Garden Homes Mgmt. Corp. v. Planning & Zoning Comm'n of Oxford

Full title: Garden Homes Management Corporation et al. v. Planning and Zoning…

Court: Superior Court of Connecticut

Date published: Oct 25, 2016

HHDCV146052002S (Conn. Super. Ct. Oct. 25, 2016)

Opinion

HHDCV146052002S

10-25-2016

Garden Homes Management Corporation et al. v. Planning and Zoning Commission of the Town of Oxford

STEPHEN F. FRAZZINI, JUDGE

October 26, 2016, Filed

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

STEPHEN F. FRAZZINI, JUDGE

This decision represents the fourth time that the defendant, the Planning and Zoning Commission of the Town of Oxford (the commission), has denied an application by the plaintiffs, Garden Homes Management Corporation and Third Garden Park, LP, (Garden Homes), to build a housing development in the town of Oxford that would have included affordable housing on forty-one acres of undeveloped land owned by the plaintiffs.¹ After the commission denied the second and third applications, Garden Homes filed judicial appeals under the affordable housing statute, General Statutes § 8-30g. Both times, the court sustained the appeal and remanded the matter for further proceedings by the commission consistent with the court's decision.²

1 The court hereby takes judicial notice of the contents of its own files, namely the record and briefs in the earlier matter heard and decided by Judge Pickard in 2009, Garden Homes Mgmt. Corp. v. Planning & Zoning Comm'n of Oxford, Superior Court, judicial district of New Britain, Docket No, CV-07-4015729-S (November 3, 2009, Pickard, J.) [48 Conn.L.Rptr. 743, ] (2007 appeal), and the earlier proceedings in this matter.

2 In the second judicial appeal (2014 appeal), this court sustained Garden Homes' appeal, with certain exceptions that were remanded to the commission for further consideration, from a decision by the commission to deny a subsequent application in 2014 to build 124 mobile manufactured dwellings that would have included affordable housing in the Mixed Income Housing District established as the result of the prior case. Garden Homes Mgmt. Corp. v. Planning & Zoning Comm'n, Superior Court, judicial district of New Britain, Docket No. CV-14-6052002-S, (July 23, 2015, Frazzini, J.) (2015 Decision).

The case is now before the Superior Court for review of actions taken by the commission after remand by this court in the second judicial appeal for hearing and decision on certain traffic safety and parking issues. On October 6, 2015, the commission adopted a " Final Resolution" denying the site plan application based on the revised plans submitted by Garden Homes after the remand. The record of the proceedings before the commission on the remand was filed with this court in two parts on October 16 and November 10, 2015. The parties thereafter filed briefs and then appeared for argument before this court on June 28, 2016. Garden Homes has also filed a motion for contempt claiming that the commission has violated the orders of this court and of Judge Pickard. On the day of argument, the court notified the parties that it regarded a transcript of the proceedings that day as necessary for a well-reasoned decision, ³ and a copy of that transcript was filed on July 11, 2016. The day after argument, the court issued an order directing the parties to file enlarged copies of certain drawings in the record and clearer copies of partially-illegible attachments to an exhibit as additional matters necessary for a well-reasoned decision. The parties filed the enlarged copies of the drawings on July 7, 2016, and what they described as " the cleanest copies in the Planning and Zoning Office" of the illegible attachments on July 19, 2016. The matter is now ready for decision. For the reasons described below, the motion for contempt is denied, ⁴ the plaintiffs' appeal is F sustained as is described herein, and the proceeding is remanded to the commission to make findings as further set forth herein.

3 See, Cowles v. Cowles, 71 Conn.App. 24, 26, 799 A.2d 1119 (2002) (holding that 120-day time limit set forth in General Statutes § 51-183b for rendering of an opinion after trial of a cause " begins to run from the date that the parties file post-trial briefs or other material that the court finds necessary for a well-reasoned decision"). See also, Frank v. Streeter, 192 Conn. 601, 604-05, 472 A.2d 1281 (1984), and Bramwell v. Department of Correction, 82 Conn.App. 483, 488, 844 A.2d 957 (2004).

4 Contempt requires evidence of wilful disobedience of court orders, and none has been presented here.

I

STANDARD OF REVIEW

Review of an affordable housing appeal is governed by General Statutes § 8-30g.⁵ In a judicial appeal under § 8-30g, " the trial court must first determine whether the decision . . . and the reasons cited for such decision are supported by sufficient evidence in the record . . . Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of 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 may legally 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." (Citation omitted; footnote omitted; internal quotation marks omitted.) River Bend Assocs. v. Zoning Comm'n, 271 Conn. 1, 26, 856 A.2d 973 (2004).

5 General Statutes § 8-30g(g) provides, in relevant part, as follows: " 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 . . . 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 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.' " AvalonBay Communities, Inc. v. Planning & Zoning Commission, 103 Conn.App. 842, 846, 930 A.2d 793 (2007), quoting Kaufman v. Zoning Commission, 232 Conn. 122, 156, 653 A.2d 798 (1995). The court initially examines " 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." River Bend Assocs. v. Zoning Comm'n, supra, 271 Conn. at 26. Our Supreme Court has also cautioned that § 8-30g requires the commission to show " a quantifiable probability that a specific harm will result if the application is granted." AvalonBay Communities, Inc. v. Planning & Zoning Commission, supra, 103 Conn.App. 853-54, citing Kaufman v. Zoning Commission, supra, 232 Conn. 156. See also Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 597, 735 A.2d 231 (1999).

Although there does not appear to be binding authority on the scope of remand in the context of an affordable housing administrative appeal, our appellate courts have held that " [i]n hearing appeals from decisions of a planning and zoning commission, the Superior Court acts as an appellate body." MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 409 n.3, 77 A.3d 904 (2013); see also, Brenmor Props. v. Planning & Zoning Comm'n of Lisbon, 162 Conn.App. 678, 680 n.1, 136 A.3d 24 (2016). As noted by Judge Tanzer when recently considering this issue,

Well established principles . . . govern further proceedings after a remand by an appellate court to the trial court. " In carrying out a mandate of [an appellate] court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion . . . This is the guiding principle that the trial court must observe . . . It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein . . . We have rejected efforts to construe our remand orders so narrowly as to prohibit a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand . . . So long as these matters are not extraneous to the issues and purposes of the remand, they may be brought into the remand hearing." (Citations omitted; emphasis in original; internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 502-03, 706 A.2d 1 (1998).

Ruscio v. Planning & Zoning Comm'n, Superior Court, judicial district of New Britain, Docket No. CV-13-6020234-S (February 16, 2016, ) (61 Conn.L.Rptr. 838). In review by the Superior Court of an administrative agency's decision on remand, therefore, the issues on appeal are those limited to the scope of issues remanded to the commission.

II

PRIOR PROCEEDINGS

During the course of the original administrative proceedings on Garden Homes' 2014 application, the commission's agents had identified certain issues regarding that application, but none of those were cited by the commission in its decision denying that application. Instead, the commission gave the following three reasons for doing so:

[I]t's an incomplete application since the fees have not been paid for expert review. 2015 Decision, p.19, (citing the record in that case at ROR, ⁶ Item 10, p. 123);

[N]ew information has been presented. The commission and the staff and experts have not had a reasonable opportunity to review the information presented of the applicant at today's public hearing . . . Id.; ROR, Item 10, p. 123-24;

[The commission has requested an extension in order to provide a fair and reasonable evaluation of this application and supporting documents. The extension request was refused. Id.; ROR, Item 10, p. 124.

6 The record on the 2014 appeal resulting in the court's 2015 Decision is referred to here as " ROR, " and the record on remand as " RROR."

