Land Use Judge Combines Two Branford Land Commission Appeals

A half-acre Branford lot that is prone to coastal flooding is gaining notoriety as its owner takes his failed attempts to develop the property to the Land Use section of Hartford Superior Court.

Arsalan Altaf, through his Pawson Road LLC, is appealing denials by the Zoning Board of Appeals (ZBA) regarding a single-family home; and denials by the Planning and Zoning (P&Z) Commission regarding affordable housing on the same lot. Both cases were moved to the Land Use section of Hartford Superior Court, where Judge Marshall K. Berger Jr. recently approved the request by Altaf’s attorney to combine the two cases.

Altaf (pictured) is represented by attorney Kevin J. Curseaden of Carroll, Curseaden & Moore LLC of Milford; and also by attorney Kristina Porter, an associate with the firm. Curseaden also represented Charles Weber and Al Secondino in their unsuccessful plans to build six commercial businesses near what was a proposed Costco on a Planned Development District at Exit 56.

The appeals culminate several months of public hearings by P&Z and ZBA regarding two separate proposals by Altaf to develop the property, which had been deemed unbuildable when a previous owner applied for variances.

Curseaden wrote in court papers that it was his belief that the P &Z “ignored substantial evidence that the application and modified application respectively both met the statutory requirements for approval of an affordable housing project.”

In a resolution denying the application, the P&Z wrote that the applicant has refused to provide an adequate proposal for the management of stormwater to be generated by the project, “despite several requests for this information.” Town Planner Harry Smith (pictured) said crucial information was missing from the application, including a stormwater management plan; specifics about the building; data from site borings that he requested last summer to determine the extent of the marsh; and a protection plan for the coastal wetlands’ buffer.

Updating Affordable Housing Act

The appeals also come at a time when the state legislature is attempting to update the affordable housing act 8-30g to curtail exploitation by developers. Affordable housing projects under the state statute do not have to comply with zoning regulations. The property in question is a half-acre site at 239 Pawson Road that’s about 200 feet from the Branford River, has tidal wetlands, and an easement to adjacent state-owned open-space property.

State Rep. Lonnie Reed (D‑Branford) has been working to update the affordable housing act for several years, and is currently co-sponsor of the proposed House Bill 6880, ​“AN ACT CONCERNING THE AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE.”

“The Pawson Road case in Branford case is symptomatic of what we in Hartford call ​‘predatory developer behavior,’ meaning that some bad actors hijack or misuse for selfish purposes a statute intended to help deserving people,” Reed told the Eagle recently. ​“This Pawson Park case is so egregious — nothing subtle about it. That makes it a lawsuit that can showcase the kind of statute exploitation and unfairness we’re talking about. Of course, it is also forcing our Town to spend serious money defending ourselves in a year where our stressed-out state budget is already threatening to hurt municipal budgets.”

The proposed bill examines and credits existing affordable housing within a town or city which currently does not fall under the existing statute. Reed said yesterday the bill has obtained a growing number of bi-partisan backers in the House including Housing Chair, Larry B. Butler, who represents the city of Waterbury. ​“We are re-examining how the current statute is actually being used,” she told the Eagle.

Part of the statute will include language that bars affordable housing from being built in a flood plain, one of the issues in the Pawson Park case.

Updating Affordable Housing Act

Reed said the quest to update the Affordable Housing Act is important because ​“it begins a process of re-examining and reforming the 8 – 30g system by giving municipalities more credits for the housing they are already providing for residents needing more affordable domiciles.” She said it is also important to add a provision to block construction of low-income housing in flood zones.

“I am an avid supporter of Affordable Housing, but I am incredibly mindful that 8 – 30g needs to be refined,” Reed told the Eagle.

Reed said advocates of the current statute are fighting against any changes, and say disputes can be settled in court. Often the advocates are attorneys. ​“My counter is that frivolous lawsuits have to be paid for by already over burdened town taxpayers — including our most financially fragile neighbors — who can ill afford such bills.

Reed recently brought State Housing Commissioner Evonne M. Klein to Branford to meet with First Selectman Jamie Cosgrove and Town Planner Harry Smith. Reed said she wanted ​“to make it quite clear that we are serious about refining that statute.”

Legal Issues

Attorney Joseph B. Schwartz (pictured), who represents abutting Pawson Road neighbors Stephen and Patricia Small, argued against consolidating the two cases, writing in a five-page motion that it was improper to do so because the two land use appeals involve different commissions, different building proposals and different records, standards and applications.

“The only similarity between the variance appeal (the Zoning Board of Appeals) and the Affordable Housing Appeal (The Planning & Zoning Commission) is the subject property at 239 Pawson Road. This similarity is not grounds for consolidation,” he wrote in a filing with the court in April. A few days later the judge ordered the consolidation.

