A map of 10 Rowell Street details plans for a marina on the property off of Wilson Lake. The planning board’s decision to deny the application for Wilson Lake Marina, LLP, was upheld at the town appeals board’s administrative hearing Wednesday, Nov. 10. Screenshot
WILTON — The Wilton Appeals Board upheld the town planning board’s decision to deny the site plan review application for Wilson Lake Marina at a “public hearing and action on administrative appeal” meeting held Wednesday, Nov. 10.
At the meeting, the appeals board reviewed the Wilton Planning Board’s finding of facts for Wilson Lake Marina (WLM). The appeals board agreed with the planning board’s conclusion that the application did not meet all of the required 24 review standards and unanimously voted that the planning board “acted in accordance with the (town’s zoning) ordinance.”
Appeals Board Chair Mike Wells said that in this appellate review, the board was “solely looking at the (planning board) process (for the decision on WLM’s application)” and if “the process (was) contained in our local Wilton law of the zoning ordinance … were those procedures followed.”
Wells clarified that the board would not be “looking at new evidence, findings, lawsuits.”
“We’re going to look strictly at the process the planning board conducted and determine if their decisions were in line with the ordinance,” Wells said.
The Planning Board at their Aug. 26 meeting denied the second version of Wilson Lake Marina’s site plan application — submitted May 21 following an initial version submitted March 11.
James Butler and Ashley Rand, owners of 10 Rowell Street, applied to establish a commercial marina business, develop boat docks and rent out 12 boat slips on their lakefront property. The application was submitted by Main Land Development Consultants on their behalf.
The planning board concluded that Wilson Lake Marina’s application did not meet five review standards of the Wilton Zoning Ordinance.
Under “the relation of the proposed building(s) to the environment and to neighboring buildings” (6.5.A.2), the board concluded WLM’s “visual relationship and orientation of the proposed docking system to the lake is not harmonious with the environment.”
A sketch of Wilson Lake Marina’s visual impact was presented by Wilton resident Peter Campion during the June 17 Planning Board meeting. Throughout the application process, town residents have raised concerns that the proposed marina would negatively impact the view of the lake. Screenshot
The ordinance also requires that “safe and healthful conditions will be maintained at all times within and about the proposed development” (“Health and Safety” 6.5.A.18). The board stated that “the marina is located within 114.9 feet of the Town of Wilton public boat launch.” This violates an amendment to the zoning ordinance approved at the June 14 town meeting requiring “at least 200 feet between a marina and a public boat launch.”
The allowed “outdoor resource base uses” (Table A4, footnote 6) — approved at the 2021 town meeting —states that a commercial marina cannot be “within 200 feet of a developed swim area … and within 200 feet of a boat launching facility.” The proposed marina is less than 200 feet from the boat launch near Stinchcomb Lane.
The final two review standards that the Planning Board concluded the WLM application did not meet (under Table B and 5.1.E.1 approved at the 2021 town meeting) require “twice the minimum shore frontage” to place more than one dock (among other structures) on a single lot.
That minimum shore frontage is 200 feet in “lots located in the Limited Residential and Recreational zoning district” — where 10 Rowell Street is located. The findings of fact state that “the lot has less than 200 feet of shore frontage and so is limited to one dock. There is already an existing dock serving the lot.”
During the public hearing portion of the evening, attorney-at-law Kendall Ricker, Butler’s legal representation, took issue with each standard that the planning board concluded the application did not meet and the events that led to the appeals hearing.
Ricker focused at length on the lack of “due process” and “equal protections” that he said the planning board violated by the events that followed the initial application submission.
A lot has happened since Wilson Lake Marina’s application was first submitted in March:
- The planning board requested a moratorium on commercial development on Wilson Lake (which the select board denied).
- The planning board submitted two articles to the warrant to amend the zoning ordinance, which impacted WLM’s application.
- Wilton voters approved those warrant articles at the 2021 Town Meeting.
- Butler and Rand filed a legal complaint against the town alleging “bias” against the project and asked the court to make the new ordinance amendments “null and void, and of no effect.”
- Planning Board member Michael Parker recused himself from overseeing the application because he was named in the lawsuit as being biased against Wilson Lake Marina.
- The planning board began its review of WLM’s application using a new finding of facts process July 8 that would hold up in court, under the guidance of town attorney Sally Daggett, rather than the check list the board was previously using.
- At the July 8 meeting, the review was halted until the Department of Environmental Protections acted on the new ordinances (which were ultimately approved).
- And then, the planning board denied the application in late August.
Ricker took specific issue with the appeals board’s requirement to only take into account the planning board’s actions and decision making at the Aug. 26 meeting and in the finding of facts review.
