Upzoning Lawsuit Faces Tough Test, Attorney Says

By Andrew Gorosko

The lawyer representing six property owners who have a lawsuit pending against the Planning and Zoning Commission (P&Z) over its approval of “upzoning” has explained the dynamics of the court case to members of the Newtown Property Owners Association, an ad hoc group which formed last winter in opposition to upzoning.

At a recent Property Owners Association meeting at Newtown High School attended by about 100 people, attorney Robin Pearson updated association members on the status of the administrative appeal now pending in Danbury Superior Court. The association itself is not named as a plaintiff in the case, but endorses the plaintiffs’ appeal.

The plaintiffs are property owners Janice P. Booth, William E. Barella, Alice H. Poundstone, Richard Haight, Marco G. Nesi, and Carmine Renzulli. The plaintiffs own property affected by upzoning.

Ms Booth owns a 1.3-acre parcel at 30 Button Shop Road, where there is a single-family home. Mr Haight owns 3.76 acres at 99 Church Hill Road. Mr Barella and Ms Poundstone jointly own one-tenth of an acre at 78 Water View Drive in Riverside, where there is a single-family house. Mr Nesi of Scarsdale, N.Y., owns three-quarters of an acre at 157-159 Lake View Terrace in Cedarhurst. Carmine Renzulli of Norwalk owns almost 38 acres at 70 and 79 Church Hill Road and also at 1 through 25 Walnut Tree Hill Road.

The affected residential properties have had their minimum zoning designations increased from either one-half acre to one acre, from one-half acre to two acres, or from one acre to two acres. 

Upzoning represents a significant zoning change for the town, Ms Pearson told association members.

The plaintiffs’ case will hinge on whether the P&Z can substantiate if protecting groundwater quality in general, and the water quality of the Pootatuck Aquifer in particular, can be rationally tied to upzoning, Ms Pearson said. The P&Z enacted upzoning as a water quality protection measure.

The six plaintiffs claim that upzoning hurts property values and hinders the ability to develop affected properties, or to expand existing development. The lawsuit seeks to overturn upzoning.

In September, P&Z members unanimously approved upzoning, a sweeping plan that upgrades the zoning designations of an aggregate area greater than 2,500 acres, affecting approximately 2,315 properties, almost 2,000 of which have dwellings on them. Upzoning increases minimum zoning requirements and decreases potential residential construction densities.

The P&Z maintains that upzoning is intended to protect groundwater quality in the several communities situated along Lake Zoar, and to preserve the drinking water quality of the Pootatuck Aquifer in south-central Newtown. Upzoning is intended to prevent the need to expand the municipal sewer system. With upzoning, the P&Z sought to increase minimum zoning standards in order to decrease potential construction densities, and thus decrease the potential for groundwater contamination.

Ms Pearson said she expects a judge to take between six months and one year to review the administrative appeal, before ruling on it.

“It’s a long process,” she said, explaining the schedule under which such court cases proceed.

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, Ms Pearson said.

 In terms of property values, non-conforming properties are less desirable than properties that conform to the zoning regulations, she said.

 Upzoning could result in affected property owners encountering problems in constructing additions to existing structures, which they would not have encountered before upzoning, Ms Pearson said.

The court case will address whether there is sufficient evidence on the P&Z’s written record to show that its members had a valid reason to upzone the residential areas, she said. A judge will have to decide whether it was “appropriate” to upzone, considering the existing density of development in affected areas, she said.

Ms Pearson told association members that zoning measures, such as upzoning, when enacted by municipal land use agencies, are most often not challenged in court. But when such measures are challenged in court, such appeals most often fail, she added.

The P&Z has much latitude and discretion when it enacts zone changes, she said. “The courts do not want to overturn the decisions of a local commission,” she added. “This is a difficult road when one is appealing… a zone change,” Ms Pearson said.

While the P&Z’s upzoning project presents issues that are appealable in court, there is no guarantee that the appeal will succeed, she told association members.

 Association director Edward Lundblad said that association members could have tolerated the P&Z upzoning land that is undeveloped. But upzoning land that has already been developed poses problems, he said.

Association director Barry Piesner said he hopes a judge will find fault with the P&Z’s procedures in enacting upzoning, and order the P&Z to go through the upzoning process again.

When the P&Z was in the midst of the upzoning project, the association did not understand the issues posed, he said. Many affected property owners were unaware of the upzoning project, he said. Property owners did not receive proper notification, he charged.

The P&Z published legal notices in a newspaper listing the local streets that would be affected by upzoning. Association members say that property owners should have received individual mailed notices of the upzoning project from the P&Z.

The property owners association has started a political organizing drive for the November 2001 municipal elections, in a move to unseat P&Z members who favor upzoning and replace those members with people sympathetic to the association’s viewpoint.