Stonington ― In a unanimous vote Tuesday, the Zoning Board of Appeals agreed that Zoning Enforcement Officer Candace Palmer correctly issued a permit for construction of a controversial 2,783-square-foot home in a flood-prone Old Mystic neighborhood.

“We weren't surprised and we're ready for the next step,” said Smith Street resident Jonathan Fontanella after the board denied his appeal.

Last month, Fontanella had appealed Palmer’s April decision to grant developer Dan O’Brien of Coast Development of Newport a zoning permit to build a home at 16 Smith St.

Fontanella had argued, among other issues, that a 20,000-square-foot compensatory storage basin ― approximately the size of a youth soccer field ― intended to contain excess water after heavy rains and prevent flooding, was not functioning as designed as it had not drained since the day it was dug six months earlier. Because of this, he said the zoning permit should not have been granted.

Residents and environmentalists have long opposed the project as a potential ecological disaster for what they say is the largest inland, freshwater marsh in southeastern Connecticut and crucial to preventing widespread flooding in the village.

They also point to expert testimony given before the Inland Wetlands and Watercourses Commission in 2023, that said the wetlands in the area are larger than town maps show and that tree removal could damage the wetlands and cause groundwater levels to rise, which could then contaminate the water and increase flooding.

The northern part of that wetland extends up into properties on the south side of Smith Street, where 16 Smith St. is located.

“I hope other people in the community understand that they have no protection under the current paradigm. It's just a mess. If there are other people in trouble, I hope they come talk to us in Old Mystic,” Fontanella said after board members expressed that the project was problematic but was not within their power to address.

Member Mark Bancroft noted that many of the speakers during the public hearing discussed flooding, but the board was only charged to decide whether Palmer had issued the permit in error.

“So, it a mess, but,” Bancroft began, before being cut off by member Diane Lurie Boersma.

“But it’s not a zoning mess. All of the issues they raised, with which I think we all have sympathy, are wetlands issues that were designed to be decided, and were decided, by different boards that have expertise that we don’t have,” she said.

Chairman James Kading said that based on what is known today, it seemed that the water storage basin had not worked, but he noted that that was “hindsight.”

“All of the other information, as far as I could read, came in after the permit was issued, so that’s a hindsight issue,” echoed member Mark Bancroft.

Neighbors argue that the permit was issued in April, approximately three months after the water storage pit was dug and filled with water.

Fontanella and neighbors also expressed frustration with what they claim are ongoing violations of zoning and wetlands permits.

Because the property is in a flood zone, the ground beneath the future home must be elevated to one foot above base flood elevation.

Fontanella explained that no fill can be brought onto the site, and the amount of dirt removed to create the basin must equal the amount used to elevate the ground beneath the home, yet numerous truckloads of fill have been brought to the site, with the last truck load arriving last week.

He said that he and several neighbors have taken hundreds of hours of video documenting O’Brien’s work, and no fill has been removed from the property, rather the fill excavated from the storage basin has been spread across the property, including the upland review area, a regulated area surrounding a wetland.

The amount of fill placed on the property can not exceed the amount removed from the basin.

In one video from late June that Fontanella showed The Day, O’Brien is seen in a min-excavator dumping a bucket of debris into a wooded area that appears to be in the northwest corner of the property, inside the regulated area.

Palmer said, in a June wetlands violation complaint filed in June, that the videos show grading of the site and filling in holes left behind by the removal of scrap metal, among other permitted work.

Despite losing his appeal, Fontanella said he is still optimistic.

“I feel something very positive coming. People are offering their support and we're working as a community to find where the cracks in the system are. This was never just about my backyard,” he said.

According to Zillow.com, 16 Smith St. was listed for sale approximately three months ago at $1.7 million. The price, which does not include construction of the home, was reduced by 41% in June to $998,000, and again, July 4, by an additional 12% to $878,000. There is currently a guest house and barn on the site.