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East Lyme officials: Recent court ruling strains town’s dwindling sewage capacity

December 1, 2018

East Lyme — The state’s Supreme Court recently upheld an August ruling which states that the town must grant a developer proposing to build affordable housing in the Oswegatchie Hills more access to the town’s sewer system.

The town, as well as local environmental groups opposed to the development, tried in September to appeal that August ruling, which affirms a state Superior Court judge’s 2016 order. Both were denied those requests last month, appearing to end a now five-year court battle between the town of East Lyme and Landmark Development Group over sewer capacity.

Since 2001, Landmark Development has sought to develop housing on the 236 acres it owns in the Oswegatchie Hills, filing several zoning applications, as well as subsequent appeals, to see that through. In its most recent application to the town, the development has outlined building 840 units of housing on that location. Presently, an application with the town’s Zoning Department is awaiting its own court ruling after Landmark appealed the town’s approval of that application with several outlined conditions.

As of Tuesday, Landmark has filed another motion with the Superior Court requesting a court order demanding the town grant Landmark more than 100,000 gallons of sewage capacity.

Glenn Russo, president of Landmark Development Group and owner of the Oswegatchie property, argued Tuesday that the town continually has found ways to skirt around his requests to build affordable housing. As one example, he said Gateway Commons, another incoming development, was granted its own sewage capacity a year after the town denied Landmark’s request.

“Let’s not kid ourselves. East Lyme does not want affordable housing in their town,” Russo said by phone Tuesday. “They have been fighting me tooth and nail for 17 years. Their arguments are all coming to an end, because we have a final ruling which is no longer appealable.”

The denial of October’s appeal poses several challenges for town officials working to properly allocate the town’s “finite” sewage capacity to several other residential development proposals in the pipeline.

At a recent commission meeting, municipal engineer Brad Kargl said he estimated that 262,000 gallons of the town’s 1.5 million daily capacity still were available — a number contracted with the city of New London, which oversees the treatment plant where East Lyme sends its sewage.

Attorneys on both sides are disputing both the Supreme Court and Appellate Court rulings’ exact interpretation.

First Selectman Mark Nickerson said the town’s attorney argues that August’s court ruling did not specify an exact number of gallons that the town must allocate to Landmark for daily use. Nickerson, who is also the chairman of the Water and Sewer Commission, said the town must allocate somewhere between the 14,434 gallons reserved to the development in 2014 and 118,000 gallons originally requested by Landmark with the commission — enough, at least, to not prevent that project.

Landmark’s attorney, Tim Hollister, disputed that argument at a recent Water and Sewer Commission public hearing regarding Costco’s capacity, stating the town must reserve 118,000 gallons for Landmark.

While Nickerson conceded that the commission will allocate tens of thousands of daily-use gallons to Landmark in coming weeks, he maintains that the town “does not have to give (Russo) all of what he is asking for.”

“We are staying clear on that,” he said. “We are confident that our attorney has correctly interpreted the ruling.”

Landmark’s proposal has generated much local opposition over the last 17 years. And in recent years, that opposition has taken the form of a coalition between Connecticut Fund for the Environment and two local groups, Friends of Oswegatchie Hills and Save the River-Save the Hills. The groups have argued that the development would pollute the Niantic River and degrade wetlands on the property.

For Kris Lambert of Friends of Oswegatchie Hills, the court’s recent decision presents a significant roadblock in her group’s efforts to purchase the land owned by Landmark — a piece of property that abuts the Oswegatchie Hills preserve that Lambert’s group tends to. She said the group hopes to combine Landmark’s property with the existing preserve.

“The development is not a done deal, but this decision does get (Russo) one step closer to what he wants, making it more difficult for us to buy that property,” Lambert said. “I have no facts to back that up, but each step he takes makes it more difficult for us.”

“We want people to be aware that a lot is still going on and we are still there fighting,” she said.

Moving forward, Nickerson said he and the commission will have to determine a process “with rules and parameters” on how to allocate the rest of the town’s sewage capacity. He stated that four incoming housing developments are in line to receive capacity allocations and that many homes already have paid to potentially hook up into the town’s sewage line in the future. He nor Kargl could confirm Tuesday how many homes have the potential to do that.

“If we issue capacity, there’s also the question of how long someone can hold on to that capacity without building,” Nickerson said. “If a project stalls, I can’t hold up the economic development of our town. Those are issues we still have to look at.”

He also said the town would like to extend sewer lines to other neighborhoods, though he wasn’t sure if that would be a possibility, considering the limited sewage capacity available.

Nickerson said that an agreement outlined with New London and Waterford states that there is no capability for sewage expansion, though the three towns will renegotiate their sewage needs in two years.

He said the commission plans to speak and decide on allocation issues during upcoming meetings. The next scheduled regular meeting is on Dec. 11. A special meeting to allocate sewage to Landmark will be held on Dec. 18.

m.biekert@theday.com

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