Rejected East Lyme affordable housing proposal in judge’s hands
East Lyme ― A lawsuit lodged against the Zoning Commission in August for denying a controversial development on the rural edge of town was transferred Thursday to Hartford Superior Court to expedite the process.
The state’s affordable housing law gives privileged status to court cases involving rejected affordable housing proposals. In a state where experts say there’s an urgent need for at least 89,000 homes that families in the lowest income brackets can afford, the law specifies zoning appeals must be heard by the court as soon “as is practicable.”
The law makes it easier for developers to get around local zoning restrictions by suing the town if their plans for affordable housing are rejected. The burden of proof in such cases shifts to the municipality to show the risk to public health or safety outweighs the need for affordable housing.
The proposal for 19 houses and 24 townhouse units on Holmes Road was denied by the commission in July. The commission’s six-page resolution argued the application didn’t include enough information to ensure public health and safety would be safeguarded amid concerns about increased traffic, a lack of public water and sewer service, and limitations on the ability of firefighters to respond to emergencies.
The zoning application identified six houses and eight townhouses to be set aside at affordable rates. Based on current income guidelines from the U.S. Department of Housing and Urban Development, that means a family of four making less than 80% of the area’s median income – or $91,760 – would qualify to rent a two-bedroom unit for $2,066 monthly. A family of the same size making less than $68,820 would qualify for a $1,549 rent payment each month.
Developers Duval Partners LLC of North Carolina and Kristen Clarke, a civil engineer out of New Hampshire with family ties to the town, said the case should have been transferred automatically from New London Superior Court to the land use docket in Hartford when the suit was filed months ago. The case was officially transferred Thursday in response to the developers’ motion for a change of venue, according to the State Judicial Branch website.
Duval Partners held the mortgage on the property and hundreds of surrounding acres for a previous owner before taking it over in 2015 foreclosure proceedings.
Duval last year sold most of the land ― about 300 acres ― to the East Lyme Land Trust based on a $1.6 million appraisal. The property had been approved for a golf course and country club with adjacent senior housing before the project stalled almost 15 years ago.
The developers in their appeal described the commission’s decision as predetermined and alleged the town has “a pattern of denying affordable housing applications.”
They said commission members did not openly discuss the application during two public hearings or prior to their vote, yet the town attorney was able to produce a detailed, pages-long denial resolution. The complaint said the resolution is evidence that there was communication occurring outside the public eye to which the developers did not have an opportunity to respond.
The appeal referenced comments by town attorney Michael Carey to the commission before the vote. Video from the meeting shows that Carey said he used the resolution from an unspecified previous affordable housing denial as “a form” in crafting the denial document.
The developers argued it’s a violation of the affordable housing statute to use reasoning from past decisions instead of basing the decision on the application before the commission. Attached to the allegation was the footnote that said “East Lyme has a pattern of denying affordable housing applications.”
Attorneys for the commission have not yet written a response to the developers’ appeal. But Carey did submit a request to strike the footnote from the record on the grounds that it is “unnecessary, impertinent, immaterial and out of order” for a zoning appeal that should rely only on documents submitted as part of the record for this particular case.
Past cases have included the rejection or partial rejection of an evolving series of proposals for hundreds of acres in the Oswegatchie Hills overlooking the Niantic River. Most recently, a judge sent a proposal for 840 apartments back to the commission for further review after years of litigation. Thirty percent of those units would be set aside for those in lower income brackets.
The commission also rejected the original 2013 application for a West Main Street affordable housing development near Rocky Neck State Park, but was overruled by the state superior and appellate courts. The site was ultimately developed as the 56-unit Rocky Neck Village, with 36 designated as affordable.
Approved affordable housing developments over the years include 133 condominiums on Hope Street in Niantic and 88 apartments on rural North Bride Brook Road.
The most recent state Department of Housing numbers show 6.74% of East Lyme’s housing stock is considered affordable by standards outlined in state law.
Once 10% of a community’s housing stock qualifies as affordable, developers can no longer avail themselves of the statutory provisions that make it easier for them to build affordable housing developments in town.
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