NO. LND CV 15 60566378 SUPERIOR COURT

LANDMARK DEVELOPMENT .
GROUP LLC, ET AL. JUDICIAL DISTRICT
OF HARTFORD
V. LAND USE DOCKET
EAST LYME WATER AND SEWER
COMMISSION NOVEMBER 27, 2018
MOTION FOR JUDGMENT1

 

Plaintiffs Landmark Development Group LLC and Jarvis of Cheshire LLC (collectively,
?Landmark?) hereby move for the entry of judgment in this matter, speci?cally an order to the
defendant Commission to conditionally grant Landmark's 2012 sewer capacity application for
118,000 gallons per day, with the ?nal, actual allocation being the gallons per day needed to
support a Preliminary Site Plan, when approved by the East Lyme Zoning Commission.

This Motion is made at this time because (1) this Court?s July 6, 2016 decision, that the
Commission must grant Landmark ?suf?cient capacity to further the development of their
project" is now ?nal; (2) the Appellate Court, 184 Conn. App. 303, 306 n.2, held that the
Commission on remand "must grant" (original emphasis) the application; (3) as a matter of law,
?suf?cient capacity to further the development? has only one meaning the sewer capacity to
support whatever development plan is approved by East Lyme's land use (wetlands and zoning)
process not the land use or residential density that the defendant Sewer Commission deems
acceptable; (4) there is, therefore, only one legal remedy that this Court can grant at this time in
this administrative appeal; and (5) in the past several weeks, the Commission has expressly
stated its disagreement with and intent to resist this Court?s order, defy this Court again, and

continue to violate Landmark's rights.

 

1 Attorney Roger Reynolds, representing intervenors Friends of the Oswegatchie Hills
Nature Preserve, Inc. and Save the River?Save the Hills, Inc, has not appeared in this docket
number, but in a companion case, and is copied in the Certi?cation of Service.

7123541

 

Recited below, supported by an Affidavit of Glenn Russo and public record exhibits and
the record of this appeal as on ?le, are the relevant facts and a legal analysis regarding why this

Court must enter judgment at this time.

I. RECAP OF RELEVANT COMMISSION ACTIONS
SEPTEMBER 17 TO NOVEMBER 13, 2018.

This Court is fully familiar with the facts of this matter, from the early 2000's, when East
Lyme officials ?rst stated their intent to block multi-farnily/ affordable housing development by
Landmark by denying sewer access;2 through the town's denial that any of Landmark?s property
was in the sewer service district (overruled by DEEP in 2004); the 2005 denial of any sewer
service (overruled by Judge Frazzini in 2011); the Commission?s contention in 2012 that it had
no capacity for Landmark because all of the town's available sewer capacity was already
allocated to others (overruled by this Court); the allocation in March 2014 of 13,000 GPD, based
on the towns? three acre lot size zoning which had already been repealed (invalidated by this
Court); the October 2014 allocation of 14,434 GPD, based on a supposedly ?scienti?c formula"

but using manipulated data to yield a patently absurd and illegal result (invalidated by this

 

2 The record of this appeal (Commission's Appellate Court Record, p. A421, contains
minutes of a February 1, 2001 phone call between Town officials and land use attorney Robert
Fuller. Those minutes state in part:

1. NO AVAILABILITY FOR WATER AND SEWER

Not in sewer shed, commitment elsewhere for availability.
This plan would consume a lot of sewer and would require
an extension.

Without water and sewer, cannot get affordable housing
project through.

WATER AND SEWER COMMISSION HAS NO
OBLIGATION TO EXTEND TO PROPERTY DOES
NOT FALL UNDER AFFORDABLE HOUSING ACT.

Atty. Fuller stated that the Zoning Commission needs a basis for denial.
He suggested including the water and sewer report, addressing traf?c and
environmental, and the Flaming Commission's report in the record.

Court); and ?nally through three years, 2013~l6, when the Commission repeatedly lied to this
Court, claiming its available capacity was 130,000 to 225,000 GDP, while simultaneously, and
without public notice, allocating 166,000 GPD to the nearby Gateway development and then
justifying that action by asserting that the Town plainly had such ample capacity that a capacity
study and an application were unnecessary.

Enough.

On July 6, 2016, this Court held, based on the Commission?s Gateway subterfuge, that the I
October 2014 allocation of 14,434 GPD to Landmark was an abuse of discretion and ordered the
Commission to grant Landmark ?suf?cient capacity to further" its development. Exh. A. In
August 2018, the Appellate Court af?rmed this Court's decision, 184 Conn. App. 303, Exh. B.
On October 31, 2018, the Supreme Court denied further review, Exh. C, making this Court's
decision a final order.

The following undisputed facts have occurred since the Appellate Court decision, and are
supported by attached public records exhibits and Mr. Russo's Af?davit:

1. In September 2018, while the Commission's certi?cation petition in the
Supreme Court was pending, Landmark became concerned again that the Commission would try
to undermine the Appellate Court ruling by continuing to allocate sewer capacity to Gateway and
other users, and then asserting that it had insufficient capacity for Landmark. As a result, on
September 17, 2018, Landmark ?led with the Commission a letter asking that the Commission
approve Landmark?s application. Exh. D.

2. In response, at its meeting on September 25, 2018, the Commission,
without any notice or hearing, adopted an "Interim Sewer Connection Procedure," Exh. E, which

in relevant part states (emphasis added):

WHEREAS, on August 21, 2018, the Appellate Court issued its decision
(?Decision") on the Commissions? appeal, which upheld the Trial Court
Memorandum of Decision, and held that the Commission is required to

perform a sewer capacity analysis when considering applications to
connect to the East Lyme sewer system;3 and

WHEREAS, the Commission disagrees with the Decision and has ?led a
petition for certi?cation to the Connecticut Supreme Court, which is
currently pending; and

WHEREAS, by a letter dated September 17, 2018, Landmark requested
that the Commission approve an allocation for its full 118,000 sewer
capacity request, pending ?nal resolution of its appeal; and

WHEREAS, neither the Trial Court nor the Appellate Court held that
Landmark was entitled to the hill amount of its capacity request, and the
proceedings are stayed until the Supreme Court acts on the Commission's
petition for certi?cation. While reserving all of its rights set forth during
the appeal process, the Commission nevertheless does not want to ignore
the Trial Court and the Appellate Court holding that require a sewer
capacity analysis by done in conjunction with a sewer connection permit
application.

BE IT THEREFORE RESOLVED, that the East Lyme Water and
Sewer Commission, acting as the Town?s Water Pollution Control
Authority, hereby enacts the following interim procedure:

1. An application to connect to the East Lyme sewer system
for a project that either requests a connection for more than 20
residential units or requires more than 5,000 gallons per day of sewage
treatment capacity, shall also require an application for determination of
sewer capacity pursuant to General Statues 7?246a;4

2. Said application for determination of sewer capacity shall
be submitted either prior to or contemporaneously with a sewer connection
application;

3. An application to connect to the East Lyme sewer system

may not be granted if the Commission determines that there is not
adequate sewer capacity for the proposed use of land.

BE IT FURTHER RESOLVED that the above procedure does not re?ect
o?icial policy or procedure of the Commission or the Town of East Lyme.

 

3 In fact, the Appellate Court opinion says nothing of the kind, and the Resolution
contains no citation.

4 General Statutes 7~246a already requires an application for a sewer capacity
allocation.

Rather, it is adopted on an interim basis only in direct response to the
Appellate Court Decision, and shall be in place only during the pendency
of the Landmark sewer capacity appeal process. In enacting this interim
procedure, the Commission does not agree with the holdings of the Trial
Court Memorandum of Decision or the Appellate Court Decision. Any
?ndings made pursuant to this interim procedure available sewer
capacity, etc.) shall be for the purposes of that sewer capacity application
only, and shall not be adopted, incorporated or made part of the record in
the pending Landmark sewer appeal.

3. in September 2018, Commission Chair Mark Nickerson was quoted in The
Day newspaper as saying that, "The judges can't force us to put sewer in there," and that
extending sewer to Landmark would constitute "an unsuitable use." Exh. F.

4. On October 24, 2018, Landmark ?led a renewed Freedom of Information
Act request, seeking disclosure of all applications or requests for more than 5,000 GPD of sewer
capacity, see Exh. G.

5. In response to Landmark's 01A request, the Commission provided an
application ?led by Gateway for the commercial use portion of its development, a Costco store,
requiring 7,650 GPD of capacity; the application was ?led under General Statutes 7-246a, and
the ?interim procedure."

6. Also in response to the OIA request, the Commission provided a copy of
an ?application? ?led by Pazzaglia Construction, Exh. H, for 86,250 GPD, for a [sic]
development. This application was not accompanied by any site plan or any documents
demonstrating that it is an actual development plan, or any evidence of compliance with General
Statues 8?30g.

7. At a Commission hearing on November 13, 2018, Landmark ?led the
attached letter, Exh. I, clarifying that if the local land use process results in a site plan approval
that requires less than 118,000 GPD, Landmark will accept that allocation.

8. The Commission ignored Landmark's request, processed the Costco

application under its interim procedure, and approved the Costco application without making any

?nding, as required by 1] 3 of its own interim procedure (Exit. E), as to the town?s overall
available sewer capacity. Exh. (minutes of Commission hearing, November 13, 2018).

9. At its regular meeting on November 13, 2018, the Commission scheduled
a special meeting for December 11, to consider what criteria it will devise and use to act on
Landmark?s application on remand. Russo Af?davit, Exh. L, 11 4.

10. During the November 13 discussion, Chair Nickerson stated that action on
Landmark would be based on "What is fair, given the size of our town. Russo Af?davit,

Exh. L, 5.

11. During the discussion, Town Attorney Zamarka told the Commission that
it had "wide discretion" in acting on Landmark, and that the Commission's only obligation is to
grant capacity ?between 14,000 and 118,000. . . Exh. at 3.

12. At the November 13 meeting, contradicting this Court's 2016 ruling that
sewer commissions do not control land use, Attorney Roger Reynolds, representing
environmental intervenors, advocated that the Commission base the sewer allocation on
controlling land use, by granting capacity for 110 residential units (about 20,000 GPD), that
being the "average size? of a 8~30g affordable housing development. Russo Affidavit,

Exh. L, 11 6.

13. At the November 13 meeting, the Commission discussed action in
January 2019 on other sewer capacity applications, including 120 additional residential units for
Gateway (and thus above its 275 units 166,000 and the above?mentioned Pazzaglia
application. Russo Af?davit, Exh. L, 11 7.

14. In this discussion, none of the Commissioners or the Town Attorney
discussed giving Landmark's application, which dates to 2012, priority over applications ?led
later, much less in 2018. Russo Af?davit, Exh. L, 1] 9.

15. At this time, the Town of East Lyme has ample sewer capacity to
conditionally grant Landmark's application without impacting other users: the Appellate

Court decision, 184 Conn. App. at 317, based on data to 2014, found that the Town has at least

358,000 GPD, minus the Gateway allocation, estimated at 166,000 GPD, leaving 200,000;

however, on November 13, Sewer Administrator Kargl stated that the Gateway residential
portion is actually only using "about half" of its allocated capacity (Russo Af?davit, Exh. L, 1] 8),
which would add more than 50,000 GPD to the Town's available capacity, making nearly
300,000 GPD available; this Court may take judicial notice of Exh. M, which shows that in
2016, the Town's total average discharge was 785,390 GPD, down from 1,089,279 in
2013, and the Town was using only 50.1 percent of total New London treatment plant capacity;
and in November 2017, the total state facility ?ow was only 164,009, which under the

formula accepted by Sewer Administrator Kargl in his 2015 deposition would result in:

 

Town capacity after State set aside (1.5 million - 468,000) 1,022,000
Total ?ow, October 2017 running average 822,550
State use 164,000
Town use (822,550 - 164,000) 658.550
Available to Town 363,450

However, this calculation is very conservative, because the State facility use 0f164, 000 GPD is
actually part of the 468,000 deducted??om the 1.5 million GPD available to the Town. So if this
adjustment is made, the own?s current available capacity is 52 7, 45 0 GPD.

