Beach fence gets ZBA approval: The full story

By a 4-1 vote at its March 8 meeting, the Zoning Board of Appeals (ZBA) granted permission for a controversial 125 foot long, 2 foot 11-inch high fence with one private property sign to be installed along Merwin Point at 108 Beach Ave.
The board’s vote before an audience of 100 residents came following an extended presentation by William Coleman of 28 Blackall Road, who was appealing a decision by Zoning Enforcement Officer Stephen Harris to drop his opposition to the fence proposal.

By its vote, the ZBA supported Harris’s position that since the fence is lower than 36 inches and since the owners plan to install only one sign, no variances are required, thus denying Coleman’s appeal.

Following the vote, Coleman said he planned to explore options to preserve public access to Merwin’s Point, including seeking a conservation easement, or seeing if the land could be purchased as open space. He said some people want to explore the question of adverse possession because the public has used the land for so many years.

Steven and Carlos Micceri are listed by the Milford assessor as owner of the property, as co-trustees of the Patricia Micceri family trust. Assessor records show a 0.2-acre property that is 70 feet wide by 125 feet deep, and is appraised at $1,266,710.

The city’s online appraisal map shows only the property on the inland side of the street, a map that may be viewed at.

The complicated saga of the fence dates to a Sept. 3, 2015 letter from Harris in which he said that the family would need variances to install a 36-inch high fence with up to six signs indicating the area was private property.

Charles Willinger, attorney for the family and Leden Consulting Corporation, which he named as a property owner, contested Harris’s letter at the Oct. 13, 2015, and Dec. 8, 2015 ZBA meeting.

At the Oct. 13 meeting, the board unanimously rejected Willinger’s arguments, saying there was no proof the property was private.

At the Dec. 8 meeting, Willinger presented title search information, saying that the parcel was split in 1896 by the creation of Beach Avenue. The board continued the hearing until its Jan. 12 meeting to give Harris time to review the information from Willinger.

At the Jan. 12 hearing, Harris agreed to withdraw his Sept. 15 letter, since the fence was lower than 36 inches, and the property ownership had been established to his satisfaction. With the letter withdrawn, Willinger agreed to drop his appeal. However, the ZBA voted 3-2 to reject Willinger’s application for up to six signs. At the Jan. 12 hearing, Coleman questioned the property’s ownership.
Coleman Contests Fence Plan
In his March 8 presentation, Coleman said there were “errors in fact” and “errors in process” with the family’s appeal of the original letter from Harris. He said that the property owner is shown as Leden Consulting Corporation of New York. However, Coleman said records from the N.Y. Secretary of State show that the corporation was dissolved on March 25, 1992. He said if the corporation was dissolved, it cannot be a petitioner in good standing.

Coleman questioned the property survey, saying it showed a half-acre sized parcel 2 on the water side of Beach Avenue.

“They have claimed the entirety of Merwin Point, including a rocky peninsula and an island separated by a canal at high tide,” said Coleman. “You don’t have the right to jump over the mean high water mark and claim an island that belongs to the state of Connecticut.”

Coleman said the error in process occurred because the family presented information at the Oct. 13 and Dec. 8 ZBA hearing, which was continued to Jan. 12, but “there was no such continuation of the hearing,” said Coleman. He said there was a meeting between Harris and Willinger on Jan. 8 at which Harris agreed to withdraw his decision saying a variance was not needed for the fence since Willinger agreed to lower the fence height to 35 inches.

“You can’t have a hearing in which only one side gets to speak,” said Coleman, commenting that the proposal was modified at a private meeting.

“In the meeting they cut a deal that cut the public out,” said Coleman.

Coleman said he was in the zoning office on another occasion and Harris told him, “You can’t talk to me,” and Coleman said he agreed because the public hearing was still open and they could not talk about a pending appeal.

Coleman said the 35-inch fence is a “loophole proposal” because the fence will be 125 feet long with posts every six feet and two strands of 3-inch diameter ropes along the top and middle of the posts similar to ropes seen in a theater.

