Date: Fri 16-Apr-1999

Publication: Bee

Author: ANDYG

Quick Words:

Newtown-Village-court-ruling

Full Text:

Newtown Village Developers Ask Judge To Reconsider Adverse Decision

BY ANDREW GOROSKO

The developers of the proposed Newtown Village condominium complex are asking

a judge to reconsider his ruling which upheld the Planning and Zoning

Commission's (P&Z) rejection of that 96-house project for Sandy Hook.

In a motion filed April 9 in New Britain Superior Court, D&H Homes, LLC, of

New Milford and Fairfield Homes 2000 Corporation of Stamford, asking Judge

William Mottolese to reconsider his March 19 decision which upheld the P&Z's

November 1997 rejection of the controversial Newtown Village. The development

is proposed for a 32-acre site on Route 34, adjacent to the Exit 11 ramps of

Interstate-84.

Attorney Timothy Hollister, who represents the developers, said Monday the

judge may give the developers an opportunity to reargue the merits of their

case based the points made in the motion.

If the judge doesn't allow that, the developers' only other option would be to

file an appeal with the Connecticut Appellate Court.

In his March ruling, Judge Mottolese found that the protection of water

quality in the Pootatuck Aquifer overrides the need for affordable housing on

the site proposed for development. Twenty-four of the proposed 96 houses would

be designated as "affordable housing" under the terms of a state law which

allows developers to seek higher-than-normal construction densities for a site

when affordable housing comprises at least 25 percent of the units built.

In September 1996, the developers proposed Newtown Village. The proposal

eventually gained Conservation Commission approval for a wetlands construction

permit. It was rejected by the P&Z in November 1997 for a variety of reasons,

including the risk of aquifer contamination posed by a potential failure of

the proposed complex's waste disposal system. The decision handed down by

Judge Mottolese found that the P&Z was justified in its rejection of Newtown

Village on environmental grounds.

"The commission's decision is necessary to protect a substantial public

interest in Newtown's water supply, and that...public interest clearly

outweighs the need for affordable housing," Judge Mottolese wrote in his

ruling.

Motion

In the motion for reconsideration, the developers argue that Judge Mottolese

erroneously found that Newtown Village's proposed waste disposal system has

the potential to adversely affect the Pootatuck Aquifer, and also erroneously

found that the proposed waste disposal system's failure could result in the

discharge of untreated sewage into a public drinking water supply, among

various other points.

In the motion, the developers contend that their proposed waste disposal

system is not in the physical "zone of influence" of the Pootatuck Aquifer and

there is no evidence in the court record that it is located there.

"The subject property and its proposed community sewage disposal system,

although located within the mapped aquifer protection zone, is not located

within the physical zone of influence of any public or private drinking water

supply well or source. Thus, any land use occurring on the subject property,

either through its normal operation or even a catastrophic event, will not

affect water quality within the aquifer," according to the motion.

The developers contend that a discharge of untreated sewage into a public

drinking water supply cannot physically occur based on the design and

functioning of the proposed waste disposal system.

"The court erred by allowing the [P&Z] to meet its burden of proof with

respect to the community sewage disposal system based on the `possibility' of

harm, and without evidence in the record of probability," the motion states.

"Under the standard of review in this [decision], commissions will need only

to latch onto something that is undisputedly a matter of health or safety,

such as sewage disposal, fire safety, or even traffic safety, layout a worst

case scenario, even if that scenario is undocumented in the record, and under

this decision, it will prevail," the motion states.

Judge Mottolese's decision focused on the negative effects that a possible

mechanical failure of a proposed small-scale, on-site sewer system at Newtown

Village would have on water quality in the Pootatuck Aquifer. Judge Mottolese

didn't address two other objections the P&Z had raised in rejecting Newtown

Village -- the traffic impact of the development and the extensive earth

removal which would be needed to develop the site.

In his March decision, Judge Mottolese ruled "The [P&Z] identified two public

interests which it deemed to be substantial. First, the [P&Z] was unwilling to

act contrary to the sewer avoidance policy adopted by the Water Pollution

Control Authority (WPCA), and to reverse its own policy with respect to rural

and environmentally sensitive sections of town. Second, it was unwilling to

permit [systems] other than strictly land-based sewerage systems because

mechanical systems pose significant environmental risks."

In his decision, the judge wrote "For if there existed a genuine possibility

that such a catastrophe as contamination of the public water supply could

occur, the commission did not need any evidence of the degree of

probability... The commission has satisfied its burden that denial of the

requested change in the regulations was necessary to support this substantial

public interest. [The commission] emphatically resolved that the necessity to

protect the public water supply for its residents clearly outweighed the need

for affordable housing."

The judge is expected to rule on whether he will reconsider his March decision

and hear additional arguments in the case.