East Lyme - The Water and Sewer Commission decided Tuesday on a revised sewage capacity for Landmark Development's proposed residential complex in the Oswegatchie Hills, a decision forced on the town because of an appeal from the developer.

The Middletown-based company, under developer Glenn Russo, is applying to build 840 apartments, including affordable units, on roughly 35 acres within a 236-acre parcel on Calkins Road.

Two years ago, the Water and Sewer Commission denied Landmark's request for 118,000 gallons of sewage capacity per day for the development. The developer appealed the denial in state Superior Court, and the court subsequently ordered the commission to specify how much sewage capacity it would allow the developer.

After the commission decided upon a sewage capacity of 13,000 gallons per day in March, New Britain State Superior Court Judge Henry S. Cohn ruled this summer that the allocation was "inappropriately low." Citing reasons including the commission's use of 2004 data, he sustained Landmark's appeal and sent the issue back to the commission for a new decision.

On Tuesday, at a meeting attended by Russo, his lawyer and representatives from the Friends of the Oswegatchie Hills, a nonprofit organization that is an intervenor in the case, the commission deliberated on the sewage allotment and ultimately decided upon an allocation of 14,434 gallons per day.

Mark Zamarka, a lawyer representing the town, said the judge's memorandum of decision instructs the commission to address four factors in its decision: the remaining sewage capacity for the entire town, the land area represented by Landmark's property versus the available land area in the entire town, the "safe design standards" for the public sewage system and the percentage of the allocation versus the total capacity.

After trying several calculations, the commission derived the capacity by taking a ratio of the town's available sewage capacity per day over the town's land in the sewer service district. It then multiplied that ratio by the entire 236 acres of the Landmark parcel.

Timothy Hollister, Landmark's lawyer, objected to the commission's calculation and said simply using a ratio is a "distortion" of the court decision and case law. He said that, according to Landmark's calculations, the town could allocate between 93,000 and 118,000 gallons per day and still have an "adequate reserve" of sewage capacity.

Hollister said that if the commission adopted something on the order of 14,000 gallons per day, "not only will we go back to Judge Cohn, but we will go back and say that the commission did not understand the remand in good faith."

He added that the commission shouldn't "try to use the sewer system to control land use on this property."

Zamarka said the judge's order was final and the developer will have to file a new appeal if it opposes the decision. Hollister disagreed and said the judge did not definitively say it was a final decision.

Commissioner David Zoller commented during deliberations that the commission's calculations followed both engineering principles and the court's order.

After lengthy deliberations that included discussions on doubling the 14,434 gallons per day, which some members thought was too arbitrary, the commission ultimately voted 3-2, with one abstention, to approve 14,434 gallons per day as the capacity.

Commissioners David Murphy, Zoller and Roger Spencer voted in favor. Water and Sewer Chairman Paul Formica, also the town's first selectman, and commissioner Carol Russell voted against it. Commissioner Joe Mingo abstained.

k.drelich@theday.com

Twitter: @KimberlyDrelich