Three years have transpired since Baywing, LLC first announced its goal to develop a 70-unit apartment building at 19 Cannon Rd., in the heart of Cannondale. When its application for a sewer extension was denied by Wilton’s Water Pollution Control Authority (WPCA) in January 2024, Baywing’s plans appeared to be defeated.
But Baywing did not accept ‘no’ for the answer.
“It’s not going to derail the application,” Baywing’s attorney, Tim Hollister, warned at the time.
He may have been right. Baywing sued the Town — and won.
Now, in the Town’s latest move to prevent the development from proceeding, the Town has just filed an appeal in the state appellate court. (The complete history of the ongoing litigation can be found online.)
If the Town’s appeal is unsuccessful, the Town will have to allow Baywing the sewer extension, paving the way for the application to proceed through other Wilton land use boards, including the Planning and Zoning Commission (P&Z), whose approvals are still needed.
The case highlights a number of strategic challenges for Town officials and residents, including:
- the fraught decision-making by the WPCA — and the legal risks that come with it — as the WPCA wrestles with how to best manage the Town’s dwindling sewer capacity
- the Town’s appetite for more multifamily housing, considering several other new developments have been approved since Baywing first introduced its proposal (and others that may be approved soon)
- the impact of the 8-30(g) affordable housing statute, which would enable Baywing to effectively sidestep Wilton’s zoning regulations that P&Z could otherwise use to influence or deny the application (Baywing initially envisioned 30% of the units would be affordable)
- the Town’s commitment to and implementation of the Plan of Conservation and Development (POCD), which calls for a greater diversity of housing stock and identifies Cannondale as a potential area for sewer growth, but also calls for a Cannondale Master Plan and preservation of the neighborhood’s “historic character”
Historical Context
The property has a rich history dating back to the 1800s, with owners in the Dudley, Cannon and Ambler families, among others, according to the state of Connecticut’s Historic Resources Inventory. It is also listed in the National Register of Historic Places as a “contributing property,” according to Wilton’s Historic District & Historic Properties Commission Chair Lori Fusco.
The property is in very close proximity to Cannondale Village and other historic buildings in the area, such as the Cannondale train station directly across the street, and the Cannon Grange, next door. Technically, however, the property is not in one of Wilton’s designated historic districts, and it also appears to fall outside of P&Z’s “village district” designation for commercially-zoned areas of Cannondale. (Although it’s located in a residential zone, the property was previously approved for commercial/office use.)
Project Background
GOOD Morning Wilton reported extensively on Baywing’s initial concept, beginning in November 2021, when Baywing first floated its plans for the 2.16-acre property.
GMW also reported on the progression of discussions that took place from November 2021 to October 2022 between Baywing and Town boards as Baywing sought the Town’s feedback leading up to its formal application with the WPCA.
At that time, the WPCA — chaired by then-First Selectwoman Lynne Vanderslice — referred the matter to the Planning & Zoning Commission, a legal requirement known as an 8-24 referral. P&Z issued a “negative report” which cited nine reasons why P&Z recommended against the sewer application. (Wilton’s Historic District & Historic Properties Commission also weighed in during that time to oppose the project.)
Throughout the many discussions with Baywing’s team, town officials extensively considered technical issues about the sewer extension, including significant input from DPW Director/Town Engineer Frank Smeriglio. In addition to the broad question of the Town’s available sewer capacity under the Town’s contractual limit with Norwalk (where Wilton’s sewer flow is discharged), one fundamental issue was the ownership of the pump station and a force main that would be needed for the sewer connection.
Some of those critical issues were first raised in the WPCA’s Jan. 12, 2023 meeting. Just one week later, on Jan. 19, 2023, the WPCA voted to reject the sewer application.
In addition to the short time lapse between the Jan. 12 and Jan 19 WPCA meetings, the process the WPCA followed in the Jan. 19 meeting — in which the applicant team was not permitted to speak before the WPCA’s vote — would later prove to be crucial in the court’s decision.
The Litigation
On May 24, 2024, the superior court in Hartford found in favor of Baywing and against the WPCA’s decision.
The 58-page decision detailed several reasons for the decision, including the following key opinions:
- The WPCA denial was “not supported by substantial evidence”: This included Smeriglio’s recommendations to the WPCA on questions related to capacity as well as ownership of the pump station and force main, which the court found to be “personal opinion” and “not supported by any evidence.”
