Eureka: Plans, denials, appeals, taxes — no sewers

Eureka, the developer that battled Ridgefield in state and federal courts for more than a decade and a half, has paid about $1 million in taxes to Ridgefield since its last legal motion was dismissed by a judge in 2012.

The taxes are just over $250,000 a year on Eureka’s two parcels — $246,927 on 156 acres off Bennetts Farm Road and $3,074 on just over an acre with a Danbury Road address.

“They have been paying, and every check comes with ‘paid under protest’ — it’s about $250,000,” said town Tax Collector Jane Berendsen-Hill.

“That’s what they’ve been paying, and they do pay it regularly,” Berendsen-Hill said.

The taxes Eureka has paid since the last court ruling are close to what First Selectman Rudy Marconi figures the town has spent fighting the would-be developer in court for what is now nearly two decades.

“We spent, in total $1.1 million to $1.2 million in legal fees,” Marconi said. “Legal fees include all of your consultants, etc.”

What the developer hasn’t done lately is show up at Ridgefield’s planning and zoning office to file maps and plans that would allow its “concept” plan — approved by the Planning and Zoning Commission, and upheld by the courts — to become a completed application that would allow it to begin building.

“The situation, as I understand it, is they have an approved project, and they just haven’t come forward,” said Planning and Zoning Commission Chairwoman Rebecca Mucchetti.

Yes, the commission’s last action with regard to Eureka — other than defending itself in court — was to approve a concept plan allowing 306 residential units on the property. That was back in February 2008. It was the commission’s modified version of a Housing Opportunity District (HOD) originally proposed by Eureka with a concept plan showing 509 units, 153 of them “affordable” under the state’s 8-30g affordable housing law.

Over 19 years, since it bought the property in 1998, Eureka has put forward a variety of plans for residential development, but the underlying zoning has been a Corporate Development District, or CDD, office zone dating back to IBM’s ownership.

Any sizable development — residential, office or mixed use — would require a sewage disposal solution. And that may well be where the owner’s plans come up short.

No response

Eureka’s local attorneys at Gregory and Adams in Wilton have not responded to calls or emails from The Press.

The Connecticut secretary of the state’s office lists Eureka V LLC as a “foreign limited liability company” with a business address care of The Corporation Trust Company in Wilmington, Delaware, and a mailing address care of Milstein Properties, 335 Madison Avenue, New York.

Attempts to reach Eureka through the Delaware address got no response. The Press got an initial call-back from Milstein Properties in New York, but no follow-up response to inquiries about the property owner’s intentions for the future of the site.

In December 2014, however, a lawyer did write on behalf of Eureka to the town’s public hearing on a state-required plan to upgrade the District I sewage treatment plant, which serves the village area. (Eureka’s property is near the District II sewer system, serving the area around the intersection of routes 7 and 35, but that is not currently under study for a renovation.)

The 2014 letter from J. Casey Healy of Gregory and Adams said: “Eureka’s property has frontage on U.S. Route 7 that abuts the existing town sewer line and it hereby requests that any upgrades of town’s sewer treatment facilities include sufficient expansion to serve Eureka’s property based on (1) its Corporate Development District designation and (2) the multifamily development of the property pursuant to the state affordable housing appeal procedure that was approved by the Connecticut Appellate Court.”

Zoning battles

While the town gave the concept approval for 306 residential units for the site in February 2008, the developer had a long history of seeking more intense development.

In 1998, Eureka purchased the entire former IBM property —  682 acres in all, 613 acres in Ridgefield and 69 in Danbury. The Ridgefield land was split by Bennetts Farm Road: 458 acres to the north of the road and 155 acres to the south.

Eureka proposed zoning changes that would allow a vast mixed-use development of the site: a 475,000-square-foot office-hotel-conference center including lodge, restaurants, personal service uses, and health and fitness facilities; 286 age-restricted townhomes at six units an acre; single-family homes at one unit an acre; and an 18-hole golf course, swimming pool, tennis courts, nursery school and day care center.

It was turned down in September 1999.

Opponents of the big development began lobbying for a town purchase of the site using the government’s power of eminent domain.

When the town did use eminent domain to take 455 acres north of Bennetts Farm Road in 2001, the developer had on the table a proposed “Mixed-Income Dwelling Development” zone with 710 units — 210 of them “affordable” — on north side, along with 150 units and 445,000 square feet of commercial space on land south of Bennetts Farm Road.

With the eminent domain taking — for a “fair market value” of $8.5 million, later raised to $11.5 million by the courts on appeal from Eureka, the plan was withdrawn. The town eventually re-sold the north land to the state for $4.25 million, creating Bennett’s Pond State Park and reducing its cost for the taking to $7.25 million.

After the town’s 2001 eminent domain action, Eureka focused on the 156 acres south of Bennetts Farm Road. The town investigated — but never fully pursued — an eminent domain acquisition of the south parcel.

Where it stands

A “mixed-income development” plan put forward in 2003 proposed 169 apartments on 39 acres, with 445,000 square feet of offices on the remaining 116 acres of corporate-zoned land.

In 2005, using the state’s 8-30g affordable housing statute — which diminishes local zoning discretion — Eureka proposed 509 units on the 156 acres. That was modified in December 2007 to 389 units, with 117 designated “affordable” to meet the 30% affordable threshold needed to apply under 8-30g.

After one withdrawn plan, and one denial — of 345 town-homes and 100,000 square feet of offices in 2005 — Eureka proposed an HOD over the full 156 acres, allowing 509 units with 153 of them “affordable.”

The commission approved a modified version, allowing 291 units.

Eureka came back with a reduced concept plan for 389 units, and in 2008 the commission approved the 306-unit plan — which Eureka appealed in court.

The 306-unit approval was upheld by the courts, but it is only a “concept plan.” Before building, Eureka would have to submit “fully engineered drawings” for the commission’s review, according to a comprehensive “history of Eureka applications” put together by former town planner Betty Brosius before she retired last June.

Even with an approved “concept plan” for the 306 units, Eureka would need to firm that up with a site plan approval — which would require engineered plans and a specific solution to the problem of sewage disposal, Mucchetti said.

“What they proposed under special permit application of 8-30g was a concept plan,” she said. “They came forward with a concept plan, so they would need to come back with a development plan.”

“That’s where it rests,” Mucchetti said. “As far as the commission is concerned, we approved a project. … Once we approve it, going forward rests with the property owner, or the applicant.”

Watershed ruling

From 2008 to 2012, Eureka and the town fought a series of court battles over the Planning and Zoning Commission’s 2008 approval of the HOD with the 306-unit concept plan. Eureka appealed the approval in 2008, then appealed a judge’s 2010 ruling that no development could occur in watershed lands. The court overturned the town’s ruling forbidding construction in the watershed in 2012, but Eureka asked for reconsideration, objecting to the density of one unit per two acres in the watershed areas.

That appeal was dismissed in December 2012, upholding the 306-unit concept site plan — but the court allowed that a mutual agreement between Eureka and the commission could alter that density. Before any construction on the site, sewer and water service would have to be made available.

“It was in 2012 that the appellate court dismissed Eureka’s motion for reconsideration,” said Tom Beecher, the zoning commission’s attorney.

“The order of the appellate court was to remand the matter back to the defendant (the town P&Z commission), with instructions to approve their application using reasonable terms and consistent with the appellate court decision with respect to the density in the watershed.

“The motion for reconsideration (by Eureka) was actually dismissed,” Beecher said. “So the matter is just on remand, back to the commission, whenever Eureka sees fit to come back in.”