DocketNumber: No. CV97 057 87 56S
Judges: MOTTOLESE, JUDGE.
Filed Date: 3/19/1999
Status: Non-Precedential
Modified Date: 7/5/2016
The property consists of the thirty two acres, more or less, of undeveloped land zoned R-1 which permits detached single family dwellings on one acre lots. In addition, the affordable housing regulations of the town of Newtown (§ 4.22) permit up to six units of affordable housing per acre upon the granting of a special exception pursuant to § 8-04 of the regulations.
The property is bordered on the west by an entrance ramp to Interstate 84, on the northeast by Philo Curtis Road a town highway, on the south by State Route 34 and on the southeast by Bishop Circle. The site is served by public water supply but not by the municipal sewerage system, hence the basis for this appeal. In denying the application the defendant assigned five reasons which can be distilled down into three categories (i) sewage disposal, (ii) a traffic impact, (iii) earth removal. With the parties consent and in the presence of counsel and selected party representatives the court viewed the property. CT Page 3700
Moreover, "when a zoning commission has stated its reasons . . . the reviewing court ought only to determine whether the assigned grounds are pertinent to the considerations which the authority was required to apply, and whether they are reasonably supported by the record". First Hartford RealtyCorporation v. Planning and Zoning Commission,
The first of these considerations is found in §
In Town Close Associates v. Planning Zoning Commission,
In denying the requested amendment to § 4.22.322 the defendant identified two public interests which it deemed to be substantial. First, the defendant was unwilling to act contrary to the sewer avoidance policy adopted by the Water Pollution Control Authority ("WPCA") and to reverse its own policy with respect to rural and environmentally sensitive sections of town. Second, it was unwilling to permit other than strictly land based sewerage systems because mechanical systems pose significant environmental risk. CT Page 3702
In Newtown, the term "sewer avoidance" is used to include those areas in which community sewerage systems2 should not be permitted. The plaintiff's argument that Newtown's expanded definition of sewer avoidance may not correspond precisely with the statutory definition is of no consequence.
In order for the developer to install its proposed community sewerage system it must obtain prior approval of the design and plan of operation of the system from the State Department of Environmental Protection. A precondition to approval is that the WPCA and the developer enter into an agreement under which the WPCA would obligate itself to manage and operate the system in the event that system were not operated effectively by the property owners in accordance with the requirements of §
While preserving the integrity of the Newtown sewer avoidance policy is a salutary purpose and is pertinent to the factors which the Commission is bound to consider under §
On the other hand, reason #2 states as a major purpose of the sewer avoidance policy the "prevention of a failure in mechanical septic systems exposing ground water to large quantities of effluent". Related to reason #2 is reason # 4 which states as follows: CT Page 3703
The town public sewer system will not be extended to other areas of the town, therefore the town will, if it were to allow mechanical systems to be installed, be exposed, when these systems fail, to significant environmental risk. The indefinite functioning of such systems cannot be assumed. (See generally the comments the WPCA and the remarks and reports of Peter H. Grose, P.E. of Fuss and O'Neill, Inc.).
These two reasons reflect the defendants disquietude over the reliability over time of a mechanical sewerage system and the risk of exposing an "environmentally sensitive" site to sewage effluent in the event of a systemic breakdown. The courts inquiry begins with an examination of the record to find sufficient evidence to support these reasons.
The Commission's decision on the special permit (R.#71), reason # 2(b) constitutes a finding that the subject property "lies in the towns Pootatuck River protective zone overlay district and is part of the stratified drift aquifer of the Pootatuck River Valley." Section 4.02.300 of the zoning regulations governing uses in aquifer protection districts provides as follows:
§ 4.02.300 Any discharge into the atmosphere, the ground or any water course or other body of water of any substance which, in the form and quantity discharged, will damage the fauna and flora of the lot in question, or which will be harmful to persons breathing the atmosphere or drinking or bathing in the water on or off the lot. (Emphasis supplied)
The plaintiff argues that the subject property is not in the zone of influence of an aquifer, relying on the testimony of his expert, Michael Petti, an engineer. The Commission had every right to reject that claim. First, because § 3.04.500 of the regulations confers on the Commission the authority to determine the exact boundaries of all zones and the Commission has affirmatively determined that the land is so situated. In fact, the town aquifer map (R. #91) clearly shows the property as within the aquifer protection district.3 Secondly, the commission was free to reject Mr. Petti's testimony especially in the area of water purity concerning which it has a duty to protect its citizens independently of any expert testimony.Kaufman v. Danbury, supra at 156.4 The court finds that there is sufficient evidence in the record to support the Commission's CT Page 3704 determination that the property was within the Pootatuck aquifer. In fact, the record reveals that it is within the primary recharge area of the aquifer. Section 2.16.5 of the regulations provides as follows:
§ 2.16.5 "Primary recharge area" shall mean that land area immediately overlying the aquifer. The boundary of the primary recharge area is the contact between the stratified drift and adjacent till or bedrock.
