From 15% to 1.8%: The Withering Away of Wilton Center’s Affordable Housing Goals

“I think at a minimum, the zoning overlay has 10% affordability baked into it, and then if there is some kind of bonus, it would go up to 15 [percent] or whatever number we determine. But the baseline has got to be 10 [percent]… up to four stories, you need to have 10% [affordable].”

The above quote is a comment by Planning and Zoning Chair Rick Tomasetti on Dec. 6, 2022 during a meeting of the Greater Wilton Center Master Plan subcommittee. He was explaining the details of a new zoning overlay that would incentivize developers to provide affordable housing or other “exceptional public benefits” in exchange for building higher-density — larger and/or taller — buildings.

By the time the zoning overlay was passed nearly a year later, not only had that 15% target for buildings seeking a fifth floor bonus been reduced to 12%, but the requirement to build 10% affordable housing on the entire project regardless of any density bonus has disappeared entirely. The latter issue at least seems to be a genuine error that went unnoticed by everyone involved in the master plan process — everyone, that is, except for Wilton Center’s largest land owner, Kimco Realty.

Earlier this year, Kimco applied for a zone change and special permit to redevelop the southern portion of its Wilton Center campus (15-21 River Rd.) as a 168-unit two-building residential complex with ground floor retail along the street.

As GOOD Morning Wilton previously reported, during P&Z’s Sept. 23 meeting, Tomasetti asked Kimco representatives how many affordable units it was required to build apart from the density bonus. The answer, project engineer Craig Flaherty explained, was none. By all appearances, the company seems to have been the first to spot the error.

GMW reached out to Tomasetti and Town Planner Michael Wrinn asking for comment on this matter on Sept. 23. We did not receive a response or acknowledgement to that outreach. A follow up email sent on Oct. 17 before publishing this article similarly has received no reply as of deadline.

Now that the application has been submitted, Kimco has the right to apply using the erroneous zoning overlay passed last year and is not beholden to any corrections P&Z may wish to make going forward.

The details became murkier still this week as the Tuesday, Oct. 15 meeting of P&Z introduced yet more confusion over the facts of the application, the regulations themselves, and the P&Z Commission’s purview.

Can three affordable units be considered an “exceptional” public benefit?

This week’s discussion centered around Kimco’s case that it has provided “exceptional public benefits” as described in the zoning overlay and should be permitted to build a fifth story on Building B, which sits behind the project’s main River Rd. building.

Kimco has argued that the following elements of the proposal together warrant the ‘exceptional’ label:

• Providing three affordable housing units total in the complex
• Offering that the town or local non-profits may close down the interior “Village Drive” block for use in public gatherings on a seasonal basis
• Promising to pursue LEED Silver certification for sustainable development.

In a round robin of comments, the Commissioners weighed in on the project, with Commissioners Mark Ahasic, Ken Hoffman, and Anthony Cenatiempo all noting that they want to see a higher level of affordability if the project is to be considered an exceptional public benefit. None of the three were members of the subcommittee responsible for developing the master plan and resulting zoning overlays.

In his comments, Commissioner Eric Fanwick floated the idea of approving the application but including a condition that a higher level of affordability must be offered than what Kimco has proposed. He conceded that getting the “full 12%” out of Kimco seemed unlikely but suggested five or six apartments might be a reasonable condition.

In response, Wrinn cautioned, “I think we would have trouble pointing to something in the regulation that says we can go over the 12%.”

However, out of 168 total units, Fanwick’s proposal to require six or seven units be affordable would not be “over 12%.” It would in fact, as Fanwick framed it, be under the 12% requirement.

The full 12% affordability rate for the Kimco redevelopment would either be nine units (if the “project” is defined as just Building B where the fifth story would be located) or 21 units (if the “project” is considered, as Kimco has always presented it, as a single application for a two-building complex.)

In that same exchange, Wrinn also referred to Kimco “adding 12% up top” as one piece of the developer’s case for the project offering exceptional public benefits.

Together his comments seemed to suggest that Wrinn interpreted the regulation as stating that only 12% of the units on the bonus floor needed to be affordable. Under this line of thinking, with nine fifth-story units, offering three affordable units would hit a 33% affordable rate — higher than 12% and therefore “exceptional.”

What Does the Zoning Overlay Actually Say?

The Wilton Center Zoning Overlay lays out the rubric by which the Commission should evaluate eligibility for a bonus floor with examples of possible ‘exceptional public benefits’:

Bonusable Building Height [Page 18]: The Planning and Zoning Commission may grant Bonusable Building Height as described in Table E3 for projects that provide exceptional public benefits*, such as 12% affordable housing, preservation of important historical structures, additional civic space and exceptional levels of sustainability in construction, building performance, and landscaping design. [*emphasis added]

The regulation states that the examples given refer to elements that a project offers as a whole.

In addition, it’s unlikely the other examples make sense as standards that would be applied only to a bonus floor.

