Upzoning Enacted; Property Owners Promise A Lawsuit

By Andrew Gorosko

Following many months of discussion, Planning and Zoning Commission (P&Z) members have unanimously approved their controversial residential “upzoning” proposal, 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. Upzoning is intended to protect groundwater quality in general, and to preserve the water quality of the Pootatuck Aquifer in particular. The change is intended to prevent the need to expand the municipal sewer system.

Upzoning takes effect September 18.

The Newtown Property Owners Association, an ad hoc group that formed earlier this year in opposition to upzoning, vows that it will file a lawsuit in Danbury Superior Court in seeking to overturn upzoning.

Association director Barry Piesner said September 8, “This [upzoning] decision was pre-ordained. We knew it. We expected it. This has nothing to do with facts. This has to do with politics.”

The association has raised the money needed for a court appeal, Mr Piesner said. “There absolutely will be an appeal made on behalf of the Newtown Property Owners Association and [several] individuals,” he said.

Upzoning has added a layer of local bureaucracy for people who want to improve their homes in affected areas, Mr Piesner said. In some cases, upzoning will require applications to the Zoning Board of Appeals (ZBA) for zoning variances to make changes to properties. 

The property owners association is shifting into a “political mode,” and will work in the next town elections to unseat P&Z members who support upzoning, Mr Piesner said.

“We’re angry. We’re unhappy,” he added.

P&Z Discussion

“I think there has been ‘major league’ discussion on this application,” P&Z Chairman Daniel Fogliano told P&Z members in stating his support for upzoning.

“This is a discussion for the commission only,” Mr Fogliano told a group of nine property association members who attended the September 7 P&Z meeting at which upzoning was approved.

Association members had repeatedly sought to have the P&Z reopen public comment on the issue.            The P&Z held public hearings on upzoning last February and December.

In July, at the association’s urgings, First Selectman Herbert Rosenthal raised the group’s concerns at a public session with the P&Z. Those concerns include whether upzoning will diminish the potential stock of local affordable housing. At that time, Mr Rosenthal had suggested that the P&Z exempt existing structures from upzoning.

At the September 7 session, P&Z member Heidi Winslow said P&Z members have wrestled with the upzoning issue “for years.” The P&Z has consulted with the Housatonic Valley Council of Elected Officials (HVCEO), which is the regional planning agency, and with the state Department of Environmental Protection (DEP), and has reviewed many technical reports in concluding that upzoning is necessary, Ms Winslow said.

The P&Z should not endorse the construction of single-family houses on lots smaller than one acre, she stressed, expressing concern about the potential for septic system effluent contaminating the underlying groundwater.

Many areas affected by upzoning have sandy soils which drain quickly, posing potential groundwater contamination problems, she said. “This [situation] demonstrates the wisdom of taking this [upzoning] approach,” she said. Expanding the municipal sewer system presents an alternate approach to preventing groundwater contamination, she added.

Groundwater quality and aquifer water quality are much more serious issues for the town than the limitations that upzoning places on some home expansion projects, she said.

“This is an easy call,” Ms Winslow said in stressing her support for upzoning.

P&Z member James Boylan said upzoning is the most important issue he has encountered in his several years as a P&Z member.

“For the greater good of the community, I’m definitely in favor of it,” he said.

 P&Z member Robert Poulin said that he initially had doubted the need for upzoning, but after reviewing the facts, he decided it is necessary.

“The needs of all the people of Newtown require this. This should have gone through 10 years ago,” he said.

P&Z member Lilla Dean said the zoning changes stemming from upzoning will correspond with the strengthened and expanded Aquifer Protection District (APD) regulations which the P&Z approved in June 1999. “We have to be consistent,” she said. 

 

Alternate View

Anthony Klabonski of 14 Underhill Road in Riverside recently was appointed as an alternate member of the P&Z. Mr Klabonski was not eligible to vote on the upzoning proposal, but offered some comments on the matter, dissenting from the other P&Z members’ views.

