This week the Greenwich Planning & Zoning commission reviewed an application for an 8-30g affordable housing development on Mason Street that includes properties at the former Honda dealership.
The proposal’s previous iteration was unanimously denied by the Greenwich Planning & Zoning commission on Sept 17.
Town Planner Patrick LaRow said that under the 8-30g appeal process, rather than go straight to Court, an applicant can return to the commission within a limited time period and resubmit a revised application addressing the outstanding issues P&Z had cited in their denial.
Per state statute the applicant has a 65 day window to address the points made by the commission in September and re-file.
Former Honda property on west side of Mason Street. November 2024 Photo: Leslie Yager
Ramp leading to underground level of former Honda dealership on west side of Mason Street. November 2024 Photo: Leslie Yager
Former Honda property on east side of Mason Street. November 2024 Photo: Leslie Yager
Rendering from applicant’s presentation materials.View from train station looking north east on Bruce Park Ave.
Rendering from applicant’s presentation materials.View from Mason Street looking South.
The new proposal is for an all for-sale condos in both buildings. The affordable housing trust fund board issued an updated letter of support of the new, 75 unit plan.
In addition to local land use attorney Tom Heagney, the applicant has added co-counsel, Tim Hollister of Hartford-based Hinckley Allen & Snyder LLP who helped draft Connecticut’s 8-30g affordable housing statute.
Issues discussed on Wednesday included comparability of affordable vs market rate condos and zoning compliance – specifically the question of whether including ground level retail will fly as part of an 8-30g. Also discussed were safety concerns at the intersection of Bruce Park and Mason St, environmental remediation and drainage.
Condos for Sale
Now, instead of proposing condos in one building and rentals in the other, the applicant’s resubmitted application is for all units to be for sale as condominiums in both buildings.
The affordable condos would be in perpetuity, rather than just for 40 years.
P&Z commission chair Margarita Alban said since typically affordable units are rentals, people of lower income seldom have an opportunity to build equity.
“It’s a question that the Commissioner of Housing asks, is how can we further ownership so that people get an opportunity to build equity,” Alban said. “If you can make it work, it’s a splendid opportunity.”
That said, with the affordable condos, re-sales would be capped, meaning when one owner sells an affordable unit the sale price would not reflect market rate.
“Any equity you build would be limited. That’s just the reality,” said Mr. LaRow.
“It’s really putting radically different units in the same building,” said commissioner Dennis Yeskey. “It’s very unique – and maybe it has to be unique because Greenwich is an expensive place to build.”
Ms Alban said the affordable housing trust was important, especially given that high land value makes 8-30g’s difficult for developers in Greenwich.
Attorney Tim Hollister represented the applicant as co-counsel with Tom Heagney. Via Zoomm.
Zoning: Commercial Uses in 8-30g
The applicant’s attorneys and the commission locked horns on whether the existing non-conformities at the former car dealership would carry over for the proposed retail space.
The commission argued that retail was not subject to the affordable housing statute 8-30g.
Ms Alban mentioned a Connecticut Superior Court decision on a case in Orange, CT that involved a proposed 8-30g at 65 Marsh Hill Rd that featured mixed uses. She said Judge Berger’s opinion on an appeal of a denial that the project was no longer considered an 8-30g because 8-30g did not apply to mixed uses.
Mr. Heagney disagreed and said 8-30g did not prohibit mixed uses.
“We’re by no means admitting or believe that 8-30g does not apply appropriately here. We have a building that has retail on the first floor, which is a good thing to have in your central Greenwich business zone, and is a mere 4% of the total square footage of the buildings as proposed,” Heagney said. “We look to have the retail portion for the space meet the zoning regulations for coverage, floor area and setbacks.”
Ms Alban said there was a case in West Hartford (131 Beach Road) with a similar finding to the decision in Orange.
“At this point I have to rely on my counsel, and you’re providing us your opinions,” she said.
“Mr. Caspi, you were okay with not having the commercial then?” Alban asked. “That’s what we have on the record.”
Back in July, during an exchange between Ms Alban and Mr. Caspi, Alban talked about the commission’s reluctance to approve commercial uses in 8-30g applications.
At the time, Mr. Caspi replied, “It’s not significant. The residential is really what we need to understand. We can adjust the retail if we all agree that we’re – and we need to make those adjustments. We will do that.”
