Judge's decision pending on Wheelers Farms Road housing plan

A judge’s decision is pending on a proposed 180-unit apartment complex with an affordable component that would be constructed on Wheelers Farms Road, following a June 9 trial in Hartford.
Justice Marshall K. Berger, presiding judge of the Superior Court’s Land Use Litigation Docket, has 120 days from the trial to announce his decision in this plan that the Milford Planning and Zoning Board (P&Z) rejected on Aug. 4, 2015.

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.

Milford Developers LLC of Chatham, N.J. submitted plans in spring 2015 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.

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.

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.

When it denied the plan by an 8-2 vote, P&Z members cited concerns of possible environmental contaminants on the site, 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. In the appeal, Hollister wrote that the board’s reasons for denial failed to meet the standard for denial outlined in the 8-30g law.

The board met for an hour in executive session with Matthew Woods, the city’s trial attorney, and City Planner David B. Sulkis on Nov. 17, 2015 to discuss pending litigation for the plan, but took no public vote following that session.

A key legal consideration for the future of this case is the fact that Berger denied petitions by area residents to be added to the case as intervening parties. This denial is significant because it means that they do not have legal standing to appeal any decision rendered by Berger with regard to the apartment complex.

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. When he overturned the P&Z denial, and the P&Z took no further action on that denial, the businesses filed a Petition for Certification with the Appellate Court, asking that court if it would allow an appeal of Berger’s decision.

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, all of whom asked the P&Z to deny the project.

In their individual verified pleading, which is a petition to intervene, dated March 2, O’Connell, Cleary, and Frank asked to intervene based on their concerns regarding the property’s use as an auto salvage yard from the 1950s to the 1970s, the presence of car parts in the wetlands, and the concern that the development would destroy natural resources.

In his denial dated March 29, Berger wrote the petitions failed to comply with Conn. General Statutes sec. 22a-19(a)(2). The statute states, “The verified pleading shall contain specific factual allegations setting forth the nature of the alleged unreasonable pollution…” and discusses “…whether the intervention implicates an issue within the reviewing authority’s jurisdiction.”

Berger’s other reasons to reject the petitions included the fact that they were “untimely”, meaning they missed the deadline for requesting intervention, and. “The petitions attempt to raise issues otherwise resolved by the inland-wetlands and watercourses agency.”

Berger did not elaborate on the first reason for rejecting the appeal. However, in a March 24 objection to the verified pleading, Milford developer’s attorney Beth Critton wrote, in part, that the petitioners did not present any expert testimony, and the issues raised by O’Connell were outside the P&Z’s regulatory authority, and therefore not a basis to intervene. Critton also wrote that the petitioners did not file their petition during the public hearing process.

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. Finally, the applicant asked for approval to construct the rental community.

Court documents for the case may be read on the state website at http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=HHDCV156062796S