Opinion
Nos. HHB CV 07 4014281S, HHB CV 07 4013545S
June 11, 2009
MEMORANDUM OF DECISION
I PROCEDURAL HISTORY
The plaintiff, CMB Capital Appreciation, Inc. (CMB), is the owner and/or contract purchaser of approximately forty-two acres of vacant land located north of Half Mile Road, which is mostly in the southeast corner of North Haven and partially in the northwest corner of East Haven (the property).
These appeals by the plaintiff are based on denials of applications for site plan approval before the respective planning and zoning commissions of both North Haven and East Haven (collectively PZCs; individually the North Haven PZC and the East Haven PZC). The parties have agreed that as a matter of procedure, for purposes of deciding these appeals, these two appeals will be considered together. Although the impact of each of the plaintiff's applications on each of the respective towns is different, there is a unity of interest between each application that is apparent and tangible and needs to be addressed in one decision.
The application before the North Haven planning and zoning commission was amended by the plaintiff on December 28, 2006 pursuant to General Statutes § 8-30g(h).
A. The North Haven Applications
On June 8, 2006, CMB submitted to the North Haven PZC an application for site plan approval for "an affordable active lifestyle community development," to be developed pursuant to General Statutes § 8-30g (first application). The proposed development is known as "Indian Ridge" and is situated in an R-40 zone in each town (plan). ( CMB Capital Appreciation, LLC v. North Haven Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 07 4014281 [North Haven appeal], Return of Record [ROR], Item 1.)
The first application proposed construction of a 350-unit condominium complex. Under the plan, 30 percent of the residential rental units were to be designated as "Housing Opportunity Units" that would meet the criteria for affordable housing as defined in § 8-30g. Pursuant to the requirements of the statute, CMB proposed that 52 of the 105 affordable units be affordable for 40 years to families earning 60 percent or less of the median income for the North Haven area or the state median income, whichever is less, and that 53 of the 105 affordable units be affordable for 40 years to families earning 80 percent or less of the median income for the North Haven area or the state median income, whichever is less. (North Haven appeal, ROR, Item 1.) North Haven has less than 5 percent of qualified affordable housing per 2007 index.
Because Indian Ridge was to accommodate an active adult population aged 55 years or older, the first application also proposed construction of certain amenities. These amenities included a clubhouse, a banquet facility with associated parking spaces, a pool and a pitch and putt golf course. (North Haven appeal, ROR, Item 153; Item 158, p. 29.)
The North Haven PZC held a hearing on the first application on September 11, 2006, October 5, 2006 and November 13, 2006; (North Haven appeal, ROR, Items 120 and 121); and a hearing on the amended application on various dates after December 28, 2006. The North Haven inland wetlands commission (IWC) held a hearing relating to the proposed development on August 23, 2006; (North Haven appeal, ROR, Items 9 and 10); September 18, 2006; (North Haven appeal, ROR, Items 41 and 42); September 27, 2006; (North Haven appeal, ROR, Items 54 and 55); October 12, 2006; (North Haven appeal, ROR, Items 89 and 90); and November 8, 2006; (North Haven appeal, ROR, Items 114 and 115). The North Haven water pollution control authority (WPCA) also held hearings relating to the proposed development on September 25, 2006; (North Haven appeal, ROR, Item 52); October 11, 2006; (North Haven appeal, ROR, Item 80); October 23, 2006; (North Haven appeal, ROR, Item 103); and October 30, 2006; (North Haven appeal, ROR, Item 113).
On December 5, 2006, the North Haven PZC voted to deny the first application for the following reasons:
"1) Based upon the WPCA's (4-0) negative referral, the applicant's sewer connection application would be denied by the WPCA.
"2) A negative drainage report and inland wetlands commission's negative referral would establish the possible existence of a significant drainage problem.
"3) Letters from the fire chief and Luchs Consulting Engineers suggesting the probability of inadequate access for emergency vehicles/personnel and that the greater volume of vehicles was likely to lead to accidents with an increased need for emergency services.
"4) Letter from legislative representatives advising that the proposed development violated Smart Growth and the State Plan of Conservation and Development." (North Haven appeal, ROR, Item 152, p. 1.)
The North Haven PZC further stated that its decision "was based upon the application and the entire record, including the testimony given at the Planning and Zoning Commission hearings, the records from the Inland Wetlands Commission and Water Pollution Control Authority hearings, respectively (all of which were made part of the Planning and Zoning Commission record), the Zoning Regulations of the Town of North Haven and the Plan of Conservation and Development for the Town of North Haven." (North Haven appeal, ROR, Item 152, p. 2.)
On December 28, 2006, CMB filed an amended application pursuant to § 8-30g(h), which, among other changes, increased the proposed number of units from 350 to 396 and removed the age restriction. (North Haven appeal, ROR, Item 153; Item 158, pp. 43-61; Item 206, pp. 1-2.) The North Haven PZC, IWC and WPCA held hearings on the amended application. (See North Haven appeal, ROR, Items 155, 157, 158, 170, 173, 174, 175, 182, 185, 186 and 203.)
General Statutes § 8-30g(h) provides in relevant part: "(h) Following a decision by a commission to reject an affordable housing application . . . the applicant may, within the period for filing an appeal of such decision, submit to the commission a proposed modification of its proposal responding to some or all of the objections or restrictions articulated by the commission, which shall be treated as an amendment to the original proposal . . . The filing of such a proposed modification shall stay the period for filing an appeal from the decision of the commission on the original application . . ."
On March 12, 2007, the North Haven PZC denied the amended application. (North Haven appeal, ROR, Item 206.) Notice of the North Haven PZC's decision on the amended application was published on March 22, 2007. In denying the modified application, the North Haven PZC stated the following reasons:
"1) Based upon the WPCA's (4-0) negative referral, the Applicant's sewer connection application will probably be denied by the WPCA. The modifications of adding forty-six units to the development and eliminating the age restriction only exacerbated the problem relative to the original application.
"2) The drainage report from Luchs Consulting Engineers and the Inland Wetlands Commission's negative referral establish the existence of a significant/probable drainage problem.
"3) Letters from the Fire Chief and Luchs Consulting Engineers establish the probability of inadequate access for emergency vehicles/personnel and the greater volume of vehicles is likely to lead to accidents with an increased need for emergency services, yet the Applicant withdrew road improvements it previously agreed were necessary. The modifications of adding forty-six units to the development and eliminating the age restriction only exacerbated the problem relative to the original application.
