Efforts to rebuild the deteriorating Parkside Village 1 affordable housing complex in Branford are at a crossroads.
One of the issues is whether a 1925 statute about neighborhood protest petitions is relevant to projects filed under the 1990 Affordable Housing Statute.
A court ruling about the relevance of protest petitions in the Parkside case could set a legal precedent for affordable housing throughout the state.
A Boston company named Beacon Communities LLC is seeking a zoning change to enable it to rebuild the complex and expand it to include low-income adults and families, instead of just seniors and people with disabilities.
A protest petition by neighbors halted the Parkside project even though the Planning and Zoning (P&Z) Commission voted 3-2 in favor of the plans in January. The petitions triggered a 1925 law, which says a two-thirds “supermajority” vote (in this case 4-1) would be required to approve a zoning change if there is a verified neighborhood protest petition. The map change was one of three applications involved in the project.
Attorneys for Branford’s Housing Authority and developer Beacon appealed the P&Z decision. They claim the 1925 law was superseded by a newer law enacted in 1990, known as the 8-30g Affordable Housing Statute.
During public hearings for Parkside, town attorneys said there was no case law saying that protest petitions do not apply to 8-30g applications.
Attorneys for both sides argued the issue last month before Superior Court Judge Marshall Berger, who presides over the land use court in Hartford.
The P&Z is represented by town attorney William Aniskvoich, of Brenner, Saltzman & Wallman LLP in New Haven, and attorney Danielle Bercury, a senior associate with the same firm.
Attorney Tim Hollister, a partner at Shipman & Goodwin in Hartford, represents developer Beacon Communities and the Housing Authority. Attorney Anika Singh Lemar and her Yale law clinic students represent the Housing Authority.
Typically a court decision must be reached within 120 days, but Hollister asked the judge to take into consideration the November deadline to apply for federal funding for the Parkside project. The judge noted the deadline.
Regardless of the outcome, the judge’s ruling is subject to additional appeals.
Parkside Village 1 was constructed in the early 1970s on a 5.7-acre site that the Housing Authority owns. The three buildings at 115 S. Montowese St. are deteriorating and are not compliant with the Americans with Disabilities Act.
The Housing Authority has spent several years attempting to replace Parkside, after determining it was no longer feasible to remodel it. The complex includes 50 small units that provide housing for low-income elderly and people with disabilities.
The Housing Authority said all current residents of Parkside 1 would be rehoused in the new building.
Plans call for construction of an L-shaped building with 67 apartments, including 33 one-bedroom units, and 34 two-bedroom units. The units would house low-income people of any age, not just seniors, which the developer claims would increase the possibility of securing federal funding.
The developer plans to apply for federal low-income tax credits, which are administered by the Connecticut Housing Finance Authority (CHFA). Beacon would apply for federal tax credits and sell those credits to large institutions to raise the equity needed.
A second complex on adjacent property, Parkside Village 2, which has 40 units, was built in 1985, and has been updated with state grants. That property is also owned by the Housing Authority, and those are the only two housing projects that come under their jurisdiction.
Public hearings, which began in October and ended in December, drew large crowds, with many neighbors opposing the project for a variety of reasons. Some residents said the project would take affordable housing opportunities away from senior citizens and people with disabilities. Others said they oppose the plan because it would bring a “different element” to town.
Does the New Law Supersede the Old Law?
In legal briefs filed with the court, attorneys discussed the merits of whether the protest petitions apply to 8-30g applications.
In Hollister and Lemar’s 35-page brief, several issues were addressed, including a discussion of the 1925 state statute known as 8-3(b), which deals with protest petitions. The attorneys claim it is not relevant to affordable housing projects like Parkside Village, which was filed under the Affordable Housing Statute 8-30g.
Hollister’s brief put it this way: “...The protest petition language in 8-3(b) dates to the standard state Zoning Enabling Act of 1925, and has not changed substantially in the decades since. The protest petition is a relic from the earliest days of zoning. On the other hand, 8-30g was enacted far more recently, and was the result of a two-year, in-depth study of zoning and affordable housing in Connecticut, which resulted in identification of procedures that needed to change to ameliorate the evident consequences of leaving municipal zoning commissions to their legislative discretion, unchecked by the courts.”
According to Hollister, an expert in this area, newer statutes take precedence over older ones, especially when the older housing statutes were used as a tool to keep minorities out of neighborhoods. In this case, the latter statute, 8-30g, shifts affordable housing denials to issues of public health and safety only.
Hollister and Lemar’s brief stated there have been no decisions about whether protest petitions apply to affordable housing applications. “The only realistic answer is that attorneys representing commissions and opposition groups have concluded, correctly, that 8-3b is not applicable to 8-30g applications.”
The Town’s Position
In the town’s 19-page legal brief, Attorney Bercury wrote that the two statutes: “can and should be read as consistent. The affordable housing statutory scheme does not refer to amendments to the zoning map or zone changes. Because the statute is silent on zone changes and protest petitions only apply to these types of zoning applications, it would not be inconsistent for protest petitions to apply to applications for a site-specific zone change even in the context of an affordable housing application.”
Bercury later stated that the decision of whether protest petitions apply to affordable housing applications wasn’t a decision for the P&Z Commission to make.
“It is properly the jurisdiction of this Court to rule on the applicability of a protest petition in an affordable housing application,” Bercury wrote.
Bercury made similar statements during the P&Z public hearings.
At a P&Z public hearing in December, Bercury said she had not seen any case law that says protest petitions don’t apply to an 8-30g application. She said if the issue is contested in court, a judge could decide whether protest petitions apply to 8-30g applications. “But I’m not comfortable sitting here saying that,” she said.
Attorney Aniskovich also reiterated that position at a P&Z meeting in January before the vote was taken. Chuck Andres, who chairs the P&Z, asked Aniskovich for guidance. “I know the applicant took the position that the protest petitions don’t apply to applications under 8-30g,” Andres said, and then turned to Aniskovich. “But you advised us that you found no authority to support that, and that you therefore disagree with that. Is that correct?”
“Correct,” Aniskovich replied at that time.
In the brief, Bercury wrote, “Without authority settling that matter, faced with an unquestionably verified protest petition, a valid, long-standing statute and no judicial authority whatsoever stating that the protest petition did not apply to Zone Change Application, the Commission did what its members gave an oath to do – the Commission followed the law.”
Health and Safety
Applications under state statute 8-30g operate under different rules than other proposals. If the P&Z Commission denies a project and an appeal is filed, the commission has the burden of proof. They must show that the decision was supported by evidence on the public record and that it was based on substantial public health or safety issues, and that those issues outweigh the need for affordable housing.
Hollister and Lemar’s brief points out the commission drafted and voted 3-2 on resolutions to approve the project, but did not draft or adopt a resolution with reasons for denial based on issues of health and safety.
In the town brief, Bercury said “If this court believes more is required, the matter should be remanded to the commission so that the two members who voted in opposition to the application can craft a formal statement setting forth their reasons for voting against the application.