A Superior Court ruling has stated that the town cannot require a deed restriction on town owned property to be used as part of the Parkside affordable housing proposal, altering the approval and paving the way for the project to move forward.
The decision is expected to be appealed, however.
The Parkside project is a demolition of a current 50 unit complex on Montowese Avenue in Branford. The proposal, led by Boston based developer Beacon Communities, is to replace the current facility with a single, 4-story structure with 67 units, although not all of the units will be considered affordable housing.
Opposition to the project has hinged on the new 4-story structure not fitting in with the neighborhood, being a poor location for affordable housing due to not being near transportation, sidewalks and amenities, and concerns over the status of current residents.
The Planning and Zoning Commission voted to pass the measure, 3-2, but included in the approval a stipulation that the project have two emergency access points, and that a portion of the second access point, which the applicants did not own, required a deed restriction by the property owners of the impacted area.
The deed restriction would ensure that the owner of the property, and any future owner, would keep the emergency access available and would not develop it.
That property owner is the town, and in order to add a deed restriction, approval by the towns legislative body, the Representative Town Meeting, would need to give approval. The applicants, Beacon and the Housing Authority, knew such an attempt would not work, as public opinion and political will did not exist for the project, and it would have been denied. Thus, the appeal of the stipulation.
Judge James Sicilian ruled that the deed restriction was not needed, basing his decision largely on reasoning that the town had showed no intention of selling the property.
“The Commission’s conditions are based on the possibility that the Town might someday do something that would impair emergency vehicle access via Sliney Road, not only to Parkside Village, but also to the Town's own Sliney Fields,” writes judge Sicilian. “There is nothing in the record to suggest that there is any plan, proposal, or even a thought, to do anything of the kind.”
Only the statement is not true.
The Commission did, in fact, consider a plan to create a new access point on Melrose Avenue, which could have eliminated the Sliney Road Access.
One of the reasons the RTM did not approve a Melrose Avenue access point was that it would divide up property it may sell in the future. The property includes the Sliney access road and Indian Neck School, and based on the age of the facility, a future sell or redevelopment is not beyond the realm of possibility and has been discussed.
There are also studies and discussions done on all of the towns schools and properties where potential sale or redevelopment have been discussed, by both the town and the Board of Education.
The town has also considered creating new ballfields on other sites, notably Tabor, which could minimize or eliminate the need for the Sliney fields and the access road.
Not only is a potential sale of alternative use for the site possible, the real question the decision raises is if an applicant can use property they do not own to garner approval.
If an applicant can include property they do not own in an application, its sets a significant precedent that that changes development and the Planning and Zoning process statewide.
If an applicant can’t fit a desired project on the property they own, they can simply impact a neighboring site, and without needed a deed restriction, would not need the approval of the property owner.
It can also conditions, such as emergency access, in place for an approval that can then change after the fact, impacting public safety.
With the ruling, it is acknowledged that the emergency access via Sliney Road is needed by the courts and the applicants. But there remains no guarantee that the site will always be available for the project if the town sells the property or redevelops in some way. The judge essentially ruled that since he felt selling or redevelopment was unlikely, that no guarantee was needed.
What is stunning is the massive contradiction within the decision, stating that sale or redevelopment was unlikely in one place, while acknowledging that officials viewed the access point as problematic in others, and even including that officials had looked at alternatives, such as the Melrose Ave access. If officials are looking at alternatives and acknowledge that the current setup was problematic, clearly potential changes, like a sale, are on the table.
For those in development, a major question must be answered: does the ability of a private developer to include property they do not own in their approval only apply as its owned by a municipality? What if it was privately owned? If the access road portion in question was owned by John Smith, and not the town, could the Parkside project still impact and include said property without the permission of the owners?
And the precedents impact does not end there. If a development is adjacent to open space owned by a town, can the applicant use that open space to calculate coverage limits? And why does the developer not own the burden of developing on their own property? If a proposed development does not fit on one site, can they include space on an adjacent site they do not own, and do so without the approval of the property owner?
Essentially, why is it now the towns problem that the developers did not design a structure that fits exclusively on property they own? If Beacon, the multi-million dollar Massachusetts corporation with properties all over the East coast, needs a certain size or number of units to maximize profits, why should town owned land be required to facilitate that?
This decision is a dangerous precedent to set, and does so on the back of conflicting, if not contradictory, evidence. Developers, municipalities, and all private property owners statewide would do well to take notice.