FOR IMMEDIATE RELEASE
September 11, 2018
Contact:
Laura McMillan, CT Fund for the Environment
203-787-0646 x137 / 540-292-8429
Oswegatchie Hills advocates join East Lyme in appealing sewer decision
East Lyme, Conn. – Leaders of the Save Oswegatchie Hills Coalition are joining the Town of East Lyme in asking the Connecticut Supreme Court to review a recent Appellate Court decision that could require the Town of East Lyme to grant a large portion of its remaining sewer capacity to a developer.
Connecticut Fund for the Environment filed the Petition for Certification to Appeal to the Supreme Court on Monday on behalf of its coalition partners, the Friends of the Oswegatchie Hills Nature Preserve and Save the River-Save the Hills. The Law Firm of Waller Smith and Palmer filed a petition on behalf of the Town of East Lyme.
“We continue to believe that East Lyme should not be required to donate an extraordinarily large portion of its highly constrained sewage capacity to a project that would destroy the Oswegatchie Hills,” said Roger Reynolds, chief legal director for Connecticut Fund for the Environment/Save the Sound. “We disagree with the appellate court’s decision and stand with East Lyme in asking the Supreme Court to review it. The Town should be able to use its sewer capacity to serve the rest of the community and address ongoing pollution problems, not prop up an environmentally destructive development.”
The rock formations, rugged forest, wetlands, and vernal pools of the Oswegatchie Hills are home to a multitude of native plant and animal species and serve as a refueling stop for migrating birds. The forest helps protect the delicate ecosystem of the Niantic River, a tidal estuary that flows directly into the Long Island Sound. The southern two-thirds are protected as the Oswegatchie Hills Nature Preserve, which provides hiking and birdwatching for residents from around the state. The northern 236 acres are owned by Landmark Development, LLC, which seeks to construct 840 units of housing, with 1,767 parking spaces and 36 acres of pavement and hard surfaces. Not only would the diversity of animal and plant life be harmed by this development, but stormwater runoff carrying pollutants from acres of impenetrable surfaces could threaten water quality on the land and in the river below.
These filings are the latest in a process that has been going on for several years. After a series of court actions, East Lyme did a calculation required by court order and found the town could allocate 14,434 gallons per day of sewage capacity to Landmark’s project. Landmark appealed. Rather than considering earlier court orders of the Commission’s calculations or constrained sewage capacity, the court compared it to a different project and ordered the town to provide whatever amount of sewage was necessary to allow the development to go forward. East Lyme and the environmental groups appealed and on August 21, the Appellate Court ruled for the developer. The Town and the conservation advocates are now seeking review of that decision by the Supreme Court.
Greg Decker, Friends of Oswegatchie Hills Nature Preserve president and chief steward, said, “The court decision was a setback for the cause of protecting the last mile of coastal fragile forest and Niantic River. But as we have demonstrated for over 16 years, we are in it for the long haul and we are not going to be deterred by one lost battle. We have science, the law, and the will of the local community on our side in this fight.”
“The Appellate Court’s decision flies in the face of the spirit of the Home Rule Act,” said Fred Grimsey, president and founder of Save the River-Save the Hills. “We believe strongly that the pollution this development would generate would be a nail in the coffin in the Niantic River. We have fought too long and hard to give up now, so we’re asking the Superior Court to reverse this bad decision and protect the Hills and the Niantic.”
The advocates are also awaiting a ruling from the Connecticut Superior Court on a second case. The developer appealed the East Lyme Zoning Commission decision limiting development to within the sewer district and requiring environmental concerns to be addressed. CFE, the Friends, and Save the River-Save the Hills are defending that decision and have submitted a motion to dismiss the developers appeal. They are currently awaiting a decision.
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Text of the appeal for certification is below. For a formatted and executed copy including appendices, please contact lmcmillan@ctenvironment.org.
S.C. NO. ——-
AC 39806 CONNECTICUT APPELLATE COURT
LANDMARK DEVELOPMENT GROUP, LLC
and JARVIS OF CHESHIRE LLC
V.
EAST LYME WATER AND SEWER
COMMISSION, ET. AL. SEPTEMBER 10, 2018
PETITION FOR CERTIFICATION
Pursuant to Practice Book 84-1 et. seq. the Intervenors, Friends of Oswegatchie Hills Nature Preserve, Inc. and Save the River/Save the Hills, Inc., hereby petition for certification to appeal the Appellate Court’s decision dated August 21, 2018 that held that the Defendant, East Lyme Water and Sewer Commission (“Commission”) had abused its discretion in making a sewage capacity determination of 14,434 gallons per day on the application of the Plaintiffs, Landmark Development Group, LLC and Jarvis of Cheshire, LLC.
