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Former Councilor Suing Old Lyme

By Maura Gaffney, BerlinPatch

Berlin residents Stephen and Evelyn Anderson have enjoyed their small summer cottage near the beach in Old Lyme for the past 40-plus years. Now the couple is suing the shoreline town over zoning regulations that forbid them from using their cottage during the winter. Despite paying full taxes on their property, the Andersons and about 1,500 homeowners like them, are not allowed to use their Old Lyme cottages from December through mid-March.

In the legal complaint against Old Lyme filed recently in U.S. District Court, Hartford attorney Paul Spinella outlined a history of tension in the community between town officials and 'seasonal residents' in the beach area called R-10. There are about 2,000 cottages in the R-10 zone, and they pay about 38 percent of the town's taxes.

The complaint states that the town has tried to limit the use of properties in the R-10 zone going back as far as 1977 and that the town's first step to this end was to define these homes as 'seasonal dwellings'. In 1995, town officials passed zoning regulations that prohibited any use of the seasonal properties during the winter months, citing public health and safety concerns.

According to Steve Anderson, a retired attorney, the leadership of Old Lyme has long been concerned that seasonal residents will decide to retire or settle down in the community, that they'll demand more services and that they'll generally affect the "charm" of Old Lyme. "I've lived there long enough to know that you get the feeling you're a second-class citizen," he said.

Anderson claims that the town has come up with "various schemes" over the years to prevent summer residents from becoming year-round residents. "The town decided that they like people to come in the summer, pay their taxes, and go home in September or October," he said.

In 1999, about 400 cottage owners sued the town and challenged the restrictions on winter use. The town settled the lawsuit, so the constitutionality of the zoning regulations was not determined and the public health and safety claims were unsubstantiated.

A fresh set of zoning regulations came into effect in 2009 that required properties to be officially registered as either year-round or seasonal. The new rules again only allow use of the Seasonal properties from March to November. From December 1 through March 15, homeowners can only visit their cottages on two occasions for no more than 48 hours per occasion. The Andersons don't necessarily even want to live in Old Lyme during the winter, but if they want to let their children use it or if they want to rent it out, they would be violating the law.

One of the main charges in the Andersons' lawsuit against Old Lyme officials is the town did not register all properties along the same criteria. He argues that not only are the underlying regulations unfair, but that the town's procedures for enforcing those regulations are arbitrary and unconstitutional.

"The town cooked up this scheme that if you were living in your house full-time in 1999, or if you were a plaintiff in a prior lawsuit, we'll give you a golden ticket so you can use your place year-round, but the rest of you folks – about 1,500 of you – you better get out in the winter," said Anderson.

So cottage owners like the Andersons who were not living in Old Lyme full-time in 1999 and were not part of the 1999 lawsuit are stuck. "We think it's discrimination that those people who sued the town can be year-round residents, but we can't. It violates the U.S. and State Constitutions. And to say you can't live there if you weren't living there in 1999, it doesn't make any legal sense," said Anderson.

The Andersons' lawsuit also charges that Old Lyme's zoning regulations deprive residents of the reasonable use of their property, will diminish property values, will result in excessive property tax assessments which value the land based on year round use, and could affect the owners ability to use the property as collateral, among other claims.

About two dozen homeowners initially signed on as plaintiffs in the new lawsuit, but in recent weeks, at least 50 additional property owners have contacted Attorney Spinella to express interest in joining the fight against the town.