16. In addition, this Court should bear in mind that the State of Connecticut
has a contract to use 468,000 of East Lyme's available 1,500,000 GPD at the New London
treatment plant, but historically has used no more than 60 percent of this amount, and in recent
years, between 30 and 40 percent. As a result, East Lyme is in no danger of exceeding its total
treatment plant capacity.

17. The record of this appeal, supplemented by facts of the past 60 days,
demonstrate that Landmark's land is in the Town's sewer service district; the Town has
approved an extension of the public sewer line to two locations which abut Landmark's land,
such that Landmark does not need new permission to extend the sewer system to connect to the
sewer system; (0) there is ample capacity to grant Landmark's application, without

disenfranchising others; through six years of hearings and remands, the Commission has

never identi?ed any engineering issue with respect to Landmark physically connecting to the
public system; Landmark has a ?nal court order to the Commission that it grant Landmark
"suf?cient capacity? to proceed with its development; and the Commission disagrees with and
intends to violate this court order.

11. BASES FOR ENTRY OF JUDGMENT

1. This case is an administrative appeal. It is axiomatic that in an administrative
appeal, if the record makes it clear that there is only one remedy that will remedy the defendant?s
violation, the trial court is empowered and obligated to grant that remedy. See, e. g, home v.
Zoning Commission, 178 Conn. 198 (1979).

2. The Appellate Court, 184 Conn. App. at 306 n.2, held that the Commission "must
grant" Landmark's application, and without need for further evidentiary determination or
discretionary action.

3. This Court has ruled that the so-called "Forest Walk" factors are inapplicable to
this case, given the Commission's conduct. Thus, at this point, the Commission cannot act on
Landmark's application by devising a new formula or ratio based on acreage, proportionality, or
similar factors.

4. It is also clearly established that the Commission cannot allocate sewer capacity
based on controlling land use, such as density.

5. This Court's order to the Commission is not to pick a number between 14,434 and
118,000 GPD, but to grant Landmark what it needs to proceed with its land use applications. At
this time, "suf?cient capacity" for Landmark?s development is not a matter of Commission
discretion because the Town has ample capacity to grant Landmark's application, and may not
use the allocation to control density.

6. At this time, Landmark's application, pending since 2012, must be given priority

as against Gateway's application for sewer, which occurred after Landmark's, as well as newly-

?led applications. The Commission cannot undermine Landmark's rights by giving away
capacity while this case proceeds.5

7. Landmark is entitled to be treated equally with Gateway, but in fact requests
substantially less gallonage than Gateway even though Landmark's parcel is much larger: while
Gateway has been approved (166,000 GPD) for 11.0 percent of the Town's total allocation,
Landmark (at 118,000) seeks only 7.8 percent, and thus Landmark's application is for 30 percent
less than Gateway.

8. Sewer Administrator Kargl, in 2015, testi?ed that the Town had so much
available capacity that Gateway?s application did not even require a review process; Landmark is
now entitled to equal treatment.

9. This court has inherent authority to enforce its own orders. The Commission is
poised to Violate this Court's order.

For these reasons, Landmark moves that this Court enter judgment, directing the
defendant Commission to grant Landmark's sewer capacity application, and preserve that
allocation until Landmark obtains Preliminary Site Plan approval, at which time the allocation

shall be modi?ed to the amount needed to support that Site Plan.

 

5 Landmark?s appeal of the East Lyme Zoning Commission's 2015 denial of a zone
change and Preliminary Site Plan is pending before Judge Berger.

PLAINTIFFS, 
LANDMARK DEVELOPMENT GROUP LLC
AND JARVIS OF CHESHIRE LLC

By ?fw?fq 1M4

Timothy S. Hollister
thollister@goodwin.com
Shipman Goodwin LLP
One Constitution Plaza
Hartford, CT 06103w1919
Tel.: (860) 251-5000
Fax: (860) 251-5318
Juris No. 057385
Their Attorney

CERTIFICATION OF SERVICE

I hereby certify that a copy of the foregoing Motion for Judgment and attached Exhibits
were electronically delivered this 27th day of November, 2018, to all counsel of record and
written consent for electronic delivery has been received from all counsel.

Mark S. Zamarka, Esq.

Waller Smith Palmer, PC.

52 Eugene O'Neill Drive

New London, CT 06320

 

Roger F. Reynolds, Esq.
rreynolds@ctenvironment.org
Connecticut Fund for the Environment
900 Chapel Street

Suite 2202

New Haven, CT 06510

Paul M. Geraghty, Esq.

Geraghty Bonnano, LLC

38 Granite Street

P. O. Box 231

New London, CT 06320



Timothy S. Hollister
Commissioner of the Superior Court

10

Exhibit A

Landmark ?evelopment Group, LLC v. East Lyme Water Not Reported in 

 

62 Conn. L. Rptr. 693

2016 WL 4497652
Only the Westlaw citation is currently available.

UNPUBLISHED OPINION. CHECK
COURT RULES BEFORE CITING.

Superior Court of Connecticut,
Judicial District of Hartford.

Landmark Development Group, LLC et al.
v.
East Lyme Water 8: Sewer Commission




July 6, 2016

Opinion
COHN, J.T.R.

*1 Prior to the commencement of the present action, the

plaintiff, Landmark Deveiopment Group, LLC, brought
an appeal against the defendant, East Lyme Water
and Sewer Commission, regarding a sewer capacity
determination. Before rendering a decision, the court
reviewed the record, including the methodology for the
grant of capacity. On June 26, 2014, the court ruled that
the defendant must reconsider the allocation of sewer
capacity in the amount of 13,000 gallons per day to
the plaintiff, Landmark Development Group, LLC. See
Landmark Development Group, LLC v. East Lyme Water
d: Sewer Commission, Superior Court, judicial district
of Hartford, Docket No. (June 26,
2014, Cohn, J.). In so ruling, the court indicated that
the defendant must consider the Forest Walk. LLC 
Water Polluiion Control Authority, 29E Conn. 271, 968
A.2d 345 (2009) factors. More specifically, in regard to
capacity, the defendant must ?consider the remaining
capacity for the entire town, the land area represented by
the property versus the available iand area in the town
the safe design standards for the public sewer, and the
percentage of the allocation versus the total remaining
capacity.? Landmark Development Group, LLC v. East
Lyme Water Sewer Commission, supra, Superior Court,
Docket No. CV-13-6040390-S. On 29, 2014, the court
denied the defendant's motion to reargue. See Landmark
Development Group, LLC v. East Lyme Water Sewer
Commission, Superior Court, judicial district of Hartford,
Docket No. CV-13-6040390-S (June 29, 2014, Colin, 1.).

In the present action, which was commenced
on November 24, 2014, the plaintiffs, Landmark
Development Group, LLC, and Jarvis of Cheshire, LLC,
ask the court to review a grant of capacity of 14,434
gallons per day to the plaintiffs by the Board. On February
19, 2015, the plaintiffs fried their appeal brief. On March
16, 2015, the defendant, East Lyme Water and Sewer

Commission, filed its appeal brief. 1 On March 30, 2015,
the plaintiffs filed a motion for permission to suppiement
the record in administrative appeal. The court heard oral
argument on Aprii 2, 2015. On the same day, the court
granted the plaintiffs? request, but only as to exhibit C, a
letter from Mark S. Zamarka.

On July 23, 2015, the plaintiffs flied a motion to
conduct further discovery/deposition, and to supplement
the record. Speci?cally, the plaintiffs asked the court
for permission to take the deposition of the Board?s
administrator, Bradford Kargl, regarding approval of the
connection application by Gateway (a similarly~situated
apartment complex being developed) where over 160,000
gailons per day capacity was contemplated. The motion
was granted by the court on September 8, 2015. The
deposition revealed that although Kargl was aware of the
Gateway capacity need (Plaintiffs Exhibit 1, Deposition
of Kargl, pp. and had
the duty to monitor this need (Plaintiffs' Exhibit 1,
pp. i5/A9, i7/A10, 6i~63lA49?51, he approved
the connection appiication without making a capacity
determination (Plaintiffs' Exhibit 1, pp. 66-7i/
A54-58, and without further reference to the

Board (Plaintiffs? Exhibit 21). 3

*2 The court, as indicated in prior rulings, does not
believe that a capacity determining action is ministerial,
but is instead a matter of discretion for the Board.
See Forest Walk, LLC v. Water Pollution Control
Authority, supra, 291 Conn. 282 municipality has
wide discretion in connection with the decision to suppiy
Although this discretion is not absolute,
[t]he date of construction, the nature, capacity, location,
number and cost of sewers and drains are matters
within the municipai discretion with which the courts will

sewerage

not interfere, unless there appears fraud, oppression or
arbitrary action? [internal quotation marks omitted] 
see also Straw Pond Associates, LLC v. Water Pollution
Control Authority, Superior Court, judicial district of
Waterbury, Docket No. (March 8,

 

3 9

axis in: littigiatsigti tinnli it?

Landmark Development Group, LLC v. East Lyme Water Not Reported in 

 

62 Conn. L. Rptr. 693

2011, Gallagher, J.) (discretionary standard of review
applied to determination of availability of sewer capacity).
The defendant's actions are discretionary even where there
is a request for a sewer extension permit See Landmark
Development Group, LLC v. East Lynn: 374 FedApr.
58, 60 (2d Cir. 2010) (?Plaintiffs had no legitimate claim
of entitlement to a sewer?extension permit. Defendants
plainly have discretion to deny such permits?).

In light of the supplemental evidence, the court concludes
that there is at least 200,000 gallons per day capacity
(358,000 gallons per day less 160,000 gallons per day to

Gateway) for the entire sewer system.3 The defendant
had broad discretion in determining capacity, but the
defendant was obligated to consider capacity when it
approved the connection application for Gateway. As to
the plaintiff, the court ?nds that with the large amount
of capacity remaining, the capacity figure of 14,434
gallons per day is excessively low. There is an abuse

of discretion4 that the Board must correct. Although
the Board is not required to grant the plaintiffs their
request for 118,000 gallons per day, the capacity figure
of 14,434 gallons per day is insufficient in View of the

Footnotes

present remaining capacity of at least 200,000 gallons per
day, and in view of the 160,000 gallons per day that was
approved for Gateway. In reconsidering the allocation of
the sewer capacity, the Board must comply with applicabie
sewer statutes, regulations and ordinances, and the Board
should take into account the demands of the plaintiffs?
sewer project and the effect on remaining capacity.
Nevertheless, the Board must provide the plaintiffs with
suf?cient capacity to further the development of their
project, and, as such, the Board may not settle on a
figure for capacity that would completely foreclose the
development of the plaintiffs? project.

*3 This matter is remanded to the Board for a further
ruling and is a final decision for purposes of appeal.

SO ORDERED.

All Citations

Not Reported in A.3d, 2016 WL 4497652, 62 Conn. L.
Rptr. 693

1 The two intervening entities, Friends of the Oswegatchie Nature Presetve, inc., and Save the River-Save the Hills,

Inc., have also ?led briefs in this action.

2 The fact that Kargl failed to even review capacity as to Gateway distinguishes this case from the Forest Walk factors

which have guided the court to this point.

3 In its prior June 26, 2014 decision, this court noted that, as to remaining capacity, "[tjhe record before the court shows a
range of 130,000 to 225,000 gpd. At the meeting of the commission on February 25, 2014, the ?gure of 177,000 
was used as a compromise. in court on May 27, 2014, the commission's attorney conceded that the commission would
not object to a figure of 250,000 gpd. Finally, Landmark points to a reduced usage by the town and state facilities so that
the correct ?gure is between 308,000 god and 358,000 god." Landmark Development Group, LLC v. East Lyme Water
Sewer Commission, supra, Superior Court, Docket No. More recently, during the commission's
October 2014 remand proceeding and resolution, the commission applied the plaintiff?s ?gure of 358,000 gallons per day.
(Amended Return of Record, Exhibit D, Post?proceeding Exhibits 2, 3.)