"4) Letter from Senator Len Fasano and Representative Steve Fontana advising that the proposed development violates Smart Growth and the State Plan of Conservation and Development." (North Haven appeal, ROR, Item 206, pp. 1-2.)
B. The East Haven Application
CMB filed its site plan application for the East Haven portion of the site with the East Haven PZC on August 11, 2006. ( CMB Capital Appreciation, LLC v. East Haven Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 07 4013545 [East Haven appeal], ROR, Item 1.) In its application to the East Haven PZC, CMB sought site plan approval for "[c]onstruction of [a] driveway, recreational golf holes, and roadway improvements associated with" its proposed affordable housing development that was to be located primarily in North Haven. (East Haven appeal, ROR, Item 1.) The East Haven PZC held a hearing on the application on September 6, 2006, November 1, 2006, December 6, 2006, January 3, 2007 and February 7, 2007. (East Haven appeal, Supplemental [Sup.] ROR, Items 1-5.) On February 7, 2007, the East Haven PZC denied the application. (East Haven appeal, Sup. ROR, Item 5, pp. 18-19.) In their briefs, CMB and the East Haven PZC agree that the East Haven site plan application was denied for the following reasons:
"1) The application was in error because it concerned the entire 40 acre project and not just the 6.53 acres located in East Haven.
"2) The project would place significant strain upon Town services, including emergency services without compensating benefit.
"3) The project, as proposed, would result in a 250% increase in traffic on the adjoining roads.
"4) The plan failed to properly provide for storm water runoff.
"5) The applicants failed to provide an Inland Wetlands and Watercourses application.
"6) The plan failed to address traffic safety considerations including site distances and school bus traffic."
(East Haven appeal, CMB's brief filed June 2, 2008, p. 6; accord, East Haven PZC's brief filed April 17, 2008, p. 3.) Like North Haven, East Haven is not exempt from the requirements of the appeal provisions of § 8-30g, because less than 7 percent of all dwelling units in East Haven meet the criteria set forth in § 8-30g (k).
General Statutes § 8-30g(k) provides in relevant part: "Notwithstanding the provisions of subsections (a) to (j), inclusive, of this section, the affordable housing appeals procedure established under this section shall not be available if the real property which is the subject of the application is located in a municipality in which at least ten per cent of all dwelling units in the municipality are (1) assisted housing, or (2) currently financed by Connecticut Housing Finance Authority mortgages, or (3) subject to binding recorded deeds containing covenants or restrictions which require that such dwelling units be sold or rented at, or below, prices which will preserve the units as housing for which persons and families pay thirty per cent or less of income, where such income is less than or equal to eighty per cent of the median income, or (4) mobile manufactured homes . . ."
The plaintiff appeals from the denials of both the first and amended North Haven site plan applications by the North Haven PZC and the denial of its East Haven site plan application by the East Haven PZC.
II JURISDICTION A. Aggrievement
Appeals from denials of affordable housing applications are governed by General Statutes § 8-30g(g). "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989). "[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest . . .
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).
Pursuant to General Statutes § 8-30g(f), "[a]ny person whose affordable housing application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units in a set-aside development, may appeal such decision pursuant to the procedures of this section." Thus, under § 8-30g(f), an affordable housing applicant whose "application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units in a set-aside development" is statutorily aggrieved and may initiate an appeal from a decision of a commission.
At trial, CMB introduced evidence that it is the owner of a substantial portion, and the contract purchaser of the remaining portion, of the subject forty-two acre site in North Haven and in East Haven and that it was the applicant whose affordable housing applications were denied. The PZCs have not offered any evidence to contradict CMB's evidence concerning aggrievement. Accordingly, the court finds that CMB is statutorily aggrieved pursuant to § 8-30g(f), and, therefore, has standing to maintain this appeal.
B. Timeliness and Service of Process
General Statutes § 8-30g(f) provides in relevant part that an affordable housing appeal "shall be filed within the time period for filing appeals as set forth in section 8-8, 8-9, 8-28, 8-30 or 8-30a, as applicable . . ." Pursuant to General Statutes § 8-8(b), an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the [commission's] decision was published . . ." Under General Statutes § 52-57(b)(5), process in civil actions "against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law," shall be served "upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
The North Haven PZC published legal notice of its denial of the plaintiff's first application on December 18, 2006. (North Haven appeal, Complaint, ¶ 7; Answer, ¶ 7.) On December 28, 2006 pursuant to § 8-30g(h), CMB filed a modification of its proposal with the North Haven PZC; (North Haven appeal, ROR, Item 153); thereby staying the period for filing an appeal of that decision. See General Statutes § 8-30g(h). Thereafter, the North Haven PZC denied the modified application and published notice of its decision on March 22, 2007. (North Haven appeal, Complaint, ¶ 11, and Answer, ¶ 11.) CMB commenced the North Haven appeal by service of process on the town clerk for the town of North Haven on April 4, 2007. (North Haven appeal, marshal's return.) Accordingly, the North Haven appeal is timely as to the North Haven PZC's decisions on both CMB's first application and its amended application, and service of process was proper.
The East Haven PZC published legal notice of its denial of the plaintiff's site plan application on February 15, 2007. (East Haven appeal, Complaint, ¶ 7; Answer, ¶ 7.) CMB commenced the East Haven appeal by service of process on the town clerk for the town East Haven on March 1, 2007. (East Haven appeal, marshal's return.) The East Haven appeal, therefore, is also timely and service of process was proper in that appeal as well.
III JUDICIAL REVIEW
"[I]n conducting its review in an affordable housing appeal, the trial court must first determine whether `the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record.' General Statutes § 8-30g(g). Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted. If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission's decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development." (Internal quotation marks omitted.) Carr v. Planning Zoning Commission, 273 Conn. 573, 596-97, 872 A.2d 385 (2005).
General Statutes § 8-30(g) provides: "Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1)(A) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development, or (2)(A) the application which was the subject of the decision from which such appeal was taken would locate affordable housing in an area which is zoned for industrial use and which does not permit residential uses, and (B) the development is not assisted housing, as defined in subsection (a) of this section. If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it."
The Supreme Court has held that, under General Statutes § 8-30g, "with regard to the question of whether the zoning commission was required to establish that there was sufficient or substantial evidence in the record to support its decision, the correct test is whether [the commission] met the lesser burden of adducing sufficient evidence to support its decision . . . The commission's only burden [is] to show that the record before the [commission] support[s] the decision reached . . . and that the commission did not act arbitrarily . . . illegally . . . or in abuse of discretion . . .
