On Thursday, May 7, Newtown Planning & Zoning Commission held a regular meeting to discuss two applications. The first was a continued application for 3 Taunton Ridge Road for a zone change “so as to change the zone from R-2 to R-1 to allow for the construction of a single family dwelling.” The second was a new application by 149 Mount Pleasant for a site development plan at 149 Mt Pleasant Road for a new construction of a 4,400 square foot retail building.

At the beginning of the meeting, the commission had its general public comment section, as originally implemented starting a few weeks back. Joe Skrzypczak, a resident in the Taunton Ridge Road area, asked about the zoning process and why the commission is able to make exceptions to certain regulations.

David Rosen, chair of P&Z, said that Skrzypczak was asking a “fair question,” and replied with his take on the matter, “When you make a rule, and when you’re hard and fast about the rule, there are always things that are not perfect in terms of the way they fit into the rule … one of the issues people had brought up with mandatory minimum sentencing, each case has their different eccentricities, and every case is a little bit different. Generally speaking, when we rule on something as a board, we rule to enforce the zoning laws as they are written, but sometimes things do come up that cause an exception.” He added that the commission has to figure out if an application fits into the Plan of Conservation and Development (POCD) and the rules within town.

Commissioner Connie Widmann added a bit more, saying that while there are rules, there are exceptions, and the commission has to “read the rules behind the exceptions” and make a decision like a jury would in a court case.

Steve Maguire, deputy director of Planning & Land Use, added a bit more to the conversation. He explained that the P&Z commission wears “two hats,” a planning hat and a zoning hat. He added to Rosen’s point that each application is weighed against the POCD and the commission makes a decision based off of the guidelines outlined in the document. Skrzypczak said he understood the process a bit more but still had questions remaining regarding residential properties. Maguire suggested the commission move forward with the meeting.

Zone Change At 3 Taunton Ridge Road

Attorney Charles Lichtenauer, representing Matt and Vicky Hawley, explained a bit more about the property. The property is old and has a “strange history,” as Lichtenauer put it. He explained that the property was divided once in 1963, when subdivision regulations were first established. He acknowledged that the application does not “claim that the lot is buildable under R-2 zoning regulations, but it asks the commission, if the application is approved, to evaluate the property under the standards of the zone it is in.

“I think it’s also important to note that intent of the original owners … so we got in tough with Don Robinson, who is the son of the original owners, and he informed us that his parents split the land with the intent to come back to Newtown to build a house on this very parcel, thinking that the R-2 zone could not have possibly extended down Taunton Ridge Road off of Taunton Hill Road because all of the other homes on Taunton Ridge Road were zoned R-1,” Lichtenauer said.

He stated that he believes this property being zoned as R-2 is a “mistake.” Lichtenauer added that the “tax treatment” of the property “reinforces that this lot had long been intended to be buildable.” He cited that the lot has been valued at $157,000 and the Robinson family has been “dutifully” paying the taxes accordingly.

“A truly unbuildable lot is not assessed that way,” Lichtenauer explained. He referenced an unbuildable parcel in another location and said they are assessed at a “fraction of what 3 Taunton Ridge Road” is assessed at.

“We submit that it’s fundamentally unfair to tax a property for decades as though it has development value, and then treat it as if it never did,” Lichtenauer said. He then briefly went over the specifications of the property, acknowledging the wetlands in the area, but said that he does not think it would be an “impediment to the development of a single-family home.”

Rosen then asked if the commissioners had any questions. Maguire supplied the commission with packets of current zoning maps which show the R-2 line going diagonally down to Taunton Ridge Road. He compared that to historic zoning maps, the first being from 1959, which show the property as an R-2 lot, too.

Rosen read a letter into the record from Donna Culbert, director of Newtown Health District. Culbert’s letter stated that due to the lack of a specific site plan, Newtown Health District could not recommend approval.

Lichtenauer responded and said that an engineer was going out and perform the proper tests and, if granted an extension, could come back to the commission with that information.

Public Comment

Barry Moller was the first to speak. He said that this lot is very small, and would not support someone’s “dream home.” He said that this property will not cost less than $1 million. Moller said that he thinks it is an unbuildable lot that was properly zoned.

Rosen then asked Maguire a question about the term “unbuildable lot.” Maguire explained that it does not meet the minimum acreage requirements.

Trent McCann, executive director of Newtown Forest Association (NFA), read a prepared statement from NFA. NFA owns land in the area of this lot, and asked the application to be denied “in the interest of protecting [its] preserved land.” NFA is concerned because the land is currently “forested,” and is uphill from the subject property.

McCann said if 3 Taunton Ridge Road is built on, it will “negatively affect the ecology of the NFA’s property.” He explained more about the history of the property, saying that the “present 1.3 acre non-conforming lot” was created after Newtown’s zoning regulations were implemented, meaning the lot was “knowingly divided to become non-conforming.”

Skrzypczak approached the commission again to comment on this specific application. He stated his opposition to the application and said that people bought homes in that area because “the houses are spread out nicely.” He added that the property is small and is susceptible to significant runoff during heavy rain.

James Smith spoke next. He asked about the tax implications Lichtenauer brought up between the property being labeled as “vacant lot” and “vacant lot unbuildable.” Rosen said he would have Lichtenauer respond.

Smith added to his point, “I just do feel very strongly that the assumption of risk was on the Robinson family. In 1959, there was that zoning change and they were the owners. They took that chance by selling this parcel and then subsequently assuming that in years forward, they could have a place to return to, and that’s great. But they knowingly were in possession of a lot that was zoned for R-2. So that risk was on them, and I think if that becomes the standard for the residents of Newtown, obviously that becomes a problem for all of us … I would just ask all of you to consider what the bigger effect of that sort of type of behavior could impose on all of us and all of our sections of our town.”

Widmann asked to clarify if the lot was deemed unbuildable when the subdivision first occurred. Maguire explained that there was no “buildable” or “unbuildable” term in 1959, just that it was R-2 and a non-conforming lot.

Alternate Commissioner Charlie Gardner asked if this same scenario played out in 1959, what would have happened. Maguire explained that zoning was still in its “infancy” in the 60s, so it probably would have been a separate legal parcel but not recognized as a legal zoning lot.

Rosen then invited Lichtenauer to respond.

Applicant Responds

Lichtenauer explained the difference between a subdivision and a “first split,” which is what the subject property is. He said it does not count as a subdivision unless it is split into three or more parcels.

Town Attorney Pat Sullivan jumped in and offered a further explanation: “The question would be, in a first cut, then you can divide into two pieces, but those two pieces have to be conforming under the regulations.”

Lichtenauer also said that his clients are not trying to “profiteer.” He then discussed water conditions on the property. He reminded the commission that the application needs to go through Inland Wetlands and that the “professionals and our engineers have told us that this is a viable project.” He again stated that the tax value of this property is not comparable to other “unbuildable lots” in the area, and that he thinks it is “fundamentally unfair.”

Widmann said that there is an opportunity every year in February to oppose taxes on the properties and that properties being taxed wrong “happens all the time.” Rosen said that it is a “sunk cost” at this point.

Rosen said, “As a commission, I think we have all the information needed,” and told his fellow commissioners they could vote on this project now. The commissioners agreed that they had the information needed to vote and put forward a motion to vote.

The application failed with a 3-1 vote. Gardner voted for the application, while Widmann, Rosen, and Commissioner Peter Schwarz voted against it. Commissioner Jill Soderholm abstained.

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Reporter Sam Cross can be reached at sam@thebee.com.