Faced with the risk of a court appeal that precedent showed it would not win, the Planning and Zoning Board backed down from its decision requiring that a 342-unit apartment complex at 553 West Ave. be built with 40% of the units, or 137 apartments, designated for rent at affordable rates.

The board approved the project with this 40% requirement, and other conditions at its Oct. 3 meeting. In its unanimous vote at its Dec. 5 meeting, the board accepted a compromise offered by Grillo Services LLC, which offered to rent 108 units at affordable rates, an increase in 5 units from the state required minimum of 30%, or 103 affordable units.

Attorney Thomas Lynch, representing applicants Michael and Lawrence Grillo, told the board at the Dec. 5 public hearing that the state’s 8-30g affordable housing law has a provision allowing an applicant to resubmit an application when the board approval has conditions that have a substantial adverse impact on the viability of the development.

Lynch said most of the conditions “my clients did not have a problem with.” He said they did have a problem with the 40% affordable requirement, saying, “that does have a substantial adverse impact on the viability of this project.”

Lynch said the board imposed the condition of requiring the developer to install two traffic lights on Schoolhouse Road, one at each of the I-95 ramps. He said this carries a $750,000 price tag. He said the Inland-Wetlands Agency approval came with conditions that require “very expensive infrastructure improvements.”

By shifting 34 units from market rate to affordable, Lynch said the project would see a loss of rental income of $17,000 per month or more than $200,000 per year.

“You are not permitted by law to do what you did,” said Lynch. “You don’t have the power to change a statutory provision.”

Lynch cited two cases in Connecticut where a zoning board increased the required number of affordable units in an 8-30g application. One case involved a project in North Branford, and the other a project in Newington.

When the applicant appealed the decision, the court upheld the appeal, and sided with the applicant. He said that Justice Marshall K. Berger, who is the presiding judge on the Superior Court’s Land Use Litigation Docket, issued the North Branford ruling.

City Planner David B. Sulkis said he consulted with City Attorney Jonathan Berchem on the issue, and Sulkis said, “Berchem corroborated everything Lynch just said. He agreed the board did not have the ability to ask for more than 30%.”

The revised proposal received no public comment, a sharp contrast to the initial public hearings where about 13 on average spoke in opposition to the project, asking the board to deny the application. There was grumbling among a handful of audience members against the motion as the board voted to approve the revised project with 108 affordable units.

Board Vice Chairman Jim Quish prefaced the vote by saying that 8-30g applications are “always contentious” and commented that the public is emotional about these types of projects. Quish said the board is constrained by state statute.

The board’s other conditions from Oct. 3 remain in place, including the proposed traffic lights, installation of sidewalks along the property’s West Avenue frontage, and a hydraulic and hydrological analysis to prove that the project will not increase flooding in the area.