After conducting a plenary review of the record on the second judicial appeal, this court found that the commission had " not sustained its burden of proof as to any of its stated reasons for denying the site plan application." 2015 Decision, p. 32, . The court determined that the public interest could have been protected by the commission conditionally approving the application subject to certain changes found reasonable and set forth in the memorandum of decision. See [slip op.] at 30-32. Instead of ordering the commission to grant the application on remand after compliance with the conditions set forth above, however, the court remanded the site plan application for further consideration of certain " new information" that had been presented by Garden Homes at the final public hearing regarding certain issues that had been identified by the commission's experts.

As noted by this court in the 2015 Decision, the only " new information" presented by Garden Homes at the public hearing or in a letter that same day that did not consist of acquiescing to requests made by the commission's consultants consisted of the following:

Garden Homes' proposal to install a no-left turn sign prohibiting left turns out of the Emily Drive, one of two access roads for the development, onto Hurley Road, a public roadway, to address an inadequate line of sight westward;

Garden Homes' proposal to place stop signs and stop bars at certain interior intersections to address concerns expressed by the commission's engineering consultant regarding " side friction factors" (which had been described in the earlier proceedings as " the ability of tires to maintain traction around a curve at a given speed" on certain curves on interior roadways). ROR, Item 15, p. 2;

Garden Homes' proposal to provide a fifty-foot tangent with a grade not to exceed five percent prior to starting vertical curves where it was " possible without loss of lots" to address the engineering consultant's concerns about cross-slopes; and

Garden Homes' proposal to install no-parking signs on the interior roadways.

See 2015 Decision, p. 23-24, . Noting that " [each of these new proposals concerned issues that could legitimately be regarded as matters of public interest"; at *39-40; the court remanded the proceedings to the commission for further consideration of those four issues. [slip op.] at 32-33.

III

COMMISSION PROCEEDINGS ON REMAND

After remand by this court, Garden Homes submitted revised site plan drawings for the proposed development to the commission on August 19, 2015. RROR, Item 5 (Bates Nos. 0040-0057). On September 15, Garden Homes also submitted a traffic report. The commission then held hearings on September 15 and September 29, 2015, after which it adopted a " Final Resolution" on October 6, 2015, denying the revised site plan. RROR, Item 18 (Bates Nos. 0182-0191).⁷ The ten-page written resolution set forth various reasons for the commission's decision.

7 The commission's final resolution is also contained in the record on remand at Item 31 (Bates Nos. 0442-0451).

In that decision, two of the four issues remanded to the decision were no longer stated as reasons for denying Garden Homes' application: (i) The commission's decision expressly stated that " the inadequacy of the cross-slopes" at certain intersections had " been addressed" by Garden Homes' revised plan. Id., 7 (Bates No. 0188). (ii) The decision also contained no mention of " side friction factors" on vertical curves on the interior roadways as a basis for denying the application. Id. Instead, the commission accepted Garden Homes' proposal to install stop signs and stop bars at certain interior intersections, and said that a revision to the plan increasing the centerline radii of four nonintersecting curves on Emily Drive and Naomi Drive to forty-two feet eliminated the need for stop signs or stop bars at those locations. See Id., 1-2 (Bates Nos. 0182-0183).

On the other two issues remanded to the commission, the adequacy of a no-left turn sign on Emily Drive to address the westward line of sight issue and enforcement of the parking ban on interior roadways, the commission's decision did recite reasons for rejecting Garden Homes's application:

No left-turn sign on Emily Drive to address line of sight issue: The commission rejected the adequacy of such a sign to address the line of sight issue " because motorists will ignore the prohibition, and as such, the proposed second access via Emily Drive is unsafe." Id., 4 (Bates No. 0185).

Enforcement of the parking ban on interior roadways: The commission found that such a ban was not enforceable by the town and that Garden Homes' proposal to include language in each lease that violation of the parking ban would be grounds for imposing a fine on the unit owner or termination of the lease was not sufficient as " it provides no mechanism to enforce against non-residents." Id., 9 (Bates No. 0189). Instead, the commission suggested that " it is possible" that " a contract with a . . . licensed towing business" providing for regular monitoring and twenty-four hour towing, together with substantial fines imposed on the lessee for violations of the parking ban by residents or visitors, " may provide sufficient protection against illegal parking." Id. The commission also rejected a proposal from Garden Homes that the fire marshal designate all interior roadways as fire lanes as " impractical, " stating that such a proposal " subverts the narrowly drawn purposes of the Connecticut Fire Prevention Code [and] . . . would shift the expense of ensuring compliance with a private parking ban onto the Town." Id.

In addition, the commission's decision recited various other reasons for denying the application.

This court's 2015 memorandum of decision had found that, with the exception of the issues remanded to the commission, the public interest could have been protected by the commission conditionally approving the site plan in various respects set forth in that decision. One of those conditions was that, as had been volunteered by Garden Homes at the final public hearing, " [t]urning diagrams shall be added to the plans showing the turning path for Oxford fire department trucks and that such trucks can make turns at all intersections." It is unclear from the site plan drawings filed with the court in the record on remand whether Garden Homes ever added those turning diagrams. During the remand proceedings, however, the commission retained Adler Consulting, which describes itself as a " transportation planning and engineering" company, to review " the traffic engineering components" of Garden Homes' revised application. See RROR, Item 10, p. 1 (Bates No. 0082). Adler Consulting sent a letter to the commission dated September 10, 2015, asserting that it had prepared turning diagrams for the various curves and intersections in the development based on what that letter said was the town fire department's largest fire truck. A representative from Adler also testified at the final remand hearing. See RROR, Item 10 (Bates Nos. 0082-0098).

The Adler letter and testimony essentially stated that, based on those turning diagrams, the largest fire truck used by the Oxford Fire Department would overrun curbs, sidewalks, and portions of certain of the land plots in the development at certain curves and intersections entering and within the development. As a result, Adler told the commission that " it would be extremely difficult for vehicles from the Oxford Fire Department to quickly access and safely navigate the streets and intersections on-Site, increasing the response time to an emergency" and that " should a private vehicle park near a corner during an emergency, the Fire Department may not be able to successfully navigate the intersection to respond quickly . . ." Id., 8-9 (Bates Nos. 0089-0090).

Under the rubric of the vertical curve issue, the commission recited the September 10 Adler letter and testimony on September 29, 2015, from Michael O'Rourke, a principal of that firm, as the bases for additional reasons to deny the revised application beyond the cross-friction factor issue that had specifically been remanded by the court:

[T]he centerline radii of the roads inside the development, both at intersections and non-intersection curves, continue to be insufficient to allow safe passage of the fire apparatus used by the Town of Oxford. (Emphasis in original.) Id., 1-2 (Bates Nos. 0182-0183.)

Because there were no sidewalks, curbs, mountable curbs, or other clear area next to the interior roads, " an emergency vehicle which 'overran' the curb also runs the risk of become mired" in the drainage bioswales that are located one foot from the edge of the road. Id., 2 (Bates No. 183).

The interior roadways are " too narrow to allow people to yield to emergency vehicles by pulling to the side, particularly because they cannot pull off the road due to the bioswales. As such, the roadways do not meet the minimum required width for safe emergency vehicle access." Id.

The commission's decision also recited the Adler letter and testimony under the left turn issue as a basis for its conclusion that " the physical geometry of the entrance at Emily Drive does not permit maneuvers by the fire apparatus used by the Oxford Fire Department, and as such, the proposed second access drive via Emily Drive is unsafe." Id., p. 5 (Bates No. 0186).⁸ In addition, under that same issue, the commission also stated the following reason for denying the site plan application that had not been included in the remand:

8 The commission resolution stated that it based this conclusion on the following:

The proposed " second access to the site from Hurley Road to Emily Drive does not meet the criteria set forth by Judge Pickard" in his 2009 Decision for " a full second access, separated from the access on Hurley Road" and " [t]he close proximity of the two entrances does not safeguard residents from, as stated by Judge Pickard, 'the danger of one entrance being blocked, ' since obstructions which affect one entrance will almost surely affect the other, increasing response time in emergencies and preventing safe evacuation of the proposed development."

