In a surprising turn of events, the Planning and Zoning Board (P&Z) voted 6-3 to approve changes to the zoning regulations that would allow a proposed 168-unit apartment complex planned for Plains Road near the Boston Post Road to be built.

The board’s vote at its Aug. 15 meeting was in contrast to its 5-4 vote at its July 5 meeting to reject those same regulation changes.

Newly appointed board member Nancy Austin provided a crucial “yes” vote on the proposal. Austin said she had reviewed all the recordings for the public hearing on the project.

Amy E. Souchuns, representing developer Robert Smith, managing director of Metro Star Properties, challenged the board’s vote on July 5, saying it needed a majority of the board to deny the zone change request and that five votes “is not a majority.” The board has 10 members, but only nine were present for the vote.

The board sought confirmation on the question from City Attorney Jonathan Berchem. City Planner David Sulkis told the board on Aug. 15 that Berchem informed him that state law requires a majority vote of at least six members on regulation changes, a law that was upheld by the state Supreme Court. Sulkis said the state law supersedes Milford’s zoning regulations, which call for a minimum of seven affirmative votes for zone changes.

As part of the application, Metro 150 LLC requested three changes to the zoning regulations, all of which the board approved.

The most important change was dropping the requirement that a free-standing apartment complex in the Corridor Design Development District 1 (CDD-1) have 30% of its units designated as affordable, as defined under the state’s 8-30g affordable housing law.

Even those board members who opposed the zone change at the July 5 meeting did not have an issue with the other two regulation changes.

The second change reduces the permitted minimum square footage of one-bedroom units in multi-family residential buildings in the CDD-1 zone to 700 square feet from 800 square feet.

The third change sets the following minimum off-street parking requirements for multi-family dwellings in the CDD-1 zone as 1 to 1.5 per efficiency bedroom unit, to 1.5  to 2 per one bedroom unit, and 2 to 2.5 per unit for two-bedroom units.

Speaking in opposition to the regulation change, board member and chairman of the board’s Regulations Subcommittee, John Grant, said anyone who voted in favor of the change “would do the city a great disservice” due to 8-30g projects being built in single-family neighborhoods. Grant said three 8-30g projects “are coming down the pike.”

Board member Jim Quish said this board should respect the decision of a past board to establish an 8-30g requirement for the CDD-1 zone, providing a place where such projects can be built.

Speaking in favor of the regulation change, board member Carl S. Moore said a developer should be allowed to build housing other than an 8-30g project, which he described as “segregation, no matter how intentional or unintentional.”

Board member Rick Varrone said Milford “has been held hostage by the state” with the 8-30g law.” Varrone said the law has been “inappropriate and abusive” to single-family neighborhoods.

“We have an opportunity to do something positive for Milford,” said Varrone. “I think it will bring great prosperity to the area.”

Board Vice Chairman Anthony Sutton, who voted against denying the zone change, asked Sulkis when the requirement for an 8-30g component was enacted and whether there had been any applications for such projects in the CDD-1 zone.

Sulkis responded by saying that the Corridor Design Development Districts were established on Jan. 1, 2004, and that, “No residential 8-30g projects have been built in any zone where we would like them to be built.” He said the zone change would not preclude an 8-30g project from being built because the state law allows such projects in any zones, except industrial ones.

Sutton said while the city has had the opportunity for an 8-30g project for 13 years, “It hasn’t had the effect it was intended to have. It appears to be discouraging development.” He said this project would add vibrancy to the area.

In response, Grant said when the board approves any projects that are not 8-30g, the city needs even more points and more housing units to meet the requirements to qualify for a moratorium, resulting in such projects being put in areas where the board feels they are not appropriate.

“You are opening up the city to be bombarded with more 8-30g’s,” said Grant.

Board Chairman Scott Marlow expressed his opposition when he said, “regulation changes are far reaching” because the board derives its authority from the regulations. Marlow said he is not questioning Smith’s proposal, which he described as “a nice project,” he said the board has to meet the 8-30g requirements.

“We are forcing people to look at single-family neighborhoods,” said Marlow. “It’s adding to the number of apartments we have to put somewhere.”