Judge overturns denial of Pond Point Avenue housing plan

UPDATE: Mayor Ben Blake said Wednesday that the city will appeal a recent decision by the state Superior Court to overturn the denial of a Pond Point Avenue housing development.
Earlier story: A controversial affordable housing plan on Pond Point Avenue that the city denied in 2013 can move forward and be built, based on a decision by the state Superior Court.
“This means they are free to do what they wanted to do in the first place,” said Planning and Zoning Board member Jeanne Cervin. “We have never won an appeal of an 8-30g application.”
The Pond Point Avenue proposal called for building 22 triplex and duplex condominium-style units on 2.7 acres of undeveloped woodland at 86 Pond Point Avenue. Seven of the units would be sold to people who earn 60% or 80% of the area median income. An existing house already at the site would remain, making it a 23-unit housing plan in total.
In a ruling issued June 29, Judge Marshall K. Berger, presiding judge of the Land Use Litigation Docket, wrote that the reasons the Milford Planning and Zoning Board gave for denying the 23-unit development do not override the need for affordable housing.
The Land Use Litigation Docket is a special branch of the Superior Court designed to hear 8-30g appeals: 8-30g is the legislation that applies to affordable housing.
After several public hearings and lots of opposition from residents in Milford, the Planning and Zoning Board denied the application by Colberg LLC in December 2013 to construct the development.
According to the decision Berger wrote, the P&Z had the burden to prove that the development would create a risk to public health or safety, and that it did not do that.
“The affordable housing statute strongly suggests ‘that the town be obligated, when it renders its decision, to identify those specific public interests that it seeks to protect by that decision, so that the court in reviewing the decision will have a clear basis on which to do so.”
When the board denied the application, members listed the following reasons: The development would create a danger due to increased traffic; the plan was not in alignment with the city’s Plan of Conservation and Development; the plan would remove open space to the detriment of wildlife and residents.
In his decision, Berger discounted the P&Z’s concern about traffic, stating that reviews by city departments suggested the traffic could be accommodated. Berger also said the Plan of Conservation and Development is “merely advisory” and noted that the plan was not included as part of the record when the application was denied.
Finally, Berger said the board did not prove that removing the open space would negatively impact the neighborhood.
City Planner David Sulkis said he does not know if the city appealed the decision. “If the city didn’t appeal, they can come in for their permit.”
A state official said the deadline for filing an appeal is 20 days from the date of the decision, which would be July 19. Mayor Ben Blake said the city will file an appeal by that date.
Check back for more details as they become available.