The controversial plan to build an apartment complex with "affordable" units on adjacent lots on Berwick and Fairchild avenues was unanimously rejected Tuesday by the Town Plan and Zoning Commission.
The 7-0 vote to deny the application followed a two-hour discussion on whether to reduce the proposed 33 two-bedroom apartments to 13 two-bedroom apartments as a condition of approving the application. The application was filed by Berwick Fairchild and Associates LLC, which lists Richard Albertelli of Rock House Road in Easton and Kevin B. Bartlett of Woods Lane in Weston as members, according to the Secretary of the State's website.
The proposed development was filed under the state's affordable housing statute, 8-30(g) and would have set aside 10 apartments rented in compliance with affordable-housing criteria. The proposed three-story building, with a total floor area of 33,901 square feet, was planned on 0.45-acre, across the street from a 54-unit affordable apartment building now nearing completion.
"I think it was a long and hard decision. I was a little worried they were going to approve it. I'm glad they didn't," Tom Benedetto, a resident of Berwick Avenue for 34 years, said after the TPZ vote in McKinley School's cafeteria. "I'm hoping when it goes to court, it gets shot down."
Kathryn Braun, a lawyer who represented opponents of the proposed development, said she was "pleased that the commission took the time and carefully evaluated a huge amount of material presented by the police experts, fire experts and traffic expert." Braun said the commission also had to take into account a lot of information related to the Federal Emergency Management Agency since the property at 110 Berwick Ave. and 145 Fairchild Ave. is in a flood zone.
The commission, Braun said, "recognized the significant public health and safety issues, especially in light of the still-not-occupied 54-unit Garden Homes development across the street."
Bryan LeClerc, a former chairman of the TPZ who served as the lawyer for Berwick Fairchild and Associates LLC, immediately left after the vote and wasn't available for comment.
TPZ members expressed concerns about how increased traffic and off-street parking would affect travel and access by emergency vehicles; consequences of flooding when the adjacent Rooster River overflows its banks, and the density of the proposed development. The application called for 66 bedrooms on 0.45 acre while the nearby development under construction on Fairchild Avenue will have 54 bedrooms on 1.49 acres.
Assistant Town Planner James Wendt said in a report that preceded the commission's discussion that the developer's application would amount to an "unprecedented density" of 147 bedrooms per acre, which he said would be 400 percent higher than the development across the street.
"They are essentially abutting neighbors," Wendt said. "The impact would be cumulative on the neighborhood."
Wendt added that the 0.45-acre property would flood from time to time -- he said nine floods in that neighborhood from April 2006 to August 2012 required a "large-scale response" from police and firefighters -- and while the building would be elevated, residents still would have to be evacuated and cars would have to be moved.
Wendt said traffic delays on the nearby Kings Highway would increase to three minutes, which could pose challenges to emergency vehicles. He added that William Hurley, a town engineer, didn't think 41 parking spaces for 33 two-bedroom apartments would be sufficient. Wendt said the lack of enough on-site parking would cause people who live in the proposed apartment building to park on public streets, which are "presently over-capacity" and which would "exacerbate the issue of emergency vehicle access."
"This is a public safety issue and is directly related to the number of parking spaces proposed," Wendt said. He said the development across the street will have 68 parking spaces for 54 bedrooms, and if that ratio were applied to the Fairchild and Berwick development, the number of parking spaces for 66 bedrooms would have to be 82.5.
Wendt suggested the commission approve the proposed development, but with conditions of approval that would include reducing its size to 13 two-bedroom apartments. At that size, four apartments would have to be classified as affordable housing.
Wendt said a 13-unit development would provide enough parking spaces on-site for residents of the development and would reduce the number of cars traveling to and from the development, as well as the number that would have to be moved when the Rooster River floods.
But TPZ member Mark Corcoran said he didn't think the traffic, flooding and safety concerns outlined in Wendt's report justified allowing a smaller apartment building and that the application should be denied. Commission member Anthony Calabrese agreed, saying he didn't think the suggested conditions of approval "will meet health and safety issues."
TPZ member Patricia Jacobson said she knew the commission's staff worked hard on developing conditions of approval, but "I just think it is still a very unsafe area, and I would vote to deny."
TPZ Secretary Seth Baratz said the development under construction across the street will be "a huge traffic generator" and that the commission had to consider the proposed development on Fairchild and Berwick avenues in light of that. "I find traffic to be a significant issue. I find parking to be as, if not more, significant of an issue," he said.
However, TPZ Vice Chairman Gerald Alessi said commission members also had to consider the proposal was an affordable housing application and that the standard for rejecting it is high. "This isn't a normal office building or apartment building we're dealing with here ... and we have to take that into consideration in our vote."
Under the 8-30(g) statute, the TPZ can reject an affordable housing application only if its decision is necessary to protect substantial public interests in health and safety and if that protection outweighs the need for affordable housing and cannot be satisfied through conditions of approval.
Baratz said the commission didn't have a site plan for a 13-unit development. "What would it look like? Are we really asking the applicant to come up with another plan?" he said. "The thing I'm struggling with here is are these reasonable conditions or is this another plan?"
"We don't have a traffic report for that site plan," Baratz added. "I'm struggling with approving something where we spent four nights on a plan and now we're just putting a number out there."
Wendt indicated that the figure of 13 units came about as a way to alleviate the need for cars owned by apartment dwellers to be parked off-site.
Matthew Wagner, the TPZ's chairman, said, "We have a parcel of land and there could be some level of development here. It's just not 66 bedrooms." He suggested the TPZ could approve a 13-unit development and require a revised site plan and revised traffic report.
But Corcoran said, "I don't think we have the expertise to determine what the safety conditions would be at a reduced level [of apartments]."
Calabrese said, "I still do not think putting hundreds of people in danger for four affordable housing units is worth it ... Health and safety is a huge issue and that shouldn't be overlooked for four units."
Calabrese said Police Chief Gary MacNamara testified that it already is difficult to get emergency vehicles in that neighborhood. Calabrese said flooding would still take place and the applicant admitted little could be done to improve drainage.
Town Planning Director Joseph Devonshuk Jr. indicated that denying the application or approving it as a 13-unit development would lead to the same result. "The reality is, either action you take is going to be appealed" in court, he said.
But Alessi worried that if the commission denied the proposed development, its denial could be overturned in court and the town could wind up with the original 66-bedroom development. He said the judge who heard Garden Homes Management's appeal of the TPZ denial of that project wasn't impressed with the reasons for the denial.
Wagner shared that concern but said Garden Homes' development is different. "We didn't have a traffic report where the applicant basically disavowed his own traffic report," he said. Baratz said the applicant's revised traffic report also wasn't credible and Wagner said the Berwick Fairchild and Associates LLC's traffic consultant didn't appear at a public hearing to answer questions.
Commission members first rejected proposed changes to its zoning regulations to support the 33-unit development and then rejected the LLC's request to change the zoning classification of the 0.45-acre from Residence B to Designed Residence District. Those votes were unanimous and took place after little discussion.
Wendt said the state's affordable housing law enabled the TPZ to approve the development without approving the regulation and zoning classification changes, and TPZ members then began discussing whether to approve the development with no more than 13 units that had no more than two bedrooms per unit.
Alessi, who made the ultimate motion to deny the application, said, "We can't come up with an exact number of units because we have insufficient information at this time."
Wagner agreed. "There isn't evidence in the record which would support our finding for a specific number of units, one way or the other," he said.