Arguments Submitted In Upzoning Case

By Andrew Gorosko

DANBURY — In a legal brief filed in Danbury Superior Court, the six plaintiffs in a court appeal that challenges the Planning and Zoning Commission’s (P&Z) controversial “upzoning” project detail their various objections to the plan. Last September, the commission upgraded the minimum zoning requirements for more than 2,300 residential properties in Newtown.

The plaintiffs are seeking to have a judge nullify upzoning, a sweeping plan that upgraded 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 the lakeside communities along Lake Zoar in general, and to preserve the water quality of the Pootatuck Aquifer in south-central Newtown in particular. Upzoning is intended to prevent the need to expand the municipal sewer system.

The plaintiffs in the lawsuit filed last September are Janice P. Booth, William E. Barella, Alice H. Poundstone, Richard Haight, Marco G. Nesi, and Carmine Renzulli. The plaintiffs own property affected by upzoning.

Ms Booth owns a 1.3-acre parcel at 30 Button Shop Road, where there is a single-family home. Mr Haight owns 3.76 acres at 99 Church Hill Road. Mr Barella and Ms Poundstone jointly own one-tenth of an acre at 78 Water View Drive, where there is a single-family house. Mr Nesi of Scarsdale, N.Y., owns three-quarters of an acre at 157-159 Lake View Terrace. Carmine Renzulli of Westport owns almost 38 acres at 70 and 79 Church Hill Road and at 1 through 25 Walnut Tree Hill Road.

The affected properties have had their zoning designations increased from either one-half acre to one acre, from one-half acre to two acres, or from one acre to two acres.

The plaintiffs allege that upzoning has diminished the development potential of their properties, decreasing the properties’ potential value, and reducing their ability to be subdivided. The plaintiffs are represented by attorney Robin Messier Pearson.

On June 26, Judge Arthur Hiller ruled that the appeal filed by Ms Booth and the five other plaintiffs will remain a separate case from another lawsuit that challenges upzoning, which was filed last September by plaintiffs Robert H. Hall, Margot S. Hall, Stuart R. Hall, and Cherie A. Hall.

Judge Hiller ruled that the Booth appeal will be tried and argued first, with the Hall appeal to follow. The plaintiffs had sought to consolidate the two lawsuits into one case.

In the Booth appeal, the six plaintiffs state they are aggrieved because they own properties which are directly affected by the comprehensive zoning changes, which increase minimum zoning standards for their properties. The plaintiffs’ court papers state that although an estimated 2,000 of the affected properties are already developed, “no studies or analysis [were] undertaken to determine which of those properties possessed characteristics that made them appropriate for the upzoning.” The lawsuit alleges that upzoning impairs the ability of the plaintiffs to reasonably improve their property.

“The upzoning of… more than 2,500 acres was ostensibly proposed to protect water quality in the town’s Aquifer Protection District, which lies atop the Pootatuck Aquifer in south-central Newtown, and groundwater quality, in general, from the potential negative impact of new development. However, the [P&Z] did not undertake any studies to determine… which properties should be upzoned and which should not, on the basis of development potential, the potential for negative impacts on groundwater quality, or with regard to the availability of public water and sewer, which would obviate the need for upzoning,” according to the Booth appeal.

The lawsuit alleges that the P&Z’s decision to upzone was unconstitutional, illegal, arbitrary, capricious, unreasonable, and in violation of state law.

Plaintiffs’ Claims

In their legal brief, the Booth plaintiffs state “The [P&Z’s upzoning] decision, while based on a laudable rationale, completely ignores the fact that that over 85 percent of the properties to be rezoned already have homes located on them and most [properties] cannot be further divided to create new lots.”

The brief adds that property owners who have had their land upzoned from minimum 1/2 -acre to either 1-acre or 2-acre zoning have been burdened with stricter front, back, and rear yard setback restrictions, which may significantly interfere with their ability to add to or reconfigure structures on their properties, although the standards now applied to their properties have no demonstrated relationship to improving water quality.

 “The effect of this wholesale change of little substantive value is to make most of these properties nonconforming [to zoning] without significantly increasing the lot area available for septic systems, the stated goal of rezoning,” the brief states.

The P&Z offered the owners of affected properties only two public hearings, the second hearing of which was offered only after the P&Z had realized that it had not placed its materials in support of its upzoning application into the record for public review before the first hearing, Ms Pearson writes in the brief.

The legal brief states that although the P&Z received many questions about the appropriateness of upzoning, it refused to answer those questions during the public hearings, denying interested people the opportunity to gauge the effects of upzoning and to make rebuttals. The plaintiffs were thus denied a meaningful public hearing, it adds.

  The brief also criticizes the P&Z for not having made available at the hearings two experts who had previously provided the P&Z with information about the relationship between lot sizes and their potential effect on groundwater quality. Thus, the public was deprived an opportunity to question the experts on whom the P&Z had relied in making the decision to upzone, it adds.

