Court sides with developer in affordable housing decision
East Lyme case involves planned development in light-industrial zone
East Lyme — The state Appellate Court has ruled in favor of a developer in a case over an affordable-housing development proposed for a light-industrial zone on Capital Drive that the town’s Zoning Commission had denied.
The developer’s attorney said the court has ruled that JAG Capital Drive LLC can move forward with its proposed 60-unit affordable-housing development off Route 156, but the town has some time to appeal the ruling.
The town’s attorneys said they are studying the decision — which was made public this week in an advanced release — and will report to the Zoning Commission about what, if anything, should be done next.
The Zoning Commission and JAG Capital Drive have been at odds over whether or not the commission properly used the “industrial zone exemption” under affordable-housing law when denying the application in 2013.
In its 2013 decision, the commission said it was denying the application for an affordable-housing development on a 24-acre parcel about a half-mile from the Rocky Neck Connector because it was proposed for an industrial zone that does not allow residential uses.
The commission also had
said that the public interest in health and safety outweighed the need for affordable housing.
JAG Capital Drive appealed the ruling.
In a memorandum of decision in 2014, Judge Henry S. Cohn of Hartford Superior Court said the commission “failed to satisfy its burden of defending the reasons set forth in its resolution to reject the plaintiff’s application.”
He directed the commission to approve the application “subject to reasonable circumstances not inconsistent with approval.”
The commission then filed in 2015 an appeal of the Superior Court decision.
In the recent ruling upholding the Superior Court decision, the Appellate Court cited the location of Bride Brook Health and Rehabilitation Center in a light-industrial zone on Liberty Way as an example that the town’s zoning regulations allow convalescent homes, which “potentially involve at least some degree of residential use,” in light-industrial districts.
The court used this as evidence that the town’s regulations “cannot be construed ‘not [to] permit’ residential uses in an area that has been zoned LI,” according to court documents.
“We thus conclude that the trial court properly determined that the commission improperly denied the plaintiff ’s affordable housing application without proving that the proposed development would be located in an area that does not permit residential uses,” the decision continues.
This ruling comes over the commission’s objections in a court brief that the Bride Brook medical facility does not constitute a “residential use” under zoning laws.
“The trial court’s determination that Bride Brook [Health] and Rehabilitation Center is a ‘residential use’ is contrary to the evidence in the record,” the commission’s lawyers wrote in a brief for the Appellate Court case.
Timothy Hollister, an attorney for JAG Capital Drive, said the Appellate Court decision officially will be published on Tuesday, and the town has 20 days to ask the state Supreme Court for further review.
“Our hope is that they will not do that,” Hollister said. “I think it’s a fairly straightforward decision that there are no legal obstacles to JAG’s plan to build 60 condominium units on land off of Route 156. There’s no other site development issues. We’re hoping that we can move forward.”
East Lyme Zoning Official Bill Mulholland said Thursday that he didn’t have an official comment, as the commission had not yet received notice from legal counsel.
“After our legal counsel meets with the commission, the commission will subsequently have to make a decision whether they want to pursue an appeal to the next level,” Mulholland said.