Applying to amend two sections of Wilton’s zoning regulations, both pertaining to lot frontage, Casey Healy, attorney with Gregory and Adams, presented the proposals at the Planning and Zoning Commission’s Nov. 23 meeting on behalf of Thomas T. Adams, William L. Sachs, David F. Clune, trustees of the Elizabeth Raymond Ambler Trust, Richard Christopher Montanaro, and Richard S. Gibbons.
What Healy’s clients have in common is that they all own property abutting (and only abutting) Old 2 Rod Highway, a centuries-old, heavily forested mile of what Town Planner Bob Nerney described as a “trail” that runs the border of Wilton and Weston.
The Connecticut Superior Court, however, sees the “road” as just that, a road, and years ago ruled in favor of a proceeding brought by a developer with land in that area who sought to overturn the town’s treatment of Old 2 Rod Highway as legally abandoned.
Potentially facing hyper-expensive maintenance and repair, there have been talks recently among town executives about possibly discontinuing the road where abandoning it has failed, Healy said.
The difference between abandonment and discontinuation is that discontinuance is a Connecticut statutory process that terminates the public’s right to travel a given road, but allows property owners along that road to continue to use it as an accessway.
“When a town does discontinue a road,” Healy said, “they no longer have a responsibility to maintain [it],” adding that discontinuing requires approval at a town meeting and subsequent action by the town’s executive board.
Abandonment, on the other hand, is a fact-based determination made by a court, affirming that the public has abnegated its own right to use a given road by ceasing to travel it entirely for a long enough period of time.
Nerney told The Bulletin that, “based on our research, we do not have the legal obligation to upgrade a public road,” but it is in the town’s political interest to pursue a discontinuance and thereby eliminate a significant tax burden that could emerge in the future as a result of public pressure placed on future administrations to upgrade the road to town standards.
If the road were to be discontinued, however, according to Healy, “any properties that abut that road would no longer have frontage on a street as defined by Section 29-2.B.60 of the zoning regulations.”
Section 29-2.B.60 defines frontage as “the length measured along that side or sides of a lot abutting on a public street.”
“Meant to cure what we view as an unfair result,” Healy, on behalf of the applicants, is seeking to amend Sections 29-2.B.60 and 29-4.B.5 of the zoning regulations.
Section 29-4.B.5 stipulates that “no permit shall be issued for any building unless the lot upon which such building is to be built shall have the frontage required by these regulations on a street as defined herein.”
That means that if Old 2 Rod Highway were discontinued, property owners along its way would have lost the frontage they need to develop their lots under Wilton’s current regulations.
In essence, what Healy is seeking for his clients is a way to safeguard against the possibility of Old 2 Rod Highway being discontinued, with amendments that would allow property owners in Wilton to develop their lots notwithstanding any loss of frontage resulting from road discontinuation.
The proposed text amendments are as follows and are italicized to distinguish them from the pre-existing language.
If the application is approved, Sec. 29-4.B.60 will read, “FRONTAGE: The length measured along that side or sides of a lot abutting on a public street,
or a public street that has been discontinued, after the effective date of the amendment to this regulation, under section 13a-49 of the Connecticut General Statutes, as amended.”
Sec. 29-4.B.5 would be modified to read, “No permit shall be issued for any building unless the lot upon which such building is to be built shall have frontage required by these regulations on a street as defined herein,
or unless such building to be built shall have frontage on a street that has been discontinued under section 13a-49 of the Connecticut General Statutes, as amended. This provision shall not be construed to constitute a waiver by the Commission of the town of Wilton subdivision regulations, including, but not limited to, Section 4.12 of the subdivision regulations entitled Streets.”
During the hearing, Nerney had to wrestle with a conflict he saw between the current state of the road and the results that would be brought about by its, in his opinion called-for, discontinuance.
“It’s basically, in my opinion, impassable,” Nerney said. “But the courts ruled, based upon historic research, that it’s a town road. My belief, all along, has been to discontinue it. The thing is, when you discontinue, we have a provision in our zoning regulation that you have to have frontage on a town road [to develop a property].”
By discontinuing the road but modifying the zoning regulations pertaining to frontage, “we’re trying to strike a balance,” Nerney said.
“I think it’s fair middle ground,” said Chairman Chris Hulse.
Healy added that, by modifying the regulations, the town would avoid potentially being faced with inverse condemnation claims by property owners along Old 2 Rod Highway, arising from their loss of developable land and the profits thereof.
The public hearing for the application was closed that night, and planning and zoning staff will proceed to draft a resolution for approval that will either be voted through, denied or continued at the next meeting of the Planning and Zoning Commission, on Dec. 14.