I. QUESTION PRESENTED FOR REVIEW
Did the Appellate Court err by affirming the TrialCourt decision when such decision failed to apply the analysis set forth in Forest Walk v. Middlebury WPCA, 291 Conn.
271 (2009) to determine whether the Commission had appropriately exercised its discretion in considering a capacity reservation request under C.G.S. § 7-246(a), but instead based it upon a comparison between the Plaintiffs‘ request for a sewer capacity
reservation request and a separate ministerial granting of an application to connect to the sewer system for a different project with different factual and legal circumstances?
II. BASIS FOR CERTIFICATION
Error! Filename not specified.In affirming the TrialCourt decision without requiring application of the Forest Walk analysis to the evidence, and basing it upon comparisons between factually and legally distinct applications, the Appellate Court decided the case in a way probably not in accord with applicable decisions of the Supreme Court.
Ill. SUMMARY OF THE CASE
This case involves the Plaintiffs‘ application with the Commission pursuant to C.G.S. § 7-246(a) for the reservation of 118,000 gallons per day (“gpd“} of sewer treatment capacity for an 814 unit development in the Oswegatchie Hills. It is the latest salvo in an ongoing dispute between Plaintiffs-Appellees, Landmark Development Group, LLC, et al., (“Landmark”; “the applicant”) and the Town of East Lyme over the Plaintiffs’ proposed residentialhousing development alongside the Niantic River in the Oswegatchie Hills area of East Lyme. Encompassing nearly 700 acres, the
Oswegatchie Hills1 constitute a “rugged, hilly wilderness” that makes up one of the largest areas of undeveloped open space in East Lyme and along the Southeastern Connecticut shoreline. Landmark Development Grp., LLC v. Zoning Comm’n, 2004 WL
2166353, *1 (Sept. 7, 2004, Quinn, J.) (“Landmark 1”). The General Assembly, recognizing the environmental value of the Oswegatchie Hills, has designated the area a Conservation Zone and established the Niantic River Gateway Commission to safeguard the natural character of the area. Landmark I, 2004 WL 2166353,at *8.
Error! Filename not specified.1 Unless explicitly differentiated, for the purpose of this brief the term “Oswegatchie Hills” refers generically to both Landmark’s real property and the abutting Oswegatchie Hills Nature Preserve. Landmark owns 236 acres whereas the Nature Preserve consists of 457 acres.
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East Lyme has also long recognized the crucialimport of keeping the Oswegatchie Hills preserved as open space and included preservation as a policy goal in the most recent versions of the Town’s Plan of Conservation and Development. For many years, both the Intervenors, Friends of the Oswegatchie Hills Nature Preserve, Inc. and Save the River-Save the Hills, Inc., have advocated for the irreplaceable ecological and recreational resources of the Oswegatchie Hills remain permanently protected for the benefit of East Lyme, the Niantic River watershed, and Long Island Sound. The Superior Court has concluded, in litigation related to the zoning of Landmark’s proposal, that the interests in preserving the property constitute ongoing, legitimate pursuits.Landmark Development Grp., LLC v. Zoning Comm’n, 2011 WL 5842576, *27 (Oct. 31, 2011, Frazzini, J.) (“Landmark Ill”). Indeed, development within the Oswegatchie Hills “would severely impact the public interest in preserving this unique and important property….” Landmark Development Grp., LLC v. Zoning Comm’n, 45 Conn. L. Rep. 63, 2008 WL 544646, *11 (Feb. 2, 2008, Prescott, J.)
(“Landmark II”). In addition to physical disruption of the terrestrial ecosystem, extensive
development in the Oswegatchie Hills would increase nonpoint source water pollution via increased stormwater runoff. Landmark Ill, 2011 WL 5842576, at *25. Elevated nitrogen and bacteria pollution in the Niantic River would impair the area’s shellfish beds and contribute to the decline of eelgrass, which serves as habitat for diverse marine species. Id. at *26. The Niantic River “itself is part of the coastal resources of Long Island Sound, which ‘form an integrated natural estuarine ecosystem which is both unique and fragile.”‘ Landmark II, 2008 WL 544646, at *10 (quoting General Statutes § 22a-91(1)). As such, the health of the overall Niantic River watershed ecosystem is inexorably linked with that of the Oswegatchie Hills.
In 2012, the Commission denied the Plaintiffs’ request for 118,000 gpd of sewage capacity pursuant to C.G.S. § 7-246(a)(2) for their 814 unit development. Landmark appealed to the Superior Court which reversed the denial and remanded for a clarification of what capacity the Commission would be willing to grant to Landmark. The Commission then allocated 13,000 gpd to Landmark. In a Memorandum of Decision dated June 23, 2014, the Trial Court found that the defendant’s allocation of
13,000 gpd to the Plaintiff was an abuse of discretion. The case was remanded once again with orders for the Commission to do a new analysis based upon the factors set forth in Forest Walk v. Middlebury WPCA, 291 Conn. 271 (2009). These four factors are, “[1] the remaining capacity for the entire town, [2] the land area represented by the property versus the available land area in the town, [3] the safe design standards for the public sewer, and [4] the percentage of the allocation versus the total remaining capacity.”
