Judge Upholds Aquifer Protection Regs

By Andrew Gorosko

Danbury Superior Court Judge Arthur A. Hiller has dismissed two lawsuits which challenged the Newtown Planning and Zoning Commission’s (P&Z) strengthened aquifer protection regulations.

The judge’s ruling upholds the P&Z’s revised aquifer regulations, finding that “There exists a rational relationship between the [strengthened aquifer regulations] and the town’s legitimate zoning goals.”

“The court finds that the reasons given by the commission for adopting the [revised standards] are valid and reasonably supported by the record,” Judge Hiller wrote in his decision. The judge’s ruling covers two administrative appeals which were filed in court following the P&Z’s 1999 approval of strengthened aquifer protection regulations and geographical expansion of the town’s Aquifer Protection District (APD).

In June 1999, P&Z members unanimously approved the revised aquifer rules to better safeguard the quality of existing and potential underground drinking water supplies in the Pootatuck Aquifer, which is the town’s sole source aquifer.

The revised regulations greatly expand and more explicitly state the standards that the P&Z uses to protect groundwater quality in the APD. The APD is an area of varying width above the Pootatuck Aquifer, which generally follows the course of the Pootatuck River from its headwaters in the vicinity of the Monroe border northward to Sandy Hook Center.

The P&Z was named as the defendant in one lawsuit which was filed on behalf of Curtis Corporation; DD Newtown Partners, Limited Partnership; Kathryn A. and James P. Maguire, III; and Larry Edwards. The plaintiffs own property in the APD. Attorney Robert Hall represented the plaintiffs in that case.

Mr Hall is the plaintiff in the other lawsuit against the P&Z, which appealed the aquifer regulations. He represented himself in that case.

Attorney Robert Fuller represented the town.

Aquifer Ruling

The revised aquifer protection regulations approved by the P&Z in June 1999 decreased the number of land uses permitted in the APD, and also greatly expanded the APD’s geographical area. The town has had aquifer protection rules in place since 1981. In the 1981 rules, four land uses were prohibited in the APD: landfills; printing establishments; public garages/fillings stations; and car washes.

The expanded aquifer rules, which were unsuccessfully challenged in court, added 14 more prohibited land uses in the APD. The plaintiffs in the two lawsuits took issue with five of the new prohibitions: maintenance and outdoor storage of commercial vehicles or construction equipment; sand and gravel mining; medical offices; retail uses; and a new requirement – a two-acre minimum lot size for new single-family houses, instead of the previous one-acre minimum lot size.

All of the plaintiffs in the two lawsuits, except Mr Hall, owned property in the APD before the P&Z approved the strengthened aquifer regulations.

Mr Hall’s appeal challenged the P&Z’s decision to increase the minimum residential lot size requirement in the APD from one acre to two acres. The P&Z’s expansion of the APD placed new restrictions on the development of Mr Hall’s Huntingtown Road property by placing that property within the APD.

In his ruling, Judge Hiller states that the P&Z expanded the boundaries of the APD consistently with the recommendations of the state Department of Environmental Protection (DEP).

 The Maguires challenged the aquifer protection rules in connection with commercial properties that they own on Berkshire Road, including a fire damage restoration company. The revised aquifer regulations restrict the maintenance and parking availability of the company’s vehicles. The regulations prohibit the use of the Maguire’s adjacent commercial property for medical offices.

Mr Edwards’ industrially zoned property is on South Main Street, near that street’s southerly intersection with Pecks Lane. The new regulations would prohibit using that property for medical offices.

Curtis Corporation appealed the strengthened aquifer protection regulations in connection with the prohibitions on sand and gravel mining, and also on vehicle parking.

DD Newtown Partners, which owns Sand Hill Plaza on South Main Street, appealed the regulations based on the prohibition on sand and gravel mining. The revised rules greatly restrict the field of potential new tenants for the shopping plaza, such as beauty salons, nail salons, photo stores, and optometrists.

Following several years of study, the P&Z in 1999 conducted four public hearings on the then-proposed strengthened aquifer protection rules and APD expansion.

