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A Superior Court judge has dismissed an appeal challenging the Planning & Zoning Commission’s (P & Z) approval of the Atlantic Wharf project, a large mixed-use commercial and residential development to be built on Meadow Street.
In a 13-page decision, Superior Court Judge Angela Robinson last week found that “the substantial evidence” in the record “does not support any of the plaintiff’s three claims raised on appeal.” When a party takes an appeal in a zoning or land use matter the court is always limited to the actual record of the proceedings.
The judge said that briefs and trial testimony before her, along with an examination of the lengthy P&Z record “does not support” any of the claims raised by the Costanzo family of 33 Wilford Ave., a one-way street located about a block from the Atlantic Wharf property. The judge noted there was no expert testimony submitted by the family’s attorney on any of the issues.
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Atlantic Wire Company
The Atlantic Wharf site, previously the site of the Atlantic Wire Company, is located along the Branford River, within walking distance of the Town Center and the Shoreline East Train Station.
The appeal of the P&Z decision was filed on behalf of Rosemary Costanzo, trustee of 33 Wilford Ave. The Costanzo property is one of several homes directly behind the 256 Meadow St. site where one of the apartment buildings is slated to be built. That site is across from the old factory. Robert Costanzo, of 33 Wilford Ave., frequently raised issues about the Atlantic Wharf proposal during the public hearings.
The Costanzo appeal was filed almost one year ago, in February, 2016, after the P&Z unanimously approved the final plans for the project in January, 2016.
Attorney Chris J. Smith of Shipman & Goodwin in Hartford represents Metro Star Properties, LLC, the project’s developer. He observed in his brief to the court that there was no appeal taken when the PDD and Master Plan were approved in early 2015. The judge noted the same fact in her decision.
The judge heard oral arguments in the case in New Haven Superior Court on Jan. 17. The town’s law firm, Brenner, Saltzman & Wallman in New Haven, represented the P &Z in the proceedings. The judge’s decision was filed quickly, on Jan. 25, eight days after oral arguments. “It was a quick turn around and it was very well-reasoned decision.” Smith said in an interview.
From Atlantic Wire to Atlantic Wharf
Developers had planned to start work on the demolition and environmental cleanup at the old Atlantic Wire factory site on Meadow Street in the summer of 2016. Now it looks like it might occur in the summer of 2017.
Robert H. Smith Jr., the CEO and founder of the Milford-based Metro Star plans to build 10 upscale apartment buildings, featuring 205 apartments, on 7.5 acres at the Atlantic Wire site. Six of the buildings will have retail, restaurants and commercial units on the first floor, and the other four will be strictly residential.
In her decision, the judge said the record does not support any of the plaintiff’s three claims raised on appeal. The judge held that the public hearing was properly opened and continued, saying a continued public hearing does not have to be re-noticed. The state’s Supreme Court has ruled on this issue. She also noted that the plaintiff’s brief was “absent case citations,” which meant, she wrote, that “counsel was unable to find any legal precedent ” regarding his belief as to when the public hearing was opened.
The judge also found “the uncontroverted expert traffic testimony and evidence of the Record establishes that the applicant’s proposal will not adversely affect traffic in the surrounding area of the subject property. The Commission properly approved the site plan applications based, in part, upon such uncontroverted expert traffic evidence.”
Finally, the judge said the Costanzo family attorney failed to establish a conflict of interest concerning one of the commissioners.
Judge Questions Plaintiff’s Case
Besides rejecting the arguments, the judge noted the absence of legal research on the part of Michael P. D’Amico of East Haven, the Costanzo family attorney. The judge also noted that D’Amico provided no expert testimony.
The judge observed that “the plaintiffs refer to the traffic study as ‘flawed’ but do not identify an authority or expert that has voiced an opinion to support this conclusive claim.”
D’Amico asked how the P&Z can “justify its finding that the traffic generated by the proposed use of the incredibly dense development will not adversely affect the surrounding area if the traffic report upon which relies does not influence information regarding the street and area directly bordering the subject property? Quite simply, it cannot. This omission of information is a fatal defect…: D’Amico wrote in his brief.
However, the judge observed that the plaintiffs “do not cite to case law, requiring the Commission to only rely upon or consider traffic studies which specifically reference all bordering streets. And, plaintiffs failed to raise this issue during the hearing,” she added.
In her decision, the judge noted that while it appears that neither the traffic study nor the testimony of either of the traffic experts “directly addressed Wilford Avenue, the plaintiffs fail to present authority for the proposition that this renders the traffic evidence flawed.
“The plaintiffs did not present expert testimony or case law to support their argument,” the judge said, adding they instead “urge this court to rely simply on the concerns raised by neighbors who owned property on Wilford Avenue and on the representations of plaintiffs’ counsel that the studies were flawed. This court cannot do that,” she wrote.
Judge Robinson observed that the P&Z was aware of concerns “about Wilford Avenue traffic, and that the P &Z considered the facts presented to them to be sufficient. Without more, the court is compelled to accept the P&Z’s conclusions regarding traffic.”
D’Amico also argued that the P&Z failed to take into account the major renovation of the Community House-Senior Center, a project that is scheduled to get underway this spring. “Again the plaintiffs rely on conclusory language, without reference to legal authority or expert evidence.
“References were made to the Community House, during the hearings and the P&Z’s s expert explained that it was not addressed because future projects are speculative. The P&Z accepted this representation.”
Attorney Smith says traffic experts do not factor in speculative projects or developments ”that may or may not occur. It was speculative,” he said in an interview. “In addition, the plaintiffs did not provide expert testimony to counter the two expert traffic consultants who testified on behalf of the project.”
While the community house was discussed back then and was not then officially underway, it is now with construction scheduled to start this spring, about the same time as the Atlantic Wire building demolition may get underway.
Again, referring to D’Amico’s presentation in court, the judge noted that the “plaintiffs have provided the court with no authority to reject the P&Z’s conclusion that the traffic expert was not required, by law, to address the traffic impact of future projects on the Site Plan it was currently considering.”
The appeal claimed the traffic study submitted by Metro Star developers failed to show how the project would affect several areas: Wilford Avenue; the streets near the Branford Community House where the new Senior Center will be located; and the area around the John B. Sliney Elementary School.
Traffic issues and other concerns were initially raised by Wilford Avenue residents, during the public hearing sessions for the Planned Development District and Master Plans, which were approved in February 2015. The developers met with neighbors over the summer, and some issues were resolved. Robert Costanzo congratulated the developers on a good presentation at the Dec. 3 public hearing, but he continued to express a variety of concerns.
Residents again raised traffic concerns at the Jan 7 session, especially in regard to the town’s decision to renovate and expand the nearby Community House on Church Street to include a new senior center.
A separate traffic study was undertaken in connection to the Community House and the same conclusion was arrived at, that the renovated facility would not prompt additional traffic.
Diana Stricker contributed reporting for this story.
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