Housing: Eureka appeals federal ruling

A map of one of the past plans for development of “Bennett’s Pond South.”

The seemingly endlessly litigated 300-plus unit housing development sought by Eureka V LLC under state affordable housing law — on land off Bennett’s Farm Road the town tried to acquire by eminent domain — is again awaiting court action.

Eureka has filed with United States Court of Appeals, 2nd Circuit, in New York, challenging two federal court decisions related to the town’s decade-old, largely abandoned effort to use the government’s power of eminent domain to acquire from it 153 acres south of Bennett’s Farm Road.

“They did appeal,” First Selectman Rudy Marconi said. “… I don’t know why they’re appealing, what they are appealing.”

Eureka’s appeal challenges a decision that Magistrate Judge Holly B. Fitzsimmons issued on Sept. 28, 2012, and seeks to include an appeal of an earlier summary judgment ruling that Federal Judge Dominic Squatrito made Feb. 4, 2011. Judge Squatrito’s decision was regarded as guarding the town against potential punitive monetary damages in the case.

The Planning and Zoning Commission, however, appears to have chosen not to appeal a most recent Eureka-related ruling, a state appellate court decision that came down just before Thanksgiving.

The commission met to hear about the ruling from its attorney, Thomas Beecher of Collins, Hannafin, Garamella, Jaber & Tuozzolo, in executive session last Tuesday, Nov. 27, and took no vote at all following that discussion.

“There was no official motion after we met in executive session the other night,” Mr. Beecher said later.

The state ruling that the commission did not act on, in essence, told a lower state court to send Eureka’s proposed 300-plus unit affordable housing project back to the commission for approval “under reasonably justified terms and conditions with regard to the watershed portion of the property …”

The commission had previously approved a 306-unit project on the 153-acre site, with no development at all in the 67 acres that are part of the Saugatuck River watershed, which feeds Aquarion’s public drinking water supplies.

That decision by the commission was reached under the state affordable housing law, 8-30g, and derived from a Eureka application that had been accompanied by a “concept plan” showing 389 units on the site — including development in the 67 acres of watershed lands.

Based on the state appellate court ruling, the lower state court will send those questions — how many units, what density, where on the property — back to the commission for reconsideration.

The state appellate ruling said that while the commission could limit density on lands that drain into the Saugatuck Reservoir’s watershed, a source of Aquarion’s public drinking water, it couldn’t justify allowing no development at all there.

The case had referenced state of Connecticut documents that recommend densities of one residential unit for every two acres in public water supply watershed areas.

The appellate ruling also said the town couldn’t ban all sewer lines from the watershed area, under the developer-friendly rules of the state affordable housing law.

Mr. Marconi he found this aspect of the appellate court’s ruling confusing, in light of the positions taken by other state agencies over the years.

“We were told quite specifically by the state DEEP [Department of Energy and Environmental Protection] that if we ever planned on running a sewer line up 7, to try and serve that property, the state would fight it vehemently, because it would be traveling through a watershed area,” Mr. Marconi said. “So I’m not sure what the courts are saying here.”

The federal appeal that Eureka is now bringing in the 2nd Circuit Court of Appeals concerns not town zoning decisions but court rulings concerning the town’s effort to take the 153-acre Bennett’s Pond South property by eminent domain for use as corporate park.

That had followed the town’s successful eminent domain action in 2001, which gained 455 acres north of Bennett’s Farm Road for open space at an eventual court-mandated price of $11.5 million.

In the most recent decision being challenged, however, the Sept. 28 ruling by Judge Fitzsimmons, she had brushed aside plaintiff Eureka’s effort to broaden the case to include a number of other actions by the defendant town.

Judge Fitzsimmons wrote: “Plaintiff seeks a list of declarations including that the defendants were and are unalterably opposed to Eureka’s affordable housing plans; defendants acted in bad faith and for the improper purpose of stopping affordable housing on Eureka’s property;

“The defendants abused the sovereign power of eminent domain in seeking to take Eureka’s property to stop affordable housing; the defendants concocted a facially valid but pretextual basis to take the property by eminent domain; the defendants violated Eureka’s Fifth and Fourteenth Amendment rights; the defendants’ history of misconduct includes the withdrawal of the project plan … acquiring the Schlumberger property, and the proposed Affordable Housing Moratorium; the defendants do not have the right to utilize eminent domain to take the South Parcel for any reason; the defendants must negotiate in good faith any and all intermunicipal agreements required for Eureka to complete its affordable housing project; and the defendants must exercise good faith in all future dealings with Eureka concerning its affordable housing project …”

The town’s lead attorney in the matter, Stewart Edelstein of Cohen and Wolf, declined to speculate how long Eureka’s federal appeal might be in court.

“It’s hard to judge,” he said. “… how long it takes for the actual ruling is not something that can readily be predicted.”

Eureka has a new attorney handling the federal appeal, Jean Kim of the New York law firm Constantine, Cannon LLP.

She declined to discuss the case.

“Eureka’s policy is not to comment on pending litigation,” she said.

“In due course we’ll be filing an appellate brief, and that brief will set forth our position in detail.”

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