Date: Fri 16-Jul-1999

Publication: Bee

Author: ANDYG

Quick Words:

aquifer-regulations-lawsuit

Full Text:

Town's New Aquifer Regulations Draw Two Lawsuits

BY ANDREW GOROSKO

The town's new, tougher aquifer protection regulations have generated two

lawsuits that mount legal challenges to the rules recently approved by the

Planning and Zoning Commission (P&Z) to better safeguard the quality of

existing and potential underground drinking water supplies in the town's

Aquifer Protection District (APD).

In June, after about five months of review and revisions, P&Z members

unanimously approved the new regulations, which greatly expand and more

explicitly state the rules the P&Z uses to protect groundwater quality in the

APD. The APD is an area of varying width above the Pootatuck Aquifer which

generally follows the course of the Pootatuck River from its headwaters in the

vicinity of the Monroe border northward to Sandy Hook Center.

The P&Z is named as the defendant in one lawsuit filed on behalf of Curtis

Corporation; DD Newtown Partners, Limited Partnership; Kathryn A. and James P.

Maguire, III; and Larry Edwards. The plaintiffs own property in the APD.

Attorney Robert Hall represents the plaintiffs.

In that lawsuit, the plaintiffs object to the new aquifer regulations which

prohibit the removal of sand and gravel from land in the APD. According to the

suit, expert testimony presented to the P&Z at a public hearing on the new

regulations held that "the removal of sand and gravel in and of itself does

not pose any substantial threat to the quality of the water in the aquifer and

that there is no justification that removal of unsaturated sand and gravel

deposits which are situated above the water table has an adverse effect (on)

the aquifer below."

Because the P&Z had no scientific or engineering evidence to show that

removing sand and gravel would be detrimental to the groundwater, the

prohibition on removing sand and gravel is unreasonable, according to the

suit.

The plaintiffs also object to a provision of the regulations that prohibits

the outdoor storage of commercial vehicles and construction equipment,

claiming that such a measure is not necessary to protect groundwater quality.

Also, the plaintiffs claim a prohibition against the maintenance of commercial

vehicles and construction equipment is not reasonably designed to protect

groundwater supplies.

The plaintiffs also object to a prohibition on medical or dental offices,

veterinary hospitals, beauty and nail salons, funeral parlors and research or

medical laboratories in the APD unless such facilities are served by both

sewer and water lines. The suit notes that only a very small part of the APD

is served by sewer and water lines and that none of the plaintiffs' properties

have such public utility service.

The requirement that new single-family dwellings in the APD be built on at

least two acres also draws opposition from the plaintiffs. Much of the land in

the APD has been zoned for minimum one-acre single family housing, the suit

states. The two-acre minimum residential lot size requirement specified in the

new regulations has been approved by the P&Z without any evidence that

groundwater supplies are any better protected by having septic systems on

two-acre lots instead of one-acre lots, according to the suit.

All the prohibitions in the new aquifer regulations are in effect without any

mechanism for an applicant to prove that the prohibited use could be conducted

safely and without danger to the groundwater supply, it states.

The plaintiffs claim the P&Z has no scientific basis to impose the

prohibitions in the new regulations as being necessary to protecting

groundwater quality, the suit states.

Mr Hall said Monday the lawsuit seeks to have the court nullify the provisions

of the aquifer protection regulations which the plaintiffs oppose. Short of

that, the plaintiffs want the P&Z to create some regulatory mechanism to allow

them to carry on otherwise prohibited land uses in the APD provided that they

can demonstrate that those land uses would be conducted in an environmentally

safe manner, he said.

Specific Reasons

The lawsuit states the specific reasons each of the plaintiffs has brought the

lawsuit against the P&Z.

Curtis Corporation, which owns 49 acres with frontage on Route 34 and Toddy

Hill Road, has a factory for the manufacture of cardboard packaging materials.

