Protect the Partrick Wetlands
and our Community

P&Z Decision on Housing Plan Prompts Another Lawsuit

By Kirk Lang

Two separate lawsuits have been filed by neighbors against the Planning and Zoning Commission's denial without prejudice decision regarding ARS Partners' application to develop the former F.D. Rich property.

One is appealing the decision based on environmental concerns while the other focuses on zoning issues. Both appeals, however, seek the same thing an outright denial of the ARS Partners application rather than a denial without prejudice. Arthur Cohen, who filed the environment-based appeal, also filed an intervention petition based on environmental grounds during the public hearing process. According to P&Z Director Katherine Barnard, such a petition puts the burden on the P&Z to come up with substantial reasons, if they were to approve the application, as to how a proposed project is not impacting environmental issues.

Bert and Barbara Aber and Mark and Gayle Van Summern claim that the ARS application does not comply with various zoning regulations and state statutes. However, in the zoning board's denial without prejudice, the P&Z only asked the applicant to conduct further testing and address areas outlined as usable open space.

"The commission denied the application without prejudice," said Barnard, " because it didn't feel it had sufficient testing of the site. The commission wanted additional testing on all areas to be disturbed. It was uncomfortable with the information submitted into the record, which was old. The commission wanted more current testing. What was submitted wasn't current enough or complete enough."

Some neighbors against the proposal believed the intent of the denial was to get adequate testing done and then have the P&Z address other issues of concern about 22 single family homes planned for roughly nine acres of the ARS site, much of which is wetlands. However, ARS attorney Larry Weisman, according to his appeal, is of the opinion that the denial without prejudice "constitutes a recognition that the plaintiff's application complies in all respects with the applicable regulations," other than what the P&Z, in its denial, has asked ARS to address.

Bert Aber, in a letter to the editor Wednesday, said, "Larry Weisman was curiously quoted as pleased with the Planning and Zoning Commission's denial of his client's plan to overdevelop the Partrick Wetlands and northwestern Westport.

"His optimism was based on the flawed premise that some form of passive or tacit approval was granted with the denial. Essentially saying, since they only denied the application for environmental reasons everything else is acceptable. This is simply not the case. The denial without prejudice that was suggested by First Selectman Diane Goss Farrell was to allow an independent third party to review and test the known contaminated property and then allow ARS to re-submit a plan for full and comprehensive review. That's it.

"The question of environmental impact was purposefully the only issue decided upon by the commission. Discussions about traffic, character, property values and more were all tabled, as deliberations could not continue without knowing if the land was safe in the first place."

Arthur Cohen, of Old Hill Road whose property, does not abut the former F.D. Rich property but was allowed to become involved legally because of the environmental intervention petition.

Edward Lerner, Cohen's attorney, told the Westport News, "Our position is that based upon the evidence presented, including the information from the Conservation Commission, the proper decision for the P&Z to make is a denial with prejudice.

He added, "The P&Z has essentially adopted the position we've espoused from day one, except it was a denial without prejudice. If you look at the record, they cited the evidence we presented to them, including the Hopkins report, his comments on his report and the Williams and Stewart report but we feel the proper legal position for the P&Z to take is an outright denial."

Bert Aber, the plaintiff in the other appeal of the P&Z decision, said, "We want to make sure other issues brought up by neighbors will be reviewed."

Aber said Weisman is "espousing the opinion that the only thing left for ARS to answer is the environmental issue and that all the other issues are OK and that when he answers the environmental issue, they can battle ahead with the bulldozers."

Matthew Mandell, the spokesperson for the Partrick Wetlands Preservation Fund, a group that fought the ARS application throughout the public hearing process, said P&Z Commissioner Duane Nelson consistently said, "We should not be discussing anything else because environmental issues are the gateway to the entire proposal."

Mandell said the commission didn't discuss traffic implications the project would have, screening issues and other things as well.

"Any thoughts that this was passively or tacitly approved are completely without merit," said Mandell. "Diane Farrell asked for a denial without prejudice to allow for testing of the land. I don't believe she was allowing the commission to approve this without deliberately discussing it.

Mandell said if a new application came in and there was anything other than a full review, it would be a miscarriage of justice.

"We're appealing the decision to protect the entire town's rights and the commission's rights to fully review a new proposal."

Barnard noted that if there is a new application, the public will have the opportunity to raise questions about the project. She said the commission, based on its denial without prejudice, apparently felt the application complied with zoning regulations. While the commission asked for more testing, it also asked ARS to address the areas of usable open space shown, feeling it had not complied. Some of the space was in the wetlands setback. Barnard said if the commission had more areas of concern, it probably would have noted them.

She said if the application did not comply with zoning regulations, "presumably [the commission] would have denied the application outright."

Weisman, in his appeal of the denial without prejudice, claims the zoning board seeks to hold the plaintiff to a burden of proof and to impose upon the plaintiff testing obligations and environmental standards which exceed those required by applicable law and are nowhere specified in or required by the applicable regulations, the commission exceeded its authority by revisiting and taking into account environmental issues which had previously been considered and decided by the Conservation Commission and others and which are beyond the purview, authority or competence of the Planning and Zoning Commission and that if the commission felt that it required the services of an independent expert, it failed to take timely action to secure such services and is now estopped from denying the subject application for that reason.

ARS Partners is seeking a judgment sustaining its appeal and hopes the P&Z will be directed to grant its excavation and fill and special permit and site plan applications.