Edona Commons—

Developer Wins Two Court Appeals On Condo Complex

By Andrew Gorosko

A Danbury developer, who has long sought to build a condominium complex containing some “affordable housing” on a rugged site in Sandy Hook Center, but who has been repeatedly turned down by town agencies, has won two court appeals that he filed in 2007 over dual rejections of the project by the Planning and Zoning Commission (P&Z) and by the Water and Sewer Authority (WSA).

Developer Guri Dauti, doing business as Dauti Construction, LLC, has proposed the 26-unit Edona Commons condo complex for a 4.5-acre site at 95 and 99 Church Hill Road, near Dayton Street. Eight of the units would be designated as affordable housing and be sold to eligible families at prices significantly lower than the market-rate units there.

Mr Dauti’s various controversial proposals for developing the site with high-density housing, which date back to 2003, have drawn strong opposition from nearby residents who have criticized the proposals as being too intensive for the site.

In dual rulings issued on June 1 in New Britain Superior Court, Judge Lois Tanzer ruled in favor of Mr Dauti’s parallel administrative appeals challenging his applications’ rejections by the WSA in September 2007, and also by the P&Z in April 2007.

The judge directs the WSA to approve Mr Dauti’s request for sewer service. Judge Tanzer also directs Mr Dauti to return to the P&Z to make certain changes to his development application for its approval by the P&Z.

Mr Dauti had applied to the town for the Edona Commons project under the terms of the state’s Affordable Housing Land Use Appeals Act.

Under that law, applicants for affordable housing projects, which are later rejected by municipal agencies, gain certain legal leverage in getting those projects approved through court appeals. Only public health issues and public safety issues are considered justifiable reasons for a land use agency to reject an affordable housing project.

The Edona Commons project does have a wetlands permit, which it received from the town’s Inland Wetlands Commission (IWC) in March 2007.

Following lengthy review, the WSA rejected Mr Dauti’s application for municipal sanitary sewer service for Edona Commons because the application failed to meet WSA’s regulations concerning the classes of properties that are eligible to use the central sewer system’s remaining sewage treatment capacity. Sewer mains run alongside Church Hill Road adjacent to the development site.

In their decision to reject Edona Commons, P&Z members found that the interests for protecting the public health and safety outweighed the need for the eight “affordable housing” units that would be part of the 26-unit complex.

Also, a major flaw in the Edona Commons proposal was the applicant’s failure to describe the means of sewage disposal at the site, in view of the WSA’s rejection of municipal sewer service for the project, according to the P&Z. In July 2006, the WSA also had rejected sewer service for a previous version of Edona Commons.

Also, the applicant failed to ensure that adequate steps would be taken to protect the underlying Pootatuck Aquifer, which is a public water supply source, the P&Z decided.

P&Z members generally criticized the Edona Commons proposal because the project would require many existing town zoning regulations on affordable housing to be modified to allow the construction of a much more densely built project than the rules would otherwise allow.

Two Decisions

In her 33-page decision on Mr Dauti’s appeal challenging the P&Z’s rejection of Edona Commons, Judge Tanzer wrote, “The matter is remanded to the [P&Z] to modify the proposed regulations to provide for aquifer protection, and to modify the plans as necessary to change the affordable unit and market-value unit designations such that the affordable units are comparable to the market-value units.”

“Although the [P&Z’s] decision based on the WSA’s disapproval [of sewers] is supported by sufficient evidence in the record, the lack of adequate sewerage no longer serves as an adequate basis for the [P&Z’s] denial in light of this court’s concurrent decision in the [WSA] appeal,” the judge wrote.

In Judge Tanzer’s 24-page decision on Mr Dauti’s appeal challenging the WSA’s rejection of providing sewer service for Edona Commons, the judge directs the WSA to approve the sewer service application.

“Although the [P&Z’s] finding that the proposed MIHD regulations failed to provide for aquifer protection is supported by sufficient evidence in the record, the public interest can be protected by reasonable changes to the proposed [MIHD] regulations,” the judge wrote.

As part of his P&Z application for Edona Commons, Mr Dauti proposed a set of new zoning regulations on affordable housing complexes known as the Mixed Income Housing Development (MIHD) regulations.

“Although the [P&Z’s] finding that the affordable units are not [physically] comparable to the market value units is supported by sufficient evidence in the record, the public interest can be protected by reasonable changes to the affordable housing development,” Judge Tanzer added.

In the judge’s decision on Mr Dauti’s appeal of the WSA’s rejection of his sewer service application, she wrote, “The [WSA] has not referred to any evidence in the record in support of the finding that the town’s sewer system lacks sufficient capacity for [Mr Dauti’s] proposed development, or that other property owners would be deprived of sewer connections to which they are entitled.”

The judge found that the WSA’s mathematical computations on its remaining sewage disposal capacity did not form a proper justification for rejecting sewer service for the Edona Commons site.

“The [WSA] has not offered any evidence that its allocation of sewer capacity is rationally related to the public health, safety, and welfare,” the judge wrote.

“The [WSA’s] allocation of sewer capacity based on 1994 zoning of [Mr Dauti’s] property is invalid,” according to Judge Tanzer.

Appeal Planned

P&Z members held a special meeting on the morning of June 9 to discuss Judge Tanzer’s rulings on the two court appeals filed by Mr Dauti.

Following an executive session, the four P&Z members who attended voted unanimously to seek an appeal of the judge’s ruling in the Connecticut Appellate Court.

WSA members were scheduled to meet on the night of June 11, after the deadline for this edition of The Bee. The judge’s ruling on Mr Dauti’s appeal was listed as an item on the WSA’s June 11 meeting agenda.

Attempts to reach Mr Dauti for comment on his winning his two court appeals were unsuccessful.

Attorney Ryan McKain represents Mr Dauti in the Edona Commons application.

“I’m pleased with the results…It’s been a long process,” Mr McKain said.

Asked whether Mr Dauti was prepared to soon begin construction on the Edona Commons project, Mr McKain said, “It’s certainly a different economic market” than it was when the developer was seeking construction approvals from the town land use agencies. Mr McKain said it is unclear when construction might start on the project.

The attorney said he considered the largest legal hurdle that the project faced to be condo construction on a 4.5-acre site, rather than the zoning regulations’ existing requirement for a six-acre minimum lot size.

Mr McKain said he is not surprised that the P&Z has approved seeking to appeal Judge Tanzer’s decision in the appellate court. It is unclear whether such an appeal would keep Mr Dauti from getting underway with construction, Mr McKain said.

Judge Tanzer wrote “thorough and comprehensive decisions” on Mr Dauti’s two court appeals, the lawyer said, adding that he hopes the town would allow the developer to build the condo complex.

Town Land Use Agency Director George Benson said of the judge’s ruling, “I don’t agree with the decision…I hope that we’re going to win [an appeal]…We should win.”

“We have perfectly good affordable housing regulations…I don’t understand why [developers] have to customize our regulations,” he said.

Town land use officials have pointed to local developer/builder Michael Burton’s having received a swift P&Z approval last January for his planned 24-unit River Walk condo complex on Washington Avenue in Sandy Hook Center as an example of construction plans meeting the requirements of the existing affordable housing regulations. That complex would contain eight affordable housing units.

First Selectman Joe Borst said he supports the P&Z’s pursuing an appeal of the court decision. Mr Borst said the site proposed for Edona Commons in an impractical one, considering the property’s severe terrain.

The town’s approval of the River Walk condo complex indicates that it is not opposed to affordable housing, he said.