Developer Appeals Condo Complex Rejection

By Andrew Gorosko

The Danbury developer whose controversial proposal to construct a 23-unit mixed-income condominium complex in Sandy Hook Center was rejected earlier this month by the Planning and Zoning Commission (P&Z), has filed a court appeal against the P&Z in seeking to have a judge order that the complex be built.

In a lawsuit filed August 14 in Danbury Superior Court, developer Guri Dauti, doing business as Dauti Construction, LLC, charges that the P&Z legally erred in rejecting Edona Commons.

The proposed 23-unit townhouse-style condo complex at 95-99 Church Hill Road would contain seven dwellings reserved for moderate-income families. The project would be constructed on a steep, rugged 4.04-acre that is now partially owned by the developer.

Citing a host of reasons, the P&Z unanimously rejected the project on August 3. It is the third time since 2003 that the land use agency has turned down Dauti’s various proposals for multifamily development at the site.

The Edona Commons proposal drew strong opposition from nearby residents, who charge that such development is inappropriate for the area, stressing that the traffic it would generate would worsen existing traffic problems in the area. Other complaints have focused on school bus safety, emergency access to the site, the historic character of the neighborhood, the removal of trees, and issues of general aesthetics.

Attorney Ryan McKain represents Dauti Construction in the legal action. Attorney Robert Fuller represents the P&Z. The P&Z has a September 19 court return date in the case.

On July 26, Dauti Construction sued the Water and Sewer Authority (WSA) over its recommendation that the P&Z not approve Dauti’s requested change of zone for the condo complex. That lawsuit seeks to have a judge order that the town provide sewer service for the project.

Still pending before the Zoning Board of Appeals (ZBA) is the developer’s appeal of a ruling that was issued last spring by the town’s land use enforcement officer. That ruling revoked a lot line revision at the development site that the town had granted to the developer in 2003. The ZBA is expected to act on the appeal at an upcoming session. The ZBA decision on that appeal would bear upon Dauti’s ability to develop the 4.04-acre site.

Mr Dauti owns 1.3 acres at 95 Church Hill Road. He has an option to buy an additional 2.7 acres at 99 Church Hill Road. The two parcels would comprise the site for Edona Commons.

Dauti Construction filed a development application with the P&Z on February 1, seeking to create a new zone known as the Mixed Income Housing District (MIHD), seeking to rezone the site’s current zoning designation from R-2 (Residential) to MIHD, and also seeking a special permit and a construction permit.

P&Z public hearings on the application were held on April 6, May 18, and June 18.

The court appeal states that the developer presented expert testimony at the hearings from specialists in engineering, traffic, architecture, public safety, and hydrogeology.

Those experts testified concerning the project’s compliance with the 2004 Town Plan of Conservation and Development, traffic flow, stormwater control, public safety, emergency access, the project’s visibility, aesthetics, excavation, and the removal of earth materials, according to the legal papers.

Appeal

The developer charges that the P&Z’s rejection of the proposal to create MIHD zoning was “illegal, arbitrary, and an abuse of discretion vested in the commission.”

The rejection was not supported by sufficient evidence in the record of the public hearing, the lawsuit alleges. The proposed MIHD zoning regulations were in conformity with the town plan, it adds.

“The [P&Z’s] decision fails to encourage the development of housing opportunities, including opportunities for multifamily dwellings consistent with soil types, terrain, and infrastructure capacity, for all residents of Newtown and the planning region in which Newtown is located” in violation of applicable state law, the court papers state.

The developer further charges that the P&Z’s decision against granting a change of zone for the site from R-2 to MIHD was similarly illegal under state law. R-2 zoning would allow two single-family houses to be built on the site.

“Although no expert testimony was presented regarding neighboring property values, the [P&Z] assumed that neighboring property values would be adversely affected,” the appeal states.

The court appeal further charges that the P&Z’s decisions against issuing a special permit and a construction permit was illegal, arbitrary, and an abuse of discretion.

On August 3, P&Z members stated many reasons why they chose to reject the developer’s proposal to create MIHD zoning regulations.

The town already has Affordable Housing Development (AHD) zoning regulations that allow such construction through the special permit process, according to the P&Z. Those AHD regulations are consistent with the state’s Affordable Housing Appeals Act and with the town’s 2004 Plan of Conservation and Development, the P&Z added. The proposed MIHD zoning regulations do not meet all state requirements concerning the incomes of residents living in affordable housing, it adds.

Also, P&Z members stated that the MIHD proposal to allow up to eight dwellings per acre in an MIHD complex exceeds current zoning rules, which limit multifamily developments to maximums of 4 units, 3.5 units, or 2 units per acre, depending upon the specific type of multifamily development involved. The proposed MIHD regulations are not consistent with the town plan concerning desired residential construction density and population density, the P&Z decided.

The proposed MIHD regulations would result in higher construction densities in town, would lessen the visual buffering requirements for high-density development, and would change the character of local development, according to the P&Z.

Under the proposed MIHD regulations, 35 local sites could be eligible for development similar to Edona Commons, resulting in the potential for increased housing density that is inconsistent with the town plan, the P&Z found. The presence of such high density complexes could create sewage treatment capacity issues for the municipal sewer system, it added.

Because the P&Z decided against creating MIHD zoning, it consequently decided against converting the site from R-2 to MIHD.

P&Z members found that the high-density construction proposal was opposed by the Police Commission for reasons of traffic safety; by the fire marshal, unless a secondary accessway for emergency equipment is provided at the site; and by the WSA because the additional sewage treatment capacity required by such a condo complex was not planned for at the sewage treatment plant.

Also, P&Z members noted that the site is bounded on east side by a 30-foot-tall rockface cliff, which would be a major hazard for children living at the complex.

The P&Z also decided that traffic in the area is congested and that travel to and from the site would worsen local traffic flow.