As much as opponents of the proposed 20-60 Castle Hill Road development expressed anger and dismay at the Board of Selectmen’s 2-1 vote to discontinue Reservoir Road as a paper street, with shouts of “shame” going up among a few members following the decision, the conditions placed on the approval mean the BOS made a safe decision and put the final decision where it rightfully belongs — with the Borough of Newtown’s Zoning Commission.

The decision metaphorically paved the way for a 117 home cluster subdivision on 20 Castle Hill Road while leaving 60 Castle Hill Road, including Reservoir Road, which is part of the Washington-Rochambeau Revolutionary Route, often locally referred to as the Rochambeau Trail, as part of a proposed open space easement.

While it would have been a great victory for opponents to end developer George Trudell and property owner Joseph Draper’s bid to build the subdivision on the road discontinuation issue, essentially a first round knockout, the selectmen’s decision to approve it with heavy conditions opens the door to a review by the Borough’s zoning commission, the true final arbiter of developments within the Borough. The Borough’s zoning commission now gets to decide if the proposed development is right for the Borough, rather than have its decision made for it by the Board of Selectmen, if they hypothetically did not approve the road discontinuation. This means that the zoning commission may own the entire decision, and not merely deal with any fallout from a discontinuation refusal, including a potential revised, entirely different site plan built to the Borough’s normal regulations of one home per acre.

The Board of Selectmen, working through both town attorney Jason Buchsbaum and developer attorney Tom Beecher, established four important conditions on its approval of the road discontinuation. Until all the conditions are met, the road remains a paper street; if any of the conditions remain unmet in five years, the selectmen’s action to discontinue becomes null and void.

The four conditions placed on the property are:

The discontinuation of the road is conditioned on the Borough Zoning Commission’s approval of the site plan application;

On the development being built within five years of the approval of the site plan application;

On the inclusion of the discontinued portion of the road as part of the final Declaration of Conservation Restriction;

And on the conveyance of a mutually agreeable public easement to the Town of Newtown for pedestrian, bicycling, equestrian, and all other passive recreational uses (to exclude the use of motorized vehicles except as may be necessary by the Town or its designee to effectuate the purpose of the easement), and for municipal utility purposes.

With the road fairly well protected by these conditions, and the road still effectively not discontinued until after all four of those conditions are met, the selectmen and town attorney have done all they can to ensure that no unforeseen circumstances allow disturbance of the historic trail. With the ball now in the Borough Zoning Commission’s court, it is important to note that the zoning regulation for residential open space developments, 4.05.1, is a special exception in the zone.

As opposed to an as-of-right development, which would be one home per acre of land and would give the commission limited power to change or refuse the development once they determined it met the regulations, a special exception requires the zoning commission’s explicit approval and gives the commission broad powers to suggest amendments to the site plan, or even outright refuse the development if they feel it is not a good fit for the property or for the area.

The Borough Zoning Commission could potentially request large changes such as reduced number of homes, increased distance of the homes from the Rochambeau Trail, more or different access to the cluster development, or a large number of other things they might deem to be necessary. It is also possible they might accept the subdivision as is, or reject it outright. But in the end the proper commission is faced with these choices.

Things are progressing as they should. Now is where the real fight begins for opponents of the development. The Borough Zoning Commission next meets for a special meeting on Wednesday, July 24, for a public hearing to consider a text amendment application by Newtown Conservation Coalition founder Dave Ackert. Its next regular meeting is Wednesday, August 21, but it is currently unknown if the Castle Hill development will be included on that agenda.