Developer sues over denial of age-restricted housing
By Jason Rowe
VERNON - The developer of a proposed 59-unit subdivision on West Street is suing the Planning and Zoning Commission, saying the commission's reasons for denying his application were "fabricated."
The lawsuit from local developer Kenneth J. Boynton, which was filed Tuesday in the town clerk's office, claims that the PZC's Jan. 19 decision was "arbitrary" and illegal and should be vacated by the court.
The town is scheduled to appear in Superior Court on March 7 to answer the lawsuit, which was prepared by Vernon lawyer Dorian R. Famiglietti, who represented Boynton in his subdivision application.
The lawsuit asks the court to reverse the commission's decision and approve Boynton's application or vacate the decision and send it back to the PZC for a "full, fair, and impartial hearing" subject to zoning regulations that existed when Boynton filed his application.
Boynton had proposed to construct 59 units of housing for adults 55 and older on 42 acres off West Street.
After a lengthy public hearing that stretched over several meetings and involved a number of neighbors who opposed the project, the PZC voted 4-3 to deny Boynton's application.
In their denial, commission members cited regulations that require age-restricted housing developments to have "accessibility" to shopping and bus service.
Commission members also expressed concern about traffic headaches in the West Street area that could be created by the new community and ongoing development in Ellington.
But in his lawsuit, Famiglietti said those reasons were not valid.
Famiglietti said that in the past the PZC had approved age-restricted housing developments without regard to their proximity to shopping and other services.
"The stated grounds for denial of the development application were either unsupported by the weight of the evidence (i.e. hazardous traffic conditions on West Street) or in direct conflict with the commission's actions and express findings on multiple prior 'housing for the elderly' applications," Famiglietti wrote.
"That the commission had to result to relying on reasons for denial that were unsubstantiated or in direct conflict with multiple prior actions of the commission is evidence of the commission's predisposition to deny the development application regardless of the evidence," Famiglietti went on to write. "Such predisposition of the commission precluded the applicant from receiving a fair and impartial hearing on the development application."
The lawsuit also claims that one or more of the commission members who voted on the application had inadequate knowledge of the application because they did not attend all public hearings.
Boynton also claims that at least one of the commission members expressed an "extreme" bias against the application by repeatedly expressing a desire to approve amendments to the zoning regulations that would remove special provisions for age-restricted housing.
Those provisions still allow age-restricted housing, but at a lesser density.
Moments after the PZC rejected Boynton's application, the commission unanimously approved amendments to the zoning regulations, effectively outlawing the type of development proposed by Boynton.
"The commission, in essence, fabricated reasons for denial of the development application," Famiglietti wrote. "Then, immediately, after denying the development application, the commission approved its own application for regulation amendment, which prevents Boynton from reapplying for approval of the development application. This conduct is evidence of the commission's predisposition to deny the development application."
Town Planner Thomas J. Joyce Jr. said Thursday that he disagreed with Boynton's contention that he did not receive a fair hearing.
Joyce said he never heard a commission member state that he was voting against the application because he no longer wanted age-restricted housing in town.
"They addressed his application before they passed their motion to eliminate the district," Joyce said. "I heard them make specific reasons for denial."
Boynton's application stirred strong opposition from neighbors, notably a Tracy Drive couple who has filed a lawsuit against the town challenging two previous land-use commission decisions relating to Boynton's proposal.
Fred Goff and his wife, Barbara, were vehement opponents of Boynton's proposal, which included a 13-lot residential subdivision which would be accessible via a new roadway to be constructed on a parcel owned by the couple.
The couple is suing the Inland Wetlands Commission, saying its September approval of Boynton's plan was improper.
And in December, the couple filed suit against the PZC, arguing that the commission did not follow its own regulations when it approved the subdivision.
The couple also is disputing Boynton's contention that he has a right to construct the roadway on a right-of-way located on their property.
©Journal Inquirer 2006