A Feb. 20 re-vote on a proposed housing project has averted a threatened court appeal following Planning and Zoning (P&Z) Board approval of the 12-unit project at 328 Meadowside Road.
The board originally voted 7-1 on Dec. 19, 2017, to approve with conditions a nine-unit apartment complex at 328 Meadowside Road, which was filed under the state’s affordable housing law, 8-30(g), reducing the size from the original 12 units.
Attorney Thomas Lynch, representing Beachland LLC, owner of the 0.53-acre property located in the R-12.5 zone, resubmitted the project to the board to return to the 12 units, while also proposing a fence and additional drainage, to address concerns raised by neighbors at the public hearing, and a walkway to respond to board concerns.
The board voted 5-5 at the Feb. 6 meeting to approve the revised application. Since the tie motion failed, the original approval from 2017 remained in effect, until it was superseded by the Feb. 20 approval.
Following the Feb. 6 vote, Lynch contacted Milford City Attorney Jonathan Berchem regarding Lynch’s belief that board member Denise Doucette-Ginise of 331 Meadowside Road should have recused herself from the application.
In a Feb. 7 email, Lynch wrote that the motion to approve the revised project would have passed, but for the vote “by a board member who has a clear conflict of interest regarding this application. She is the owner of the property directly across the street from the site, so she is an aggrieved party to any applications pertaining to the property by state statute.”
Board Chairman Jim Quish said Berchem recommended the board take a second vote on the application.
“He felt the non-recusal would put us in a precarious position,” said Quish.
At the Feb. 20 meeting, Doucette-Ginise read from an email she received from Berchem. In the email, Berchem indicated that where conflicts of interest exist, board members should disclose the conflicts, and determine whether they can fairly make a decision on the issues before the board.
“The decision to recuse is solely within the discretion of individual board members. There is no statutory basis for recusal and recusal cannot be compelled by others,” said Doucette-Ginise, reading from Berchem’s email.
In response, Doucette-Ginise said she identified herself as living at 331 Meadowside Road.
“I also identified my concern that the safety issues documented during the December hearing were not adequately addressed with the revised application,” said Doucette-Ginise. “My subsequent vote was based on continuing safety concerns unrelated to any personal or financial interest.”
Doucette-Ginise said Berchem referenced sections of the Connecticut State Statutes, and the Milford Code of Ordinance “in his strong recommendation to recuse myself from tonight’s hearing.”
Berchem identified her as an aggrieved person, which is defined as a person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the board. The driveway to her property is nearly opposite the south property line for 335 Meadowside Road.
“Any one of us could have a personal interest in an issue or application whether or not it is in close proximity to our residence,” Doucette-Ginise said. “If the board agrees it wants me to recuse myself from this hearing, I do so with my comments and reservations on the record.”
No board member commented on whether she should recuse herself. Following that lack of comment, Doucette-Ginise said, “I will recuse myself having been advised by attorney Berchem.”
The board then had a discussion about the merits of taking a second vote on an application. Board member Scott Marlow said, “I would hate to see this become a habit of revisiting stuff we already voted on.”
In response, City Planner David B. Sulkis said, “This happens on rare occasions” when a problem is recognized with a vote. Sulkis said this also happens with the Zoning Board of Appeals.
When a problem is recognized, then the P&Z office does not advertise the outcome, which gives the board the opportunity to revisit the motion. Sulkis said once a vote is advertised, it cannot be revisited. He also said the board can only revote on the motion in question, and cannot vote on a different motion.
Board member Robert Satti said, “There has been outside influence to change the vote. I just don’t think that’s appropriate,” commenting, “just to keep revisiting and revisiting and revisiting, I don’t think is economical and I just think it’s sour grapes.”
In response, board member Brian Kaligian said, “No outside influence has asked me to change my vote. We can all vote the same way we voted last time.”
In making the motion to approve, board vice chairman Carl Moore said the applicant could go to court and the board would be likely to lose the case.
“It will go back to the original plan with no modifications. We owe it to the residents that we do so with some type of modifications,” said Moore.
The motion passed with Quish, Marlow and Satti opposed. Board member John Grant, who voted against the project on Feb. 6, switched to voting in favor on Feb. 20. All other board members voted the same way.
The revised plans include a minimum four-foot wide walkway with pavers from the road to the building entrances, a six-foot high privacy fence along the east and west property borders, and a curtain drain around the building foundations. These were all conditions required by the board in the December approval.