Two neighboring businesses opposed to a proposed 257-unit apartment building at 460 Bic Drive are petitioning the state’s Appellate Court to conduct an appeal of a Superior Court ruling to approve the project.

MDC Milford Associates at 500 Bic Drive, and Northeast Electronics Corp. at 455 Bic Drive filed the Petition for Certification with the Appellate Court on April 28, the last day such a petition could be filed.

The Planning and Zoning Board voted 8-2 at its April 7, 2015, meeting to deny the Bic Drive application, citing various safety concerns.

The application was filed under the state’s affordable housing regulations, Connecticut General Statute 8-30g, which overrides local zoning regulations. In 8-30g cases, the burden of proof rests strongly on the P&Z to prove that any denied project has a public health or safety issue that outweighs the goal of encouraging affordable housing.

Garden Homes Residential of Stamford appealed the P&Z decision to the Superior Court on May 11, 2015. The developer filed the appeal based on various factors, including the idea that the P&Z “has failed to state any valid or proper reason for its decision” and the decision “fails to meet the burden of proof established in Conn. Gen. Stat. 8-30g.”

Citing case law, the 8-30g affordable housing statute, and testimony before the P&Z, Judge Marshall K. Berger Jr. of the Superior Court’s Land Use Litigation Docket, rejected the board’s reasons, and overturned the P&Z decision, in his April 8, 2016 ruling.

The board discussed Berger’s ruling in a closed-door executive session on April 19, but took no vote at that meeting, effectively letting the clock run out on the 20-day appeal process. The lack of a vote was the board’s way of letting Berger’s ruling stand.

During the appeals process, MDC Milford Associates and Northeast Electronics petitioned Berger to join the defense as an intervening party, arguing that their properties would be adversely affected by the apartment project.

Berger ruled on Sept. 4, 2015 that the companies could join the defense as intervening parties. This ruling gave the companies the legal standing to file the petition in response to Berger’s decision.

Attorneys Joel Z. Green and Linda Pesce Laske filed the petition on behalf of the two property owners. MDC Associates owns the former Bic complex that houses various tenants adjacent to 460 Bic Drive, and Northeast Electronics operates a business across the street.

In the petition, the attorneys commented, “The property is burdened by significant site constraints.” They cited most of the reasons why the P&Z denied the application. They made these same arguments in their trial brief, which Berger ruled was not supported by the information provided at the public hearing.

These include an underground, high-pressure interstate natural gas pipeline underneath the property with planned blasting and excavation that would create a risk of danger due to the proximity of the pipeline, wrote Green and Laske.

They also raised the concern that subsurface environmental contaminants would be released from the adjacent property at 500 Bic Drive that is the subject of remediation orders issued by the state Department of Energy and Environmental Protection.

Green and Laske discussed various traffic concerns, including steep slopes that allow for only one access point to the property and inadequate sight lines that restrict exiting vehicles to right-turns only. They also commented that sidewalks cannot be located on the property because they would undermine a needed detention basin.

Another concern is the need for electric booster pumps to supply water for domestic needs and fire suppression. An additional concern is the issue that the garbage disposal area and some parking space would be located on the pipeline, and these uses would be disrupted by pipeline maintenance. The final concern is that the plan does not provide for snow storage capacity.

In their detailed argument, Green and Laske have three main point. Their first is the trial court erred in failing to find that the board’s reasons cumulatively found that the application “poses substantial risks to the public heath and safety that are site specific, cannot be overcome by changes to the plans, and that are not outweighed by the need for affordable housing.”

Their second argument is a similar one with the variation that the risks “cannot be reduced by modifications to the plan.”

The third argument is that the plaintiffs lacked standing to file the appeal because the law requires the plaintiff to be the person whose affordable housing application was denied. Green and Laske argue that the applicant does not have any ownership or legal interest in the property.

Green and Laske made this same argument in the Superior Court in an attempt to get the appeal of the P&Z decision dismissed, an argument that Berger rejected.

Green and Laske’s position is that Garden Homes Management Corp., the company that filed the affordable housing application, is not the same as Garden Homes Residential, Limited Partnership, the property owner at 460 Bic Drive. The court requires that a party needs to be aggrieved to have the standing necessary to file an appeal.

In the court response to this case, Attorney Caleb F. Hamel filed an objection to the motion to dismiss on March 24, 2016, saying that Richard Freedman, the president of the corporation, had submitted an affidavit stating that, “the corporation was a general partner of the partnership, that the partnership owned the subject property, and that the corporation was the applicant for the application at issue.”

The H-shaped four-story building would have 194 one-bedroom apartments, and 63 studio apartments on a 7.4-acre parcel that is zoned as an Office District (OD). Thirty percent of those units would be rented at affordable rates. The building would have 322 parking spaces, averaging 1.25 spaces per unit, and Garden Homes could add 42 more parking spaces, if needed.

In a related case, the Appellate Court agreed on Dec. 2, 2015 to review the case of the 8-30g housing plan at 86 Pond Point Ave. As part of that review process the city and that applicant had pre-argument conferences with a judge on March 10, and April 19, 2016, and agreed to a settlement that the P&Z approved on May 3, 2016.