The property has substantial amounts of sand and gravel. Before the aquifer

protection regulations were adopted June 21, Curtis Corporation had pending

before the P&Z an application to enlarge its industrial building; an

application to rezone almost eight acres of residentially-zoned land to

industrially-zoned land; and an application to subdivide its land into one

industrial building site for its expansion project, plus nine other industrial

building lots and 1,500 feet of road to serve those lots.

In order the develop the subdivision, sand and gravel would have to be removed

from the premises by Curtis Corporation as the developer of the roadway, or by

the buyer of an industrial lot for the construction of a building, according

to the lawsuit. The suit adds Curtis Corporation has commercial vehicles

stored outdoors which it expects to continue storing outdoors. If the P&Z does

not rezone the 8 acres from residential to industrial zoning, Curtis would use

that land for residential building lots. However, if it is required to

allocate 2 acres per building lot, rather than 1 acre, it would lose 1 or 2

building lots with that residential subdivision, the suit states.

DD Newtown Partners, Limited Partnership, owns Sand Hill Plaza at a 38-acre

site on South Main Street. There are about 10 acres of undeveloped land

remaining at the site which would allow for future expansion. The P&Z approved

expanding the shopping center several years ago, but that approval has lapsed.

Substantial amounts of sand and gravel would have to be removed from the site

if the plaza were expanded, according to the suit.

Waste water generated by the shopping center is treated at a small on-site

sewage treatment plant regulated by the state Department of Environmental

Protection (DEP). The new aquifer protection regulations prohibit such

facilities, suggesting that the existing treatment plant could not be expanded

even if it met all DEP requirements, according to the lawsuit.

Kathryn A. and James P. Maguire, III, of 6-A Russett Road own land at 15 and

17 Berkshire Road and are under contract to buy land at 13 Berkshire Road. The

plaintiffs lease the premises at 17 Berkshire Road to JP Maguire Associates,

Inc, a fire damage restoration company. The company has its commercial

vehicles parked both inside and outside the building on which some minor

maintenance may be done by company employees, according to the suit.

The Maguires have approval to construct an office building at 15 Berkshire

Road where they would like to rent space to a doctor or dentist, but the new

regulations prohibit such uses, according to the lawsuit.

Also, the Maguires are under contract to buy 13 Berkshire Road, which is in a

professional zone where doctor and dentist offices are allowed, but the new

aquifer regulations prohibit those uses there, the suit states.

Larry Edwards of Easton owns land with frontage on South Main Street and Pecks

Lane in an M-2 industrial zone. The zoning regulations allow offices occupied

by businesses or professionals in such zones by special exception to the

zoning regulations. The P&Z granted such a special exception to build offices

on the property in the past, but that approval has lapsed, according to the

lawsuit.

The new aquifer regulations have reduced the pool of tenants who could locate

on the property, according to the lawsuit.

Other Lawsuit

Mr Hall is the plaintiff in the other lawsuit against the P&Z appealing the

new aquifer regulations. He represents himself in the case.

Mr Hall owns 17 acres at 8 and 11 Huntingtown Road, primarily lying in an R-1

residential zone for which the minimum lot size is 1 acre for a single family

residence.

Mr Hall's property was not included in the APD before the P&Z approved the

aquifer regulations, but now is included in it, according to the lawsuit.

The Hall lawsuit raises many of the same points made in the lawsuit brought by

Curtis Corporation and DD Newtown Partners.

The Hall lawsuit raises objections to the aquifer regulations which prohibit

the removal of sand and gravel, the maintenance of commercial vehicles and

maintenance of construction equipment.

The suit also objects to the aquifer regulations which effectively rezone the

residential density of a section of the 17-acre parcel from 1-acre to 2-acre

minimum residential lot sizes, without having provided evidence that

groundwater will be better protected by having a house with a septic system on

a two-acre parcel rather than a one-acre parcel.

The expansion of the APD was based on arbitrary mapping standards and does not

determine whether the Hall property is within an "aquifer recharge area" or

"area of contribution" to the aquifer, according to the suit.

The town has a July 27 appearance date in Danbury Superior Court to answer

charges made in the two lawsuits.