Civil rights suit re-filed against Planning & Zoning Commission, chairman

A lawsuit against the town’s Planning & Zoning Commission and its chairman has been re-filed by a former Darien resident and would-be 8-30g affordable housing developer claiming his civil rights have been violated.

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.

• Town denied appeal on another 8-30g project

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.

The development, proposed by property-owner Hamer, included a four-unit, 2,981 square-foot building and a six-unit, 5,025 square foot building, and about 280 feet of driveway and parking area. Three units would have been be affordable.

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.

Hamer was trying to use state statute 8-30g to build housing on Oak Crest. 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.

Darien was granted a four year moratorium from state statute 8-30g in October of 2010.

The town filed a motion to dismiss the case in February, saying the statute of limitations had run out.

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.”

Hamer was given 14 days to refile the Fourteenth Amendment lawsuit and granted a deadline extension.

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.

The lawsuit also says that the defendants “have followed a pattern of official misconduct to exclude African-Amerians from the Town of Darien, by keeping housing costs prohibitively high and preventing the construction of affordable housing units which would be attractive to minorities.”

The lawsuit also says P&Z “secretly colluded with private residents residing near the subject property in bringing a meritless lawsuit against the plaintiffs for the purpose of increasing the plaintiffs’ development costs and making it economically impossible for the plaintiffs to proceed.”

Citing potentially adverse impacts on the Goodwives River, the Environmental Protection Commission unanimously denied the Oak Crest Villas proposal in November 2009. Peter Hillman, then chairman of the EPC, said that the proposal of 10 units in two buildings and at least 20 parking spaces at the end of the dead-end Oak Crest would have increased the property’s impervious surface from 17% to 52%.

P & Z followed the same path, denying 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.

P & Z also pointed out that the project was “so unreasonable” the now-dissolved Darien Affordable Housing Advisory Commission “took the unprecedented action of opposing this affordable housing application.”

Conze declined comment.

Town Counsel Wayne Fox told The Darien Times that the town had filed another motion to dismiss on the same grounds.

Williams told The Darien Times he was aware that the town had filed another motion to dismiss but had not reviewed it yet.

“The judge just wanted more detail in the complaint, and I have provided that. The defense, as expected, has again moved to dismiss. I have not yet had an opportunity to review the motion but of course will be opposing it,” he said.

“I think we have enough here to justify giving Mr. Hamer his day in court,” Williams said.

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