4 ?When a water pollution control authority performs its administrative functions, a reviewing court?s standard of review of
the {authority?s} action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion MoreOVer, there is a
strong presumption of regularity in the proceedings of a public agency, and we give such agencies broad discretion in the
performance of their administrative duties, provided that no statute or regulation is violated." (Citation omitted; internal
quotation marks omitted.) Forest Walk, LLC v. Water Pollution Control Authority, supra, 291 Conn. 285?88.

 

End of Beaumont

2018 "i?homson Reuters. No claim to original US. Government Works.

 

5- "the? wt in in .

 



Exhibit 

Landmark Development Group, LLC v. Water and A.3d (2018)

 

184 Conn.App. 303

184 Conn.App. 303
Appellate Court of Connecticut.

LANDMARK DEVELOPMENT GROUP, LLC, et a1.
V.
WATER AND SEWER COMMISSION
OF the TOWN OF EAST LYME

(AC 39804), (AC 39806)

Argued April 10, 2018


Of?cially released August 21, 2018

Synopsis

Background: Property owners sought judicial review
of a decision of town's water and sewer commission
allocating only 14,434 gallons per day in sewer treatment
capacity to owners? housing development. The Superior
Court, Judicial District of Hartford, Colin, Judge Trial
Referee, 2016 WL 4497652, sustained owners? appeal
and ordered commission to grant owners' application for
determination of sewer treatment capacity. Commission
appealed.

Holdings: The Appellate Court, Bear, ., held that:

trial court properly allowed owners to supplement record
with evidence of allocation to another apartment complex;

trial court prior ruling regarding factors for allocating
capacity was not law of the case; and

trial court properly sustained owners' appeal.

Af?rmed.

Attorneys and Law Firms

Mark S. Zamarka, with whom, on the brief, was Edward
B. O'Connell, New London, for the appellant in AC 39804
(defendant).

Roger F. Reynolds, with whom were John M. Looney, 
Hartford, and, on the brief, Andrew W. Minikowski, for
the appellants in AC 39806 (intervenors).

la- 

Timothy S. Hollister, with whom was Beth Bryan Critton,
Hartford, for the appellees in both appeals (plaintiffs).

DiPentima, C.J., and Alvord and Bear, 33.
Opinion
BEAR, J.

*306 This chapter of the protracted dispute
between the town of East Lyme (town), and the plaintiffs,
Landmark Development Group, LLC, and Jarvis of
Cheshire, LLC, involves the plaintiffs' application to the

defendant,1 the town's Water and Sewer Commission
(commission), for a determination of sewer treatment
capacity. The commission appeals from the judgment
of the Superior Court sustaining the plaintiffs' appeal
and ordering the commission to grant the plaintiffs'

application. 2 On appeal, the commission argues *307
that the court (1) abused its discretion by allowing the
plaintiffs to submit supplemental evidence to the court,
and (2) improperly concluded that the commission abused
its discretion by allocating to the plaintiffs 14,434 gallons
per day in sewer treatment capacity. We af?rm the
judgment of the court.

M2 The following facts and procedural history are

relevant to our disposition of this appeal. 3 The plaintiffs
own a 236 acre parcel of land in the Oswegatchie Hills area
of the town, on which the plaintiffs sought to construct an
840 unit housing development. Giving rise to the present
appeal is the plaintiffs? application to the commission
for a determination of sewer treatment capacity, which
the plaintiffs filed on June 1, 2012. In this application,
the plaintiffs requested that 118,000 gallons per day of
the town's sewer treatment capacity be reserved for its
proposed housing development in the Oswegatchie Hills.
In a December, 2012 resolution, the commission found
that the plaintiffs had requested a disproportionately
large amount of the town's remaining sewer treatment
capacity and, therefore, denied the plaintiffs? application.
The plaintiffs appealed the commission's decision to the
Superior Court, which, on January 16, 2014, remanded
the case to the commission for a clarification of its 2012
resolution (first remand). Specifically, the court sought
clari?cation as to the amount of capacity the commission
was willing to allocate to the plaintiffs and a justification
*398 for that amount. The court also ordered that the
parties report back to court on March 17, 2014.

:1 ?Wham: M3., ,wwm Ewi" f?
{Iii 3: rival/E 2; :ate?zatius (4:13 {:25an 1.2: wt tags: a 3 

 

 

Landmark ?evelopment Group, LLC v. Water and A.3d (2018)

 

184 Conn.App. 303

Pursuant to the court's January, 2014 order, the
commission addressed the plaintiffs' application at its
February, 2014 regular meeting. Following the meeting,
the commission allocated to the plaintiffs 13,000 gallons
per day in sewer treatment capacity. The parties appeared
before the court in May, 2014, to resolve, inter alia,
whether the commission's allocation of 13,000 gallons per
day was an abuse of discretion. On June 23, 2014, the
court sustained the plaintiffs? appeal and remanded the
matter to the commission (second remand). In reaching
this conclusion, the court relied on Forest Walk, LLC
v. Water Pollution Control Authority, 291 Conn. 271,

968 A.2d 345 (2009),4 and Dauti Construction, LLC
v. Water Sewer Authority, 125 Conn. App. 652,
10 A.3d 84 (2010), cert. denied, 300 Conn. 924, is
A.3d 629 (20l1). The court found that the commission's
allocation of 13,000 gallons per day was ?inappropriately
low? for the following reasons: (1) the record did not
indicate a speci?c amount of available capacity before
considering the plaintiffs? application; (2) the commission
made no ?nding regarding the area of the plaintiffs'
development versus the land area of the town; (3) the
commission based its decision on data that was not
current; (4) none of the commission's capacity for possible
future development had been requested since the reserve
for future development was created in 2004; and (5)
the plaintiffs requested only a small amount of the
commission's remaining capacity.

*309 At its October 28, 2014 regular meeting, the
commission again considered the plaintiffs' application.
On the basis of the factors set out in Forest Walk, LLC
v. Water Pollution Control Authority, supra, 291 Conn. at
29596, 968 A.2d 345 (Forest Walk factors); see footnote
4 of this opinion; the commission derived a formula
to determine what it considered to be an appropriate
sewer capacity allocation for the plaintiffs. The formula
provided: 358,000 gallons per day of available capacity
divided by 5853 total acres of the town, is equal to
divided by 236 acres owned by the plaintiffs, where
equals the appropriate capacity to allocate to the
plaintiffs. Application of this formula determined that
14,434 gallons per day of sewer treatment capacity was an
appropriate allocation. The plaintiffs again appealed the
commission's decision to the Superior Court.

M3 On July 6, 2016, the court issued a memorandum of
decision again remanding the matter to the commission

(third remand). In its memorandum of decision, the court
noted the following relevant procedural history: ?In the
present action, which was commenced on November 24,
2014, the plaintiffs ask the court to review a grant of
capacity of 14,434 gallons per day to the plaintiffs by the
[commission]. On February 19, 2015, the plaintiffs filed
their appeal brief. On March 16, 2015, the [commission]
filed its appeal brief. On March 30, 2015, the plaintiffs
?led a motion for permission to supplement the record in
an administrative appeal. The court heard oral argument
on April 2, 20l5. On the same day, the court granted the
plaintiffs' request, but only as to exhibit C, a letter from
Mark S. Zamarka.

?On July 23, 2015, the plaintiffs filed a motion to
conduct further discovery [including the taking of a]
deposition and to supplement the record. Speci?cally,
the plaintiffs asked the court for permission to take the
*310 deposition of the [commission's] administrator,
Bradford Kargl, regarding the approval of the connection
application by Gateway (a similarly?situated apartment
complex being developed) where over 160,000 gallons
per day capacity was contemplated. The motion was
granted by the court on September 8, 2015. The deposition
revealed that although Kargl was aware of the Gateway
capacity need and had a duty to monitor this need
he approved the connection application without making
a capacity determination and without further reference
to the [commission].?

Thereafter, the court stated: ?In light of the supplemental
evidence, the court concludes that there is at least
200,000 gallons per day capacity (358,000 gallons per
day less 160,000 gallons per day to Gateway) for
the entire sewer system. The [commission] had broad
discretion in determining capacity, but the [commission]
was obligated to consider capacity when it approved
[Gateway's] connection application As to the plaintiffs,
the court ?nds that with the large amount of capacity
remaining, the capacity figure of 14,434 gallons per day
is excessively low. There is an abuse of discretion that
the [commission] must correct. Although the [commission]
is not required to grant the plaintiffs their request for
ll8,000 gallons per day, the capacity ?gure of 14,434
gallons per day is insufficient in view of the present
remaining capacity of at least 200,000 gallons per day,
and in View of the 160,000 gallons per day that was
approved for Gateway. In reconsidering the allocation of
the sewer capacity, the [commission] must comply with

 

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Landmark Development Group, LLC v. Water and A.3d (2018)

 

184 Conn.App. 303

applicable sewer statutes, regulations and ordinances,
and the [commission] should take into account the
demands of the plaintiffs' sewer project and the effect
on remaining capacity. Nevertheless, the [commission]
must provide the piaintiffs with suf?cient capacity to
further the development of their project, and, as such, the
{commission} may *311 not settle on a figure for capacity
that would completely foreclose the development of
the plaintiffs' project.? (Footnotes omitted.) This appeal
foliowed.

The first issue that we must resolve is whether the court
abused its discretion by allowing the plaintiffs to submit
supplemental evidence (Gateway evidence) pursuant to
General Statutes The commission argues
that the Gateway evidence concerned a sewer connection
permit, which does not require a determination of sewer
treatment capacity and is a matter that the commission
does not handle, rendering the evidence irrelevant and
unnecessary for the equitable disposition of the appeal.

The abuse of discretion standard governs our review of
a trial court's decision to admit supplemental evidence
under See Parslow v. Zoning Board of Appeals,
110 Conn. App. 349, 353?54, 954 A.2d 275 (2008).
?When reviewing claims under an abuse of discretion
standard, the unquestioned rule is that great weight is
due to the action of the triai court and every reasonable
presumption should be given in favor of its 
We will reverse the trial court's ruling only if it could
not reasonably conclude as it Reversal is required
only where an abuse of discretion is manifest or where
injustice appears to have been We do not
determine whether a conclusion different from the one
reached could have been reached.? (Citations omitted;
internal quotation marks omitted.) Id., at 354, 954 A.2d
275.

Section 8?8(k) provides in relevant part: ?The court
shall review the proceedings of the board and shall aliow
any party to introduce evidence in addition to the contents
of the record if (2) it appears to the court that additionai
testimony is necessary for the equitable disposition of the
appeal.? See also *312 Cli?brd v. Planning Zoning
Commission, 280 Conn. 434, 447, 908 A.2d 1049 (2006)
appeal from an administrative tribunal should

ordinarily be determined upon the record of that tribunal,
and only when that record fails to present the hearing in
a manner suf?cient for the determination of the merits of
the appeal, or when some extraordinary reason requires
it, should the court hear evidence? [internal quotation
marks omitted] ?[A]llowance at trial of additional
evidence under the concept of evidence ?necessary for the
equitable disposition of the appeal,? under 
has generaily received a restrictive interpretation to avoid
review of the agency's decision based in part on evidence
not presented to the agency initialiy.? 68136118? v. Planning
Zoning Commission, 94 Conn. App. 478, 489, 892 A.2d
979 (2006).

