Restrictive Covenant at Center of Debate Over Development of School Sisters Property

Can the Town of Wilton enforce a restriction limiting expansion of the former School Sisters of Notre Dame property on Belden Hill Rd.? The answer depends on how a four-page agreement drafted and signed by the School Sisters over 13 years ago is interpreted — and on whether the School Sisters have the power to simply tear that agreement up. And that question has become a point of contention in the debate over the property’s development.

Town counsel says Wilton has no standing to enforce the restriction and that the School Sisters could probably release it before selling the property. Neighbors and a former Planning and Zoning commissioner who served on the Water Pollution Control Authority when the agreement was drafted argue that the restriction represented a promise to limit development in exchange for access to the town’s sewer system.

The document at the heart of the question, which was entered into the Wilton land records in June 2013, is titled simply “Declaration of Land Use Restrictions.” Drafted by the SSND Real Estate Trust, which owns the 38-acre parcel near the corner of Belden Hill Rd. and Wolfpit Rd./New Canaan Rd., the declaration establishes a 50-year restriction, extending to 2063, and includes the following provisions:

• The existing use of the property “as a nursing and convalescent home, assisted living facility, place of worship and school … may continue in perpetuity.”
• Future expansion of the existing buildings may not exceed 10% of the existing gross floor area.
• The property may only be used in ways permitted in the R2-A residential zone.
• Should the trust sell the property, the covenant will be included in the transaction instrument.

As developer Hines SL Wilton Associates LP seeks input from Wilton’s Planning and Zoning Commission (P&Z) for its proposed construction of a 280-unit continuing care retirement community (CCRC) on the site, the covenant’s history and potential enforceability outlined in the declaration have drawn renewed attention and appear likely to become a central part of the narrative for both supporters and opponents of the proposal. Knowing more about that covenant is important to understand what’s at stake.

2013: Origins of the Restrictive Covenant and the Sewer Line Extension

Although the terms of the restrictive covenant focus on the development of the property, its origins appear connected to something else intimately bound up with land development in Wilton: access to the town’s sewer system.

In 2012, the town’s Department of Public Works (DPW) undertook planning to extend the city sewer system to the Miller-Driscoll School on Wolfpit Rd. as part of major renovations of the school building, after it was determined that a sewer connection would be significantly less expensive than upgrading the school’s failing septic system.

When the planned extension was announced, the School Sisters contacted the town and asked whether it would consider extending the line further to connect their buildings to the system as well.

Then-First Selectman and WPCA Chair William Brennan and an engineering consultant met with School Sisters President Kathleen Cornell in March 2013 to discuss the proposal. It would involve running a smaller-diameter feeder line from Miller-Driscoll to the School Sisters property at an estimated cost of just over $300,000.

The School Sisters would pay for the construction, which would then be credited against the property’s sewer assessment. The town would also assume the costs of maintaining the new line.

A month later, during the WPCA’s Apr. 17, 2013, Brennan provided members with an update on the project, saying that then-Town Counsel Ken Bernhard was “working on an agreement with the attorney for the Sisters of Notre Dame.” Available documentation and subsequent public statements suggest that the agreement that Bernhard was working on was the declaration of land use restrictions.

But why would such an agreement be needed for a simple sewer line extension? The minutes of the Apr. 22, 2013, P&Z meeting, which took place a few days after the WPCA meeting, offer some context.

At that meeting, during a discussion about the proposed extension — which the Board of Selectmen (BOS) had referred to P&Z for mandatory review — then-Town Planner Robert Nerney “referenced some previously expressed concerns that granting such permission would convey to any future owner (if the SSND were to sell the site) the same legal right to connect to the sewer line on Wolfpit Road, which could potentially lead to a more intensive use of the site in the future.”

However, Nerney also noted that the School Sisters appeared to have no interest in either selling or changing the “hugely active and important” facility, which was close to full occupancy as a retirement facility and conference center at the time.