"[The Supreme Court] further defined sufficient evidence in this context to mean less than a preponderance of the evidence, but more than a mere possibility. [It] stated that the zoning commission need not establish that the effects it sought to avoid by denying the application are definite or more likely than not to occur, but that such evidence must establish more than a mere possibility of such occurrence . . . Thus, the commission [is] required to show a reasonable basis in the record for concluding [as it did]." (Citations omitted; internal quotation marks omitted.) Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 584-85, 735 A.2d 231 (1999).
"`[A] fundamental purpose of the affordable housing statute was to eliminate deference to commission judgments.' . . . To accomplish this goal, the legislature `recommended a new review procedure in which the reasons given by a commission for its adverse decision will have to be persuasively supported in the record . . .'" (Citation omitted.) AvalonBay Communities, Inc. v. Planning Zoning Commission, 103 Conn.App. 842, 845, 930 A.2d 793 (2007), quoting Quarry Knoll II. Corp. v. Planning Zoning Commission, 256 Conn. 674, 716, 780 A.2d 1 (2001). "In applying § 8-30g(g), we are mindful that the commission `remains the finder of fact and any facts found are subject to the "sufficient evidence" standard of judicial review.' . . . The sufficient evidence standard under the first prong of § 8-30g(g) requires the commission `to show a reasonable basis in the record for concluding that its decision was necessary to protect substantial public interests. The record, therefore, must contain evidence concerning the potential harm that would result if [the application were granted] and concerning the probability that such harm in fact would occur.'" (Citation omitted.) AvalonBay Communities, Inc. v. Planning Zoning Commission, supra, 103 Conn.App. 846-47, quoting River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 24, 26, 856 A.2d 973 (2004).
IV DISCUSSION A. The North Haven PZC's Denials
In denying the amended application, the North Haven PZC cited four reasons. (ROR, Item 152.) In accordance with the standard of review set forth above, the court must first determine whether the record contains sufficient evidence to support the reasons cited by the North Haven PZC for its decision.
1. The North Haven PZC's First Reason
The first reason offered by the North Haven PZC for denial of the first application was as follows: "Based upon the WPCA's [Water Pollution Control Authority's] (4-0) negative referral, the Applicant's sewer connection application will probably be denied by the WPCA." (ROR, Item 152, p. 1.) In denying the plaintiff's amended application, the North Haven PZC repeated this reason, adding: "The modifications of adding forty-six units to the development and eliminating the age restriction only exacerbated the problem relative to the original application." (ROR, Item 202, pp. 1-2.)
In support of this reason, the defendant North Haven PZC argues that "limited sewer resources represent a substantial interest in health, safety or other matters which the Commission may legally consider." (North Haven appeal, North Haven PZC's brief, p. 100.) See General Statutes § 8-30g(g) (requiring the commission to prove, inter alia, that its "decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider"). It further contends that "there is substantial evidence in the record that proves that there is a reasonable probability that the WPCA will not approve CMB's sewer connection application. ([Emphasis in original.] North Haven appeal, North Haven PZC's brief, p. 103.) In support of this assertion, the North Haven PZC refers to the record of the proceedings of the North Haven WPCA. (See North Haven appeal, ROR, Items 5, 80-84, 87, 703-109, 112, 113, 123, 155, 173, 182 and 189.) It maintains that the transcript and the minutes from the March 2, 2007 deliberation session of the WPCA reflect that the comments of all four of the members of the WPCA who voted on the referrals were critical of CMB's proposal. (See ROR, Items 182 and 189.)
CMB counters that the North Haven PZC's decision to deny its application based on the WPCA's negative referral was improper because "[a] commission cannot deny or condition an affordable housing application based on requirements that are not provided for in its regulations." (North Haven appeal, CMB's brief, p. 29.) It contends that neither the North Haven PZC's or the WPCA's regulations require a referral from the PZC to the WPCA on a site plan application. It further maintains that it did not submit an application to the WPCA because those regulations do not require an application to be submitted to the WPCA prior to action by the PZC on the site plan application. CMB argues that this reason for the denial "exemplifies the roadblocks set up from the beginning of the PZC hearing process for the purpose of creating a record that would seemingly justify the PZC's denial of both the First Application and the Amended Application." (North Haven appeal, CMB's brief, p. 29.)
CMB further argues that even if the referral to the WPCA was appropriate, the WPCA's speculation regarding the possibility of future overload of the sewer system is not a proper basis for the denial of an affordable housing application. In support of this assertion, CMB relies on Wright v. Woodridge Lake Sewer District, Superior Court, judicial district of Litchfield, Docket No. CV 0043504 (January 7, 1992, Susco, J.) ("While defendants' concerns about preserving sewer capacity for landowners who might wish to develop their properties in the future are and were laudable ones, the choice of limiting the density of development, absent adoption of zoning and planning authority was not reasonable."). CMB also argues that the North Haven PZC ignored the fact that the WPCA stated in its first referral that "[i]t is the [WPCA's] further understanding that the specific issues of design capacity, construction and bonding would be dealt with at the time that a sewer connection application is made to the WPCA." (North Haven appeal, CMB's brief, p. 30, citing ROR, Item 123.) It notes that its attorney, Neil Marcus, pointed out in a letter that "[i]t is illogical to come to the conclusion that the `application will probably be denied by the WPCA' when the WPCA itself had the understanding that issues which were of concern would be resolved when an application [is] filed. It is the WPCA's practice to accept applications for sewer connections only after the site plan has been approved by the P Z." (North Haven appeal, CMB's brief, p. 30, citing ROR, Item 153, Marcus letter, p. 2.) CMB maintains that the North Haven PZC's conclusion that CMB's application for a sewer connection would probably be denied by the WPCA was not reasonable because CMB had not yet filed an application with the WPCA, it was not required to do so, and the WPCA recognized that the specific details of CMB's plan would have to be addressed when the application is filed in the future. Moreover, it contends, the concerns raised by the WPCA in its negative referral on the amended application were addressed by CMB's proposed solutions of installing new pipe or replacing existing pipes with larger pipes to accept flows from the proposed development and a full build-out of the entire sewer shed. (North Haven appeal, CMB's brief p. 31.) For these reasons, CMB maintains, the record does not contain sufficient evidence to support the North Haven PZC's finding that CMB would not have been able to obtain sewer approval from the WPCA.
