All three components of a hotly contested application to build a 180-unit apartment complex on Wheelers Farms Road were denied by the Planning and Zoning Board (P&Z) at its Aug. 4 meeting, a decision the applicant surely plans to appeal.
Milford Developers LLC of Chatham, N.J., filed the application for the 26-acre parcel behind the Merritt Crossing office building at 440 Wheelers Farms Road, under the state's affordable housing law, 8-30g, which overrides local zoning regulations.
In making the motion to deny to development plans, which passed by an 8-2 vote, P&Z member Jim Quish said the developer did not address concerns raised about the application, including potential hazardous materials on the site, emergency access via the gravel sewer line easement, and insufficient parking, as identified by the Police Commission report. Quish said the project would have a negative effect on the emotional health of the city, and it is too dense for the neighborhood.
“The need for affordable housing does not outweigh the need of the neighborhood,” said Quish.
Adding to these comments board Chairman Benjamin Gettinger said there are potential contaminants in the soil, including lead, asbestos, MBTE, and PCBs. Gettinger said the number of trucks needed to bring materials to the site would be a health hazard. He also said fire trucks could not access the rear portions of buildings.
In response board Vice Chair Jeanne Cervin, who voted against the denial, offered a motion to approve with conditions, saying she believed the board would be better served by this approach.
“I think that is what will stand up in the court,” said Cervin.
Cervin suggested these conditions: repair the traffic light on Wheelers Farms Road at the project driveway, lock the gates to the East Rutland Road sewer easement access and keep the area clear of brush, provide an affidavit that the access would be usable by all emergency vehicles, add an enclosed play area for children, require soil testing for an 18-month period after construction at three month intervals, and add six more visitor parking spaces.
In response, Gettinger said, “I agree with that strategy if it is not a health and safety risk,” saying he believed there were enough safety concerns to warrant bringing the plan to court.
“If this doesn't warrant a court look at it, I don't know what does,” said Gettinger.
Responding to Gettinger, Cervin said the provisions for storm water runoff testing from the Inland-Wetlands Agency (IWA) would address the issue of potential hydrocarbons on the property. She said the police and fire departments “signed off on it.”
The Police Commission did not support the parking count requested by the developer, but did not raise any traffic concerns.
Speaking in favor of denial, board member Thomas Nichol said he believed the area has “a very fragile ecosystem.” He said the IWA provisions banned car washing, but still allowed chemicals used during snow removal.
Board member Anthony Sutton also shared concerns about what he felt was a lack of answers from the developer with regard to soil testing and emergency access. He said he believed that during an appeal the city and developer could negotiate to address these concerns.
The only other board member who supported Cervin's position was Michael Dolan who said, “I don't like the application. I honestly don't know if it will hold up to court scrutiny.”
The application for the apartments has been challenged by area residents at a series of public hearings before the P&Z, the Inland-Wetlands Agency, and the Police Commission. Neighbors also conducted petition drives along East Rutland Road and at area shopping centers, submitting petitions from 1,500 people in opposition.
Up to 100 people have attended the hearings, raising concerns about the effect the development will 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 application had three components: the proposed addition of Article III, Section 3.25 to the zoning regulations calling for a Housing Opportunity District (HOD). These proposed regulations are site specific and therefore would not apply to other land in Milford. Section 3.24 is the city's Open Space Affordable Housing Development Multi-Family District, designed specifically for 8-30g proposals on a minimum lot size of 20 acres.
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.
The board voted unanimously to deny the proposed regulation change and the request for the zone change. Commenting on the zone change, Cervin said, “I think it is spot zoning and bad planning.”
Commenting on the board's decision, June O'Connell of 102 East Rutland Road said, “I am so proud the board saw it our way. Chairman Gettinger spoke what everyone wanted. Any health and safety issues outweighed the need for affordable housing.”
At each hearing, residents raised additional concerns. Most recently, they have said the site should have an archeological survey to look for Indian artifacts, citing some artifacts that have been found in the past in the area.
They also criticized the property owner Milford Developers LLC for failing to pay property taxes for the past four years, totaling $308,012.44 as of July 21, 2015.
According to a document from the tax collector submitted at the July 21 P&Z hearing, Wheelers Woods owes the following amounts in taxes and penalties, which accrue at an 18% interest rate: 2011, $45,585.81; 2012, $119,574.48, 2013, $107,092.15, and 2014, $35,760.00.
In response, Timothy Hollister, attorney for Milford Developers, wrote in an Aug. 3 email, “In 2012, Wheelers Farms LLC became responsible for a substantial property tax obligation that was to have been paid by others. Since then, the LLC has been in contact with the Assessor's Office, and has been paying off the back taxes, more than $230,000 to date, while also entering into a contract with Milford Developers LLC to pursue the current development plan, which will not only address prior taxes but also will make the property a substantial tax positive for the city of Milford.
Neighbors also took out an advertisement in the Milford-Orange Bulletin on July 30, giving 10 reasons to deny building the apartments and urging people to call Mayor Ben Blake and “Demand he DENY this development!”
Under P&Z regulations, the mayor has no vote on the P&Z board, which is comprised of volunteers who are elected to a four-year term. The only voice the mayor has with regard to most applications is speaking at a public hearing, just as any member of the public could do.
At its July 15 meeting, the IWA unanimously approved the wetlands aspect of the application, attaching 15 conditions to the approval, all of which the developer agreed to meet. These include measures to protect the conservation area, removing debris from the property, and testing stormwater runoff during earth moving operations.
The project received approvals from all other city departments, except the Police Commission. At its June 8 meeting, the Police Commission voted to support the recommendation of the department's Traffic Division, which commented negatively on the project, saying there was insufficient parking.
This plan would have 1.96 parking spaces per unit, or a total of 352 parking spaces. P&Z regulations require 2 parking spaces for one-bedroom units, and 3 parking spaces for two- or three-bedroom units, resulting in a requirement for 477 parking spaces.
In final denied form, the project changed since the original application, including the relocation of proposed buildings on the site with the intent of protecting the conservation area, and a change in one unit from two-bedrooms to one, lowering the bedroom count to 315. A total of 54 units would have been rented at affordable rates to people earning up to 80% of the area's median income.