Out-Of-Court Settlement Expected For Condo Lawsuits

By Andrew Gorosko

The remaining two lawsuits of the three lawsuits filed against the Planning and Zoning Commission (P&Z) and against Walnut Tree Developers over the controversial expansion of the Walnut Tree Village condominium complex from 80 units to 190 units are in the process of being settled out of court.

P&Z members February 1 approved a proposed a settlement of the lawsuit that had been filed by Michael and Kathleen Nowak of 7 Patriot Ridge Road, and by Keith and Mary O’Donnell, also of Patriot Ridge Road.

P&Z members also approved a proposed settlement of the lawsuit that had been filed by Mary Burnham of 24 Walnut Tree Hill Road.

Following the P&Z’s approval of the condo expansion project last August, a total of seven plaintiffs filed three separate lawsuits seeking to block the expansion of the complex on Walnut Tree Hill Road in Sandy Hook. Plans to expand the complex for people over 55 had drawn strong opposition from nearby property owners at public meetings last year.

The first of the three lawsuits was settled last December. It had been filed by Duane and Linda Jones of Walnut Tree Hill Road.

In the proposed settlement of the Nowak/O’Donnell lawsuit approved unanimously by the P&Z February 1, Walnut Tree Developers, Inc., would pay the plaintiffs $60,000.

Also, the developers agree not to build a PZC-approved building containing four condominium units in an area near the plaintiffs’ homes known as “the ridge.”

However, the plaintiffs agree that they would not oppose the developers’ future application to the P&Z to build those four units elsewhere on the site.

Also, the developers agree that after they construct Building 18, they would build a 6-foot-tall, 50-foot-long stockade fence to screen the view of Walnut Tree Village from the Nowak residence. The developers also agree to plant spruce trees along the Nowak’s side of the fence. The agreement provides that the plaintiffs would be allowed to maintain vegetation within a Walnut Tree Village easement area.

In their lawsuit filed last year the Nowaks and O’Donnells charged that in approving the expansion project, the P&Z acted illegally, arbitrarily, and in abuse of its discretion. The plaintiffs had said they are aggrieved by the P&Z’s development approval and will suffer the direct adverse effects of traffic and noise from the development site.

The Nowaks and O’Donnells alleged that in approving the condo expansion project, the P&Z failed to enforce the zoning regulations concerning street access to the site. The plaintiffs stated that the town engineer had advised the P&Z that the proposed accessway to the site does not meet applicable regulations.

The plaintiffs also alleged the P&Z illegally approved the elderly housing units with walkout basements. The plaintiffs also charged that the project would pose safety hazards stemming from its construction and from the additional local traffic that it will generate. Also, the plaintiffs claimed the presence of an expanded condo complex would substantially hurt property values in the neighborhood.

The plaintiffs further claimed that the project is not in harmony with the general character of the neighborhood and would create additional congestion or a traffic hazard on existing streets.

Also, the plaintiffs alleged that in approving the project, the P&Z ignored an agreement between the plaintiffs and the developers which prohibits the construction of condos near the plaintiffs’ property, and which also prohibited the merger of the 35-acre development site for the 110 new condos with the adjacent 18-acre site on which the 80 existing condos stand.

Through their lawsuit, the Nowaks and O’Donnells had sought to have a judge overturn the P&Z’s granting the developers a special exception to the zoning regulations to build the 110-unit expansion project.    

Burnham

 Under the terms of the proposed settlement of the Burnham lawsuit, the developers agree to give Ms Burham $50,000. Of that sum, $15,000 would be designated for Ms Burnham; $10,000 would be designated for open space land acquisition; and $25,000 would be designated for The Cat Rock Gang, Inc., a New York City non-profit organization that works to rehabilitate gang members.

Ms Burnham said Wednesday the $10,000 for open space acquisition would be donated to either the Newtown Forest Association or to the P&Z’s open space acquisition fund.

In her lawsuit, Ms Burnham stated: “Plaintiff Mary E. Burnham is, and at all times pertinent to this complaint has been, a party to a contract agreement whereby, for adequate consideration, Louis DeFilio for himself and his successors and assigns, including defendant Walnut Tree Developers, Inc., promised [among other things], to limit the total number of condominium units on the subject properties to eighty.”

In effect, Ms Burnham contended that the agreement which she had reached with Mr DeFilio limited the developers to the 80 condo units which they had built on Walnut Tree Hill Road.

Mr DeFilio and his business partner, George Trudell, do business as Walnut Tree Developers.

In her lawsuit, Ms Burnham alleged the P&Z acted illegally in approving the expansion project because the record of the case does not support its decision; the reasons stated for the approval are improper and not supported by the record; the P&Z acted outside the scope of its authority in approving the project; the decision is incorrect as a matter of law; and the decision deprived Ms Burnham of a vested, lawful property interest without compensation.

 Through her lawsuit, Ms Burnham sought to have a judge reverse the P&Z’s decision to approve the expansion project, plus have her legal costs covered.

Jones Lawsuit

Last December, in a settlement of the lawsuit filed by Duane G. and Linda L. Jones of 16 Walnut Tree Hill Road, Walnut Tree Developers agreed to give the Joneses $17,000. The P&Z has endorsed that settlement.

Also, the Joneses would connect their property to the municipal sewer system.

Besides payment made to the Joneses, the developers would make various improvements on the Jones property, including supplying fieldstone for construction of a stone wall; installing a 180-foot-long heavy duty split-rail fence; repairing and improving the Joneses’ driveway; installing a stormwater drainage catch basin; and planting 36 white pine trees between the Jones property and the condo complex, among other work.

In the Jones lawsuit, the Joneses had charged that in approving the expansion project, the P&Z acted illegally in that the development site has insufficient street access. The Joneses also had charged that the P&Z had disregarded the town engineer’s advice in that regard.

The lawsuit stated that in approving the expansion project, the P&Z did not enforce its regulations which require that such development not create health and safety hazards for nearby people, although the P&Z knew that the Joneses have a special needs child to whom the construction project and the additional traffic created by the development would pose a safety hazard.

Also, the Joneses had alleged the expansion project would substantially damage nearby property values; would not be in harmony with the general character of the neighborhood; and would create a traffic hazard on existing streets.

Through their lawsuit, the Joneses had sought to have the P&Z’s development approval nullified and have the special exception to the zoning regulations for the construction project revoked. The Joneses had sought to have a judge order the developers to stop all construction.