Despite a reduction in size from 23 units to 16 units, neighbors of a proposed 8-30g affordable housing application at 86 Pond Point Avenue were not appeased and successfully lobbied a divided Planning and Zoning Board (P&Z) to reject a proposed court ordered settlement at the board’s Oct. 20 meeting.

By a 6-4 vote to reject, the board places the fate of the project back in the hands of a judge. If the judge rules in favor of the applicant, the developer can proceed with the original plan for 23 units.

The P&Z board faces essentially impossible odds as the city petitions the state Appellate Court to accept a Provision for Certification, which would simply allow the Appellate Court to hear the city’s appeal of a Superior Court judge’s ruling.

Justice Marshall K. Berger, presiding judge of the Superior Court’s Land Use Litigation Docket, issued a ruling on June 29, 2015, writing 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 board had cited concerns due to traffic and the loss of open space.

The P&Z board met in executive session on Aug. 18 and Oct. 6 to discuss terms of a settlement with property owner Colberg LLC. Colberg LLC lists Thomas Colucci of 305 West Main Street, Milford, as its manager. The address is the location of a single-family home owned by Susan Colucci.

Matthew Woods, the city’s trial counsel, said two judges have to agree on the Provision for Certification. Woods said the city is awaiting a decision on that request. If that request is not granted, the city has no other legal avenues to appeal the project.

City Attorney Jonathan Berchem told the board that Berger has issued 22 decisions on 8-30g applications and all have 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.
Revised Site Plans
Woods displayed two sets of site plans, one for the original application and one for the proposed settlement. The original application had 22 two- and three-bedroom units in attached buildings, plus the existing house on the 2.7-acre property in a condominium-style development.

The proposed settlement would create a new street with 12 single-family homes and two duplex buildings with two affordable units in each duplex building. Such a design is not in keeping with the law’s requirements that the affordable units be similar in appearance and design to the market-rate units.

Woods said the revised design reduces the impervious surface from 57,000 square feet to 37,000 square feet, representing a 35% reduction. The units also changed from rental to ownership.

“It is more in line with the nature of the neighborhood,” said Woods.

Woods told the board that its options were to accept the proposed settlement, or reject it and wait for a decision on the appeal to the Appellate Court. If the Appellate Court rejects the city’s desire to appeal, or sustains Berger’s decision upon appeal, Colberg can proceed with the original plan.

“We are not optimistic we will prevail at the Appellate Court level or if we will get the right to appeal,” said Woods.

Board chairman Benjamin Gettinger, who voted to reject the settlement, said the board was forced to choose between “the lesser of two evils,” commenting further that “the plan is not evil, but it is still bad.”

Voting against the plan to deny, board vice chair Jeanne Cervin said she did not want to take the risk that the original application would be approved.

“I feel like we are being asked to chose between two different things,” said Cervin. “I think the better decision is this settlement. We don’t have the power to stop this. If we could stop this, we would.”

Although the agenda listed the item under “New Business,” rather than under “Public Hearing,” Woods said Berger indicated he wanted public comment on the proposed settlement.
Residents Request Rejection
Sixteen people spoke in opposition to the settlement and urged the board to continue its court appeal. Those speaking in opposition included State Rep. Pamela Staneski (R-119), Alderman Brian Bier (R-1), and Republican mayoral candidate Paula Smith.

“Let it go through the courts,” said Smith, who said that 8-30g was a common concern she heard from residents when she was campaigning door to door. “We have to keep fighting it.”

Bier said the applicant distributed a petition to neighbors for a 14-unit configuration and asked, “How did we get to 16 units?” He said it is also “troubling to a number of residents” that the plan places two to three story buildings next to one-story homes.

Staneski said residents were unaware of the new plan prior to the meeting. She said the new plan should go through the same review process as the original plan.

Anne Lambiase of 17 Dawes Street said she believed the police and fire department approvals were “rubber stamps” and she said the traffic study was “farcical,” saying, “The people in the neighborhood already showed what a nightmare it is for traffic.” Lambiase said, “8-30g has good intentions, but it is being abused.”

Robert Sandmann of 58 Pauline Street said he is “vehemently against” housing that is two to three stories in height in a neighborhood with ranch-style housing. Sandmann suggested the city attorney train the P&Z board on ways it can fight 8-30g proposals.

“The judge implied the Planning and Zoning Board did not do their homework,” said Sandmann.

Susan Simmat of 200 Pond Point Avenue urged the city to do traffic studies for future 8-30g projects, since the Board of Aldermen passed an ordinance empowering the P&Z to hire a traffic engineer and have the developer pay for the study. She said Judge Berger cited case precedents, which said that residents are not experts, and Colucci provided the expert testimony by hiring a traffic engineer.

“We are all going to lose because the city did not do their homework,” said Simmat.

Robert Lukas of 99 Pond Point Avenue said he had to put a pump in his basement to remove water that he said comes from groundwater. He questioned who would take care of the detention pond, which would be located behind two of the houses.

City Planner David B. Sulkis said the city would be responsible for the proposed street, and would also be responsible for the drainage basin, even though it would be located on private property.