Norwich — In the summer of 2012, John Burgess started building a deck on the side of his home at the end of Russell Road for his daughter’s second birthday party.

His daughter now is nearly 5, and the family has yet to celebrate any birthdays, holidays or other events on the 20-by-20-foot deck. For the past three years, the deck has been at the center of a bitter zoning dispute between Burgess and the city Zoning Board of Appeals, which denied a variance for the structure in October 2012.

Burgess took the matter to court and in March, New London Superior Court Judge Thomas Moukawsher appeared to side with Burgess. But rather than overturn the ZBA’s denial of the variance, Moukawsher said the board failed to cite any specific evidence for denying the zoning variance and ordered the case back to the board for a new hearing and vote.

“Doubtless, every effort should be bent to uphold citizens making decisions on volunteer boards but courts should not uphold arbitrary and capricious decision making at the price of public confidence in government,” Moukawsher wrote in his five-page decision.

“After 2½ years, he says let’s send it back to the same board that screwed it up the first time,” Burgess said this week. “How are we supposed to get a fair shake?”

The ZBA is expected to hold a new public hearing on the application May 12.

Since the March 4 ruling by Moukawsher, Burgess has sent letters to numerous city officials asking for intervention, especially asking that at least one ZBA member not hear the case again. Burgess had alleged that member, Raymond Dussault, was biased against issuing the permit before the hearing. Moukawsher found no evidence for the claim and in his ruling said Dussault should not have been disqualified from the vote.

Burgess built the deck parallel to the garage on the property, which already was considered nonconforming with local zoning regulations that require a 10-foot setback from the property line for any house structure. Like the garage, the new deck is just two feet from the property line at the end of the dead-end road.

When his error was discovered, Burgess applied for a variance, expecting an easy process, as there was no other logical spot on the property for the deck. Two neighbors supported the deck, while a third complained about an unrelated fence and drainage issues, according to the court ruling.

“There is simply no link in this record between what the board did and what it was supposed to be considering,” Moukawsher wrote. “The court has searched the record in an attempt to justify the board’s decision. But the only evidence is that the board’s decision was based on the irrelevant matters raised by the neighbor.”

Norwich Zoning Enforcement Officer Tianne Curtis declined to discuss specifics of the case, except to say that the zoning office has waived the $560 zoning variance application fee — which includes publication of legal notices for the new hearing — but Burgess still has to notify abutting property owners of the pending hearing.

Other city officials have declined to get involved in the dispute, citing the intended legal autonomy of the Zoning Board of Appeals.

Burgess said he has found the entire situation frustrating and needless. The deck remains partially built, the decking in place with upright posts to support railings that never were installed. He asked city building officials if he could at least put up a railing for safety, but they cannot issue permits without an approved zoning permit and told him not to use the deck.

“I come home every day and see that deck. I wish we could get punitive damages from the city. It’s really outrageous, over eight feet of mud, to put a taxpayer through this. I’m just trying to improve my property.”

c.bessette@theday.com

Twitter: @Bessettetheday