In its reply brief the North Haven PZC maintains that CMB's argument, that the referral to the WPCA was unauthorized, is without merit. It argues that CMB never objected to the referral and that Attorney Marcus acknowledged the propriety of the referral on the record when he stated that "the Planning and Zoning Commission referred the application to the W.P.C.A., which is proper, for their opinion as to whether or not there's capacity to service this project, all of which is proper." (North Haven appeal, North Haven PZC's reply brief p. 3, citing ROR, Item 175, p. 19, lines 10-13.) It further argues that CMB understood the import of the proceedings before the WPCA because it sought to have members of the WPCA recuse themselves. (North Haven appeal, North Haven PZC's reply brief, p. 3, citing ROR, Item 113, pp. 2-3.) Finally, it argues that even if the regulations of the North Haven PZC and the WPCA do not require a referral, a referral is not improper, "and it is indisputable that the Regulations of each, by their articulated Purpose, anticipate coordination between the two agencies." (North Haven appeal, North Haven PZC's reply brief, p. 3, citing ROR, Item 208, pp. 1, Z-15c, Z-15d, Z-16m, Z-29d; and Item 106, pp. 1 and 5.)
The North Haven PZC also asserts that General Statutes "§ 7-246a specifically contemplates a `request' being made by a water pollution control authority or sewer district for `. . . a determination of the adequacy of sewer capacity related to a proposed use of land . . .'" It maintains that the entity most likely to make such a request is a planning and zoning commission. Implicit in this assertion is the argument that this statute provides planning and zoning commissions authority to refer applications presented to it to a water pollution control authority for a determination regarding the adequacy of sewer capacity. Nevertheless, aside from the North Haven PZC's assertion that § 7-246a provides such authorization, it has provided no authority for this proposition and the language of the statute itself does not support its position. Section 7-246a provides in relevant part: "(a) Whenever an application or request is made to a water pollution control authority or sewer district for (1) a determination of the adequacy of sewer capacity related to a proposed use of land, (2) approval to hook up to a sewer system at the expense of the applicant, or (3) approval of any other proposal for waste water treatment or disposal at the expense of the applicant, the water pollution control authority or sewer district shall make a decision on such application or request within sixty-five days from the date of receipt, as defined in subsection (c) of section 8-7d, of such application or request . . ." This section of the General Statutes merely sets forth a time limitation for action on a sewer application or request. It does not authorize any particular individual or agency to submit an application or request, nor does it provide for any referral procedures.
The North Haven PZC further contends that its determination that a denial by the WPCA would be likely is supported by the record by attempting to distinguish the facts underlying another decision of the Superior Court, Thompson v. Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV 99 0494184 (January 11, 2000, Mottolese, J.). In distinguishing that decision, it notes that there was no indication in that decision that the plaintiff's application was referred to the Stratford water pollution control authority for a capacity analysis. It further notes that the testimony in that case noted a "possibility" of a future overload and that, in the testimony before the WPCA in the present case, the word "probability" was used, rather than "possibility." Finally, it argues that it is not the role of a planning and zoning commission to second-guess a decision of a water pollution control authority. The issue is not whether the WPCA was correct, but whether approval was likely. It maintains that the WPCA's two negative referrals constitute opposition by a coordinate agency sufficient to support its determination that the WPCA would not have approved a sewer application by CMB.
The court agrees with CMB that the WPCA's negative referral does not constitute sufficient evidence to support the defendant North Haven PZC's first stated reason, that CMB's "sewer connection application will probably be denied by the WPCA." As CMB notes, at the time of the WPCA's negative referrals, CMB had not yet submitted a formal sewer application to the WPCA. Also, unlike other cases in which mere "expressed opposition" to a project by a coordinate agency was sufficient to support a denial of an application by a zoning commission, the evidence in the record of this appeal does not indicate that a sewer application would not be granted; it merely indicates that the applicant had not yet, at the time of the referral by the North Haven PZC, provided sufficient information to the WPCA for it to provide a positive referral. Moreover, in its first negative referral, the WPCA acknowledged the preliminary nature of its determination by stating that CMB would have an opportunity to address the WPCA's concerns when a formal application is filed at a later date.
As a threshold matter, the defendant is correct in arguing that, under certain circumstances, expressed opposition to a project by a coordinate agency such as a water pollution control authority may be a proper basis for denying a zoning permit. The Supreme Court has held that although a zoning commission may condition its approval on the approval of another agency, it may do so only if such other agency's approval is reasonably probable. See Faubel v. Zoning Commission, 154 Conn. 202, 211, 224 A.2d 538 (1966) ("a change of zone which is dependent for its proper functioning on action by other agencies and over which the zoning commission has no control cannot be sustained unless . . . the necessary action appears to be a probability"). After the Supreme Court decided Faubel v. Zoning Commission, supra, 154 Conn. 202, it narrowed this proposition by explaining that this rule does not require an affirmative showing that the other agency's approval is likely, but only that it has not demonstrated opposition. See River Bend Associates, Inc. v. Planning Commission, 271 Conn. 41, 59-60, 856 A.2d 959 (2004); Kaufman v. Zoning Commission, 232 Conn. 122, 163, 653 A.2d 798 (1995). The issue in the present case regarding the North Haven PZC's first reason for its denial, therefore, is whether the WPCA's negative referrals constitute "opposition" to the project that the Supreme Court has held to be sufficient to preclude conditional approval of a zoning application. A discussion of the evolution of this rule is necessary for the resolution of this issue.
In Faubel v. Zoning Commission, supra, 154 Conn. 202, an appeal from the Ridgefield zoning commission's decision to approve an application for a zone change and an amendment to the zoning regulations to create a new light industrial zone in Ridgefield, the town plan commission had expressed opposition to the plaintiff's application. Id., 208. Despite this opposition, the zoning commission unanimously approved the application. Id. The trial court sustained the appeal and the Supreme Court affirmed that decision, noting that approval of certain critical improvements by the town plan commission would be required in order to implement the zone change and that the town plan commission had opposed the change. The court held: " In the light of the expressed opposition of the town plan commission to the rezoning of the area, its approval of measures to implement that rezoning cannot be assumed to be a probability." (Emphasis added.) Id., 210. The court stated that "a change of zone which is dependent for its proper functioning on action by other agencies and over which the zoning commission has no control cannot be sustained unless . . . the necessary action appears to be a probability." Id., 211.
