April 22, 2019
from the decision of the defendant denying plaintiff's
application for a sewer extension for an affordable housing
development, brought to the Superior Court in the judicial
district of Stamford-Norwalk and transferred to the judicial
district of Hartford, Land Use Litigation Docket, where the
matter was tried to the court, Shluger, J.; judgment
sustaining the appeal and remanding the application;
thereafter, following a hearing on remand, the defendant
denied the plaintiff's application, and the plaintiff
appealed to the Superior Court from the denial of its
application; subsequently, the court, Shluger, J.,
rendered judgment sustaining the appeal, from which the
defendant, on the granting of certification, appealed to this
court. Reversed; judgment directed.
V. Gelderman, for the appellant (defendant).
Timothy S. Hollister, for the appellee (plaintiff).
Prescott, Bright and Bear, Js.
defendant, the Water Pollution Control Authority for the Town
of Westport, appeals from the judgment of the trial court
sustaining the appeal of the plaintiff, Summit Saugatuck,
LLC, from the defendant's decision to deny the
plaintiff's application for a sewer extension to service
a proposed affordable housing development. The court remanded
the matter back to the defendant with direction to approve
conditionally the sewer extension application subject to the
completion of ongoing improvements and upgrades of capacity
to the sanitary sewer system in the town of Westport (town).
On appeal, the defendant claims that the trial court, by
sustaining the appeal and ordering a conditional approval of
the application, improperly substituted its own judgment for
the reasoned and lawful discretion exercised by the
defendant. We agree and, accordingly, reverse the judgment of
the trial court.
record reveals the following facts and procedural history.
The plaintiff owns property or options to purchase property
in an area of town that is zoned for high density development
to be served by the town's sewer system. The plaintiff
seeks to develop its property for multifamily residential
use. A sewer extension from the town's system is needed
to service the planned development.
October, 2014, the plaintiff, pursuant to General Statutes
§ 7-246a,  applied to the defendant for approval of a
private sewer extension for a proposed 186 unit affordable
housing development. Because a proposed sewer extension is
deemed a municipal improvement, the defendant referred the
application to the town's planning and zoning commission
(zoning commission) for a report pursuant to General Statutes
§ 8-24. See footnote 1 of this opinion.
January 8, 2015, the zoning commission held a hearing on the
plaintiff's application. Steven Edwards, the town's
public works director at the time, testified at the hearing
that the town's existing sewer system required repairs
and upgrades before it could handle the additional sewage
from the proposed development. Specifically, Edwards
explained that replacement of a force main running under the
Saugatuck River and one of the pump stations could take up to
five years. Edwards thought a reasonable goal for the
completion of the upgrade/repairs would be the summer of
zoning commission issued a negative report on January 26,
2015. The plaintiff elected to withdraw its application with
the defendant at that time.
plaintiff subsequently entered into an agreement with an
affiliate of the Westport Housing Authority (affiliate)
pursuant to which the plaintiff would develop eighty-five
market rate units and the affiliate would develop seventy
adjacent affordable housing units. On April 11, 2016, the
plaintiff reapplied to the defendant to construct a private
sewer extension to service this new planned development.
June, 2016, the defendant referred the plaintiff's latest
application to the zoning commission for a § 8-24
report. Following a hearing on July 7, 2016, the zoning
commission again issued a negative report due to the as yet
incomplete upgrades to the sewer system, which it concluded
were not likely to be accomplished for another two to four
years. Despite the negative report, the plaintiff
chose not to withdraw its application from consideration by
the defendant. The defendant then held a public hearing on
the plaintiff's sewer extension application on July 21,
2016. At that hearing, the plaintiff offered evidence about
the projected timeline for the completion of the sewer
upgrades and proposed that the defendant approve its
application conditioned upon the final completion of all
necessary upgrades to the sewer as well as the receipt of
necessary wetlands and site plan approvals.
defendant denied the plaintiff's application on July 27,
2016. The defendant concluded, in relevant part, that (1) the
application violated a town policy that purportedly required
a positive § 8-24 report from the zoning commission as a
prerequisite to proceeding with a sewer extension
application; (2) regardless of that policy, § 8-24
itself required a positive report from the zoning commission
before the defendant could approve an application unless
approval was obtained from the representative town meeting,
which had not occurred here; and (3) given remaining
uncertainties and risks associated with the planned force
main replacement and pump station upgrade, it would be unwise
for the defendant to issue an approval conditioned upon the
plaintiff's agreement to defer ...