Id., p. 6 (Bates No. 0187).

IV

Discussion

A

Remanded Issues

The court will first determine whether the commission's reasons on the remanded issues for denying the application are " supported by sufficient evidence in the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 717, 780 A.2d 1 (2001).

1. On-Street Parking

The commission has raised the issue of parked cars obstructing the maneuver of fire trucks on interior roadways since the first affordable housing application submitted by Garden Homes in 2006, ⁹ including giving that issue as a reason for denying Garden Homes' resubmission application in the 2007 appeal heard by Judge Pickard, ¹⁰ who concluded that if redesign of the development could address that issue. Garden Homes' 2014 application eliminated the " hammerhead" turnarounds that were one of Judge Pickard's concerns. During proceedings on the current application, the commission has repeatedly expressed concern that the inability of the town to enforce parking restrictions on the privately-owned interior roads is a problem. Early in the administrative review process of the 2014 application, for example, the town's planning consultant, Bryan Miller, wrote to the commission on April 7, 2014, that " [t]he streets are narrow and on-street parking can be expected throughout the development. Although limitations on on-street parking are proposed, the applicant should provide additional information as to how that would be enforced." Certified List on 2014 appeal, Item 78, attached to plaintiffs' trial brief in that proceeding as exhibit F, p. 3. On April 15, 2014, the Fire Marshal wrote the commission that the " road width is to be per the Town of Oxford's specifications. There is minimal parking spaces provided additional vehicles. This will cause the vehicles to be parked on the roads, narrowing the access, thereby preventing fire apparatus and ambulances from getting through." RROR, Item 16 (Bates No. 0169). See also Certified List on 2014 appeal, Item 77, attached as exhibit M to plaintiffs' supplemental brief in that proceeding, p. 6.

9 The commission's decision denying that application, stated, for example, as follows: " The parking will also compromise emergency access because of the likelihood of vehicles parked on the already narrow streets will block or hinder emergency vehicles." See record in 2007 appeal, Item 100, " Memorandum of Decision" of the Planning and Zoning Commission dated February 1, 2007, p. 51.

10 The commission's decision of September 20, 2007, denying the resubmission application contained the same statement as in its February 2007 decision. See " Memorandum of Decision on Applicant's Resubmission Application, " dated February 1, 2007, p. 51 (attached as an appendix to defendant's brief in 2007 appeal).

Within a week (and three weeks before the final public hearing), Garden Homes had responded to the commission that, in addition to the two parking spaces for each home and three additional parking lots that were both already part of the 2014 application, it would add restrictions to every lease prohibiting occupants or their guests from parking in other than designated areas and would also " accept a requirement of such as a condition of approval." Letter dated April 15, 2014, from Garden Homes' attorney to the commission chairperson, Certified List on 2014 appeal, Item 118, attached to plaintiffs' brief in that proceeding as exhibit I, p. 2. Just before and at the final public hearing on May 6, 2015, Garden Homes also agreed to post no-parking signs on the interior roadways. See Letter dated May 6, 2014, from Garden Homes' attorney to the commission, ROR, Item 8, p. 6.

On remand, parked cars continued to be one of the commission's reasons for denying the application. The commission's resolution stated that the " proposed parking ban . . . is not enforceable by the Town." RROR, Item 18, p. 7 (Bates No. 0188). The commission also rejected two proposals made by Garden Homes on remand to address the commission's concern about the town's inability to enforce a parking ban. First, the commission's final resolution said that Garden Homes' proposal to include language in each lease that violation of the parking ban would be grounds for imposing a fine on the unit owner or termination of the lease was not sufficient as " it provides no mechanism to enforce against non-residents." Id., 8 (Bates No 0189).¹¹ Second, the commission rejected the plaintiff's suggestion that the fire marshal designate all of the roadways within the development as fire lanes as " impractical, as it subverts the narrowly drawn purposes of the Connecticut Fire Prevention Code [and] . . . would shift the expense of ensuring compliance with a private parking ban onto the Town." Id.

11 Garden Homes has agreed to include certain enforcement provisions in its leases with tenants that will provide for fines for violations of the lease restrictions prohibiting on-street parking. These include fines in increasing amounts after a second violation, payable as additional rent, and a provision that " repeated violations will be a breach of this lease agreement and will be grounds for termination of your lease." Lease Provision for Enforcement of No Parking Ban for Oxford Commons, RROR, Item 14i, (Bates No. 0153). See also Transcript of hearing on September 15, 2015, Testimony of Garden Homes Attorney Mark Branse, RROR, Item 26, p. 14 (Bates No. 0252).

The town's inability to enforce a parking ban is not, however, by itself a sufficient reason under the criteria of the affordable housing statute to support the commission's decision to deny Garden Homes' application. The commission's decision must also identify the type of harm that will result from approval of the application and the quantifiable probability of that harm. The commission's resolution asserted that " parking of vehicles on the private roadways presents a safety hazard to the public and to residents" based on three factors: " (a) the narrow (24-foot) width of the proposed roadways, meaning that parked cars would obstruct the clear travel on the roadways, and (b) the lack of curbs, sidewalks, or other clear area to the side of the roadways and (c) the placement of ten-foot wide, one-foot deep drainage bio-swales one foot from the edge of the roadways." Id., 7-8 (Bates Nos. 0188-0189). The commission decision then recited letters from its traffic safety consultant and testimony of the resident state trooper that, as a result of these conditions, parked cars would impede the passage of emergency vehicles. Id., 8.

In so stating, the town's inability to enforce a parking ban may meet the " first prong" of the sufficient evidence standard that there be " more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted." River Bend Assocs. v. Zoning Comm'n, supra, 271 Conn. at 26. These reasons founder, however, for the harms posited in the commission's resolution are premised on an assumption, not found by the commission as a reason for denying the revised application, that motorists would ignore the no-parking signs and that residents would ignore lease provisions subjecting them to fines and possible eviction.

Since Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 735 A.2d 231 (1999), our courts have construed the affordable housing statute as requiring zoning commissions to state their reasons for denying an affordable housing application:

[I]f a town denies an affordable housing land use application, it must state its reasons on the record, and that statement must take the form of " a formal, official, collective statement of reasons for its actions" . . . The text [of the statute] requires that the town establish that sufficient record evidence supports " the decision from which such appeal is taken and the reasons cited for such decision " . . . Thus, textually the statute contemplates 'reasons' that are " cited" by the town. This strongly suggests that such reasons be cited by the zoning agency at the time it took its formal vote on the application, rather than reasons that later might be culled from the record . . .

(Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 576-77. In the present case, the commission did not recite its assumption that cars would, in fact, be parked on the interior roadways and that residents would ignore lease restrictions and motorists would ignore the no-parking signs as a reason for denying the revised application. Such an unstated reason cannot be considered by this court in assessing whether the commission met the sufficient evidence standard of § 8-30g, and in the absence of the assumption that cars will park on the interior roadways in contravention of lease restrictions and signage, the harms caused by parked cars would not constitute sufficient evidence to deny the revised application.