In Lurie v. Planning Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971), the Supreme Court explained the importance of conditional approval as a means of avoiding deadlocks between municipal agencies and encouraging economic development. In upholding a conditional approval of a zone change application, the Supreme Court explained that "such a project as that which gives rise to the present appeal involves an interplay of governmental functions in the town. No single involved agency has the authority to order another to act or direct how it shall act but unless one of them moves, even though conditionally, the desired result could not be accomplished in such a circumstance as this. [I]n this day of keen competition to attract industry and business to a state or to a particular locality, public officials are expected to cooperate in helping an industry to locate in their community . . . but it is hardly reasonable to expect that a highway authority or traffic authority would make the necessary expenditures and changes without knowing that when such work was completed the planning and zoning commission would approve and permit the project which the work was designed to make possible, nor, logically, should the commission grant an unconditional permit for a project when in its judgment the project was impermissible unless off-site work were done. In such circumstances it is entirely reasonable and logical that the planning and zoning commission which is entrusted with large powers in connection with city planning and zoning and municipal improvements (including the widening of streets; General Statutes § 8-24) should be the agency to make the first move and the decision as to the conditions under which it would approve the issuance of a permit . . . This is so even though the project may subsequently fail to materialize because one or more of the conditions has for any reason not been met." (Citation omitted; internal quotation marks omitted.) Id., 306-07. "In many circumstances, however, other municipal agencies may properly be reluctant to commit themselves to a course of action before knowing that if such a commitment is made it will meet such conditions as the zoning authority will deem advisable, Such a stalemate is clearly undesirable. Under such circumstances, where cooperative action is necessary to accomplish a desirable result, a stalemate can best be avoided by approval which may be conditional." Id., 307.
In Blaker v. Planning Zoning Commission, 212 Conn. 471, 562 A.2d 1093 (1989), the Supreme Court elaborated on its holding in Lurie v. Planning Zoning Commission, supra, 160 Conn. 295, explaining that the validity of conditional approval does not require evidence that the other agency will act favorably on the future application to that agency. In Blaker, the defendant Fairfield town plan and zoning commission had approved, with conditions, the defendant developer's applications for a zone change and a special permit for the construction of condominium units. The plaintiff appealed the decision to the trial court, which dismissed the appeal. In upholding the trial court's decision, the Supreme Court noted that, among other conditions, "the commission required [the defendant] to submit revised site plans with an improved emergency access." Blaker v. Planning Zoning Commission, supra, 212 Conn. 481. The plaintiff claimed "that because of the impact on wetland areas, this condition will require further approval by the Fairfield conservation commission, the town's inland wetlands agency. [The plaintiff] further maintain[ed] that there is no indication that the conservation commission will approve the revised site plans, and therefore, the condition rendered the commission's approval invalid." Id. The defendant countered, inter alia, that the Supreme Court's "holding in Lurie v. Planning Zoning Commission, [ supra, 160 Conn. 295], permitted the commission to condition its approval on future action by another agency." Id., 482.
The court agreed with the defendant, explaining that "[i]n Lurie v. Planning Zoning Commission, supra, 307, we held that `where an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional on favorable action by another agency or agencies over which the zoning authority has no control, its issuance will not be held invalid solely because of the existence of any such condition.' . . . Our holding was intended to achieve greater flexibility in zoning administration by avoiding stalemates between a zoning authority and other municipal agencies over which it has no control. Id. Nowhere did we intimate, therefore, that, in order to be valid, conditional approval requires evidence that the other agency will act favorably on the future request. Such a holding in the present case would require evidence of the probability of future approval before the conservation commission has had an opportunity to review the site plans as revised. Further, it would be contrary to the policy of allowing a planning and zoning commission `to make the first move and the decision as to the conditions under which it would approve the issuance of a permit . . . This is so even though the project may subsequently fail to materialize because one or more of the conditions has for any reason not been met.' Id. We conclude, therefore, that the phrase `reasonably conditional' in Lurie contemplates giving the other agency, over which a planning and zoning commission has no control, the opportunity to review the revised plans, thereby furthering the goal of cooperative action among municipal agencies, and that the record need not indicate whether the conservation commission is likely to approve the revised site plans." (Emphasis added.) Blaker v. Planning Zoning Commission, supra, 212 Conn. 482-83.
In Kaufman v. Zoning Commission, supra, 232 Conn. 162-63, the Supreme Court affirmed the decision of the trial court, which had sustained the plaintiff's appeal from the defendant Danbury zoning commission's denial of the plaintiff's affordable housing application. Among other issues, the Supreme Court considered whether the fact that the planning commission has sole jurisdiction to approve road improvements, and that there was no evidence in the record that the planning commission would approve such improvements, protection of the public interest in traffic control required a denial of the plaintiff's zone change application. Id., 162.
In holding that denial on that basis was not appropriate, the court distinguished Faubel v. Zoning Commission, supra, 154 Conn. 202, in which the Supreme Court held that "a change of zone which is dependent for its proper functioning on action by other agencies and over which the zoning commission has no control cannot be sustained unless . . . the necessary action appears to be a probability;" (internal quotation marks omitted) Kaufman v. Zoning Commission, supra, 232 Conn. 162-63; reasoning: "The concerns that underlay Faubel do not, however, control the decision in this case if the commission has the authority to grant the application for a new zone on the condition that the planning commission approves, and the plaintiff makes, the necessary road improvements. If the roads are not built, the existing zone will continue in place, and the public interests in traffic control will remain protected. If the roads are built, on the other hand, the public interests in traffic control will not be adversely affected. In other contexts, therefore, we have allowed zoning commissions to approve a proposed development project on the condition that the applicant take other action, even when the other action required another agency's approval, and even when there was no `evidence that the other agency will act favorably on the future request.'" Kaufman v. Zoning Commission, supra, 232 Conn. 163 quoting Blaker v. Planning Zoning Commission, supra, 212 Conn. 482; citing Lurie v. Planning Zoning Commission, supra, 160 Conn. 295.
The court further held that such conditional approval was "not only authorized but required" because such a conditional zone change would protect the public interest in traffic control, and would, therefore, advance "the legislative purpose of encouraging the construction of affordable housing." Kaufman v. Zoning Commission, supra, 232 Conn 164. The court further explained that "[p]ublic officials are expected to cooperate in helping [affordable housing] to [be] locate[d] in their community . . . but it is hardly reasonable to expect that a highway authority or traffic authority would make the necessary expenditures and changes without knowing that when such work was completed the . . . zoning commission would approve and permit the project which the work was designed to make possible, nor, logically, should the commission grant an unconditional permit for a project when in its judgment the project was impermissible unless off-site work were done. In such circumstances it is entirely reasonable and logical that the . . . zoning commission which is entrusted with large powers . . . should be the agency to make the first move and the decision as to the conditions under which it would approve the [project]. This is so even though the project may subsequently fail to materialize because one or more of the conditions has for any reason not been met." (Internal quotation marks omitted.) Id., 164-65, quoting Lurie v. Planning Zoning Commission, supra, 160 Conn. 306-07.