Here, the Gateway evidence was necessary for the
equitable disposition of the appeal. The Gateway evidence
established that, even though the commission conciuded,
after it applied the Forest Walk factors, that it did not
have sufficient capacity to grant the plaintiffs? application
for up to 118,000 gallons per day, Gateway had, in effect,
been granted, without application of the Forest Walk

factors, 5 an allocation of approximately 166,000 galions

per day following the approvai of its connection permit.
The Gateway evidence, therefore, was relevant for the
court to be able to determine that the plaintiffs, when
compared to Gateway, had been treated inequitably by
the commission. Unlike Gateway, which had been able
to build its development, the plaintiffs, because of the
commission's 14,434 gallon per day allocation, did not
have suf?cient capacity to satisfy the estimated sewage
requirements of their projected 840 unit development,
despite the existence of adequate *313 available capacity
to grant the plaintiffs? request of up to 118,000 gallons per

day. 6

Moreover, the piaintiffs did not have the opportunity to
present the Gateway evidence to the commission during
the initial hearing, the ?rst remand, or the second remand.
Our review of the record shows that the events concerning
Gateway occurred in 2014 and 2015, and that the
plaintiffs became aware of the Gateway evidence in 2015.
Therefore, when the plaintiffs ?led their motion under
in March, 2015, it was their ?rst reasonable
opportunity to bring the Gateway evidence to the court's
and the commission's attention. Accordingly, because the
Gateway evidence could have in?uenced the commission?s
decision regarding the piaintiffs' application, and the
plaintiffs sought to introduce this evidence at the earliest
opportunity, the court did not abuse its discretion by

 

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Landmark Development Group, LLC v. Water and A.3d m- (2018)

 

184 Conn.App. 303

granting the plaintiffs' motion to supplement the record.
See Clif/brd v. Planning Zoning Commission, supra,
280 Conn. at 449, 908 A.2d 1049 penalize the
plaintiff for the absence in the record of documents that
could have affected the commission's decision on the site
plan application, when the plaintiff had no reasonable
opportunity to bring such documents to the attention of
the commission, would be simply *314 unfair and not in

accordance with basic principles of equity?). 7

II

The commission's second claim on appeal is that the

court improperly concluded that it abused its discretion
by allocating to the plaintiffs 14,434 gallons per day of
sewer treatment capacity. Speci?cally, the commission
argues that the court erred because it disregarded its
ruling from a prior remand concerning the application
of the Forest Walk factors. See footnote 4 of this
opinion. The commission also argues that the court
erred by basing its decision, at least in part, on the
supplemental evidence admitted pursuant to 
and by holding that the commission was obligated to
consider the Gateway evidence in reaching its decision on
the plaintiffs? application. We address those arguments in
turn.

*315 A

The commission argues that the trial court?s ruling
regarding application of the Forest Walk factors
?constitutes an interlocutory ruling that should have been
treated as the law of the case in subsequent proceedings.?
We disagree.

?We consider whether a court correctly applied the law of
the case doctrine under an abuse of discretion standard.
The law of the case doctrine provides that [w]here a matter
has previously been ruled upon interlocutorily, the court
in a subsequent proceeding in the case may treat that
decision as the law of the case, if it is of the opinion that
the issue was correctly decided, in the absence of some new
or overriding circumstance.? (Emphasis added; internal
quotation marks omitted.) Perugini v. Giuliano, 148 Conn.
App. 861, 879-80, 89 A.3d 358 (2014).

Here, the court did not abuse its discretion by disregarding
the Forest Walk factors in reaching its decision to sustain
the plaintiffs? second appeal and remand the matter,
for the third time, to the commission. In the court's
June 23, 2014 remand order, it acknowledged that Forest
Walk, LLC, ?indicate[s]? that, ?with regard to capacity,
under the substantial evidence test, the commission must
consider? the four factors. At the time the court issued its
June, 2014 remand order, however, it was not aware of
the Gateway evidence. In light of the Gateway evidence-m-
which established new or overriding circumstances?aha
court properly exercised its discretion in disregarding the
Forest Walk factors, sustaining the plaintiffs' appeal, and

remanding the matter to the commission. 8

*316 

The commission next argues that the court improperly
concluded that it abused its discretion by allocating
to the plaintiffs l4,434 gallons per day of sewer
capacity. Speci?cally, the commission argues that the
court improperly (1) concluded that it was obligated to
consider the Gateway evidence in deciding the plaintiffs'
application, and (2) based its decision, at least in part, on
the Gateway evidence.

?in considering an application for sewer service, a water
pollution control authority performs an administrative
function related to the exercise of its 
When a water pollution control authority performs its
administrative functions, a reviewing court's standard of
review of the [authority's] action is limited to whether
it was illegal, arbitrary or in abuse of [its] discretion
Moreover, there is a strong presumption of regularity
in the proceedings of a public agency, and we give
such agencies broad discretion in the performance of
their administrative duties, provided that no statute or
regulation is 

?With respect to factual ?ndings, at reviewing court is
bound by the substantial evidence rule, according to
which, [c]onclusions reached by [the authority] must be
upheld by the trial court if they are reasonably supported
by the record. The credibility of the witnesses and the
determination of issues of fact are matters solely within the
province of the The question is not whether
the trial court would have reached the same conclusion,
but whether the record before the [authority] supports the

 

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Landmark {Development Gmup, LLC v. Water and A.3d w- (2018)

 

184 ConnApp. 303

decision *317 If a trial court ?nds that there is
substantial evidence to support a [water poliution control
authority?s] ?ndings, it cannot substitute its judgment as
to the weight of the evidence for that of the if
there is con?icting evidence in support of the [authority?s]
stated rationale, the reviewing court cannot substitute
its judgment for that of the The [authority?s]
decision must be sustained if an examination of the record
discloses evidence that supports any one of the reasons
Accordingly, we review the record to ascertain
whether it contains such substantial evidence and whether
the decision of the defendant was rendered in an arbitrary
or discriminatory fashion.? (Citations omitted; footnote
omitted; internal quotation marks omitted.) Forest Walk,
LLC v. Water Pollution Control Authority, supra, 291
Conn. at 285?87, 968 A.2d 345. We review the court's
decision to determine if, when reviewing the decision of
the administrative agency, it acted unreasonably, illegally,
or in abuse of its discretion. See Was]? v. Dept. of Public
Health, 60 Conn. App. 775, 781, 761 A.2d 257 (2000), cert.
denied, 255 Conn. 932, 767 A.2d 106 (2001).

On the basis of our previous conclusions in this
opinion?Le, that the court did not abuse its discretion
by (1) supplementing the record with the Gateway
evidence and (2) disregarding the Forest Walk factors
mwe conclude that the court did not act unreasonably,
illegally, or in abuse of its discretion when it sustained
the plaintiffs' appeal and remanded the matter to the
commission. Because the court property admitted the
Gateway evidence, it was free to consider that evidence
in reaching its decision on the plaintiffs' appeal. That
evidence demonstrated that the record, as supplemented,

Footnotes

did not reasonabiy support the conclusion of the
commission to grant a ?4,434 gallon daily allocation.
The evidence in the record as supplemented established
that the commission had an availabie capacity of 358,000
gallons per day, less the 166,000 gallons per day that
was effectively allocated to Gateway. There also was
evidence that an administrator of the commission, Kargl,
was aware of Gateway's capacity need and *318 the
existence of the plaintiffs then pending application.
Kargl, however, approved Gateway's application without
making a determination of the impact of the grant to
Gateway on the plaintiffs' application in light of the
remaining capacity available to the town. On the basis
of this evidence, the court properly determined that the
commission abused its discretion when it granted to the
piaintiffs only 14,434 galions per day of its 118,000 gallons
per day request, deSpite aliowing, without applying the
Forest Walk factors, Gateway's 166,000 gallons per day
connection permit application. On the basis of the record
as suppiemented, the court, in the exercise of its discretion,
could reasonably conclude that the commission treated
the plaintiffs inequitably and that an injustice had been
done. See Parslow v. Zoning Board of/lppeuls, supra, 110
Conn. App. at 354, 954 A.2d 275.

The judgment is af?rmed.

In this opinion the other judges concurred.
All Citations

A.3d 184 Conn.App. 303, 2018 WL 3966966

1 On February 20, 2015, two entities, Friends of the Oswegatchie Hills Nature Preserve, ll?lC., and Save the River~Save
the Hills, submitted a veri?ed petition to intervene, pursuant to General Statutes 22a?19, in the appeal between

the plaintiffs and the commission. In the petition, the entities argued, inter alla, that the plaintiffs



application involves

conduct which is reasonably likely to have the effect of unreasonably poltuting, impairing, or destroying the public trust
in the air, water and other natural resources of the State of Connecticut." The petitionhighlighted several environmental
considerations and noted that the Superior Court had found previously that the plainti?s? development posed a risk
of considerabte harm to the Oswegatchie Hills. On March 18, 2015, the court granted the petition to intervene. Both
the commission and the intervenors have appealed from the court's judgment sustaining the appeal. The
commission's appeal is assigned docket number AC 39804. The intervenors' appeal is assigned docket number AC
39806. The lntervenors did not appear in the proceedings before the commission to determine the sewer treatment
capacity available for the use of the plaintiffs, and did not submit any evidence in support of their claims. Because the
intervenors' claims on appeal essentialty are the same as the claims raised by the commission, and reEy on the record of
the proceedings before the commission made by the plaintiffs and the commission witnesses, we address both appeals

in a single opinioninns twat; int-t; it;

 

 

Landmark (Development Group, LLC v. Water and A.3d (2018)

 

184 Conn.App. 303

2

initially, the plaintiffs contended that the judgment of the trial court was not an appealable ?nal judgment, while the
commission argued that it was. At orai argument before this court, the pialntiffs? counsel conceded that the court?s July,
2018 decision was an appealaple ?nal judgment. We agree and note that judgment of remand is ?ne] if it so concludes
the rights of the parties that further proceedings cannot affect A judgment of remand is not ?nal, however, if
it requires [the agency to make] further evidentiary determinations that are not merely ministerial." (Citations omitted;
internal quotation marks omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 130, 653 A.2d 798 (1995). Here, the
court's judgment so conciuded the rights of the parties because it ordered that the commission must grant the piaintiffs?
appiication.

The dispute between the plaintiffs and the town has been ongoing for approximately eighteen years. Most of the facts
and procedural history related to the protracted dispute are not relevant to the issues in this appeal.

In its memorandum of decision, the court noted that Forest Walk, LLC, ?indicate[s] the following to the court with regard
to this appeal With regard to capacity, under the substantial evidence test, the commission must consider the
remaining capacity for the entire town, the land area represented by the property versus the available land area in
the town, the safe design standards for public sewers, and the percentage of allocation versus the totai remaining
capacity." We refer to these as the Forest Walk factors.

Gateway, unlike the plaintiffs, did not make an aliocation application prior to constructing its development.