P&Z gave the proposed sewer extension a favorable review, and once a route was chosen, town counsel drafted the necessary temporary easement for the line’s construction.

The available documentation doesn’t explicitly establish that the town required the restrictive covenant in exchange for sewer access, or that the “previously expressed concerns” mentioned by Nerney motivated the town to seek assurance from the School Sisters about limits on future development.

The sequence of events, however, places the documents close together: Sister Kathleen signed the restrictive covenant on Jun. 10, 2013, and both she and Brennan signed the temporary easement a little over three weeks later, on Jul. 3.

No recordings or transcripts of P&Z and WPCA meetings from that time are available. There are no records of deliberations and discussions beyond the meeting minutes, nor is there any documentation identifying the source of the concern about future development on the site mentioned by Nerney. The records reviewed also do not explain why, even thought Bernhard was involved in drafting the restrictive covenant’s terms, the town itself was not a signatory to it.

2025: the Restrictive Covenant and Hines’ CCRC Proposal

Within six years of the installation of the sewer line, the School Sisters gradually began drawing down activities at the Wilton campus as the need for residential space diminished.

In 2019, the order closed the on-site nursing home and relocated around 20 retired sisters, saying at the time that it was in discussion with developers. Two years later, the School Sisters announced that they would close their Wilton campus altogether and relocate the sisters who still lived there to a retirement community in Bridgeport.

The matter rested there until May 2025, when Hines submitted its proposal for a CCRC — consisting of cottages near Belden Hill Rd. and a large three-story main complex with residences, memory care units and administrative facilities — to P&Z for a pre-application review.

The School Sisters’ declaration of land use restrictions was a focus of discussion at the first meeting on May 12. Director of Planning and Land Use Management (and current Town Planner) Michael Wrinn explained that the WPCA was seeking clarification from town counsel as to whether the restrictive covenant “is or is not in play [and] how does it impact what they’re doing there,” as well as whether the agreement was “binding upon the town.”

During the May 12 discussion, commissioner Ken Hoffman — now P&Z Chair — noted that Hines’ proposed development would increase the total floor space from 200,000 square feet to approximately 380,000, substantially more than the 10% expansion allowed by the terms of the restricted covenant.

Hines attorney Lisa Feinberg replied that her understanding was that the School Sisters were “fully prepared to release that restriction.”

P&Z Commissioner Eric Fanwick — who had been a WPCA member in 2013 when the town made the agreement with the School Sisters, asked a direct question.

“Excuse me, Attorney Feinberg, are you suggesting that the Sisters of Notre Dame represented that they would deed-restrict the land for 50 years in order to get access to our sewer, saving them millions of dollars to build their own private sewer, and then on their say-so and their say-so alone, without consulting the town, can release that deed restriction?” he asked. “If that is the suggestion, that is duplicitous in the extreme.”

“No, that is not what I’m suggesting,” Feinberg replied. “I’m sorry, it’s confusing. What I said was that because there was a separate agreement between the Sisters and the town related to the sewer, while the deed restriction itself is signed by them and those limitations, they can’t — we need the town to sign off on it. We cannot do it on our own.”

At the time, the exchange left unclear whether Feinberg meant the town needed to sign off on releasing the restrictive covenant or give permission for continued sewer use. The town’s position on the covenant became clearer a week later when Town Counsel Pete Gelderman subsequently reported his conclusions to the WPCA regarding the town’s obligations and standings.

In an opinion read by First Selectman Toni Boucher, Gelderman wrote that because the town government was not a beneficiary of the covenant, “[t]he town has no standing to enforce the restrictive covenant and the town has no legal interest in the restrictive covenant or its enforcement.” Also, “since the SSND voluntarily recorded the restricted covenant with no beneficiary and for no consideration, they could probably release it before conveying title.”

“There is no other party to the restrictive covenant, as there usually is,” Gelderman added during the meeting. “When there’s a declaration of restrictions or a restrictive covenant, it usually benefits some other party. But this particular document doesn’t reference any other party. So, there is no other party.”

