Condo Complex Rejection Draws Court Appeal

By Andrew Gorosko

The developer whose proposal for a 59-unit age-restricted condominium complex on Oakview Road was rejected by the Conservation Commission last month has appealed that decision in Danbury Superior Court, seeking to have a judge order the issuance of a wetlands permit for the project.

In a court appeal filed on July 29, Toll Brothers, Inc, represented by attorney Robert Hall, seeks to have a judge overturn the action of the Conservation Commission, which served as the town’s wetlands protection agency in reviewing the application.

The town has an August 16 court return date in the case. Attorney Robert Fuller represents the Conservation Commission.

Citing concerns about potential damage to the environmentally sensitive Pootatuck River, the Conservation Commission, in a 4-1 vote on July 13, rejected Toll Brothers’ development proposal for Regency at Newtown, a 59-unit condo complex for people over age 55 on a 51-acre site at 21 Oakview Road, near Newtown High School. The commission reviews the environmental effects of proposed development on wetlands and watercourses.

The environmentally sensitive Pootatuck River, which is part of a spawning area for brook trout, lies at the base of steep slopes, which extend westward from the condo site. The Pootatuck River there is a Class 1 Wild Trout Management Area, one of only eight such fisheries in the state, where wild trout reproduce naturally due to cold, clear, clean water conditions.

Toll Brothers holds an option to purchase the site from Watkins Brothers Development Corporation. The property is near the eastbound lanes of Interstate 84.

The 11-page lawsuit filed by Toll Brothers lists a variety of reasons why the Conservation Commission erred in rejecting a requested wetlands permit for the condo complex.

Conservation Commission members’ concerns over the development proposal focused on the closeness of some proposed condo units to the top edge of the steep slopes, which lead downward to the Pootatuck River.

Commission members’ concerns involved those slopes’ general stability in relation to the proposed condo construction atop them, as well the prospect for stormwater draining down those slopes and carrying sediment into the Pootatuck River, thus contaminating the brook. The 59 condos would be built in 12 closely spaced buildings on a plateau on the site.

The Conservation Commission held public hearings on Toll Brothers’ application for a wetlands permit on May 25, June 8, and June 22. The developer had initially proposed 60 condos, but reduced the number to 59 units, in response to commission concerns about the location of one unit, which would have been located within 100 feet of the Pootatuck River.

According to its court appeal, Toll Brothers had three licensed engineers and a soil scientist testify at the Conservation Commission’s public hearings that the proposed construction would not destabilize the steep slopes or cause them to collapse, and also would not allow excess stormwater to drain down the steep slopes and contaminate the Pootatuck River.

The issue of whether the proposed construction would significantly adversely affect the river is a “technically complex” issue which is “beyond the knowledge of the lay members of the commission,” according to the court appeal. “The commission did not retain any person with professional training or experience to give it guidance and advice in reviewing the [developer’s] application,” according to the appeal.

In the lawsuit, the developer challenges claims made by commission member Donald Collier, who charged on July 13 that the developer provided the commission with “inaccurate information.” Mr Collier claimed that the slopes on the site are steeper than had been portrayed by the developer. The lawsuit states that the developer provided accurate slope information to the commission.

Also, the court appeal challenges commission member Dr Philip Kotch’s comments on July 13 that suggested that due to the environmental sensitivity of the site, a 150-foot-wide separation distance between the proposed condos and the Pootatuck River would provide a more appropriate environmental buffer zone for the project, rather than the normal 100-foot-wide buffer zone. Some of the condo construction proposed for the site lies within 150 feet of the river.

The town’s wetlands rules specify a 100-foot-wide buffer zone between construction and wetlands, and do not provide for a 150-foot-wide buffer, the legal papers state.

In the court appeal, the developer charges that “the reasons for denial are of a general and speculative nature,” and do not show that the proposed construction would significantly damage nearby wetlands, including the Pootatuck River.

The lawsuit states that commission members do not have the training and experience necessary to analyze the proposal on technical grounds, but nonetheless criticized it on technical grounds. If any commission members have such technical backgrounds, it was not publicly stated, according to the appeal.

“The first reason for denial is so unclear that it leaves the applicant guessing as to what it is about its application that the commission finds not in accordance with the regulations, and what would need to be changed in order to obtain approval,” the appeal states.

The developer further claims that “no feasible and prudent alternatives” to the construction proposal were required of it, as had been claimed by the commission. The developer adds that its reduction of the project from 60 condo units to 59 units would have amounted to such an alternative.

In their July 13 motion to reject the wetlands permit application, Conservation Commission members decided that the proposed construction poses the potential for damage to wetlands and watercourses, including the Pootatuck River. Commission members added that the proposed condo buildings should be constructed farther away from the top edge of the steep slopes than had been proposed.

In the court appeal, the developer claims that by not giving it the opportunity to rebut the criticisms of the construction proposal made on July 13 by Mr Collier and Dr Kotch, the commission violated the developer’s right to due process under the law in violation of the Connecticut and United States Constitutions.

Besides obtaining a wetlands permit for the project, the developer also needs zoning rule amendments from the Planning and Zoning Commission (P&Z) to allow its architectural design to be built; a special exception to the zoning regulations from the P&Z; a site development plan approval from the P&Z; an aquifer protection approval from the P&Z, based on an aquifer protection review conducted by the Conservation Commission, and a municipal sewer connection.

Regency At Newtown would be similar to Toll Brothers’ Regency Meadows at Trumbull, an age-restricted multifamily complex on Route 25 in the Tashua section of Trumbull, just north of Route 25’s intersection with Route 111.