Moreover, even if the commission had found such an assumption as a reason to deny the revised application, the record contains no evidence of the probability, quantifiable or otherwise, of either such circumstance occurring, in the absence of which such a premise amounts to mere speculation. (See the court's discussion below, beginning on page 19 of this opinion, regarding the insufficiency of similar speculative evidence about the probability of motorists disobeying the no-left-turn prohibition.) Thus, the evidence does not survive the second prong of the sufficient evidence standard in an affordable housing appeal of showing " a quantifiable probability that a specific harm will result if the application is granted." AvalonBay Communities, Inc. v. Planning & Zoning Commission, supra, 103 Conn.App. 853-54.¹² Harms founded on speculation rather than sufficient evidence do not meet the requirements of § 8-30g.

12 Although asserting that parked cars present a safety hazard, the commission did find that certain conditions could protect the public interest and " may provide sufficient protection against illegal parking." RROR, Item 18, p. 8 (Bates No. 0189). As noted in the text below, this court has conducted its own review of the record and found that the commission has not satisfied the sufficient evidence standard for affordable housing appeals, but Garden Homes has nonetheless agreed, perhaps in deference to the commission's concern, to some of those changes. It has agreed to contract with a towing company to provide twenty-four-hour towing, upon notice from Garden Homes of a car parked in violation of the no-parking signs and lease restriction. At the September 15, 2015, hearing, it submitted a copy of the lease provision enforcing the no-parking ban; see footnote 10 on page 14 of this opinion. Garden Homes also agreed at oral argument to provide twice-yearly reports to the commission on compliance with the parking ban and any enforcement actions and accepted the commission's conditions that (i) the parking enforcement policy be recorded on the land records as an encumbrance against the property and as a covenant running with the land in favor of the town; (ii) failure to comply with the parking ban or to enforce the no-parking policy constitutes a violation of zoning regulations and would subject a property owner to cease and desist orders, zoning enforcement orders and actions, and fines and penalties as may be provided in statutes and town ordinances; and (iii) the parking enforcement rules and policy run with the land if ownership of the development or individual units is transferred.

2. Adequacy of No-Left-Turn Sign on Emily Drive to Address the Line of Sight Issue for Vehicles Traveling Eastward on Hurley Road ¹³

13 In addition to the reasons discussed in the text, the commission also included its conclusion that " the physical geometry of the entrance at Emily Drive does not permit maneuvers by the fire apparatus used by the Oxford Fire Department" as among its reasons that a no-left-turn sign was not adequate to address the line of sight issue. Since this conclusion and its underlying bases derive from the Adler turning diagrams and opinions, they are addressed in the court's analysis of the conditions of approval.

As noted in this court's 2015 Decision, Emily Drive is the name given by the plaintiffs to one of the two private access roads from Hurley Road, a public roadway, into the Garden Homes development. These access roads are separated by approximately 140 feet on the southern border of the development, which abuts Hurley Road. Due to the topography of the area, there is an inadequate line of sight looking westward for a safe left turn from Emily Drive into the eastbound lane of traffic on Hurley Road. This court determined that such an issue was a legitimate issue of public safety that the commission could consider:

The line of sight from Emily Drive looking westward onto Hurley Road was a legitimate traffic safety issue. It is obvious that the drivers of vehicles leaving Emily Road must be able to see far enough down Hurley Road to avoid approaching traffic. The evidence in the record shows that, looking westward (to the right), they would not have sufficient line of sight to do so. From Emily Drive, Hurley Road to the west rises to a crest that prevents an adequate line of sight to see vehicles approaching from that direction. The limited line of sight would also impair the ability of vehicles traversing that crest going eastward to see vehicles entering the eastbound lane of traffic and would limit time for stopping or slowing.

2015 Decision, p. 25, *40-41.

To address this issue, just before the final public hearing on the 2014 application, Garden Homes agreed to prohibit left turns from Emily Drive, thereby directing traffic leaving the development at that point not to cross into the eastbound lane of Hurley Road on which there was an inadequate line of sight. To effectuate that prohibition, it suggested " a condition of approval that reads: 'The applicant shall add appropriate signage prohibiting left turns [into the eastbound lane of Hurley Road coming from the west] out of Emily Drive onto Hurley Road.'" ROR, Item 8, p. 3.

In the 2015 Decision, the court observed that " Garden Homes' proposal to install traffic signage prohibiting left turns from Emily Drive onto Hurley Road . . . would appear to resolve that problem by preventing vehicles from crossing into or entering the westbound lane of Hurley Road." at *41. The court concluded, however, that since a remand was necessary to address the cross-slopes issue, " prudence dictates that the commission have an opportunity to assess any remaining safety concerns" regarding the adequacy of the no-left-turn sign on Emily Road at its intersection with Hurley Road. [slip op.] at 33.

On remand, the commission's Final Resolution stated that such a no-left-turn sign " will not address the line of sight issue because motorists will ignore the prohibition, and as such, the proposed second access via Emily Drive is unsafe." RROR, Item 18, p. 4 (Bates No. 0185). In making that assertion, the Resolution stated that the commission relied " on the expert opinions and testimony presented to it" by the resident state trooper and the commission's traffic safety consultants that, in the words of one of the traffic safety consultants, " motorists routinely ignore [such] signs for their own convenience." Id., 4 (Bates Nos. 0185).

In the case of Brenmor Props., LLC v. Lisbon Planning & Zoning Comm'n, Superior Court, judicial district of Hartford, Land Use Litigation Docket, Docket No. CV-13-6042286-S, (June 13, 2014, Shluger, J.), aff'd, 162 Conn.App. 678, 136 A.3d 24, cert. granted on other grounds, 320 Conn. 928, 133 A.3d 460 (2016), the trial court considered a similar issue--in that instance, whether residents or guests of the proposed development would comply with " No Parking" signs. The harm in question there was whether such failure " would, therefore, pose a risk that emergency vehicles would not be able to respond adequately in the case of an emergency." That court held, however, that this " is an insufficient basis to render the defendant's denial necessary because it only rises to the level of 'mere concern.'" On appeal, the Appellate Court concurred:

The commission also briefly argues that the risk of inadequate snow removal and illegal on street parking could result in " a too narrow road for emergency vehicles." That contention amounts to little more than speculation and conjecture, which " have no place in appellate review."

(Internal quotation marks omitted.) Brenmor Props. v. Planning & Zoning Comm'n of Lisbon, supra, 162 Conn.App. at 708 (noting in footnote 29 that " [t]he commission's exhortation aside, we decline to take judicial notice that 'no parking signs' are often disregarded"). In the present case, the commission's reliance on expert opinions and testimony to the effect that motorists will routinely ignore a no-left-turn sign is no better, as such opinions and testimony also fail to meet the requirement of establishing a quantifiable probability that the harm in question will result if the application is granted.

Since the earliest cases decided under the Affordable Housing Act, the " sufficient evidence" standard of § 8-30g(c) has required a zoning 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 . . . and concerning the probability that such harm in fact would occur." AvalonBay Communities, Inc. v. Planning & Zoning Commission, supra, 103 Conn.App. 846. Our appellate courts have repeatedly instructed that " evidence of a mere possibility of harm does not constitute sufficient evidence that a substantial public interest is threatened for purposes of § 8-30g(g). Rather, the record 'must contain evidence concerning the potential harm that would result if the [zone change were granted] and concerning the probability that such harm in fact would occur." (Internal quotation marks omitted.) River Bend Assocs. v. Zoning Comm'n, supra, 271 Conn. at 32. The first case to use the term " quantifiable probability" to describe the quantum of harm that must be shown was Christian Activities Council, Congregational v. Town Council, supra, 249 Conn. 597. As this court noted in the 2015 Decision, the " requirement to show a quantifiable probability of a resulting specific harm is one upon which several recent affordable housing appeals have turned." 2015 Decision, p. 7, *9-10. Although zoning commissions may rely on expert opinions for their findings, in this case, as in AvalonBay Communities, Inc. v. Planning & Zoning Commission, supra, 103 Conn.App. 854, " the conclusions of the commission's members and experts regarding safety risks drawn from speculation as to likely human behavior [fell] short of establishing a quantifiable probability of specific harm."

