Legal Questions Raised In Parkside Village Project

Diana Stricker PhotoSome legal questions need to be addressed before a decision is made on the proposed Parkside Village 1 affordable housing complex in Branford. A difference of opinion between the town attorney and the developers’ attorney regarding protest petitions may end up in court, depending on how the vote goes. 

The public hearing, which began in October, closed Thursday but the Planning and Zoning (P&Z) Commission did not begin discussions on the proposal.

Diana Stricker Photo“No deliberations this evening,”  P&Z Chair Chuck Andres (pictured) announced after the hearing closed. About 130 residents attended the meeting in the community room at Fire Headquarters, with standing-room only. The proposal has elicited negative comments from nearby neighbors, who hired their own attorney.

Diana Stricker PhotoAndres said new materials have been submitted and it will take time for the commissioners to review all the documents. He said discussions will begin at the next regular meeting —  Jan. 4 at 7 p.m. at the same location. The commission has 65 days from the close of the hearing to make a decision.

One of the legal issues discussed Thursday centered on whether state laws governing a “supermajority vote” apply in this situation. If the statue applies, it could mean that any zoning change would have to be approved by four of the five commissioners.

Another issue, which was brought up by a neighbor Thursday, concerned whether the Housing Authority has the authority to change the residential status of the complex. That issue was answered and seemingly resolved by attorneys for the developers. Parkside currently houses low-income seniors and people with disabilities. The new project would be available for low-income people of all ages.

The Proposal

With PermissionBranford’s Housing Authority and its developer — Beacon Communities LLC of Boston — are seeking a zoning change to allow construction of a new building to replace the dilapidated complex at 115 S. Montowese St. They are applying under the state statute 8-30g affordable housing law.

Applications under 8-30g operate under different rules that other proposals. If the commission denies the project and an appeal is filed in Superior Court, the commission has the burden of proof to show why it was denied.  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.

The current Parkside Village 1 buildings, which were built in the 1970’s, include 50 units and do not meet Americans with Disabilities Act (ADA) requirements. The new building would have 67 apartments with 33 one-bedroom units and 34 two-bedroom units.

A second complex on adjacent property, Parkside 2, which has 40 units, was built in 1985, and has been updated with state grants. The buildings also house low-income senior citizens and people with disabilities.

Plans to build new Parkside 1housing were stalled last year by neighbors’ concerns and design issues.The plans were withdrawn from P&Z consideration shortly before the cut-off date to apply for federal funding. Since that time, the developers have revised the plans after meeting with neighbors and town staff.

The developers plan to apply for federal low-income housing tax credits, which will be sold to investors, resulting in an anticipated $17 million in private funding.

A Supermajority?

The question about a supermajority vote arose because a specified number of nearby property owners signed a protest petition. The names and addresses were recently verified by the town planner.

The Connecticut General Statutes, Section 8-3(b,) state that the boundaries of zoning districts shall be “established, changed or repealed only by a majority vote of all the members of the Planning & Zoning Commission. However, if a protest against a proposed change is filed at or before a hearing with the Commission and is signed by the owners of 20 percent or more of the area of the lots affected by the proposed change, then any change must be adopted by a vote of two-thirds (2/3) of all the members of the Commission.”

This means that four out of five P&Z commissioners would be needed to approve a zoning change, instead of three out of five.

In addition to Andres, who is a land use attorney, the commissioners include Marci Palluzzi, John Lust, Joe Vaiuso, and Joe Chadwick. However, Chadwick, who was a member of the Housing Authority, recused himself from the P&Z Parkside proceedings.

It is not yet known which of the alternates will replace Chadwick for the Parkside voting — Fred Russo or Paul Higgins. Russo, who lives in the 5th District where Parkside is located, has already expressed his displeasure with the project during public hearings.  A third alternate, Chris Kelly has not attended meetings in recent months.

Attorneys Debate Protest Petitions

Diana Stricker PhotoAttorney Timothy Hollister (pictured), a partner in the Shipman & Goodwin law firm in Hartford, who represents the developers, said in his opinion the statute doesn’t apply because this is a 8-30g affordable housing project. “The protest petition is not applicable to this application,” he said, citing a state Supreme Court case.

However, Hollister said if the town’s attorney says the petitions do apply, there are other considerations.

There are several components to the applications for the Parkside redevelopment project, which would each require a separate vote.  The developers are requesting a new zoning designation for the site, which would be called “Parkside Assisted Housing District.” The site is currently zoned Residential 3. The applications include requests for a zoning change, a zoning map amendment, and a site plan and coastal site plan.

“If anything is clear, it is that the protest petition only applies to a zone change, and it will create a very strange situation if there is a supermajority requirement for the zone change, but not the other parts,” Hollister said, adding that it could result in a situation without precedent. 

In addition, Hollister said the applicant can technically proceed without a zone change because it is an 8-30g application.

Hollister said if there is a majority but not a supermajority vote on the zone change, “We will ask the court to order that part of the application to be approved.”

Diana Stricker PhotoAndres then asked for an opinion from Danielle Bercury (pictured), a senior associate at Brenner, Saltzman & Wallman. The New Haven law firm represents the town as does Attorney Bill Aniskovich, who has attended the meetings but has not publicly voiced his views. 

“There are some things I do agree with Attorney Hollister on as to what the protest petition applies to,” Bercury said, adding that it applies to zone changes.

