The town scored a rare legal victory last week, as a state Superior Court judge ruled in the municipality’s favor in a lawsuit brought by a developer seeking to build an affordable housing complex at Weed and Elm Streets.
Filed in April, developer Arnold Karp’s appeal of the Planning & Zoning Commission’s widely anticipated denial of an application for a 102-unit, five-story building at 751 Weed St. remains before the courts in Hartford.
However, state Superior Court Judge Ted O’Hanlan found in an Aug. 30 ruling that the town did not break the law when its Water Pollution Control Authority or “WPCA” denied a sewer line extension for the same project.
Attorneys representing Karp had filed the separate WPCA lawsuit one year ago. In it, they argued that the Board of Finance, in its role as WPCA for the town, erred in denying the developer a relocated sewer connection.
The developer had applied in February 2022 for allocation of sewer capacity and permission to connect the development to the municipal sewer system. The WPCA found that running the sewer from the property directly into the Elm Street sewer system, rather than through the private easements where it currently runs, constitutes an extension of the sewer system. As such, a referral was sought under state law from the Planning & Zoning Commission. P&Z issued a negative report in July 2022. That same month, though the WPCA found that there’s adequate capacity for the redevelopment, it denied the request to construct a new manhole and sewer main extension.
O’Hanlan upheld the WPCA’s decision.
Though the judge conceded that the WPCA botched a July 2022 meeting on the application by being “disorganized in terms of closing the hearing, deliberating, and then voting unanimously on two ‘resolutions’ to deny the extension of the public sewer main and to approve the increase in the property’s sewage allocation for plaintiff’s proposed affordable housing use,” still, the town’s engineer in speaking during the hearing provided “substantial evidence for defendant’s decision to deny the extension.”
“As previously discussed, defendant correctly determined both that plaintiff proposed an ‘extension,’ and that its proposal was required to be referred to the [P&Z] commission under § 8-24,” O’Hanlan wrote in his decision.
Further, the WPCA referred to Town Engineer Maria Coplit’s findings that “the proposal for the new sanitary sewer piping and structure in the right of way is in an area where there currently is no sewer main located” in issuing its denial.
“The applicant did not present any hardship requiring this work within the right of way and the Town has no current or future plans to extend the public sewer at this location,” Coplit said during the July 2022 hearing, as cited by O’Hanlan. “The disruption to our existing right of way in Elm Street and infrastructure therein hasn’t been justified and would also increase the length of public main that the Town would be responsible for in perpetuity.”
Coplit’s reasons “factored in the adequacy of plaintiff’s existing connection, which by its own admission, means that the relocated connection is not necessary for its proposed development,” O’Hanlan wrote.
The judge continued: “Additionally, extension of the sewer main will burden the town and its infrastructure in the construction process and maintenance thereafter. By law, the court cannot second guess these reasons and must uphold defendant’s decision as within its discretion. Accordingly, the court holds that these reasons are not arbitrary or in abuse of its discretion, and constitute substantial evidence to support defendant’s decision to deny this aspect of plaintiff’s application.”
The plaintiff will file an appeal, according to Paul Stone, COO of Karp Associates, “just because it’s the prudent thing to do legally, but ultimately it’s not going to matter.”
“We’re already and have been hooked up to the sewer at 751 Weed Street since 1959,” Stone said.
Karp, the firm’s founder and president, said, “All this means is that instead of doing the most prudent engineering method we will continue to use the easement as it is our legal right through one of the neighbor’s properties.”
Attorneys representing Karp also are appealing P&Z’s denials of affordable housing projects on Main Street (20 units) and Hill Street (93 units), and have filed for the developer to become a co-defendant in the town’s lawsuit against the Connecticut Department of Housing, which denied the municipality’s bid for four years of relief from state law 8-30g.
Meanwhile, in New Canaan, town officials are poised to appoint a local Affordable Housing Committee, following the Town Council’s creation earlier this year of an ordinance allowing for it.
In an update to the Board of Selectmen on Tuesday, Town Council Chair Steve Karl and Bylaws and Ordinances Committee Co-Chair Tom Butterworth provided an update on the soon-to-be-appointed Affordable Housing Committee.
Butterworth said the ordinance itself reflects the hard work of Bylaws and Ordinances Committee members Cristina A. Ross, Maria Naughton, Rita Bettino, Mark Grzymski, Kimberly Norton “and especially my co chair, Hilary Ormond.”
“I thought I’d explain the impetus behind the ordinance with a quick story,” Butterworth said. “I was approached last year by a neighbor who had just heard of the proposed development at Weed and Elm. He’d heard that state law might prevent our Planning & Zoning Commission from modifying or restricting such developments. I told him about the moratorium concept, but said it may not come cheap. And he said, ‘Just tell me what it would take.’ And that’s a fair characterization of the main thrust of the new ordinance. It doesn’t require the town to take any particular action in connection with 8-30g. It doesn’t limit the committee to dealing only with 8-30g issues, but it sets up a new committee primarily to answer two questions: What would it take to expand affordable housing in New Canaan? And what would it take to retain local control using the 8-30g moratorium process?”
Karl said the new Committee is set up with five members of the public plus one ex-officio member from four prominent town bodies—namely, P&Z, Housing Authority, Town Council and Board of Finance—because “it allows better communication throughout the whole town and the way things work.”
“We’re hopeful that those members will serve on this committee and then report back to their respective organizations in town and get a better flow of communication,” Karl said.
He added, “I just wanted to mention the fact that the history, our history has been pretty solid in terms of affordable housing and the fact that our town does welcome affordable housing. We’re looking for affordable housing. We’ve always done that. It’s been decades and decades of great projects we’ve had, and obviously [Housing Authority Chair] Scott Hobbs deserves a lot of credit and the Housing Authority, but this is basically putting the stamp in the ground saying we need to continue to do that. We need to continue the work we’ve done. And I think everybody in town can agree that we want affordable housing, but we also want to know where it’s going to be and what it’s going to look like.”
Asked by Selectman Nick Williams what the new Affordable Housing Committee will have accomplished one year from now, Karl mentioned “public education” about the issue and added that he viewed the new group as “a funded committee.”
“So that’s where the Board of Finance is going to have to come in and figure out how much money can we get to the affordable housing committee right off the bat for any consultants or whatever,” Karl said.
Asked how much money would be involved, Karl said “it’s early” and added that “to me, this is one of the biggest issues we’re facing here in town, so I could see the town spending, you know, putting aside a significant amount of money per year to deal with property acquisition, et cetera.”
Butterworth said, “The key thing about the Committee is it’s kind of up to them, right? Put together an attractive plan that would resonate with residents and then say, ‘Here’s plan A. It would cost ballpark, X dollars. And it would be on Y piece of property.’ And, you know, God bless them if they can come up with the answers to those questions.”