Court Ruling Upholds P&Z’s

Controversial Upzoning Decision

By Andrew Gorosko

A Danbury Superior Court judge has upheld the Planning and Zoning Commission’s (P&Z) September 2000 decision to “upzone” more than 2,300 residential properties in Newtown. The court found that the P&Z was within its jurisdiction to upgrade the minimum zoning requirements for the more than 2,500 acres as a groundwater quality protection measure.

In his recent ruling, Judge Dale Radcliffe also decided that the P&Z did not violate the procedural “due process” rights of several plaintiffs, as they had charged in their administrative appeal which challenged and sought to overturn upzoning.

Judge Radcliffe ruled on a lawsuit challenging upzoning, which was filed on behalf of plaintiff Janice Booth, and others. A separate lawsuit challenging upzoning filed on behalf of Robert Hall, and others, is still pending in court.

Last June, Judge Arthur Hiller rejected a move by the plaintiffs to have the two lawsuits consolidated into one case, deciding that they pose separate issues.

The plaintiffs in the Booth case are property owners whose holdings were affected by upzoning.

Attorney Robin Messier Pearson, who represents the Booth plaintiffs, had no comment Wednesday on Judge Radcliffe’s decision upholding the P&Z’s upzoning project. Ms Pearson said she does not know if the plaintiffs will appeal the judge’s decision in the Connecticut Appellate Court. The appeal period expires soon.

At a November 2000, Newtown Property Owners Association session, Ms Pearson had cautioned that the plaintiffs faced a difficult challenge in seeking to have a judge overturn a land use agency’s revision of its zoning regulations.  The association supported the plaintiffs’ appeal. 

Attorney Robert Fuller represented the P&Z in the upzoning appeal.

Upzoning increases minimum residential zoning requirements and decreases potential residential construction densities. Upzoning is intended to protect groundwater quality in the lakeside communities along Lake Zoar, in general, and to preserve the water quality of the Pootatuck Aquifer in south-central Newtown in particular. Upzoning is intended to prevent the need to expand the municipal sewer system.

The plaintiffs alleged that upzoning has diminished the development potential of their properties, decreasing the properties’ potential value, and reducing their properties’ ability to be subdivided.

The issues raised by the lawsuit focus on property values. Upzoning has created some properties that are newly non-conforming to the zoning regulations, and also has created some properties that are now even more non-conforming to the zoning regulations than they were before upzoning occurred. The plaintiffs consider non-conforming properties to be less valuable than comparable conforming properties.

Elizabeth Stocker, Newtown’s community development director, helped formulate the upzoning proposal for the P&Z.

Ms Stocker said Wednesday  “I am pleased that the Town of Newtown Planning and Zoning Commission has been upheld on that (upzoning) appeal…The commission has the authority to make those kinds of decisions for the town.”

The P&Z extensively studied and thoroughly explored the issues posed by upzoning before enacting the measure, Ms Stocker said.

“There’s a lot of credit to [be given to] the commission in moving this [upzoning] ahead,” she said, noting that the measure protects the environment and benefits the public.

Upzoning upgraded the zoning designations of residential properties in the town’s Aquifer Protection District (APD) in south-central Newtown from R-1/2 - Acre and from R-1-Acre to R-2-Acre. Upzoning upgraded the zoning designations in the lakeside communities along Lake Zoar from R-1/2 -Acre to R-1-Acre.

The P&Z approved upzoning in the town’s Aquifer Protection District (APD) to protect the groundwater quality in the Pootatuck Aquifer, which is the town’s sole source aquifer. The agency upgraded minimum lot sizes in the Lake Zoar lakeside communities to provide sufficient space on house lots for the effective functioning of both domestic water wells and septic systems.

Earlier this year, Judge Hiller ruled in favor of the P&Z in two court appeals which were filed against the agency following its June 1999 geographic expansion of the town’s APD and its strengthening of the aquifer protection regulations. Judge Hiller ruled the P&Z was within its jurisdiction in expanding the APD and in strengthening the aquifer protection rules as a way to protect existing and potential public drinking water supplies in the Pootatuck Aquifer.

In unanimously approving upzoning in September 2000, P&Z members stated that having a minimum residential lot size of one acre in the lakeside communities, which lie within the town’s designated sewer avoidance area, provides a means to enforce the town’s sewer avoidance regulations. P&Z members added that having a minimum residential lot size of two acres in the APD protects the water quality of the Pootatuck Aquifer.

In upgrading the lot size requirements, the P&Z sought to assure the reliable operation of septic systems by providing sufficient space for them.

The P&Z upgraded the zoning requirements for the long-term protection of existing and potential sources of potable water, considering that the cumulative impact of continuing development could result in deteriorating water quality.

The plaintiffs in the upzoning lawsuit against the P&Z were: Janice Booth, who owns 1.3 acres on Button Shop Road; Richard Haight, who owns 3.25 acres at 99 Church Hill Road; Alice Poundstone and William Barella, who own 78 Waterview Drive, which is one-tenth of an acre and a dwelling; Mario Nestri, who owns 157 and 159 Lakeview Terrace, which are parcels of .54 acres, and .8 acres including a residence, respectively; and Carmine Renzulli, who owns 35 acres located at 79 Church Hill Road and 125 Walnut Tree Hill Road, plus 2.88 acres at 70 Church Hill Road.

 

Broad Discretion

In his decision, Judge Radcliffe ruled, “When it acts to amend its existing regulations, a zoning commission (exists) in a legislative rather than in an administrative or quasi-judicial capacity…It has broad discretion and is free to amend its regulations whenever time, experience and responsible planning for contemporary or future conditions reasonably indicate the need for a change…When acting as a legislative body, a commission is the formulator of public policy and its discretion is broader than that of a board sitting in an administrative or quasi-judicial capacity…Zoning must be sufficiently flexible to meet changing conditions, and a commission’s action should not be disturbed by a court unless it has acted arbitrarily or illegally…Conclusions reached by the commission must be upheld if they are reasonably supported by the record.”

In his ruling, the judge decided that the credibility of witnesses and the determination of the facts of the case fell within the province of the P&Z.

The issue is not whether a trial court would have reached the same conclusion as the land-use agency, but whether the record supports the decision that was reached, the judge adds.

Judge Radcliffe decided that the P&Z’s deliberations and the conduct of its public hearings did not violate the plaintiffs’ procedural due process rights under the law, as the plaintiffs had claimed.

Approximately 2,315 properties are affected by upzoning, almost 2,000 of which have dwellings on them. Of the 2,315 properties, 1,319 lie outside the APD, and 996 are inside the APD.

“The action of the commission brings the minimum lot area in the underlying zone (into) compliance with the minimum (lot area) required in the Aquifer Protection District,” the judge stated. He notes that the P&Z created the 2-acre minimum residential lot size in the APD in June 1999, well before upzoning was enacted.

“The action of the commission is consistent with the recommendation of the state Department of Environmental Protection, which recommends a density of one dwelling unit per two acres, in areas over high-yield aquifers,” Judge Radcliffe writes.  

Upgrading the minimum zoning requirements for residential lots for land which is outside the APD in the lakeside communities to one-acre is intended to protect present and future groundwater quality and to maintain the town’s sewer avoidance program, according to the P&Z.

In pursuing such a development density policy, the P&Z expressed its concerns about septic system failures, according to the judge.