Stonington — The borough Planning and Zoning Commission on Tuesday approved, by a 3-2 vote, a controversial application by the town to install a 3-foot-11-inch fence at the Town Dock dog park.

In addition, the commission ruled that Zoning Officer David Atkinson will review the existing fences on the property and if there are any violations, the town will have to bring them into compliance before the borough issues the new fence permit.

Despite the approval, Chairman Christopher Errichetti announced at the beginning of the meeting that the commission still retains the power to address questions surrounding the use of the property as a dog park.

Borough attorney Nick Kepple cautioned the commission Tuesday that it should consider the application for a fence and not the siting of a dog park on the property, potential lawsuits and other issues.

In its decision-making process, the commission found the fence does not block water views, does not hurt property values and is compatible with the character of the area.

Under borough regulations, Atkinson was allowed to issue permits for fences less than 4 feet tall but he referred the decision on the fence permit to the commission after the attorney for a Front Street couple who has sued the town over the park raised issues about the fence and argued it was a change in scope and intensity of use of the park.

In April, the Board of Selectmen voted unanimously to implement a series of recommendations developed by a study committee for the dog park.

The changes are designed to alleviate complaints from the park’s neighbors. These included reducing the size of the area where unleashed dogs can roam and installing a fence to create a buffer area between the park and nearby homes.

The commission had held a lengthy public hearing on the fence last week, at which a group of residents again opposed the park, and continued the meeting to Tuesday night to make decision.

Attorneys for various parties again on Tuesday made detailed legal arguments to the commission.

Attorney Mark Kepple, the brother of Nick, who represents Bill Bomster Jr., the owner of the adjacent Stonington Seafood Harvesters building, and another neighbor, told the commission that the application should be rejected for a myriad of reasons.

The park poses a threat to public safety, is a nuisance to neighbors and is a terrible waste of public waterfront access, he argued.

Mark Kepple said the park also is in violation of borough zoning regulations, as it was established well after the borough enacted zoning in 1976. At that time, the only uses taking place on the property were the sewer treatment plant and activities by the fishing fleet, and so only those are allowed as pre-existing nonconforming uses and not a park, he said.

He added that in 2009 and 2013 the addition of fencing by the town created an off-leash dog park. The town has said a public park was envisioned as part of the sewer plant development.

Mark Kepple suggested that the town take down the fences on the site, and require dogs to be on leashes and subject to their owners' control.

“Do that and the problem goes away,” he said.

Nick Kepple and Town Attorney Jeff Londregan told the commission that a section of the zoning regulations allows the commission to not require the town to seek approval of a site plan for the park if it does not violate certain conditions. Londregan maintained the park does not violate those conditions.

The town has argued the site has been used for passive recreation since the 1960s.

Londregan stressed to the commission that it was approving a fence and not a use.

j.wojtas@theday.com