At Crossroads, Parkside Plan Tests State Law

Diana Stricker photoEfforts 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 They claim the 1925 law was superseded by a newer law enacted in 1990, known as the 8-30g Affordable Housing Statute.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 History

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.

File photo

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?

File photoIn 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.

File photoHollister’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

File photoIn 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.

File photoAttorney 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.

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posted by: Kevin McCarthy on August 8, 2018  11:43am

I suspect the legislative history of Sec. 8-39g is not illuminating. I was staffing the legislature’s Planning and Development Committee when it was adopted. I don’t recall any discussion of the relationship between the two statutes.

Ironically, I’m reading The Color of Law, which argues that laws such as CGS Sec. 8-3(b) were adopted to preserve the racial and class characteristics of neighborhoods.

posted by: NHPLEB on August 8, 2018  12:40pm

I think the law supports class segregation.  The race/religion/ethnic groups that get swept aside are just an added bonus for the elites.  They mostly just want to live with people with the similar income and lifestyles that they have.  Let’s face it , even though it is harsh to read:  no one really wants the poor and their pathologies nearby ,  no one wants drug rehab homes,  or mental health halfway houses,  or abuse safehouses,  or you name it,  with the “baggage” that comes with them.  If people were allowed to be honest,  they would tell the truth of how they feel and why .
Perhaps, then a real conversation could begin on where / how/  and who will have some ideas about how to deal with these very real issues .  No one is happy that people have such trauma and distress in their lives and no one doesn’t want to help.  They just don’t want it in their personal faces and lives.

posted by: Patricia Kane on August 8, 2018  12:40pm

It’s time for the suburbs to take their fair share of poor people and not leave it to the good people of New Haven to be the only refuge.
  The new design, in my opinion, is far superior to the pathetic 1970s project which must be depressing to look at, much less live in.
  It’s a shame we have to take people to court to make them let others live nearby.
  The generation that survived the depression and WWII understood the value in helping each other, whether directly or thru government programs.
  I do not like the selfishness that we see too often in communities that can afford to do better.

posted by: Common on August 8, 2018  1:38pm

For the most part I don’t think it’s about Not In My Back Yard. There are just so many questions that go unanswered. It’s like the BHA and Beacon are up against losing “free” money and they are just trying to get something done. Who is this new housing for? Seniors, low income, veterans, disabled? What is the criteria to get in? Are the current residents guaranteed a same unit?
The buildings are not in character with the neighborhood. Who pays for the increased services for the additional residents in a complex that already gets more than its fair share of police, fire, ambulance calls? It just seems that there is an awful lot of effort and somebody’s money being put out for something that clearly is not close to ideal.
As far as the suburbs comment…maybe it’s about time New Haven and all other big cities stop taking the tax money that people in the suburbs pay into the system, that they are supposed be using to provide services to their citizens. So now you want me pay New Haven to do a job they aren’t doing, and then also take their citizens in and have my local taxes go up even more to provide more people services? Sounds fair.

posted by: NHPLEB on August 8, 2018  4:13pm

Dear Common— your reply is exactly what I mean.  And I agree that you have every right to question everything that low-income,  poor,  otherwise disabled folk bring to wherever they live (on purpose or not). The things they carry with them are often very unpleasant and should worry you.
Now,  the buildings can be made to suit the neighborhood , though I see many monstrous, eyesore “different”  homes in what are otherwise lovely neighborhood scenes in Branford and elsewhere.
    I do disagree with your final point about NH paying for its folk. Please note that many of the folk in rehab or other things come from suburbia.  Your towns do not provide the services so you ship them to the cities where the services exist.  It may look like what you think but many are from your towns.  Ask our NHPD who are the folks who often get stopped for buying drugs or patronizing prostitutes in NH or attend the methadone clinic and I think you will be surprised at where they come from!
    Finally,  it is liberal towns like yours that send Ted Kennedy to the State House to push for all the programs that you don’t want.  Why do you vote for these folk and expect anything different.
Thanks for sharing how you feel— it’s important that communication remains open and discussion remains civil!

posted by: redman on August 10, 2018  6:33am

The suburbs already greatly subsidize New Haven, almost half of New Haven’s revenue comes from the suburbs. This type of housing should be built where the “do gooders” live.