An April 7 Planning and Zoning Board (P&Z) denial of a proposed 257-unit apartment building with an affordable component at 460 Bic Drive is scheduled for trial on Jan. 28.

The trial is scheduled to take place before Judge Marshall K. Berger Jr. in Hartford at the Land Use Litigation Docket, a special branch of the Superior Court designed to hear land use cases.

Garden Homes Residential of Stamford appealed the P&Z’s decision to the Superior Court in Milford on May 11. As is standard for these appeals, the case was transferred to the Land Use Litigation Docket; that took place on May 15. Attorneys Mark K. Branse and Caleb F. Hamel of Glastonbury are representing Garden Homes.

Since the appeal was filed, attorneys have been busy filing motions, objections, memorandums and briefs. Meanwhile, a contractor recently demolished the two buildings on the property: a farmhouse from 1850 and a smaller house from 1890.

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.

In rejecting the Bic Drive application, the board cited a number of safety concerns, which had been raised by neighbors. Concerns included low water pressure for domestic use and fire protection, restricted vehicle access, an increase in traffic at Bic Drive and Naugatuck Avenue, and blasting that could endanger the Iroquois gas pipeline that crosses the site.

In the appeal, Garden Homes detailed how it responded to the concerns raised during the public hearing, and 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.”
Motion to Intervene
Among the paperwork filed was a July 1 motion to intervene by attorney Joel Z. Green of Bridgeport, on behalf of MDC Milford Associates, owner of the adjacent property at 500 Bic Drive, and Northeast Electronics Corp., owner of the property across the street at 455 Bic Drive.

In filing the motion, Green stated the property owners believe that they are “statutorily aggrieved” because their properties abut and/or are within 100 feet of the property involved with the appeal. The motion expressed concern that the apartment project would have an adverse affect on their properties due to inadequate parking, additional traffic, low water pressure, and blasting near the gas pipeline.

In addition, Green wrote that the “extensive blasting” for the development might also adversely affect environmental contamination monitoring wells on the MDC Property.

On July 20, Hamel filed an objection to the motion to intervene on behalf of Garden Homes, writing that the proposed interveners should not be part of the defense for reasons including that the P&Z “is able to represent the proposed intervener’s interests (if any) in this litigation, and the intervention would substantially prejudice Garden Homes.”

The appeal of the motion to intervene stated, “Over forty years ago, the Supreme Court recognized that a zoning commission is the proper party to represent a public interest and defends its decisions,” further stating, neighbors may join the proceedings  “only with the court’s permission.”

The objection from Garden Homes prompted a July 27 reply from attorneys Joel Green and Linda Laske on behalf of MDC Milford in which they responded to the various objections from Garden Homes, and restated the case as to why the neighboring businesses should be allowed to be an intervening party in the case.

Justice Berger sided with MDC Milford and Northeast Electronics on Sept. 4, and allowed them to join the defense as an intervening party.

On July 27, Matthew B. Woods, trial counsel for the P&Z, provided an “answer,” a legal response to the complaint filed by Garden Homes. In the answer, Woods wrote that the city agreed with certain facts in the case, such as the city has zoning regulations, but denied the charge of the appeal that the board was wrong in denying the application.
Trial Briefs Filed
The three sets of attorneys filed trial briefs in which they stated the cases for their respective sides for the judge to consider.

Green and Laske filed a trial brief on Oct. 2, providing additional evidence to support the P&Z decision to deny the project. Among their comments, they wrote, “The existence of so many significant risks to health and safety and the inability to reduce or cure those risks due to unalterable site constraints combine to increase the likelihood of harm to the public.”

Woods filed the trial brief on behalf of the P&Z on Oct. 2, resting the board’s objections and concluding, “Those public interests clearly outweigh the need for affordable housing and they cannot be protected by reasonable changes to the affordable housing development.”

Branse and Hamel filed their brief on behalf of Garden Homes on Nov. 9, giving details as to why the project should be approved, stating that the board’s reasons for denial were not warranted. In the brief, it stated that concerns over the environmental monitoring wells at 500 Bic Drive were never raised during the public hearing.

“Garden Homes received approvals from virtually every official of the city, proving that its development served as a model for development of all other affordable housing in the city. But at the last minute, at the behest of intense public opposition, the board denied the application, without supporting evidence, and without bothering to consider the need for affordable housing, simply to cater to public outcry,” stated a portion of the conclusion to the motion.

Case documents may be read on the Judicial Branch website at http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=HHDCV156059519S.