Judge overturns denial of Bic Drive affordable housing

A year and a day after the Planning and Zoning Board (P&Z) denied a proposed 257-unit apartment building with an affordable component at 460 Bic Drive, a Superior Court judge has overturned that decision, and sent the proposal back to the P&Z for final review and approval.

The board voted 8-2 at its April 7, 2015, meeting to deny the application from Garden Homes Management of Stamford, citing various safety concerns including low water pressure for domestic use and fire protection, one driveway entrance with no left turns permitted exiting the property, the lack of a second means of access for emergency vehicles, an increase in traffic at Bic Drive and Naugatuck Avenue, and blasting that could endanger the Iroquois gas pipeline that crosses the site.

In addition, the board cited traffic concerns for Schoolhouse Road at Rt. 1, an inadequate and potentially dangerous parking situation, emergency access in heavy snow conditions, and “the stress level of the neighbors.”

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 all of those arguments, and overturned the P&Z decision, in his April 8, 2016 ruling.

The board is scheduled to discuss Berger’s decision in executive session at its April 19 meeting, which will take place at 7:30 p.m. at City Hall.

When reconsidering other court-ordered decisions for affordable housing applications, the board follows its executive session discussions with a public vote. Some of those executive sessions have lasted for more than one meeting. Prior to its vote, the board has conducted a public comment session, which does not have the same legal basis as a public hearing.

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

In the Land Use Litigation Docket, the burden of proof rests strongly on the land use boards to prove, based on evidence in the record from the public hearing, that any denied project has a public health or safety issue that outweighs the need for affordable housing.

At the original public hearings in January and February 2015, an attorney for Northeast Electronics, 455 Bic Drive, expressed concerns regarding existing low water pressure and the effects of increased traffic from the apartment building.

A representative from Mountain Development Corp (MDC), which owns the 625,000-square-foot industrial complex on the adjacent property at 500 Bic Drive, put forth the position that the building’s wood construction, single entry and exit driveway, and close proximity to the Iroquois gas pipeline, all posed a risk in case of fire.

Berger granted Northeast Electronics and MDC intervenor status in the case as abutting property owners, allowing their attorneys to participate in the appeal process.

Residential homeowners expressed concern regarding low water pressure and the effect of increased traffic in their neighborhoods.

In his decision, Berger discussed each reason for denial, and cited evidence as to why that reason did not meet the burden of proof necessary to uphold the board’s decision.

Regarding concerns about insufficient water pressure, Berger wrote that the testimony from the Milford fire marshal, the applicant’s design engineer, a fire official hired by the applicant, and a representative from the South Central Connecticut Regional Water Authority all indicated this was not a concern because there is sufficient water volume in the street pipes and a booster pump is a building-code approved way of boosting water pressure.

In discussing the traffic concerns of having one site driveway without a second means of access for emergency vehicles, and a driveway that will not allow left-turns from the property, Berger wrote, “The board has not produced sufficient evidence to indicate that the proposed access way and its turn restriction violates any regulations.” Berger also quoted Milford’s fire marshal who said the project meets fire department access requirements.

Berger also indicated that a second means of access is not required by fire or traffic codes. “While another means of access would be ideal, the board has presented no evidence that it is required,” he wrote.

Commenting on traffic concerns, Berger wrote that the evidence before the board “established that there would be no significant problems with traffic...as a result of the proposed development.”

With regard to concerns from the board that the complex did not have sufficient parking, Berger commented that the board disregarded evidence presented at the hearing that parking was adequate, and wrote that the board “had the burden of showing evidence in the record to support its decision not to believe the experts,” yet the board did not present any such evidence.

While the board had concerns that the project did not have provisions for snow removal, Berger wrote, “The record does not reveal any regulations requiring snow storage plans,” and further wrote, “Speculation regarding snow removal and illegal parking is not sufficient to deny an application.”

The board had raised concerns that blasting near the Iroquois gas pipeline would endanger the pipeline. Berger noted that no blasting was planned in the pipeline right of way and that such work would be supervised by the Milford fire marshal and a representative from Iroquois. Berger noted, “The record does not reflect that Iroquois voiced objection or concern to the board.”

In his decision, Berger comments, “Several denials of 8-30g applications have come to this docket in a relatively short time frame,” and lists other 8-30g cases, including Milford Developers LLC.

Timothy Hollister, attorney for Milford Developers, indicated that appeal of a proposed 180-unit apartment complex with an affordable component would have a final hearing before a judge on July 6, 2016. The board denied that application on Aug. 4, 2015.

Berger’s 28-page decision may be read on the Superior Court website at http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=10306145.