Norwich – A Russell Road couple is taking a 3-year-old zoning dispute back to Superior Court after the Zoning Board of Appeals denied a variance for the second time for their 20-foot square deck at the end of the dead-end street.

This time, John and Susana Burgess of 74 Russell Road are hoping a state law passed in 2013 can make their deck legal without the need for city zoning approval. The law states that if a structure that does not conform to local zoning regulations stands for three years without municipal action against it, the structure becomes legal.

The couple built the deck in 2012 and say they erroneously believed they did not need permits. City officials stopped the nearly completed construction and alerted the couple that the deck was in violation of zoning regulations and they would need a variance.

The house and garage on the property are 2 feet from the property line — rather than the 10 feet required in regulations — and are considered “pre-existing nonconforming” structures. The Burgesses built the deck at the side of the garage along that same 2-foot line.

The property is at the end of the dead-end street, bordering wetlands. At the July 14 zoning public hearing, several neighbors spoke in favor of the deck or submitted letters supporting the Burgesses.

“Everybody in the neighborhood doesn’t understand why we can’t be allowed to have this deck,” John Burgess said Friday.

The ZBA first denied the variance request Oct. 12, 2012, and the Burgesses appealed to Superior Court. On March 6 of this year, Judge Thomas Moukawsher sent the issue back to the ZBA, saying the board did not cite reasons for the denial.

The second public hearing on July 14 became heated, with member Ray Dussault at one point accusing the Burgesses of having expanded the deck since the initial hearing. The Burgesses displayed current and 2012 photographs showing the same deck structure. Chairman Marc Benjamin cautioned the audience once the hearing closed that he would call police if anyone attempted to interrupt the proceedings.

The board voted 3-2 against the variance, saying the Burgesses faced no hardship and could have built a smaller deck.

During the hearing, the Burgesses argued that the 2013 state law should be applied to their case, making the 3-year-old structure legal since the city had not taken enforcement action. ZBA members did not consider the law in their vote.

Meanwhile, the Burgesses are not allowed to use the deck, since city building inspectors won't inspect it without a zoning permit in place.

The Burgesses said they placed patio furniture — bought back in 2012, Susana Burgess said — a children’s pool and sandbox on the deck, because they have no place else to store the items. “It’s more like a storage place now,” she said.

The couple had planned to finish the deck in 2012 in time for a second birthday party for their daughter, Megan. She is now 5 and her younger brother, Brandon, is 3. Susana Burgess is expecting the couple’s third child.

“This one is coming along,” Susana Burgess said. “Maybe we can have a party for this one (on the deck).”

c.bessette@theday.com

Twitter: @Bessettetheday