Mr. Caspi and Mr. Heagney said they did not remember an offer to withdraw the retail use from the proposal.
From there Mr. Hollister went through several court cases to support his argument that 8-30g’s do not preclude mixed uses.
Hollister referred to Cortese vs Greenwich, where an affordable unit was proposed above a commercial garage. He said it was labeled by the court as an attempt to “bootstrap” a commercial use using 8-30g review standards, and was held to be invalid.
He also mentioned 65 Marsh Hill Road in Orange vs Orange P&Z in 2019 where Judge Berger ruled.
“The blanket holding in the Marsh Hill case said that allowing mixed use under 8-30g can lead to absurd results such as the Cortese case,” Hollister said. “The court did not say that there can never be a non-residential component in an 8-30g case.”
He then brought up a case from the 1990s – Town Close Associates vs New Canaan, which involved a mixed use proposal with apartments over retail and office. And while that project did not go forward for reasons unrelated to the mixed use, he noted, “In that case there was no concern about 8-3og and mixed use.”
“Based on Cortese, 65 Marsh Hill Road, and Town Close Associates, my advice to clients has always been that 8-30g cannot be used to bootstrap a substantial non-residential use, especially where that use does not meet the underlying zone. If there is a non-residential use proposed, it must be a very small percentage – what we call in land use ‘subsidiary’ or ‘accessory.’ And it should be compatible with if not complimentary to the residential use.”
“What case has that?” Alban asked.
“That is Tim Hollister’s conclusion,” Hollister said. “That is what I advise my clients.”
“Do you have a case that says that?” Alban asked.
“No, this is an inference from the cases that I just read to you,” he said. “There is no case that says point blank – we wouldn’t be having this discussion if there was.”
“Why is the retail justified here, as part of the 8-30g application? Number one is that this application replaces a longtime commercial use, most recently the Honda dealership,” Hollister said. “And I believe it’s in the record that there were several other non-residential uses on the site before that.”
“Number two, the plan proposes retail that conforms to the underlying zone in terms of square footage. The retail proposed is compatible with the proposed residential use,” he adde. “This is a downtown where retail is appropriate and desired.”
“It is a residential use with a minor slash accessory non-residential component, and there is no court case that prohibits what is proposed here and many good planning reasons to accept what is proposed here,” Hollister said. “That is my opinion that I’ve given to my client in this case as to why the non-residential is allowed under the umbrella, the rubric of 8-30g.”
Ms Alban said the history of the site was car dealership.
“You have not had retail, unless you consider a car dealership retail, which we don’t.”
“Car dealerships have a retail component. You can buy your antifreeze there,” Hollister said.
“The use isn’t classified by most towns as a retail use,” Alban said.
Comparability between Affordable and Market Rate Units?
More discussion concerned the comparability of affordable condos vs market rate condos, including size, finishes, fixtures and number of bathrooms.
Mr. Hollister said the word comparable was not found in the 8-30g statute.
“This is a criteria that was added by the courts and has been explained as essentially a fair housing requirement,” he said. “The affordable units have to be comparable. They cannot be inferior. What one court called, ‘They cannot be substandard conditions’ for the affordable units. But it has not been stated by any court that comparable means exactly equal or identical.”
Hollister quoted a decision from Riverbend Associates vs Simsbury Zoning Commission, 2004: “The Supreme Court said the comparability is generally going to be a matter of opinion and not a basis to deny an 8-30g application.”
The commission and town planner said their training with the state informed them that equity and comparability of units were indeed considered by the Dept of Housing.
As for “the bathroom question,” Hollister said there was no case had held that 8-30g required an equal number of bathrooms between the market rate and affordable units.
“Comparable does not mean identical,” Hollister said. “In terms of size, the affordable units should be no less than 65% to 70% of the size of the smallest market rate unit.”
He said the affordable units would be high quality and dispersed throughout the buildings equally, and condo fees would be capped and spelled out by the affordability plan.
He added that every affordable unit would have not only comparability of size, but also have equal access to amenities and parking, and sale prices would be 30% to 35% of the median condo price in Greenwich.
He said a 3 BR, 3BA unit would be a market rate upgrade.
“A luxury item if you will,” he said. “It does not mean that in this building having a 3 BR and 2BA is not comparable or permissible.”
After a question about purchasers upgrading their units, Mr. Holliser said, “Inferior doesn’t mean it’s not comparable, under 8-30g.”