In Garden Homes' brief, it asked the court to approve the development subject to the condition that it " install a grassed island with a mountable curb"; Plaintiff's Brief dated February 2, 2016, p. 14; while in oral argument its attorney asked instead " to order this approved with a textured Belgian Block island." Transcript, June 28, 2016, p. 52. The commission's Final Resolution rejected both proposals, however, on the grounds that " a low-profile barrier to left turns onto Hurley Road, such as striping, mountable curbing or Belgian Blocks would not be effective to prevent left turns, as motorists will continue to ignore the prohibition." (Emphasis added.) RROR, Item 18, p. 5 (Bates No. 0186). The commission's brief makes the same argument that " the addition of a traffic island, mountable curb, and Belgian Blocks will not prevent left turns." Defendant's Brief dated December 17, 2015, p. 8. There was no evidence, however, to a quantifiable probability or otherwise, that a mountable curb would not be sufficient to prevent left turns.¹⁴

14 The letter from Adler Consulting to the commission dated September 10, 2015, stated that " it is the considered professional opinion of Adler Consulting that the proposed installation of no-left-turn signs would not be sufficient to prevent left turns since motorists routinely ignore signs for their own convenience. A physical solution, such as a change to the geometry at the Emily Drive approach is recommended, which may include a channelized island to physically direct exiting motorists to make a right turn towards westbound Hurley Road . . . [L]eft turners need additional physical barriers . . . but the presence of the physical barrier could preclude access by emergency vehicles." Id., 7 (Bates No. 0088). During the first public hearing on remand, the resident state trooper stated, also based on the assumption motorists would ignore the no-left-turn sign, that a no-left-turn sign " sounds good . . . but don't work . . . unless there is an actual barrier preventing" left turns. Transcript, September 15, 2015, RROR, Item 26, p. 20 (Bates No. 0258).

The only concern stated about mountable curbs by any of the commission's experts and witnesses was that a low-profile barrier (which is how the commission's resolution described a mountable curb) would impede access by emergency vehicles, a concern which did not ripen into a reason stated by the commission for rejecting the mountable curb solution.¹⁵

15 As discussed in the previous footnote, the stated concern of the commission's experts and witnesses at the final hearing was that such an island would " create an obstacle" for emergency vehicles entering or leaving the development. The commission had no evidence, however, that a mountable island would actually prevent an emergency vehicle from entering or exiting Emily Drive, but only " concerns."

On this issue, therefore, as well as the other three remanded, the commission has not met the requirement under the " first prong" of the sufficient evidence standard of § 8-30g to show " a reasonable basis in the record for concluding that its decision was necessary to protect substantial public interests." AvalonBay Communities, Inc. v. Planning & Zoning Commission, supra, 103 Conn.App. 846. For both the no-left-turn issue and the no-parking issue, the record does suggest a potential harm that would result if the application were granted, but the evidence falls short on both issues of showing a quantifiable probability that such harm would in fact occur.

B

Conditions of Approval

Although the ability of fire trucks to navigate access points to and roadways within the development was not included in the court's remand orders, the commission properly considered the adequacy of the turning diagrams prepared by Garden Homes to satisfy the conditions of approval set forth in the 2015 decision. Such an ability is obviously an issue of public health and safety and legitimately considered by a zoning commission assessing an affordable housing application. On this issue, the commission was presented with two conflicting opinions from different experts, Adler Consulting, the transportation planning and engineering consultant retained by the commission, and Kevin Hua, a professional traffic operations engineer doing business as KWH enterprise retained by Garden Homes.

The commission has raised the issue of the ability of emergency vehicles to navigate roadways of the Garden Homes development since the first affordable housing application back in 2005.¹⁶ After the commission's planning and engineering consultants raised this issue again in connection with the 2014 application, Garden Homes responded by agreeing to increase the curb radii on the access roads and interior roadways to twenty-five feet and to add turning diagrams to the site plans to show that " the largest truck in the fleet of the Oxford fire department" could safely navigate the access roads and interior roadways. As noted above, the 2015 decision included both as part of the order for conditional approval of the site plan application.

16 On February 20, 2007, the commission issued a decision denying Garden Homes' 2006 applications to amend the zoning regulations, to rezone this property and issue a zoning permit, and to approve a site plan. That decision identified " inadequate turning radii" as one of its reasons for rejecting those applications: " We have set forth below the deficiencies in the Site Plan that implicates substantial public interest in health, safety or other matters which the Commission may legally consider: . . . (g) Inadequate turning radii . . . [T]he turning radii on on-site access roads are inadequate for the emergency vehicles used by the Fire Department." ROR in 2009 Decision, Item 100, pp. 48-51.

On remand, however, the commission's expert prepared turning diagrams purporting to show that the town's largest fire truck would overrun curbs and sidewalks at certain corners and intersections, cross onto the land of certain parcels designated for homes at those locations, and need both sides of the roadway at other curves or intersections. See RROR, Item 10. At the public hearing, however, Garden Homes traffic engineer Kevin Hua testified that Adler had used incorrect fire truck dimensions for creating those turning diagrams. Transcript, RROR, Item 29, p. 19-22 (Bates Nos. 0340-0343). Contrary to the argument from Garden Homes' counsel, the accuracy of the turning diagrams was a legitimate issue for the commission to consider on remand: if the applicant's turning diagrams were not accurate, the applicant would not have complied with the condition that " turning diagrams . . . be added to the plans showing the turning path for Oxford fire department trucks and that such trucks can make turns at all intersections."

The commission was thus confronted on remand with conflicting opinions from two experts--its own and the applicant's. Both experts maintained that the turning diagrams it had designed were based on the town's largest fire truck, which both experts agreed was a model called the Ladder Quint Arrow XT, manufactured by Pierce Manufacturing, Inc. But they disagreed about the dimensions of that fire truck. As an example of the difference in dimensions, Hua's opinion was based on a fire truck wheel base between front and rear axes of just under twenty-one feet, ¹⁷ while Adler said that the distance was " just under twenty-nine feet." Id., p. 35 (Bates No. 0356).¹⁸ Both sides maintained that the source of those dimensions were documents in the record that had been provided by the town fire marshal and contained the fire truck dimensions used by that expert.

17 At the final remand hearing on September 29, 2015, Hua told the commission that the correct dimensions of the fire truck were contained in a document entitled " Pierce Turning Performance Analysis" located at RROR, Item 14e (Bates No. 00145). See transcript, p. 19; RROR Item 29 (Bates No. 0340). That document stated that the wheelbase of an Arrow XT, truck 20492, was 247.50 inches, or 20 5/8 feet. While the document containing the dimensions relied on by Hua appears to have been submitted into the remand record by Garden Homes, Garden Homes's attorney expressly told the commission at the remand hearing that this document " was provided to us when this application first came in by your fire department. That's why it was used for analysis." Transcript, RROR 29, at 39 (Bates No. 0360).

18 The Adler letter of September 25, 2015, stated that it had based its dimensions for the fire truck and its turning diagrams on a memorandum from the Oxford Fire Department to the commission that showed the wheelbase of the vehicle to be 28.9 feet. See RROR, Item 15, page 1 (Bates No. 0165). Similarly, at the September 29, 2015, hearing, Adler representative O'Rourke said that the Adler turning diagrams were based on " information provided to us . . . [in] a plan which is prepared by Pierce. It is titled Oxford Volunteer Fire Department, 105-foot Ladder Quint Arrow XT . . . submitted to the Commission on April 15, 2014, . . . by Fire Marshal Scott P." Transcript of Hearing on September 29, 2015, at page 35; RROR, Item 29 (Bates No. 0356). That document is located in the remand record at Item 16 (Bates Nos. 0170-0171).

