limited industrial zone, to have legal non-conforming status. Sipples added the town has no records of permits being issued for the structure or any improvements to it.

In continuing the hearing from the June 17 session, the board asked Budrow to provide information on what town tax assessment records show for structures and improvements on the property. Budrow presented a letter from Assessor Jessica Sypher advising that personnel working on the townwide  property revaluation that was completed last year did not fully inspect the property because there were no trespassing signs and no one was home at the time of the inspection visit. The 2013 revaluation was to have included visual inspections of all properties, a process that is required every ten years under state law.

When board members asked to review records of previous revaluations that included inspections of all properties, Lomme agreed to request a continuation of the hearing for the additional research.