The legal papers assert that the P&Z presented no evidence at the public hearings of water well contamination in the area affected by upzoning. The P&Z held the public hearings in December 1999 and February 2000.

The plaintiffs charge that at the December 1999 hearing, the town presented no comparative analysis of the quantifiable benefits of requiring larger lot sizes and the potential harm to property rights by making existing properties non-conforming to the zoning regulations. They also charge that although the public thoroughly questioned the need for a comprehensive rezoning at the February 2000 hearing, the P&Z declined to answer most questions posed, and then closed the hearing.

The plaintiffs state they were adversely affected by upzoning in either the number of lots which can be subdivided from their properties, or by making their properties nonconforming, or making their lots even more nonconforming to the zoning regulations.

“The commission evidenced a distinct lack of concern for the public’s interests and the opportunity for a meaningful analysis of the rezoning issue,” according to the plaintiffs.

“The public attempted to query the [P&Z] on the merits of the rezoning proposal… Answers to questions that probed these concerns and others were not forthcoming from [P&Z] members, the sponsors of the application,” Ms Pearson writes.

“Without answers from the applicant, the hearing process no longer provided the plaintiffs with a meaningful opportunity to participate in the public review of the application, denying plaintiffs and other members of the public their due process rights,” it adds.

“With the [P&Z] controlling the availability of the experts and stonewalling questioning, the plaintiffs and the public were not provided with a meaningful hearing. The reliance on expert testimony received outside the public hearing process without the opportunity for cross-examination by the public, together with the unfair conduct of the hearing, are sufficient reasons to sustain this appeal,” the brief adds.

 The plaintiffs allege that potentially more than 1,000 properties were made nonconforming to the zoning regulations as a result of upzoning.   

 The plaintiffs maintain that the upzoning of 1,319 of the affected properties, which lie outside the town’s Aquifer Protection District (APD), were especially negatively affected by upzoning.

“Clearly, the commission should have done a study of the existing developed and undeveloped lots so that it could determine the number and location of properties that should rationally be subject to rezoning,” the legal papers state. “Many of the rezoned properties may be legally nonconforming lots and entitled to be built upon despite the upzoning from R-1/2  to R-1,” it adds.

The plaintiffs do not dispute that the P&Z has the authority to upzone properties to protect existing and potential surface water and ground water drinking water supplies, the legal papers state.

But the “plaintiffs do contend that attempting to do so through this massive, non-targeted rezoning was not a reasonable manner in which to achieve their goals,” it adds.

 In a recent decision, Judge Hiller ruled in favor of the P&Z in two court appeals which were filed against the agency following its June 1999 geographic expansion of the town’s APD and its strengthening of the aquifer protection regulations. Judge Hiller ruled the P&Z was within its jurisdiction in expanding the APD and strengthening the aquifer protection rules as a way to protect existing and potential public drinking water supplies in the Pootatuck Aquifer.

The APD expansion partially corresponds to the area which was upzoned. The P&Z also upzoned some of the lakeside communities along Lake Zoar.

P&Z’s Response

In a June legal brief, attorney Robert Fuller, representing the P&Z, explained that agency’s view on the plaintiffs’ allegations.

Most of the claims, which were raised in the plaintiffs’ court appeal of the upzoning decision, were not addressed in their legal brief, and most of the plaintiffs’ legal brief raises two claims, which were not raised in their appeal, according to Mr Fuller. Those two claims concern the plaintiffs’ charge that the P&Z’s refusal to answer questions at a public hearing on upzoning was fundamentally unfair and in violation of due process of the law, and also that the plaintiffs were illegally deprived of the right to cross-examine experts who had previously submitted documents to the P&Z concerning upzoning.

“The significant change in the issues raised in the appeal indicates the plaintiffs do not have valid grounds to set aside the comprehensive zone change which occurred here,” Mr Fuller writes.

Issues which are raised in an appeal, which are not addressed in an ensuing legal brief, are legally “abandoned,” Mr Fuller asserts. “This is particularly true with the claim that it is illegal to create non-conforming [land] uses by upzoning of land. The plaintiffs cite no legal authority for that concept,” the P&Z’s brief states.

The P&Z, when acting in its legislative capacity, has broad discretion and can always upzone land provided that it has a legitimate reason for doing so, Mr Fuller writes.

The fact that some properties become nonconforming to the zoning regulations by being upzoned does not prevent upzoning, he adds. “The upzoning was valid even though it resulted in some nonconforming lots,” the brief states.

Fairness and due process claims do not apply in the case because the P&Z was acting in its legislative capacity, Mr Fuller states, adding that members of the public do not have the legal right to cross-examine P&Z members.

In June 1999, the P&Z approved an expanded APD and also strengthened the aquifer protection regulations, setting the stage for the later upzoning of the area, Mr Fuller adds.

