Hanover Heights Subdivision Approval Sparks Court Challenge

By Andrew Gorosko

A local couple, upset over the town’s recent approval of a controversial eight-lot residential subdivision off Hanover Road, has filed a court appeal challenging the Planning and Zoning Commission’s (P&Z) endorsement of Hanover Heights.

In a lawsuit filed January 27 in Danbury Superior Court, Kevin Fitzgerald and Robin Lozito Fitzgerald of 24 Old Farm Hill Road challenge the P&Z’s January 5 approval of Hanover Heights, proposed by Monroe land developer Robert Mastroni for approximately 32 acres at 64 to 74-A Hanover Road. The P&Z and Mr Mastroni are named as defendants in the appeal.

Through the legal challenge, the Fitzgeralds seek to have a judge overturn the P&Z’s subdivision approval.

Beyond that, in terms of a reworked development plan for the site, the Fitzgeralds seek to have the P&Z require that Mr Mastroni provide certain open space land at the development site, require that proper public notification be made of another public hearing on the project, and require that the P&Z and other town agencies consider the Fitzgeralds’ offer to provide a right-of-way easement near the development site.

Both Fitzgeralds spoke in opposition to Hanover Heights at P&Z public hearings held last fall. The couple lives near the development site. Following lengthy review, the P&Z approved the project in a 3-to-1 vote with numerous conditions.

The P&Z conducted public hearings on Hanover Heights in December, November, and October. Some people living near the site had pressed P&Z members to consider their concerns when reviewing plans for Hanover Heights, in order to minimize the construction project’s adverse effects on the area. Residents had raised concerns about stormwater flow, domestic well water supplies, personal privacy, project aesthetics, the preservation of an old barn on the site, the need for blasting, and more broadly, the town’s increasing residential development and its implications for public education spending.

The site has R-2 (residential) zoning, in which the minimum building lot size is two acres, excluding steep slopes and wetlands. A new dead-end street would serve the steep, rugged land, which is on the east side of Hanover Road, near the intersection of Hanover Road and The Boulevard Extension. The project had earlier been proposed as a six-lot project on a somewhat smaller site there. Initial plans for the project had been drawn in November 2003.

Legal Complaint

In their lawsuit, the Fitzgeralds contend that the P&Z did not penalize Mr Mastroni for attempting to sell the development site while it was under P&Z review for its subdivision into building lots.

They also charge that technical violations were made concerning certified mailings sent to nearby property owners notifying them of a public hearing on the Hanover Heights application, the submission of a legal affidavit, and the notarization of documents.

The Fitzgeralds also claim that the P&Z, in its formal approval of Hanover Heights, did not address nearby residents’ calls for the preservation of an antique barn, which sits on the development site, even if it means relocating that structure to another spot on the site.

The Fitzgeralds further charge that the P&Z did not consider community needs when ruling on open space aspects of the development application. The couple adds that the P&Z did not support their offer to donate a right-of-way easement that would link the subdivision site to a public greenway.

The plaintiffs allege that the P&Z incorrectly agreed to accept a fee in lieu of open space being donated to the town, instead of requiring the donation of certain open space land on the site.

The Fitzgeralds contend that neither the P&Z nor the applicant properly notified the general public that property at 64 Hanover Road was part of the development site. That address was formerly a horse farm that is recognizable by its prominent red barn with a “Hanover Hills Farm” sign on it, they add. That barn and an adjacent farmhouse would be demolished to make way for the subdivision, the Fitzgeralds state.

They further charge that the developer violated certain land use application procedures for the Hanover Heights project.

The Fitzgeralds contend that the P&Z’s approval of Hanover Heights was “improper and baseless” and also was “arbitrary, contrary to law, and an abuse of discretion.”

Among the many conditions that P&Z members placed on the Hanover Heights development approval, the agency required that certain areas on the site be subject to conservation easements where physical changes would be prohibited. The P&Z also required the developer to set aside areas to create buffer zones between Hanover Heights and adjacent properties.

Also, the P&Z required the donation of a $69,000 lieu in lieu of open space. That sum would be paid to the town in eight separate installments of $8,625, as each of the eight building lots are sold for home construction. The town uses such fees for the acquisition of open space elsewhere.

Attorney Robert Fuller represents the P&Z in court appeals. The town’s court return date is February 21.