The sewerage system designed by the developer specifies the construction of a treatment plant which will collect sewage from all 96 units through a network of underground pipes, will remove most solids, pathogens and nitrogen from the wastewater and thereafter will pump or gravity feed the treated effluent to two underground wastewater disposal fields located at opposite ends of the most northerly portion of the property. The effluent is then supposed to leach into the earth.
The Commission had before it the expert testimony of Peter H. Grose a civil engineer who made the following statements in a report to the Newtown the First Selectman dated December 10, 1996.
"1. Soils in and around the leaching fields cannot provide renovation for the high flow rate that would result from such an intense degree of development and meet state water quality requirements. (Emphasis original).
2. The proposed Newtown Village site lies within the towns aquifer protection overlay district and is part of the stratified drift aquifer of the Pootatuck River Valley. Therefore, protection of ground water quality is of particular importance.
3. A report entitled "Computer Modeling of Ground Water Availability in the Pootatuck River Valley, Newtown, CT." prepared by the U.S. Geological Survey in 1978 shows the site to have
4. Ground water in the site area is classified G.A. by the Connecticut DEP, meaning their goal is that this ground water should be of drinking quality. This is a key criterion in planning and designing community subsurface disposal systems."
In his live testimony before the Commission on August 28, 1997 Mr. Grose stated "Specifically, sewer avoidance can be useful in avoiding concentrated discharge of waste water affluent to protect areas of environmental concern such as the Pootatuck aquifer which this site lies on top of."
The plaintiff has taken pains in its brief to point to the superior nitrogen removal capability which its proposed package treatment plant offers over a conventional septic system. It is apparent from Mr. Grose's testimony that he was not nearly as concerned about the risk of harm to the aquifer posed by nitrogen overload as he was the risk of pollution of the aquifer in the event of a "concentrated discharge" into the leaching fields of untreated sewage caused by a mechanical breakdown in the package sewerage treatment system.
The plaintiff counters this concern by referring to the DEP regulations which mandate stringent protective measures designed to avoid such concentrated discharges. They argue that the DEP possesses exclusive authority to regulate the engineering, permitting and environmental compliance of the system and that the WPCA authority is limited to assuring that the sewerage systems operator has the financial ability to operate the system. The court disagrees that the WPCA is so limited. By the terms of §
Bearing in mind such a statutory scheme together with the categorical refusal of the WPCA to commit itself to the contingency of "assuring effective management" the defendant had before it the following evidence. (a) a memorandum dated December 17, 1996 from Donna M. McCarthy, the Newtown Director of Environmental Health in which she expressed the districts general concern regarding "the large quantity of waste water being discharged in one location over what appears to be sandy gravelly CT Page 3706 soil." (b) a letter from the DEP that indicated that the preliminary proposal for the sewage treatment facility was generally acceptable. (c) a memorandum from the Newtown Conservation Official to the Land Use Administrator (see n. 3 supra) which contains the following statement. "The state also taps into the aquifer to supply the Garner Correctional Facility as well as to meet the remaining demands at Fairfield Hills. . . . aquifer protection guidelines generally discourage the development of facilities or operations which generate significant amounts of waste water which are discharged into the ground. . . . Although an appropriately designed, properly installed, and well operated treatment system would not be expected to result in ground water pollution, the absence of any of the above could be reason for concern. . . . Said systems have certain limitations related to hydraulic loading, seasonally high ground water and maintenance". (d) A letter dated March 25, 1994 from M. G. Harden of the DEP to Robert Cascella, First Selectman of Newtown which states "while they (waste water treatment plants) can be made to function well, it requires great care in design, construction, financing, operation and maintenance and that "densities of development outside the municipal sewer service area should be based upon waste water disposal capabilities of the land". (e) Memorandum from the chairman of the WPCA to the chairman of the Commission dated August 7, 1997 in which he states that "according to the DEP, even with a high degree of treatment throughout Connecticut, privately owned treatment systems have had a history of operation and maintenance problems". (f) the town plan of development which recognizes the importance of protecting the aquifer as a "high priority" and announces as a goal, "the need to investigate the potential for community or package sewerage treatment facilities to decrease reliance on individual septic tanks." (Emphasis added) (g) The testimony of Peter Alagna, Chairman of the WPCA in which he states that "the town sewer plant already discharges one million gallons per day into the Pootatuck River and additional source discharges whether above or below the surface will result in degradation of the river".
Conversely, there was an absence of evidence before the Commission to assuage the fear ultimately expressed by the Commission in its reasons for denial, namely pollution of the aquifer by large concentrations of wastewater effluent which has not been properly treated due to some breakdown in the mechanical treatment process. A complete reading of the record suggests the following gaps in the evidence, among others. CT Page 3707
1) How the effluent is to be monitored to assure that what reaches the leaching fields is appropriate.
