East Lyme — An attorney for a local developer said that since the turn of the century, the town has waged a battle against multifamily and affordable housing developments, deploying as its “silver bullet” falsified limits on sewer capacity.

Attorney Tim Hollister, representing developer Glenn Russo, who has a long history of legal disputes with the town, reviewed what he called the town’s tactics to prevent housing development during a Wednesday public hearing on a proposed moratorium preventing new sewer connections for developments of more than 20 multifamily or single-family units, or that would produce more than 5,000 gallons of sewage daily. The moratorium would put a stop to developments that size and larger.

The town has said the moratorium would give it time to figure out how to expand its sewer capacity. The town says it is close to exceeding the amount

of sewage it can contractually send to the treatment plant in New London.

Ultimately, the Board of Selectmen put off a decision on approving the moratorium, continuing discussions to its Sept. 3 meeting.

Hollister said the town has a “25-year track record of misstating and misrepresenting sewer capacity” and using sewers, or lack thereof, to impede affordable housing development. Russo shared a 2001 town document in which officials wrote about the town’s strategy of using sewers to prevent housing.

Hollister, whose suit against the town is over a 2019 sewer ordinance with requirements that he says make large developments like his client’s impossible, also said the moratorium is based on a lie that the town has skewed the situation to say it’s nearing its limit.

The town says it uses 770,000 gallons of its 1.5 million gallon daily flow limit, and with anticipated flow from approved housing developments, like the 118,400 gallons allocated for Russo’s Landmark Development Group, which owns about 240 acres off Calkins and River Road in the Oswegatchie Hills area. The state Appellate Court told the Water and Sewer Commission it had to allow Russo this much daily capacity in a 2018 ruling.

Russo looks to build 840 units in 24 buildings, which would cover about 36 acres of his property.

Hollister said the town saying that state facilities use about 478,000 gallons of its sewer allotment is disingenuous. He said facilities like York Correctional Institute actually use far less than that.

In determining it will exceed its capacity, the town assumes it will use another 137,000 gallons per day when all residents entitled to a sewer connection tie into the town system. That, Hollister argued, is a “fictitious” number. The town has no evidence to support its claim that capacity will be reached, he said.

Hollister said, on average, the town never uses more than half of its sewer capacity.

“A ban on all sewer applications of more than 5,000 gallons a day obviously targets multifamily housing," Hollister said. “This proposal conflicts with state law."

Another development attorney, Harry Heller, told the board the moratorium wouldn’t stand up in court. In July, a judge ruled the Water and Sewer Commission improperly denied a North Bride Brook Road multifamily housing project proposed by developer Parker’s Place LLC. The judge said the commission had to allocate the developer 8,100 gallons of daily sewage.

Heller said the moratorium needs a set time limit and has to incentivize the town to achieve its goal of expanding sewer capacity.

Town’s response

Town Attorney Tim Bleasdale said the Water and Sewer Commission is receiving so many applications for sewage allotments it can’t focus on finding the town more sewer capacity.

Selectman Jason Deeble asked if the moratorium should have an exact time limit, like seven months, for example, at which time the board would reassess the freeze’s necessity. He said if a court decides a moratorium was improperly enacted, it can reduce its span or toss it out entirely.

Bleasdale said the board can impose a time limit, but that developing a plan to increase the town’s sewer capacity would be a “long process." The town has said it wants the treatment plant in New London to expand its capacity, a project that would cost $50 million to $70 million, split between East Lyme, Waterford and New London.

Water and Sewer Chief Operating Officer Ben North said he would not favor a definite time limit, instead preferring to give the selectmen periodic updates. He said planning for more capacity will take more than a year.

Bleasdale said the board could impose a date, then if that day comes and the town hasn’t found more capacity, it can pass another one.