A Superior Court judge has approved a proposed eight-unit townhouse project at 1613 New Haven Ave., which was rejected by the Planning and Zoning Board (P&Z) on Dec. 15, 2015.
Justice Marshall K. Berger, presiding judge of the Superior Court’s Land Use Litigation Docket, issued his decision in favor of the project on June 13, 2016.

Developer Charles Gagliardi of West Haven had filed the application on Oct. 20, 2015, under the state’s affordable housing law, referred to as 8-30g, in reference to the statute number. The law places the burden of proof on the P&Z to state why the project represents a threat to public health, safety, and welfare, a threat that outweighs the need for affordable housing.

Attorney Thomas Lynch, who represents Gagliardi, had asked the court for a motion for summary judgment, which is a decision by a judge before a case goes to trial.

This case had the unusual wrinkle that the board did not actually deny the application for the eight-unit project. Instead, the board voted 3-5 on Dec. 15, 2015 in favor of a proposal by then-board member Jeanne Cervin to approve a seven-unit project, a motion that failed. The board interpreted this action as having rejected the original plan, even though it did not take a vote on the eight-unit plan.

When the board asked City Planner David B. Sulkis for an opinion on how to proceed, he told them, “If there’s no motion to vote on, you’re in effect denying it.”

“The board’s failure to vote on the plaintiff’s actual application is not determinative because the board took action by denying the motion to approve a modified proposal,” wrote Berger. “The denial of the only motion constitutes a denial of the plaintiff’s application.”

Berger noted that the basis for the motion for summary judgment was that the P&Z “failed to give any collective reasons for its actions” despite the requirement in the state’s 8-30g law and case law.

In a memorandum of law dated April 15, 2016, Matthew B. Woods, Milford’s trial counsel, agreed with the concern raised by Lynch that the board did not specify any reason for the denial.

“If the legal effect of the board’s vote is a denial of the plaintiff’s applications, then the board’s failure to articulate reasons for its denial mandates that this affordable housing appeal be sustained,” wrote Woods.

The project will have two-bedroom townhouses located in three buildings: two with three units each, and one with two units on the 0.43-acre property, located in an R-12.5 zone, which is a single-family house zone.

The three units in building one would be designated for rent at affordable rates. Two units will be set aside for people making 80% of the area’s median income and will rent for $1,398 per month, while one unit will be rented to someone earning 60% of the area’s median income with a monthly rent of $1,066.

At the Oct. 20 public hearing, 13 residents expressed concern about the project’s density and existing traffic conditions on New Haven Avenue.

The board had a half-hour executive session at its June 7 meeting to discuss the then-pending litigation regarding the project.

Berger’s decision may be read at http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=10618994.