Two weeks ago (Feb. 10), the Planning and Zoning Commission heard a sharp, buttoned-up presentation from attorney Liz Suchy on behalf of a proposed 55-acre, five-lot subdivision on Cannon Rd.. The application divided the property into five 2-3 acre parcels slotted for development, and one 40-acre parcel that wasn’t going to be developed–at least not now.

During the most recent P&Z meeting on Monday, Feb. 24, another attorney, Patti Frisch, who represents three neighbors of the property, spoke in opposition to the application, making her own tightly-crafted objections that raised several challenges to the proposal that she said were backed up by case law, state statute and town regulation.

Suchy seemed to anticipate some of what was coming before anyone from the public spoke. She referenced a letter that had been submitted to the commission which questioned a private agreement and deed restriction. She told the commission it couldn’t really even consider any such agreements or deed restrictions.

“You are a creature of statute and are given certain obligations, rights responsibilities and authority, and can only act in accordance with the statutory provisions and powers given to you,” she said, adding, “Deed restrictions, are not within your authority or jurisdiction to consider or evaluate or make determinations on.” She cited case law as support for her position that planning boards cannot consider private deed restrictions when deciding to approve or deny.

That statement was in reference to a letter sent by another attorney, Wilton resident Kelly Morron. In that letter Morron wrote about deed restrictions placed on the land by its owners in 1929, restricting any future buyers of the land from negatively impacting the quality or quantity of water downstream from the property. She suggested that unless the commission determined whether those deed restrictions had been removed or resolved, it stood to put the town at a liability if it approves the application.

Town planner Michael Wrinn told the commission he had spoken with town counsel, who confirmed and agreed with Suchy’s position, saying, “It’s not your obligation to deal with private agreements and deeds.”

Morron, who was also at the hearing, raised another objection. She described finding a warranty deed of sale and mortgage deed at town hall which she said called into question whether or not there would be further development on this property beyond the proposed five lots.

“What I found in the town records, in addition to the warranty deed of sale, is a mortgage deed between the parties and the mortgage deed is in the amount of $1,650,000 and that does not address the $750,000 that was identified in the warranty deed. Also, I found the MLS listing for sale of the property which describes the number of lots as 15, that the purchaser can develop one or can develop 15 but there are sufficient lot numbers for 15 lots,” she said, adding, “There is evidence that there is more development planned.”

That issue–and more–was fully explored by Frisch, who spoke for close to half an hour, presenting an argument for why the commission should deny the application as presented or take very specific steps to require much more

Frisch was there as the lawyer representing neighbors Donna Benenson, Alexander Benenson and Fred Benenson. Donna Benenson owns what Frisch said was “the historically significant property” immediately to the south of the proposed subdivision, with an 18th-century home, orchards, and significant mature trees that are included in the CT State Historic Preservation Office’s inventory of historic resources of the state.

She raised three issues for the commission to consider.

Issue 1:  Five Lot Application with Six Lot Division

Frisch said the application was for a five-lot subdivision of the 55-acre tract of land,   which the applicant was proposing to divide into six separate parcels. She said the sixth parcel (“Parcel 6”) would be a rear, 40-acre parcel with no legal access to Cannon Rd.–something that would be in violation of Wilton’s zoning regulations and Wilton’s subdivision regulations.

Frisch described Suchy original presentation two weeks ago as one in which she asked the commission to “pretend” that the applicant would be dividing the original parcel into only five parcels, simply because the application includes a statement that he does not currently propose to develop Parcel 6 as a building lot and that he has no development plans or other use for that acreage.

This, she said, was counter to the very particular way Connecticut law defines ‘subdivision,’ as “…the division of a tract of land into three or more parts for the purpose, whether immediate or future, of sale or building development–expressly excluding development for municipal, conservation or agricultural purposes, but including re-subdivision.”

“The question is, is this a subdivision–not, is each component part meeting this test?” Frisch asked.

She argued that one parcel can’t be exempted from the zoning regulation or the scrutiny of the P&Z commission as a result.

“The application states that the property the developer wants to subdivide is a 55-acre parcel–not a 15 acre parcel. Six separate parcels, not five, will appear on a signed and recorded subdivision map, if this commission approves the application as submitted. All six parcels–not five–will owe their existence to this commissions decision on this application. The law does not give landowners the option of deciding that one parcel that is physically created by a subdivision is at the same time not part of the subdivision,” Frisch said.

As support, she cited a recent case in which the courts decided a similar application must fail–a case, in fact, that concerned another proposed subdivision in Wilton. That case was Brubeck vs. the Town of Wilton, and the court decided in favor of the Town. In other words, Frisch was saying, in that case Wilton had been arguing that the applicant couldn’t subdivide property and leave one parcel out of the subdivision.

“The court held that an applicant cannot materially utilize a subdivision or re-subdivision to create a separate lot, and at the same time maintain that the new lot is not part of the subdivision or re-subdivision. As the court stated, ‘They simply cannot have it both ways.’”

Approving the current application for Cannonwoods, Frisch said, the town would find itself on the other side of the same argument.

Frisch said the applicant had made “self-serving statements” indicating there were no development plans for Parcel 6–statements the commission shouldn’t believe.

“Read carefully, the applicant’s statement could mean nothing more than that the applicant has not yet created a development plan–not that it’s not for that purpose. Couple this with developer’s statement that it ‘reserves the right to return to the commission’ if and when it decides to go ahead with development plans for Parcel 6, and the applicant’s silence about whether or not Parcel 6 is for sale now or in the future, the applicant’s assurances are not persuasive,” Frisch said.

