Wilton Loses Appeal in Fight Over Proposed 70-Unit Cannondale Apartment Project

A Connecticut appeals court has just breathed new life into a proposed 70-unit apartment building at 19 Cannon Rd. in Cannondale.

After Wilton’s Water Pollution Control Authority (WPCA) rejected an application by Baywing LLC for a sewer main extension and allocation, Baywing sued the Town — and won. Wilton’s subsequent appeal was denied in a May 26 decision affirming the lower court’s ruling in favor of Baywing. (The entire litigation history can be found online.)

More significantly, the appellate court agreed with the lower court that the WPCA’s denial was “arbitrary and an abuse of its discretion” and that the Town’s reasons for denying the application “were not based on reliable evidence or supported by substantial evidence in the record.”

In a written statement to GMW, former First Selectwoman Lynne Vanderslice, who served as WPCA chair when the application was reviewed, called the appellate court decision “frustrating”.

“I don’t agree with the decision and continue to have confidence in the judgment of the members who were then serving on the WPCA, our advisors and the unanimous decisions made,” she wrote.

Project Background

Baywing first floated plans for the 2.16-acre property in late 2021. Discussions continued through 2022 as the developer sought informal Town feedback ahead of filing a formal application with the WPCA.

As required under state law, the WPCA referred the matter to the Planning and Zoning Commission through an 8-24 referral. P&Z issued a “negative report” citing nine reasons it recommended against the sewer application. Wilton’s Historic District and Historic Properties Commission opposed the project at that time.

The WPCA had to consider complex technical issues with the sewer extension, with significant input from former DPW Director/Town Engineer Frank Smeriglio. The focus centered particularly around 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 and processed), as well as a fundamental complication — ownership and maintenance of a pump station and a force main that would be needed for the sewer connection. 

Some of those concerns were first raised during a pivotal Jan. 12, 2023 WPCA meeting. Just one week later, the WPCA voted unanimously to deny the sewer application.

The Litigation

After the WPCA rejected the application, Baywing sued the Town. In May 2024, Hartford Superior Court Judge Matthew Budzik ruled in favor of Baywing and against the WPCA. The 58-page decision sharply criticized the Town’s handling of the application and included several key opinions:

• The WPCA action lacked “fundamental fairness”: The court found the WPCA had acted with “a blatant disregard for fundamental fairness” by not giving Baywing “reasonable opportunity” to address the concerns the Town raised in the Jan. 12, 2023 meeting before the WPCA’s Jan. 19, 2023 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. [Vanderslice strongly disputed the court’s characterization of those events and other findings, as discussed later in this story.]
• The WPCA denial was “not supported by substantial evidence”: The court found Smeriglio’s recommendations to the WPCA regarding sewer capacity as well as ownership of the pump station and force main amounted to “personal opinion” and was “not supported by any evidence.”
• The WPCA’s decision was “arbitrary” and “an abuse of its discretion”: The court found the Town relied on “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 court also pointed to the WPCA’s approval of a similar application in 2011 for a sewer extension in Cannondale Village (for a project that was never pursued by that project’s developer but never subsequently revoked by the Town) as evidence that the WPCA denial was arbitrary.

Wilton’s Appeal

In the Town’s appeal of the lower court ruling, 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 gave Baywing “ample opportunity” to respond to the Town’s concerns. Although Gelderman acknowledged the WPCA’s process “wasn’t perfect” — particularly the Jan. 19 meeting, which Gelderman conceded “could have been conducted differently” — he argued it did not amount to unfairness.
• The court should not have considered the WPCA’s 2011 approval of a similar application in Cannondale as a precedent because it represented “a different set of facts at a different time” and was based on recommendations from a different engineer.

Ultimately, the appellate court rejected the Town’s arguments.

“After a thorough and careful review of the record presented to us in this appeal, we agree with the court’s conclusion that the defendant’s [Wilton’s] denial of the plaintiff’s application was arbitrary and an abuse of its discretion,” the appellate court wrote.

“The defendant’s stated reasons for its denial of the plaintiff’s application were not based on reliable evidence or supported by substantial evidence in the record, and the plaintiff was not afforded the opportunity to respond to the concerns of the defendant,” the court further stated.

Reaction to the Decision

Current First Selectman and WPCA Chair Toni Boucher was disappointed but defended the WPCA’s intentions and indicated the WPCA was prepared for such an eventuality.

“The WPCA always tries to act in the best interests of the Town of Wilton,” she wrote in an email to GMW. “The WPCA and hopefully all Wilton’s land use bodies will continue to make the best decisions possible for the Town in accordance with the law.”

“While the Town is disappointed at the Appellate Court’s decision, we must respect it,” she continued. “In this case, the Court found that the WPCA’s decision was not supported by sufficient evidence in the record. The Town has in fact held sewer capacity in reserve to be safe in the event of [this] unfavorable outcome.” 

Boucher was referring to Wilton’s sewer flow calculations which include “reserve” estimates for projects that are approved by the Town before they are constructed or operational. Even though they were never developed, reserve allocations are currently held for approved projects at 300 Danbury Rd. (the former Crossways shopping center at the intersection of Ridgefield Rd.) and even a 2011 application for 24 Cannon Rd. (Cannondale Village).

More specifically, the appellate court said, “We agree with the reasoning set forth in the court’s decision. The record lacks substantial evidence that the proposed use from the approved but never constructed 2011 Cannondale Village should have been included in the calculations to determine the pipe capacity.”

Vanderslice says that determination could “open the door” for developers to argue that Wilton’s town-wide sewer flow calculations are overstated.

“What popped out to me was the Appeal Court’s upholding of the lower court’s finding that the approval for 24 Cannon Road ‘had been abandoned due to the passage of time’,” Vanderslice wrote.

“I believe that opens the door for a future developer of any property to claim there is more sewer capacity available for allocation,” she wrote, noting the available sewer flow calculations are regularly updated at WPCA meetings.

According to the latest analysis, Wilton’s annual average town-wide sewer flows are hovering near 640,000 gallons per day — just below the Town’s contractual limit of 650,000 gallons with Norwalk.

Vanderslice also rejected the appellate court’s finding that Baywing “was not afforded the opportunity to respond” to the Town’s concerns about the application at the pivotal Jan. 19 WPCA meeting.

“I 100% disagree with their statement,” she said in a phone call with GMW. “We were going to vote on [Jan. 12]…. we let the [applicant] send us comments, we saw his comments, I just didn’t let him present all over again.”

“It’s going to define Cannondale”

If the project is ultimately built, Vanderslice said it will permanently re-shape Cannondale.

“It’s going to be a big apartment building,” she said. “When this thing gets built in Cannondale, that’s going to define Cannondale.”

Concerns about long-term planning in Cannondale have shadowed the proposal from the beginning. In March 2022, then P&Z Chair Rick Tomasetti warned that Wilton had not adequately planned for future development in the area, despite references to a Cannondale Master Plan in the Town’s 2019 Plan of Conservation and Development.

“It seems sort of natural to have development there, but we haven’t planned for orderly development,” he said. “Once again, we’re playing catch-up to developers.”

While a pre-master planning study was recently completed by Wilton’s Historic District and Historic Properties Commission, a full Cannondale master planning process has not yet begun.