Applying those factors per the Trial Court order, the Commission recalculated the capacity determination which resulted in a new capacity determination of 14,434 gpd. The record reflects that the calculation resulted in numbers that found that East Lyme in the instant case had far less capacity than did the town in Forest Walk, and that the area to be served was far less than the area in Forest Walk resulting in a far more extreme ratio. In response, Landmark initiated the present appeal.
On February 20, 2015, the Intervenors submitted a verified petition to intervene in the appeal pursuant to General Statutes§ 22a-19. In their petition, the Intervenors
asserted that Landmark’s pursuit of its requested sewer capacity and attendant development would cause environmentaldestruction and violate the public trust in the air, water, and other natural resources within the Oswegatchie Hills, Niantic River, and related ecosystems. The Trial Court granted the petition and admitted the Intervenors as parties to the appealon March 18, 2015.
While the appeal was pending before the Trial Court, Landmark moved on March 30, 2015, to supplement the existing administrative record pursuant to General Statutes§ 8-8(k). The supplemental evidence that Landmark proffered, however, concerned an unrelated development in East Lyme known as “Gateway” that has no connection to Landmark’s property or its sewer capacity application. The Gateway application was for a sewer connection, (not a capacity reservation request), in an area entirely within the existing sewer district, and was located directly on a major sewer line.
The Trial Court ultimately concluded that the 14,434 gpd determination was an abuse of the Commission’s discretion based on the fact that they had granted substantially more than that in the connection request from Gateway. Remarkably, the Trial Court did not even evaluate or review the Commission’s application of the Forest Walk factors that the Trial Court had ordered, but based its decision entirely on the factually and procedurally irrelevant Gateway evidence. The Trial Court remanded the matter to the Commission to calculate a new capacity figure that would not “completely foreclose the development of the plaintiffs’ project.” (A435); Landmark Development Grp., LLC v. Water and Sewer Comm‘n, 2016 WL 4497652 (July 6, 2016, Cohn, J.).
The Commission and the Intervenors filed separate certifications to the Appellate Court and both were granted (AC39804 and AC39806). Because the claims raised were substantially the same, the Appellate Court issued one opinion and affirmed the decision of the Trial Court. The Appellate Court found that: (1) the Trial
Court did not abuse its discretion in submitting the supplemental Gateway evidence; (2) the Trial Court properly concluded that the Commission abused its discretion in granting 14,434 gpd to the Plaintiffs; and (3) the Trial Court properly “disregarded” the Forest Walk factors in reaching its opinion. This appeal followed.
IV. ARGUMENT
In disregarding the Forest Walk factors, the Appellate Court failed to (1) apply the controlling Forest Walk case analysis to the decision and (2) failed to acknowledge the substantial factualand legaldifferences between the connection and capacity reservation permits that were involved.
Forest Walk -The application of the Forest Walk factors clearly weighs against granting 118,000 gpd and show that the figure of 14,430 gpd was reached in a reasonable manner. In Forest Walk, the applicant requested a capacity reservation of 50,505 gpd, later amended to 81,250 gpd, for development on 19 acres of land. 291 Conn. at 295-96. This request amounted to approximately 8% of Middlebury‘s remaining sewer capacity for a piece of land that constituted only 1% of land area within the sewer district. Id. The Forest Walk court found this was a disproportionately large request for sewage relative to the size of the land served.
In the present case, the Commission made a calculation using the Forest Walk
factors and arrived at a decision that was actually less than the 13,000 gpd granted. Given this, they went back and made every possible presumption in favor of the Plaintiffs in order to get a number above 13,000 gpd and satisfy the court. Under these very conservative assumptions, the Plaintiffs seek 118,000 gpd of East Lyme’s remaining 225,000 gpd of capacity. This is 52% of remaining capacity for one project. Moreover, the Plaintiffs property has only 35 acres within the sewer service district (“SSD”). This amounts to only 0.55% of the land area within the SSD.
Thus in Forest Walk, the court found that rejecting an application that would use
8% of remaining sewer capacity for only 1% of the land area within the sewer district was a proper exercise of discretion as it represented too much capacity compared to amount of the land served. In the Plaintiffs’ application, using numbers that make every conceivable presumption in favor of the Plaintiffs, they seek to use 52% of the town’s remaining capacity for .55% of the land area within the SSD. If the situation in Forest Walk was excessive, the situation in the instant case is extreme.
