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Redding
Riverbend: Judge denies appeal
May 8, 2008
by Rachel Kirkpatrick
rkirkpatrick@thereddingpilot.com
A judge has upheld the decision of the Conservation Commission to deny a wetlands application for the proposed Riverbend development on Redding Road.
In the ruling, rendered in Danbury Superior Court on Thursday, April 24, six of the eight conditions the commission gave for its denial in December 2006 were deemed lawful.
According to town counsel, this is the only type of case where the applicant has by right the ability to appeal a decision. It will now have to be applied for through the Appellate Court, which will decide whether or not it wants to hear the case.
“This is very welcome news,” said First Selectman Natalie Ketcham. “The judge’s decision was thorough and thoughtful, and well justified by the record. This is good news for us, and for inland wetlands commissions across the state.”
The Riverbend development plan has changed several times since it was first proposed.
The plan the Conservation Commission unanimously rejected was for 10 three-bedroom homes and three one-bedroom “affordable” accessory apartments on the 14.17-acre property at 626 Redding Road. Reasons the commission cited, among others, were that the application was incomplete and “failed to show that there are no feasible and prudent alternatives” that would have less impact on the wetlands and the Saugatuck River.
In January 2007, the developer, Three Levels Corp., and property owners Reeda and Frank Harsche filed an appeal seeking to overturn the Conservation Commission’s denial of the project.
The original, more intense plan, which was withdrawn in May 2006 by the property owners, called for 33 units of affordable housing with a common septic system and a driveway onto Redding Road (Route 53).
On top of the Conservation Commission denial, the Zoning Commission denied the Riverbend application, which called for a change in the zone of the site from R-2 (residential two-acre) to RV (residential village) in order to develop four affordable and 10 regular housing units.
The developer and the Harsches had a lawsuit against the Zoning Commission regarding that decision. However, recently the applicants and the zoners reached a settlement regarding the conditions that would be required for approval should no conservation permit be required.
At that time, Town Attorney Michael LaVelle said if and when the developer resolved the conservation issue, he would have the benefit of having these conditions approved.
State plan
The Conservation Commission’s two reasons for denial of the Riverbend application that were overturned by Judge Dan Shaban were detailed in a 23-page court document, along with the six he upheld.
The commission indicated in its decision that the proposed development did not conform with the state plan of conservation and development.
The reason, according to the court document, was that the development exceeded the state plan’s recommendation of a density of “one dwelling per two acres of buildable area” for all public water supply watershed areas in the state to prevent water quality degradation.
In addition, according to the court document, the commission stated that a “preservation area” adjacent to the proposed development was identified in the state plan, and recommended that it be managed “to the degree possible” as a no-build or no-net-loss area.
The Harsches argued that it was “improper” for the commission to rely on the state plan because the plan is advisory and had not been incorporated into the regulations.
Citing specific sections in the state plan, the judge ruled that it is intended to be used by municipalities in creating “their own plan of conservation and development, upon which its regulations should then be based.”
The judge cited several cases in which local commissions acted based on their own town plans, but said “no court has dealt with whether an inland wetlands commission may base the rejection of an application on the state plan.”
There is no provision of the Redding inland wetlands and watercourses regulations, according to the ruling, referenced as a basis for the “nonconformance” the commission cited in its denial.
The court found, according to the document, this reason to be “illegal, arbitrary and an abuse of discretion.”
“The real issue is what is the effect of the state plan of conservation and development on any application in Redding involving watershed property,” said Neil Marcus, attorney for the applicant. “The bulk of Redding is in the watershed, so this is an important decision as to the interplay of the state plan with any property owner in Redding.”
Mr. Marcus said he was “dismayed” when that was given by the commission as a reason for denial, but was “pleased” when the court ruled it was improper.
“To me, that was one of the key issues in this case,” he said.
Disputed fees
The second condition the Conservation Commission cited as a reason for its denial of the application — a condition the judge overturned — was a dispute over application fees.
According to the document, the Harsches argued that the commission rejected the present application due to unpaid fees in a previous, withdrawn application.
Because the town has taken civil action against the developer, Three Levels Corp., seeking to collect the fees from the first application, the judge considered this reason a matter that can be resolved.
“Those were kind of two left hooks that came out; this was a prize fight that came out of the blue, and they clipped us in the jaw, but they were illegal punches,” Mr. Marcus said.
As for the Harsches’ argument that the Conservation Commission denied the application as a pretext to prevent the construction of affordable housing in town, the judge found that no evidence or legal authority was provided to support that claim.
According to the ruling, “the judge had substantial evidence to reject the application for incompleteness.”
The six remaining reasons why the commission denied the application pertained to its land use consultants not receiving information they requested to make their recommendations. Essentially, the application was incomplete, the judge agreed.
“So there was no substantive reason for denial. The court did not find that this application posed any threat to the environment; all they found was that the commission had a right to access the information,” said Mr. Marcus.
Mr. Marcus said his clients’ plan has changed from what was originally proposed to the Conservation Commission, so it will have to go back with a new application in the future.
“Having made those changes,” he continued, “we would have had to go back because we made some changes that came out of zoning’s review. But as a result of that, there are less regulated activities than before.”
It’s a problem when commissions overlap, he said.
“So this makes a lot of sense at this point. The application to wetlands will be much more focused ... I’m looking forward to getting this thing done.”
Mr. Marcus also made note of the current situation with the delay of the Gilbert & Bennett Redevelopment project in Georgetown, because of which the town lost revenues. This is one project, he said, that could add to the tax rolls.
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