East Lyme ― More lawsuits could be coming the town’s way after the Zoning Commission once again ruled it is more important to protect the town’s roads and waterways from the effects of development than it is to promote affordable places for people to live.

Paul Geraghty on Saturday said he will appeal to the state Superior Court the commission’s 4-2 denial of an application to build 24 apartments across three buildings near Latimer Brook on Boston Post Road.

Geraghty also broached the possibility of a federal lawsuit on constitutional grounds. He alleged his client’s due process rights were violated when members of the commission made up their minds before all the information had been presented.

“We believe the decision was predetermined,” he said.

The proposal was submitted by New Hampshire-based developer Kristen Clarke of English Harbour Capital Partners LLC.

The commission rejected her initial proposal in April and on Thursday shot down a revised application for the roughly 12-acre property. Members said nothing could reasonably be done to mitigate two main risks: that those entering or leaving the property on busy Route 1 could get hurt and that Latimer Brook could get polluted by fecal matter.

“The risk of stormwater runoff and septic runoff without public sewer is significant,” the commission wrote in its denial motion. “The risk is too great as Latimer Brook, a Niantic River tributary, is on the bottom of the hill.”

They also said entering and exiting the site on busy Route 1 presents “a dangerous situation” where the 35-mph speed limit is routinely ignored.

Plans for the apartment complex reserved for the 55+ demographic were submitted under the state’s affordable housing law. The provision, known in statutory parlance as 8-30g, makes it easier for developers to get their day in court if their plans for affordable housing are rejected in towns with few affordable options. The burden of proof in such cases shifts to the commission to prove the risk to public health or safety outweighs the need for affordable housing.

Despite members Norm Peck III and James Liska describing the commission’s argument as a weak one that likely would lose on appeal, the remaining members disagreed.

"From evidence in the record addressing these issues, we feel that risks involved with developing this land do, in fact, outweigh the need for affordable housing in East Lyme, and there appears to be no alterations that would correct these issues,” the denial motion said.

The revised plans reduced the number of new structures on the site to three and shifted them away from Latimer Brook on roughly 1.3 acres. Geraghty said the septic system is slated to be placed 300 feet from the brook.

An environmental review commissioned by Clarke from George Logan of Rema Ecological Services found the proposal “is sensitive to the preservation and impact minimization of the site’s natural and ecological resources.” He said concentrating development to the area that’s already been disturbed and using environmentally conscious methods such as rain gardens will ensure water quality in the brook isn’t affected.

At least eight acres will be designated as open space under a conservation easement that could be managed by the town or by the East Lyme Land Trust.

Other litigation

Clarke is also involved in another suit lodged in state Superior Court that’s currently winding its way through the system. The appeal came after the commission almost a year ago rejected her plan for 19 houses and 24 townhouse units – with 30% of the units set aside as affordable by the statutory definition – in the woods of Holmes Road near the Montville border.

The Holmes Road property is owned by Duval Partners LLC. Geraghty in the public hearing on the Boston Post Road site identified Clarke as a partner in the Duval venture.

He said Saturday that both cases might be candidates for the federal due process claim.

“We'd need to review that issue from a procedural perspective since the parties are related but not exactly the same,” he said. “But the thinking is that they could all be part of the suit.”

Clarke is the daughter of Jeff Torrance, a developer who is credited by members of the East Lyme Land Trust with helping the organization acquire 500 acres of land in the past five years.

Three hundred of those preserved acres are adjacent to the proposed Holmes Road affordable housing site. As described by a consultant on the housing project, the business model involves investors selling off large chunks of land to environmental groups for the tax benefits while retaining some parcels to be developed.

Torrance is prohibited from doing business in the town under the terms of a 2015 settlement agreement that came with a $650,000 payoff by the town to Torrance and his partners. It prohibits him from engaging in development “directly or indirectly, under any circumstances or conditions whatsoever.”

Torrance has said he has no financial interest in the land trust dealings and is acting as a volunteer.

The 2015 settlement agreement was a move to end more than a decade of litigation over development around Darrow Pond.

The agreement specifically allows Clarke to conduct the development activities her father is barred from.

e.regan@theday.com