In holding that the commission was not only authorized, but was required, to conditionally approve the application, the court in Kaufman reasoned that in light of the requirements of § 8-30g and the specific facts of this case, the commission was required to prove that denial of the application was necessary to protect substantial public interests. If it could conditionally approve the application for zone change while protecting those interests, as the record shows, then the application should have been so approved. Kaufman v. Zoning Commission, supra, 232 Conn. 166.
In the present case, as in Faubel and in Kaufman, approval of a permit by another agency would be necessary for the implementation of the plaintiff's plans. Nevertheless, unlike in Faubel, in the present case the coordinate agency, the WPCA, has not expressed opposition to the project, but has merely stated that it lacked the necessary information to give a positive referral to the North Haven PZC. As CMB has noted, it had not yet filed a formal application with the WPCA at the time of the negative referral and will have an opportunity to address its concerns when a formal application is submitted to that agency. Accordingly, the WPCA's negative referral does not constitute sufficient evidence to demonstrate that CMB's future sewer application would be denied because the WPCA's negative referral was based on technical deficiencies that CMB will have an opportunity to address during the formal sewer application process.
In the absence of a denial of a formal application by the WPCA, the North Haven PZC should have conditioned its approval of the plaintiff's affordable housing application on the approval by the WPCA. As in Kaufman, the commission in the present case was not only authorized, but was required, to conditionally approve the application because the record does not contain sufficient evidence to meet the commission's burden of proving that denial of the application was necessary to protect substantial public interests. If it could conditionally approve the affordable housing application while protecting those interests, as the record shows, then the application should have been so approved. See Kaufman v. Zoning Commission, supra, 232 Conn. 166. The North Haven PZC could have conditionally approved the application because the record shows that the WPCA anticipated a formal application in which its concerns might be addressed. The nature of the WPCA's concerns does not suggest that any conceivable application for sewer service for the property would be denied; rather, it suggests merely that the specific proposals presented at that time were not acceptable, and that if better alternatives were presented at the time of a formal application, such an application might be approved. For this reason, the North Haven PZC's first reason for its decision is not supported by sufficient evidence in the record.
2. The North Haven PZC's Second Reason
The second reason set forth by the North Haven PZC in denying CMB's affordable housing applications was that "[t]he drainage report from Luchs Consulting Engineers and the Inland Wetlands Commission's negative referral establish the existence of a significant/probable drainage problem." (North Haven appeal, ROR, Item 206, pp. 1-2.) In support of this reason, the North Haven PZC contends that "it has a significant interest in protecting the property of Town residents and regulated resources that will likely be adversely impacted by the proposed development." (North Haven appeal, North Haven PZC's brief, p. 105.) In discussing the public hearings held by the IWC, the North Haven PZC maintains that although there was conflicting evidence concerning potential impacts of the proposed development on properties in North Haven and East Haven, including inland wetlands and watercourses, such evidence does not prevent an administrative agency's findings from being supported by substantial evidence. It also argues that the IWC can regulate activity occurring on the site that has an impact on wetlands and watercourses located offsite and that not all of the resources likely to be affected are located in East Haven.
In response, CMB counters that the North Haven PZC's denial based on the IWC's negative referral and the drainage report from Luchs Consulting Engineers was improper for several reasons. First, it contends that there is no authority to support the proposition that a drainage problem is a health or safety issue or otherwise could form the basis for the denial of its affordable housing application. It maintains that "the Luchs Engineering Reports have no data to back up their conclusions, identify no recommendations for addressing specific drainage problems, and are speculative." (North Haven appeal, CMB's brief, p. 33.) It also argues that a potential impact on a wetland or watercourse in East Haven is not a proper consideration for the IWC because a municipality may only regulate activities to protect wetlands or watercourses within its territorial limits. It contends that because the proposed development involves no regulated activities, the IWC improperly held hearings concerning the potential impacts of the project on a watercourse located in East Haven and other remote off-site wetlands. It maintains that the only action the IWC should have taken was to inform the North Haven PZC that the proposed development involved no regulated activities. Moreover, it argues that the IWC did not identify any health or safety reasons in support of the North Haven PZC's denial of the amended application; it merely stated that the application was incomplete. Finally, CMB contends that even if the IWC had properly reviewed the application and identified health and safety concerns, the North Haven PZC would have had to consider whether such concerns outweighed the need for affordable housing.
The court agrees with CMB. A review of the record reveals that the North Haven part of this development would not involve any regulated activity that would fall under the jurisdiction of the IWC. (North Haven appeal, ROR, Items 1, 153, 181, 184, 186, 198 and 207.) Although the North Haven PZC maintains that the record contains evidence, specifically a conclusion made by George T. Logan, an expert for the IWC, showing a "high probability" that the proposed development would have an adverse impact on resources lying inside and outside of North Haven; (North Haven appeal, North Haven PZC's reply brief, p. 6; North Haven PZC's brief, p. 107); a review of the record reveals that this conclusory statement was not as broad as the North Haven PZC suggests; Logan's report merely stated that a high probability of an adverse impact on such resources would result only if CMB fails to address REMA's outstanding concerns. (North Haven appeal, ROR, Item 99.) If a formal application to the IWC is needed, CMB would have an opportunity to address its concerns if and when such an application is filed with the IWC. Further, a review of the record reveals that the IWC's denial was based largely on the lack of sufficient information presented to the IWC, which could be addressed if and when CMB files a formal application to the IWC.
Moreover, nothing in the record suggests that such impacts would bring the proposed development under the jurisdiction of the IWC, in light of the limited jurisdiction of such agencies pursuant to General Statute §§ 22a-42a and 22a-38(13). Specifically, § 22a-38(13) defines "regulated activity" as "any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses . . ." (Emphasis added.) Creation of a potential "drainage problem" outside of any wetland or watercourse does not fall within this statutory definition of the types of activities that may be regulated by an inland wetlands agency. The record contains references in engineering reports that there may be potential impact from runoff and storm drainage concerning the site area in East Haven involving an off-site watercourse and possible wetlands. Nevertheless, as CMB has pointed out, an inland wetlands agency is only empowered to regulate activities affecting the wetlands and watercourses within its territorial limits. See General Statutes § 22a-42(a). Pursuant to the Inland Wetlands and Watercourses Act, municipalities may "authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations . . . as are necessary to protect the wetlands and watercourses within its territorial limits . . ." (Emphasis added.) General Statutes § 22a-42(c). Nowhere does the act authorize an inland wetlands agency to regulate activities to protect the wetlands and watercourses outside of its territorial limits. Accordingly, any evidence in the record indicating a potential impact to wetlands or watercourses in East Haven or elsewhere outside of the territorial limits of North Haven would support neither a negative referral by the IWC nor a denial of CMB's affordable housing application by the North Haven PZC because it would not be an activity that could be regulated by the IWC and because such impacts do not provide support for a finding "that there is more than a mere theoretical possibility . . . of a specific harm to the public interest if the application is granted" or that "the commission's decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider . . ." See Carr v. Planning Zoning Commission, supra, 273 Conn. 596-97.
