A developer’s request to excavate gravel from a lot on Isaac Frye Highway in Wilton may be a moot point, as the Zoning Board already ruled on a similar case on the same lot in 2006.
The lot, close to the Route 101 entrance on Isaac Frye Highway, had already started gravel excavation before the developer, Isaac Frye Holdings and applicant Kenneth Lehtonen were issued a cease and desist order by the town.
The lot does not fall into Wilton’s gravel excavation district.
Subsequently, Isaac Frye Holdings filed a request for a variance to allow the removal of the gravel “incidental to the construction of a single family home.”
The Zoning Board of Adjustment has started the hearing process on the variance request already, with the initial public hearing held on May 11. The meeting was continued to June 5, but the meeting was continued again without discussion at the request of Isaac Frye Holdings, and expected to continue during the board’s next meeting on July 13.
However, since the initial meeting, the board has discovered a previous case where a ruling has already been made regarding gravel excavation on the same property, 15 years ago, which may render the request moot.
In 2006, K.M. Zahn and Sons applied for a variance for the same lot to remove the gravel from the site and relief from setback requirements.
On July 18, 2006, the Zoning Board issued denials of both requests. There was “overwhelming opposition to the proposal” according to the decision, and it would be both contrary to the public interest and contrary to the spirit of the Wilton Zoning Ordinance. The board found most of the criteria for a variance was not met in this case.
The decision on the case was not appealed.
By state law, when an application is submitted, it must be determined if a previous application was denied for the same situation. If the board determines there have been significant changes in circumstances, then the board should reject the application and end further consideration.
However, what constitutes a significant change is unclear in the law, and left mostly to the discretion of the Zoning Board.
“Basically, there’s a general rule that once something is decided, you don’t go back and decide again,” said Zoning Board Chair Neil Faiman. “If a decision has been made and it’s denied, then that settles the matter. They can’t come back and ask the same thing again. That is the rule. It’s up to us to apply it. What does that mean? The reason we have a Zoning Board of Adjustment is because we have to decide.”
So, Faiman said, the question becomes is the current application materially different from the 2006 request. Faiman said that “rarely” would there be a case where two applications were identical, and the board must decide is the two cases are “reasonably closely related” or not.
If the board decides they are, the public hearing process ends here, unless the developer decides to appeal the decision. If the board decides they are substantially different, the public hearing and variance process continues on.
The decision, either way, can be appealed.
The Zoning Board of Adjustment is scheduled to meet next on July 13, and will have to make a determination about the relevance of the 2006 decision prior to continuing the public hearing process on the current case.
Ashley Saari can be reached at 924-7172 ext. 244 or asaari@ledgertranscript.com. She’s on Twitter @AshleySaariMLT.