Railroad’s Waste Expansion Proposal Dominated 2009 Land Use News

By Andrew Gorosko

Among the many land use issues facing Newtown during 2009, probably the most significant and clearly the most controversial was the Housatonic Railroad Company’s proposal to expand its solid waste handling operations at its rail terminal at 30 Hawleyville Road (Route 25).

In voluminous documents filed with the state Department of Environmental Protection (DEP), the railroad describes how it proposes to increase both the tonnage and also increase the types of solid waste that it would handle at its terminal.

The DEP is conducting a technical review of that application under the terms of the 2008 Clean Railroads Act, a federal law which granted to state environmental agencies the authority to review the health and safety aspects of railroad waste handling operations. The DEP is expected to conduct a public hearing on the application sometime in 2010.

Also, the town’s Inland Wetlands Commission (IWC) is reviewing the wetlands protection aspects of the waste expansion proposal. An IWC public hearing on the matter is slated to resume on January 13.

The town government and an ad hoc citizen’s group, known as Hawleyville Environmental Advocacy Team (HEAT), oppose the railroad’s proposal to increase the tonnage and to increase the types of solid waste that the railroad transfers from heavy trucks onto railcars for rail shipment for disposal at out-of-state landfills.

Town government opposition and the citizens group’s opposition has focused on several issues, including the potential for surface water pollution and groundwater pollution due to expanded waste operations. Other issues include increased truck traffic, increased noise, and additional blowing dust in the area.

A firm known as Newtown Transload, LLC, would conduct expanded waste handling operations for the railroad.

Sherman Woods

Also in 2009, citing a variety of environmental concerns, the IWC unanimously rejected a land developer’s controversial application to construct a 38-lot residential subdivision on a 158-acre agricultural tract in Sandy Hook.

Developer William H. Joyce of Shepard Hill Road has proposed Sherman Woods for generally rolling, open and forested land in the area surrounded by Berkshire Road, Sugarloaf Road, Sherman Street, Still Hill Road, and Toddy Hill Road.

The proposal, which was the subject of seven IWC public hearings between June and September, drew strong opposition from nearby residents who warned that such development would environmentally damage the area.

Among other concerns, the IWC in October decided that the applicant had not provided it with complete detailed plans describing the extent of the project’s environmental impact, and had not provided the IWC with complete, significantly detailed alternative development plans.

The IWC decided that there is the “potential likelihood” for short-term and long-term adverse effects on wetlands and watercourses due to a lack of assessable, feasible, and prudent alternative designs.

In response to the IWC’s rejection, the developer filed an appeal in Danbury Superior Court, seeking to have a judge overrule the IWC’s action and approve the project. The court case is pending.

If the project gains IWC approval, it would be subject to review by the Planning and Zoning Commission (P&Z).

Environmental Regulations

During late 2009, the P&Z formulated some environmental protection recommendations for a Danbury Superior Court judge regarding a proposed residential resubdivision near Taunton Lake that the P&Z had rejected in 2005. The developer appealed that rejection in court.

Developer Hunter Ridge, LLC, proposes a 14-lot Hunter Ridge for an environmentally sensitive 30-acre site lying between Mt Pleasant Road and Taunton Lake.

A legal intervenor to the developer’s court appeal, who raised environmental concerns about the project, caused the judge to seek the P&Z’s advice on environmental protection. The construction proposal now awaits the judge’s action.

It was the P&Z’s environmental review of the Hunter Ridge proposal that prompted the P&Z in December to enact a set of environmental protection regulations to be used when it reviews future applications for subdivisions, resubdivisions, site development plans, and special permits.

The P&Z’s intent in creating such rules is to prevent environmental damage from being caused by construction projects and also to avoid having its land use decisions become the subject of court appeals.

In another set of new regulations, the P&Z in May enacted rules intended to preserve the significant archaeological, historic, and cultural features of land proposed for subdivisions and resubdivisions.

The intent of those rules is to have subdivisions and resubdivisions laid out to preserve all significant historic, archaeological, cultural, and natural features at a site. Such features would be depicted on a specialized map.

The regulations create a mechanism through which sites proposed for subdivisions or resubdivisions would be subject to physical research before construction occurs in order to determine whether a site holds historic value or prehistoric value. The regulations create a way to determine whether a given site holds physical items of value before those items would be destroyed by the construction process.

Court Appeal

In June, the Legislative Council and the Board of Selectmen endorsed the town pursuing appeals in the Connecticut Appellate Court contesting a Danbury land developer’s two Superior Court victories over the town concerning a controversial condominium construction proposal.