The Connecticut Department of Environmental Protection (DEP), the Housatonic Valley Council of Elected Officials (HVCEO), and the Greater Bridgeport Regional Planning Agency (GBRPA) all support upzoning, Mr Fuller writes.

The plaintiffs in the appeal only have the legal standing to challenge upzoning as it affects their individual properties, not as it affects all properties which were upzoned, the brief states.

The court has limited scope in its review of a P&Z decision in which a P&Z acts legislatively to change its zoning regulations, according to Mr Fuller.

“A zoning commission acting in a legislative capacity can amend the zoning regulations whenever time, expertise and responsible planning for contemporary or future conditions reasonably indicates the need for a change,” it states.

Such a regulation change must be upheld unless the court finds the change to be clearly arbitrary, the brief adds. The P&Z’s legislative discretion is wide and liberal and must not be disturbed unless the plaintiffs establish arbitrary or illegal action on the P&Z’s part, according to the legal papers.

State law provides zoning commissions with the authority to regulate activities near and over aquifers, the brief adds.

“In reviewing the commission’s decision, the courts must be scrupulous not to hamper the legitimate activities of the commission by indulging in a microscopic search for technical infirmities in its action,” it states.

The court’s role is to determine if the P&Z’s decision is reasonably supported by the record, not whether the trial court would have reached the same conclusion, it adds. Zoning commissions, not the courts, determine what are appropriate uses for land, Mr Fuller adds.

Determining the potential construction density near an aquifer is completely within the P&Z’s discretion, it adds. “Minimum lot size is a matter which is clearly within the discretion of a zoning commission without elaborate scientific evidence,” according to the brief.

In adopting zoning regulations, a zoning commission can proceed using information that it has gathered outside of its public hearings, it adds.  

“The purpose of the upzoning was to reduce [construction] density and prevent further groundwater pollution, thereby avoiding costly community sewers and preserving the purity of the water supply wells,” the brief states.

Upzoning resulted in the front building setback requirements being increased from 35 feet to 50 feet on the lots which were upzoned from 1/2  acre to 1 acre or to 2 acre zoning. There is no legal requirement for the P&Z to exempt properties from such setback changes which occur when land is upzoned, Mr Fuller states. There is no valid reason to invalidate upzoning because the plaintiffs may have to obtain a zoning variance from the Zoning Board of Appeals (ZBA) for the future expansion of existing buildings on their lots, the brief states.

Mr Fuller points out that in a recent decision, Judge Hiller upheld the P&Z’s June 1999 expansion of the APD and also upheld the P&Z’s requirement that the minimum residential lot size in the APD be two acres. The Haight, Renzulli, and Booth properties, all of which were upzoned, are in the APD, Mr Fuller observes.

 The P&Z’s refusal to answer questions at the public hearing on upzoning did not violate fundamental fairness or the due process rights of the plaintiffs, the brief states. Neither the plaintiffs, nor anyone else, were deprived of their right to present testimony or documents in opposition to upzoning, it adds. At such a public hearing, the public does not have the legal right to question or cross-examine P&Z members who are deliberating on a proposal in their capacity as an administrative agency, it adds.

Newtown Community Development Director Elizabeth Stocker answered questions from the public on upzoning at both hearings, and a P&Z memorandum was available which covered common questions about upzoning, the brief states. Also, First Selectman Herbert Rosenthal posed various questions about upzoning to the P&Z on the public’s behalf at a July 20, 2000, public meeting, and Mr Rosenthal received responses from the P&Z, the brief adds.

The P&Z’s public hearings are informal events, and the strict rules of evidence do not apply, but what is required is fundamental fairness, the brief states. “No one was denied a fair hearing,” it adds.

“The plaintiffs received fundamental fairness, which was all they were entitled to,” it states. The plaintiffs were not entitled to cross-examine witnesses, who had submitted documents to the P&Z before the public hearings, such as Robert Hust of the DEP and Mark Cooper of the town health department, the brief adds. The P&Z had met with the two men publicly before the public hearings on upzoning occurred, not after the public hearings, the brief states. Public records concerning what happened at the P&Z’s public meetings with Mr Hust and Mr Cooper existed before the public hearings on upzoning took place, the brief states. 

 Upzoning is supported by substantial evidence in the public record, according to the brief. The upzoning “decision was carefully considered over a long period of time and was made in the public interest based on substantial supporting evidence. The plaintiffs received a fundamentally fair, if not perfect public hearing. There is no merit to any of their claims, either legal or procedural. The appeal should be dismissed,” the P&Z brief states.

It is unclear how long it will take for a judge to render a decision on the upzoning appeal. It took nearly two years for Judge Hiller to issue his decision in which the P&Z prevailed over the two appeals which challenged the P&Z’s June 1999 expansion of the APD and the strengthening of the aquifer protection regulations.