If the Avon Planning and Zoning Commission approves a settlement proposed for a lawsuit contesting a rejected zoning change application, the decision could be overturned.
Passage of the settlement as is would enable an Avon developer to move forward with building a new housing development.
The Golf Club of Avon, Inc. and JZMAR, LLC sued the commission after their application was denied in July. Their attempt to resubmit the application with revisions was also rejected. The commission's approval to re-zone 6.25 acres of Golf Club of Avon land from recreational open space to an R40 residential zone is integral to developer Jon Zieky's five-lot subdivision plan.
There will be a public hearing on the matter at the commission's regular Tuesday meeting at 7:30 p.m. in Town Hall.
The golf club originally planned to sell the 6.25 acres to Zieky as the final piece of land he needed to build five homes. The golf club doesn't use the land much besides dumping wood debris, sod, grass and tree trunks there, Avon Town Planner Steven Kushner said.
The civil lawsuit against the commission claims that its denial of the application was "illegal" and "arbitrary" and that the requested zone change would comply town zoning regulations, according to court documents.
The current settlement draft on the table between the commission and complainants would require the commission to approve the zone change it previously rejected and allow the five-lot subdivision.
Kushner said that no money would "be exchanged between town and golf club and Zieky" as a result of the proposed settlement. That excludes any legal expenses like attorney fees that the town accrued in the settlement process.
However, Zieky would be required to pay a fee in lieu of including open space in the subdivision, which is a typical of new developments.
"It has to go to a final vote by the commission before it is made official," Kushner said
The settlement draft would also need to be approved by a majority vote and signed by involved parties and Hartford Superior Court officials. It's not guaranteed that the commission will vote Tuesday night, Kushner said.
While it's possible that commissioners could pass the draft as is, they could also approve making necessary revisions, he said.
The commission scheduled a public hearing on the settlement even though it's not legally required to be fair to the Pioneer Drive residents who live next to the proposed subdivision, Kushner said. The commission will also have the opportunity to hear more information from the golf club and developer.
“If the commission does find that the plan is a reasonable request given all the facts, I think they’re trying to take into consideration and be sensitive to those comments," Kushner said.
The housing development would include five lots ranging from 40,969 to 53,264 square feet and a new 500-foot road called Eagle Drive, Kushner said.
Several Pioneer Drive residents attended previous meetings to voice concerns about losing the abutting private open space. That became a core factor in the commission's initial decision to reject the application.
One piece of the drafted settlement serves to preserve privacy for both future and existing residents in that area. The proposal calls for the developer to meet certain conditions, such as leaving a 40-foot "buffer strip" between the housing lots and existing homes along the "northerly" border of the small piece of golf club land in question.
“Under normal circumstances if someone is proposing subdivision next to an existing subdivision, a buffer is not required because they’re compatible land uses," Kushner said, noting that the difference here is the requested zone change. "Not only are they compatible, they’re the same land use.”
That means that while the future subdivision homeowners would own their piece of the buffer zone and pay taxes on it, they would be forbidden from building anything on it or clearing trees. The forested in that area would remain intact. The town would be authorized to enforce the rule and hold the new homeowners accountable if they found evidence of any easement violations there.
“It’s a pretty iron-clad conservation easement," Kushner said.
The lawsuit filed by the Golf Club and JZMAR, LLC follows standard procedure under state law to appeal an approved or rejected application, according to Kushner.
“It is unusual for commission to be sued. It does not happen that often," Kushner said. “In an instant where the Planning and Zoning Commission approves or denies an application, the legal remedy is to file a lawsuit against the commission."
When it comes to zoning and land use lawsuits, reaching settlements is also unusual, Kushner said, however it is encouraged by the courts.