Lawsuits Filed Against Upzoning

By Andrew Gorosko

The Planning and Zoning Commission’s (P&Z) controversial residential “upzoning” project, which upgrades the minimum zoning requirements for more than 2,300 properties to protect underground water quality, has drawn two separate lawsuits filed on behalf of a total of 10 plaintiffs, who challenge the need for upzoning and seek to have a judge overturn it.

P&Z members last month unanimously approved upzoning, a sweeping plan that upgrades 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 general, and to preserve the water quality of the Pootatuck Aquifer in south-central Newtown, in particular. The change is intended to prevent the need to expand the municipal sewer system.

In one of the two lawsuits, filed September 29 in Danbury Superior Court, the plaintiffs are property owners 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-acre zoning, the suit states. 

The Newtown Property Owners Association, an ad hoc group which formed earlier this year in opposition to upzoning, is not named in the court appeal. The association had repeatedly threatened to sue the P&Z if upzoning was approved.

Barry Piesner, an association director, said Tuesday the association does not own real estate affected by upzoning and so is not specifically named in the lawsuit. The association, however, has been raising money from people who are affected by upzoning to support the legal challenge, he said.

Of the court appeal, he said, “This is going to drag on for a while… It’s a long road. We’ll see what happens.”

Issues Raised

In the lawsuit, 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 court papers state that although an estimated 2,000 of the affected properties are already developed, “no studies or analysis was 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 commission 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 appeal.

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

The upzoning measure was so broadly applied that it predominantly affects properties which are already fully developed, and is therefore not rationally related to protecting the public health, safety, and welfare, relating to groundwater protection, as was claimed by the P&Z, according to the lawsuit.

Also, upzoning was so broadly applied that it affects and severely curtails the development potential of properties that have access to public water and sewers, and is therefore not rationally related to the protection of public health, safety, and welfare, relating to groundwater quality that the P&Z claimed as the basis for upzoning, it adds.

Considering that most upzoned property is already developed, upzoning makes hundreds of properties non-conforming to the zoning regulations, or even more non-conforming than they formerly were, unreasonably limiting an owner’s ability to make changes to his property or otherwise improve it, the lawsuit adds.

By upzoning properties which have access to public sewers and water, the P&Z significantly restricted housing development opportunities which would promote housing choice and economic diversity, it adds.

The lawsuit alleges that upzoning is inconsistent with the town’s 1993 Plan of Development and that upzoning has resulted in a “taking” of the plaintiffs’ property without compensation, and without due process of the law, in violation of state and federal constitutions.

According to the lawsuit, the upzoning project has hurt the plaintiffs’ ability to develop or otherwise improve properties which have already been developed and also damages their properties’ market value.

The town has an October 31 court return date in the lawsuit.

Hall Appeal

In a second appeal against the P&Z, also filed September 29, the plaintiffs are Robert H. Hall, Margot S.  Hall, Stuart R. Hall, and Cherie A. Hall. Robert Hall is a local land use attorney.

According to the suit, Robert Hall owns 17 acres at 8 and 11 Huntingtown Road. Until upzoning took effect September 18, about two-thirds of that property had had one-acre zoning, it states.

In the suit, Robert Hall notes that when the P&Z expanded the town’s Aquifer Protection District (APD) in June 1999, it then included his property in the APD. Mr Hall has a separate lawsuit pending against the P&Z concerning the expansion of the APD to include his property.

Mr Hall contends that the June 1999 inclusion of his property in the APD was arbitrary, and does not clearly describe the hydrogeological relationship of his property to underground water sources in the area. He further contends that had his property not been included in the expanded APD in June 1999, his property would not have been upzoned from one-acre to two-acre minimum zoning.

If Mr Hall’s lawsuit challenging the expansion of the APD to include his property is successful in court, his land would then not meet the P&Z’s criteria for upzoning, according to the lawsuit.

The P&Z’s decision to upzone the Hall property is arbitrary, capricious, and an abuse of discretion until his pending court appeal on expanding the APD is decided, it adds.

Second Count

 Stuart and Cherie Hall live in a home at 84 Alpine Circle on land that is owned by them and Robert and Margot Hall, according to the court papers.

The P&Z’s upzoning caused that property’s zoning designation to change from one-half acre residential to one-acre residential, resulting in the front building setback on the property increasing from 35 to 50 feet from the street line, in effect causing the house to violate the minimum front setback regulation, and thus become a non-conforming property, according to the suit.

The P&Z’s rationale for upzoning – to protect the public water supply in the APD and to prevent groundwater pollution in general – bears no relationship to minimum setbacks, only to the density of development, according to the court appeal.

“Whatever rational relationship may exist, if any, between reduction of the [construction] density by upzoning the R-1/2  acre zone to either 1 acre or 2 acres, for reasons of sanitary health and protection of the drinking water supply, disappears when the byproduct of said upzoning is to create a massive setback non-conformity among landowners in an area which is almost already fully developed at the 1/2 -acre or less minimum lot size,” it states.

In the lawsuit, the Halls contend that by upzoning the area from R-1/2  acre to R-1-acre, the P&Z made almost all the properties in the area non-conforming to the setback regulations for R-1-acre zones, and thus eliminated the property owners’ ability to obtain setback variances from the Zoning Board of Appeals (ZBA). Under upzoning, individual property owners will not be able to meet the zoning variance criteria that the conditions which justify a setback variance be “especially affecting such parcel, but not affecting generally the district in which it is situated,” it adds.

The topography and layout of the Halls’ Alpine Circle property, including the location of the house and septic system, are such that any garage or outbuilding which would be built on the property would have to violate the new minimum front setback requirements for the property, it adds.

The P&Z has an October 24 court return in the Hall lawsuit.

 P&Z Rationale

In September, P&Z members unanimously approved upzoning.

In approving it, P&Z members agreed that by creating minimum residential lot size requirements of one-acre in designated sewer avoidance areas, and of two-acres in the Aquifer Protection District, the P&Z creates a mechanism to enforce the town’s sewer avoidance policy and to protect the environmentally sensitive Pootatuck Aquifer.

By limiting housing densities in affected areas, the town can help ensure that septic systems will function as a reliable means of waste disposal, P&Z members say.

Upzoning establishes the intensity of development which will not require sewer service and which will protect water quality, according to the P&Z.

“If no action is taken to reduce the potential risks to public health and degradation of the environment which may occur as a result of the existing land development densities, it is reasonable to expect that the rate of contamination of surface and ground water resources will increase proportionally to the continued growth in Newtown,” the P&Z stated in approving upzoning.