Date: Fri 05-Dec-1997

Publication: Bee

Author: ANDYG

Quick Words:

P&Z-Newtown-Village

Full Text:

Newtown Village Developers Appeal P&Z Rejection Of Their Plan

BY ANDREW GOROSKO

Applicants for the proposed 96-house Newtown Village condominium complex have

filed a legal appeal, seeking to have a judge force the town to approve the

project which recently was rejected by the Planning and Zoning Commission

(P&Z).

In a lawsuit filed November 25 in Danbury Superior Court, attorney Timothy

Hollister, representing the applicants, states the P&Z did not meet its

"burden of proof" in rejecting the Sandy Hook development project.

Through the lawsuit, the developers, D&H Homes, LLC, of New Milford, and

Fairfield 2000 Homes Corporation, of Stamford, seek to have a judge order the

P&Z to grant a special permit to the developers for the complex, and also

grant an amendment to the zoning regulations to allow the mechanical treatment

of wastewater in a small-scale sewer system proposed for the site.

The applicants want to market 24 of the 96 units as "affordable housing" for

families with incomes falling below certain limits.

D&H Homes, LLC, is a limited liability corporation. Fairfield 2000 is a

private, non-profit housing development corporation. Mr Hollister works for

Shipman and Goodwin, LLP, of Hartford. The town is represented by attorney

Timothy Bates of Bartinik, Gianacoplos, Bates, Brown and Grater, PC, of

Groton.

Fairfield 2000 has or is developing affordable housing in Wilton, Darien,

Trumbull, Westport and Bridgeport. Newtown has approximately 7,787 housing

units of which 135, or 1.7 percent, now qualify as affordable housing units,

placing the town in the bottom quarter of Connecticut municipalities for

affordable housing, according to the lawsuit.

If the developers' legal appeal proceeds without delays, the Superior Court

may decide on the appeal in nine to ten months. The party that loses that case

may petition the Connecticut Appellate Court to hear an appeal. Beyond the

state appellate court level, the matter may eventually be heard by the

Connecticut Supreme Court.

The developers have sued the town under the terms of a state law on affordable

housing which provides developers with financial incentives to build

high-density housing complexes that include units for moderate-income

families.

Particulars

The 32-acre Newtown Village site, located in the area where the Exit 11 ramps

of Interstate 84 cross over Route 34, was mined of 1.5 million cubic yards of

earth materials before 1972, but the sand-and-gravel mining operation was left

standing with more than seven acres containing slopes exceeding a 25 percent

grade, thus requiring earthmoving to prepare the site for development,

according to the lawsuit.

In the legal papers, the developers contend that although the town's zoning

regulations allow affordable housing to be built at a density of up to four

units per acre by special permit, a subsection of the those regulations

"effectively prohibits (affordable) residential development at (that)

density."

P&Z regulations require that an affordable housing development dispose of its

wastewater via a conventional large-scale septic system, in effect,

prohibiting other wastewater treatment systems, including mechanical

wastewater pre-treatment systems used in small-scale sewer systems, such as

the one sought by developers. The developers contend that such a restriction

unfairly prohibits a variety of environmentally safe wastewater disposal

methods at affordable housing complexes. The mechanical wastewater

pre-treatment removes the pollutant nitrogen from the wastewater.

The developers contend that, other than their seeking the zoning amendment to

allow mechanical pre-treatment of wastewater in a small-scale sewer system,

all aspects of the development plan comply with applicable zoning regulations.

The developers sought P&Z permission for the small-scale sewer system because

the town's Water Pollution Control Authority (WPCA) had rejected their

application to connect to the municipal sewer system.

The town's existing ban on mechanical wastewater pre-treatment systems serves

no valid public purpose, the developers assert in the lawsuit. They add that

if the site were developed with conventional individual septic systems, it

would actually result in a greater discharge of pollutants into the

groundwater than the system proposed by the Newtown Village developers.

The developers further question why conventional "market rate" housing in

Newtown is not subject to the ban on mechanical wastewater pre-treatment

equipment. Local concerns over the maintenance of a mechanically-based

wastewater disposal system could be addressed through a standard maintenance

agreement and bond with the WPCA, according to the lawsuit.

P&Z members had expressed concerns that if a small-scale sewer system for

Newtown Village were to fail, it could pose pollution hazards to the nearby

Pootatuck Aquifer, an underground drinking water source.

Other Issues

In the legal papers, the developers maintain: the presence of the exit and

entrance to Newtown Village on Route 34 would not make traffic congestion

worse there, and some physical improvements proposed for the area would

actually improve traffic conditions; the site development plan complies with

the town zoning regulations; the presence of Newtown Village would likely

improve nearby property values; the construction plans conform with

requirements for fire and emergency vehicle access and for firefighting; and

the proposed construction work would be visually compatible with neighboring

properties.

"The (P&Z's) denial is illegal and invalid and does not satisfy the (P&Z's)

burden of proof (under state law)... in that the reasons are not supported by

sufficient evidence in the record; are not necessary to protect substantial

public interests in health, safety or other matters which the (P&Z) may

legally consider; do not clearly outweigh the need for affordable housing in

the Town of Newtown; and could in several respects have been addressed by

reasonable changes to the development plan," according to the lawsuit.

The P&Z's rejection of Newtown Village is illegal because the evidence

presented by the developers clearly demonstrates the acute need for local

affordable housing in Newtown and in the planning region, it states. The P&Z's

rejection doesn't explain any limitation to development due to soils, terrain

or infrastructure capacity, it adds.

Insofar as the denial of Newtown Village prevents protected persons from

acquiring local affordable housing, the denial constitutes a discriminatory

housing practice, and/or a failure to make a reasonable accommodation, it

states.

Two Rejections

When the P&Z rejected the developers' request for amended zoning regulations

that would allow mechanical pre-treatment of wastewater, P&Z members: decided

against reversing the town's policy of "sewer avoidance"; sought to avoid

possible future wastewater system failures; complied with the state's

Conservation and Development Policies Plan on sewer avoidance; and sought to

avoid significant environmental risks.

In turning down the requested special permit for the project, the P&Z stated:

the developers did not have WPCA approval for a small-scale sewer system; a

sewer system would violate the town's sewer avoidance policy and pollute

groundwater; the project would create traffic congestion; the project did not

meet some dimensional requirements of the zoning regulations; and the proposal

involves an excessive amount of earth materials excavation.

In their rejection of Newtown Village, P&Z members concurred that the town

needs additional affordable housing and they have sought to encourage it

through applicable town regulations, but they want to foster affordable

housing complexes which respect other substantial public interests of the

town, such as the WPCA's policy on sewer avoidance and also traffic safety.

Although other affordable housing developers, such as R&G Riverview, LLC, have

submitted development plans which comply with such objectives and which have

been approved for construction, the Newtown Village proposal seeks to

undermine or avoid the town's sewer avoidance policy, impairs traffic/safety

conditions, and creates unregulated gravel mining through extensive regrading

of the land, according to the P&Z.

"The positioning of the exit and entrance adjacent to poorly functioning

intersections along Route 34 poses a health and safety concern to students,

the general driving public and future residents... and it is not apparent to

this commission how the exit and entrance could be realigned to meet these

concerns," it adds.

The commission did not "feel compelled to make an exception to its health and

safety regulations in this instance," and concluded that the negative aspects

of the Newtown Village proposal outweigh the need for affordable housing.