Developer Appeals P&Z’s Condo Complex Rejection

By Andrew Gorosko

A Danbury developer, whose controversial proposal for a 26-unit mixed-income condominium complex on Church Hill Road in Sandy Hook Center was rejected recently by the Planning Zoning Commission (P&Z), has filed a court appeal against the P&Z in seeking to have a judge order that the project be approved.

In an April 24 appeal filed in Danbury Superior Court, Dauti Construction, LLC, seeks to overturn the P&Z’s April 5 rejection of the six-building multifamily Edona Commons housing complex proposed for a steep, rugged 4.5-acre site at 95-99 Church Hill Road, near Dayton Street.

The April 5 rejection was the fourth time since 2003 that the P&Z had turned down multifamily development proposals for the site from developer Guri Dauti.

In its decision to reject Edona Commons, P&Z members found that the interests for protecting the public health and safety outweighed the need for the eight “affordable housing” units that would be part of the 26-unit complex. Those eight condos would be set aside for purchase by low-income and moderate-income families. The sale prices of market-rate units in such high-density complexes would subsidize the sale of lower-priced affordable housing units.

The Edona Commons proposal drew strong opposition from nearby residents who protested the project for many reasons. They charged that the project would create increased traffic in a congested area, adding that the site is an inappropriate place for high-density development.

A major flaw in the Edona Commons proposal was the applicant’s failure to describe the means of sewage disposal at the site in view of the Water and Sewer Authority’s (WSA) rejection of a municipal sewer system connection for the project, according to the P&Z. Also, the applicant failed to ensure that adequate steps would be taken to protect the underlying Pootatuck Aquifer, which is a public water supply source, the P&Z decided.

Dauti Construction applied for the 26-unit project in October 2006 under the terms of the state’s Affordable Housing Land Use Appeals Act. Under that law, applicants for affordable housing projects, which are rejected by municipal land use agencies, gain certain legal leverage in getting those projects approved through court appeals. Only public health issues and public safety issues are considered to be justifiable reasons for a land use agency to reject an affordable housing project.

Court Appeal

The Dauti court appeal is expected to be forwarded to a special state court that handles appeals on affordable housing. Such appeals typically take 12 to 15 months to be decided.

In the legal papers, the developer states that it will submit a sewer connection application for the proposed condo complex to the WSA. “Dauti is entitled to approval of a sewer connection from the Water and Sewer Authority,” the appeal states.

The developer charges that the P&Z’s April 5 decision to reject the Edona Commons application does not satisfy the “burden of proof” requirements specified in the state’s affordable housing law.

The developer charges that the P&Z’s decision is not supported by sufficient evidence in the record of the application, and is not based upon substantial interests in public health and safety. The reasons for the P&Z’s rejection of the proposal do not clearly outweigh the need for local affordable housing, the appeal adds. Also, the P&Z’s reasons for its denial could have been addressed by reasonable changes to the application, according to the developer.

In the lawsuit, the developer states that adequate municipal sewage handling capacity exists for wastewater that would be generated by Edona Commons; the condo complex would not cause any negative traffic effects in the area; stormwater control at the site could be handled without adverse effects to water quality or quantity; emergency access to the site could be safely provided; the site would largely not be visible from Church Hill Road; the proposed construction poses no risks to the underlying aquifer; and the excavation and the removal of earthen materials at the site could be safely done.

In response to the court appeal, P&Z Vice Chairman Lilla Dean said April 25 that each of the four attempts by Mr Dauti to develop the site with multifamily housing has been turned down by the P&Z because the site is environmentally fragile. Those applications have involved too high a construction density and have required a change of zone, she added.

Last August, the P&Z rejected a proposal for a 23-unit version of Edona Commons on a 4.04-acre site at the same location. The P&Z listed a host of reasons for that rejection, including potential traffic problems and a high construction density. The developer then challenged that rejection in Danbury Superior Court.

In an initial 2003 attempt to develop the site, Dauti Construction sought to build 16 condo units. In a second failed attempt early in 2004, Dauti sought to build 12 condo units. The P&Z short-circuited both those efforts by rejecting the developer’s proposals for revisions to the town’s Affordable Housing Development (AHD) zoning regulations.

Dauti Construction is represented by attorney Ryan McKain. The P&Z is represented by attorney Robert Fuller. The town has a May 22 court return date in the case.