“You’re saying the base package is the same?” Dennis Yeskey asked. “How do you sell a $5 million unit next to a half million dollar unit? I’ve never seen this done.”
Project developer Joshua Caspi said owners get the same HVAC, walls, windows, flooring, doors, hardware, kitchens and lighting.
“If somebody wants to opt for an upgrade package, that is up to their discretion. It is not a question of inferiority. They’re all the same.”
Mr. Lowe pushed back.
“It doesn’t appear to pass the smell test,” he said. “It seems like it flies in the face of the intent of what the 8-30g is all about, which is to provide affordable housing and provide an incentive to developers. But we’re looking at an interpretation.”
Mr. Hollister disagreed.
“I read you a Connecticut Superior Court case that says you cannot deny the application based on concerns about comparability,” he said.
“Second, with respect to my friends at the Dept of Housing, they are not lawyers, and I think you’d agree to some degree, they are not very precise.”
“My client wants to provide beautiful, affordable, livable housing in a downtown location where it doesn’t exist today, at a price that is about 30% of median income in the Town of Greenwich. You tell me you’re going to deny this because there are only two bathrooms in a three bedroom unit? Really? Talk about not passing the smell test.”
“We’re trying to follow the law. That is our focus,” Alban said. “We’re not saying, ‘Oh you’ve only got three bathrooms so we think we should deny you.'”
“What I’m struggling with is lawyers can take a case and say, ‘I can infer this,'” Alban said.
Ms. Alban said in Maryland where Montgomery County had inclusionary zoning and the units were allowed to be very small compared relative to the market rate.
“The model is out there, but the state, as Patrick (Mr. LaRow) says, every time we take a class, they are talking to us about finish, size and amenities. That’s what we’re hearing.”
Mr. Caspi said, “These are going to be the nicest affordable units in the state of Connecticut.”
Ms Alban said Area Median Income (as opposed to State Median Income) was up to $185,000 a year.
“This is why we want the housing authority to build stuff,” Alban said. “We have a need for deeply affordable as well, which you’re not able to meet, and that is fine. We have both needs.”
Mr. Caspi commented on comparability.
“All the flooring is the same. Everyone is getting wood cabinets. Everyone is getting stone countertops. Everyone is getting tile in the bathrooms. The only upgrade package that is available is a kitchen upgrade and a bathroom upgrade,” he said.
“On the sizing, there are some market rate units that are the same size as the affordables, even a touch smaller,” Caspi said. “There is real comparability to be demonstrated.”
Phasing/Staging during Construction
The applicant now proposes to construct the building on the east side of Mason Street first.
“While you have one vacant lot, you can store everything on that lot. Once you completed one building and you’re doing the other, how do you do vehicle storage?” Ms Alban asked. “I think Mr. Holliser or Mr. Heagney would probably say that was not a life-safety issue, but it could be.”
Commissioner Nick Macri said phasing could be a safety issue, especially considering the number construction vehicles and crew parking needed.
He said in his opinion the plan was “loose.”
Mr. Caspi said he was prepared to make a logistics plan be a condition of approval by the commission.
Contamination/Remediation
Ms Alban explained that the applicant can remediate to residential standards, “no matter how bad it is.”
“The snag, as you remember from Cos Cob Park, and why we did not remediate that, and ended up not being able to put housing on,” Alban said, adding that it was capped with concrete.
“Mr. Caspi believes and has continued to say to us that he knows the extent the contamination. He has said on the record, ‘I’ve done this before. I know how to do this.’ And they sent us another 5,000 pages of material,” Alban said.
Mr. Heagney noted the applicant was required to have a Licensed Environmental Professional who works with the DEEP to make sure the Remedial Action Plan is followed and completed, and is responsible to DEEP, not the owner.
“What would happen if you decided you were bailing out?” Alban asked. “What happens to an individual guy if he decides to walk away? I’m looking at Mr. Caspi.”
“The Transfer Act lives with the individual,” Caspi said.
“So they jail you,” Alban said.
“I’m personally signed on that Transfer Act,” he said.
“So, we’ll bring you food, wherever you are,” Alban said.
Jamie Barr from Langan Engineering’s environmental group introduced himself and said he was the LEP responsible for shepherding the plan through the Transfer Act.
