Town Suing Businessman Over Enclosure vs. Fence

When is a fence not a fence but an enclosure? When is a farm not a farm but residential property? When is a 22-year operating nursery business not allowed to make mulch?

These and other questions are running through the mind of Clinton resident and business owner Jeff Cashman. 

Cashman, known for his property Sprucey Hill Nursery and Farm on 66 River Road and the owner of on West Main Street, is in a legal battle with the town of Clinton over several issues including the proper setback of a fence (Cashman's term) or enclosure (town's term) that have resulted in the town bringing forth a lawsuit.

Cashman's Story:

Jeff Cashman, his wife Patricia and their daughter Heather live at 66 River Road, Sprucey Hill Nursery and Farm. The Cashman's purchased the property 26 years ago. They founded the nursery in 1990.

More than 20 years ago, Cashman said the property was approved by the town's Planning & Zoning Commission (PZC) as a nursery. In 1990, the property received the state designation of PA-490 or farmland exemption. Cashman said the town's former Assessor, Christine Barta, confirmed that the property is a farm.

Ron Olsen, the marketing/inspection representative for the State of Connecticut Department of Agriculture stated in a letter, "the land has been classified as agricultural since 1990."

For many years Cashman operated a 20-employee landscape company for Clinton clients such as Chesebrough Ponds and New York City clients such as Lincoln Center.

"Business was booming for a long time," said Cashman. "We worked quietly. Then the economy started to change. I saw the writing on the wall and wanted to slow down and downsize."

About eight years ago, Cashman bought the hardware store and kept one part of his old business, mulching, alive on his property.

"Not many town dumps will take landscaping material so they (landscapers) can bring it to my property," said Cashman. "I grind the product, which is all organic, and turn it into recycled wood chips which I sell at my hardware store."

Cashman said his mulching business was a huge help to the town during Tropical Storm Irene last summer as he took in large amounts of fallen trees and branches.

"If it hadn't been for my piece of property, the town wouldn't have known what to do with all the material," he said.

This spring, the town shut down the mulching operation, said Cashman.

"You just denied my right to farm," he said, estimating that he has lost about $100,000 in business from spring to this fall.

Frank Gagliardo, supervising environmental analyst with the state Bureau of Materials Management and Compliance Assurance, stated in a letter, "You do not require a permit because the Department views first-grind as a marketable commodity."

Now Cashman has a gigantic pile of mulch on his property and can't sell it.

"I just bailed out the whole town and they're telling me I'm stuck with it and can't sell it?" he asked incredulously.

Now, he is being sued by the town for an illegal enclosure.

"The town says it's an enclosure and does not meet setback requirements and has ordered me to move it back 50 feet from the road and 35 feet from the property line on my one neighbor's side," said Cashman.

Cashman said he's frustrated and angry.

"After 25 years of doing so much for the town, we are arguing over a fence," he said.

The Town's Story:

Thomas Lane, the town's Zoning Enforcement Officer, said Cashman's property is zoned R-80, meaning it is a residential zone with 80,000 square feet lot size (1.84 acres).

Town records indicated an "accessory use" as a nursery, said Lane.

"The 490 from the state is a tax exemption for the Assessor's office," said Lane. "It gives you a break on your taxes but has nothing to do with zoning."

Lane addressed the enclosure issue first.

"If you have cows, horses, etc. in an enclosure, which is a fenced-in area, it must meet setback requirements in a residential zone," he said.

From the town's zoning regulations: "All livestock shall be kept in a building, stable or enclosure, not less than the legal setback for the appropriate zone for any abutting residential or Village Zone property and one hundred feet (100') from any well or water body from which water is taken for human consumption."

Thus, said Lane, Cashman's enclosure is in violation of the property's zoning and needs to be moved back 50 feet from the River Road side and 35 feet from one neighbor's side.

Lane said that residents do not need a permit for a regular fence to delineate property lines if the fence is 6 feet or under.  Dogs are considered pets, not livestock, he added.

"Fencing for your own dog, that's allowed," said Lane.

Fencing for cows, sheep, goats, horses, cows (considered livestock) requires 40,000 square feet per animal and a permit.

Lane said that Cashman applied for the permits for his livestock "after the fact."

"People have complained and that's what has initiated this," said Lane. "They complained about noise, smell, and odors."

Lane said he's tried to resolve the issue with Cashman before filing suit on the town's behalf.

"If he complies with the regulations, moves the enclosure and gets a permit, he will be in compliance," said Lane.

As far as the mulching business, Lane would only comment that in a R-80 zone, bringing in material to the site, processing it, manufacturing a product and selling it is not a permitted use.

In the property file at town hall, there are several "Warning of Violation(s)" notices from the town including those concerning the mulch business, standards of noise, the definition of a nursery, not obtaining a permit, and conducting a use without a permit. Most warnings were written in 2012, but one goes back to 1988.

There are four written complaints from neighbors citing such things as "loud and noisy" (2012), "extremely loud machinery" (2008), "operating a business with heavy equipment on site in a residential zone" (1988), and "possible contaminated water discharging onto my property" (2001).