Not only is the lot not being left undeveloped, Frisch listed what she said were facts that point to it being precisely for development:

  • the applicant is a developer–”he builds homes, that’s his business.”
  • The property was listed for $2.4 million, described as being sub-dividable into 15 lots. The applicant purchased the entire property, not just the front 15 acres, for $750,000 in cash, and a promissory note to the seller for $1,650,000. Frisch said she didn’t have details or proof but that she’d heard “anecdotally” that payment on that note will only come due if and when the applicant is able to get approval for additional lots–for up to 10 additional lots. Even though she said she doesn’t have evidence, “There’s enough in the record to ask questions we believe are worth asking.”
  • She said the lot lines were drawn in such a way as to allow the driveway extension into Parcel 6, similarly to how it had been drawn during a prior (failed) application on the same property–an application had been for 15 lots. This would connect Parcel 6 to Cannon Rd.

As a result, said Frisch, the inference is that all six parcels are intended for sale, development or re-subdivision. Therefore, the commission cannot approve the application, which is only for a five-lot subdivision.

Frisch said her clients are not opposed to development. Rather “They are in favor of rational, sensible, lawful development.”

If the commission were to ignore Frisch’s arguments and approve the application, Parcel 6 would be a “contiguous property.” Under Wilton regulations, the developer would have to provide a sketch of future layout and streets for planning purposes.

Overall, Frisch argued that the application does not comply with state statutes or town zoning and subdivision regulations, and “if the commission accepts and approves the application as submitted, it would be approving an illegal six-lot subdivision that we think would not withstand appeal.”

Issue 2:  Protect the Trees

Frisch described the significant numbers of mature trees of a variety of species–including 100-150 year old sugar maples and other heritage trees–in a 50-foot swath of land running along the boundaries between her client’s property and two lots in the application.

She asked that if the subdivision is approved and development proceeds, she wants the commission to request the applicant protect the trees during and after construction activities.

“These beautiful and irreplaceable trees are immediately adjacent to the Benenson farm, and have their own value as historic resources worthy of preservation for the benefit of the town,” she said. Frisch argued that the trees also prevent stormwater runoff, erosion, pollution and facilitate drainage; provide windbreak for the Beninson property–home to USDA endangered wildflowers and grasses; and provide protection for pollinators on which the orchards of antique apple trees on the Benenson property depend.

Frisch also said that while other trees on the property to be developed are protected because they’re near wetlands, this swath of land next to the Benenson farm doesn’t have wetlands protection–unless the commission takes action. Future owners of those lots could remove them, whether to expand lawn, expose stone walls, or add playgrounds.

Frisch said the commission had the authority to modify the plan to preserve the trees, and require the applicant to provide measures for their lasting preservation, by granting a 50-ft conservation or restrictive easement along those two lots. Such restrictions could hold for both the applicant and any subsequent owners.

She suggested making the applicant provide a “tree preservation bond” (as per regulations) for the construction period, and require any future land owners to have to seek site plan approval from P&Z for any landscape or construction activities on those lots.

Issue 3:  Open Space

Frisch also argued that the seven acres set aside as open space by the applicant, as required by Wilton’s regulations, were not in compliance with what was required–either in terms of access by the public or by the subdivision residents.

“The applicant has not committed to convey the open space to the owners of the lots or to a non-profit land conservation trust or to the town of Wilton. But states instead that it will continue to own the property. This is directly contrary to section 4.5 of the subdivision regulations,” Frisch said.

Frisch also addressed what Suchy “argued forcefully” for at the last meeting and in her application papers–that the commission has limited authority to deny the application. “She [Suchy] cites case law for the proposition that the commission should ‘simply determine  whether the subdivision application conforms to the existing subdivision regulations.’”

Frisch quoted sections of the zoning regulations which she said actually gave the commission more authority over the applicant, by making specific conditions or requirements–for example on the location and character of the open space, or on protections of the mature trees.

She later added that while the commission is administrative rather than legislative, and bound by the existing subdivision regulations, “[The commission] is just as bound to deny an application that does not comply with the regulations as it is to grant one that does, and we don’t think that the case law cited by attorney Suchy limits the commission’s role to one that is as perfunctory as she would suggest.”

Would Public Hearing Be Continued?

Suchy asked for time to be able to review Frisch’s brief and presentation, and return to offer rebuttal at the next P&Z meeting. This request prompted a back-and-forth over whether or not that constituted a continuation of the public hearing–which Frisch wanted to allow for possible rebuttal to Suchy’s rebuttal or for other members of the public to comment, but Suchy argued that the applicant rebuttal should be the final word.

In the end, P&Z Commission chair Tomasetti decided that the hearing would be kept open for one more meeting, to allow the commission to consult with town attorneys on the case law presented by both sides. Vice chair Melissa-Jean Rotini suggested that the commission could also set the next meeting as a deadline for comments from the public so that the hearing wouldn’t be extended beyond that.

“To be fair to all parties, that would make sense,” Tomasetti said.

Editor’s note:  The article was updated to clarify the reference to deed restrictions and agreements in the early part of the article. The deed restrictions and agreements related to moves made by the property owners in 1929, and not to any purchase agreements related to the recent purchase of the property by the applicant.