The court found "that with the large amount of capacity remaining, the capacity figure of 14,434 gallons per day is
excessively low. There is an abuse of discretion that the [commission] must correct. Although the [commission] is not
required to grant the plaintiffs their request for 118,000 gailons per day, the capacity ?gure of 14,434 gallons per day
is insuf?cient in view of the present remaining capacity of at least 200,000 gallons per day, and in View of the 160,000
gailons per day that was approved for Nevertheless, the [commission] must provide the plaintiffs with sufficient
capacity to further the development of their project, and, as such, the [commission] may not settle on a ?gure for capacity
that would completely foreclose the development of the plaintiffs' project." From this ?nding, we can infer that the court
also found that the grant of 14,434 gailons per day foreclosed the plaintiffs from moving forward with their development.
Our Supreme Court?s decision in Clifford v. Planning 8 Zoning Commission, supra, 280 Conn. at 434, 908 A.2d 1049,
informs our resotution of this issue. in Clifford, the defendant commission (defendant) approved the proposal of the
defendant construction company (company) to store dynamite on the company?s property. Id, at 437, 908 A.2d 1049. The
plaintiff, Thomas Clifford, appealed to the trial court, and moved under to introduce supplemental evidence. id.,
at 437-38, 908 A.2d 1049. Speci?cally, Clifford sought to introduce prior site plan approvals forthe property at issue, which
established, inter alia, that the storage of hazardous and demolition materials on the property was expressly prohibited
and that before any further development could take place on the property, the company would need the approval of the
inlands wetlands commission. Id., at 445?46, 908 A.2d 1049. The trial court denied the motion. id, at 438, 908 A.2d 1049.
On appeal, our Supreme Court concluded that the trial court's denial of Clifford's motion under was an
abuse of discretion. id, at 445, 908 A.2d 1049. The court held that the additional evidence was necessary for the
equitable disposition of the appeal for two reasons. Id, at 448, 908 A.2d 1049. First, ?the evidence that [Clifford] sought
to introduce consisted of information that, viewed on its face, could weli have affected the [defendant?s] consideration of
[the company's] site pian application if it had been brought to the [defendant?s] attention, because the [evidence] revealed
conditions that the [defendant] itself previousiy had imposed upon [the company] id. Second, the motion under 
was Clifford's ?first reasonabie opportunity to bring to the court?s attention the limitations on the use of [the
company's] property that may well have affected the approval of the site plan application." Id., at 448?49, 908 A.2d 1049.
The court expressly stated that part of the Gateway evidence, speci?cally, the deposition of Kargl, estabiished facts that
made this case distinguishable from Forest Walk, LLC.

 

End. of Document (1:3 2018 Thomson Reuters. No claim to originai US. Government Works.

 

   

Exhibit 

Landmark Development Group, LLC v. Water and Sewer.

Slip Copy (2018)

 

330 Conn. 937

330 Conn. 937
Supreme Court of Connecticut.

LAN DMARK DEVELOPMENT GROUP, LLC, et al.
v.
WATER AN SEWER COMMISSION
OF the TOWN OF EAST LYME

Decided October 31, 2018
Attorneys and Law Firms

Mark S. Zamarka, in support of the petition.

Timothy S. Holiister, in opposition.
Opinion
*1 The defendant's petition for certi?cation to appeal

from the Appellate Court, 384 Conn. App. 303 (AC
39804), is denied.

1., did not participate in the consideration of
or decision on this petition.

All Citations

Slip Copy, 330 Conn. 937, 2018 WL 5925i81 (Table)

 

?led of ?oeoment

2918 Themeori Reutere. No ele?m to origieai US. Worke.

 

i?i?gi L?tgwif .1 git: E23. iizfifzir?xl? Me 5:21.: 

 

 

Landmark Deveiopment Group, LLC v; Water and Siip Copy (2018)
330 Conn. 937

 

Opinion
330 Conn. 937 . *1 The petition by the intervening defendants Friends of
Supreme Court Of Connecticut. the Oswegatchie Hills Nature Preserve, Inc, and Save the

River-Save the Hills, Inc., for certi?cation to appeal from

LANDMARK DEVELOPMENT GROUP, LLC, et a1. 
the Appeilate Court,x 184 Conn. App. 303 (AC 39806), is

V.

denied.
WATER AN SEWER COMMISSION
OF the TOWN OF EAST LYME
Decided October 31, 2018 ., dict not participate in the consideration of

or decision on this petition.
Attorneys and Law Firms

Ail Citations
Roger F. Reynotds, in support of the petition.

Slip Copy, 330 Conn. 937, 2018 WL 5920545 (Table)
Timothy S. Hollister, in opposition.

 

End of Decument 23818 Thomsen Renters: No cfa?m te orig?nal U5, Government Works.

 

 

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stgilt w; gage-s 3::3 i ?313: 3 int)? he; thirtii :3 ME #332; 26:2; game-.3: We 

 

 

A SHIPMAN a
GOODWIN

COUNSELORSAT LAW

Timothy S. Hoilister
Phone: (860) 251-5601
Fax: (860) 251?5318
thollister@goodwin.com

September 17, 2018

VIA PDF T0 ATTORNEY ZAMARKA

Mr. Mark Nickerson, Chair, Mr. Bradford C. Kargl

and Commission Members Municipal Utility Engineer
Water and Sewer Commission Water and Sewer Utilities
Town of East Lyme Town of East Lyme
108 Avenue 108 Avenue
P. O. Box 519 
Niantic, CT 06357-0519 Niantic, CT 06357?0519

Re: Landmark Development Group, LLC, et al. 12. East Lyme Water and Sewer
Commission

Dear Chair Nickerson, Commission Members, and Mr. Kargl:

It has come to our attention that the Commission will be meeting in executive session on
September 18, 2018 to consider Landmark's sewer capacity allocation application, and will
conduct its regular meeting on September 25, 2018.

The purpose of this letter is to request that the Commission, at its next regular meeting,
approve an allocation of sewer capacity to Landmark of 118,000 gpd, until such time as the
parties obtain a ?nal and unappealable decision regarding Landmark's sewer capacity
application.

At this time, a trial court judgment, af?rmed by the Appellate Court, requires the
Commission to grant Landmark "suf?cient capacity to further the development of [Landmark's]
project," and ?may not settle on a ?gure for capacity that would completely foreclose the
development of [Landmark's] project.? Moreover, in its court ?lings, the Commission has
conceded that it ?mugs; grant Landmark's application.

6981881

ONE PLAZA HARTFORD, 06103?1919 860-251?5000 

 

 

September 17, 20l8
Page 2

Landmark has a right to ensure that the Town of East Lyme does not undercut
Landmark?s judgment by allocating sewer capacity to others, especially those whose applications
or administrative requests were ?led after 2012. Meanwhile, Landmark has become aware of
applications made to Mr. Kargl or the Commission that will require sewer allocations or
commitments. The Town cannot defeat Landmark's rights to sewer capacity by allocating
capacity to others, or at some future time deny Landmark's application due to third-party
allocations that occurred while Landmark's court case was pending. Landmark is prepared to
seek a court order to enforce its rights, but hopes that the Commission will at least recognize
Landmark's right to an interim protection of its position, as well as avoid Town expense of
opposition to this request.

We request an answer to this request no later than the Commission's regular meeting of
September 25, 2018, with implementation subject to counsel drafting a mutually acceptable

resolution.

Thank you for your attention.

Very truly yours,
MIA
Timothy S. Hollister
TSHzekf

(3: Mark S. Zamarka, Esq. att.)
Glenn Russo att.)

Exhibit 

RESOLUTION REGARDING INTERIM SEWER CONNECTION PROCEDURE

SEPTEMBER 25, 2013

WHEREAS, on June 1, 2012, Landmark Development Group, LLC and Jarvis of
Cheshire (?Applicant?) filed with the East Lyme Water and Sewer Commission
("Commission"), acting as the East Lyme Water Pollution Control Authority, an
application ?pursuant to ?7?246a(1) of the General Statutes, seeking confirmation of the
availability of 237,090 gallons per day of sewage disposal capacity in the Town?s sewer
system to serve Landmark Development?s proposed residential development adjacent
to Caulkins Road"; and

WHEREAS, at the public hearing on the application held on August 24, 2012, Landmark
amended its application to request availability of 118,000 gallons per day of sewage
disposal capacity in the Town of East Lyme's (?Town") sewer system; and

WHEREAS, the Commission held three public hearings on the application and listened
to hours of testimony during these hearings. Numerous exhibits were submitted by
Landmark, the Commission, and individuals for consideration during the hearing
process. in making its decision the Commission is considering and taking into account
all of the testimony and exhibits submitted at the three hearings; and

WHEREAS, the Commission has wide discretion in connection with the decision to
supply sewer service to particular properties; and

WHEREAS, the Commission found that as of Landmark?s application in 2012, the Town
had between 130,000 and 225,000 gallons per day of remaining sewage treatment
capacny;and

WHEREAS, Landmark appealed the Commission?s capacity allocations to the
Connecticut Superior Court; and

WHEREAS, the New Britain Superior Court (Cohn, J.) (the ?Trial Court?) allowed
Landmark to conduct discovery regarding a sewer connection permit for a different
development project, known as ?Gateway,? and allowed Landmark to supplement the
record on appeal with documents related to the Gateway connection application; and

WHEREAS, on July 6, 2016, the Trial Court issued a Memorandum of Decision holding
in part that:

1. The Commission is not required to grant the plaintiffs their request for
118,000 gallons per day

2. The Commission .. must provide the plaintiffs with sufficient capacity to
further development of their project, and may not settle on a figure that
would completely foreclose the development of the plaintiffs? project."

renews 1; I

 

3. The Commission was obligated to consider capacity when it approved the
connection application for Gateway.?

WHEREAS, the Commission appealed the Memorandum of Decision to the Connecticut
Appellate Court; and

WHEREAS, on August 21, 2018, the Appellate Court issued its decision (?Decision?) on
the Commission's appeal, which upheld the Trial Court Memorandum of Decision, and
held that the Commission is required to perform a sewer capacity analysis when
considering applications to connect to the East Lyme sewer system; and

WHEREAS, the Commission disagrees with the Decision and has filed a petition for
certi?cation to the Connecticut Supreme Court, which is currently pending; and

WHEREAS, by a letter dated September 17, 2018, Landmark requested that the
Commission approve an allocation for its full 118,000 sewer capacity request,
pending ?nal resolution of its appeal; and

WHEREAS, neither the Trial Court nor the Appellate Court held that Landmark was
entitled to the full amount of its capacity request, and the proceedings are stayed until
the Supreme Court acts on the Commission's petition for certification. While reserving
all of its rights set forth during the appeal process, the Commission nevertheless does
not want to ignore the Trial Court and Appellate Court holdings that require a sewer
capacity analysis be done in conjunction with a sewer connection permit application.

BE IT THEREFORE RESOLVED, that the East Lyme Water and Sewer Commission,

acting as the Town?s Water Poliution Control Authority, hereby enacts the following
interim procedure:

1. An application to connect to the East Lyme sewer system for a project that
either (3) requests a connection for more than residential units or 
requires more than ?5 gallons per day of sewage treatment capacity, shall
also require an application for determination of sewer capacity pursuant to
General Statutes ?7~246a;

2. Said application for determination of sewer capacity shall be submitted either
prior to or contemporaneously with a sewer connection application;

3. An application to connect to the East Lyme sewer system may not be granted
if the Commission determines that there is not adequate sewer capacity for
the proposed use of iand.

4620394440 i 3

Ix.)

BE iT FURTHER RESOLVED that the above procedure does not reflect official policy or
procedure of the Commission or the Town of East Lyme. Rather, it is adopted on an
interim basis only in direct response to the Appellate Court Decision, and shall be in
place only during the pendency of the Landmark sewer capacity appeal process. in
enacting this interim procedure, the Commission does not agree with the holdings of the
Trial Court Memorandum of Decision or the Appellate Court Decision. Any ?ndings
made pursuant to this interim procedure (Le. available sewer capacity, etc.) shall be for
the purposes of that sewer capacity application only, and shall not be adopted,
incorporated or made part of the record in the pending Landmark sewer appeal.

:0911344423 1 i 3

Exhibit 

Appellate court rules against East Lyme in
sewage capacity case

Published September 06. 2018 1 Updated September 06. 2018 

By Martha Shanahan

In the latest step of a protracted legal battle between East Lyme?s Water and Sewer Commission
and the developer of a proposed housing development, an appellate court in Hartford has ruled that
the commission must grant the developer more access to the town's sewer system than the
commission wants to give it.

 

The town's lawyers plan to petition the state Supreme Court to appeal the Aug. 21 ruling, which
af?rms a state Superior Court judge?s 2016 order that the commission must reconsider the amount
of sewage capacity it is willing to grant for a pmposed 840-unit residential development adjacent
to the Oswegatchie Hills Nature Preserve along the Niantic River.

