Suit Filed Over Hanover Road Resubdivision Rejection

By Andrew Gorosko

The applicants for a Hanover Road residential resubdivision in the Borough, which recently was rejected by the Planning and Zoning Commission (P&Z), have sued the P&Z in seeking to have a judge overturn that rejection and approve their proposal to create nine new house lots.

In a lawsuit filed June 30 in Danbury Superior Court, resubdivision applicants J. Richard McLachlan of 32 The Boulevard, Helen M. Smith of Boggs Hill Road, Peter McLachlan of 3 Schoolhouse Hill Road, Catherine A. Hurgin of Bethel, and George A. McLachlan, III, of Westford, Massachusetts, appeal the P&Z’s June 15 rejection of resubdividing the 16-acre site. 

The applicants want to create seven house lots on Hanover Road and two lots on The Boulevard. Sanitary sewers and a public water supply would serve the Hanover Road lots. The Boulevard lots would have septic systems and domestic water wells. The property lies on the east side of Hanover Road, across Hanover Road from its intersection with Sunset Hill Road. One of the lots would abut the intersection of Hanover Road and Hall Lane. Just over three acres of the steep, mostly wooded site is wetlands. No new roads would be built. The site is one of the last dividable properties of substantial size in the Borough.

The lawsuit states the P&Z’s rejection of the development application was illegal, arbitrary, and an abuse of the discretion vested in it. The suit states that in rejecting the application, the P&Z ignored undisputed evidence concerning the presence of road widening strips along Hanover Road and Hall Lane, plus information about the parcel’s boundary in relation to The Boulevard.

The applicants further claim that the P&Z’s denial of the application, due in part to the lack of a “road work agreement” between the applicants and the town, is invalid because no such agreement is required under the terms of the application. The suit adds the P&Z could have made the applicants obtain such an agreement as one of the terms of a resubdivision approval.

The applicants also challenge the P&Z’s rejection of the resubdivision based on “public safety” concerns.

“There was no evidence in the record on which the [P&Z] could find that there was any adverse impact on [motorist] sight lines” based on the presence of trees regulated by the Borough Board of Burgesses, it adds.

At an April public hearing on the resubdivision application, nearby property owners voiced concerns about the proposed resubdivision’s effects on the neighborhood in terms of drainage, erosion, sedimentation, traffic, and public safety.

On June 15, in light of public safety concerns, P&Z members unanimously rejected the proposed residential subdivision to create the nine house lots. Voting in opposition were P&Z members Heidi Winslow, Lilla Dean, Robert Taylor, and Robert Poulin.

According to the P&Z, existing guard rails along Hanover Road would have to be removed to construct the driveways for three, and possibly four, building lots, Also, extensive regrading proposed for three other lots there might create the need for more guard rails along that road, the P&Z stated. “The combination of these factors causes questions as to the impact this proposal will have on public safety,” the P&Z stated. The applicant has not adequately addressed the full impact of the project on Hanover Road and on public safety, according to the agency.

Also, the developers propose certain drainage work for the development, the extent of which requires that they reach a road work agreement with the town, according to the P&Z. Such agreements describe the improvements which a developer will make to public roads near subdivisions.

The P&Z also stated the developer does not meet requirements concerning the rights of way for Hanover Road, Hall Lane, and The Boulevard.

Also, the applicant has not adequately addressed the effect the borough’s public tree ordinance would have on the proposed development and whether the location of certain trees would pose public safety hazards, according to P&Z. The Borough’s public tree ordinance applies to trees which are partially or completely within the public rights of way for roads.

 In a past letter to the P&Z, Borough Zoning Commission members expressed concerns about public safety and environmental aspects of the development proposal.

In that letter to P&Z Chairman Daniel Fogliano, Borough Zoning Commission Chairman Linda Shepard wrote that the borough zoners have visited the site and have found that creating seven lots on Hanover Road would increase traffic there, creating a public safety risk due to the curves and drops in the road. Sight lines in the area would make it difficult for motorists on the street and motorists on the proposed driveways to see one another, Ms Shepard wrote.

If extensive tree cutting on the site is necessary, as suggested by Conservation Official C. Stephen Driver, Borough zoners would be very concerned about controlling erosion and sedimentation on the property, Ms Shepard wrote. Ms Shepard suggested that the applicant seek Borough tree permits for development work on the proposed Lot 2 and Lot 5 due to the presence of large trees near roads.

“We are of the opinion that the subdivision, as proposed, would create a risk to public safety and the environment, “ Ms Shepard wrote.

Because the Borough does not have a planning agency, the P&Z functions as the Borough’s planning commission in reviewing resubdivision proposals. The McLachlan application, however, is subject to Borough zoning regulations.

The town is scheduled to respond to the applicants’ lawsuit July 18 in Danbury Superior Court.