More than one year ago, the family of the late jazz musician Dave Brubeck submitted a land-use application to reconfigure six residential lots on Hickory Hill Rd. and Millstone Rd., which are part of a 20-acre property the family has owned for decades through the Brubeck Trust. After months of hearings, site visits, public hearings, testimony and deliberation, the Inland Wetlands Commission on July 24 granted approval to only a portion of that application, denying proposed development on four of the lots.

Now, the Brubeck Trust has filed a court appeal of that Inland Wetlands Commission decision, saying in a statement released to the press Tuesday, that the Commission’s ruling “…in effect denied their application to locate potential homesites, septic systems, wells and access ways on six existing, separate residential lots on Hickory Hill Road and Millstone Road that they have owned since the 1960’s.”

The original application made its first appearance on an Inland Wetlands Commission meeting agenda on June 9, 2016, with its first public hearing three months later on Sept. 22 of that same year. The application stated, “The proposed lot development is expected to preserve the existing functions of the wetlands while allowing for reasonable use of the six existing lots.” The reconfiguration of lot lines would, “…create a layout that allows the lots to be developed with less impact to the wetlands and watercourses than would be required under the current configuration.”

The six lots are located on land that includes a sizable portion of wetlands, including “a large central wetland corridor of about 3.3 acres … that bisects the site and the two isolated wetlands in the western portion of the premises,” according to the application. Included on the property are sections of the Comstock Brook, Spectacle Lane Brook and another unnamed waterway. The lots are also located within the public watershed boundary.

The press statement emailed by the Brubeck Trust’s lawyers at Gregory and Adams says that the Brubeck family was accommodating to all requests made by the Commission.

“During the year-long review process the Brubeck family went to great lengths to revise their plan to be very environmentally sensitive. They made numerous changes and compromises in response to questions and suggestions from the Commission and from the independent expert engineering/environmental consultants selected by the Commission. The Brubeck family even agreed that eight of the 20 acres comprising the six lots would be a permanent conservation area.”

The statement also asserts that the Brubeck family had agreed to make all of the material changes requested by the Town’s independent expert engineering/environmental consultants, and that the town expert didn’t object to the final plan they presented.  “As a result of those changes and compromises, the Town’s independent expert consultants had no material issues with the final plan for the six lots or any objections to it.”

Alleged Conflict of Interest

As part of Tuesday’s statement, the Brubeck family and their attorneys noted that they “… were surprised and disappointed to learn just before the end of the year-long review process that one of the Commissioners had an undisclosed serious conflict of interest.  When we discovered this conflict, that Commissioner was recused, though most of the deliberations on our application had already taken place.”

This declaration referred to an unusual event that occurred at the end of June 2017, when the Brubeck Trust attorneys asserted that one of the commissioners had a conflict of interest. Commissioner Liz Craig–who had been acting chair of the Commission during the months-long discussions–also serves as the secretary of the Norwalk River Watershed Initiative (NRWI). The NRWI had submitted a letter opposing the Brubeck Family’s application. Craig said that the letter had been written by the organization’s president, Louise Washer, with no input from any other NRWI board members, and that she believed her role as Board secretary would have no impact on her opinion of the matter. Despite this, she then recused herself from the application, leaving only four remaining Inland Wetlands commissioners to render a decision.

That decision left the Brubeck family “perplexed,” although the statement says the family “…appreciates the time and energy the volunteers on this Commission devoted to this application.”

They hope to obtain a court order that will allow them to develop what they say will be “six environmentally sensitive homesites on their six long-time existing lots.”

The statement was signed by Richard S. Jeweler, a trustee of both the David W. Brubeck Trust, the Iola W. Brubeck Trust, and Derry Music Company.