 

Over more than a decade, Landmark DevelOpment has sought to develop houses on the 236 acres
it owns in the Oswegatchie Hills.

The plan has generated local opposition, which in recent years has taken the form of a
coalition between Connecticut Fund for the Environment and two local groups arguing that the
deveIOpment would pollute the Niantic River and degrade wetlands on the property.

Landmark Development and its president, Glenn Russo, also have hit speedbumps before the
town's Water and Sewer Commission, which regulates new connections to the pipes and pumps
that bring sewage from East Lyme buildings through Waterford to a sewage treatment plant in
New London.

A deal between East Lyme, Waterford and New London allows each town to send a certain
amount of sewage to the New London sewage treatment plant 15 percent of the plant's
capacity, or about 1 million gallons a month in East Lyme's case and limits the towns' ability to
grant permission to build new sewer lines or allow new developments to connect to the existing
ones.

In 2014, the Water and Sewer Commission denied Landmark's request for a guaranteed 118,000
gallons of sewage capacity per day for the development.

Landmark appealed that decision in New London Superior Court in 2014, kicking off the ?ve-
year ongoing debate in several courts over the commission's claims that the town's sewage system
can't handle the amount of wastewater that a development the size of the Landmark proposal
would generate.

 

 

The commission's members said that year that it could allow Landmark to generate only 14,434

gallons per day in sewage for the proposed houses, a fraction of the 118,000 gallons per day
Landmark asked for in 2014.

Landmark's lawyers have argned that the commission granted the developer of a different housing
complex in East Lyme, Gateway Commons, about 70,000 gallons of sewage capacity per day and
told Gateway developers that the town had the capacity to handle about 100,000 additional gallons
per day from the deveIOpment. The commission's decision to grant that capacity to the Gateway
development shows the town has "ample" sewage capacity for the Oswegatchie Hills preposal,
they said.

Hartford Superior Court Judge Henry S. Cohn said in his 2016 ruling that 14,434 gallons per day
is ?excessively low" in light of the allocation to Gateway, and remanded the issue to the
commission.

Town lawyers say the Gateway development's sewer capacity has no bearing on the Landmark
case, because Gateway Commons is near one of the town's existing sewer lines and was relatively
easy to connect to the system, whereas Landmark's proposal would require the construction of a
new line.

The two development projects are "like apples and oranges," said East Lyme First Selectman Mark
Nickerson, who is also the chairman of the Water and Sewer Commission as directed by the
town's charter. "There?s a difference between a connection and an extension," he said.

The appeals court dismissed that argument last month.

"Although the commission concluded that it did not have suf?cient capacity to grant the plaintiffs
application for up to 118,000 gallons per day, (Gateway) had effectively been granted an
allocation of approximately 166,000 gallons per day,? the court wrote in its ruling.

"At the end of the day that's not a valid argument," said Timothy Hollister, an attorney with the
Hartford law firm Shipman Goodman representing Landmark in the case. "The Water and
Sewer Commission determined that the town as a whole has so much capacity that they can

grant 166,000 gallons to Gateway but they have fought Landmark tooth and nail on every gallon
of our request."

Nickerson said he is con?dent in the town's appeal.

The commission should have the ability to oversee management of its sewage systems without
court interference, he said.



He added that the extension of the sewer lines to the Oswegatchie Hills would constitute an
unsuitable use of the town's increasingly limited capacity for adding new inputs to the sewer

system and would eat up sewage capacity the town is saving for other neighborhoods where the
houses still use septic systems.

The Department of Energy and Environmental Protection has put pressure on the town to expand
sewer capacity to those neighborhoods to alleviate pressure on aging septic systems, which takes

priority over development proposals like the Landmark plan, Nickerson said.

"If we had unlimited capacity and unlimited funds, we would give out all sorts of capacity," he
said.

m.shanahan@thedav.com

Exhibit 

 

A SHIPMAN a
GOODWIN

COUNSELORSAT LAW

Timothy S. Hollister
Phone: (860) 251-5601
Fax: (860) 251-5318
thollister@goodwin.com

October 24, 2018

VIA PDF AND U.S. MAIL

Mr. Bradford C. Kargl
Municipal Utility Engineer
Town of East Lyme

108 Avenue
P. O. Box 519

Niantic, CT 06357-0519

Re: Freedom of Information Act Request

 

Dear Mr. Kargl:

We represent Landmark Development Group LLC and Jarvis of Cheshire, LLC (together,
"Landmark"). This letter is a Freedom of Information Act request made under Chapter 14 and
1-210 of the General Statutes. We request a copy of all documents dated or created
January 1, 2018 or after that relate in any way to the Water and Sewer Commission or the Town
of East Lyme providing sewer capacity or connection in excess of 5,000 GPD. This request
covers all uses such as residential, commercial, industrial, and institutional development and in
particular, the development on Flanders Road known as "Gateway," and its Phase commercial
development, including a possible Costco store. The undersigned will pay, in advance if
requested, for reasonable c0pying charges for the provision of these documents. Please bear in
mind the statutory deadline for the Commission's response to this request as stated in General
Statutes but also that this is a continuing request after the initial disclosure. The
undersigned will be happy to answer any questions about the scope of this request and otherwise
to expedite the response.

Very truly yours,

at: MA.

Timothy S. Hollister
TSHzekf
c: Mark S. Zamarka, Esq. (via pdt)
Glenn Russo, Landmark Development Group LLC (via pdi)

7037875

ONE CONSTITUTION PLAZA HARTFORD, 860-251-5000 . 

Exhibit 

- constructi

 

Pazz Construction, LLC
172 Boston Post Rd

East Lyme, Ct 06333

Town of East Lyme Water and Sewer Commission,

Pursuant to East Lyme Water Sewer Commission Regular Meeting Tuesday, September 
2018 Minutes

1. An application to connect to the East Lyme sewer system for a project either requests a
connection for more than 20 residential units or requires more than 5,000 gallons per day of
sewage treatment capacity, shall also require an application for determination of sewer capacity
pursuant to General Statues 7-2463.

This letter is to serve as an application to connect for more than 20 residential units. We are
currently in progress working towards an 8306 project located at 90 North Bride Brook Rd.
The property is an ideal location for an 8306, the property is located within the sewer shed and is
identified on the sewer mapping provided by the Town of East Lyme Water and Sewer Commission. 
The property has been assessed by the Sewer Department for such a connection. This letter is to serve
as notification of such project and the need for sewer capacity for this project. Our current estimate for

sewer capacity is 86,250 gallons per day. We estimate the project will consist of 575 bedrooms.

Regards,

Jason uaglia

 



 

Pazz Construction LLC

 

 

 

EAST LYME
WATER sewers 

 

 

 





Hes-aeglia

 

 

pazzconstruction.com 860.739.0863

Exhibit I

A SHIPMAN a
GOODWIN

COUNSELDRS AT LAW

Timothy S. Hollister
Phone: (860) 251-5601
Fax: (860) 251-5318
thoilister@goodwin.com

November 13, 2018

VIA HAND DELIVERY

Mr. Mark Nickerson, Chair, Mr. Bradford C. Kargl
and Commission Members Municipal Utility Engineer

Water and Sewer Commission Water and Sewer Utilities
Town of East Lyme Town of East Lyme
108 Avenue 108 Avenue
P. O. Box519 P. O. Box 519
Niantic, CT 06357-0519 Niantic, CT 06357?0519

Re: Landmark Development and Application of Gateway Commercial LLC for Sewer
Allocation for Costco Store

Dear Chair Nickerson, Commission Members, and Mr. Kargl:

As you know, we represent Landmark Development Group LLC and Jarvis of Cheshire
LLC ("Landmark"). Landmark has a legal and property right interest in the Costco application
because Landmark now has a ?nal court order directing the Commission to allocate sewer
capacity to Landmark's proposed residential development on its property adjacent to the ?Golden
Spur" residential area; and because the Connecticut Appellate Court?s August 2018 opinion
speci?cally referenced the sewer capacity allocated to Gateway as an encroachment on
Landmark?s rights. Thus Landmark has a legally protected interest in this Costco application.
Landmark?s rights, which stem ?om a 2012 application, need to be recognized and given priority
over any later-?led sewer capacity application, such as Costco?s.

The courts have now con?rmed that this Commission violated Landmark's rights by first
denying that Landmark's property was not in the town?s sewer district; then asserting that sewer
was unavailable; then denying any sewer capacity, claiming it was already allocated to others;
then allocating 13,000 then allocating 14,434 and then granting capacity it told the

7105448

ONE PLAZA HARTFORD, CONNECTICUT 06103?1919 860?251-5000 

 

November 13, 2018
Page 2

Court it did not have to Gateway. In issuing these rulings, the courts have rejected this
Commission's assertions of limited capacity, and have directed that this Commission must be
transparent and accurate in calculating available capacity; may not use sewers to control land
use; and must grant Landmark what it needs to proceed with its land use applications. What
Landmark needs will be determined by the [and use permit process, not by this Commission.

In response to the court rulings, East Lyme of?cials have been quoted as saying that
"a judge can't force us" to give Landmark sewer access. Such a statement, if enforced by this
Commission, will constitute contempt of court.

Therefore, in considering and before acting on the Costco application, this Commission
must do the following:

1. Grant Landmark's 2012 application by allocating 100.000 GPD,
conditioned upon Landmark receiving Preliminary Site Plan approval for its proposed residential
development. At this time, Landmark is willing to reduce its capacity allocation application
from 118,000 GPD to 100,000 GPD, in an effort to resolve the matter. It is important to
recognize that this is a maximum that will likely be reduced by the land use permit process. This
Commission must grant Landmark?s application conditionally and allow the land use permitting
process to determine what portion of the allocation will actually be used. Moreover, another
public hearing on Landmark's application is unnecessary, because the Commission?s obligation
is clear.

2. Recapture, and regard as available for town use, the capacity reserved to
State that will never be used. At this time, although the Town has ample capacity to grant
Landmark?s application, the Town needs to request that the State of Connecticut to release the
capacity, contracted for in 1990, that has never been used and will never be used. Several
hundred thousand GPD reserved for state facilities plainly will never be used. The Town has a
legal obligation to request the State to release this capacity; the 1990 contractual reservation is
now factually and legally unsupportable. In a recent, similar case, the New Jersey Supreme
Court held that a town's refusal to recapture contracted but never-to-be?used capacity was an
illegal sewer system management practice. See 388 Route 22 Readington Realty Holdings, LLC
v. Township of Readington, 221 NJ. 318, 113 A.3d 744 (2015) (copy enclosed). This recapture

requirement may also apply to other overstated, unused allocations such as the Point O'Woods
allocation.

In summary, this Commission, in considering the Costco application, must at this time
conditionally grant Landmark 100,000 GPD of sewer discharge capacity, and protect this grant

November 13, 2018
Page 3

against other applications ?led after 2012. This allocation should be set aside and preserved
until such time as Landmark obtains Preliminary Site Plan approval of its development plan, at
which time the Commission will approve the actual amount to be used.

Very truly yours,
ML,
Timothy S. Hollister

TSHiekf
Enclosure

0: Mark S. Zamarka, Esq. enc.)
Landmark Development Group LLC enc.)

1 Exhibit 

asst it?i?d? WAQTER gt SEWER. 
HEARIMG 
Teasda?g?, N?tiE?gE? 33th. E?i?
idEidi?TES

The East Lyme Water Sewer Commission held a Public Hearing on November 13, 2018 at Town Hall,
108 Avenue, Niantic, Connecticut on the Application of GDEL Commerciai for
determination of sewer capacity for a Costco Retail Store at 284 Flanders Road, Map 31.3, Lot 1.
Chairman Nickerson called the Public Hearing to order at 6:32 PM.

