FOREST WALK, LLC v. TOWN OF MIDDLEBURY WATER POLLUTION CONTROL AUTHORITY, SC 18239

Judicial District of Waterbury

Water Pollution Control; Whether Defendant's Reasons for Denying Plaintiff's Applications for Sewer Access Were Supported By its Regulations; Whether the Amount of Sewer Capacity Requested Should Control Whether Sewer Access is Allowed; Whether Defendant Properly Denied Plaintiff's Applications Based Upon Policies and Documents Not Found In or Referenced by its Regulations.  The plaintiff owns land on Regan Road in Middlebury and an easement connecting that land to Porter Avenue in Middlebury.  It applied to the defendant for a sewer extension and a sewer connection to service its property.  The defendant denied the plaintiff's applications, concluding that its regulations did not provide for sewer access to the Regan Road property.  It further indicated that the plaintiff could not access sewer service simply by obtaining an easement across neighboring property to the Porter Avenue sewer interceptor, which it determined was not built to service Regan Road.  It also stated that its denials were consistent with its "sewer avoidance policy," under which it will provide sewers to residential areas only where a need is demonstrated, such as where existing systems are failing or on-site disposal systems are not practical.  Moreover, it found that the plaintiff's property would best be served by septic systems because it is on a sparsely populated road and would use a disproportionate amount of the town's sewer capacity. The plaintiff appealed the denial of its applications to the trial court.  On appeal, it claimed that No. 03-177 of the 2003 Public Acts, which granted applicants who have been denied sewer access the right to appeal, was designed to require water pollution control authorities (WPCAs) to abide by the same principles of fairness and due process that apply to zoning boards and planning commissions.  It further claimed that the defendant did not abide by these principles and that its reasons for denying the applications were not supported by its regulations, which provide sewer rights to property that is "nearby" property with a public sewer.  In addition, the plaintiff claimed that the defendant improperly relied on documents that were not found in or referenced by its regulations and improperly determined that the plaintiff requested an excessive amount of sewer capacity.  In dismissing the plaintiff's appeal, the trial court concluded that the public act did not change the substantive law applicable to WPCAs, which have broad discretion in deciding whether to extend or construct municipal sewers for property owners.  It further determined that the defendant reasonably interpreted the meaning of "nearby."  It stated that if property owners were able to acquire sewer access by obtaining an easement across neighboring properties until they reached the nearest sewer line, the town's ability to allocate sewer capacity in a manner most beneficial to the town would be severely limited.  Moreover, it found that the documents that the defendant relied on in denying the applications were relevant and that there was substantial evidence in the record to establish that the plaintiff requested a disproportionate amount of the town's sewer capacity.  In this appeal, the Supreme Court will determine whether the trial court properly dismissed the plaintiff's appeal.