• A bonus floor cannot offer exceptional landscape design or preserve an important historical building on its own.
• It cannot offer meaningfully different construction standards and performance when it comes to sustainability, distinct from the floors below it.
• While theoretically indoor public civic space could be offered on a bonus floor (a practice not uncommon in Privately Owned Public Spaces in New York City), the Wilton Center overlay regulations specifically define “civic space” in that document as referring to open space only.

Seen this way, the 12% affordability rate (like the other examples on the list) is an example of an exceptional public benefit that a project as a whole could provide as a way to justify receiving a fifth story bonus.

In contrast, what Kimco’s application offers is either an affordability rate of 4.3% — if “the project” is just Building B — or 1.8% if “the project” is both buildings together.

But what if the overlay did mean to apply the 12% affordability target to only units on the bonus floor? If so, it would mean that essentially the maximum number of affordable units that the zoning overlay would challenge projects to provide would be approximately one unit, considering the likely size of buildings that would be built in Wilton Center.

In the case of Kimco, by far the largest property owner in Wilton Center, each of these buildings will likely be the largest ones constructed in the neighborhood for at least the next several decades. Because the overlay requires that top floors have a smaller footprint than those below, even with their size only nine units will fit on the bonus fifth floor Kimco is proposing — and 12% of nine units is 1.08.

GOOD Morning Wilton has reached out to both Wrinn and Tomasetti for comment on the the subcommittee’s goals in providing this example of an exceptional public benefit and whether this case may have watered down the idea of generating something more substantial than roughly one or two affordable units per project, or if the 12% affordability target is meant to apply to the entire project.

Tomasetti’s December 2022 comments seem to reinforce the latter.

Neither Wrinn nor Tomasetti have responded as of deadline.

More confusion on location of affordable units

Additional contradictions appeared in further discussion around the location of the proposed affordable units. At one point, Hoffman asked to confirm his understanding that Kimco was only offering that the affordable units would be located somewhere in the building, not that they would be on the fifth floor itself.

Wrinn replied, “I believe their testimony at the hearing was that they would have them on that [fifth] floor, or — at the Commission’s discretion — distribute them throughout the building.”  

But Hoffman’s original understanding was correct. Representatives from Kimco explicitly stated during the Sept. 23 P&Z meeting that the company was not proposing to dedicate any of the fifth floor units as affordable. Attorney Casey Healy said, “We’re not committing to the three units being on the fifth floor.” Engineer Craig Flaherty later said, “We would be willing to do up to three [affordable] housing units somewhere within Building B.”

Top floor units traditionally rent at higher rates than lower floors, so it would be exceedingly unusual for a new building to locate its affordable units on the highest floor.

Finally, how much freedom does P&Z have to approve or deny?

In the exchange with Fanwick over the idea of passing a resolution approving the project only with the condition that Kimco hit a higher level of affordability, Wrinn cautioned that P&Z would need to “look at the regulation and see where in the regulation it gives us the right to add something like that.”

But later, Wrinn supported Tomasetti’s idea of approving the project with a condition that Kimco must open the proposed “Village Drive” interior street for public gatherings more than the 2-4 times a year the company had offered. “I suspect if you put it in as a condition to add more [days], I don’t suspect that would be an issue,” Wrinn said.

Here, Fanwick interjected. “Excuse me for interrupting, but we can push a condition to increase [the use of] that [Village Drive] space, but we cannot push a condition to increase the number of affordable housing units?”

Wrinn again seemed to return to his new interpretation of the regulation. “We have that 12% in black and white, that’s the difference.” But based on what the Zoning Overlay appears to actually say, the project is currently proposed to offer either 1.8% or 4.3% affordability — not 12%.

But even setting that aside, the regulation only states that the Commission may grant a fifth story bonus to a project that provides exceptional public benefits. It does not state that the Commission will or must do so, even for a project that does include one of the examples listed.

P&Z chose to continue deliberations at its next meeting on Monday, Oct. 28. The Commission may choose to vote up or down on the application during this meeting.

Looking Ahead

Before concluding the meeting, the Commission briefly discussed an agenda item introduced by Hoffman at the outset of the meeting: that the Commission discuss a number of reform and public dialogue matters:

• Affordable Housing: At Hoffman’s request, the Commission agreed to discuss the mechanisms for updating the Wilton Center zoning overlay and underlying zoning to require affordable housing going forward. As mentioned above, these changes would not apply to the Kimco redevelopment, far and away the largest project in the overlay area, because the application has already been filed.

• Public Comment: Hoffman requested that the Commission pursue the concept of quarterly or otherwise regular meetings in which members of the public have a platform to offer general feedback about zoning and planning matters. Currently, the Commission’s meeting rules mean that residents can only make public comment in a meeting about specific projects under consideration, and only once the presentation by applicants has fully concluded.

• Data about the Impact of New Developments: Hoffman requested that P&Z work with the Board of Finance and possibly the Board of Selectmen to gather data about the overall cost/benefit analysis of new multifamily residential developments. Tomasetti explained the quad-board meeting usually held annually would be a good forum for this discussion.

• Conflicts of Interest: Hoffman proposed that the Commission provide some kind of open statement about the process and protocols governing applications, to alleviate any public concern about bias and conflicts of interest.