“What (the appeals board is) looking at is carrying out the duties to review and decide whether the decision maker abused its discretion … made a finding not supported by substantial evidence on the record,” Ricker said. “We would argue that the record should include all those meetings that was precipitated by the board from our application being submitted.
“Even if it wasn’t specifically the board acting on the application itself … those actions affected how the board reviewed the application,” he said.
Ricker also argued at length about WLM’s status as a nonconforming lot and its right to be grandfathered in to the previous version of the zoning ordinance.
The zoning ordinance defines “nonconformance” as:
Any lot, building, structure, use of land or portion thereof, existing at the effective date of adoption of, or any amendment to, this Ordinance, which as a result of the adoption or amendment to this Ordinance does not conform with one or more of the applicable provisions of this Ordinance, shall be considered lawfully nonconforming.
Because Butler and Rand owned 10 Rowell Street and submitted the application for WLM prior to the June 14 adoption of the amendments, Ricker argued that they should be “grandfathered (into) the nonconforming pre-existing law.”
Wells and other appeals-board members said that because WLM’s application had not yet been approved by the time the amendments were adopted and there was (and still is) only one dock on the property, it’s nonconformance did not exist “at the effective date of adoption” and it is not “considered lawfully nonconforming.”
That led into Ricker’s concern with the planning board’s delay to act on the application when the zoning ordinance requires “within sixty (60) days of the receipt of a completed application, the Board shall act to approve, approve with conditions or disapprove the site plan as submitted or amended.”
As the application was initially submitted March 11, Ricker argues the planning board missed this deadline.
However, the application was resubmitted May 24 and the board began acting on the application with a site plan review and finding of facts session by July 1 — within the 60 day deadline.
This argument comes down to a matter of interpretation. The town interprets the ordinance’s 60-day deadline as “it doesn’t mean it has to be approved or denied. You just got to get going on it,” Code Enforcement Office Charlie Lavin said in a phone interview Nov. 15.
During the meeting, Wells also said “the 60 days is sort of a recommendation, in a way, it’s not enforceable. The only action that the applicant would have had would have been to go to court and force the planning work to act sooner.”
In addition, the town began its finding of facts review that directly precedes a decision July 1. However, the application was tabled until the Department of Environmental Protection acted on the amendments (which the DEP ultimately approved) because Tom Dubois of Main-Land Development Consultants and Butler accused the town of judging the application on ordinances that were not yet enacted.
Ricker, for his part, argued that “the vote (to approve or deny the application) … should have taken place within 60 days.”
Ricker also took issue with the retroactive terms of the amendments. However, Wells pointed out that “state law actually allows the town to adopt a retroactive ordinance that can be retroactive to a permit that has been granted within 45 days.” While the permit was not denied until well after the ordinance was amended, WLM’s final application submission was also within that 45 day period.
Attorney-at-law Mike Hodgins also spoke during the public hearing. He presented the memorandum he issued on behalf of Holly Windle and Richard Rames, direct property abutters to 10 Rowell Street.
The memorandum emphasizes WLM’s noncompliance “with state law and the Town of Wilton Zoning Ordinance.” It also declares support for the planning board’s decision making based on the ordinances and current state precedent, which Hodgins has dealt with in a similar case in Belgrade.
In a phone interview Nov. 13, Windle said that while she was directly impacted as an abutter, she also had concerns about the safety of swimmers, kayakers and other boaters — given 10 Rowell Street’s proximity to the public boat launch — potential pollution in the lake from the people renting the boat slips and refueling, etc.
Windle decided to go the legal route and issue the memorandum so that if this case continues in courts, “the evidence of my attorney’s arguments will still be accessible if this goes to higher courts,” she said.
Ultimately, Windle feels “(Butler) doesn’t have local support for (WLM) at all.”
Wilton-resident and Friends of Wilson Lake-member Nancy Merrow also spoke during the public-hearing portion. Merrow drew from her experiences as a landlord in Wilton and said that “in the last 20 years, I’ve seen a decline in cleanliness, people being able to manage their trash … cigarettes not properly disposed of … dogs (not) picked up after.”
“I am really concerned about the health and safety of the Marina going in (with 12 boats),” she said. “I’m thinking 12 little apartments (with littering and pollution).
“The lake is delicate. We’re going to have all those little apartments up there. And we can’t manage it,” Merrow said.
Following the administrative hearing and decision, Butler told the Franklin Journal he was “obviously disappointed, but not surprised, par for the course with our dealings with the town.”
He is awaiting the outcome of the pending litigation at the Franklin County Superior Court.
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