PRESENT: Mark Nickerson, Chairman, Steve DiGiovcnno, Dove Jacques, Dove
Murphy, Joe Mingo, Carol Russell, Roger Spencer, Dove Zoller

ALSO PRESENT: Attorney Theodore Harris, Representing the Applicant
Attorney Edward O'Connell, Town Counsel
Attorney Mark Town Counsel
Joe Brcgew, Public Works Director
Bred Municipal Utility Engineer
EAST LYME

ABSENT: Dove Bond .

    

Pledge of Allegiance
The Pledge was observed.

Public Hearing 
9 Application of GDEL Commercial, LLC for determination of sewer capacity for at Costco Retail
Store at 284 Flanders Road, Map 31.3, Lot 1.

Chairman Nickerson called the Public Hearing to order at 6:32 PM. He noted that the Notice of Public
Hearing had been published in the New London Day on November 1, 2018 and November 8. 2018. He
then called upon the applicant or the applicant?s representative to present their request.

Attorney Theodore Harris, representing the applicant said that the Costco would be located to the west
side of Flanders Road along l?95. Costco is the large format store under the Master Plan for the Gateway
District that was approved by the Zoning Commission in 2008. Design and approvals for the Costco have
been in process over the last several years and currently all local, State and Federal permits have been
obtained. The application for a building permit has been filed and should be approved within these next
few weeks. There was a demand for residential housing and that component was developed; during that
time the Costco interest developed. He noted the spreadsheet comparatives on other Costco stores
sewer demand that he had presented. This was entered as Exhibit 1. He said that the actual is less than
what was calculated and that they had atso found the same to be true with the residential component 
the actual is less than what was originally calculated. This is anticipated to be the same.

Ms. Russell asked about statistics for the Food Court, Meat department and why the bathrooms were not
included.

Attorney Harris said that the Food Courts and Meat Departments are constants and maximum demand
areas ?just as they would he with the store in East Lyme.

Mr. Jacques asked where the 99 GM came from in the email.

Mr. Kargl and Mr. Harris said that it is from an actual meter reading.

Mr. Spencer noted that the calculation would not come out correctly.

Mr. Nickerson said that they have provided very real data from actual comparative stores.
Mr. Murphy asked if it would have a brown water system.

 

 

Mr. Harris said that he was not sure.
Mr. Nickerson said that they would be using well water for irrigation, etc.

Mr. Niokerson asked if there were any comments from the public -

Attorney Timothy Hollister, place of business, Hartford, representing Landmark Development said
that he had a letter that he submitted and would like to read into the record. (Exhibit 2) He noted that
Landmark has a legally protected interest in the Costco application as outlined in his letter. He asked
where the capacity study was for the Costco request as he had not heard anything on it. He noted that
Gateway did not begin until late 2012 and that Landmark?s application preceded it.

Attorney Roger Reynolds, place of business not identi?ed, - representing Friends of Oswegatchie Hills
and Save the River, Save the Hills as interveners with regard to the Landmark application said that he
objected to what Attorney Holiister had said with regard to the Courts on the capacity issue in relation to
the remaining capacity and what they should allow Landmark.

Mr. Nickerson said that while he is trying to give some leeway here that he wants to stay focused on the
Costco application as there are other applications that will also be coming before them in the future.
Mr. Reynolds said that Landmark?s assessment is not related to Costco.

Mr. Harris said that he did read the Court memorandum and noteci that Gateway was already granted
160,000 god and that they really could use some of that. His letter to the Commission was submitted and
entered as Exhibit 3.

Mr. Nickerson asked if there were other comments.

(1)

Mr. Mingo moved to close the Public Hearing.

Mr. DiGiovanna seconded the motion.

Mr. Nickerson noted that they would have other applications coming before them for sewer capacity.

Mr. Kargl said that information was based on the Weston Sampson study of 2012 and that since that
time he has taken the data and come up with an analysis on available (262,000 gpd) based on the
maximum average over six (6) years. He noted that the New London plant has 10M god of
maximum capacity which they cannot exceed.

Mr. Nickerson noted that the 262,000 god is a moving target and that the 7,650 request is
approximately 3% of our capacity.

Attorney Hoilister said that what Mr. Kargl just explained is the essence of the capacity study. He would
like him to circulate his analysis and for them to postpone closing the public hearing as they have a right
to review that information.

A vote was called for the motion and second on the floor.
Vote: 8 -- 0 0. Motion passed.

Mr. Nickerson closed this Public Hearing at 7:14 PM.

Reapectfully submitted,
Karen 

Recording Secretary
(Exhibits 1, 2 3 attached)

East Lyme Water Sewer Commission Public Hearing I Minutes .. November 13, 2018 2

Exhibit 

Egg? Li?iis?ig Ea SEWER 
RE?i?i?iR is?iEgi?dQ
NGVEMSER 2913


The East Lyme Water Sewer Commission heid a Regular Meeting on Tuesday, November 18, 2018
at the East Lyme Town Hall, 108 Avenue. Niantic, CT. Chairman Nickerson called the
Regular Meeting to order at 7:15 PM immediately following the previously scheduled Public Hearing.

PRESENT: Mark Nickerson, Chairman, Steve Dislovanno. Dove Jacques,
Dave Murphy, Joe Mingo, Carol Russell. Roger Spencer, Dove
Zoller

ALSO PRESENT: Attorney Theodore Harris, Representing the Applicant
Attorney Edward O'Connell. Town Counsel
Attorney Mark Zomorko, Town Counsel
Joe Brogow, Public Works. Director FILED IN EAST LYME
Brod Ker-gt, Municipal U?ll?l?y Engineer COMMECTISUT
Anna Johnson, Finance Director Ny?/Woj?ei? Wig?mm



?swam CLERK 

   

ABSENT: Dove Bond

1. Call to Order! Pledge of Allegiance

Chairman Nickerson called the Regular Meeting of the East Lyme Water Sewer Commission to order
at 7:15 PM immediately following the previously scheduled Public Hearing which was closed at 7:14
PM. The Pledge was previously observed.

2. Approval of Minutes

a Public Hearing Meeting Minutes October 23, 2018

- Regular Meeting Minutes October 23, 2018

Mr. Nickerson called for a motion or any discussion or corrections to the Public Hearing Meeting
Minutes or Regular Meeting Minutes of October 23. 2018.

(1)

Mr. DiGiovanna moved to approve the Public Hearing Meeting Minutes and the Regular Meeting
Minutes of October 23, 2018 as presented.

Mr. Zoller seconded the motion.

Vote: 6 - 0 2? Motion passed.

Abstained: Mr. Nickerson, Mr. Jacques

3. Delegations
Mr. Nickerson called for delegations.
There were no delegations.

4. Consider Allocation of Sewer Capacity for Costco
Mr. Mingo said that the 160,000 that was approved for Gateway does not necessitate going any
further as the Costco can get capacity from there.

Mr. Nickerson said that they should go through the process anyways they are looking for 7,650 
from the approximate 262,000 available.
Mr. Mingo asked for the Attorney to rule on it.

Attorney Zamarka, Town Counsel said that the 160,000 is a court analysis. He noted that they are
here by Resolution and added that Attorney Hollister is correct that Landmark does have an interest in
the Costco application as the Landmark application is also out there for capacity. Costco does need to
be analyzed for available capacity.

Mr. DiGiovanna asked if that isn?t what Brad came up with in his analysis.
Mr. Kargl said that he woutd feel more comfortable with his analysis once he has conversation with the
DEEP on it and receives their input.

Mr. Mingo asked if he would be correct that they should not put a motion on the ?oor and asked
Counsel if that is within the parameters.

Attorney Zamarka said that it would not be out of order as long as it would not exceed the 118,000 
that Landmark is seeking.

(2)
Mr. Mingo moved to grant Costco sewer capacity in the amount of 7,650 GPD as requested.
Mr. DiGiovanna seconded the motion.

Ms. Russell said that she has a concern with going with an estimate on the 262,000 rather than a
more definitive number.

Mr. Nickerson said that he has enough con?dence in Mr. Kargi that he is pretty accurate and further the
Court is aware of the number of 160,000 given to Gateway. Further, he added that he would love to
pursue the State capacity that is sitting out there unused even though they claim that they wiil use it.

Ms. Russell said that she feels that it is difficult to wrap yourself around as the ?gures ?uctuate.
Mr. Kargl said that is exactly why he took an average.

Mr. Mingo said that based on the new resolution that those below 5,000 can just have it two of
those added together wiit have eaten up the 7.650 and them some so it is a moot point.

Mr. Jacques asked Mr. Kargl what he woutci be asking the DEEP.
Mr. Kargt said that he would be asking what they would be looking at as it states that we have 15% of
the 10M but what is the metric that is being used and is that the starting number.

Mr. Mingo asked Mr. Kargl what the next step would be.
Mr. Kargi asked that he be allowed to complete the process that he has started.
Mr. Nickerson called for a vote on the motion.

Vote: 7 1 0. Motion passed.
Against: Ms. Russell
(Note: a brief break was taken here)

5. Set Public Hearing Dates for Sewer Capacity Applications

Mr. Nickerson asked Attorney Zamarka for input.

Attorney Zamarka said that in fotlowing the iand use statutes for time frames that he would suggest that
any new application public hearings are set towards the farther and.

Mr. Nickerson said that they woutd have to set more meetings as there are a number in the pipeline so
the parameters will have to be set. They would have to determine if they woutd give sewer capacity
?tickets? and if they would have an expiration date. They have specific meeting dates to establish
procedures.

Attorney Zamarka said that he is not aware of other applications that were speci?c to this and not a
zoning application. He suggested that perhaps as of this date that they have 65 days to schedule.

East Lyme Water a Sewer Commission Regular Meeting Minutes -- November 13, 2018 2

Mr. Mingo asked for a legal opinion regarding what would stop the Old Lyme beaches from going to
Waterford or New London for sewer capacity and bypassing as completely.

Attorney O'Connell, Town Counsel said that the DEEP does not recognize beach communities as a
WPCA agency. Those communities are a quasi-municipality and are communities that are setup by
special act.

Mr. Nickerson suggested that they set the public hearing for JAG, Gateway ii (120 apartments) and
Pazzaglia for January before their regular meeting on that same evening as long as it falls within the 65
days. it was determined that they would have to hold that public hearing on January 8. 2019.

Mr. Nickerscn asked Mr. Kargl to have the capacity information for them for their December meeting.

6. Landmark Remand Hearing Procedure

Attorney Zamarka noted the current status of the case for Landmark and that it was remanded a
number of times. The latest being that in August the Judge upheld the decision of Judge Cohen's ruling.
They petitioned the Supreme Court and the Supreme Court denied their petition so Judge Cohen?s
decision stands. He explained that while the 14,0009pd ?gure was low that is does not mean that the
118,0009pd that they requested has to be granted. The Commission has to grant somewhere between
the 14,000 and 118,000 while taking into consideration that they cannot deny use of the
property or make it non?usable. He noted that the New Jersey case that was cited in Attorney Hollister?s
letter would not be relevant here. He added that Attorneys Hollister and Reynolds have requested to
address the remand process in the Landmark case.

Mr. Nickerson asked if he would suggest how/when they should proceed. Should they set up special
meetings.

Attorney Zamarka said that he feels that it would be in their best interest to reach a decision on the
Landmark capacity prior to the other applications. They have more than suf?cient information to work
with on that and would concur that special meetings should be set.

Mr. Mingo said that he takes issue with listening to anymore attorneys this evening and that without the
capacity figure that it is a waste of time.

Mr. Nickerson said that he would allow them only three (3) minutes each and asked that they focus on
the remand issue.

Attorney said that he mostly agrees with Mr. Mingo especially on the capacity issue/DEEP as
otherwise they are ?ying blind. He cautioned that their decision cannot be on controlling land use and

that the decision is between 14,000 and the figure that they provided this evening of 100,000
but should be no where near the 14,000 gpd. They need to get a fair number and that legally they
should be granted the 100,000 and then let the land use arena make their determination.

