Sandy Hook Center—

Condo Developer Appeals Sewer Service Rejection

By Andrew Gorosko

A Danbury developer, whose application for a municipal sanitary sewer connection for a controversial proposed 26-unit condominium complex in Sandy Hook Center was recently rejected by the Water and Sewer Authority (WSA), has appealed that sewer rejection in court.

Through the appeal, the developer seeks to have a judge order to WSA to approve sewer service for the multifamily project.

In a lawsuit filed in Danbury Superior Court, Dauti Construction, LLC, names the WSA as defendant for its September 20 decision to reject the firm’s request for sewer service. The firm proposes Edona Commons as a mixed-income condo complex on a steep, rugged 4.5-acre site at 95-99 Church Hill Road, near Dayton Street. Developer Guri Dauti does business as Dauti Construction, LLC.

Following lengthy review, WSA members rejected the sewering application because it failed to meet WSA 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.

Dauti Construction is seeking to discharge approximately 5,525 gallons of wastewater daily from the proposed condo complex into the sewer system.

The developer also has a court appeal pending against the Planning and Zoning Commission (P&Z) over its April 5 rejection of the Edona Commons proposal. That rejection marked the fourth time since 2003 that the P&Z had turned down various multifamily development proposals for the site from the developer. That pending court appeal may be decided by mid-2008.

In August 2006, the developer filed an appeal in Danbury Superior Court in seeking to overturn a July 2006 WSA decision, which effectively denied a sewer connection for an earlier 23-unit version of Edona Commons. The developer withdrew that lawsuit against the WSA last April.

In the current lawsuit against the WSA, the developer charges that the WSA’s September 20 decision is “illegal, arbitrary, [and] in excess of statutory authority.”

The plaintiff further charges that the WSA’s action is contrary to state law, town law, and the WSA’s sewer regulations.

According to the court appeal, “sewer capacity presently exists at the Sandy Hook [sewage] pump station and the [sewage treatment plant] to accommodate Dauti’s application.”

The plaintiff charges that the WSA’s actions to deny the request for sewer service “are not based on any objective written criteria that a water pollution control authority is legally authorized to apply to a sewer application, but instead is based on its subjective preference for certain uses of land.”

The developer further charges that the WSA’s action exceeded its statutory authority by basing its decision on zoning considerations, in effect, usurping the power of the town’s zoning agency.

Thus, through the lawsuit, the developer seeks to have a judge order the WSA to allow Dauti Construction to connect the proposed condo complex to the sewer system.

The developer is represented by Hartford attorney Ryan McKain. The WSA is represented by Town Attorney David Grogins. The town has a November 6 court return date in the case.

Affordable Housing

Mr McKain has claimed that the compelling reason to provide sewer service for the proposed condo complex is that it would provide “affordable housing” for the community.

Eight condos would be set aside for purchase by low-income and moderate-income families. The sale prices of market-rate units in such high-density complexes subsidize the sale of lower-priced affordable housing units.

Mr Dauti’s continuing efforts to develop the site with multifamily housing have encountered stiff opposition from nearby property owners. They charge that the site is an inappropriate place for such construction, which would overdevelop the site and generate excess traffic in a congested area.

In the 26-unit condo complex proposal that was rejected by the P&Z last April, Mr Dauti applied for the 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 land use agencies, gain certain legal leverage in getting those projects approved through court appeals. Under that law, only public health issues and public safety issues are considered to be justifiable reasons for a land use agency to reject an affordable housing project.

In its April 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.

A major flaw in the 26-unit Edona Commons proposal was the applicant’s failure to describe the means of sewage disposal at the site, according to the P&Z. 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.