“The state relinquishes control to LEPs on sites that it deems appropriate – this being one of those properties, where the LEP is responsible for drafting the Remedial Action Plan, fully in accordance with state regulations,” Barr said. “So it’s my license on the line to draft a plan that follows all the state regulations and the project is executed appropriately.”
“The state doesn’t approve that plan. An LEP writes it. It goes through a public comment period and gets submitted to the state, but they don’t come back with a formal approval.”
Public Comment
Dineen Forest shared concerns about overall safety to neighbors including traffic, fire and noise. She said during construction on the apartments at the corner of Havemeyer and Milbank the sidewalks were shut down.
“Neither the town nor the construction company paid mind to the residents in the neighborhood,” she said.
Noting there was a significant house fire in August on Ridge Street, behind the proposed development, she said fire safety was a concern.
Also, she said, “I think the town lacks the support of the noise ordinance controlling buildings that are (under construction.)”
“The town does not support any control of the noise ordinance for the residents with all this ridiculous building in this neighborhood,” she said.
Mr. LaRow said the noise ordinance was under the purview of the Board of Selectmen.
Ms Alban said the fire marshal had written to say the outstanding issue was for access to the building that is 75 ft high, and for an emergency generator at the top of the building.
She said most of the issues from the traffic engineers had been addressed, but they require “line of sight” coming out of the driveway and that will be addressed when the applicant returns.
Ken Wheeler said the applicant still had not satisfied the commission on issues of zoning non-conformities, unit comparability, traffic safety and construction phasing.
“I believe the current application protects neither the future inhabitants of their buildings, nor the area residents and pedestrians in the town. Residents of the west building who may be elderly, partially handicapped or a young parent walking to their vehicle with children across the street must still cross a very busy Mason Street via an extended crosswalk somewhere down the road – not very safe. How about during inclement weather? Even less safe.”
“This application proposes the installation of traffic islands and curb extensions on Bruce Park Ave. This is certainly a safety concern for Ridge Street and Havemeyer Place residents,” Wheeler said.
“There is already a traffic bottleneck at Bruce Park Ave and Mason Street intersection now,” Wheeler said. “Drivers already use Ridge Street as a cut-through that resembles an expressway during the morning and afternoon rush hours. I believe adding a raised center curb or a sidewalk curb extension will only provide more bottle necking, more cut-through traffic and more danger on Ridge Street, Havemeyer Place and other surrounding streets.”
“While on the subject of altering the town’s roads and sidewalks with raised traffic islands, and curb and crosswalk extensions, which lately do not seem to be a very desirable by or popular with town residents, I’d like to ask the commission if these proposed changes to the town’s roads and sidewalks would fall under the MI category and require RTM review and approval?” Wheeler asked.
“And if so, when would RTM approval occur? I would hope prior to any decision on this application. And who would pay for them?” he asked.
Like Ms Forest, Mr. Wheeler also noted that residents had been living through a large amount of construction for several years, with parking during the day being a major inconvenience.
CT Governor Ned Lamont addressed the gathered crowd at an event Monday morning to kick off the Greenwich Crossing project, beginning with a 5,000 sq ft restaurant with abundant outdoor seating. Oct 21, 2024 Photo: Leslie Yager
And he noted that with the train station project on Railroad Ave project getting started, in addition to the two large buildings proposed on Mason Street, there would likely be upwards of 100 workers with numerous trucks vans and material deliveries.
“This can cause parking and traffic nightmares and road closures and street crossing alterations and detours that the area residents will have to live through for several more years. Simply telling us that the workers will park at Island Beach Ferry lot or Steamboat Road, or they will be arriving via mass transit is simply not reliable, nor is it realistic,” Wheeler added.
He echoed Ms Alban’s comments that commercial spaces were required to comply with zoning regulations, and said a precedent had been set when the commission denied an affordable housing proposal that included non compliant commercial space on Hamilton Ave.
Ms Alban did correct one statement of Mr. Wheeler’s when she noted that the ADA bumpouts on Greenwich Ave did not go through the MI process because they were being done to comply with federal law.
“What was an MI was the bumpouts to make Complete Streets, which was not a necessary mandate,” she said.
Mr. LaRow said he did not anticipate the proposed improvements to the intersection of Bruce Park Ave and Mason Street to require and MI.
“There is not a significant change from the intersection. The road is staying as is, and DPW is essentially requesting this to make things work.”
