2 housing projects will move forward: Wheelers Farms and Seaside Ave.

Two housing projects with an affordable component are slated to move forward in spring 2017, following action by the Planning and Zoning Board (P&Z) at its Nov. 1 meeting.

The P&Z voted to reject a petition for new regulations and related zone change for a 180-unit apartment complex on Wheelers Farms Road, ending the legal dispute on that project, which was approved by a Superior Court judge.

The board also voted to settle a pending appeal regarding a now eight-unit project at 214-224 Seaside Ave. The board conducted executive sessions at recent meetings to discuss these projects.

Both plans previously rejected by the board were filed under the state’s 8-30g affordable housing law, which supersedes local zoning regulations. To prevail in court, the P&Z has to prove a project poses a hazard to public health, safety or welfare, a threat that outweighs the need for affordable housing.

Justice Marshall K. Berger, presiding judge of the Superior Court’s Land Use Litigation Docket, on Sept. 20 overturned the Aug. 4, 2015 P&Z denial of the proposed 180-unit Wheelers Woods project on a 26-acre property on Wheelers Farms Road. Milford Developers LLC of Chatham, N.J. filed the appeal.

In his ruling, Berger wrote, “The board did not discuss and made no findings as to whether any of its concerns outweigh the need for affordable housing, especially in Milford.”

Berger directed the board revisit the proposed Housing Opportunity District (HOD) and request for a change of zone that accompanied the original application, which the board also denied. He wrote that since the P&Z did not give a reason for denying the proposed regulation and the related zone change he could not determine if the regulation was appropriate for the city.

The board unanimously rejected that new zone, which was proposed to be added to zoning regulations as Article III, Section 3.25. The board also denied a requested change in the zone from Design Office 25 and Residential A to the HOD zone.

The project can be constructed without the regulations and zone change, but it will be non-conforming, since neither the office nor the residential zones permit multi-family housing.

In making the motion to deny, board vice chairman Edward Mead read from a prepared motion, citing seven reasons for denial, including the fact that the property has been identified as a commercial/industrial property in the city’s Plan of Conservation and Development.

“Commercial/industrial properties are essential for future economic growth and development,” said Mead.

Mead also said that the proposed regulation allows only site plan review in the HOD zone, while existing regulations require a special permit for multi-family housing. Special permit reviews are sent to various city departments, including the police and fire departments “to examine a development’s impact on the health, safety and welfare of the community,” he said.

The motion also expressed concern regarding exemption from a special permit for earth filling and/or removal. In addition, the regulation classifies a parking garage as an accessory structure, but the regulations lack a clear definition of intent, said Mead. Further, it said that the regulations would allow signs of 640 square feet when no zoning district allows signs of more than 100 square feet.

“There is apparently no need for the regulation because the court has approved the applicant’s site plan pursuant to 8-30g, and 8-30g effectively overrides local zoning. Therefore, denial of the HOD will not preclude the development,” said Mead.

In making the motion to deny the zone change, Mead said the change of zone is contrary to the Plan of Conservation and Development. He further said that since the board denied the proposed regulation change, the zone change is moot.

Prior to the board’s vote, Timothy Hollister, attorney for Milford Developers, reassured the board that the HOD zone was site specific and would not apply to any other property in Milford. Hollister said the regulations would benefit the developer, the city, and residents by defining what is permitted in the zone.

Hollister said the proposed regulations had been reviewed by zoning staff and revised based on that input. He said that if the board denied the regulation and zone change, there would be no further court appeals.

“If you don’t adopt it, we can do without the regulation change,” said Hollister.

Commenting on an 11.5-acre conservation easement on the property, Hollister said, “We will work very, very hard to insure the neighbors on East Rutland Road will not be disturbed.

Seaside Avenue Plan Approved

In other business, the board voted 9-1 to settle the pending court appeal involving a proposed nine-unit housing complex at 214-224 Seaside Ave.

The board denied the original version of the project on April 5 and approved a modified version removing one of the units on July 5. The developer filed an appeal on Aug. 2 and the case was pending in Superior Court for a potential 2017 trial date.

The settlement retains the eight units in the approved version, but changes the two designated affordable units to four-bedrooms, which will be rented at below-market rates to people earning 80% of the area’s median income.

“These are probably the only four bedroom affordable units in the city of Milford,” said Woods.

The plan calls for demolishing the house at 224 Seaside Avenue, and constructing seven single-family cottages at the rear of the properties, and two garages at the front. Access would be from the existing driveway at 214 Seaside Ave.

The settlement will be reviewed by Berger during a Nov. 17, 2016 court date. That review is considered a mere formality, since both the applicant and the board agreed to the settlement.

Matthew Woods, trial counsel for the city, urged the board to adopt the settlement, saying, “If we continue to litigate, we would lose the appeal.” Woods said there was an Oct. 11 mediation meeting with Judge Arthur Hiller, who said the board would need to prove that it removed the one unit to protect substantial interests in public health, safety, or welfare.

Woods said that the board denied the first application based on concerns regarding the inadequate sightline at the driveway when it was proposed to be located at 224 Seaside Avenue. He said the revised plans addressed that safety concern by reconfiguring the driveway.

Eugenia Debowski of Acworth, Georgia, owns the two adjacent lots, each with an existing single-family home on Seaside Avenue, just north of Meadowside Road. The 0.46-acre property at 214 Seaside Ave. has a 2,100 square foot home constructed in 1947, while the 0.72-acre lot at 224 Seaside Ave. has an 1,800 square foot home constructed in 1900.