Judge overrules denial of Wheelers Farms Road apartments

A judge’s Sept. 20 decision has overturned the denial of a proposed 180-unit apartment complex with an affordable component that will be constructed on Wheelers Farms Road.

Justice Marshall K. Berger, presiding judge of the Superior Court’s Land Use Litigation Docket, issued his ruling, which overturns the project denial by the Milford Planning and Zoning Board (P&Z).

In his ruling, Berger wrote, “The board did not discuss and made no findings as to whether any of its concerns outweigh the need for affordable housing, especially in Milford.”

Berger directed the board to consider in light of his decision, the proposed Housing Opportunity District (HOD) and request for a change of zone that accompanied the original application. He commented that “the site plan is not legally dependent” on the adoption of this zone.

“In light of the lack of any discussion on the text amendment and the failure to provide any reasons for the denial, this court is unable to determine whether it is an appropriate land use regulation for the town,” wrote Berger in his ruling.

Later in the decision Berger wrote, “This court expects the board to consider the amendment as soon as reasonably possible and, of course, this court is not remanding so that the board can simply scuttle that proposal.”

Since Berger previously denied a petition from neighbors, who applied to be added to the case as intervening parties, they have no legal standing to contest his decision. He denied the petition in part because they missed the deadline, and in part because they raised issues that fell under the jurisdiction of the Inland-Wetlands Agency (IWA), issues that agency had addressed.

The Wheelers Farms project opponents who were denied intervening status have been fighting that project every step of the way. They include June O’Connell, Lori Cleary of East Rutland Road, and Rocco Frank of Lexington Way North.

By comparison, Berger did allow petitioning status to two businesses that are neighboring property to a proposed 257-unit apartment building at 460 Bic Drive. However, that status did not benefit the businesses in that case because the Appellate Court denied a petition requesting the higher court review Berger’s decision in that case.

Milford Developers LLC of Chatham, N.J. plans to construct a 180-unit apartment complex on a 26-acre parcel behind the Merritt Crossing office building at 440 Wheelers Farms Road, and south of the Crown Corporate Campus office buildings at 470 Wheelers Farms Road.

The application was filed under 8-30g of the Connecticut General Statutes, which overrides local zoning regulations, but not inland-wetlands regulations.

The P&Z denied the plan at its Aug. 4, 2015 meeting, citing concerns of possible environmental contaminants on the site, the difficulty of emergency access via a gravel sewer line easement, and insufficient parking. Attorney Timothy Hollister filed the appeal on behalf of Milford Developers on Aug. 14, 2015, and the case went to trial on June 9, 2016.

The IWA unanimously approved the plan at its July 15, 2015 meeting, attaching 15 conditions to the approval, all of which the developer agreed to meet. These included protecting a conservation area to be established in the open space on the site, removing debris from the property, and testing stormwater runoff during earth moving operations.

Area residents vocally contested the plan at multiple public hearings conducted by the P&Z and the Inland-Wetlands Agency (IWA). Residents expressed concern about the potential effect the development would have on their properties, including increased flooding, more traffic, damage from blasting, and the effects of possible oils, contaminants, and pesticides in the soil.

Of all the 8-30g applications that the Milford P&Z has rejected and Berger has reviewed upon appeal, all have been approved in some form. In some cases, Berger has overturned the board’s decision and approved the original application. In other cases, he has directed the P&Z to negotiate with the applicant to reach a settlement.

The application has three components: the proposed addition of Article III, Section 3.25 to the zoning regulations calling for a Housing Opportunity District HOD. 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. The third component is approval to construct the rental community.