Moreover, the evidence in the record shows that the plaintiff has addressed any such impact in East Haven by diminishing the flow of runoff from the North Haven side into East Haven and with appropriate engineering procedures to include bio-filter basins and erosion abatement procedures. (North Haven appeal, ROR, Items 140, 153, 158, 178 and 183.) Although there is conflicting evidence on this point, and "[i]f there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission"; see Gerlt v. Planning Zoning Commission, 290 Conn. 313, 323, 963 A.2d 31 (2009); the implicit finding by the North Haven PZC that such speculative extraterritorial inland wetland concerns clearly outweigh the need for affordable housing is not supported. Its reliance on any such concerns by the IWC should be based on protecting "substantial public interests" in such areas as health and safety or other matter that it legally may consider. The record does not contain sufficient evidence to support a finding that such potential impacts, either within or outside of North Haven, would pose any health or safety risks whatsoever. Therefore, the North Haven PZC's denial based on the IWC's negative referral was improper.
Further, as discussed above in with respect to the WPCA's negative referral, such a referral does not constitute sufficient evidence that an inland wetland application filed by CMB would not be approved, since CMB would have an opportunity to address any concerns identified by the IWC in issuing its negative referral. Accordingly, the proper procedure for the North Haven PZC to follow, if indeed an inland wetland application were warranted for this proposed development, would be for the North Haven PZC to condition its approval of CMB's application on approval by the IWC of a permit for any regulated activities involved in this project. Such a condition would protect the interests of the town in the health and safety of its residents, as well as protecting the wetlands and watercourses of North Haven. Nevertheless, as no regulated activities are involved in this proposed development, as amended, no such application to the IWC is necessary. Accordingly, conditional approval to address the second concern identified by the North Haven PZC would not be appropriate, as it simply should not have denied the application on this basis.
3. The North Haven PZC's Third Reason CT Page 9972
The third reasons stated by the North Haven PZC for its decision was as follows: "Letters from the Fire Chief and Luchs Consulting Engineers establish the probability of inadequate access for emergency vehicles/personnel and the greater volume of vehicles is likely to lead to accidents with an increased need for emergency services, yet the Applicant withdrew road improvements it previously agreed were necessary. The modifications of adding forty-six units to the development and eliminating the age restriction only exacerbated the problem relative to the original application." (North Haven appeal, ROR, Item 206, pp. 1-2.)In support of this reason, the North Haven PZC argues that it "heard substantial evidence regarding the likely effects of an increase in traffic volume on the area in which the proposed development is located." CMB counters that this reason is erroneous for several reasons. It maintains that it addressed the concerns regarding the proposed fire access by pointing out that it fully complies with the state building code and by providing an additional access for vehicles on Benedict Drive. (See North Haven appeal, ROR, Item 186, p. 31.) It also notes that it presented evidence showing that there is no standard response time for emergency vehicles, and that response time is a town-wide concern that the town has been aware of since 2001 and has failed to address. It maintains that because this is not a site-specific concern, CMB is not responsible for addressing it. CMB further notes that it offered to pay for emergency services and equipment that would benefit the proposed development and the town, for example, by bringing in fire hydrants to the only remaining section of town that lacks public water for drinking and fire suppression. It argues that its traffic studies show that the development would pose no safety issues, and that traffic concerns could be addressed with an age restriction limiting the development to "active adult, aged 55 and older." (North Haven appeal, CMB's brief, p. 37.) CMB further contends that the record contains no support for its apparent assumption that increased traffic would lead to increased accidents. It notes that an increase in traffic, alone, is not enough to support a denial of an affordable housing application.
The court agrees with CMB. The plaintiff has appropriately addressed the third reason for denials by North Haven PZC of the initial and amended applications. Both the fire marshal and the consulting engineers have pointed out certain issues that have been addressed by the plaintiff relating to response time that emergency vehicles may need in order to access the site for fire and emergency situations. (North Haven appeal, ROR, Items 70, 121, 133, 134, 153, 158, 186 and 194.) The court finds that the record does not contain sufficient evidence indicating that this part of North Haven would have had any more delays in response time for emergency response vehicles than any other similarly situated part of town. The record shows that this is not a unique problem with this particular site and, therefore, additional traffic volume and limits on access are not valid reasons for denying affordable housing applications. CMB's offer to pay for additional emergency services and equipment that would benefit this section of North Haven and East Haven as well as the expansion of the fire hydrant and public water system and inclusion of water sprinkling systems to the site and structures would further address the North Haven PZC's concerns. The record does not contain sufficient evidence to reflect that there necessarily would be a negative impact on public safety and such an issue concerning traffic "on streets adjacent to the property" is not a sufficient reason for site plan denial.
"As with conventional zoning cases, traffic problems and related safety concerns can be a valid reason for a denial [of an affordable housing application], but there must be more than a traffic increase, and either traffic congestion or an unsafe road design at or near the entrances and exits from the site." R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 51:7, p. 185-86. Moreover, the North Haven PZC "cannot turn down a site plan [or subdivision application] because of traffic problems on streets adjacent to the property." (Internal quotation marks omitted.) Pansy Road, LLC v. Town Planning Zoning Commission, 283 Conn. 369, 379-80, 926 A.2d 1029 (2007), quoting R. Fuller, supra, § 49:14, p. 139. For this reason, off-site traffic was not a proper consideration for the North Haven PZC and cannot, therefore, provide support for its denial of CMB's application. Further, evidence of a mere traffic increase in the record is not sufficient to support a finding that such an increase "is likely to lead to accidents with an increased need for emergency services . . ." For this reason, the North Haven PZC's third reason for its denial is not supported by sufficient evidence in the record, and the appeal cannot be dismissed on this basis.
