Mason Street 8-30g Applicant Sues Town over Conditions of Approval

The Greenwich Planning and Zoning commission is being sued.

This week Mason Street Partners LLC, represented by attorneys Timothy Hollister and Tom Heagney, initiated legal action against the town. The principal of Mason Street Partners is developer Joshua Caspi, who lives in Greenwich and is a member of the CMS building committee.

The plaintiff’s proposed 8-30g all-condo project on both sides of the bottom of Mason Street was approved on Dec 17 by the commission in a vote of 4-1, but the approval included conditions that did not sit well with the applicant.

The plaintiff owns six parcels of land on Mason Street including the former Honda dealership, with its history of car dealers including Studebaker and Pontiac, and a parcel at 405 Greenwich Ave (home to Samuel Owen Gallery).

They paid a total of $21 million for all the parcels, and given the history of use, remediation will be required.

The application had several iterations over the past few years, including initially separating the affordable rentals in one building and market rate units in another.

The applicant reduced the number of proposed stories after working with the Affordable Housing Trust Fund board.

Recently there were hearings in July and August and then the commission voted to close the application.

Then, on Sept 17, the commission unanimously denied the application (5-0) which proposed 92 residential rental units of which 28 (30% of the total unit count) would be below market, deed restricted for 40-years.

After the denial the applicant took advantage of the resubmission process which is part of 8-30g.

In October they revised their site plan and provided additional information requested by P&Z. They reduced the proposed 92 rental units to 75 for-sale condos, and proposed to make all the units larger. Of the proposed 75 units, 12 were proposed to be below market condos in each building. One building was proposed to be 6 stories and the other proposed to be 5 stories.

There were hearings on the resubmission on Nov 13, and Dec 10 and Dec 17.

Finally, at the Dec 17 meeting, when P&Z approved the resubmission with conditions, a key condition involved comparability.

The commissioners said that during their ongoing training with the state, they’d been advised that affordable units should be comparable, but comparability became a point of contention with the applicant/plaintiff.

In a memorable exchange on Dec 17, commissioner Arn Welles asked attorney Hollister why he calculated median and not average when looking at size of units, He referred to attorney Hollister’s calculations of median as “mumbo jumbo.”

“Where did you get this language about what’s allowed to be in a for-sale building,” Ms Alban asked attorney Hollister. “This is unfamiliar to me.”

“It’s a concept we’ve already introduced,” Hollister said.

“You’re saying it’s allowed, but it’s not in the statute,” Alban said.

“That’s correct,” Hollister said.

“That’s mumbo-jumbo,” said commissioner Arn Welles. “The mathematical term for median means the same numbers in the data set are above the median as below, and you’re not doing that. So I cannot rely on your numbers.”

Attorney Hollister said there was a CT Supreme Court case that said comparability was not a reason for denial, but rather a matter of opinion that can be dealt with by reasonable changes and conditions.

Retail

Also, at that meeting, the commission noted that 8-30g was silent on commercial uses, referring only to residential.

Attorney Hollister said that while 8-30g did not mention retail use, it did not explicitly prohibit it either.

The applicant said only 4.4% of the development was proposed to be ground floor retail (in both buildings), but that it was instrumental to make the project’s financial plan workable.

Under the statute 8-30g, a commission is allowed to modify an application as long as it does not significantly impact the economics of the development.

Also, the commission and the applicant argued about the retail use setbacks.

“Your dimensioning setbacks to an interior wall, to a use – not to the exterior wall, which to me seems contrary to the way everyone else in the world, in this country, state and this town measures a setback to a property line,” commissioner Nick Macri said on Dec 17.

“If you have a retail use that is so small that it is subordinate to the residential use, you use the residential setbacks,” Hollister said.

Ms Alban asked, “Does 8-30g enable a zoning override of non-residential uses?”

“Yes,” Hollister said.

“Oh really? Where does it say you can override non residential uses?” Alban asked.

“In exactly the same situation we’re dealing with here.”

“It does not say that,” Alban said. “The law is completely silent on commercial uses.”

“There is the statute. Then there is case law. And it has evolved over 30 years. You can’t talk about one without the other,” Hollister said. “You can’t say retail doesn’t appear in 8-30g. End of story.”

