Developers Appeal Brookheights Subdivision Rejection

By Andrew Gorosko

The developers whose proposal for a seven-lot residential subdivision alongside Pond Brook, known as Brookheights, was turned down by the Planning and Zoning Commission (P&Z) last month, have appealed that rejection in court in seeking to have the project approved.

In a lawsuit filed May 9 in Danbury Superior Court, Brookheights, LLC, sues the P&Z over its April 17 rejection of Brookheights for a 29-acre site overlooking Pond Brook in the vicinity of Pond Brook Road and Obtuse Road. Pond Brook is a trout stream that carries water from Taunton Pond to the Housatonic River. Developers Raffie Aryeh and Jay Keillor proposed the project. Attorney William Denlinger represents Brookheights, LLC. The P&Z has a June 3 court return date in the case.

The project has drawn opposition from some residents living in the area, based on their environmental concerns.

The court appeal states that the P&Z’s rejection of the development project was illegal, arbitrary, and an abuse of its discretion. The rejection was not supported by the facts of the case, by the land use regulations, or by state law, the appeal adds.

The P&Z rejected the development application even though the proposal conformed to the town’s land use regulations, according to the lawsuit. By rejecting the application, the P&Z denied Brookheights, LLC, a reasonable use of its property, without the due process of law, it adds.

Last September 5, Brookheights, LLC, applied for the subdivision. The P&Z held public hearings on the application on December 19 and January 16.

In its appeal, Brookheights, LLC, states the P&Z should not have acted on the development application until the state Department of Environmental Protection (DEP) had made a decision on the wetlands aspects of the proposal.

Through the lawsuit, the plaintiff seeks to have a judge overturn the P&Z’s rejection of the Brookheights application and order the P&Z to approve the subdivision.

Rationale

In their April 17 motion to reject the Brookheights proposal, P&Z members explained their reasons for turning down the project.

P&Z members decided that the land proposed for subdivision has many environmental constraints, plus historic qualities. “The presence of steep slopes and poorly-draining soils, Pond Brook, the 100-year floodplain, the old railbed, and evidence of historic factors [on the site] are considered to be assets of a community nature,” according to the P&Z.

“The wetland impacts outlined by the Conservation Commission and the lack of a DEP approval are considered to be significant … The wetland and floodplain issues must be resolved,” according to the P&Z.

P&Z members noted that following a review of the development proposal, they determined that the road proposed for the Brookheights subdivision must be redesigned for possible future extension onto an adjoining property, assuming that the adjoining property might potentially be developed.

Such a revised Brookheights road design would eliminate the need for a second road crossing over Pond Brook, if the adjacent land is developed in the future, according to the P&Z. The Brookheights proposal calls for the installation of a 42-foot-long vehicular bridge over Pond Brook in an area where the trout stream is about 20 to 24 feet wide.

The P&Z points out that Brookheights Lane has been proposed as a permanent dead-end street. Due to such a road design, the future extension of that road into adjacent, potentially developable land would not be possible, thus putting the Brookheights application in direct conflict with the town’s subdivision regulations and with the 1993 Town Plan of Conservation and Development, according to the P&Z.

In its court appeal, Brookheights, LLC, states that its development application does not require a street right of way extending to its property boundary “because the property abutting (Brookheights’) proposed subdivision is not capable of being subdivided.”

Regulatory Changes

The developers submitted the Brookheights proposal to the P&Z last summer, just before the P&Z’s rules on the calculation of house lot sizes became stricter. Those revised rules exclude from lot size calculations the presence of wetlands and steep slopes.

If the developers were to reapply to develop the Brookheights site under the stricter revised regulations, fewer building lots would be allowed on the site.

The stricter building lot standards specify that any building lot that is created after September 16, 2002, shall contain an amount of land that is at least equal to the minimum lot area in acres for the land use zone in which it is located, exclusive of wetlands, watercourses, federally designated 100-year floodplains, and natural slopes of at least 25 percent grade.

P&Z members have said that they approved the stricter lot size calculations to enhance the remaining rural character of the community by balancing development and conservation concerns. P&Z members had decided that the rule changes would enhance land conservation and the protection of Newtown’s natural resources by requiring that lots have an adequate land area that is relatively level and dry to allow the construction of homes, septic waste disposal systems, and domestic water wells.