Ivana Sabar testified that the T-intersection of Bruce Park and Mason Street was mid-hill and resulted in blind spots as well as cars and pedestrians not knowing who has the right of way.
“As a result, taking a turn on this corner in any direction is a distraction on its own. Any interruption in traffic further, including the minimal amount of pedestrian traffic that exists today, significantly increases the chances of a collision.”
“Just today there was a truck parked the wrong way, directly at the corner of Bruce Park and Mason, completely blocking the lane. And it looked like a pallet was being dropped off to the Honda building across the street, and there were a few close calls, including me.”
Ms Sabar said the incident she referred to involved her traveling from the east on Bruce Park and turning right onto Mason Street.
“If just one truck causes this, what will larger disruptions from both the building and increase foot and car traffic cause from 75 units, as well as narrowing or lanes?” she asked. “As for the proposed median and bump outs, it’s hard to see how they will address the issue of pedestrian safety.”
“It looks like the median takes out an entire lane of Bruce Park up the hill. It is, just for a lack of better word, just a wild thing,” Sabar said.
Lastly, she said in her neighborhood, there was just as much opposition to the luxury development at Milbank and Havemeyer as there was to the Mason Street development.
“Objections to the Mason Street project are not about affordable housing. It’s okay for residents to ask that the neighborhood they live in be safe for their families,” Ms Sabar said.
View from former Honda dealership on Mason Street of the back of the house at 62 Ridge Street that was destroyed in a fire. Aug 29, 2024 Photo: Leslie Yager
Diana Dowling from Ridge Street said if there hadn’t been access to put out the fire on Ridge street in August, both hers and the house on the other side of the fire would have been impacted.
The fact that there is no access back there is not only a hazard for myself and others on this Ridge Street section, but also the back of the units themselves,” she said.
Second she said, there was “amplified congestion” in the area. The Charleston on Havemeyer has 30 units and 90 indoor parking spaces, plus 16 spaces outside for visitors.
“That is what the market is saying is necessary,” she said. “This (development) has a fraction of that,” Dowling said. “There is no visitor parking. There are not enough spaces per apartment which will lead to general congestion, cars circling, delivery people circling, people living there or guests circling trying to find parking.”
Ms Alban said that under current regs, the town requires just one parking space per unit, and the applicant was offering more than required.
Applicant’s diagram from Rocco D’Andrea shows proposed bump outs and median island on Bruce Park Ave.
Craig Amundson, a 5-term member of the RTM in district 12 and 5-term member of the Public Works Committee, said the 5- and 6-story buildings were “totally out of character.”
“I also find that these islands they’re looking to put in the middle of Bruce Park Ave are a ridiculous problem waiting to happen,” Amundson said. “The whole concept of bump outs truly raises my blood pressure quite a bit.”
“Bump outs that are causing a problem to our downtown should be reviewed again,” Amundson said.
“Patrick, I think, given the comments we got, we should get DPW to enhance what they are saying about the Bruce Park median,” Alban said to Mr. Larow. “That came out of DPW Traffic, and it is raising concerns in the public. Let’s make sure we have public support. I hear their point.”
Attorney Heagney noted that the plan included rock removal of the ledge behind Honda and that would improve the sight line significantly.
View of ledge rock along Bruce Park Ave to the east of existing Honda dealership. Photo: Leslie Yager
The commission did not make a decision. They will wait for additional information from the applicant, including on the issues of comparability and zoning.
The applicant will return with that information at a future meeting.
See also:
Mason Street 8-30g Shaping up to be Resubmitted to P&Z as All Condos for Sale Sept 29, 2024
Neighbor Aggrieved by Ongoing Rock Removal in Downtown Greenwich Sept 4, 2024
Greenwich Fire Dept Puts Down Early Morning Fire in Central Greenwich August 29,2024
Greenwich Planning & Zoning Unanimously Denies 8-30g at Former Honda Dealer Sept 18, 2024
Six Story, 120-Unit 8-30g approved behind St Mary Church in Downtown May 20, 2024
P&Z Watch: Is 92-Unit 8-30g “The Missing Tooth” in the Fabric of Downtown Greenwich? July 11, 2024
P&Z Watch: 8-30g Application on Mason St – “A Cavernous Effect on the Street” June 1, 2024
Multi-Story Buildings Proposed at Former Honda Dealership on Both Sides of Mason Street November 2023