Error! Filename not specified.Moreover, the Middlebury Water Pollution Control Authority in Forest Walk denied the application at issue, in part, because the property underlying the application was not within a sewer service area and ran awry of Middlebury’s sewer avoidance policies. 291 Conn. at 292. In regard to the location of the applicant’s property, the Court recognized that “no construction plans were prepared to support sewers to
Error! Filename not specified.service the property” and that Middlebury‘s “sewer plan did not cover the property,” and holding that municipalities have authority pursuant to General Statutes§ 7-246 to designate boundaries for sewer service areas. ld. at 292-93. Likewise, in Forest Walk the contested sewerage application was contrary to Middlebury’s plan of conservation and development and the sewer avoidance policies therein. ld. at 293. Like the present
case, the property implicated in Forest Walk was geographically ill–suited to development and municipal conservation policies had been drafted with that in mind. ld. at 293-94. As such, the Court held that it was proper for the Middlebury Water Pollution Control Authority to reject the application on the basis of municipal public policy in support of sewer avoidance in the area where the applicant had requested sewerage. ld.
The scenario in Forest Walk is similar to that in the present appeal. As detailed above, with the exception of 35 acres, the majority of Landmark’s property is located beyond the exterior boundaries of the SSD. Like the Town of Middlebury, East Lyme’s own Plan of Conservation and Development strongly militates against development within the Oswegatchie Hills. Landmark II, 2008 WL 544646, at *11-*12 (detailing status of the Oswegatchie Hills as a conservation zone under various municipal and state policies).
Indeed, the Intervenors are not aware of any other cases applying Forest Walk that involve scenarios anywhere even close to the extreme circumstances in the present case. To affirm that the Commission’s conduct in protecting its last remaining sewage capacity was an abuse of discretion under these circumstances would have a grave chilling effect on the municipal oversight of local sewer infrastructure and water resources. The fact that it was the Trial Court that had originally ordered the Commission to apply these factors makes it all the more extraordinary that the detailed analysis was subsequently ignored and disregarded.
Gateway – The Gateway development was on an entirely different footing than the Plaintiffs’ proposed development, both factually and legally, and does not apply to override the Forest Walk analysis.
While the Gateway property was located entirely within the central sewer district, the Plaintiffs’ development is located largely outside the sewer district. The Gateway property has frontage on Route 161, a major state road that passes through East Lyme and is fully serviced by existing sewage infrastructure, while Plaintiffs‘ property is not served by currently existing sewage infrastructure. The Commission must retain the flexibility and freedom to balance competing uses and requests of the remaining capacity, such as those properties fully within the SSD subject to benefit assessments, the State properties with reserved capacity, and remediation of failing subsurface treatment systems. Curtailing the Commission’s discretion to make these delicate determinations will greatly increase the possibility of failures and system misuses that cause ground and surface water pollution within East Lyme, the Niantic River watershed, and Long Island Sound.
Gateway is on a different legal footing as well. Applications for a capacity determination and applications to connect to a sewer system are two fundamentally different items as a matter of law. See generally, Dauti Construction. LLC v. Water & Sewer Auth., 125 Conn. App. 652 (2010), cert. denied, 300 Conn. 924 (2011). The Plaintiffs’ application was a request for reservation of sewage capacity made solely pursuant to C.G.S. §7-246. Connection applications, like that for Gateway, are handled by staff and never pass before the commission. There is no required public hearing for a connection permit and a reservation of capacity is not a pre-requisite or a consideration in the proceeding. In the original proceeding before the Commission, Landmark sought only a capacity reservation of 118,000 gpd-it did not request to physically connect to an East Lyme sewer line, which is what Gateway’s application sought. Landmark’s proposed housing development remains unapproved, unconstructed, and subject to pending litigation. The sewer lines to which it would have to connect do not exist whereas Gateway’s development was fully constructed and ready to commence sewer service.
Gateway’s application to connect to East Lyme’s sewer system-an application that was procedurally and factually unrelated to Landmark’s capacity request and which never came before the Commission-is quite literally irrelevant to the present appeal and certainly not “essential” or “necessary” in any regard. The Trial Court’s holding that the Commission was required to somehow consider capacity in the context of Gateway’s connection application, which it did not review, is therefore clear error. To permit such a ruling to remain undisturbed will inflict further damage on East Lyme’s ability to manage its scant remaining sewer capacity at the local level by requiring the Commission to take an irregular approach to Landmark’s application that it has not historically taken. Such an outcome will not only give rise to claims of disparate treatment by other parties with capacity requests before the Commission but will further obviate the Commission‘s discretion over how to best manage and allocate a limited municipal resource for the greatest benefit to all in East Lyme.
V. CONCLUSION
For the foregoing reasons, the Intervenors respectfully request that this court grant its Petition for Certification.