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Stratford Loses Legal Battle Against AvalonBay

Town officials consider taking it all the way to the state Supreme Court.

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.

Linda Palermo July 14, 2011 at 08:22 PM
Attorney Kelly, please clarify your reasons regarding the town going from 8 percent affordable housing in 2001 to 5 percent in 2008. Do the two big reasons both relate to 3rd highest tax payer, "Stonybrook". We’ve been neglected for years due to past elected politician compromising certain members rights based on promises and favors. HUD governed SBGC until Peoples mortgage was paid. Falling at the wayside was HUD's requirement we have a Management CO. Certain Directors, apparently failed to familiarized themselves with what their duties are, causing harm to not only approximately 40% of the elderly membership who are on fix income, Social Security, SSDI, unemployment etc., but the whole membership. "Stonybrook”, continues to find it difficult in getting financing to purchase its units. Another factor is the Assessor's Town Reassessment that caused “Stonybrook’s” Taxes to escalate by at least 40%; and its dominion effect on its entire membership through higher monthly carrying charges. This added financial burden caused existing members to be faced with foreclosure based on higher taxation and the inability to sell their units. Legal cost for appealing our claim caused additional expenditures. Concessions made by an Assistant Town Attorney to settle errors, apparently are lower than the 5% to 8% ratio decrease Attorney Kelly, claims we are no longer being subsidized for through our mortgages. Stop spending taxes dollars. Cadoos Appellat Decision.
Jim Miron July 15, 2011 at 05:20 PM
There comes a time in every legal case to call it a day and that day has come in this fight. Kevin Kelly's law firms and those close to him have made millions fighting Avalon Bay and for what? He KNOWS the town cannot win this on appeal. This is another example of tax dollars being frittered away on needless legal battles that serve politcal purposes only.
Jezebel282 July 15, 2011 at 05:43 PM
And who was the mayor that authorized all those payments to Kevin Kelly?
TheGenuinePhyllis July 16, 2011 at 05:16 PM
Who Dear Lady Jez? Let me guess, Jim Miron Fmr Mayor?
TheGenuinePhyllis July 16, 2011 at 05:25 PM
Why have you (all of a sudden) come out of the woodwork? Why are you "suddenly" overly concerned about issues existent while YOU were mayor? Tax dollars "frittered away"??? You are truly one amazing person!!
Jim Miron July 19, 2011 at 06:48 PM
News flash - I was mayor for four years. The case is over a decade long. When I came to office the appeal process was already underway and I was not involved in any discussion or decisions regarding this matter.
Jezebel282 July 19, 2011 at 07:01 PM
That must have been awful! Being a powerful mayor with no ability to stop hundreds of thousands of dollars in Town checks from going to an attorney who was fighting against this company and you were not even involved in any discussions about it. You didn't support Avalon Bay too, did you?
Mary B. Winfield July 28, 2011 at 02:05 AM
The former mayor was not a direct litigant in the case. Jim Miron inherited this case when he was elected as mayor. For many, many years...the north end of Stratford was preserved as owner occupied real estate (with the exception of the Oronoque condo development and other commercial buildings). I do not believe that Avalon will destroy property values in the long run. Perhaps an upscale rental community managed by a company such as Avalon potentially might improve north Stratford's neighborhood.
George E. Mulligan July 28, 2011 at 05:12 AM
If Attorneys won and finalized cases, they would no longer be able to bill, would they? 1986 Town Attorney legal fees were $ 120,000 2011 TA fees including HR? Was it 15 TIMES $ 120 Thousand?
Jezebel282 July 28, 2011 at 11:41 AM
Ms. Winfield, The former mayor was, well, the mayor. That makes him a direct litigant. For four years he authorized payments to Bishop Kelly & Jackson. After (soundly) losing to John Harkins and Kevin Kelly he chooses now to complain about attorney fees he authorized? Somehow, somewhere he has to take responsibility for something.

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