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Developer loses two appeals of EL Zoning Commission actions

East Lyme –– A developer seeking to build in Oswegatchie Hills has lost two Superior Court appeals of the Zoning Commission's attempts to restrict development there.

Glenn Russo, a principal of Landmark Development Group of Middletown, originally wanted to develop golf courses and elderly housing on the property and more recently has proposed an 894-unit condominium development there. Landmark appealed the commission's decision to change the minimum lot size from 120,000 square feet to 200,000 square feet, and to establish the Hills as a “greenway district,” further limiting development there.

Landmark also appealed the commission's refusal in May 1999 to grant a zone-change application that would have facilitated development of golf courses and elderly housing on the wooded, 780-acre expanse along the Niantic River.

Landmark most recently applied to have the property designated an “affordable housing district.” Landmark withdrew that proposal to work with the town and the state Department of Environmental Protection, which also has an interest in preserving the land.

In one of the appeals, Landmark contended that the town only changed its rules on lot sizes after Russo told First Selectman Wayne L. Fraser that he wanted to develop a championship golf course and residential housing on the property.

According to court documents, shortly after Landmark filed its application, the commission proposed to amend its regulations to further restrict development in Oswegatchie Hills by designating it a greenway district. Russo contended that the changes were made to specifically stifle his and other landowners' efforts. He accused the commission of failing to file his proposal with the town clerk in a timely manner.

The court said that the commission had, in fact, filed proper notice with the town clerk. Judge Joseph J. Purtill, who acted as a trial referee in both cases, cited published advertisements for public hearings on the matter as evidence. He went on to say that Landmark failed to meet its burden of proof.

“Public officials are presumed to have done their duty until the contrary appears,” Purtill wrote in his decision. “The presumption is that the application was properly filed. Therefore the plaintiff's appeal will not be sustained on this ground.”

Landmark also argued that the commission evaluated the company's request for a zoning amendment based on the regulations as they were written after the commission adopted the changes in minimum lot sizes and the greenway-district designation. Landmark contended that its application should have been assessed on the regulations as they stood when the application was submitted.

Purtill distinguished between the commission acting as a legislative body and a regulatory one. He ruled that the commission could change a regulation even though an application might be pending. He further ruled that the commission could legally apply the regulations as they existed at the time the application was considered rather than as they existed when the application was submitted.

“We plan to appeal the decision,” Russo said. “We think he (Purtill) made a mistake. Other than that, I can't comment.”

In the second case, Landmark and other property owners in Oswegatchie Hills challenged the validity of the zoning amendments approved by the Zoning Commission. They contended that the commission made mistakes in notifying the public about proposed regulation changes. Purtill sided with the town, which argued that the prehearing notice for the zone change amendment was adequate because it contained the full text of the greenway district definition and made it clear that the proposed change would alter the minimum lot size in the zone.
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