Mile Hill Road South—

Developer Appeals Four-Lot Subdivision Rejection

By Andrew Gorosko

A Stratford developer, whose unnamed four-lot residential subdivision proposed for Mile Hill Road South was rejected by the Planning and Zoning Commission (P&Z) recently due to potential health hazards posed by the presence of chemically contaminated groundwater in the area, has filed a court appeal in seeking to overturn the P&Z’s decision.

In an administrative appeal filed in Danbury Superior Court on July 7, developer Jack Samowitz seeks to have a judge force the P&Z to approve the subdivision proposed for a 41-acre site at 40 and 50 Mile Hill Road South.

The narrow, hilly, winding north-south Mile Hill Road South links Wasserman Way to Turkey Hill Road. The development site lies on the west side of Mile Hill Road South, situated between that road and Housatonic Railroad’s rail freight line.

The P&Z held an April 20 public hearing on the subdivision application. The P&Z rejected the project on June 15, citing environmental concerns, and stressing that the developer never informed the P&Z of environmental contamination problems in the area.

Attorney Robert Hall represents Mr Samowitz. Attorney Robert Fuller represents the P&Z. The P&Z has an August 15 court return date in the case.

The lawsuit states that the nearby former Noranda Metals factory on Prospect Drive was the apparent source of water contamination in some of the low-lying areas on the development site. The lawsuit adds that those areas are situated near the railroad tracks and lie a substantial distance west of the buildable area of Lots 3 and 4 in the proposed subdivision.

The court papers add that the town agency that was then known as the Conservation Commission, and which was acting as the town’s wetlands agency, on June 8, 2005, approved a wetlands permit for the four-lot subdivision proposal.

“None of the buildable areas of the four lots are located within the ‘plume’ of contamination from Noranda metals, nor did the [Mr Samowitz] believe that [proposed domestic water] wells on any of the four lots would become contaminated from the plume,” the court appeal states.

The P&Z did not give Mr Samowitz an opportunity to rebut or to show that the P&Z’s groundwater contamination concerns about the project were irrelevant to the proposed subdivision of land, the court papers state.

The developer charges that the P&Z’s seeking and receiving technical information about groundwater contamination in the area from the state Department of Environmental Protection (DEP) after the April 20 public hearing had closed, without then providing the developer with an opportunity to rebut or explain that information, is unfair and violates the developer’s constitutional right to due process of the law.

The lawsuit further charges that the P&Z did not provide evidence at the April 20 public hearing to indicate that people using a proposed open space area located near contaminated groundwater would be subject to potential health risks.

Also, the lawsuit states that the P&Z’s decision that the proposed subdivision of land might have adverse pollution effects on nearby properties is “purely speculative.”

The developer also charges that the P&Z misinterpreted its land use regulations concerning the technical standards for the creation of new building lots in subdivisions.

In rejecting the application in June, P&Z members decided that creating new domestic water wells in an area containing contaminated groundwater could cause current subsurface conditions to change.

“The applicant proposes to give a significant area of open space to the town … which is contaminated with trichloroethylene [TCE]. The applicant has not provided any evidence to [P&Z] that the presence of the contamination will not have an impact upon the public health, safety and welfare of persons who may utilize the open space. The potential risk is unacceptable,” P&Z members decided. Consequently, the P&Z decided that the proposed open space area’s TCE contamination disqualifies it from functioning as public open space.

An existing underground pollution plume borders the areas that are proposed for building lots and that pollution plume is not under control, the P&Z stated in its motion to reject the subdivision application.

“Neighboring properties are contaminated with MTBE and the source of [that] contamination has not been identified,” P&Z members stated. Methyl tertiary butyl ether is a hazardous substance.

“The applicant made no mention of either contaminant, offered no expert advice on whether the construction of homes and drilling of the wells would change the course or speed of the [groundwater pollution] plume’s migration. The applicant offered no plan on how future homeowners would be protected from this contamination. The impact on neighboring wells is not known once this land is disturbed,” P&Z members stated in their motion to reject Mr Samowitz’s subdivision application.