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Landmark Development Group, LLC v. Water and Sewer Commission of Town of East Lyme

Court of Appeals of Connecticut

August 21, 2018

LANDMARK DEVELOPMENT GROUP, LLC, ET AL.
v.
WATER AND SEWER COMMISSION OF THE TOWN OF EAST LYME

          Argued April 10, 2018

         Procedural History

         Appeal from a decision by the defendant commission granting in part the plaintiffs’ application for sewer treatment capacity determination, brought to the Superior Court in the judicial district of New London and transferred to the judicial district of Hartford, Land Use Litigation Docket, where the court, Hon. Henry S. Cohn, judge trial referee, granted the plaintiffs’ motion to supplement the record; thereafter, the court granted the petition to intervene filed by the Friends of the Oswegatchie Hills Nature Preserve, Inc., et al.; subsequently, the matter was tried to the court; judgment sustaining the plaintiffs’ appeal, from which the defendant and the intervenors, on the granting of certification, filed separate appeals to this court. Affirmed.

          Mark S. Zamarka, with whom, on the brief, was Edward B. O’Connell, for the appellant in AC 39804 (defendant).

          Roger F. Reynolds, with whom were John M. Looney, Jr., and, on the brief, Andrew W. Minikowski, for the appellants in AC 39806 (intervenors).

          Timothy S. Hollister, with whom was Beth Bryan Critton, for the appellees in both appeals (plaintiffs).

          DiPentima, C. J., and Alvord and Bear, Js.

          OPINION

          BEAR, J.

         This chapter of the protracted dispute between the town of East Lyme (town), and the plaintiffs, Landmark Development Group, LLC, and Jarvis of Cheshire, LLC, involves the plaintiffs’ application to the defendant,[1] the town’s Water and Sewer Commission (commission), for a determination of sewer treatment capacity. The commission appeals from the judgment of the Superior Court sustaining the plaintiffs’ appeal and ordering the commission to grant the plaintiffs’ application.[2] On appeal, the commission argues that the court (1) abused its discretion by allowing the plaintiffs to submit supplemental evidence to the court, and (2) improperly concluded that the commission abused its discretion by allocating to the plaintiffs 14,434 gallons per day in sewer treatment capacity. We affirm the judgment of the court.

         The following facts and procedural history are relevant to our disposition of this appeal.[3] The plaintiffs own a 236 acre parcel of land in the Oswegatchie Hills area of the town, on which the plaintiffs sought to construct an 840 unit housing development. Giving rise to the present appeal is the plaintiffs’ application to the commission for a determination of sewer treatment capacity, which the plaintiffs filed on June 1, 2012. In this application, the plaintiffs requested that 118,000 gallons per day of the town’s sewer treatment capacity be reserved for its proposed housing development in the Oswegatchie Hills. In a December, 2012 resolution, the commission found that the plaintiffs had requested a disproportionately large amount of the town’s remaining sewer treatment capacity and, therefore, denied the plaintiffs’ application. The plaintiffs appealed the commission’s decision to the Superior Court, which, on January 16, 2014, remanded the case to the commission for a clarification of its 2012 resolution (first remand). Specifically, the court sought clarification as to the amount of capacity the commission was willing to allocate to the plaintiffs and a justification for that amount. The court also ordered that the parties report back to court on March 17, 2014.

         Pursuant to the court’s January, 2014 order, the commission addressed the plaintiffs’ application at its February, 2014 regular meeting. Following the meeting, the commission allocated to the plaintiffs 13,000 gallons per day in sewer treatment capacity. The parties appeared before the court in May, 2014, to resolve, inter alia, whether the commission’s allocation of 13,000 gallons per day was an abuse of discretion. On June 23, 2014, the court sustained the plaintiffs’ appeal and remanded the matter to the commission (second remand). In reaching this conclusion, the court relied on Forest Walk, LLC v. Water Pollution Control Authority, 291 Conn. 271, 968 A.2d 345 (2009),[4] and Dauti Construction, LLC v. Water & Sewer Authority, 125 Conn.App. 652, 10 A.3d 84 (2010), cert. denied, 300 Conn. 924, 15 A.3d 629 (2011). The court found that the commission’s allocation of 13,000 gallons per day was "inappropriately low’’ for the following reasons: (1) the record did not indicate a specific amount of available capacity before considering the plaintiffs’ application; (2) the commission made no finding regarding the area of the plaintiffs’ development versus the land area of the town; (3) the commission based its decision on data that was not current; (4) none of the commission’s capacity for possible future development had been requested since the reserve for future development was created in 2004; and (5) the plaintiffs requested only a small amount of the commission’s remaining capacity.

         At its October 28, 2014 regular meeting, the commission again considered the plaintiffs’ application. On the basis of the factors set out in Forest Walk, LLC v. Water Pollution Control Authority, supra, 291 Conn. 295–96 (Forest Walk factors); see footnote 4 of this opinion; the commission derived a formula to determine what it considered to be an appropriate sewer capacity allocation for the plaintiffs. The formula provided: 358,000 gallons per day of available capacity divided by 5853 total acres of the town, is equal to X divided by 236 acres owned by the plaintiffs, where X equals the appropriate capacity to allocate to the plaintiffs. Application of this formula determined that 14,434 gallons per day of sewer treatment capacity was an appropriate allocation. The plaintiffs again appealed the commission’s decision to the Superior Court.

         On July 6, 2016, the court issued a memorandum of decision again remanding the matter to the commission (third remand). In its memorandum of decision, the court noted the following relevant procedural history: "In the present action, which was commenced on November 24, 2014, the plaintiffs . . . ask the court to review a grant of capacity of 14,434 gallons per day to the plaintiffs by the [commission]. On February 19, 2015, the plaintiffs filed their appeal brief. On March 16, 2015, the [commission] . . . filed its appeal brief. On March 30, 2015, the plaintiffs filed a motion for permission to supplement the record in an administrative appeal. The court heard oral argument on April 2, 2015. On the same day, the court granted the plaintiffs’ request, but only as to exhibit C, a letter from Mark S. Zamarka.

         "On July 23, 2015, the plaintiffs filed a motion to conduct further discovery [including the taking of a] deposition and to supplement the record. Specifically, the plaintiffs asked the court for permission to take the deposition of the [commission’s] administrator, Bradford Kargl, regarding the approval of the connection application by Gateway (a similarly-situated apartment complex being developed) where over 160,000 gallons per day capacity was contemplated. The motion was granted by the court on September 8, 2015. The deposition revealed that although Kargl was aware of the Gateway capacity need . . . and had a duty to monitor ...


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