In a counterclaim filed Dec. 20, Aquarion also argues that an alternative route to access its property—a so-called “driftway” from Frogtown Road—would cross two Indian Waters Drive homeowners’ parcels, rendering it unusable.
The counterclaim comes in response to a lawsuit filed on behalf of 23 Indian Waters Drive homeowners by attorney Amy Zabetakis of Darien-based Rucci Law Group. It also comes on the heels of a decision by the Planning & Zoning Commission to deny its application to subdivide and develop a wooded, vacant 10-acre lot.
In the legal filing, Aquarion acknowledges—as counsel for the neighbors has asserted—that a “driftway” had provided access to its parcel from Frogtown Road, but argues that the route of that access way is different from what’s been presented to the Superior Court.
Filed on behalf of Aquarion by attorney Richard Colbert of Stamford-based Day Pitney LLP, the water company asserts that if it were forced to use the true and entire “driftway” described in land records, then it would run directly through two privately owned residential lots at numbers 79 and 95 Indian Waters Drive. Further, the argument goes, when the company that developed Indian Waters Drive and its various building lots acquired the property there, it developed the private road with the idea of making the driftway obsolete and giving access along the newly created access way to Weed Street.
The counterclaim goes back about 100 years, when an original 60-acre property was divided into 20-acre and 40-acre pieces. The smaller of those two has been conveyed, merged or otherwise transferred seven times since 1907, according to the counterclaim. As it changed hands, the property’s deed consistently referenced “legal rights of way” to the parcel, and in November 2016, Aquarion sold 8.8 acres of its larger property to private buyer, at which time “an Option Agreement was granted to Aquarion to purchase an access easement over the sold land, thereby preventing the remaining Aquarion Property from being landlocked in the event Aquarion does not have access rights over Indian Waters Drive as alleged herein.”
The other 40 acres were conveyed a number of times until it formed part of a larger parcel conveyed in 1949 to Indian Waters Incorporated, the counterclaim said, with a deed that also asserts “[s]aid premises are subject to any legal rights of way appearing of record.” The property would be subdivided and capped with a cul-de-sac where the property that Aquarion is seeking to subdivide and develop now sits, and at that time—around 1952—a surveyor and engineer appears to have “purposefully shifted” the road so that it created “frontage on and right of access over Indian Waters Drive.”
“There was no apparent road condition or other development to shift the road in this fashion other than to provide” that frontage, the counterclaim said.
The counterclaim also asserts that Aquarion used Indian Waters Drive to access the property or 15 years prior to the property owners’ filing their complaint. The water company also has the right to create, maintain and use for motor vehicle traffic a driveway where the “driftway” sits, though it would pass through the two private properties, according to the counterclaim.
Researchers from the Yale School of Forestry & Environmental Studies recently identified the Aquarion property as a high-priority “acquisition target” for the town as it pursues open space preservation.
The lawsuit is listed for the state Superior Court’s short calendar on Jan. 8.