However, she said the court case cited by Hollister doesn’t specifically address protest petitions. She also said she has not seen any case law that says protest petitions don’t apply to an 8-30g application. In her view, Bercury said without case law she can’t say that the petition doesn’t apply. (Not every legal conflict results in a court decision and subsequent case law.)

“My position is that without authority of the court, we have to do what the law says,” Bercury said.  She said if the issue is contested in court, a judge could decide that protest petitions don’t apply to 8-30g applications. “But I’m not comfortable sitting here saying that,” Bercury said.

Attorney John Parese, of Parrett, Porto, Parese and Colwell, a law firm in Hamden, represents neighbors who oppose the project. At previous meetings, Parese disagreed with Hollister’s claim that the state regulation doesn’t apply to 8-30g applications.

Questions About Tenant Eligibility

Diana Stricker PhotoCarolyn Sires (pictured), of 98 S. Montowese, one of the organizers of the neighborhood protest, brought a new issue to the hearing Thursday. Sires has requested e-mails and other documents concerning the Housing Authority and affordable housing under the state’s Freedom of Information Act.

Sires read portions of numerous documents from the early 1970’s that stated the Housing Authority could not change tenant eligibility from seniors to other age groups unless there was “legal written documentation” that there was no longer a need for additional low-income elderly housing. The documents pertained to construction of Parkside Village I.

“It specifically states you need permission to change it,” she said.

Sires said her research has not turned up any amendments to the contract documents, but she is still searching.

Hollister responded by saying that state and federal policies have changed since the 1970’s. He said this is new construction which is permitted to have new rules for occupancy. He said the documents presented by Sires have “historical interest but not legal relevance to this application.”

Diana Stricker PhotoAttorney Anika Singh Lemar (pictured), who is representing the Housing Authority along with students from the Yale Law School, also responded to Sires’ claims.

“You won’t find the modification of the contract until we sign the financial agreements with the state for the new development, which we will do before we begin construction,” Lemar said. “So the new construction finance documents will essentially supplant what you have… So if you’re looking for the amendment — the amendment doesn’t happen when you’re planning the project, it happens when you close the financing for the project.”

Lemar also said state and federal policies are now prioritizing affordable housing for all ages.

Fire Official Awaits Emergency Access Decision

Neighbors Thursday continued to air their concerns, citing traffic and safety issues. People at previous hearings have stated there would be an increase in crime and safety issues if poor families were allowed to live in the neighborhood. Click here to read the story.

There is also a question about emergency access to the rear of the Parkside complex.

Town Planner Harry Smith read a letter Thursday from Branford Fire Marshal Shaun Heffernan stating he can’t sign off on emergency access until issues about Melrose Avenue and Sliney Road are resolved.

Hollister said the Melrose Avenue plan is their first choice for additional emergency access, but Sliney Road is a second option.
Hollister previously said one condition of approval is that the town must complete their plans to extend Melrose Avenue to improve safety at the Sliney ballfields, which could also provide rear access to Parkside.

In September. Alex Palluzzi, Jr.,  the town’s director of Parks and Recreation, presented preliminary plans to the P&Z regarding the town’s proposed Melrose Avenue expansion. He said the proposal would add 50 parking spaces to Sliney, and would improve traffic flow and emergency access to the ball fields. The P&Z gave the proposal a positive referral; however, the plans have not yet been submitted to other town boards.

In recent months, the Representative Town Meeting (RTM) approved a land boundary exchangeso that the entire Sliney baseball field will be owned by the town and not shared with the Housing Authority.  The Housing Authority gained a small portion of land in the exchange. The P&Z had recommended the RTM act to correct an inaccuracy on the town’s land records that gave the Housing Authority ownership of the area around second base.

Hollister previously said the actual conveyance of the property line adjustment at Sliney fields won’t occur until needed for the Parkside project.


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posted by: Evil Incarnate on December 13, 2017  1:28pm

The issue of the super-majority seems like a “red herring”.  The application is an 8-30g application.  If the application is turned down because it gets only three votes instead of four and with a strong health & safety basis, the housing authority takes the next step goes to court.  The Town loses, the abutters lose (and cannot claim a procedural problem in the P&Z decision), and the only thing is the Town has a legal bill.

Super-majority?  Big deal.  No one is saying that a 4/5th vote requirement moots the 8-30g mechanism.

Oh and by the way, the issue of general occupancy versus elderly/disabled is a really a fair housing issue (Title VI of the 1968 Civil Rights Act).  If the abutters and their attorney think they have some form of blocking move for the change to general occupancy, they are walking themselves into a minefield.  My guess is that at the current time, the average age of the current residents may be lower than 62 and that the young disabled bring many behavioral issues which individually do not rise to a community problem but en masse do.  Federal public housing allows a housing authority to set ratios of elderly to non-elderly disabled.  Privately-owned federal housing has a statutory cap of 10%.  State of Connecticut units have no mechanism(s) to maintain a primarily elderly population.  So, what has happened across the state is that state elderly/disabled public housing has often become primarily or to a very large percentage young disabled.

Not every argument for a position avoids unintended consequences for those making the argument.

A conversion to general occupancy based solely on income and body count (unit occupancy standards based on code) will avoid concentration of residents based on attributes other than income level.