Connecticut Superior Court ruled on July 27, 2020 that the Garden Homes’ application to build affordable housing in Westport, CT is approved. Halloran Sage attorney Mark Branse represented the builder during a contested five-year approval process.
In 2015, Garden Homes applied to build an affordable housing development at the intersection of two State highways in the Town of Westport, CT. Connecticut’s Affordable Housing Appeals Act, CGGS 8-30g, et. Seq., exempts developers of affordable housing from local zoning and subdivision laws, though not inland wetlands laws. In affordable housing applications, the local commission has the burden of proving that the proposal will cause substantial adverse impacts to public health, safety, or other specified matters; that those adverse impacts are specific and probable (not speculative) and supported by substantial evidence; and that there are no conditions or modifications to the proposal that could address those adverse impacts. At that time, in 2015, Garden Homes applied to build a 48-unit apartment building, 7 stories in height, with garage parking beneath the residential levels of the building. Because we did not believe additional time would change the ultimate decision by the Planning & Zoning Commission, we took the position that we would consent to no extensions of time beyond the statutory requirements.
The Planning and Zoning Commission denied the 2015 application on two main grounds. First, that the development would adversely affect a salt marsh of the adjacent Saugatuck River; and, second, that the Town’s fire department could not fight a fire in the proposed building, even though it complied with (in fact, exceeded) the requirements of all applicable fire codes. On appeal, the Superior Court expressed its displeasure over our refusal to grant extensions of time; held that the adverse impacts on the salt marsh were supported by substantial evidence; and noted that fire safety was a legitimate public safety concern, without holding that there were any actual adverse impacts.
Garden Homes reapplied in 2018 with a project that was so dramatically scaled back that it was no longer financially viable, and instead was proposed as a non-profit project of the Garden Homes charitable foundation. All of the environmental concerns from 2015 were addressed and a fire consultant prepared a step-by-step plan for the Westport Fire Department to fight a fire in the proposed building, which was proposed at 19 units and 3 floors over parking. The local Commission denied the application on essentially the same grounds as the original application.
Garden Homes appealed the denial to the Connecticut Superior Court and the Planning & Zoning Commission decision was overturned.