4. The North Haven PZC's Fourth Reason
The fourth reason stated by the North Haven PZC in denying CMB's application provides: "Letter from Senator Len Fasano and Representative Steve Fontana advising that the proposed development violates Smart Growth and the State Plan of Conservation and Development." (North Haven appeal, ROR, Item 206, pp. 1-2.) In support of this reason, the North Haven PZC argues that it "has a substantial public interest in obtaining state funding or at least not acting in some way so as to jeopardize possible future funding. This interest is certainly directly related to the public health, safety, and other matters [it] can consider." Further, it argues, this reason is supported by sufficient evidence in the record, specifically the correspondence from Fasano and Fontana dated November 13, 2006 and certain comments of CMB's attorney. It further maintains that "this interest clearly outweighs the need for affordable housing and cannot be met by the imposition of reasonable conditions on the Application or Amended Application." (North Haven appeal, North Haven PZC's brief, pp. 110-11.)
CMB counters that violation of smart growth principles and the state plan of conservation and development are not a proper basis for denying its affordable housing applications. It argues that the state plan of conservation and development does not supercede the state's mandate of setting aside 10 percent of housing in each municipality as affordable housing and that a violation of the plan would not be considered by a state agency outside of the context of a specific project in which bonding is considered. CMB also argues that such issues do not apply to its applications because no work has been proposed that would require state bonding or public funding. Finally, it maintains that its proposed development adopts many smart growth principles. (See North Haven appeal, ROR, Item 153, letter dated November 21, 2006 from Marcus to Fasano and Fontana, p. 3.) For these reasons, CMB argues, the North Haven PZC's fourth reason for its denial was improper.
In its reply brief, the North Haven PZC argues that it is not clear at this point who will be responsible for paying for necessary road and sewer work. In support of this assertion, it refers to "inconsistent remarks made by Attorney Marcus concerning his client's obligations to improve the sewer lines." (North Haven appeal, North Haven PZC's reply brief, pp. 8-9, citing CMB's brief, pp. 15, 18 and 40; ROR, Item 103, pp. 10-11; Item 113, pp. 16-18, 26, 29-31; Item 153; Item 158, pp. 3-27, 32, 34-35; Item 171; Item 173, p. 9-43; Item 175, pp. 10-13, 19-23, 28-29, 32-38; Item 182; and Item 186, p. 36.)
The court agrees with CMB that smart growth principles and the state plan of conservation and development cannot form a proper basis for the denial of CMB's affordable housing applications. The state plan of conservation and development provides general guidelines as to whether or not the state will advance bonding for municipal projects. The plan is advisory in nature, does not bind any particular municipal development and does not supercede the legislature's goal, as expressed in the affordable housing statutes, to encourage the development of affordable housing. The advisory nature of the state plan merely gives guidance to each town as to how to develop a comprehensive plan of development and what regulations should be adopted in order to implement any such town wide planning. See Three Levels Corp. v. Conservation Commission, Superior Court, judicial district of Danbury, Docket No. CV 07 4006860 (April 24, 2008, Shaban, J.) (45 Conn. L. Rptr. 528) ("the purpose of the state plan is for municipalities to consider it in creating their local town plan, upon which town regulations would be adopted. The state plan is two steps removed from the regulations upon which the commission must base its decision."). The proposed development does not require any state bonding or expenditure of any state public funding. As CMB correctly notes, the North Haven PZC has provided no authority for the proposition that an affordable housing application can be denied for failure to comply with the state plan of conservation and development or smart growth principles, and research reveals no such authority.
Moreover, neither the regulations nor the statutes governing zoning commissions or affordable housing developments require compliance with smart growth principles or the state plan of conservation and development. In the absence of any such requirement, the failure to adhere to such principles or plan does not constitute a valid reason for denying the affordable housing applications. Moreover, the North Haven PZC has not expressly identified any specific public interest that would be harmed as a result of violations of smart grown principles or the state plan of conservation and development, beyond its assertion that it "has a substantial public interest in obtaining state funding or at least in not acting in some way so as to jeopardize possible future funding." (North Haven appeal, North Haven PZC's brief, p. 110.) The record does not contain sufficient evidence showing that CMB's proposed development will result in the loss of state funding or bonding that would otherwise be available to the town. Further, even if such evidence existed, the record must show that the public interest in such funding outweighs the need for affordable housing in North Haven. Since the record does not contain sufficient evidence to show that such an interest would be adversely affected by CMB's proposed development at all, the North Haven PZC's finding that such an interest "clearly outweighs the need for affordable housing" is also unsupported. See Carr v. Planning Zoning Commission, supra, 273 Conn. 596-97. For these reasons, the North Haven PZC's fourth reason for its denial is improper and is not supported by sufficient evidence in the record.
B. The East Haven PZC's Denial
In its brief, the East Haven PZC does not address each of the reasons set forth in part I B, above. Instead, after citing an inapplicable statutory provision relating to appeals from state administrative agency decisions, General Statutes § 4-183, and briefly summarizing the record, it presents its arguments in support of its decision to deny CMB's affordable housing application as follows: "In making its decision the Commission cited the failure of CMB to provide requested information regarding the project as well as the traffic, safety and public health concerns reflected in the reports of the Zoning Enforcement Officer and the Town Engineer. The record shows no evidence of unlawful acts or abuse of discretions by the Commission. Furthermore, the record indicates that the Commission acted in a sober and deliberate fashion and not arbitrarily or capriciously or against the weight of the available evidence. Clearly the Commission acted within its discretion and in the lawful execution of its authority in denying CMB's application." (East Haven appeal, East Haven PZC's brief, p. 6.)
The East Haven PZC has not met its burden of proof pursuant to § 8-30g(g). Under that section, as noted above, "the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record It also must prove that "(1)(A) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development, or (2)(A) the application which was the subject of the decision from which such appeal was taken would locate affordable housing in an area which is zoned for industrial use and which does not permit residential uses, and (B) the development is not assisted housing, as defined in subsection (a) of this section." General Statutes § 8-30g(g). The East Haven PZC's brief is devoid of any applicable legal authority, it cites to no evidence in the record, and fails to address with any specificity the reasons given for denying CMB's application. Because the East Haven PZC has failed to meet its statutory burden of proof under § 8-30g(g), the court sustains the appeal and reverses the decision of the East Haven PZC.
Pursuant to General Statutes § 8-30g(g), "[i]f the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it."
V CONCLUSION
Accordingly, the court sustains the appeals and reverses the decisions of both the North Haven PZC and the East Haven PZC and remands these applications to those commissions for them to approve the applications, as amended, subject to the following condition:
1. That CMB apply to the North Haven WPCA and obtain approval for adequate sewerage to service the property.
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