Back in the swing: Deal OK'd to settle play set dispute
Updated 5:28 pm, Wednesday, December 14, 2011
Playtime can resume on the swing set at the Moskowitz home on Sturges Highway.
The town has settled a lawsuit filed last year by resident Cary Moskowitz against the Zoning Board of Appeals, allowing him for the next seven years to keep a swing set that, under town zoning regulations, is too close to a neighbor's property -- or within the required 50-foot setback from the property's border. After the ZBA on Tuesday night unanimously approved the stipulated judgment, the resolution requires only approval from judge in the state Superior Court in Bridgeport. The town is set to secure that judicial endorsement this week, according to Town Attorney Ira Bloom
After Moskowitz's case went to pre-trial proceedings earlier this year, a Superior Court judge recommended that the town and Moskowitz resume another round of talks to settle the dispute, Bloom told the ZBA on Tuesday.
The swing set stands within a setback, the area bordering another property line that must be free of structures, according to town zoning regulations. In the AAA residential zone where the Moskowitz house is located, the town's setback regulations require that any structure be set back at least 50 feet from the property line.
The swing set will, nonetheless, be allowed to remain in the setback for the next seven years, according to terms of the settlement.
"I think it does preserve our regulations," Bloom said of the stipulated judgment. "I think it's a reasonable compromise and settlement."
Moskowitz has also settled a dispute with the neighbors who filed the original complaint about the swing set with the town's Planning and Zoning Department after they had planted landscaping on their property, Bloom added.
The furor surrounding the swing set erupted in November 2009 when Moskowitz's next-door neighbor, Carla Rea, reported to P&Z officials that Moskowitz had erected the swing set within a setback. After a P&Z enforcement official inspected the apparatus, which Moskowitz built for his then-kindergarten-age daughter, the department sent him a violation notice, asking him to "correct" the noncompliance.
Neither Carla Rea nor Moskowitz attended Tuesday's ZBA hearing.
In an interview earlier this year with the Westport News, Moskowitz said he was not aware that swing sets were banned from setbacks when he built the apparatus. He also disputed that the swing set, which measures about 15 feet in length and 10 feet at its peak, had infringed upon the Reas' privacy.
After Moskowitz was issued the violation notice, he went to the ZBA to seek a variance of the regulations to allow the swing set to remain in the setback. He said the prevalence of wetlands and sloped areas on his 1.6 acre-property precluded him from placing the apparatus elsewhere.
"This is the only level, dry piece of ground to put it on," he told the Westport News last April. "It's really the only logical place."
In March 2010, the ZBA rejected that appeal. A month later, Moskowitz filed his appeal against the ZBA's decision in the state Superior Court in Bridgeport. That move suspended any action by the P&Z Department against Moskowitz until the appeal was resolved, which allowed him to keep the swing set in the setback.
After the appeal was filed, Moskowitz and his lawyer Joel Green said they discovered inconsistent enforcement by zoning officials of the town's setback regulations. To address that apparent irregularity and to expedite resolution of the dispute, Moskowitz submitted last February a proposed text amendment to the P&Z that would have allowed swing and play sets to be placed within residential setbacks as long as they did not have structures defined as "buildings" by zoning regulations.
In April, the P&Z unanimously rejected that proposed amendment, with some commission members contesting the claim by Moskowitz and Green that the P&Z did not consistently enforce zoning regulations for setbacks.
A P&Z Department report on Moskowitz's proposed text amendment noted, however, that the department does not engage in "proactive" enforcement of setback rules and generally enforces the rules only when it receives a complaint.