Lawyers Face-Off Over Sewer Extension for Cannondale, Leaving P&Z with Tough Choice

It was déjà vu all over again at the Planning & Zoning Commission meeting this week, with every project on the agenda being heard for at least a second time. By the end of the meeting, two long-running applications looked poised for approval. However, the outcome of the biggest discussion of the night — the 8-24 referral to extend sewer access along Cannon Rd. — won’t be known for another week at least.

This special meeting on Monday, Oct. 17 was a make-up for the Commission’s Tuesday, Oct. 11 session, which was canceled unexpectedly due to a technical problem on the town website.

Background on Sewer Proposal and 19 Cannon Rd.

GOOD Morning Wilton covered the history and latest developments in this controversial project earlier this month. Since the proposal’s resubmission in September, more than 40 letters have been received from members of the public, most of which express opposition to the project. Behind the 70-unit apartment complex that’s ultimately expected to be proposed on the site at 19 Cannon Rd. is a developer who seems likely to invoke Connecticut’s 8-30g affordable housing statute.

In a town like Wilton where less than 10% of available housing options are considered affordable, 8-30g effectively allows developers to sidestep local zoning if a project includes affordable housing units. In this case, it would allow the developer, Baywing LLC, to build a multifamily residential complex on a two-acre lot in an R-2 zone, where normally only a single-family home could be built.

The building itself was not the topic at hand, however. The application being discussed covers only the extension of sewer services needed “to facilitate a proposed multi-family residential development, consisting of 70 units.” It falls into the category of an 8-24 referral, a Connecticut statute that requires an opinion from the local planning and zoning commission for certain municipal improvement projects, such as the extension of sanitary sewers. The Water Pollution Control Authority (WPCA), chaired by First Selectwoman Lynne Vanderslice, issued the latest referral on the matter to P&Z on Wednesday, Oct. 12. P&Z has 35 days to issue a report recommending for or against the extension, and WPCA has 65 days in which to vote.

On a seemingly unrelated note, on Friday, Oct. 14, the Town issued a request for qualifications (RFQ) for a town-wide study of the sanitary sewer system. Reached by GMW, Wilton’s Director of Public Works Frank Smeriglio said sewer capacity analysis for new development, like the one submitted by Baywing for the 19 Cannon property, “doesn’t have to wait for this town wide study,” which he said would not be ready until late 2023. The matter of this town-wide study did not come up in the discussions at P&Z this week.

“My Turn to Be Snarky”:  Town Counsel and Developer’s Lawyer Face Off

The discussion Monday night kicked off with remarks by the developer’s lead attorney Timothy Hollister, a new addition to the applicant’s team and a staunch defender of 8-30g projects in Fairfield County. Hollister laid out a series of constraints that he argued the Commissioners must abide by in determining their decision.

He began by explaining that the application to WPCA concerns three items: 1) the 300-foot extension of the sewer line from Danbury Rd. to 19 Cannon Rd.; 2) the addition of 15,300 gallons/day of discharge from the theoretical future property at 19 Cannon Rd.; and (3) permission to connect 19 Cannon Rd. to the public sewer system.

However, he argued that in response to this referral, P&Z may only issue a report on the first topic, and in doing so, may only consider “whether this 300-ft sewer extension is ‘consistent’ with the POCD [Wilton’s Plan of Conservation and Development, issued in 2019]. The POCD, among many other topics, identifies this section of Cannondale as a potential sewer growth area.

Hollister reiterated a charge from his opening letter in the resubmitted application that the initial discussion at P&Z last March “went well beyond the proper focus of an 8-24 referral.”

“It veered into discussion of affordable housing and 8-30g and master plans, which — respectfully — we do not think are relevant to the discussion.”

In closing, he added ominously, “Your report is advisory… if there is a negative report, and if WPCA turns us down, we have a right to appeal to court. We are interested in what you do but it’s not going to derail the application.”

Peter Gelderman, Wilton’s Town Counsel, responded. “I would like to clarify a couple of things. The 8-24 statute doesn’t reference the POCD as the only consideration. It’s a planning tool, but acting in your planning capacity, you need to consider what the effect of this extension might be.”

He also disagreed with Hollister about the impact of P&Z’s report, citing language from the statute that if a commission disapproves of proposal, it should only move forward if it is approved by a two-thirds vote of either a City Council (where one exists), or — as in the case of Wilton — a two-thirds vote at a town meeting.

Finally, he alluded to his and Hollister’s long personal history on this issue. “We have a basic disagreement on this,” he said. “We’ve had it for a few years and on several projects.” Indeed Gelderman and Hollister have argued on opposing sides of several of the biggest 8-30g battles in nearby towns, including New Canaan’s Weed Street and Westport’s Hiawatha Lane.

