UPDATE: Modified plans for a housing development with an affordable component at 86 Pond Point Avenue are moving forward, following Planning and Zoning Board (P&Z) approval at the board’s May 3 meeting, nearly bringing to a close a 2.5 year legal saga.

The board agreed to a mediated settlement for 10 single-family homes and two duplexes on the 2.73-acre property. The vote was 8 in favor with one opposed, and one abstention. The board had previously twice rejected more dense versions of the plan.

The matter now goes before Justice Marshall K. Berger, presiding judge of the Superior Court’s Land Use Litigation Docket, for a final hearing, which will take place on May 17 at 10 a.m. at the courthouse, 95 Washington St., Hartford.

The plan was submitted under the state’s affordable housing law, 8-30g, which gives local zoning boards little power to regulate projects that have deed-restricted affordable housing.

The board denied the original project for constructing 22 condominium units, in addition to keeping the existing house, on Dec. 19, 2013, citing concerns about increased traffic on Pond Point Avenue, and the loss of open space that provided a wildlife buffer. The board also felt that such a dense development belonged near the train station and other transit-oriented development corridors.

Of those who voted on the original proposal, only three are still on the board. Thomas Nichol and John Grant voted in favor of the Dec. 19, 2013 motion to deny, while Edward Mead voted against that motion.

Developer Thomas Colucci of 305 West Main Street, Milford, is the property owner under the name of Colberg LLC. Colucci appealed that denial and Berger upheld the appeal in a ruling on June 29, 2015.

Berger wrote that the P&Z’s reasons for denial on Dec. 19, 2013 did not prove the project would create a risk to public health and safety and outweigh the need for affordable housing.

The P&Z board met in executive session on Aug. 18 and Oct. 6 to discuss terms of a settlement with Colucci. Project opponents pressured the board at its Oct. 20, 2015 meeting into rejecting the proposed settlement for a reduction from 23 condominium units to 16 houses, two of which would have been duplexes.

The board’s Oct. 20, 2015 vote prompted Matthew Woods, the city’s trial counsel, to file for a petition for certification to the state Appellate Court. The petition asked the court for permission to appeal Berger’s decision. The court granted that petition on Dec. 2, 2015.

At the May 3 meeting, Woods told the board that he had two pre-argument conferences with a “neutral” judge to work out a proposed settlement. One conference was on March 10 and the other on April 14. The board discussed the proposed settlement in executive session at its April 19 meeting.

Woods said the issue before the Appellate Court is whether the trial court reached an erroneous conclusion when Berger overturned the board’s decision. The police and fire departments and Colucci’s traffic engineer said there were no safety issues, said Woods.

“Does the board have the authority to reject the testimony of the fire department, the police department, and the traffic expert?” asked Woods. “The traffic issue is the only issue for the Appellate Court.”

Woods told the board that this project would have 12 lots, 10 with single-family homes, and two with duplexes. All of the units would have garages, compared to the original plan where there were no garages.

There will be one affordable unit in each of the duplex units. The houses will be sold, while the duplexes would be rented. One house will be designated for sale at an affordable price.

The homes would be arranged in a conventional subdivision on both sides of a new street with a cul-de-sac on the 2.7-acre property. The original plan called for clusters of apartment buildings near the property borders.

Woods said the city would own the road and be responsible for its maintenance and the maintenance of an on-site detention pond. Commenting on the upcoming hearing with Berger, Woods said the judge “prefers to have potential settlements open for public comment.”

Settlement Concerns Neighbors

About 20 neighbors attended the May 3 meeting, with 10 of them again protesting the plan, saying it would increase traffic along Pond Point Avenue, which they said is already too busy. They also expressed concern that the project would worsen stormwater problems in the area.

As part of their comments, the neighbors said they wished they had learned about the meeting sooner, and they had no details about the proposed settlement until they came to the meeting and saw the plans on display.

Susan Simmat of 200 Pond Point Avenue said the issue for neighbors is density, water problems, and traffic. Simmat said that single-family houses would have a minimum of two cars per house.

“I personally think this is not a compromise because it will bring even more traffic,” said Simmat, who complained the meeting agenda was not posted on the city website until late in the afternoon the day before the meeting.

Barry Lawless of 41 Pauline Street, who said he lives on an adjacent property, said he thought the final compromise plan was better than a previous plan because the buildings will be further from his property. However, Lawless commented, “I would prefer to have less density.”

Alderman Bryan Anderson (D-5) of 49 Ingersol Road said the property is in the Indian River watershed, and said he was concerned about contaminants in the watershed from neighboring businesses.

“It’s not just the traffic, but think of the environmental impact,” said Anderson. “Neighboring streets have been dealing with water in their basements for decades.”

Lorraine Volgmuth of 23 Dawes Street said the proposed detention pond is near her backyard. Volgmuth also said she was concerned that people would park on her street and walk through those yards to get to the new development.

“My greatest fear is that we will have more water once he [Colucci] puts that concrete down,” said Volgmuth.

Daniel Phelan of 204 Pond Point Avenue said he has lived there for 50 years and was concerned with the project’s density.

“I thought he [Colucci] first proposed eight houses,” said Phelan. “Why can’t we just go back to the regular proposal that he wanted?”

According to zoning officials, Colucci never filed an application for a conventional subdivision.

Robert Sandmann of 58 Pauline Street shared concerns regarding stormwater runoff in the area. Sandmann said after a heavy rainstorm water flows down Clark Hill Road to New Haven Avenue. He said there are underground springs in the Clark Hill neighborhood.

“I am very concerned with the way the water issues have been put aside,” said Sandmann.

Sandmann also complained that neighbors had little notice about the proposed settlement.

“We deserve to have enough time to be able to make a logical and correct decision,” said Sandmann.

Responding to neighbors’ concerns about the stormwater detention basin, Woods said the pond would only have water for a brief time after a storm, as the water would soak into the ground and travel into the city’s stormwater sewer system. He said it would be similar to the pond on the former Gloria’s property on Route 1.

“It’s not going to be a standing pond to breed mosquitoes,” said Woods.

In making the motion to approve the settlement, Mead, who is board vice chairman, said, “It has been brought up that we took an oath of office to uphold the law and this is the law.”

In response, board member Jim Quish, who was the lone dissenting vote, said he had safety concerns about the lack of sidewalks on the cul-de-sac.

“We do have an opportunity for the appeal to be heard,” said Quish. “I can’t support this.”

Board Chairman Anthony Sutton said the board has a responsibility to the citizens of Milford, and felt that the board took seriously the concerns raised by residents.

“We have been advised by our attorney if we continue to fight it, our chances of success are slim,” said Sutton. “We are running the risk of the appeal being denied and going back to the 22-unit plan.”

City Attorney Jonathan Berchem told the board on Oct. 20, 2015 that Berger had issued 22 decisions on 8-30g applications and all had been in favor of the developer. He said two of the 22 cases were appealed to the Appellate Court and the court sided with the developer in both cases.

Board member Michael Dolan abstained because he was not present for the executive session discussion on the settlement on April 19.

When the board announced the vote, and neighbors got up to leave, Simmat shouted loudly at Colucci, “You should be ashamed, Tom Colucci.”