Aquarion Countersues Indian Waters Drive Neighbors, Seeking Right To Use Private Road

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Saying it has a right to access its land through Indian Waters Drive, Aquarion is countersuing a group of property owners there who have argued that the water company cannot use their private road.

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.

4 thoughts on “Aquarion Countersues Indian Waters Drive Neighbors, Seeking Right To Use Private Road

  1. As Aquarion continues to sue its New Canaan neighbors and seek legal loopholes, let’s look for one minute beyond the immediate zoning issue, to the larger picture.

    We know that Aquarion successfully argued to have this property designated as forest land. The reason – to get a huge tax break. For this one parcel of 18.9 acres, Aquarion has argued the assessed value down to about $168,000. Again, that’s for the entire 18.9 acres. That’s not their tax bill, that’s the value of 18.9 acres of land. By contrast, ordinary citizens are assessed nearly 240 times more per acre than Aquarion is. Aquarion demanded, and it got, a special deal.

    The law Aquarion used, Connecticut Public Act 490, was passed by the Connecticut legislature in 1963, and has always included the wording that it is “in the public interest to encourage the preservation of farm, forest, and open space land.”

    The point is, Aquarion fought for, and for over a decade has enjoyed, a super low tax rate that was actually designed to preserve open space and stave off the pressures of development. The very kind of development that Aquarion now wants to pursue.

    As a Town, we’ve gone along with that forest designation – we lose out on tax revenue, but we preserve natural open space that’s been that way for over 100 years. Now surrounded by homes, paved driveways, manicured shrubbery, and fertilized lawns, this interior 18.9 acres remains an oasis that has managed to stay untouched and pristine, a true refuge for wildlife. They simply aren’t making land like this anymore.

    Aquarion has now decided it wants to dispose – literally throw away – this New Canaan oasis, this beautiful Noroton River forest.

    Aquarion positions itself as “Stewards of the Environment.” That’s actually its trademarked tag line. And the Aquarion website does paint a beautiful picture of how the company manages its forests that “serve as both a critical safeguard and an invaluable resource… retaining moisture, filtering runoff and keeping streams pristine, the forest protects water supplies for hundreds of thousands of people. Its millions of trees help to clean the air and moderate the climate. It also provides intact ecosystems where a diverse range of plants and wildlife can survive and flourish, and it provides the public with places to find peace, beauty and recreation.”

    So, is this 18.9 acre property part of the beautiful, delicate ecosystem Aquarion rhapsodizes about on its website? Well, it was when Aquarion didn’t want to pay its taxes at the same rate the rest of us do. But now, suddenly, it’s not a beautiful forest. It’s disposable; it’s buildable lots to sell off to developers.

    Aquarion cannot have it both ways. It chose to pay a tiny fraction of normal property taxes for years, based on its contention, as stewards of the environment, that this is forest land.

    Allowing Aquarion to now sell this property to developers makes a complete lie of its corporate positioning, and it makes ratepayers such as myself more cynical about utilities – and perhaps even about those who would allow such hypocrisy to go on. This state doesn’t need one more ounce of cynicism.

    Aquarion fought to get this land classified as forest, and I agree with that classification completely. Since it actually IS forest land, since it IS open space that would disappear forever if developed for short term gain, the best course of action is NOT to let Aquarion “dispose” of this Noroton River forest, with its vernal wetlands and glacial boulders, by selling it off to developers, but instead to use the “forest land” assessment Aquarion demanded (and still enjoys) as the basis for conveying this beautiful natural space to those who would actually preserve all of it for generations yet to come.

    • Outstanding Cam! Thanks so much for responding to this outrage! We need to be ever vigilant and protect our wonderful remaining open spaces which need stewards for their own preservation and for all the benefits these spaces provide to all New Canaanites!

  2. Wow Cam !!! Right on — as I said before let the TC Tax
    Them for each gal of water that God put in their reservoir
    and they sell to the public — I think the town once owned all of what they have if you go back and look

  3. Will Acquarion pass the tax savings they will receive pursuant to the new tax reform act (lower corporate tax rates) along to their CT customers since the state has continuously granted them exorbitant utility rates increases. Or will they pass the savings along to their already over compensated executives?

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