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Summit Saugatuck, LLC v. Water Pollution Control Authority of Town of Westport

Court of Appeals of Connecticut

October 29, 2019


          Argued April 22, 2019

         Procedural History

         Appeal 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.

          Peter V. Gelderman, for the appellant (defendant).

          Timothy S. Hollister, for the appellee (plaintiff).

          Prescott, Bright and Bear, Js.


          PRESCOTT, J.

         The 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.[1]

         The 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.

         In October, 2014, the plaintiff, pursuant to General Statutes § 7-246a, [2] applied to the defendant for approval of a private sewer extension for a proposed 186 unit affordable housing development.[3] 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.

         On 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 2017.

         The zoning commission issued a negative report on January 26, 2015. The plaintiff elected to withdraw its application with the defendant at that time.

         The 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.

         In 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.[4] 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.

         The 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, [5] 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 ...

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