In seeking consolidation, Cursaeden wrote that in his view the cases ​“involve common questions of fact and law, including environmental concerns raised by opponents to both applications.”

Michael T. Cretella, who represents the town in this case, told the Eagle the town did not take ​“a position on whether to consolidate them or not and left that up to the other parties to decide. From the town’s position it doesn’t make too much of a difference. If they were not consolidated, then one judge in New Haven would hear the variance matter and another judge in Hartford would hear the affordable housing matter. If they were consolidated, then one judge in Hartford would hear both matters, although likely on separate days anyway. From our perspective it didn’t make too much of a difference.

“I would also add that both courts are perfectly capable of fairly deciding the merits of each appeal.”

Building on the ​‘Unbuildable’

Altaf’s attempts to build either a single-family home or affordable housing on the same lot elicited sharp remarks during public hearings. Some viewed the affordable housing proposal as a means of getting approval for the single-family home.

The ZBA had deemed the lot ​“unbuildable” when a previous owner applied for variances in January 2015. Altaf purchased the property in September 2015 for $35,000. It was appraised at $71,000.

Altaf declined an offer by the neighbors to purchase the property from him for $48,000 in March 2016. He filed the zoning applications during the summer of 2016.

Schwartz said Altaf’s site plan for the variances for the single-family home, which were denied by the ZBA, was the same site plan for one of the affordability proposals. ​“I don’t think it can be denied that the applicant is clearly taking a blatant second bite of the apple to try to get a single-family house onto this land,” Schwartz said during a January hearing.

Reed testified during public hearings on Pawson Road last summer. ​“I think one of the things going on here … is that the real objective is to get that single home in there, so this statute is being used as a weapon to try to make that compromise,” Reed told the commission in July.

Reed said similar situations are happening elsewhere in the state and efforts are underway to enact legislation to clarify the state’s affordable housing act.

Jennifer O’Donnell, of Coastal Ocean Analytics in Noank, submitted a 14-page environmental review of the property and said the proposed construction was too close to the coastal wetlands. ​“Coastal flooding is currently a problem; it is not going to get better. It’s going to get worse,” she said during one of the hearings. O’Donnell questioned the rationality of putting low-income housing in a flood zone. ​“We are increasing hazards to the property, increasing the probability of erosion, we’re increasing the damage to the wetlands, and we’re increasing hazards to people,” she said.

Denials

In August 2016, the ZBA denied requests for variances for a single-family home. During the hearing, Altaf told the ZBA that he believes the lot is suitable for building. “I did a lot of research on the property. When I bought it, I believed that I could build on it. I understand there’s a comment about not building, but that’s a layman’s comment,” Altaf told the ZBA. He subsequently filed an appeal of the ZBA decision with the New Haven Superior Court, the same appeal that was transferred last month to the land use section of Hartford Superior Court.

In November, the P&Z denied his first request to construct two buildings with six residential units under the state’s affordable housing statute 8-30g.  According to the statute, 30 percent of housing must be designated as affordable—which would be two of the six units.

In February, the P&Z denied the second request which involved construction of a three-unit apartment building, which would include one affordable unit.

In both cases, the P&Z based their denials on multi-page resolutions that spelled out their reasons for denying the proposals. The commission said the applicant failed to provide vital information requested by town staff. The resolutions included conclusions and opinions from several experts, including the town attorney, town engineer, fire marshal, and an environmental analyst from the state Department of Energy and Environmental Protection (DEEP). The resolution also referenced testimony from the P&Z hearings and documents presented as evidence.

Affordable housing proposals can be denied if substantial issues of public health, safety and welfare outweigh the need for affordable housing.

Altaf’s Attorneys

During the January P&Z hearing, Attorney Porter (pictured) said there was a lot of speculation about sea level rise, but that the commission can’t base a decision on “speculation.” She also questioned other statements made by experts. In addition, Porter said they were not required to submit a detailed site plan because it is an affordable housing application.

“We have made a sincere effort to listen to you and we’re willing to work with you,” Porter told the commission

During the July P&Z hearing, Curseaden, Altaf’s lead attorney,  was asked which project the property owner prefers — the single-family home or the affordable housing.  “Pawson Point LLC intends to develop the property—period,” Curseaden said, adding that he couldn’t say which was preferred.

Questions were asked during the ZBA hearing about whether Altaf knew the lot was unbuildable when he purchased it.  Curseaden said he did not represent Altaf at the time of purchase, but said anytime someone purchases a vacant property, there’s always a risk whether they would be able to build there. “He definitely took a risk to purchase the lot, but that doesn’t mean he doesn’t have a right to a variance,” Curseaden said.

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Marcia Chambers contributed reporting for this story.