A three-judge Appellate Court panel ruled against Stratford Tuesday in its decade-long battle against AvalonBay Communities over a proposed apartment development on Cutspring Road.
Anticipating the court’s decision, the Town Council discussed the matter in a closed-door executive session Monday night and then voted to appeal the Appellate Court ruling to the state Supreme Court.
The Appellate Court decision also goes against the Stratford Zoning Commission and Inland Wetlands and Watercourses Commission. Those two commissions have yet to discuss the decision with their lawyers.
The Appellate Court ruled that the Wetland Commission failed to be specific enough when it denied AvalonBay a wetland permit. For example, the commission cited the probability that construction activity would cause sediment to enter Pumpkin Ground Brook, but it failed to present evidence indicating an amount of sediment.
The three-judge panel also ruled for similar reasons against the Zoning Commission and the Town Council, which had entered the case as an environmental intervenor after AvalonBay went to court to appeal the permit denials.
If the Appellate Court decision stands, AvalonBay could build a three-story, 146-unit apartment complex on a 12-acre property at 1600 Cutspring Road, just north of the Merritt Parkway overpass.
The Parkway overpass was prominent in the case because the town claimed Fire Department aerial ladder trucks could not fit under the overpass, which has a low clearance height.
The Appellate Court disregarded that claim, too, said Kevin Kelly, the state senator who is also the assistant town attorney representing the Town Council in the case.
Kelly briefed the Town Council in the executive session. He spoke to reporters after the Council meeting.
The case has already been up to the Connecticut Supreme Court and back again during its tangled record of appeals and reconsiderations. Legal costs for the town topped $500,000 by 2006.
AvalonBay has promised to set aside about three dozen units as designated affordable housing, requiring rents on those units to meet state guidelines.
By filing its zoning and wetland applications under the provisions of the state’s affordable housing law, AvalonBay gained a significant advantage. The affordable housing law requires at least 10 percent of the housing units in the town to be designated "affordable," meeting the state qualification standards, or it becomes legally very difficult for land use boards to deny applications to construct affordable housing.
Kelly said while this case has been in court, the town went from 8 percent affordable housing in 2001 to 5 percent in 2008.
He said two big reasons were that the Stonybrook Coops were no longer federally financed, and many people refinanced their government-subsidized CHFA mortgages for commercial mortgages with lower interest rates.
That gave the appearance of less affordable housing in Stratford, which hurt the town’s case, Kelly said.
The Inland Wetland and Watercourses Commission is represented by attorney Brian Stone and the Zoning Commission is represented by attorney Timothy Bates.
Kelly said he and the other lawyers would soon review their legal options and decide how to proceed with the case.