The town’s Housing Authority and a developer hired to redevelop Parkside Village have asked a Superior Court judge to reverse a Planning & Zoning denial of the project, declaring a protest petition by neighbors does not apply to the Affordable Housing Act. And, they added, the town’s attorneys knew that or should have known that when they advocated on their behalf.
In January, the Parkside Village 1 affordable housing project was defeated at a special Planning and Zoning (P&Z) Commission meeting when one aspect of the proposal failed to gain a “super majority” vote. Although the P&Z voted 3-2 in favor of the Parkside project, one of the three applications — a zoning map change —did not get a super majority vote of 4-1. They said that meant the entire project failed.
In a detailed 35-page brief, Attorney Tim Hollister (pictured above), who represents the developer and the Housing Authority and Attorney Anika Singh Lemar, whose Yale student clinic represents the Housing Authority, repudiated the petition effort, observing that the 1900’s law under which the petitions were filed was “designed to perpetuate racial segregation through zoning.”
In addition, Hollister and Lemar wrote that the P&Z rejection of the project should be overturned on another set of grounds: The P&Z commission failed to explain its reasons for rejecting the project as required by law. Under current law, commissions voting on affordable housing cases are required to justify their denials with “identification of substantial public health or safety concerns.” These reasons are absent. No written statement was provided by the P&Z.
Branford’s Housing Authority and developers Beacon Communities LLC of Boston have been attempting to build new affordable housing to replace the dilapidated Parkside Village I. In addition to the appeal, Hollister and Lemar (pictured) submitted a 189-page stipulation of facts and exhibits that may help resolve some of the legal issues raised in the appeal, they said. Hollister is a partner at Shipman & Goodwin in Hartford.
Town Fails to List Unresolved Health or Safety Issues
The 14- page appeal filed in February cites another major legal reason why the P&Z decision should be reversed, including the fact that during the hearings, “no expert, consultant or resident identified any probability or type of harm or substantial health or safety concern that could result from any part of the application.” Health and safety reasons are the only set of reasons why an affordable housing 8-30g application may be denied.
The P&Z produced no written analysis on health or safety issues that could not be resolved by changes to the plans.The appeal is now before the land use court in Hartford over which Superior Court Judge Marshall Berger presides. The Housing Authority and the developer are asking Berger to direct the P&Z to approve the entire project. The town’s brief is due to be filed this Wednesday.
Town Attorneys Criticized
Both Hollister and Lemar wrote in their brief that there was a lack of due diligence on the part of the town attorneys. Hollister wrote that they failed to understand that older statutes yield to newer statutes. In this case, the latter statute, 8-30.g, adopted by the Connecticut legislature in 1990, shifts affordable housing denials to public health and safety concerns only. The housing complex, built in the mid-1970’s, is not compliant with the Americans With Disability Act.
In their brief, Hollister and Lemar point out that section 8-30g “was adopted 64 years after 8-3 (b) with the knowledge of the protest petition procedure, and created a new, superseding procedure and standard of review for affordable housing developments.”
P&Z chair Chuck Andres, a land use attorney, said at the meeting, “I know the applicant took the position that the protest petitions don’t apply to applications under 8-30g,” Andres said. Andres then turned to Bill Aniskovich, the town attorney. “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. Hollister maintains the zoning map issue, the key issue in dispute, does not require a super majority vote under the Affordable Housing Act.
Overall, Andres and Harry Smith, the town planner, would ask and defer to Aniskovich’s opinion, since he is the town attorney.
Why there was no case law or authority on the books regarding petitions, as Aniskovich and Danielle M. Bercury (pictured) , a senior associate with the law firm, observed, was an important question. Bercury and Aniskovich gave no reason for the lack of case law on petitions under 8.30-g over the past 28 years.
However, Hollister and Lemar addressed it first in a footnote and then in the body of the brief. “The question arises as to why 8-30g became effective in 1990 but there have been no court decisions about 8-3 (b) vs. 8-30-g to date, despite dozens of 8-30-g applications involving rezoning applications. The only realistic answer is that attorneys representing commission and opposition groups have concluded, correctly, that 8-3b is not applicable to 8-30g applications.”
Hollister 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 study 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 like 8-30g take precedence over older ones, especially when the older housing statutes condoned racism and were used as a tool to keep minorities out of neighborhoods.
Allowing “majorities to challenge rezoning dates to the early 1990’s when several northern cities, in response to African-American migration from the South, began to adopt regulations that , in various ways, banned African-Americans from living in white neighborhoods….As such, by elevating community hostility into a barrier to land use approvals, protest petitions are the type of exclusionary procedure that 8-30g was adopted to remedy,” the brief says. The 8-30g statute was adopted in 1990 in a attempt to remove segregation from neighborhoods.