Rationale

“When a local zoning commission considers amendments to the zoning regulations, it acts in a legislative capacity. In this capacity, the commission is vested with broad discretion,” Judge Hiller writes in his ruling. “Conclusions reached by the commission must be upheld by the court if they are reasonably supported by the record,” he adds. “This broad discretion must not be disturbed by the courts unless the aggrieved party can establish that the commission acted arbitrarily or illegally,” he writes.

In describing their reasons for approving additional prohibitions on certain land uses in the APD, P&Z members stated that the Pootatuck Aquifer is the town’s sole source aquifer, which must be protected from contamination to ensure a current and future supply of safe drinking water. P&Z members said the revised aquifer protection rules provide regulatory tools for that purpose.

P&Z members added that the revised regulations provide reasonable development standards for the APD, which they would consider when making land use decisions concerning the protection of existing and potential public drinking water supplies.

Concerning Mr Hall’s administrative appeal challenging the aquifer regulations as they affect his 17-acre Huntingtown Road residential property, Judge Hiller writes, in part, “Contrary to Mr Hall’s claim, the commission had an abundance of reliable support for its actions concerning the boundary of the APD and the minimum residential lot size.”

Concerning the prohibitions on sand and gravel mining and on the storage and maintenance of commercial vehicles or construction equipment in the APD, Judge Hiller writes, “The evidence presented to the commission was sufficient to support the amendments’ adoption and to demonstrate their relationship to the protection of the aquifer and water supply.”

The judge also found there is sufficient evidence to uphold the P&Z’s prohibitions on medical or dental offices, veterinary hospitals, beauty and nail salons, funeral parlors, and research or medical laboratories in the APD, except when such facilities are connected to public sewers and public water supplies.

In their legal challenges, the plaintiffs contend that a new regulatory mechanism, under which the Conservation Commission makes recommendations to the P&Z on development applications in the APD, constitutes an illegal delegation of power from the P&Z to the Conservation Commission.

“Review by the Conservation Commission is appropriate in light of its designation as the town’s [regulatory] agency… under the aquifer protection program, and [also in] its limited function to report and make recommendations to the [P&Z] regarding applications for special exceptions. The [P&Z] is entitled to the assistance and comments from other municipal agencies and officials,” Judge Hiller writes.

The plaintiffs in the two lawsuits will not appeal Judge Hiller’s decision, Mr Hall said Wednesday.

Mr Hall said the judge did not address certain inconsistencies in the town’s regulations concerning sand and gravel operations. Mr Hall particularly objected to the P&Z’s prohibition on removing sand and gravel from the APD, charging that there is no evidence to show that doing so is potentially harmful to the aquifer.

It is very difficult for plaintiffs to win court appeals that challenge the validity of land use regulations, according to Mr Hall.

“I’m obviously quite disappointed in the judge’s opinion… The judge had an opportunity to define the limits of what a commission can do in the area of aquifer protection,” Mr Hall said. But the judge did not take that opportunity to limit the P&Z’s authority, Mr Hall added.

In the their legal challenge, the plaintiffs claimed the P&Z had no scientific basis to impose the prohibitions in the new regulations.

 Upzoning

The P&Z’s passage of the strengthened aquifer protection rules in June 1999 laid the foundation for its approval of “upzoning” in 2000. Upzoning is a water quality protection measure.

In September 2000, P&Z members unanimously approved upzoning, a sweeping plan which upgrades the zoning designations of an aggregate area greater than 2,500 acres, affecting approximately 2,315 properties, almost 2,000 of which have dwellings on them. Upzoning increases minimum zoning requirements and decreases potential residential construction densities.

The area which was upzoned largely corresponds to the expanded APD.

The P&Z says upzoning is intended to protect groundwater quality in the several communities situated along Lake Zoar, and to preserve the drinking water quality of the Pootatuck Aquifer in south-central Newtown. Upzoning is intended to prevent the need to expand the municipal sewer system. Through upzoning, the P&Z sought to increase minimum zoning standards in order to decrease potential construction densities, and thus decrease the potential for groundwater contamination.

The P&Z is the defendant in two other lawsuits which challenge upzoning and seek to overturn it. Those two lawsuits, which are still pending in Danbury Superior Court, are separate from the two aquifer protection lawsuits on which Judge Hiller has ruled. The upzoning lawsuits have not yet been assigned to a judge.