Court denies Bic Drive apartment appeal

The Appellate Court has denied a request from two neighboring businesses opposed to a proposed 257-unit apartment building at 460 Bic Drive, ending the legal battle over the project.

The Appellate Court issued its decision on July 20, writing, “On consideration of the petition by the intervening defendants MDC Milford Associates, LLC and Northeast Electronics Corp., for certification to appeal, it is hereby ordered denied.”

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 petition was a necessary legal step asking the higher court for permission to file an appeal.

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.

The Planning and Zoning Board (P&Z) 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.

The H-shaped four-story building will 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 will be rented at affordable rates. The building will have 322 parking spaces, averaging 1.25 spaces per unit, and Garden Homes could add 42 more parking spaces, if needed.