Coleman said the Milford Zoning Regulations prohibit fences in rear or side yards abutting the Long Island Sound. Reading from Section, Coleman said the city has regulations specific to the Long Island Sound that prohibit fences and shrub rows between the mean high water mark and the structure.

“We don’t have a structure here,” said Coleman, adding that if the regulations can prohibit shrub rows, which are not a structure, it can prohibit fences less than 36 inches in height.

“The intent is to maintain open vistas,” said Coleman.

Quoting from Harris’s Sept. 15 letter, Coleman said that Harris commented that it was logical to prohibit a fence on a vacant lot. Harris also had the concern that a fence could become a projectile during a storm.

Harris stepped to the podium to respond to what Coleman said, saying that when the applicant agreed to lower the fence, it was no longer considered a structure and the variance request became moot. He said the title search proved that the parcel is a lot of record. Harris requested the board uphold his decision to withdraw the Sept. 15 letter.
Residents Oppose Fence
A total of 14 people spoke in favor of Coleman’s appeal to ask the board to reject the fence, while two people, plus the applicant, spoke in favor of rejecting Coleman’s appeal.

Jessica Hall of 86 Platt Lane, who said she grew up in Woodmont, presented a petition with 970 signatures asking the board to reject the fence. Hall said she gathered the signatures in only five days.

“I was just really heartbroken to see something like this cut off from public access,” said Hall.

Carla Weil of Woodbridge said she lived in Woodmont for many years and said she felt the fence placed private property rights over public rights. Weil said the land could be deeded over to the borough, which could then deal with the issues.

Kristopher Seluga of 156 Clark Hill Road said the most important issue was to preserve public access. Seluga said Merwin Point has been used by the public for many years and changing its use would set a precedent.

Seluga said the Connecticut Supreme Court has ruled that private property ends at the mean high tide line.

“A large portion of that rocky outcrop is below the mean high tide line. Any ‘No Trespassing’ signs should be clear about that,” said Seluga.

Seluga said that Connecticut law protects landowners from any liability for people using an area when the owners give public access for recreation at no charge. He said camping and littering should have no bearing on the issue because these activities are already prohibited.
Others Support Fence
Speaking in favor of the homeowner, Willinger said Harris was right in his decision to withdraw his letter, and said the board has to make its decision based on facts, not emotion.

Willinger said that Coleman is not a surveyor, and the land survey showed that Parcel 2 is a front yard that borders Beach Avenue, and fences of less than three feet can be erected in any front yard along with one sign. Willinger also said that Coleman had 15 days to file his appeal and missed that deadline.

Board Chairman Howard F. Haberman cut short Willinger’s remarks, saying he had the same three-minute limitation as everyone else. A surprised Willinger protested saying, “We are the only party that has ownership interest.”

Dick Austin of 14 Village Road, a former Woodmont burgess, said the property was cut in half in the 1800s when Beach Avenue was built. Austin said public access is available at the foot of Village Road.

“That’s their front yard, no matter how you cut it,” said Austin. “They pay a lot of taxes and should get a little relief.”

Nancy Austin of 14 Village Road said, “I grew up playing on the rocks and I knew it was private property.” Austin said she believed the fence would not deter from the beauty of Woodmont.
Board Vote Denies Appeal
Haberman said the board relies on Harris for guidance, saying that while Coleman made some “very compelling arguments,” so did Harris.

“I do appreciate the emotion involved with this,” said Haberman. “I also know this is private property.”

Board member John J. Vaccino Jr. said the board is charged with following the city regulations and those regulations say that a structure under three feet is not considered a fence. He said the property ownership had been definitely established.

“We can debate whether a 35-inch structure is a fence,” said Vaccino. “I think the area is beautiful with or without a fence.”

William Soda was the lone board member who voted against overturning the appeal. Soda said if the corporation dissolved in 1992, it is not really the owner and cannot appeal the decision on the fence.

“I think a higher court should decide this. There’s a lot to it,” said Soda.

Soda made a motion to overturn the decision by Harris to say that no variances were required, but no other board member seconded the motion.

Faced with an emotional crowd, the board sat quietly for a short time before Vaccino made the motion to uphold the decision by Harris, a motion that was quickly seconded, and then approved by the board.