An attorney representing the town said in a court filing Monday that it’s “indisputable” that the burden facing the Planning & Zoning Commission in denying an affordable housing proposal in New Canaan is “substantial.”
In a reply brief (available in full here) regarding plans for a 20-unit development in the former “Red Cross building” at 51 Main St.—a proposal that P&Z denied—attorney Peter Gelderman of Westport-based Bechem Moses PC said it’s also “indisputable that the need for affordable housing exists in New Canaan.”
The state affordable housing law known by its statute number, 8-30g, “requires the Commission to balance that need against public interests requiring protection,” according to the brief filed on behalf of P&Z in state Superior Court in Hartford.
Geldermen continued: “Some sites within the Town simply do not meet that balancing test. 51 Main Street does not because it is located within New Canaan’s only historic district. The design of the project is incongruent with the preservation of the district and thus is abhorrent to the environment and the health of the residents of the Town of New Canaan.”
The reply brief comes as the courts process appeals of three P&Z denials—namely, for the Main Street proposal, as well as a proposed 120-unit building at Weed and Elm Streets and 93-unit structure on Hill Street. (Briefs also have been filed in the Weed/Elm and Hill Street cases. P&Z’s denial of the proposal at 751 Weed St. is slated to go to trial next month, according to Connecticut Judicial Branch records.)
Each property is owned by a limited liability company whose principals include Arnold Karp, a local developer.
Attorneys representing Karp in 2022 invoked 8-30g in filing three applications with P&Z.
For towns such as New Canaan that do not meet a standard whereby 10% of all housing stock qualifies as “affordable” under the state’s definition, developers and other property owners may appeal local P&Z denials to the state, effectively skirting local zoning regulations. New Canaan in 2017 had achieved four years of relief from the law with the denser redevelopment of the affordable housing complexes at Millport Avenue, but was unable to achieve another four-year “moratorium” immediately following the expiration of the last one in June 2021.
After unexplained delays and failed lawsuits under the prior administration, newly elected town leadership rapidly filed for a moratorium in December and is expecting an approval by the state Department of Housing next month. (That approval would not affect the three appeals already underway.)
Karp’s attorney, Tim Hollister of Hartford-based Hinckley Allen & Snyder LLP, filed a 51-page plaintiff’s brief in February. In it, Hollister takes aim at P&Z’s denial of the 51 Main St. project, saying, in part that “8-30g commands that an application can only be denied for a well, documented law.”
“The record here contains nothing of the kind,” Hollister concluded. “The plaintiff respectfully asks this court to reverse the denial and remand with direction to approve the regulation and rezoning, and the site plan with conditions.”
Gelderman in his response brief tackles nine “deficiencies” that Hollister identified in arguments made on behalf of the Planning & Zoning Commission. For example, the plaintiff argued that the town tried to “mislead” the court by referring to the developer’s originally submitted application, rather than a modified one. Some of the modifications include relocating salvageable parts of the front of the original Red Cross building about 20 feet from Main Street (rather than the original five feet), and building to three stories instead of four.
Gelderman wrote that “[i]t was certainly not the Commission’s intent to mislead the Court and in fact the Commission does not believe it could mislead the Courts… the Commission is obligated to brief the Commission’s decision in both the original submission and the resubmission.”
In another section, Gelderman rejects Hollister’s arguments regarding fire safety. In his own brief filed on behalf of Karp, Hollister said that P&Z’s denial focused on “fire truck access to two sides of new building, but this reason is undermined,” in part, because “51 Main Street is literally across the street from the main fire station, and thus is probably the safest building in the entire town.”
Gelderman said in response, “That fact might be relevant if the Commission were using response time as a reason for denial. However, it makes no difference how close the fire station is if there is no ladder access to the sides of the building. That lack of ladder access to the building was actually exacerbated by the resubmission because the building was made wider and side access was diminished.”
The active lawsuits regarding each of the three projects are separate from another action that the town brought against the Connecticut Department of Housing regarding that state agency’s position with respect to an earlier moratorium application denial.
Meanwhile, in New Canaan, a recently appointed Affordable Housing Committee is working on a long-term strategy whereby the town will seek to chain together successive four-year blocks of relief from 8-30g.
During a meeting of that Committee’s Project Development Subcommittee on Monday night, P&Z Secretary Krista Neilson listed several types of properties that should be reviewed for possible affordable housing, including town- and state-owned parcels (with an eye on their deed restrictions and whether they’re on town sewer or water), contiguous private properties owned by the same party, foreclosures and tax liens.
Affordable Housing Committee member Maria Weingarten, a guest at the Subcommittee meeting, noted that prior cases show there’s a 70% chance that New Canaan will lose in the 8-30g appeals. She also noted that, should Karp’s projects go forward, they will create affordable units that New Canaan could then count in making future applications for a moratorium.