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Property Owner Challenges Conservation Easement

Published: November 20, 2017

The owner of one of two lots that would be developed as part of a planned retail center at 73-75 Church Hill Road has filed a lawsuit against the town and the property’s developer in seeking to nullify a conservation easement that the Planning and Zoning Commission (P&Z) recently approved for the site.

In a lawsuit dated October 31 at State Superior Court in Danbury, plaintiff Irma Richards of Newtown sues the Town of Newtown and Sunrise Church Hill Road, LLC. Through the lawsuit, the plaintiff is seeking to have the court nullify the conservation easement, or instead require the defendants to provide another remedy to the plaintiff, such as payment.
Sunrise Church Hill Road, LLC, bought the 2.03-acre 73 Church Hill Road site in June 2016 for $225,000, according to town assessment records. According to the lawsuit, Ms Richards owns the 1.1-acre 75 Church Hill Road property, which is being leased to Sunrise Church Hill Road, LLC, on a long-term basis. The two properties abut and form the site for a planned 12,000-square-foot retail center, which would include a coffee shop with drive-through window service.
In the lawsuit, the plaintiff claims that the lease does not allow the developer to have a conservation easement placed on a portion of the site that includes 75 Church Hill Road.
In August, following their review of modified plans for the retail center, P&Z members unanimously approved those plan revisions for the project, including the conservation easement.
The conservation easement is designed to protect about one-half acre adjacent to Tom Brook, which runs across the now-vacant 3.1-acre development site.
As part of its April approval for the developer to rechannelize a section of Tom Brook on the site, the US Army Corps of Engineers required the easement to protect the scenic, vegetative, wildlife, and hydrological functions of Tom Brook, which is a tributary of the Pootatuck River.

As part of the project, the developer is required to eliminate a switchback turn in the stream, replacing it with a much shorter straight stream section. That stream section has been rechannelized. The repositioned section of Tom Brook would be flanked by landscaping features and plantings intended to improve the brook’s water quality and appearance.

The site’s main access would be at Church Hill Road and be controlled by the existing traffic signal at the intersection of Church Hill Road and eastbound Interstate 84’s Exit 10 ramps. The site’s secondary access point would intersect with a relocated section of Edmond Road.

The state Department of Transportation (DOT) in January is scheduled to advertise construction bidding for a long-delayed $4.2-million project to create a conventional signalized four-way intersection of Church Hill Road, Edmond Road, and Commerce Road. The southern end of Edmond Road would be shifted to the west to create that new intersection. Construction work on the project is expected to start in late spring or early summer. The project is expected to be completed by fall 2019.

The intersection project, in the planning stages for about 20 years, is intended to generally improve travel safety and reduce traffic accidents along the section of Church Hill Road lying between I-84 and the Housatonic Railroad overpass.

In October 2016, the P&Z approved a special permit for the retail project, which would hold five commercial tenants. The applicant received the approval under the terms of the Exit 10 Commercial Design District (CDD) overlay zone, which the P&Z created for that area at the developer’s request. The site has underlying M-5 (Industrial) and B-2 (General Business) zoning.

In the lawsuit, the plaintiff is represented by attorney Franklin Pilicy. The Town of Newtown is represented by Town Attorney David Grogins. Sunrise Church Hill Road, LLC, is represented by attorney Francis Pennarola.

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