Council OKs Appeal Of Edona Commons Decisions

By Andrew Gorosko

First Selectman Pat Llodra said this week that the town plans to pursue having the Connecticut Supreme Court accept for legal review two recent Connecticut Appellate Court decisions that would allow a Danbury developer to build a 26-unit condominium complex on Church Hill Road in Sandy Hook Center.

The controversial project, known as Edona Commons, would include eight units of affordable housing,

On January 26, following an executive session, Legislative Council members unanimously authorized the first selectman to pursue having the state Supreme Court review the appellate court decisions. Also, the council recommended that Mrs Llodra seek reimbursement from the Water & Sewer Authority (WSA) for some legal expenses.

The state Supreme Court has the options of either taking the two cases on appeal or letting the Appellate Court’s decisions stand.

Following lengthy review, the Connecticut Appellate Court in late December ordered two town agencies to approve the controversial proposal by Dauti Construction, LLC, to build the condo complex.

That court ruled that both the WSA and the Planning and Zoning Commission (P&Z) must approve, with suitable modifications, Dauti’s proposal to build the residential complex on a 4.5-acre site at 95 and 99 Church Hill Road.

In June 2009, both the Legislative Council and the Board of Selectmen endorsed the town pursuing state Appellate Court appeals of New Britain Superior Court victories by the developer. Dauti had filed those initial appeals in New Britain Superior Court in 2007.

In September 2007, the WSA had denied Dauti’s request for municipal sewer service for the proposed Edona Commons. In April 2007, the P&Z also had rejected the construction proposal.

Mrs Llodra said in a statement, “We will be asking the WSA to help us bear the costs for the appeal at the Supreme Court level.

“Although the town is taking the lead in this action, the WSA is very much involved and is impacted significantly by the determination of the appeals court,” she said.

“It is in the best interest of the town and the WSA to work together to overturn the decision,” she added.

The WSA generates its own revenues through sewer-related billing.

Because much legal work on the long-running Dauti case already has been performed for the town, the costs for appealing the matter to the state Supreme Court would not be substantial, Mrs Llodra said. Such costs might range from $15,000 to $30,000, according to the first selectman.

In the 26-unit project, eight of the condo units would be designated as affordable housing and be sold to eligible families at prices significantly lower than the market-rate condo units there. Sewer mains run alongside Church Hill Road adjacent to the development site.

On the WSA court case, the Appellate Court ruled that a lower court had correctly decided that the proposed condo complex should have the use of the local sanitary sewer system. The Appellate Court directs the WSA to provide sewer service to the proposed condo complex under the terms of the town’s sewer regulations.

On the P&Z court case, the Appellate Court ruled that a lower court had correctly decided that P&Z’s decision not to issue a zoning permit to Dauti because WSA had rejected providing sewer service to the complex is no longer a valid reason to deny the condo construction application.

Mrs Llodra noted, ””It is important that a municipal WSA have the right to use a ‘capacity matrix’ in determining density of development. In this case, the proposed density in the project exceeds the sewering capacity determined for that acreage,” she said.

“If one [project] is allowed to use more than the [sewer capacity] allotment for that acreage, then users further down the line may not have access to the [sewer] capacity rightly due them,” she said.

“The fact that this proposed development has an affordable housing component is not the issue here,” she said.

The two town agencies’ denial of the Edona Commons project hinges on how the site has been zoned in order to fairly allocate municipal sewer capacity, she added.

Mr Dauti had applied to the town for the Edona Commons project under the terms of the state’s Affordable Housing Land Use Appeals Act. Under that law, applicants for affordable housing projects that are later rejected by municipal agencies gain certain legal leverage in getting those projects approved through court appeals. Only public health issues and public safety issues are considered justifiable reasons for a land use agency to reject an affordable housing project.

Mr Dauti’s various controversial proposals for developing the site with high-density housing, which date back to 2003, have drawn strong opposition from nearby residents who have criticized the proposals as being too intensive for the site.

P&Z members have generally criticized the Edona Commons proposal because the project would require many existing town zoning regulations on affordable housing to be modified to allow the construction of a much more densely built project on a physically rugged site than the rules would otherwise allow.