Judge Overturns P&Z Rejection Of Hanover Rd Resubdivision

By Andrew Gorosko

 A judge has approved the McLachlan family’s plans to build a nine-lot residential development on a 16.5-acre site on Hanover Road in the borough.

In a July 6 decision, Danbury Superior Court Judge Taggart D. Adams ruled that the Planning and Zoning Commission (P&Z) erred last year when it rejected the McLachlan family’s development proposal. Judge Adams overturned P&Z’s June 2000 rejection of the project, ruling that the application complies with the town’s resubdivision regulations.

The applicants plan to create seven house lots on Hanover Road and two house lots on The Boulevard. The property lies on the east side of Hanover Road, across Hanover Road from its intersection with Sunset Hill Road. One of the lots would abut the intersection of Hanover Road and Hall Lane. Just over three acres of the steep, wooded site is wetland. The planned development would require extensive tree removal. No new roads would be built. The site is one of the last dividable properties of substantial size in the borough.

Because the borough does not have a planning agency, the P&Z functions as the borough’s planning commission in reviewing resubdivision proposals. The McLachlan application is subject to the borough’s zoning regulations.

Sanitary sewers and a public water supply would serve the Hanover Road lots. The Boulevard lots would have septic systems and domestic water wells. The site has one-acre zoning. The development plans received wetlands approval from the Conservation Commission in 1999.

Applicants for the development project are J. Richard McLachlan of 32 The Boulevard, Helen M. Smith of Boggs Hill Road, Peter McLachlan of 3 Schoolhouse Hill Road, Catherine A. Hurgin of Bethel, and George A. McLachlan, III, of Westford, Massachusetts.

“The court finds no substantial evidence to support the [P&Z’s] stated reasons for denial of the application … With respect to at least one unstated public safety concern, the application is in conformance with regulations. Therefore, the appeal is sustained, and the commission is ordered to grant the application. The [approval] may be conditioned on the setting of an appropriate bond for the drainage work,” Judge Adams wrote in his decision. 

P&Z members rejected the McLachlan application for several reasons, including issues concerning road rights of way, the absence of a roadwork agreement between the applicants and the town, the borough’s public tree ordinance, and public safety matters.

At an April 2000 public hearing on the resubdivision application, nearby property owners voiced concerns about the proposed resubdivision’s effects on the neighborhood in terms of drainage, erosion, sedimentation, traffic and public safety.

Following the June 2000 P&Z rejection, the McLachlans lodged a court appeal against P&Z. The appeal states that P&Z’s rejection of the development application was illegal, arbitrary and an abuse of the discretion vested in it.

Attorney Robert Hall represented the McLachlans. Attorney Robert Fuller represented P&Z.

In his decision, Judge Adams wrote that P&Z’s motion to reject the application was seriously flawed by not having clearly stated P&Z’s concerns about safety hazards posed by the intersections of new driveways with Hanover Road. Those concerns involved motorist sight line distances. The judge noted P&Z’s lawyer later raised those concerns in oral arguments and in a legal brief.

“There is no evidence … that the proposed driveway intersections are in fact a safety problem or that they violate any of the rather comprehensive regulations governing the subject. …The McLachlans’ engineer produced testimony and documentary evidence that the sight lines at all the driveway intersections met the 150-foot requirement … of the Newtown road ordinance. On the site visit, the court discerned no reason for finding those calculations incorrect,” Judge Adams wrote in his decision.

The judge also found the proposed driveways comply with P&Z’s regulations concerning maximum allowable grade.