Date: Fri 26-Mar-1999

Publication: Bee

Author: ANDYG

Quick Words:

lawsuit-affordable-housing

Full Text:

Court Backs Town In Affordable Housing Case

BY ANDREW GOROSKO

A judge has upheld the Planning and Zoning Commission's (P&Z) rejection of the

controversial Newtown Village, a high-density condominium complex proposed for

Route 34 in Sandy Hook, ruling that the protection of water quality in the

Pootatuck Aquifer overrides the need for affordable housing on the site

proposed for development.

In September 1996, a team of developers proposed Newtown Village, a 96-house

complex containing 24 "affordable" houses for a 32-acre site near Exit 11 of

Interstate-84. The proposal eventually gained Conservation Commission approval

for a wetlands construction permit, but was rejected by the P&Z in November

1997 for a variety of reasons, including the risk of aquifer contamination

posed by the complex's presence.

The March 19 decision handed down by Bridgeport Superior Court Judge William

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.

State affordable housing law provides developers with financial incentives to

build high-density housing complexes that include units for moderate-income

families. The lawsuit was tried under the provisions of the state's affordable

housing appeals law, a statute that provides developers with a legal avenue to

appeal municipal rejections of affordable housing applications.

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 underlying 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.

"The action of the commission should be sustained even if one reason

[environmental] is sufficient to support it," the judge wrote.

Reaction

Attorney Timothy Hollister, who represents the applicants, said Tuesday "I got

the decision in the morning's mail." He said he had read it only once, so far.

Mr Hollister said that he and his clients will be reviewing the judge's

decision. He didn't comment on whether his clients would appeal the decision.

If they choose, the applicants could appeal Judge Mottolese's decision to the

Connecticut Appellate Court, and potentially to the Connecticut Supreme Court.

Mr Hollister represents D&H Homes, LLC, of New Milford, and Fairfield 2000

Homes Corporation of Stamford.

In November 1997, the applicants filed a legal appeal, seeking to have a judge

force the town to approve the project.

First Selectman Herbert Rosenthal said "I'm very relieved that the town won."

"We're not opposed to affordable housing. It was the site that was the

question," he said.

Mr Rosenthal said the clear victory the town won would be difficult to

overcome in a legal appeal by the developers.

The judge recognized that the P&Z was correct in rejecting the project in

light of the P&Z's concerns about the potential contamination of the Pootatuck

Aquifer, the first selectman said.

P&Z Chairman Daniel Fogliano said "I'm pleased at the outcome... It's a good

decision, a sensible decision." He characterized the development application

as "dangerous," noting that the application "had some severe public health and

safety issues."

Elizabeth Stocker, the town's community development director, said of the

decision "It validated our sewer avoidance policy...It was the (high) density

of the development."

The potential for contamination of the Pootatuck Aquifer by a small-scale

on-site sewer system was too great, and that risk outweighed the benefit of

providing affordable housing there, she said. The public health and safety

issue outweighed the affordable housing issue, she said.

Resident Vikki Carlson of 1 Elana Lane was in the forefront among neighborhood

residents who strongly opposed Newtown Village when it was in the application

stages before town land use agencies.

"I'm just very grateful. I can't tell you. I'm thrilled. This is absolutely

wonderful. This is super," she said. Mrs Carlson said learning that Newtown

Village's lawsuit against the town was dismissed is the best news she has had

since the recent birth of her child.

The 32-acre site proposed for development is bordered on the west by the Exit

11 entrance ramp to Interstate-84, on the northeast by Philo Curtis Road, on

the south by Route 34, and on the southeast by Bishop Circle.

Decision

In his 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, 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."

"A zoning commission is entitled to deny an application for a change in zoning

regulations where there is a possibility that approval of the application

could result in environmental harm or physical injury to residences of the

development, as long as there is a reasonable basis in the record for

concluding that its denial was necessary to protect the public interest," he

added.

"The commission identified the purity of the town's water supply as a

substantial public interest which must be protected... On the record in this

case it is hard to imagine a more substantial public interest than protection

of a sole source water supply from sewage contamination," he wrote.

In their November 1997 rejection of Newtown Village, P&Z members concurred

that the town needs additional affordable housing and they have sought to

encourage it through applicable town regulations, but they want to foster

affordable housing complexes which respect other substantial public interests

of the town, such as the WPCA's policy on sewer avoidance and also traffic

safety.

Although other affordable housing developers, such as R&G Riverview, LLC, have

development plans which comply with such objectives and which have been

approved for construction, the Newtown Village proposal seeks to undermine or

avoid the town's sewer avoidance policy, impairs traffic/safety conditions,

and creates unregulated gravel mining through extensive regrading of the land,

according to the P&Z. Riverview Condominiums is under construction off South

Main Street, near Sand Hill Plaza.