The developer of a proposed apartment complex with an affordable component at 553 West Ave. plans to challenge the Planning and Zoning (P&Z) Board’s Oct. 3 approval with conditions.

The board voted 6-2 to approve the project’s special permit and site plan with the conditions that the required number of affordable units be 40%, instead of the 30% maximum required under the state’s 8-30g law that regulates such projects. Plans call for two buildings containing a total of 342 units and two parking garages with 512 total spaces.

Another condition requires the developer to install two traffic lights on Schoolhouse Road, one at each of the I-95 ramps, as recommended by the state Department of Transportation, and the Traffic Division of the Milford Police Department.

A third condition was meeting any requirements suggested by City Engineer Gregory Pidluski. A fourth condition was requiring installation of sidewalks along the property’s West Avenue frontage.

The final condition was suggested by City Planner David B. Sulkis and incorporated into the motion. Sulkis said the project needed to undergo a “hydraulic and hydrological analysis for equal convergence and compensation storage” as required by Section 5.8 “Flood Hazard and Flood Damage Prevention Regulations” of the city’s zoning regulations.

The motion requires the project to “demonstrate that the encroachments shall not result in any increase in flood levels and the compensating volume of water displaced by construction in the flood area be comparable and incrementally equal when the base flood elevation is established at the 500 year flood level, as required by the state Department of Energy and Environmental Protection (DEEP), and the Connecticut Department of Housing,” said Sulkis.

Sulkis said both the Federal Emergency Management Agency (FEMA) and the Army Corp of Engineers also have a requirement that flood impacts be measured at this level.

These requirements are detailed in a DEEP document entitled “Hydraulic Analysis Guidance Document,” which may be read at ct.gov/deep/lib/deep/Permits_and_Licenses/Land_Use_Permits/Inland_Water_Permits/iwrdhydraulicguidance.pdf

According to the document, the DEEP requires a hydraulic analysis to be done, “in any case where changes are proposed in a floodplain or in a watercourse which may affect the conveyance of flood flows, hydraulic information as outlined in this report is required.” Among the conditions that would trigger such an analysis are bridge or any combination of fill and excavation in a floodplain.

Project engineer Alfred J. Mascia said at the Aug. 15 public hearing that said the project would require a FEMA permit because Beaver Brook, which crosses the site, is in the floodplain.

The main road will cross Beaver Brook and the floodplain on a 100-foot long bridge that he said would be designated for highway loading. The bridge would require a permit from the Army Corps of Engineers.

Since the project would be disturbing more than 10 acres of land, it also required a stormwater construction activity plan to be filed with DEEP. Mascia said DEEP would also have to issue a water quality certificate. The state Office of Traffic Administration would also have to issue a permit.

The 57.3-acre site is roughly cut in two by the Iroquois gas pipeline easement, which extends from I-95 to the Metro North railroad tracks. A total of 42.1 acres of the site, most of which is wetlands, have a conservation easement, leaving 15.2 acres of land that is not deed restricted.

The law overrides local zoning regulations, and allows the board to deny a project only if it can prove the project would pose a threat to public health, safety, or welfare, which would override the need for affordable housing.

Prior to the vote, board member Thomas Nichol asked Sulkis to explain to the approximate 40 neighbors opposed to the project who were attending the meeting and had spoken out at the three public hearings, the implication of the 8-30g law.

Sulkis said the city’s Design Office 25 zone does not permit housing, but under the 8-30g law, developers can put affordable housing in any zone, except for industrial zones that prohibit housing.

In making the motion to approve with the five conditions, board member John Grant said that all city departments approved the project and that the 8-30g law overrides local zoning regulations.

Speaking against the project, board member Rick Varrone said, “I think this project is the wrong project for Milford and the wrong project for the area…I think this is an abuse.”

Varrone and board member Thomas Panzella were the two votes in opposition. Board Chairman Scott Marlow recused himself from the application process because he is presbyter with Kingdom Life Church, which owns the property.

Following the vote, audience members expressed their displeasure. As he did at the public hearings, Frank Ellison, co-owner of the 8 Lucius Court, at Gloria Commons condominiums, shouted at the board, this time saying, “You are going to put so much hardship on a 55 plus community.”

Grillos to Challenge Decision

In an email response to the board’s decision, Attorney Thomas Lynch, representing applicants Michael and Lawrence Grillo, wrote that the requirement for 34 additional units to be rented at affordable rates “is a huge financial hit.”

Lynch wrote that the Grillos can resubmit the project on the grounds that these conditions “affect the financial viability of the project” and can attempt to negotiate a “middle ground” with the board.

If these negotiations are not agreeable to the Grillos, then they could appeal the conditional approval to the Superior Court. Lynch wrote that the 8-30g statute permits an applicant to appeal an approval with condition to the court if such conditions have a “substantial adverse impact on the viability of the development.”

At the close of the public hearing on Oct. 2, Lynch said the city’s professionals from the police and fire departments, and the Sewer Commission all approved their portions of the project, demonstrating that the project meets the public health and safety standard of the law.