A zoning commission is generally allowed to make credibility decisions, in terms of which witness it will believe. In affordable housing cases, however, if a commission decides to disbelieve expert opinion offered by an applicant's expert, that commission must have sufficient evidence in the record to warrant doing so. " Although the commission would have been entitled to deny an application because it did not believe the expert testimony, however, the commission had the burden of showing evidence in the record to support its decision not to believe the experts--, i.e., evidence which undermined either the experts' credibility or their ultimate conclusions." Kaufman v. Zoning Commission, supra, 232 Conn. 156-57. Moreover, " [w]here a commission has expressly set forth the reasons in support of its decision, a reviewing court " may only determine if the reasons given are supported by the record and are pertinent to the decision . . ." (Internal quotation marks omitted.) Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 50, 484 A.2d 483 (1984).

In the present matter, the commission's decision on remand acknowledged the conflict between the opinions of the two experts, but said that it had decided to believe its own expert, and disbelieve the applicant's expert, because the commission concluded that Hua had relied on incorrect " information contained in Record Document 17, which was submitted to the Commission by the applicant" about fire truck dimensions whereas the Adler turning diagrams were based on " more accurate information" fire truck dimensions " contained in Record Document No. 13, provided by the Town of Oxford Board of Fire Chiefs." RROR, Item 14, p. 3 (Bates No. 0184). The conclusion that the Adler turning diagrams were more accurate was the linchpin in the commission's collateral conclusions that fire trucks overrunning the edge of the interior roadways ran " the risk of become mired" in the drainage bioswales that are located one foot from the edge of the road since there were no sidewalks, curbs, mountable curbs, or other clear areas next to the interior roads. Because of that risk, the commission concluded that the centerline radii of the access and interior roadways were insufficient to allow safe passage of town fire trucks. That conclusion was also the source of the commission's finding that the physical geometry of the Emily Drive entrance into the development would be unsafe.

The commission specified the reason, moreover, that it found the Adler opinions more credible than those presented by the applicant's expert--because Adler said that it had relied on fire truck dimensions provided by the fire chief and contained in a document located at Bates Numbers 0170-0171 in the remand record. The commission having given a reason for rejecting Hua's credibility and instead crediting that of the Adler people, the court must scrutinize the record to ascertain whether there is sufficient evidence to support that reason. Any information in that document as to the actual dimensions of the particular fire truck, however, is illegible. The court requested a more legible copy, and was provided by the parties with what they asserted was the clearest copy in the zoning office, but the relevant portions remained illegible. Hence, the only basis in the record to support the commission's decision that the dimensions used by Adler actually corresponded to the dimensions contained in the document by the fire chief is illegible. The court's duty in an affordable housing appeal is to conduct an independent examination of the record to ascertain whether there is sufficient evidence that the commission's decision was necessary to protect substantial interests in health, safety or other matters that the commission may legally consider. The ability of fire trucks to traverse the access and interior roads of the proposed development is obviously such an interest, as is the safety of the physical geometry of the Emily Drive entrance. In the absence of legible evidence to support the commission's decision to disbelieve the applicant' expert and instead believe its own expert, however, the record here does not satisfy the sufficient evidence standard.

In addition, the specific opinions provided by Adler do not satisfy the sufficient evidence standard for showing a danger to public safety. The commission's decision stated that a fire truck overrunning the road edge " run [ s ] the risk of becoming mired" in the bioswales that are located one foot from the edge of the interior roadways. A risk, however, is not sufficient reason to deny affordable housing. The Adler letter stated that " it would be extremely difficult" for Oxford fire trucks " to quickly access and safely navigate the streets and intersections on-site, increasing the response time to an emergency." RROR, Item 10, p. 8 (Bates No. 0089). That letter also stated that the fire truck would overrun curbs and sidewalks, and sometimes cross onto the land of certain of the individual parcels, but since there are no curbs and sidewalks next to roads in the development, the court assumes that such a statement means that the fire truck would overrun the edge of the road. Adler representative Michael O'Rourke testified that the " at almost every intersection for almost any turning maneuver the ladder truck would not stay in the paved roadway and would go outside of the paved roadway . . . And depending upon the vehicle, how fast it is being moved, and things like that, other things could potentially happen as a vehicle leaves the paved area to go over whatever is at those corners." Transcript, RROR, Item 29, p. 10 (Bates No. 0331). When asked whether " what you're saying that that the ladder truck when trying to go around one of these corners is going to drive into a ditch, " he answered " Essentially, yes." Id. From these opinions and information provided by Adler, the commission then found that the centerline radii of the roads were " insufficient to allow safe passage of the fire apparatus used by the Town of Oxford."

Adler did not provide specific data, however, as to how far the fire truck wheels would run over the road edge, and in certain instances the Adler letter merely stated that the overhang above the fire truck wheelbase would overrun the road. The Adler letter contained eight enlarged drawings of the turning diagrams at various curves and intersections and separate discussions of the " turning movements" at each such location. None of those drawings or discussions specified how far a fire truck might overrun the road edge, how far any protrusion into the basin area might extend, whether one or both of the tires on a particular side of the fire truck would overrun the road edge and into the bioswale basin, and the probability of actually getting mired in the bioswale. Despite O'Rourke's answer that a fire truck might drive into a ditch, the closest that the actual turning diagrams and detailed discussion of each curve and intersection came to saying that was a statement that at certain locations the fire truck overhang would extend into the basin area.¹⁹

19 For example, the Adler letter stated " the fire truck entering via Emily Drive would overrun the far curb . . . in the vicinity of Parcel 21. No vehicles could be permitted to park on the section of Emily Drive in the vicinity of Parcel 21 and Parcel 22 to permit the fire truck to complete the turn and continue into the site." RROR, Item 10, at p. 3 (Bates No. 0084). In discussing an interior intersection, for a right turn from Jessica Lane onto Naomi Lane, the letter stated that " the fire truck would overrun the roadway curb and sidewalk on the east side of Naomi Lane in the vicinity of Parcel 38 and Basin 3. The vehicle overhang would further extend over the basin area. No parking of private vehicles can be permitted in these areas." Id., 5-6 (Bates Nos. 0086-0087).

The commission's concern and conclusion about the " physical geometry of the Emily Drive access point" or the ability of fire trucks to traverse the entrances and interior road ways safely thus may qualify as " more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest, " but the record does not meet the required standard of showing " a quantifiable probability that a specific harm will result if the application is granted." " The record must establish more than a mere possibility of harm to a substantial public interest . . . The record must contain evidence as to a quantifiable probability that a specific harm will result if the application is granted . . . Mere concerns alone do not amount to sufficient evidence to support the denial of an affordable housing application pursuant to § 8-30g(g)." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 130 Conn.App. 36, 58, 21 A.3d 926, cert. denied, 303 Conn. 909, 32 A.3d 962 (2011).

