Saying Aquarion has no legal right to use their street, 23 of Indian Waters Drive in New Canaan are collectively suing the water company as it pursues a plan to subdivide and develop a wooded parcel that includes use of the private road as an access way.
The approximately 10-acre lot owned by Aquarion historically has been served by a driftway running from Weed Street to Frogtown Road, and Indian Waters Drive itself didn’t exist at the time a predecessor water company acquired the parcel in question 110 years ago, according to a complaint filed Oct. 17 in state Superior Court in Stamford.
Those who own properties along Indian Waters Drive itself own portions of it up to the centerline, and those who own other homes on the road may pass and repasss it, according to the complaint, filed on the neighbors’ behalf by attorney Amy Zabetakis of Darien-based Rucci Law Group.
Yet use of the road is deed-restricted to those property owners, the lawsuit said, so what Aquarion proposes to do “constitutes trespass on the Indian Waters Drive property owners’ property.”
“The Indian Waters property owners request that the court issue a declaratory judgment determining that Aquarion does not have the right to use Indian Waters Drive,” the complaint said.
It seeks a permanent injunction barring Aquarion from using the private road, as well as damages and other costs.
The legal filing comes as Aquarion seeks permission from the Planning & Zoning Commission to subdivide and develop the property.
Attorney Jacqueline Kaufman of Stamford-based Carmody, Torrance, Sandak & Hennessey LLP filed subdivision, site plan and special permit applications with P&Z and the commission is expected to take up the matter at a special meeting on Wednesday night.
Plans call for the 9.98-acre vacant lot to be subdivided into two building lots of 2.1 and 3.7 acres, with 4.1 acres to the north designated as open space (see ‘Indian Waters Drive’ in the dropdown menu here). Under the Aquarion application, both newly created building lots would be served by private wells and septic, with access off of a shared access way from Indian Waters Drive. An existing cul-de-sac would be moved onto the Aquarion property, large enough to accommodate emergency fire vehicles.
Special permits are needed due to lot and road width, according to Kaufman. Specifically, she said at the September hearing, Indian Waters Drive itself does not meet minimum width requirements for an access way serving a rear lot, and one of the two new building lots falls short of the width requirement for frontage on a private access way leading to a public road (see page 56 of the New Canaan Zoning Regulations).
The matter had come before P&Z during its last meeting, on Sept. 26. There, an attorney representing neighbors said it would be inappropriate to open Aquarion’s application due to the outstanding title issue. However, Town Attorney Ira Bloom when asked for his advice said the water company had a plausible claim to title and therefore P&Z could open the item.
During the September hearing, engineers hired by the applicant reported to P&Z that the lots have well-drained soil and runoff would be handled by an on-site water management system, and that the addition of two new homes would bring negligible amounts of traffic to the road.
Several people spoke out against the application, including neighbors and advocates for open space, as they did when Aquarion first sought permission from state officials to subdivide the property in early-2106. (At that time, the parcel totaled about 19 acres, and nearly half of the land was purchased by an abutting neighbor who vowed to leave it undeveloped.)
Those opposed to the development included Chris Schipper, a past president and current board member of the New Canaan Land Trust. Schipper urged P&Z to work with the town to see that Aquarion, if the water company sought to sell its property to developers at market rates, be held to the same standards of appraisal and taxes as other New Canaanites. The company’s total of 222 acres should be appraised at $4.3 million, according to Schipper, and so Aquarion’s tax bill should be about $750,000 instead of $50,000.
The property in question is being appraised at about $20,000 per acre, Schipper said, “so they are riding this curve to our detriment, along with extracting the natural resource of water.”
Attorney Joseph Rucci of Rucci Law Group, representing the neighbors, said that Aquarion lacks deeded access to the property by way of Indian Waters Drive.
According to Rucci, a restrictive covenant limits the use of Indian Waters Drive to owners of certain parcels and those do not include the water company. Historically, Rucci said, Aquarion accessed its parcel through Frogtown Road—that is why, he noted, the property is listed as a Frogtown Road property in New Canaan’s tax records. Further, Rucci said, access rights had been reserved across several properties at the time they were sold, but Aquarion opted not to use them for access. The water company doesn’t have a right to use his clients’ road simply because their property is located contiguously to it, Rucci said.
“Their legal access is not, and has never been, Indian Waters Drive,” Rucci said.
Rucci noted that though the water company furnished P&Z with a title report from a surveyor, that the surveyor is “not qualified to give title opinions.”
“Our clients have stepped up to the plate and they are going to oppose it [the application],” Rucci said.
No further events are scheduled now in connection with the lawsuit, according to Connecticut Judicial Branch records.
P&Z is scheduled to meet at 7 p.m. on Nov. 1 though the first item on its agenda is to go into executive session to discuss lawsuits brought against the town in connection with recent Grace Farms approvals.