Mr Klabonski said he lives in an area affected by upzoning. He asked P&Z members what will happen when septic systems in affected areas fail, and the septic effluent seeps into underlying groundwater.

Mr Klabonski said he favors extending sewers to affected areas as a groundwater quality protection measure. He asked whether approving upzoning effectively “nails the door shut” on extending sewers to those areas. “I definitely oppose this [upzoning] proposal,” he said.

Mr Fogliano responded that if a public vote to extend sewers to areas affected by upzoning comes in the future, the P&Z will learn what residents think about a sewer system expansion. Mr Fogliano pointed out that the P&Z is not the Water Pollution Control Authority (WPCA) and does not handle public sewering projects.

Mr Klabonski urged that P&Z members keep an open mind about the potential for extending public sewers to areas affected by upzoning.

 

The Vote

On that note, P&Z members unanimously voted to approve upzoning, with Mr Fogliano, Ms Winslow, Mr Boylan, Ms Dean, and Robert Taylor endorsing it. Mr Poulin was not eligible to vote.

The P&Z approved a lengthy resolution detailing its rationale for approving the measure.

In that motion, the P&Z states that by creating minimum residential lot size requirements of one-acre in designated sewer avoidance areas, and of two-acres in the Aquifer Protection District, the P&Z creates a mechanism to enforce the town’s sewer avoidance policy and to protect the environmentally sensitive Pootatuck Aquifer.

By limiting housing densities in affected areas, the P&Z can help ensure that septic systems will function as a reliable means of waste disposal, it adds.

Upzoning establishes the intensity of development which will not require sewer service and will protect water quality, it states.

“If no action is taken to reduce the potential risks to public health and degradation of the environment which may occur as a result of the existing land development densities, it is reasonable to expect that the rate of contamination of surface and ground water resources will increase proportionally to the continued growth in Newtown,” the motion states.

Affected Areas

Upzoning is intended to safeguard water quality in the Pootatuck Aquifer in south-central Newtown. It is the town’s sole source aquifer and the source of two public water supplies. 

Upzoning is intended to prevent groundwater contamination problems from worsening in the town’s sewer avoidance areas. The sewer avoidance areas are in the several communities situated along Lake Zoar, including Shady Rest, Pootatuck Park, Riverside, Cedarhurst, and Great Quarter.

Under upzoning, residential properties with current ½-acre zoning will have zoning designations increased to either 1 acre or 2 acres, depending upon their location. Other properties with current 1-acre residential zoning will be increased to 2-acre zoning.

Areas which get new 1-acre zoning designations are sewer avoidance areas. Areas which get new 2-acre zoning designations are in the town’s Aquifer Protection District.

Many members of the property owners association live in the communities along Lake Zoar that are affected by upzoning. The predominant zoning designation in those areas has been 1/2 -acre Residential. Under upzoning, that zoning designation increases to 1 acre.

Upzoning does not affect properties in the Borough of Newtown.

The upzoning measure has drawn fire from property owners who say they are unconvinced the change is necessary. Some affected residents say they fear that increasing minimum residential zoning requirements would damage their properties’ development potential, and thus reduce the value of their real estate.

Mr Fogliano has said property owners affected by upzoning may face some difficulties receiving approvals from the town health department for the placement of water wells and septic systems.

Mr Fogliano has added that the health department works with property owners who have failing septic systems on small residential lots to get functioning septic systems in place on those properties. Upzoning is not intended to eliminate housing on ½-acre lots, Mr Fogliano has stressed. The P&Z chairman has said he does not believe that creating non-conforming properties through upzoning will damage those properties’ resale value.

Upzoning affects proposed home expansions that are intended to increase the number of bedrooms in a dwelling, Ms Winslow has said.

 Upzoning would reduce the number of building lots which could be created by property subdivisions in affected areas, she has said.

 P&Z members have discussed upzoning since 1996.