Aniskvoich, who is of counsel to Brenner, Saltzman & Wallman in New Haven, does not work full-time at the law firm, which represents the town of Branford. In past cases Carolyn W. Kone, a leading land use expert in the state and a partner in the firm has been at Anskovich’s side.However, in this case Ms. Bercury has led the conversation before the P&Z. Neither she nor Aniskvoich discussed the history of petitions, especially in the context of racism.
Hollister Asks Russo to Recuse Himself
During the public hearings, legal questions were raised when one of the commissioners, Fred Russo, refused to recuse himself from voting after he made openly biased comments against the project. Hollister’s efforts to remove Russo, who said he would not abide by the law, failed.
Russo insisted on voting against the project. He was allowed to vote because as an alternate he was next in line to do so, but no effort was made by the P&Z chair to replace him even though attorneys for the developer asked that he be removed from voting and even though another alternate was ready to take Russo’s place.
In a Jan. 23 letter, Hollister wrote that Russo’s (pictured) remarks during the meetings “have left the applicants no choice but to request Commissioner Russo to be disqualified. One of the most fundamental requirements for any public official in general and a land use commissioner in particular is to adhere to the law, such as the Connecticut General statues.”
At the Jan. 18 P&Z meeting, Commissioner Russo stated: “I don’t really care what the law says. I prefer, if we had to, be challenged at the court level.”
At that time Russo said the commission is restricted by the state’s affordable housing statute, and that “Maybe we need to spend some money and go to court. I think we’re going to get shot down, but somewhere along the line, if these laws are not challenged, they’re going to be used against any community,” he said. Later during that meeting he said, “I would never, never vote for this, ever.”
Russo began voicing his objections to the project during the first hearing in October. “It was a wrong decision 40 years ago,” he said in regard to when Parkside was originally built. “We shouldn’t make the same mistake twice.”
Citizen Reaction Showed Racial and Ethnic Bias
There were many instances of overt racist and elitist comments voiced by neighbors during the hearings earlier in the year.
Hollister pointed out that during the recent public hearing sessions, Branford neighbors living near Parkside repeatedly made disparaging comments based on prejudice. The comments, which drew applause, he observed, were “based on stereotypes, prejudice, race or ethnicity, that suggested animus toward the intended residents of the Parkside Village redevelopment.” Click here to read the story.
“The problem is that you shouldn’t be mixed in with low income or Section 8 people. That brings a different element to the town,” was one comment cited in the appeal. Another was: “It’s a public low income project, and no matter what you call it, it is what it is.” A third comment was: “The minute (Parkside) takes state and federal money, it’s open to anybody, anybody.” One resident observed: “Retirees, disabled, old people — I have no objection to renovate the whole place and make it nice for them. But don’t get too much of that riffraff in.”
History of Parkside Project
The P&Z voted 3-2 in favor of the Parkside project Jan. 25, but one of the three applications — a zoning map change —did not get a “super majority” vote of 4-1. The commission interpreted that to mean that the entire project failed.
Neighbors who opposed the project signed protest petitions that triggered a state law that requires a zoning map change be approved by a two-thirds super majority vote. Attorneys disagreed on whether protest petitions apply for state Affordable Housing 8-30g applications.
All three applications were approved by a 3-2 vote, with yes votes from P&Z Chair Chuck Andres, John Lust and Joe Vaisuo. Commissioner Marci Palluzzi and alternate Russo voted no. An alternate to the five-member panel was needed because Commissioner Joe Chadwick recused himself since he had been a member of the Housing Authority. Paul Higgins, a second alternate, was present at the meetings and was prepared to take Russo’s place but he was not asked to do so, apparently because it was Russo’s turn on the rotation of alternates.
Burden of Proof
Applications under state statute 8-30g operate under different rules that other proposals. If the commission denies the project and an appeal is filed, the commission has the burden of proof to show why it was rejected. They must show that the decision was supported by the 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.
The commission failed to submit the required evidence in a denial resolution showing that rejection of the project was based on substantial public health or safety issues as opposed to the petitions.
If a commission denies a project, it must be shown that any health and safety issues cannot be remedied by “reasonable changes” to the project. A commission typically makes changes to a project by adding conditions to their approval. In the case of Parkside, the resolutions to approve the project included numerous conditions that addressed various issues. For example, Branford’s fire marshall had concerns about the need for a new emergency access road to Parkside. One of the P&Z conditions of approval states that a building permit cannot be issued unless a new emergency access road is built, such as the Melrose Avenue proposal.