In their Jan 13 complaint, Mason Street Partners described the town’s need for affordable housing as “acute,” and noted that 8-30g requires all municipalities to have at least 10% of their housing stock “affordable” per a formula, and that Greenwich’s total percentage is about 5.7%. For comparison the plaintiffs said that back in 1994 the town had 4.5% of its housing deemed affordable.

The complaint claims the reasons listed by the commission for their September 17 denial included: “environmental, traffic, sewer, construction logistics, drainage, fire safety, erosion control, lighting, noise, affordability restrictions and approvability of the retail space, and such that the site plan application provided no basis for the commission to identify a substantial public health or safety basis that would support denial under 8-30g standards,”  – but not the issue of  “comparability” of affordable and market rate units.

Nor, they said, did the commission raise that issue during the resubmission hearings.

They said that they had responded to the concern about comparability by:

“…(a) pointing out that comparability is not a public health and safety concern, and the CT Supreme court has held that comparability is a ‘matter of opinion’ that cannot be a basis for denial; (b) neither 8-30g itself nor any court decision has held that comparability, a court-imposed standard, requires that affordable and market rate units be identical or substantially the same; (c) in the proposed resubmission site plan, even the smallest units will be among the largest in the greater Greenwich market; (d) all units will meet the same required detailed schedule of materials, construction quality and amenities and all unit owners will have equal access to all building amenities (e) all unit owners will have equal access to all building amenities (f) because all affordable unit designations will be permanently designed and all units are for sale, comparability  is less of an issue that it would be with a rental development (g) the affordable units, at a minimum will be 65 to 70 percent of the floor area of the smallest market rate unit; and (h) in light of all these facts, the affordable units will  be acceptably comparable to the market rate units.”

The plaintiff also said in their complaint that conditions 1, 2, 3, 4 and 7 of the approval ran afoul of 8-30g and didn’t constitute health and safety concerns.

Towns cannot deny an affordable housing proposal unless it is necessary to protect substantial public interests in health, safety, or other matters the municipality may legally consider.

That is a high bar.

And the burden of proof is on the municipality.

Screenshot

7 Conditions of Approval

1. One condition is that the affordables have 90% of the average usable square footage of their comparable market rate units.

2. A second condition was that the locations of the affordable units in each of the two buildings be distributed on a pro rata basis in order to be equally desirable.

3. Third,  that the bedroom distribution in the affordables versus market rate units be the same. “That is if 10%of the market rate units are 3 bedrooms, then 10% of the affordable units shall also be 3 bedrooms.”

4. The fourth condition was that prior to a zoning permit request, site plans be modified to eliminate all non-residential uses except those pre-existing at 405 Greenwich Ave.

5. Another condition is that the provided floor plans indicate the location of exterior windows and doors.

6. Also, that the parking agreement be recorded in the land record to link parking on both sites for the exclusive use of tenants in perpetuity.

7. And finally that the common charges be commensurate and proportional for the below market units when compared to the market rate ones.

The plaintiff’s complaint says that during the resubmission hearings, the commission “altered its Sept 17 denial reason based on the presence of retail space in the redevelopment.”

The complaint says  that during the resubmission hearings the commission also changed its demand so that the retail meet all dimensional requirements of the underlying retail/commercial zones, even though only 4.4% of the total floor area of the buildings would be used for retail.

They said eliminating retail was not consistent with case law and was a permissible accessory use that should be reviewed under 8-30g standards.

Further they said it would have an adverse impact on the financial viability of the development.

The plaintiff’s complaint said they hope the court will invalidate the approval conditions imposed by Greenwich P&Z on Dec 17 and impose other relief as the court deems appropriate.

On Jan 16 the case was transferred to the land use docket in the judicial district of Hartford.

See also:

Greenwich P&Z Approves Mason St 8-30g with Significant Modifications

Dec 18, 2024

P&Z Watch – Mason St 8-30g Elephants in the Room Inclusion of Retail & Comparability of Units

Nov 18, 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: 92-Unit Mason Street 8-30g Issues Include Storm Water Drainage, Environmental Justice, Equity & Nonconformities Aug 11, 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