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A state Superior Court judge has ruled that neighborhood protest petitions requiring a “supermajority” vote by Branford’s Planning and Zoning (P&Z) Commission are not relevant to affordable housing projects like Parkside Village.
During the P&Z public hearings last year, neighbors who opposed the project signed protest petitions that supposedly triggered a state law requiring a zoning change be approved by a two-thirds supermajority vote.
The issue under appeal was whether the 1925 State Statute 8-3b regarding protest petitions is relevant to projects filed under the 1990 Affordable Housing Statute (known as 8-30g).
Superior Court Judge Marshall Berger, who presides over the land use court in Hartford, issued a 13-page decision Wednesday stating: “For a number of reasons, this court holds that 8-3b does not apply to affordable housing applications under 8-30g.”
Doug Denes, who chairs the Housing Authority, said he was pleased to learn of the judge’s decision. “The Housing Authority is certainly grateful that our efforts prevailed,” Denes told the Eagle.
The court ruling means that the Parkside Village project can move forward, if no additional appeals are filed. However, there are other considerations that could affect the project, such as funding deadlines and road access.
The Housing Authority has spent several years attempting to replace the dilapidated Parkside Village 1, after determining it was no longer feasible to remodel it. The complex, located at 115 S. Montowese St., includes 50 small units that provide housing for low-income elderly and people with disabilities. Parkside Village 1 was constructed in the early 1970s on a 5.7-acre site that the Housing Authority owns.
The new proposal calls for construction of an L-shaped building with 67 apartments, which would house low-income people of any age.
Legal Issues
Branford’s Housing Authority and its developer, Beacon Communities LLC of Boston, filed an appeal after a P&Z vote in January. The commission voted in favor of the project by a 3-2 majority, but the project was denied because the commission and town attorneys said the protest petitions triggered a 4-1 supermajority for a zoning change. There were three applications — the zoning change was the only one that could have required a two-thirds vote.
Judge Berger cited passages from numerous court cases when explaining his decision. He concluded: “In short, the protest petition provision of 8-3b is not a proper ground for the denial of the applications. In improperly relying on 8-3b to deny the applications, the commission failed to comply with 8-30g and has not sustained its burden of proof.”
The judge further wrote in regard to the P&Z that “the denials of the commission based upon the ‘supermajority’ provision of 8-3b are reversed.”
Judge Berger’s ruling could set a legal precedent for affordable housing projects throughout the state.
The Housing Authority and Beacon Communities are represented by Attorney Tim Hollister, a partner at Shipman & Goodwin in Hartford. When contacted by the Eagle Wednesday, Hollister said he was not yet ready to comment on the decision.
The Housing Authority is also represented by Attorney Anika Singh Lemar and her Yale law clinic. She could not be reached for comment.
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. When contacted by the Eagle Wednesday evening, Aniskovich said he would review the decision and discuss it with First Selectman Jamie Cosgrove before making any comments.
Additional Issues
The resolution of legal appeals is not the only issue affecting the construction proposal.
The developer has been planning to apply for funding through the federal low-income tax credit program, which is administered by the Connecticut Housing Finance Authority (CHFA). However, there is a November deadline to apply for the annual federal funding program. Dara Kovel, president of the Beacon Communities development company, did not respond to calls from the Eagle yesterday regarding the court decision and the funding deadline.
Another issue is the question of an additional access road.
In July, the Representative Town Meeting (RTM) denied a request from the Housing Authority to grant an easement on Melrose Avenue for two years during Parkside construction. Some RTM members said the easement would actually be in perpetuity, which they did not like; and they also objected to the $200,000 donation to help build the road, which was offered by the Housing Authority and Beacon Communities. Read about that meeting here.
Large crowds attended the P&Z hearings last year and the RTM meeting. Neighbors said they opposed the Parkside 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.
I guess this is what happens when a 1st selectman appoints people to commissions that dont understand the legal responsibilities and obligations of being a regulatory commission member.