A lawyer representing the owner of a property at Weed and Elm Streets, site of a planned 102-unit multifamily redevelopment, is appealing a municipal body’s decision last month to deny a proposed relocated sewer connection.
The Board of Finance, in its role as New Canaan’s Water Pollution Control Authority, violated state law in its “illegal” denial, which was “an abuse of discretion and/or not supported by substantial evidence in the records” for several reasons, according to a complaint filed in state Superior Court by attorney Tim Hollister of Hartford-based Hinckley Allen.
The property at 751 Weed St. is already connected to the town’s sewer system, “ample sewer capacity exists for the proposed use” and “no system extension is proposed,” Hollister said in the complaint, received Monday by the Town Clerk’s office.
“[T]here are no engineering impediments to connecting,” the complaint said, the sewer extension will be privately funded and “the applicants have a right to approval and the WPCA has a non-discretionary / ministerial obligation to grant the application.”
“In denying the application, the WPCA illegally used sewer system access to control or regulate land use, which is beyond its statutory authority,” Hollister said in the complaint, and the denial was also “pre-textual in the sense that the record shows that its stated denial reasons were not the actual factors that resulted in the decision.”
“The record contains no factual or legal basis for detail of the application,” the complaint said.
The sewer application has run along a separate track from the 8-30g application to the Planning & Zoning Commission for the redevelopment itself.
Currently, the sewer line runs east from the house at 751 Weed St., across a private easement and crosses into private properties behind Kimberly Place.
In January, property owner Arnold Karp applied to the WPCA to dispose of sewage from the proposed 102-unit building by moving the existing sewer connection, at his own expense, into the public right-of-way on Elm Street. The move would make it easier to maintain the sewer line and “relieves abutting private property owners of the easement,” the complaint said. The applicant also “confirmed through a consulting engineer that there is ample capacity in the existing line,” it said.
As he has in the past, Hollister asserted that the proposal “does not qualify as, an ‘extension’ or ‘relocation’ of the Town’s sewer system that required a referral, for an advisory report, to the Planning & Zoning Commission.”
Yet the WPCA did seek such a “municipal improvement” referral from P&Z, which returned a negative report before the finance board on July 12 unanimously denied the application (with then-alternate member Maria Weingarten voluntarily recusing herself, as noted recently and according to the meeting minutes).
The complaint implies that the town’s denial is the result of a desire to complicate or impede the affordable housing redevelopment itself.
“In Connecticut and elsewhere, sewers are ‘pubic utilities,’ meaning that they are public services, paid for by property tax revenue, and thus property owners and taxpayers are entitled to non-discriminatory access to and use of the system, subject to reasonable regulation as authorized by state statutes, and local regulations if adopted,” the complaint said. “In general, Connecticut case law holds that sewer systems are not to be administered to control or dictate land use, and WPCAs may not use sewers to control or dictate land use, because land use is the exclusive purview of the town’s zoning commission.”
Immediately following the sewer application, on Feb. 4 the town engineer in a memo “requested the applicant to conduct video inspections and ‘flow monitoring’ of various segments of the sewer system, to determine the condition of pipes and their capacity,” the complaint said.
“In the same memo, and several others filed later in the process, the town engineer stated that there are ‘no known problems’ with New Canaan’s sewer system. Though the applicants’ consulting engineer noted that the scope of the request exceeded prior local practice and engineering standards, the applicants agreed to conduct the work.”
Ten days later, the town attorney advised the WPCA in a memo that the WPCA’s purview in reviewing the 751 Weed Street sewer application was very limited.
Yet through the rest of February and March, following the filing of the redevelopment application with P&Z at Weed and Elm, public reaction to the plaintiffs’ zoning and sewer applications included several critical statements, the complaint said, including:
‘This is an existential threat to New Canaan’s village character.’ — First Selectman Kevin Moynihan
‘All of New Canaan town governance should Kill this Karp Catastrophe (‘KKK’) — Peter Thomson Hovey, resident
‘I support litigating the Karp development even if our chances of winning are low.’ —Richard Goarkin, resident
‘Imagine walking in Irwin Park with an additional 102-404 people or our class sizes moving from 24-50 kids in a class.’ —Karyn Feiner, resident
According to the complaint, such emails led Board of Finance Chair Todd Lavieri to send an email to WPCA members, saying: “ ‘As our email inboxes fill up with input from town residents, let me share a few reminders,’ ” according to the complaint. “The letter continues, ‘Ultimately, it is likely that the Planning and Zoning Commission will also need to engage and respond.’ In a February 26, 2022 email, Chair Lavieri had to send a reminder: ‘During this period when this application is in front of the WPCA, all BOF members must completely refrain from engaging in any public or private discussion or actions related to this application. Online, or on social media. No exceptions. We had to ask one member to recuse themselves.’ ”
Starting around that time, despite the town attorney’s opinion, facts of the case and applicable statutes, “town staff began to characterize the application as an ‘extension’ of the town’s sewer system, which would render the WPCA’s decision discretionary, and would require a referral to the Planning and Zoning Commission for a report under [Connecticut General Statutes] 8-24,” the complaint said.
Hollister cites the minutes from the WPCA’s July 12 meeting, when in speaking in favor of a denial, Lavieri cited P&Z’s negative report, among other reasons.
The complaint seeks to sustain the appeal, order the town to approve the sewer application, award costs as provided by state law and “grant such other and further relief as may be just and proper.”
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