Judge Dismisses Effort to Build on Fragile Coastal Lot

A Superior Court judge dismissed one appeal, and a settlement is pending in another appeal for a property owner who filed simultaneous requests to build either a single-family home or affordable housing on a half-acre coastal lot that was deemed “unbuildable.”

Arsalan Altaf through his Pawson Point LLC, filed the appeals last year after Branford’s Zoning Board of Appeals (ZBA) and Planning and Zoning (P&Z) Commission denied his building requests.

Superior Court Judge Barbara M. Quinn dismissed Altaf’s (pictured) appeal of the ZBA decision on March 9.  The case involved the proposed single-family home. The ruling stated that “the court finds substantial evidence in the record to support the conclusions reached and the actions taken by the ZBA. The court therefore sustains the action of the ZBA and dismisses this appeal.”

During the P&Z public hearings, 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, also questioning the rationality of putting low-income housing in a flood zone.

The judge wrote that it was not so much the size of the lot that prohibited building, but its location near “fragile resources” and tidal wetlands which are addressed in the state’s Coastal Management Act.

The appeal of the P&Z decisions regarding affordable housing was scheduled for discussion at Thursday night’s P&Z meeting.  The agenda included a public discussion about a settlement, and a closed-door executive session. However, P&Z chair Chuck Andres announced that the discussions had been postponed until the April 19 meeting.

Both cases had been moved to the Land Use section of Hartford Superior Court, where Judge Marshall K. Berger Jr. approved the request by Altaf’s attorney to combine the two cases.

Proposes P&Z Settlement

Regarding the appeal of the P&Z decision, Town Attorney Bill Aniskovich told the Eagle that a settlement has been proposed between Altaf’s attorney and the attorney representing neighbors Patricia and Stephen Small, who have opposed the projects. “The parties have reached an agreement that involves purchase of the property by the neighbors in exchange for withdrawal of the Affordable Housing appeal, which will result in the case being closed,” Aniskovich told the Eagle.

Property owner Altaf (seated center) is represented by attorney Kevin J. Curseaden (R) of Carroll, Curseaden & Moore LLC of Milford. 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 neighbors, Patricia and Stephen Small, are represented by Attorney Joseph B. Schwartz (L), a partner at Murtha Cullina LLP of Hartford. Governor Dannel P. Malloy recently nominated Schwartz to serve as a judge on the Superior Court.

Aniskovich said the settlement is between the property owner and the neighbors, and the town has no involvement. However, he said the P&Z commissioners have to endorse the actions, and the court has to approve the settlement.

The half-acre lot at 239 Pawson Road, which is about 200 feet from the Branford River, is located in a Special Flood Hazard Zone and is prone to coastal flooding. The property has tidal wetlands, and an easement to adjacent state-owned open-space property.

The site is located at the end of a narrow dead-end road on the Pawson Park/Indian Neck peninsula, which was nearly isolated when Tropical Storm Irene washed out portions of Linden Avenue, the only access road to the peninsula.

How a Tiny Lot Became a Major Issue

In January 2015, the ZBA deemed the Pawson Road lot “unbuildable” when another owner applied for variances to build a home.

In September 2015, Altaf purchased the property for $35,000. It was appraised at $71,000. Altaf declined an offer by neighbors Patricia and Stephen Small to purchase the property from him for $48,000 in March 2016.

Later in 2016, Altaf requested variances from the ZBA to build a single-family home, and he simultaneously filed a P&Z application to build affordable housing on the same lot through the state’s affordable housing statute 8-30g.

Altaf’s proposals elicited numerous objections from neighbors and officials during public hearings.

In August 2016,  the ZBA denied requests for variances  to build a single-family home on the lot.

In November 2016, the P&Z denied Altaf’s request to construct two buildings with six residential units under the state’s affordable housing statute 8-30g. Two of the units would have been affordable.  In February 2017, the P&Z denied his second attempt to build affordable housing on the lot.

Affordable housing projects filed under state statute 8-30g do not have to comply with local zoning laws, but they can be denied if substantial issues of public health, safety and welfare outweigh the need for affordable housing. 

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).

Because of the coastal wetlands, the property comes under DEEP jurisdiction and regulations of the Connecticut Coastal Management Act.

Judge: Fragile Resources

In the March 9 ruling to dismiss Altaf’s appeal of the ZBA decision, Judge Quinn addressed several issues.

The judge wrote that it was not so much the size of the lot that prohibited building, but its location near “fragile resources” and tidal wetlands.

The ruling stated:  “There is evidence in the record to support a finding that the property’s location mitigates against its use as a single family dwelling because of its encroachment upon the growing wetlands already on the site as well as its impact on the protected marsh. Many spoke at the hearing in opposition to the application and provided detailed information to the ZBA concerning those negative impacts: water, wildlife and other natural resources that would, in their opinion, be impaired. There was evidence concerning the full extent of flooding on the property during the wetter months of the year.”

The ruling also stated: “The court concludes that there is ample evidence provided by the ZBA members’ personal knowledge and detailed factual and legal information provided by others in the record to sustain their conclusion. As long as there is such substantial evidence, the court must respect the ZBA’s conclusion. Applicant has failed in its burden to demonstrate that the findings of the ZBA regarding merger and a self-created hardship were arbitrary, illegal and in abuse of the discretion vested in it.”

Updating the Affordable Housing Statute

Altaf’ proposals came at a time when the state legislature was attempting to update the affordable housing statute 8-30g.

State Rep. Lonnie Reed(D-Branford), who was one of the co-sponsors of the proposed legislation, addressed the issues during P&Z public hearings on Altaf’s Pawson Road proposals in 2016.  “I think one of the things going on here … is that the real objective is to get that single home in there, so this (affordable housing) statute is being used as a weapon to try to make that compromise,” Reed told the commission in July 2016.

Reed said situations were happening across the state that prompted legislators to close loop-holes in the statute.

The legislation received overwhelming bipartisan support last year, with the House of Representatives voting 116-33 in late May, and the Senate voting 30-6 in early June. Gov. Dannel Malloy vetoed the bill, but the legislature voted in July 2017 to over-ride his decision.

During debate prior to the vote to over-ride, Reed told the representatives that “Affordable housing is something I deeply believe in, and I know my colleagues do as well. It’s something we want make happen in real ways, and many of our communities are working hard to make it happen in real ways. I think the more we allow the statute to be highjacked and undermined by predatory developers who have selfish goals in mind, the more it loses credibility,” she said.

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