Dauti Construction, LLC, proposes building a 26-unit condominium complex including eight “affordable housing” units on a rugged 4.5-acre site at 95 and 99 Church Hill Road in Sandy Hook Center.

In New Britain Superior Court, Dauti Construction, LLC, of Danbury had challenged the Water and Sewer Authority’s (WSA) September 2007 rejection of its request for municipal sewer service for the proposed Edona Commons complex. The developer also had challenged the P&Z’s April 2007 rejection of its construction proposal. Dauti later won both Superior Court cases.

The Edona Commons proposal drew strong opposition from nearby property owners who charged that such construction would amount to the overdevelopment of a marginal site.

The town’s appeal of Dauti’s two court victories is pending.

In contrast to the conflict caused by Dauti’s proposal for Edona Commons, the P&Z in January unanimously approved a local builder/developer’s plans to construct a 24-unit condominium complex on the west side of Washington Avenue in Sandy Hook Center, known as The River Walk.

P&Z members approved the application from Michael Burton for a level, sandy 10.2-acre site at 12 through 20-A Washington Avenue.

In approving the project, P&Z members concurred that the project is consistent with the 2004 Town Plan of Conservation and Development, that the application meets the requirements for a special zoning permit, and that it meets the requirements of the town regulations on “affordable housing.”

The River Walk approval marks the first time since 1997 that the P&Z has approved an “affordable housing” complex. One-third of the units at The River Walk would be designated as affordable housing. The complex has not yet been constructed.

Large Subdivision

In March, following lengthy review, P&Z members unanimously approved the Oak Ridge III residential subdivision, in effect, deciding to allow the nearby Split Rock Road to remain a dead-end street and not be extended to connect with the subdivision.

The project is the largest residential subdivision approved by the P&Z during the past several years. It involves 17 residential lots on a 79-acre parcel of former farmland at 46 Eden Hill Road, near the Easton town line.

A key aspect of that subdivision approval involved whether the nearby dead-end residential Split Rock Road should remain a dead-end street or should be extended to become a through-road linked with new roads in the Oak Ridge III development. Split Rock Road extends westward from Eden Hill Road.

For several months, groups of residents from Split Rock Road and from Eden Hill Road respectively urged that Split Rock Road remain a dead-end road, or instead be converted into a through-road linked to the new subdivision.

The P&Z’s decision to allow Split Rock Road to remain a dead-end street is the subject of lawsuits against the developers and against the P&Z filed by a nearby resident who believes that Split Rock Road should become a through-road.

Cell Tower Approval

In August, the Connecticut Siting Council approved a controversial proposal to erect a 150-foot-tall freestanding monopole-style cellular telecommunications tower in a residential area on Dinglebrook Lane, near the Brookfield town line. Siting council members approved the application for cell tower construction from AT&T, doing business as New Cingular Wireless, PCS, LLC.

The agency granted AT&T a certificate of environmental compatibility and public need for the construction, maintenance, and operation of the cell tower and related telecommunications equipment, which would be contained within a fenced compound on residential land at 24 Dinglebrook Lane.

In its application to the siting council, AT&T states that a “gap in [telecommunications] service exists in the northern portion of the Town of Newtown and eastern Brookfield along Dinglebrook Lane, Obtuse Rocks Road, State Route 133, and surrounding areas.” The antennas positioned on the tower would provide cellular service at nearby Lake Lillinonah, as well as to surrounding areas in Newtown and Brookfield, according to AT&T.

AT&T would provide free mounting space on the cell tower for municipal emergency communications in a section of town that is known for its unreliable radio communications.

Dinglebrook Lane area residents, speaking at a May public hearing, acknowledged that cellphone service is unreliable in that area, but stressed that 24 Dinglebrook Lane is an inappropriate residential location for a tower. Residents cited the unsightly appearance of a tower and decreased property values as their prime reasons for opposing that location.

In February, the P&Z approved a special permit for Marcus Dairy of Danbury to allow the firm to move its dairy distribution business and corporate office space from Danbury to an 8.6-acre site in a M-5 (Industrial) zone at 352 South Main Street in Botsford, at the Monroe town line.

However, certain unspecified issues between Marcus Dairy and the owner of the South Main Street site arose, resulting in the Botsford project being dropped by Marcus. The firm now plans to construct its new facilities in Oxford.

In December, the P&Z approved revised plans for Plaza South, endorsing an approximately 60,000-square-foot retail complex that would include five commercial buildings on a 12.35-acre site at 266 and 271 South Main Street. The project has undergone numerous design changes since the P&Z approved an initial version of the complex in 2005. Plaza South is under construction.