After a lengthy back and forth in which Vice Chair Melissa-Jean Rotini questioned Hollister for more clarity on his argument for constraining P&Z to discussion of the POCD alone, Commissioner Chris Pagliaro expressed frustration with the choice being presented.

“I was part of the POCD [process],” he said. “When we talked about potential sewer extension areas, we also mentioned that Cannondale should be master planned. I understand you’re saying that’s irrelevant, but that master plan was intended to create a bucolic historic district.”

Chair Rick Tomasetti also seemed to bristle at Hollister’s attempts to restrain the Commission’s considerations as well. “One thing I find interesting about attorneys is they always point to case law. You’re telling me I have to go by what some judge decided or the outcome of a case some poor attorney didn’t argue properly. Frankly, I know that’s how the law works, but I don’t think it’s how our founders intended [us to work]. I’m elected and I’m supposed to be representing my constituents. If I believe something, I have the right to that opinion.”

Pagliaro would later add, “What’s frustrating to me is that we’re being told we’re not supposed to look forward. But given today’s facts, [the property] is just an R-2 zone, with a septic system like the one I have at my house. No one is asking me to change the zone there, they’ve just asked me to put water down there, so they can come back later and we can be ambushed.”

Hollister then responded. “Now it’s my turn to be snarky. How long is the applicant supposed to wait for your master plan? A year? Two? Three? Then your master plan says, by the way, make sure there’s no multifamily at this location. Waiting for the master plan is a hard criterion for a property owner to swallow.”

“I hear you, but by the same token, he bought an R-2 property,” Pagliaro replied.

The discussion wrapped up on pleasant terms despite the disagreements, with both sides expressing appreciation for the time spent on the topic. Town Planner Michael Wrinn confirmed for Tomasetti that if the Commission takes action at the next meeting, scheduled for Monday, Oct. 24, it will be within the 35-day window to respond to the WPCA with a report. Tomasetti requested that Planning & Zoning staff draft both an approval and disapproval report to be ready for that meeting, during which the Commissioners will deliberate.

Good news for Create Learning Center and Hartford Healthcare Corp.

The two other projects under consideration by P&Z during Monday’s meeting received positive—if preliminary—receptions from the Commission.

First up was Create Learning Center, which had applied for a special permit to increase its enrollment from 64 to 90 at the daycare’s 463 Danbury Rd. location, and a waiver to forgo a full traffic study as part of the application. At the Commission’s request, owner Sharon Cowley returned with a site plan and extensive traffic and parking data from this and the prior two school years.

Tomasetti opened the matter for discussion among the Commissioners but no further questions or concerns were brought up. After asking, “Does anyone see anything problematic here? I don’t,” he directed staff to prepare a resolution in favor of the application, to be voted on at the next meeting.

The final project considered that evening had a decidedly more tense history, but it also came to a relatively smooth conclusion. Over this summer, Hartford Healthcare Corporation applied for an alternative signage plan to add illuminated sign to the rear façade of its 50 and 60 Danbury Rd. complex for two new tenants, Advanced Radiology and Soundview Medical. The application also included new monument signage to guide visitors to the back of the building for these new tenants, but those signs were of less concern to the Commission.

Throughout four hearings, several Commissioners expressed concern about appending multiple corporate logos to non-retail commercial buildings in Wilton. As discussions grew increasingly prickly, HHC has remained steadfast in its insistence that the signs be in full color with tenant logos affixed to the building facades. However, following a particularly unproductive meeting last month in which the applicant’s attorney Jim Murphy threatened to “go legal” on the Commission if the signage were not approved as originally proposed, HHC submitted new designs. The updated application appeared to accede to the Commission’s request that, at a minimum, the signs be made monochrome rather than full color.

Although several Commissioners expressed remaining concerns about the signs, an unofficial tally of votes found only two Commissioners (Rotini and Warren) inclined to vote against the package. Tomasetti directed staff to prepare a resolution approving the updated signage package to be voted on next week.

He also underscored the need for a broader reevaluation of Wilton’s signage regulations, stating, “This is something we need to correct for in the future.”

Looking Ahead

Before concluding the meeting, Town Planner Michael Wrinn introduced several applications that will soon make their way to the Commission, including the new LDS Meeting House at 241 Danbury Rd. and a new 32-unit multifamily residential building at 12 Godfrey Place.

The next meeting of the Planning & Zoning Commission is scheduled for Monday, Oct. 24, which is expected to include votes on all three proposals discussed this week. On Wednesday, Oct. 26, the Greater Wilton Center Master Plan Subcommittee will meet for the final stages of its planning process. The next master plan is already gearing up for launch and will focus on town amenities. Finally, the Commission discussed scheduling a special meeting to focus on the town’s parking regulations at a date to be announced.