- The WPCA’s decision was “arbitrary” and “an abuse of its discretion”: The court’s decision focused on the Town’s references to “policies” and “practices” that were “contrary to its past practice and nowhere stated in its regulations or even revealed to [Baywing] until the Jan. 12 meeting.” The fact that the WPCA had approved a similar application in 2011 for a sewer extension in Cannondale Village (which was never pursued by the developer, but was never revoked by the Town) also led to the court’s conclusion that the WPCA denial was arbitrary.
- The WPCA action lacked “fundamental fairness”: The court found the WPCA had acted with “a blatant disregard for fundamental fairness” by not giving “reasonable opportunity” for Baywing’s team to address the concerns the Town raised in the Jan. 12 meeting before the WPCA’s Jan. 19 vote. The court decision found “the chair’s [Vanderslice’s] comments at the outset of the meeting” and “conduct at the meeting, ignoring [Baywing’s] counsel… and then voting without discussion are facts that lead the court to conclude [the WPCA] made a conscious choice not to honor its agreement” with Baywing about how the Jan. 19 meeting would proceed.
The P&Z input in the 8-24 referral also factored into the court’s decision. P&Z’s reasons for issuing the negative report were characterized in the court’s decision as “principally related to the increased density that [Baywing] proposed in a single-family residential zone, and to the fact that the commission had not completed a study anticipated by the POCD for the Cannondale area.” However, the P&Z opinion ultimately hinged on the basic notion that their deliberations were bound by the regulations in place at the time for a single-family home — which would not require a sewer extension. (A formal application for the 70-unit building had not been submitted to P&Z, and thus the commission felt it had no basis for considering a hypothetical future use.)
Town’s Appeal
Very shortly after the court’s May 24 decision in favor of Baywing, on June 13, Wilton petitioned to appeal the court’s decision.
In arguing for the appeal, Wilton attorney Peter Gelderman (of Berchem Moses PC) pointed to what he considered flaws in the court’s decision, asserting that:
- It substituted its judgment for what should have been the WPCA’s purview on the various technical aspects of the sewer extension
- The WPCA’s process was “eminently fair” and allowed “ample opportunity” for Baywing to present its case and respond to the Town’s concerns. Although Gelderman admitted the WPCA’s process “wasn’t perfect” — particularly the Jan. 19 meeting, which Gelderman conceded “could have been conducted differently” — he asserted it was not tantamount to unfairness.
- The court should not have considered the WPCA’s 2011 approval of a similar application in Cannondale as a precedent. The previous application represented “a different set of facts at a different time” and was based on recommendations by a different engineer.
On Nov. 6, the appellate court granted Wilton’s petition to appeal. Wilton filed the appeal on Nov. 19.
Looking Forward
If the appellate court upholds the earlier court’s decision, the matter will be returned to the WPCA to approve the sewer application. It’s unclear how the “impossible” conundrum of ownership and responsibility for the pump station and force main would be handled to the Town’s satisfaction.
Any eventual sewer allocation for 19 Cannon Rd would be inconsistent with the WPCA’s new policies, which prioritizes allocations for the growth of existing businesses (like ASML), the transit-oriented district (TOD) around the Wilton train station, Wilton Center, and Danbury Rd. areas.
Town officials did have the foresight to anticipate the possibility that the courts could resuscitate 19 Cannon Rd. application. In the WPCA’s sewer capacity planning, the allocation for 19 Cannon Rd. was essentially “reserved” among other potential projects that the Town accounted for in its latest calculations of available capacity.
At 70 units, the Cannon Rd. project would be markedly smaller in scale than either the proposed Kimco development in Wilton Center or the Toll Brothers development near the Wilton train station. Still — and although Wilton’s DPW has been working diligently to free up additional sewer capacity through a massive effort to identify “inflow and infiltration” and repair the sources of excess flow — any new sewer allocation risks edging Wilton ever closer to the maximum allowed flow under the current agreement with the City of Norwalk.
The WPCA’s next meeting is on Dec. 11. It is unlikely the members will discuss the matter outside of executive session. GMW will update readers when the appellate court decision is announced.
Editor’s note: the information regarding the prioritization of sewer allocations was edited slightly to make the point clearer. No information was changed or deleted. Also the headline was edited to make clear that Wilton has filed an appeal against the decision that allows the development proposal to move forward.