East Lyme — A developer proposing to build affordable housing in the Oswegatchie Hills recently filed a lawsuit against the town to overturn recently passed laws it says could prevent it from gaining and keeping greater sewer capacity in the future.

The new laws were adopted in January by the Water and Sewer Commission as an effort to better manage the town’s ever-dwindling amount of remaining sewage capacity, First Selectman Mark Nickerson, who also chairs the towns Water and Sewer Commission, had said.

After the town was forced by court order to allocate nearly half its remaining capacity — 118,000 gallons total — to Landmark Development of Middletown in December, officials estimated the town had around 161,000 unallotted gallons to still use. But with several incoming developments in the pipeline over the coming years, that number, they said, would quickly drain, leaving officials questioning whether a water and sewer moratorium is needed.

The changes approved in January dictated the number of years a developer could hold on to its capacity, as well as who must apply for capacity, among other stipulations. The idea behind the policy change, Nickerson had said, was to ensure that developments could not hold on to allotted capacity without a timely intention to build.

Since 2001, Landmark Development has sought to develop housing on the 236 acres over several abutting parcels it owns in the Oswegatchie Hills, filing several zoning applications with the town, as well as subsequent appeals, to see that through. In its most recent application, the development has outlined building 840 units of housing on that location.

Landmark said it needed 118,000 gallons of sewer capacity to accommodate its proposed units and was granted that after a protracted court battle with the town.

Nickerson said last week that Landmark’s 118,000-gallon allotment would not fall under the new rules that limit how long a developer can maintain capacity without genuine plans to build. Should the town allot Landmark or any other developer sewer capacity in the future, though, they would have to abide by the new rules.

Landmark attorney Tim Hollister said he and Landmark President Glenn Russo are not taking Nickerson at his word, however.

“It looks like they granted with one hand, but now they are trying to take away some unknown portion with the other hand,” Hollister said.

Landmark’s lawsuit argues that the Water and Sewer Commission illegally passed the new sewer capacity provisions — many of which Landmark alleges violate state statutes.

With hopes, then, that a judge will overturn the commission’s capacity provisions, Hollister also told The Day last week that Landmark still is looking to not only develop on the parcel it recently was granted sewage capacity for, but also on another eastern-facing parcel abutting the Niantic River. It has not yet received sewer capacity for that parcel.

According to a 2007 plan the developer submitted to the town, Landmark proposed to build a residential community of more than 900 units, known as Riverview Heights VI, on the eastern-facing parcel. Hollister said those plans were denied by the town and then appealed in court by Landmark and that the 2007 case, along with another more recent application to build on Landmark's property, including its most recent filing against the Water and Sewer Commission, still are being reviewed in Hartford Superior Court.

Hollister could not give an exact capacity estimate needed to accommodate plans for the eastern-facing parcel but said Landmark likely would need more than a 100,000-gallon capacity.

Nickerson, as well as Municipal Utility Engineer Brad Kargl, declined to comment on the lawsuit.

Russo, in an effort to keep tabs on the town’s capacity, also has filed several Freedom of Information requests with Nickerson earlier this month asking, among other questions, whether the town was pursuing a water and sewer moratorium and whether the town could receive sewer capacity from the state, which is in control of nearly 500,000 gallons of the town’s capacity.

Nickerson said he replied to those requests, saying there was not any new or additional information he could provide Russo.

In the past, Nickerson said he has spoken with town attorneys to determine the legality of a water and sewer moratorium and also has explained that capacity cannot be renegotiated until 2020, when a tri-town sewer agreement among East Lyme, Waterford and New London, whose treatment plant in East Lyme relies on for 1.5 million daily gallons of capacity, is up for renegotiation.

m.biekert@theday.com