And finally, on this issue, the commission's remand decision does not meet the required standard of showing that the commission considered " whether the public interest can be protected by reasonable changes to the affordable housing development." While a commission is " not required to make an affirmative statement in its decision explicitly declaring that no reasonable changes to the proposed development could protect the public interests"; (emphasis in original). Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 729; its analysis must nonetheless demonstrate why reasonable changes would not protect the public interest. For example, the Adler turning templates show the fire truck overrunning the road edge at certain intersections where the curb radii were twenty-five feet. In the revised application, however, Garden Homes had increased the curb radii at certain corners to thirty feet to address the cross slopes issue. The Adler turning diagrams for those corners with thirty-foot curb radii do not show the fire truck overrunning the road edge, but merely that a fire truck would occupy the entire roadway for a certain distance after the curve. And Garden Homes has already increased the curb radii at the Hurley Road--Emily Drive intersection to accommodate the traffic island and mountable curb the separating traffic lanes. (At the final hearing on the remand application, Garden Homes's attorney told the commission that the corner radii at Emily Drive had been increased to thirty-five feet to accommodate the installation of the island barrier.) The site plan drawings show that both access roads abut snow storage areas for the development, and there seems to be no reason that the road width or curb radii could not be further increased at those two locations to enhance the safety of fire trucks entering and leaving the development. The commission's decision, however, shows no consideration of directing the applicant to increase the curb radii; nor is there any consideration shown of the possibility of installing grates over bioswales in areas where there is a risk of fire truck overrun to prevent the fire truck from becoming mired in a bioswale.

The commission's decision that the curb radii are insufficient thus does not satisfy the requirements of subsections (A) and (C) of § 8-30g(g)(1) that the decision be supported by sufficient evidence in the record that " the decision is necessary to protect substantial public interests in health, safety or other matters which the commission may legally consider" or that " such public interests cannot be protected by reasonable changes to the affordable housing development." At argument before this court, Garden Homes' counsel urged approval of the application and assured the court that the commission and applicant would thereafter be able to work out any remaining differences. For example, Garden Homes's attorney expressly offered to widen the road at the Emily Drive access point if the Commission wants to address physical geometry issues.

C

Other Issues Not Remanded to the Commission

In denying the revised site plan on remand, the commission provided other reasons that were not within the scope of the court's remand order: " roadways . . . too narrow to allow people to yield to emergency vehicles particularly because they cannot pull off the road due to the bioswales"; RROR, Item, 18, p. 2 (Bates No. 0183); and location of Emily Drive 140 feet away from the other access road into the development from Hurley Road. Id., p. 6 (Bates No. 0187).

Under the affordable housing statute, " if a town denies an affordable housing land use application, it must state its reasons on the record, and that statement must take the form of a formal, official, collective statement of reasons for its actions . . ." Christian Activities Council, Congregational v. Town Council, supra, 249 Conn. 576. The role of the court on appeal is to determine if there is sufficient evidence to support those reasons, not to scrutinize the record to determine if there were possible other reasons that might have supported the decision. See, West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994).

As this court has previously pointed out, the only substantive reason given by the commission for denying Garden Homes' application in 2014 had been the presentation of " new information." None of these not-remanded issues, however, were " new" at the time of the final hearing before the commission in 2014 on the original 2014 application.

The two access roads from Hurley Road into the development were located 140 feet apart on the originally-filed 2014 application.

The interior roads on the original application were all twenty-four feet wide, in compliance with the commission's regulations adopted as a result of Judge Pickard's decision.²⁰ Drainage bioswales were located one foot adjacent to those roads, instead of sidewalks (which were not required by those regulations.)²¹

20 Under General Statutes § 52-163, " [t]he court shall take judicial notice of: . . . (3) ordinances of any town, city or borough of this state, and (4) regulations of any board, commission, council, committee or other agency of any town, city or borough of this state." The court hereby takes judicial notice of the following: Oxford Zoning Regulations, Oxford Subdivision Regulations, and the Oxford Code of Ordinances.

21 The issue of whether sidewalks should be required in the Garden Homes development as a matter of public health and safety was raised early in the commission's review of the original 2014 application. Professional Engineer James Galligan, from the engineering firm Nafis & Young that had been retained by the commission, commented in a letter to the commission dated April 8, 2014, that " Nafis & Young did not find any discussion of pedestrian mobility. No sidewalks are proposed as part of this project. Our opinion is that the level of pedestrian safety associated with a project this size (124 units) requires sidewalks." Certified List on 2014 appeal, Item 79, attached to plaintiffs' trial brief in that proceeding as exhibit E, p. 4. One week later Garden Homes' attorney responded to the commission, in a letter dated April 15, 2014, that " Sidewalks were not part of the original application, and the lack thereof was not raised by Nafis & Young then or included in Judge Pickard's remand. If the lack of sidewalks was not an issue of public health and safety outweighing the drastic need for affordable housing in the Town of Oxford in 2007, it certainly is not one now, considering the decline in the affordability of housing in the Town of Oxford." Certified List on 2014 appeal, Item 118, attached to plaintiffs' brief in that proceeding as exhibit I, p. 8.

Yet, despite having ample notice of the location of the second access point via Emily Drive, the width of the access and interior roadways, and the location of drainage bioswales rather than sidewalks adjacent to those roads, none of these issues were identified as reasons by the commission for denying that application in its original decision. The commission had ample time to consider issues regarding the location of the new second access road into the development that had been ordered in 2009 by Judge Pickard, the narrowness of the roads, and the lack of sidewalks next to the interior roads, none of which was " new information" as of the last public hearing. Nor were these " new issues." The commission has been citing " minimal roadway width" as a problems with regard to Garden Homes' efforts to develop this property as affordable housing since Garden Homes' first applications to build a development in this area back in 2006.²² The twenty-four-foot wide interior roadways of the present application comply with the commission's recommendation in 2007 to address the " safety concerns" that the commission stated as a reason for rejecting the original application submitted by Garden Homes in 2006, ²³ but, even after Garden Homes proposed regulations and altered its plans for the development to comply with this recommendation, the commission has continued to mention narrow roads as a reason for rejecting Garden Homes' applications.²⁴ The location of Emily Drive as the second access point had been known since the very first day that Garden Homes submitted the site plan drawings for the 2014 application. The commission's time and opportunity to deny the 2014 application for one of these reasons expired at the end of the sixty-five-day statutory period provided by the legislature for it to review and decide zoning site plan applications.²⁵ And none were within the scope of the issues remanded to the commission by this court. Hence, none are valid reasons for denying the application on remand.

22 The commission's decision on February 20, 2007, decision denying Garden Homes' 2006 applications to amend the zoning regulations, to rezone this property and issue a zoning permit, and to approve a site plan had also identified road width as a reason for rejecting those applications: " We have set forth below the deficiencies in the Site Plan that implicates substantial public interest in health, safety or other matters which the Commission may legally consider: . . . (e) Inadequate road width . . . [t]he roadways are too narrow to allow emergency access in staging during emergency events. This problem is exacerperated [sic] because there is limited parking for visitors on the site, leading to the probability that cars will be parked on one or both sides of the accessways." ROR in 2007 appeal, Item 100, pp. 48-51.

23 The February 20, 2007, decision of the commission stated that the safety concerns regarding " [i]nadequate road width . . . could be addressed by widening the internal roadways to comply with the roadway width standards of the subdivision regulations." Id., 59.

24 After the commission rejected Garden Homes' initial 2006 applications, in February 2007 Garden Homes filed a " resubmission application, " which the commission also denied, in its decision dated September 20, 2007. See 2009 Decision. Garden Homes had revised the site plans and proposed zoning amendments to provide that internal roadways would now be twenty-four feet wide. See Plaintiff's Brief dated October 24, 2008 (2007 appeal), p. 13. The commission's September 2007 decision did not identify such a road width as a reason for rejecting the proposed zoning amendments; see commission decision, pp. 59-60; but, in conjunction with the commission's complaint about " inadequate parking, " its decision stated that " [t]he lack of parking could be remedied" in part by " wider roads." Id., 61. In its briefs to the court, the commission repeatedly referred to " minimal roadway width"; see, e.g., Defendant's Brief dated July 28, 2008 (2007 appeal), p. 54; and " safety concerns" related to " inadequate parking, " combined with the " narrower roads." See id., 53.

