Newtown Zoning Officer Sees ‘Gray Area’ Regarding Swing Sets Vs Setbacks

By John Voket

Newtown’s Land Use Director George Benson acknowledges that the simple backyard swing sets of his childhood are few and far between in Newtown yards.

Today, even modest play sets might include huge twisty chutes, climbing walls, multiple ladders, hatches, and even clubhouses where one or more children can comfortably spend days or nights holed up camping or just enjoying the illusion of privacy in their own backyard.

But what happens when these sometimes hulking structures are too close to neighboring yards and homes for comfort? So far, town zoning officers have little experience in dealing with such controversies.

While Mr Benson told The Bee his agency has received few if any complaints about the proximity of today’s more ambitious swing sets and playground paraphernalia to neighboring homes locally, he was watching developments in a case playing out just south of here in Westport.

There, officials are mulling whether to scrap a rarely enforced rule regulating the play sets, a dilemma that has already landed the town in court. Its decision on the rule could affect scores of homeowners in a community that fashions itself one of Connecticut’s more family-friendly enclaves.

On March 24, Westport hosted a hearing on whether to eliminate the zoning rule on swing sets, which currently falls under the same regulation as sheds, gazebos, and other structures that must sit at least 50 feet from property lines.

In Westport, like Newtown, these are seldom the tubular metal sets sporting a few swings, a slide and perhaps some monkey bars. Today’s luxury wooden sets can cost more than $10,000 and feature forts, enclosed spiral slides, and the occasional turret or penthouse.

Level lawn space can be rare amid the rolling terrain on some Westport lots, though. That means many swing sets sit near driveways, in side yards and in other spots that violate zoning regulations, though the town does not aggressively enforce the rule.

“We don’t go around prowling backyards looking for swing sets,” Westport First Selectman Gordon Joseloff said. “If a neighbor complains, it’s the only time we go out inspecting.”

That is what prompted the current dilemma.

In late 2009, a resident complained that a neighbor’s wooden swing set was within 50 feet of the property line. Town officials upheld the complaint and ordered homeowner Cary Moskowitz to move it.

But Mr Moskowitz had no other suitable spot for it because of hills and wetlands on his property, so he asked the town for a zoning variance to let it stay — something Westport has granted to five homeowners and denied five others in the last decade.

Mr Moskowitz was among those denied, and rather than dismantling his 7-year-old daughter’s beloved swing set, he filed an appeal, which is pending in Bridgeport Superior Court.

His attorney, Joel Z. Green, said they have spotted dozens of nonconforming swing sets all over town since then and are just seeking fairness. Mr Green proposed the zoning rule change to resolve the lawsuit and to spare other homeowners from the situation Moskowitz family faces. And the attorney emphasized his client is not pushing for an enforcement sweep of others’ swing sets.

Quite the opposite.

“Certainly we all agree there needs to be some appropriate level of regulation on land use, but this seems to go beyond what is reasonable,” Mr Green said. “I mean, really — at the end of the day, we’re talking about a simple swing set.”

But the simplicity or complexity of the sets could be a sticking point in changing the zoning rules in Westport and elsewhere — even here in Newtown.

Mr Benson agreed that many larger sets on the market take up significant space and could be considered “structures” under zoning rules depending on the interpretation. And modifying zoning rules might require differentiating between smaller swing sets and larger play sets.

Westport’s planning and zoning director, Laurence Bradley, said that because swing sets do not require building permits, it is difficult to say how many might be violating the current zoning rules.

“The ones we usually deal with in the zoning board are the larger ones,” he said. “Sometimes they have footings or are anchored into the ground. Sometimes they have castles or boats or other features. We’re not going after every little plastic slide.”

Mr Benson agreed with his Westport colleague, telling The Bee that regulations regarding these diverse contraptions present a “gray area.”

“We’ve never applied the setback rule to swing sets,” he said. “But technically they are a structure by definition.”

Locally, as is the case with other neighbor-to-neighbor issues, Mr Benson always strives to apply common sense tactics in resolving the concern.

“We always try to appeal to a neighbor’s sense of common courtesy,” he said, adding that the state building regulations apply a uniform definition regardless of whether a structure is a swing set, shed, gazebo, or other outbuilding.

“Truthfully, you can never write a regulation that covers everything. So we would always consider any complaint on a case-by-case basis,” Mr Benson said. “But you also have to remember, if it ever comes down to taking something before a judge, they’re always going to be looking at what is reasonable and prudent.”

(Associated Press content was used in this report.)