The developer of a proposed 180-unit apartment complex on Wheelers Farms Road is filing an appeal of the denial by the Planning and Zoning Board (P&Z), asking the state Superior Court to reverse the board’s Aug. 4 decision.

Milford Developers LLC of Chatham, N.J., filed the application for the 26-acre parcel behind the Merritt Crossing office building at 440 Wheelers Farms Road under the state’s affordable housing law, 8-30g, which overrides local zoning regulations and places the burden of proof on the city as to why the project was denied.

If other 8-30g applications can be used as a guide, the court will probably send the application back to the P&Z, which would then negotiate in executive session to reach a settlement with the developer. In other cases, the settlements have resulted in minor changes to the application, which the board then approved.
The Wheelers Farms Road appeal
Timothy Hollister, attorney for Milford Developers, is filing the appeal dated Aug. 14 with the Milford-area court, which will transfer the case to the state’s Land Use Litigation Docket. In the appeal, Hollister wrote that the board’s denial “does not satisfy the standards and obligations of [Section] 8-30g to sustain denial of an 8-30g application.”

Hollister wrote that each of the denials is “legally insufficient, due to a failure to identify any harm and probability of harm that will result if the application is approved and the development plan is constructed.”

He wrote that the denials lacked sufficient evidence because neither the board nor the neighbors used an expert or consultant, and that the experts who reviewed the plan, including the city engineer and fire marshal, approved it.

Responding to the Police Commission’s negative comment with regard to the number of parking spaces, Hollister wrote that the developer’s traffic engineer documented the adequacy of the proposed parking.

Hollister wrote that none of the denial reasons meet the requirements of the 8-30g law that sufficient evidence be presented “of a substantial health or safety reason that clearly outweighs the local and regional need for more housing for moderate-income households.”

The P&Z cited nine conditions for denial, including potential hazardous materials on the site, the risk that contaminants such as lead, asbestos, and MTBE are in the soil and were not part of the soil testing that took place, concerns about fire safety access, and insufficient parking, as identified by the Police Commission report.

The board also had concerns that the project would have a negative effect on the emotional health of the city, and it would be too dense for the neighborhood.
Board response
Commenting on the appeal, board chairman Benjamin Gettinger wrote in an Aug. 18 email that given the thorough research and detailed presentations by the neighbors, he would be “shocked and devastated” for them if the denial was overturned.

“The residents did an excellent job at identifying real health and safety risks. If the evidence and testimony they put forth is deemed insufficient, then 8-30g really is nothing more than a license for developers to build whatever they want wherever they want,” wrote Gettinger.

Board Vice Chair Jeanne Cervin, who voted against the denial, had offered a motion to approve with conditions, saying she believed the board would be better served by this approach.
Residents’ objections
The application for the apartments had been challenged by a well-organized, vocal group of area residents at a series of public hearings before the P&Z, the Inland-Wetlands Agency, and the Police Commission. Neighbors also conducted petition drives along East Rutland Road and at area shopping centers, submitting petitions from 1,500 people in opposition.

Up to 100 people have attended the hearings, raising concerns about the effect the development will have on their properties, including increased flooding, more traffic, damage from blasting, and the effects of possible oils, contaminants, and pesticides in the soil.

The application had three components: the proposed addition of Article III, Section 3.25 to the zoning regulations calling for a Housing Opportunity District (HOD). These proposed regulations are site specific and therefore would not apply to other land in Milford. Section 3.24 is the city’s Open Space Affordable Housing Development Multi-Family District, designed specifically for 8-30g proposals on a minimum lot size of 20 acres.

The second component is a petition for a zone change from DO-25 (Design Office) and R-A (one-acre residential) to the proposed HOD zone. Finally, the applicant asked for approval to construct the rental community.

This plan would have 1.96 parking spaces per unit, or a total of 352 parking spaces. P&Z regulations require two parking spaces for one-bedroom units, and three parking spaces for two- or three-bedroom units, resulting in a requirement for 477 parking spaces.

A total of 54 units would have been rented at affordable rates to people earning up to 80% of the area’s median income.
Related case
In a related case, the board is conducting an executive session at its Aug. 18 meeting to discuss the court decision overturning a P&Z denial of an 8-30g application at 86 Pond Point Avenue. The ruling regarding the plan for 23 condominiums on 2.7 acres was issued on June 29, 2015.