2) In what manner and over what period of time might inappropriate effluent, originating either because of ineffective mechanical treatment or because the leaching fields have broken down, eventually reach the aquifer and ultimately the water supply.
3) Past experience of others with failure of this type of system, statistics on frequency of breakdown, elapsed time needed for repair, alternatives available in the event of breakdown.
The plaintiff's expert, Michael Petti, testified at length before the commission describing the chemical activity that occurs when the effluent arrives at the leaching field. He stated that after leaving the leaching field a plume of liquid will develop which depends for its rate of infiltration upon the amount of rainfall that enters the earth. He failed to address, at all, the consequences of a mechanical-breakdown in the sewerage treatment system. However, it is obvious from his highly technical testimony that successful sewage treatment by a mechanical system is a delicate operation that is vulnerable to influences which, from time to time, can produce unacceptable results.
A zoning commission, acting in its legislative capacity, is not limited to consideration of environmentally harmful conditions obtaining on a site which are definite or more likely than not to occur. A zoning commission is entitled to deny an application for a change in the zoning regulations where there is a possibility that approval of the application could result in environmental harm or physical injury to residences of the development as long as there is a reasonable basis in the record for concluding that its "denial was necessary to protect the public interest. "The record, therefore, must contain evidence concerning the potential harm that would result if the zone were changed . . . and concerning the probability that such harm in fact would occur". Kaufman v. Zoning Commission, supra at 156.
The court concludes that the Kaufman test for assessing sufficiency of the evidence under §
The Commission identified the purity of the towns water supply as a substantial public interest which must be protected. In Pratt's Corner Partnership, supra at 293, this "court said "in order to comply with the statute and sustain its burden of proof when it denies an application for an affordable housing development, the zoning authority must specifically articulate through the reasons its gives how and why each of the precepts embodied in subsection (2, (3) and (4) [now (1)(B)(C)(D)] supports its denial. In other words, the assigned reasons must address categorically (1) the necessity to protect a particular, identified public interest or interests; (2) must reflect that the Commission engaged in the balancing test dictated by subsection 2 [now C]; and 3 [now D] must manifest an honest effort to devise reasonable changes to the development that would protect the public interest that is jeopardized by the proposal. The term "substantial public interest" is not defined in the statute. As this court said in Nichols v. Killingly Planning andZoning Commission. CV94 054 047 7S, Judicial District of Hartford/New Britain at Hartford, June 9, 1995 (Mottolese, J.) "substantial" should be equated with compelling" as that term was used in United States v. City of Black Jack, Missouri
On the record in this case it is hard to imagine a more substantial public interest than protection of a sole source water supply from sewage contamination. Bearing in mind our CT Page 3709 Supreme Court's analysis in Kaufman v. Danbury, supra at 154-162 of the requisite level of probability of harm to the public interest, this court notes that the exigencies in Kaufman were far less compelling than they were here. For example, in Kaufman, Lake Kenosha served as an auxiliary water supply whereas the Pootatuck aquifer serves as a primary, sole source of supply. Next, the harmful contamination involved in Kaufman was nutrient loading which in the worst case would have tainted the quality of the drinking water to the extent that the water still would have been within acceptable standards. Finally, in Kaufman, there was credible expert testimony that there would be no harmful discharge into the watershed. In this case there is not only no assurance against harmful discharge but there is evidence that package sewage treatment plants in general do not have a "good track record of performance, operation or maintenance".
The Supreme Court's analysis permits an inference that in weighing the probability of harm presented by a particular hazard, a zoning authority is warranted in applying a rule of proportionality. That is, it may require a lower degree of probability of harm the higher the substantiality of the public interest sought to be protected and a higher degree of probability the lower the substantiality of the public interest. This court concludes that the Commission easily reached the appropriate level of proportionality. Expert testimony is not necessary to persuade a board of lay persons that untreated sewage which infiltrates a water supply will contaminate the water. See, Bader v. United Orthodox Synagogue,
As this court held in Pratt's Corner Partnership v.Southington, supra at 93, the decision of the Commission must reflect the fact that it engaged in the balancing test mandated CT Page 3710 by the above subsection. The Commission's stated reasons reveal that it fairly carried out its statutory responsibility in this regard. Although it appears that the "need" considered was the local, municipal need rather than a need of broader geographic breadth, See, West Hartford Interfaith Coalition. Inc. v. TownCouncil, supra at 521, n. 23, it is apparent from the foregoing discussion of proportionality that the Commission did not believe that the balancing test was a close call. Rather, it emphatically resolved that the necessity to protect the water supply for its residents clearly outweighed the need for affordable housing.
Because the plaintiff has not challenged the Commission's action under §
Mottolese, Judge