East Lyme ― A New London Superior Court judge has given renewed hope to neighbors who have railed for years against a proposed subdivision near Four Mile River on the Old Lyme border.

After issuing a decision earlier this year overturning the East Lyme Planning Commission’s 2018 approval of the 23-lot Twin Valley subdivision, Judge Edward O’Hanlan last month quashed efforts by lawyers for the town and the developer to try to get him to reconsider.

The judge said the commission should have obtained a third-party environmental review as required by local subdivision regulations. The commission and the project developer said that would have been impossible because the firm that town regulations specify must conduct the review, had stopped performing them at the time.

Developer Robert Fusari, of Real Estate Service of Conn. Inc., on Wednesday said he hasn’t yet decided how to proceed now that his application has been overturned. East Lyme planning director Gary Goeschel said he believes the commission will be taking the case to the state Appellate Court, but needed to confirm that with the commission’s attorney.

Applications for the subdivision were approved separately by the Planning Commission and Inland Wetland Agency, both in 2018. A Superior Court judge in a separate case more than two years ago upheld the Inland Wetland Agency’s approval.

Both cases ended up in the court after Brian Lepkowski, an abutting homeowner, appealed the the approvals to the Superior Court. For six years, Lepkowski has expressed concerns about the impact of the development – including the proposed road that runs along the west of his property – on wetlands and waterways including the Four Mile River, several vernal pools and two ponds.

While O’Hanlan disagreed with six of Lepkowski’s seven arguments about why the application should not have been approved, it only took one point to overturn the Planning Commission's decision.

At issue is the regulation requiring independent environmental review for subdivisions with 20 lots or more if at least 50% of the parcel includes wetlands or other environmentally sensitive areas.

The regulation specifies the evaluation be conducted by the Eastern Connecticut Environmental Review Team. An arm of the nonprofit Connecticut Resource Conservation and Development Area, the free service provides an inventory of the natural resources on the property and recommendations to improve the project.

O’Hanlan, citing court precedent, wrote that the commission “created this regulation and therefore bound itself to comply with it until it finds that a change is needed and then decides to amend it.”

But the organization informed East Lyme officials it wasn’t providing development reviews at the time, according to an email included as an exhibit in the case.

The message from L. Jeanne Davies, executive director of the conservation and development group, was received more than two months before the commission voted to approve the application. Davies recommended another regional conservation group that might be able to provide a similar service for a cost.

According to the review team’s website, the program lost state funding in 2012 and was dormant until the funding was partially restored in 2018. The group said it does not currently have enough volunteers or funding to provide environmental reviews on subdivision applications submitted to towns.

The memorandum submitted by the Waller, Smith and Palmer law firm in support of the commission invoked Davies’ email when it reiterated the organization was not at the time conducting development reviews, had not conducted the reviews in six years and “had no plans to conduct reviews at any time in the near future.”

“It is well established that the law does not require someone to do that which is not possible,” the attorneys for the commission said.

Fusari’s proposal, originally submitted to the agency in 2017, sought to construct a roadway and drainage improvements to accommodate what was first proposed as a 25-lot resubdivision. The agency denied Fusari's first application citing stormwater management concerns before considering a revised application proposing a 23-lot plan that sought to better address stormwater management.

Lepkowski on Wednesday said he feels the town is “catering to the developer in any way possible.”

“It speaks volumes to me about their intention when, rather than go back to the drawing board and do the right thing, they keep trying to play the legal game,” he said.

He said it’s critical to have an independent, third-party review of projects on sensitive environmental properties.

He noted the Eastern Connecticut Environmental Review Team (ERT) was “originally developed to respond to the overwhelming number of residential subdivisions that were being approved without adequate consideration of the natural resources,” according to the organization’s website.

Lepkowski said the requirement was put into subdivision regulations for a reason.

“Why it was put there in the first place was to do exactly what we’ve been doing for almost 6 years at this point,” he said. “We are trying to have adequate consideration for the disturbance this proposal is going to cause.”

Goeschel said the environmental review requirement as it stands, which was instituted sometime before he became planning director in 2008, “isn’t really viable” and needs to change. But he did not know if the commission members would want to replace it with some other form of third-party oversight.

He said the regulations already require developers to identify natural features on the property.

“In my opinion, we're asking for that information already,” Goeschel said. “ERT would just refine it.”

He said a requirement for third-party review could be added on a case-by-case basis as a condition of approval.