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Top stories of 2012: No. 2 — A year in affordable housing, lawsuits

Affordable housing has once again remained a top issue in Darien in 2012, as have lawsuits that go along with it.

The town was issued a four-year moratorium from state statute 8-30g in October of 2010. This statute says that if a town’s affordable housing stock is less than 10%, then developers can overstep local zoning laws for proposals that include affordable housing.

The Department of Justice closed a two-year investigation into Darien’s affordable housing practices at the end of August, determining “no further action is warranted at this time.”

In May 2010, the Department of Justice informed the town it was investigating its inclusionary zoning policy, in particular the “priority populations” clause, which would make new affordable units first offered to those connected to the town. In the fall of 2010, P & Z voted to remove the “priority populations” clause.

Throughout the investigation, the Department of Justice told The Darien Times its investigation remained ongoing, and thus could not comment on the investigation’s scope. A Freedom of Information Act request for more information following the close of the investigation filed by The Darien Times remains unanswered four months later.

The inclusionary zoning policy requires those applicants building market-rate housing to contribute to the town’s affordable housing stock by either adding affordable units to the project or contributing funds toward building it elsewhere.

The town approved its first project that will make use of inclusionary zoning with a mixed used project on the Post Road proposed by local developers David Genovese and Penny Glassmeyer. The town opted to ask Genovese and Glassmeyer to make a payment after the developers asked the town what would work best.

Chris and Margaret Stefanoni, the town’s most well-known 8-30g applicants, continued their efforts in 2012. The town lost its legal battle over the couple’s 8-30g proposed project on Leroy and West Avenues earlier this year. The town’s request for an appeal on that decision was denied by the state’s Appellate Court.

After a years-long court battle, last March, a state judge ruled that Darien’s need for affordable housing outweighs the town’s objections to the housing project proposed by Chris and Margaret Stefanoni in 2008, which were safety related.

The town said the new structure would cause sightline problems at the busy intersection. In sustaining the Stefanonis’ appeal of the town Planning & Zoning Commission’s denial of the proposal, Judge Henry Cohn of the New Britain State Superior Court said the town had “not met its burden under state statute 8-30g.”

In 2008, the couple originally proposed a 16-unit, age-restricted condominium complex on their 0.47 acre property at the corner of Leroy and West. Five of the units would be “affordable,” which allowed the Stefanonis to propose the project under the state’s affordable housing statute. The units would also be limited to residents 62 and older.

In September, Chris Stefanoni said he was interested in a possible compromise with the town on his projects and said he might have a buyer for one of, if not all three of his current projects.

Earlier this year, Wayne Fox, town attorney, said there is no automatic right of appeal in the case, and in order for it to be granted, at least two of the nine state Appellate Court judges have to agree the case is worthy.

In the appeal, the town said P & Z commissioners “expressed their desire to have affordable housing on the site.”

The P & Z Commission denied the application based on the project’s density in addition to other factors. In the resolution, the commission said that it was not opposed to the location at the corner of Leroy and West for affordable housing.

The commission gave the Stefanonis the option to revise the plan to their specifications, which the couple declined — instead opting to appeal the decision in court. Judge Cohn addressed the safety concerns cited by P & Z, which said the site would lack a clear visibility for motorists, bicyclists and pedestrians once the project was completed.

This project was proposed before the moratorium took effect. The couple has two other proposals in the appeals process. The Stefanonis proposed two 8-30g developments last year in time to be grandfathered in before the moratorium, one on Hoyt Street and one on Pheasant Run in Tokeneke.

Both were rejected by the Planning & Zoning Commission last year, unless, like the Leroy Avenue project, the Stefanonis made extensive modifications — an option they once again declined, choosing the appeal process instead.

Another lawsuit against the town’s Planning & Zoning Commission and its chairman was also filed in late 2011 by a former Darien resident and would-be 8-30g affordable housing developer claiming his civil rights have been violated. Though part of the suit was dismissed, the suit was re-filed earlier this year.

A United States District Court judge in September dismissed the earlier version of the lawsuit filed by Chris Hamer that accused the town’s Planning & Zoning Commission and its chairman of discriminating against minorities.

Hamer sued P & Z and its chairman, Fred Conze, accusing both of discriminatory practices against minorities — specifically blacks — at the end of 2011. The town had turned down the project on Oak Crest because of its potentially adverse impact on the Goodwives River, among other reasons.

Previous lawsuits against the town’s Environmental Protection Commission and Planning & Zoning Commission filed by Hamer were dismissed by New Britain Superior Court in February 2011, after Hamer’s property was foreclosed upon.

In arguing against the motion to dismiss, Hamer’s attorney John Williams said that the cases were not “ripe” or ready to be litigated on the Supreme Court level, until the Superior Court had rendered a decision.

In September, Judge Warren Eginton, a senior United States District judge, agreed with the town’s motion to dismiss, saying the “plaintiffs’ contention that their claims were not ripe prior to the Superior Court appeal” is “erroneous.”

The judge also pointed out the project was denied on Jan. 8, 2009, and didn’t file the current lawsuit until Nov. 29, 2011, “almost two years after the one year deadline.” In the judge’s decision in September, he said, “the plaintiffs characterize their action as having been brought pursuant to the Fourteenth Amendment, as enforced through Section 1983.

“Specifically, plaintiffs claim that defendants’ conduct violated the plaintiff’s rights to equal protection of the laws as guaranteed by the Fourteenth Amendment.” The judge pointed out that Hamer claimed the town’s conduct was intended to discriminate against expected buyers on the basis of race.

He also said that “to state an equal protection claim there must be allegations that a government actor applied the law against the plaintiffs differently from other persons similarly situated.” The judge dismissed the Fourteenth Amendment claim because Hamer made “no mention of differential treatment from those similarly situated.”

In the refiled lawsuit, Hamer and his attorney John Williams point out that as of the 2010 census, Darien’s population was 20,732, with only 104 African Americans. In contrast, the lawsuit states that Stamford’s African-American population is 21.3% and Norwalk’s African-American population is 22.8%. Stamford and Norwalk are both neighboring towns.

P & Z denied the proposal because the plan was not in accordance with the town Plan of Conservation & Development, also citing the problems with the location on a residential, dead-end street.

In terms of increasing Darien’s affordable housing in 2012, the redevelopment of Allen O’Neill, now called “The Heights at Darien,” will double the current density of the project from 53 to 106 units.

Proposed senior affordable housing on the site of the current senior center, which is scheduled to move to Town Hall, has been put on hold pending a final enrollment needs assessment by the Darien School District.

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