By Thane Grauel

WESTPORT — The Zoning Board of Appeals on Tuesday took up an appeal of the denial of a zoning permit for a private pickleball court on Old Hill Road.

It was a lengthy discussion that was not decided that night.

Unlike the wildly popular paddleball sport, with clear lines for gameplay, the zoning question at issue is something the town and the applicant don’t agree on — where the boundary lines lie.

Planning and Zoning Department staff and Eric Bernheim, a lawyer for the applicant, James Coyne of 63 Old Hill Road, traded volleys over where setback lines lie — the edge of the pavement of Side Hill Road, the edge of the property, which extends into the road, or from the southern side of that road’s wider right of way.

Coyne last year sought variances to build a pickleball court in a setback, but the ZBA turned it down Oct. 10, saying no hardship was proven.

After that, an undeveloped parcel on the property was merged with the main, developed parcel.

Bernheim maintains that created a lot that needs no variance. A zoning permit then was requested administratively from the Planning and Zoning Department.

Bernheim said the new unified lot meant the setback should be measured from the edge of the pavement of Side Hill Road, rather than from the right of way.

He pointed out at the appeal hearing that Assistant Town Attorney Peter Gelderman agreed with his opinion. P&Z staff had requested a formal opinion and Gelderman wrote that he agreed with Bernheim.

But the staff decided to measure the setback from southern edge of the right of way, disregarding, Bernheim said, Gelderman’s opinion. The zoning permit was denied by Zoning Official Laurie Montagna.

Coyne then appealed that administrative decision.

“We believe that it was fully compliant with your regulations, and we believe the basis for denying it has been an historical interpretation of those regulations that is inaccurate,” Bernheim said Tuesday night.

He said that after the two parcels were merged, “it’s our interpretation that the zoning regulations require you to measure the setback from either the paved portion of Side Hill Road or the northernmost part of the lot, which is in the middle of Side Hill Road.”

“Either of those interpretations we can make this proposed pickleball court work,” Bernheim said.

Bernheim showed an email from Gelderman that read, “We agree with your interpretation. I have let the Zoning Officials know.”

Bernheim pointed out that a staff report by Montagna stated Gelderman changed his opinion.

Bernheim showed another email from Gelderman that reads, “I was not involved nor consulted in the latest decision/determination, so I have no answer.”

“I don’t believe that we can say that your town attorney has changed his opinion,” Bernheim said. “I think what happened was your staff has decided to ignore your attorney’s analysis, and I don’t think we normally make a process of doing that and they did it because that has historically been the way that these regulations have been interpreted.”

“I would argue that just because it’s the way they’ve always been interpreted does not mean that they have been interpreted correctly,” Bernheim said.

“I don’t believe your attorney changed his opinion,” he said. “I believe he was overruled.”

“The Town Attorney’s Office did state that they felt the regulation was ambiguous,” Deputy Planning and Zoning Director Michele Perillie said.

She said Gelderman “did not make any decisions and did not reverse his decision.”

“Staff later went back and discussed how we should proceed, and it was our determination that this is the way it had been done, using the edge of the right of way,” she said, “so that’s how we wanted to proceed going forward.”

“It did say somewhere he reversed his decision,” Perillie said. “That wasn’t correct. We just actually decided as a staff that we thought the best thing was to move forward with what we had always done.”

She said a letter was sent May 6 stating that because the pickleball court was in the setback, a zoning permit would not be issued.

“There’s 30 years of history of us doing it this way,” Perillie said.

“We have discussed this with Pete Gelderman and he said it’s up to staff,” Montagna said. “… We can accept his advice, or we cannot, if we choose.”

“Historic doesn’t mean it’s always right,” Bernheim said after a discussion by ZBA members. “You know what it means? You’ve been doing it wrong for 20-plus years.”

 The hearing was continued.

Thane Grauel grew up in Westport and has been a journalist in Fairfield County and beyond for 36 years. Reach him at editor@westportjournal.com. Learn more about us here.