Gelderman said that, in reviewing “50 or 60 pages” of documents submitted to him from then-Department of Public Works Director and Town Engineer Frank Smeriglio, he could find no purpose for the restrictive covenant “other than in the context of the [sewer] flows.”

“Ultimately the WPCA approved the connection but didn’t make the restrictive covenant a condition of that approval,” he said.

Gelderman also noted that the terms of the restrictive covenant do not include any enforcement mechanism.

“The fact that there’s no enforcement mechanism or no beneficiary simply means that the town is not in a position to enforce the deed restriction,” Gelderman concluded. “So, it’s a little bit of [an] unusual animal because there is no beneficiary and there’s nobody who can enforce it.”

GOOD Morning Wilton has submitted a Freedom of Information Act request to the town seeking copies of the documents that Smeriglio provided to Gelderman related to the drafting of the restrictive covenant and the temporary sewer easement. GMW will update the story when those documents are received.

2026: Renewed Application Renews Interest in Restrictive Covenant

The question of the restrictive covenant has reappeared following Hines’ decision to withdraw its applications for redevelopment of the property and seek another pre-application review by P&Z.

Because public comments are not permitted during the pre-application process, residents have turned to the BOS public comment periods to express their concerns.

Fanwick, now a member of Wilton’s Board of Finance, addressed the issue during the Oct. 5 BOS meeting. He argued that the School Sisters had promised to limit development in exchange for sewer access and should negotiate with the town if they wanted to develop the property further.

“[It] seems to me that the town owns the development rights to this property,” Fanwick argued. “And the difference in the value of the property between what is now being proposed and what is allowed in your current deed and zoning regulations should accrue to the town of Wilton. And nobody seems too concerned that we exercise our property rights. I would like to propose that the commission delay action on this application until it’s been referred to you.”

Several members of the Wilton Neighbors Alliance (WNA), which opposes the Hines proposal, expressed similar concerns at the Oct. 19 BOS meeting.

“There were many discussions that were documented in minutes in 2013 by WPCA and Planning and Zoning about granting the sewer access to SSND with the understanding by multiple commissioners that it was intended for the Sisters’ use until 2063, not for an intense use like what Hines proposes,” Alissa Brady said. “We purchased our home with the understanding that we were buying into a residential neighborhood, so we need the town to use its influence to remind the Sisters of their promise to us, the people in the town.”

Nicki LaMonica said that, while she understood that the town cannot enforce the terms of the restricted covenant, she urged the BOS to enter into discussions with the School Sisters and Hines to “encourage them to do the right thing and … keep them accountable to uphold this deed restriction.”

“If I can be so bold as to suggest, should the Sisters and the purchaser not be true to their word, can the town revoke their sewer connection and require the developer to create their own sewage treatment facility on their site?” she asked.

Jennifer Malloy encouraged the selectmen to “protect Wilton’s infrastructure and neighborhoods” by “actively asserting the 2013 deed restriction.” Malloy argued that the town and the School Sisters entered into “a mutually beneficial covenant” in which the School Sisters promised to restrict development for 50 years in exchange for access to the sewer system.”

Did the covenant represent a quid pro quo in which the School Sisters promised to limit development on the property for 50 years in exchange for gaining access to Wilton’s municipal sewer system? Whether that exchange was an enforceable condition of the sewer connection remains central to the disagreement.

The records reviewed by GMW document concerns about more intensive development and show that the covenant was recorded shortly before the sewer easement was signed. But so far, nothing has been found beyond Nerney’s 2013 comment about unspecified concerns, and no materials explicitly establish that the town conditioned sewer access on the covenant.

Gelderman’s stated position is that the School Sisters could probably release the covenant before selling the property, and that Wilton has no standing to enforce the restriction or prevent the School Sisters from tearing up the covenant, regardless of whether or not it wanted to.

Residents in opposition to the development are asking officials to challenge that position or use the town’s influence to hold the School Sisters to what they regard as a promise.