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FAIRFIELD — Town zoning officials are reconsidering their previous denial of a 40-apartment affordable housing project amid the ongoing legal dispute with its developer, a move that has upset numerous residents.
During a Town Plan and Zoning Commission meeting in June, members rejected the Berkeley Road proposal — a four-story, 33,777-square-foot development in a narrow, flood-prone neighborhood — in a 4-3 vote, citing potential public safety risks.
Two weeks later, however, developer Berkeley Rd LLC petitioned the state Superior Court for an appeal of the officials’ decision, arguing that the commission failed to provide sufficient evidence of a public safety risk. After spending 10 months litigating the case, the commissioners consulted with a town attorney and openly weighed their options during a meeting on March 26.
According to commission Chair Thomas Noonan, members must choose one of three options at their next meeting: Continue fighting the appeal in court despite a potential lack of evidence; approve a smaller, but less affordable, version of the project which was proposed by the developer in settlement negotiations; or rescind their denial of the application and reconsider the original proposal.
Following almost two hours of debate, commissioners and neighbors alike could not reach a consensus on the best path forward. They did agree, however, that state statute 8-30g has effectively tied their hands.
A burden of proof
Under the contested law, housing developers can bypass local zoning laws as long as 30% or more of a project’s units are considered affordable according to state standards. In order to win an appellate case for a project like the Berkeley Road development — which initially proposed 12 affordable units — the commission must use the material submitted in the zoning application to demonstrate a public safety risk.
“There’s no doubt that it was a well-intentioned denial of this application. But as I said at the time, and now, it’s not legally tenable,” Noonan said.
If the town continues to fight the appeal, Noonan and other commissioners said, they will likely lose.
According to comments submitted by neighbors, the town-owned road is just 30 feet wide and frequently used as a cut-through for nearby shopping centers. Because people often park their cars on the street, the neighbors argued, traffic can only travel one way and residents often have trouble turning out of their driveways.
Many residents also theorized that because the property is in the Rooster River Watershed — a densely developed area that experiences increased flooding when it rains — and beside a wetland, existing flooding problems will worsen.
But Noonan, one of the three members who voted to approve the project last year, reiterated his earlier concern. Though the development would likely increase the risk of car accidents and flooding, he said, the commission never acquired the evidence needed to prove it.
Both before and during the commission’s hearing process, Fairfield’s Police Department, Fire Department, Engineering Department, Conservation Commission, Plan and Zoning Department and Water Pollution Control Authority reviewed the application for any safety concerns, and conditionally signed off on the project.
According to commissioner Jeff Randolph, the town would have needed written opposition from experts like the police chief or town engineer to sufficiently defend the denial, not the neighbors alone.
“The expert witnesses and the staff have said that there are no safety issues,” Randolph said. “That is the only way we could deny this without being sued and losing.”
Several neighbors in attendance, however, insisted that the current evidence on record proves that the safety risks outweigh the need for affordable housing.
Joe Gagliardi, a Berkeley Road resident who has opposed the project for over a year, argued that the commission must convey to the court that the town staff’s approval of the project was based on inaccurate and flawed traffic data.
Commissioned by the developer, a November 2022 traffic study by Hardesty & Hanover concluded that a new 40-apartment development would have little impact on traffic delays and would require no additional traffic controls or markings. But Gagliardi countered that the study did not account for frequent street parking along the road and used traffic counts taken around Thanksgiving during the COVID-19 pandemic.
“The traffic study being used to determine the safety of Berkeley Road used traffic numbers during a time when our streets were virtually empty,” Gagliardi said. “It’s not a big leap to assume that half of the volume of cars were on the road when the study was conducted.”
If the town can prove the study was flawed and potentially completes its own traffic analysis, Gagliardi said the commission should maintain their decision and let a judge decide.
Neighbor John Buturla similarly expressed confidence that justice would prevail. If the town continues to fight the appeal, he said he’s willing to be called as a witness and present his documentation and testimony to the court.
Though none of the commissioners confidently backed the first option, the members were split on whether to accept a new offer by the developer or revoke their denial.
A win-win?
Shortly after Berkeley Rd LLC, managed by real estate agent Jonathan Makovsky, filed its appellate case, the two parties began negotiations for a potential settlement.
Noonan explained that the commission has rejected two modified plans by the developer since January, and has one more to rule on. The final offer included a reduction from four to three floors, a drop from 40 apartments to 30 apartments, extra parking spaces and the addition of a lower-level laundry room and storage space. Of the 30 apartments included in the final offer, 20% — or six apartments — would be considered affordable.
But commissioner Tom Corsillo said accepting the offer would set a bad precedent for future affordable housing applications and provide little relief to concerned neighbors.
Should the commission greenlight a development with 20% affordability that exceeds zoning standards, Corsillo said, it sets a precedent for other developers to follow suit. He suggested that the commission reconsider the original application to deter future projects from skirting 8-30g requirements.
Other members, however, maintained that the smaller development is the best option.
Commissioner Kathryn Braun urged her colleagues to vote for the scaled-back project as it would cut the size of the development by 25%, maintain six affordable apartments and reduce traffic by eliminating the cars associated with the 10 removed units. Approving the original 40-apartment plan would be a disservice to the public, she added.
“This is the best we could do. I call this a win-win in the world of 8-30g,” Braun said.
Commissioner Alexis Harrison, who voted to reject the project in June, also noted that the developer has offered a compromise in good faith and that the group should meet them halfway. If members are concerned about the safety of surrounding neighborhoods and future tenants, she said, they should be willing to lose some affordability.
“I can’t trade in three units of affordability for the lives of people. This is about a safety issue,” Harrison said.
The commission is set to make a decision at its April 9 meeting, to allow neighbors time to weigh the options. Noonan said additional public comments will be heard on the matter.
John Fallon, an attorney representing the developer, declined to comment pending the ongoing commission deliberations.