By Gretchen Webster

WESTPORT — What to do when a decorative wall built for a residential property encroaches on the town’s right-of-way?

A dilemma over that question confronted the Board of Selectwomen on Wednesday as members deliberated on the town’s response to a situation where a contractor or property owner violates an approved construction plan — especially when the owner is initially unaware of the transgression.

Encroaching on town’s right-of-way

At issue was a small stone wall that extends into the town’s right-of- way at 6 Buena Vista Drive, which could pose a problem for snow plows clearing the street and possible future utility work, Public Works Director Peter Ratkiewich told the selectwomen. 

The property owners, Brett and Deborah Greenberg, came to the selectwomen Wednesday seeking approval of a waiver from the town’s encroachment policy after it was discovered their contractor had built the wall into the town’s 13-foot-wide right–of-way, which had not been included on the Greenbergs’ permit for driveway expansion. Deborah Greenberg also is the Democratic registrar of voters in Westport.

DPW opposed to waiver over plowing, utility issues

“The Department [of Public Works] is not in favor of this waiver,” Ratkiewich told the selectwomen. “It’s a hazard for plows,” and the location of the wall could interfere with utility work in the future, he said.

Bryan Thompson, the Water Pollution Control Authority collection system supervisor for the DPW, agreed. “Our job is to protect the town’s right-of-way,” he said.

Encroachments into town property, such as a right-of-way sometimes occur inadvertently, especially on weekends, Ratkiewich said, when town staff may not be available. 

Other similar encroachments may predate the town’s requirements, which were enacted in 1989, he added, after the property owners noted that other homes on their street also do not appear to conform with the policy. 

And although the Greenbergs’ contractor may not have intended to violate the encroachment policy when the wall was built, the structure is in the right-of-way, potentially hampering the town’s access to property abutting the road.

Selectwomen look for a compromise

First Selectwoman Jennifer Tooker agreed, because the wall extension was not included in plans the property owners submitted for a building permit. “This is a situation where we are being asked for forgiveness instead of permission,” Tooker said.

But after Selectwoman Candice Savin noted, “There was no malice or negative intent” by the owners, the officials discussed what kind of accommodation might be possible. Savin, a Democrat elected to the Board of Selectwomen last November, said the Greenbergs’ application for a waiver was the first she had encountered and turned to Tooker for advice. “We’re a little bit of victims in a screw-up,” Savin said.

The first selectwoman said she would follow the recommendations of the town department heads, who said the wall must be moved at least five feet back from the road from its current location.

And Assistant Town Attorney Eileen Lavigne Flug told the selectwomen there are legal obligations property owners must meet if they build within the town right-of-way. The Greenbergs would have to insure any structures, including the wall, in the encroachment area and sign a hold-harmless agreement to protect the town from liability for that portion of their property, Flug said.

Series of conditions attached to waiver

After a discussion between Tooker, Savin and Selectwoman Andrea Moore, who attended the meeting virtually, the selectwomen voted unanimously to approve a waiver of the town’s encroachment policy for the Greenbergs, with stipulations that the wall be moved back five feet on either side of the driveway; that eight feet of the wall remaining in the right-of-way be insured, and that they sign a hold-harmless agreement with the town to absolve the town from liability in the encroached area.

Deborah Greenberg, reached for comment after the meeting, said, “Unfortunately, it was not a favorable decision.”

Gretchen Webster is a freelance writer and frequent contributor to Westport Journal. Learn more about us here.