Attorney Reynolds said that Attorney Hollister has said that they have to allow the project to proceed
but that is not what was said. While they cannot shut down the project, 814 units are not reasonable as
there has not been an 800 unit project in this area. Gateway may in the end be 400 units but that would
have been the maximum number so 814 units are just unreasonable. Further they haven't actually seen
projects of more than 100 units so to do that size project would be far less than for the 800 that they are
seeking.

Mr. Nickerson said that they would have their Regular Meeting on December 11, 2018 and a Special
Meeting on December 18, 2018 for the Landmark remand.

Mr. Mingo noted that they need to remember that they are m; a land use agency.

7. Waterfordn?hree Beaches Letter
Mr. Nickerson asked Attorney O?Connell to review this.

Attorney O?Connell explained that they had received a letter from Chairman Green of the Waterford
Utility Commission stating that they object to East Lyme contracting with three (3) beach communities

East Lyme Water Sewer Commission Regular Meeting Minutes -- November 13, 2018 3

 

(Old Lyme) to take their sewer flow as that fiow will affect Waterford's sewer system infrastructure
without Waterford approving the terms and conditions of use. Mr. Nickerson sent a letter in response
stating that they could not ?nd anything prohibiting it and that in fact they were ordered by the CT DEEP
to accept sewage flow from the beach communities and to enter into an agreement with them. This was
imposed upon East Lyme and the DEEP did not order Waterford to do anything. Also, East Lyme paid
Waterford a substantial sum for the right to transmit sewage (up to 8M gpd) through Waterford?s mains.

8. Billing Adjustments
There were none.

9. Approval of Bills

Mr. Nickerson called for a motion on the Niantic Pattagansett Pump Station PER bill.

(3)

Mr. DiGiovanna moved to approve payment of the following Niantic Pattagansett Pump Station
PER biil: Weston Sampson, lnv, #485250 in the amount of $58,605.00.

Mr. Zolier seconded the motion.

Vote: 8 - 0 0. Motion passed.

Mr. Nickerson called for a motion on the Booster Station Upgrades bills.

(4)

Mr. DtGiovanna moved to approve payment of the following Booster Station Upgrades bills:
Integrated Control Systems tnv. #3202 in the amount of $5,700.00 and Integrated Control
Systems lnv. #3203 in the amount of $710.00.

Mr. Zoller seconded the motion.

Vote: 8 - 0 0. Motion passed.

Mr. Nickerson calted for a motion on the Water Main improvement bills.

(5)

Mr. DiGiovanna moved to approve payment of the following Water Main Improvement bills: 
Construction lnv. #73558 in the amount of $12,193.00 and 3&1. Construction lnv. #73559 in the
amount of $5,311.49.

Mr. Spencer seconded the motion.

Vote: 8 - 0 0. Motion passed.

10. Finance Director Report

Ms. Johnson said that she would get the information to them once ali of it was entered into the system
as it was not ready at this time. She recatied that she had requested the closing out of projects and that
had been done along with another one that was completed.

11. Water 8: Sewer Operating Budget Status Reports

Mr. Bragaw noted that they had been provided with the spreadsheet as well as the assumptions that he
had made with regard to the Welt 1A and 6 upcoming projects. He noted that it assumes a 2.75% water
budget increase each year over the next eight (8) years. There are anticipated increased revenues as
well and with all of this in mind he said that he felt that they could reasonably afford going forward with
the Well 1A and 6 projects white still being able to pay for and implement the meter replacement
project. He also noted that they need to get our of the meter deposit business.

12. Water Project Updates

- Welt 1A and 6 Treatment Plant Modifications and Upgrades -- Discussion and Possible
Project Authorization for Construction Phase

Mr. Kargl recalled that the issue here was affordability and that Mr. Bragaw was working on that aspect.

Mr. Bragaw explained that they had a debt spike this year but then it goes way down so he felt for the

reasons cited above that they could afford this project.

East Lyme Water Sewer Commission Reguiar Meeting Minutes -- November 13, 2018 4

 (6)

Mr. DiGiovanna moved to toward the Well 1A and Well 6 Water Treatment Project with an
estimated cost of $4,640,000 to the Board of Selectmen for approval and to begin the
authorization process.

Mr. Zoller seconded the motion.

Vote: 8 0 - 0. Motion passed.

13. Correspondence Log
There were no comments.

14. Chairman?s Report

Mr. Nickerson reported that he had held a meeting on a new Public Safety building going forward and
that the proposed project is for for the current Honeywell building as they are leaving their building
here and moving to another area in Connecticut. They have made a purchase and sales agreement that
is contingent upon all approvals. They need to get the Police out of the-downtown building which has a
lot of issues not to mention space. He said that he would like to do this within 120 days and get it to
referendum as it is a very important project and this building is well set up for this and for future
expansion of the important emergency management system.

15. Appoint Water Regulations Subcommittee
Mr. Bragaw said that they are moving forward with the water regulations as this is necessary to support
the meter replacement project.

Mr. Mingo said that the subcommittee that is for the sewer regulations serves for both so they would
also work on the water regulations.

Mr. Bragaw asked if Mr. Mingo. Mr. Zoller and Ms. Russell are still interested in serving on this
subcommittee and if anyone else wishes to serve on it, they could let him know.

16. Assistant Utility Engineer Update

Mr. Bragaw said that they held interviews and that the skill set is a tough one. They have found that
they need very strong water skills so they decided to go back out and advertise again for that certain
type of person and skill set as he suspects that some of the people who may have been interested were
very strong with the water side but did not apply due to how the description was worded. They will re?
advertise and reaassess.

17. Staff Updates

a. Water Department Report
Mr. Murphy noted that there is still 31% that has to come from New London as we have only taken 69%.
He asked if they are going to make it before they have to start pumping back.
Mr. Kargl said that they are using it to ?ush the hydrants in the north end of Town and that Well 1A will
also go off for surging so that will mean that they will utilize more. He said that he is hoping that they will
get close to the 100%.

b. Sewer Department Report
There were no comments.

18. Future Agenda Items
No comments.

19. ADJOURNMENT
Mr. Nickerson called for a motion to adjourn.

East Lyme Water Sewer Commission Regular Meeting Minutes November 13, 2018 5

 

(7)

Mr. Murphy moved to adjourn this Regular Meeting of the East Lyme Water Sewer
Commission at 8:51 PM.

Mr. DiGiovanna seconded the motion.

Vote: 8 0 0. Motion passed.

Respectfully submitted,

Karen Zmitruk,
Recording Secretary

East Lyme Water Sewer Commission Regular Meeting Minutes November 13, 2018

Exhibit 

NO. HHD LND CV 15 60566378 SUPERIOR COURT

LANDMARK DEVELOPMENT . 
GROUP LLC, ET AL. JUDICIAL DISTRICT
OF HARTFORD
v. LAND USE DOCKET
EAST LYME WATER AND SEWER
COMMISSION NOVEMBER 27, 2018
AFFIDAVIT OF GLENN RUSSO

 

I, GLENN RUSSO, being duly sworn, depose and state as follows:

1. I am over the age of 18 and believe in the obligations of an oath.
2. I am a resident of Middletown, Connecticut.
3. I am President of Landmark Development Group, LLC and Jarvis of

Cheshire, LLC.

4. At its regular meeting on November 13, 2018, the Commission scheduled
a Special meeting for December 11, to consider what new criteria it will devise and use to act on
Landmark's application on remand.

5. During the November 13 discussion, Chair Nickerson stated that action on
Landmark would be based on "what is fair, given the size of our town.?

6. At the November 13 meeting, Attorney Roger Reynolds, representing
environmental intervenors, advocated that the Commission base the sewer allocation on
controlling land use, by granting capacity for 110 residential units (about 20,000 GPD), that
being the "average size? of a 8?30g affordable housing development.

7. At the November 13 meeting, the Commission discussed action in
January 2019 on other sewer capacity applications, including 120 additional residential units for

Gateway (and thus above its 275 unit plan; and a new application seeking 86,000i GPD.

7135041

8. At the November 13, 2018 hearing on the Costco application, Sewer
Administrator Kargl stated that the Gateway residential portion is actually using "about halt? of
its projected need.

9. At the November 13, 2018 hearing, none of the Commissioners or the
Town Attorney discussed giving Landmark's application, which dates to 2012, priority over

applications ?led later, much less in 2018.

XL 9244*?

   

GLENN RUSSO
Subscribed and sworn to before me
this 27th day of November, 2018.
.ommissioner of uperi CHRISTAL SHEPPARD
Notary Public My Commission Expires NOTARY PUBUG

COMMISSION 90911158 MM. 31. 2022

Exhibi 

 

 

$1

3

AGENDA it

..



EAST LYME

mm a SEWER 
if I 4 2?31

1

7

 

 

 

Sewer Department Report

Oct-17 Running Avg:

*Dalty Avg:
Batty Max:
Batty Min:

Nov-17

822.550 GPD

752.273 GFD
952.760 GPD
576,560 

Daily Average as 3 Percent of Running Average:
Dally Average as 3 Percent at 1.5 M80 Allotment at 

State CT Fiows:

91.45%

50.15%

 

DOC

Camp Niantic

Rocky Neck pow

Total

 

Actual GPD AVG.

149,741

4,555

0 9,713

134.009

 

Design GPD AVG.

250.009

58.400

54,600 105,000

475,000

 

of Design GPO

59.9%

7.80%

0 9.25%

34.31%

 

?In of East Lyme Average Daily Ftow

19.91%

0.61%

0.00% 1 29%

21.80%

 

of East Lyme 1.5 MGD Allotment

 

9.98%

 

0.30%

 

0.00% 0.65%

 

 

10.93%

 

Footnotes:

NR No Reading

 

EXHIBITA

 

EAST LYME SEWER FLOWS HISTORY

JAN.
FEB.
MAR.
APR.
MAY
JUN.
JUL.
AUG.
SEPT.
OCT.
NOV.
DEC.

AVG.

2010?'
1.037.939
1.001.094
1.424.903
1.341.021
1.110.627
1.067.205
1.117.093
1.040.309
932.705
928.254
869.937
902.347

1.053.094

2011
910.010
959.700

1.001.537
939.509

1.046.507

1.017.256

1.027.843
970.097

1.107.520
905.767
903.002

1.133.107

1.010.895

2012
955.431
012.442
885.778
01 5.628
1.016.580
995.993
1.026.063
1.018.430
912.093
049.710
953.598
983.849

961.551

2013??

975.330
1.010.625
1.139.232
1.042.500
1.057.182
1.243.099
1.217.939
1.203.703
1.288.055
1.020.390

920.015

944.611

1.089.279

2014
1011.343
994.771
1.026.812
1.120.050
1.145.107
1.007.792
1.030.503
999.147
837.700
052.201
797.709
335.250

971.886

2015
787.645
832.581
1.017.280
038.801
913.816
880.190
1.048.427
977.543
878.563
851.521
803.842
788.121

884.041

2015
747.294
009.701
790.051
799.011
777.440
015.201
079.952
068.636
762.544
739.247
709 491
728.649

785 300

201?

784.837
755.540
777.452
807.151
872.288
849.504
883.851
873.017
759.493
752.273

822.550

(1) March 30. 2010 storm event? 8.88 inches of 7910/1643 inches of ram for the month (Wei: 3131138 rain gauge)

(2) 1055100009 of ram for June 2013 (W511 3.1038 rain gauge)

7 18 Inches of rain for July 2013 (Well ENBE ram gauge)

"In 44- Prev. Yr.

5 03%
5.44%
4.59%
12.62%
12.20%
4.20%
0.44%
0.50%
0.91%
1.90%

400.00%

400.00%

3.07%

Precip. Totai

Precip.

2017 (10.)
3.87 .
2.05
3.89
7.34
6.03
4.83
2.23
2.79
2.42
7.22

42 57

EXHIBITB