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Judge Sides with Branford Housing Authority, Developer on Parkside Appeal

Published Nov. 01, 2018 • Last Updated 12:30 p.m., Dec. 02, 2018

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On Oct. 24 in Hartford Superior Court, a judge sided with the argument of Branford Housing Authority (BHA) and developer Beacon Communities Inc. (Boston MA) appealing a 2018 Parkside Village 1 application denial by Branford's Planning and Zoning Commission (PZC). Judge Marshall Berger's written decision (see Related Files) overturns the PZC's January 25, 2018 vote which served to deny BHA/Beacon's application to redevelop and expand Parkside Village I under CT General Statute (CGS) Section 8-30g affordable housing [§ 8-30g].

On Jan. 25, the PZC undertook a series of three votes on the project's three separate applications submitted by BHA and Beacon. Each application was approved by a PZC vote of 3-2, but, based on a condition set by the PZC using the Town Attorney's interpretation of state statutes, one of the applications, for a zoning map amendment to change from residential use to an Assisted Housing District under § 8-30g, required a two-thirds "super majority" (4-1) vote for approval because the PZC had received a valid protest petition submitted by neighbors. Minutes of the Jan. 25 PZC meeting actions on the 3-2 vote denying the zoning map change note "A valid Protest Petition was filed per C.G.S. Section 8-3(b) with respect to this application requiring a 4-1 vote for approval."   The PZC also added a condition that all three applications required proper approval to move the project forward. Because of the failure to reach the supermajority, the PZC submitted that only two of the three applications were approved; so the project was denied.

Represented by Hartford firm Shipman & Goodwin LLP (Beacon) and The Community and Economic Development Clinic at Yale Law School (BHA) the land use litigation was filed in Hartford Superior Court on Feb. 16, 2018.

Judge's Determination on PZC Vote:

In addition to the Town stipulating that § 8-3 (b) required a two-thirds "super majority vote;" during the appeal, the Town also argued provision § 8-3 (b) took precedence over § 8-30g because of two additional statues, § 8-51 and § 8-265a. However, Judge Berger noted those arguments were not persuasive as § 8-51 "simply...renders each housing project subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable" for the project location. Judge Berger threw out § 8-265a, saying the section only applies to the Connecticut Housing Finance Authority (CHFA) and not municipal authorities such as BHA; further noting the statute also "simply renders all land and improvements that CHFA has an interest in subject to local zoning regulations, ordinances and laws."

"In short, the protest petition provision of § 8-3 (b) is not a proper ground for the denial of the applications," the judge wrote in his decision. "In improperly relying on § 8-3 (b) to deny the applications, the commission failed to comply with § 8-30g and has not sustained its burden of proof."

Under that statute, the PZC can only deny the application based on finding substantial public health or public safety concerns.

Judge Bergen further noted, "The commission's inclusion of a condition requiring approval of the zone change for the site plan to be approved was unequivocally illegal. Accordingly, inasmuch as the plaintiffs acknowledge and agree to the conditions imposed by the commission on January 25, 2018, the denials of the commission based upon the 'supermajority' provision of § 8-3 (b) are reversed."

And, even though BHA/Beacon asserted to the court the Parkside application needs to include the zoning change in order to assist with securing funding, the court excluded the zone change requirement by observing that, under the Affordable Housing Act, BHA and Beacon "...were not required to see a text amendment and zone change."  Judge Berger cited a past state appellate decision (Wisniowski v. Planning Commission) indicating " [n]o formal zone change application is needed because the [Affordable Housing Act] is designed to allow circumvention of the usual exhaustion of zoning remedies and to provide prompt judicial review of a denied application."

As part of his decision, Judge Berger has remanded the applications to the commission for approval with "the conditions as previously imposed, excluding the condition requiring a zone change for approval of the site plan."

The Melrose Avenue Extension Issue:

Although the judge has returned the applications to the commission, the site plan application approved by the PZC in January of 2018 included a proposed emergency access road to be created by extending a town road, Melrose Avenue, to point reaching behind the Parkside complex. Bringing in the access road extension requires the town to give permission to extend the road; however, to date, such permissions have not been made by the town. 

Back in December of 2017, at the final part of the PZC's public hearing on the applications, Beacon attorney Timothy Hollister (Shipman & Goodwin, LLP) said that safety concerns raised by the town's fire marshal, regarding a proposed emergency access road leading in from Melrose Avenue to the development; could instead be addressed by utlitizing Sliney Road (currently a driveay access road), with tree clearing needed, including at the South Montowese Street entrance, to widen the path.

Back in December 2017, Town Planner Harry Smith pointed out that Beacon's proposed widening of Sliney Road would be no better than the bringing in the proposed Melrose access road; as both would still require the use of town property for emergency vehicles to stage and access the development. Smith also noted that, as of Dec. 6, the fire marshal had not yet received an agreement from the town allowing for a Melrose access emergency plan.

Then, in the summer of 2018, while the BHA vs. PZC appeal was underway, Branford's Representative Town Meeting (RTM) received a request from BHA/Beacon for access to land to build an access road to Melrose Avenue. On July 25, the RTM voted 18 to 6 reject the request. The request sought an easement for two years' time to allow for temporary construction access and parking that would be needed in order to redevelop Parkside Village I. As part of the request, BHA and Boston-based Beacon also offered to contribute $200,000 for the road the town. The Melrose access road installation would have also allowed emergency responders access to the proposed redeveloped, expanded Parkside Village I.

As of press time, Smith told Zip06/The Sound no new or revised application for Parkside Village I had been submitted to the Planning and Zoning Department.

Summary of BHA/Beacon's Applications, To Date:

Built in the early 1970's, Parkside Village I is out of ADA compliance and currently houses seniors and disabled adults in studio and one-bedroom units.

In 2016, BHA and Beacon withdrew its first application to redevelop and expand the current three-building, 50-unit Parkside Village I at 115 South Montowese St. to create a brand-new single building with 71 units. At the time, BHA/Beacon had sought PZC approval for Planned Development District (PDD). The application was withdrawn by BHA/Beacon after the project's size and scope was met with objections.

In the fall of 2017, BHA and Beacon submitted three applications under § 8-30g to redevelop Parkside Village I as a single building of 67 one-and two-bedroom units, to include affordable housing not only for seniors but for individuals or families of all ages. The application for a zoning mapchange would create an Assisted Housing District guided by § 8-30g instead of Branford's more stringent zoning regulations.

Public hearings in 2016 and 2017 drew crowds of residents, with some in support of the project; but many, including those from residential neighborhoods around Parkside Village, who voiced opposition to the project.


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