25 General Statutes § 8-7d provides, in pertinent part, as follows: " (a) In all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter . . . and a hearing is required or otherwise held . . . such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty-five days after such hearing commences, unless a shorter period of time is required under this chapter . . . (b) Notwithstanding the provisions of subsection (a) of this section, whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered not later than sixty-five days after receipt of such site plan . . . (c) For purposes of subsection (a) or (b) of this section . . . the date of receipt of a petition, application, request or appeal shall be the day of the next regularly scheduled meeting of such commission, board or agency, immediately following the day of submission to such commission, board or agency or its agent of such petition, application, request or appeal or thirty-five days after such submission, whichever is sooner . . ."

D

Conclusion

The burden on a zoning commission in affordable housing cases is substantially different from that in regular zoning appeals. A commission's decision must be based on evidence in the record, and a reviewing court can only consider the sufficiency of the reasons stated in the commission's decision. In addition, public authorities must consider whether any modifications to an affordable housing application could adequately protect the public interest.

The court has conducted its own plenary review of the record, finds that the commission has not sustained its burden of proof as to any of its stated reasons for denying the revised site plan and further determined that the public interest could have been protected by the application commission conditionally approving that application subject to certain changes found reasonable, as set forth in this and the court's 2015 decision, thereby ensuring that the site plan conformed to most of the modifications to which Garden Homes had agreed by conditioning approval on such conformity. In those respects, Garden Homes had adequately addressed concerns raised by the commission and the expert consultants it had retained. Admittedly, the plans submitted by Garden Homes on the final day of public hearing did not reflect many of the modifications or revisions to which Garden Homes had agreed, but the public interest could have been protected by the commission conditionally approving the application with regard to those issues and as set forth below with respect to the issues remanded:

1. In order to prohibit on-street parking and enforce that prohibition, Garden Homes will include the provisions contained at Bates No. 0153 of the record on remand in each lease agreement, subject to the following conditions:

a. Garden Homes shall record the parking enforcement policy on the land records as an encumbrance against the property and as a covenant running with the land in favor of the town;

b. The parking enforcement rules and policy shall run with the land if ownership of the development or individual units is transferred;

c. Each lease agreement shall contain provisions that failure to comply with the parking ban or to enforce the no-parking policy constitutes a violation of zoning regulations and would subject a property owner to cease and desist orders, zoning enforcement orders and actions, and fines and penalties as may be provided in statutes and town ordinances;

d. Garden Homes shall contract with a towing company to provide twenty-four-hour towing, upon notice from Garden Homes, the town, or an agent of the town of a car parked in violation of the no-parking signs and lease restriction; and

e. Garden Homes shall provide twice-yearly reports to the commission on compliance with the parking ban and any enforcement actions.

2. With regard to the limited line of sight on Emily Drive toward the west on Hurley Road, as condition of approval of the application, Garden Homes shall:

a. Increase the curb radii to 35 feet;

b. Add appropriate signage prohibiting left turns [into the eastbound lane of Hurley Road coming from the west] out of Emily Drive onto Hurley Road; and

c. Install an island with a mountable curb directing traffic on Emily Drive to make only right turns onto Hurley Road.

Whether fire trucks can navigate the access points and interior roadways without overrunning the road edge, however, remains unclear, and is a potential safety issue in view of the location of bioswales next to the interior roads rather than sidewalks (over which fire trucks wheels overrunning a road edge could likely traverse safely). Although neither the record nor the planning and zoning office apparently has a clean copy of the document located at Bates number 0170 and 0171, which on its surface it purports to have been transmitted in 2014 by the fire marshal, the applicant's lawyer has insisted that the document located at Bates number 0145 was also provided by the fire marshal in 2014. The actual dimensions of the town's largest truck, even if not in the record or on file in the office of the planning and zoning commission, can surely be easily obtained, either from the fire marshal directly or the manufacturer, and is objective information over which there should be no legitimate dispute. On this issue, specifically to determine the actual dimensions and turning radii of the town's largest fire truck and the extent of any protrusion into areas beyond the edge of the road, the matter is remanded to the commission with direction to provide that information back to the court within sixty days of the date of this decision, along with the reasons and evidence supporting such a determination.

The court cautions the parties, however, that this remand is not for a full new hearing, but is limited to this specific issue. This time will also provide the parties with opportunity, however, to consider other possible changes to the application that would address concerns raised by the commission about the road width, turning radii at various locations, and any protrusion beyond the road edge. Such an opportunity is not intended to justify new hearings, but instead to allow the applicant and commission time to resolve these issues informally. The court specifically reserves the issue of whether compliance with town regulations would override any such of these issues.

The parties shall report to the court within sixty days whether they have resolved the issues above related to the correct fire truck dimensions and turning radii and whether they have been able to resolve between themselves other concerns raised herein that have not been found to provide a sufficient basis to sustain the commission's decision.

The appeal of the plaintiffs, Garden Homes Management Corporation et al., is sustained, with the conditions as set forth in this court's two memoranda of decisions and except as now remanded back to the commission, with direction to proceed in accordance with this decision and to report back to the court within sixty days.

IT IS HEREBY SO ORDERED.

In 2006, Garden Homes filed its first affordable housing application seeking commission approval for a development containing 127 manufactured mobile homes. After the commission denied that application in February 2007, Garden Homes filed a modified application that same month seeking amendments to the town's zoning regulations and zoning map, a zoning permit, and approval of a site plan to build 113 mobile manufactured dwellings that would have included affordable housing. After the commission denied that application in September 2007, Garden Homes then filed an appeal under the affordable housing statute. On November 3, 2009, the court, Pickard, J., issued a decision sustaining the affordable housing appeal (2009 Decision). The court remanded the proceedings to the commission with direction to adopt the proposed regulations, rezone Garden Homes' property, and approve the site plan and zoning permit applications subject to certain conditions that the court found reasonable and necessary to address certain health and safety issues.

A letter to the commission from its traffic safety consultant B. Adler dated September 10, 2015, stating that " a left-turning truck would overrun the far curb of the roadway while entering the Site"; (emphasis in original) RROR, Item 10, p. 4 (Bates No. 0085); and that " Fire Department vehicles in the Town of Oxford would be limited in their ingress and egress of Emily Drive suggesting that Emily Drive is a poor location as a secondary means of access into and out of the development." Id., p. 9 (Bates No. 0090). (The first quotation from the Adler letter actually referred to access to the development from Hurley Road onto Oxford Commons West, the other access road into the development, but the inaccuracy is of no consequence as the letter said virtually the same thing regarding the Emily Drive access: " the vehicle overhang of fire truck entering via Emily Drive would overrun the far curb at the entrance." (Emphasis in original) Id., p. 4 (Bates No. 0085); Testimony of Michael O'Rourke, another traffic safety consultant from Adler Consulting, at the September 29, 2015, hearing. RROR, Item 18, p. 5 (Bates No. 0186). O'Rourke stated that " the proposed left turn sign prohibition--or the proposed left turn prohibition with signing and even with some type of traffic island from Emily on to Hurley is really not sufficient to prevent left turn movements . . . You need something more . . . If there is a small raised concrete island, you now have a possible problem for an emergency vehicle trying to get into the site, via Emily." Transcript of Hearing on September 29, 2015, RROR, Item 29, p. 6 (Bates No. 0327); Testimony of Bryan Miller, the town's planning consultant, at the September 29, 2015, hearing, on page 44 of the transcript. RROR, Item 18, p. 5 (Bates No. 0186). That page records Miller's statement that " [t]he one that works . . . is actually a curbed entrance that prevents you from turning left . . . But then I was told by the safety experts that that would hinder the introduction of the emergency access because if there is an actual curb of, I don't know, of four inches or six inches or whatever it is . . . But when you prevent the left turn, you also, effectively, you hinder the access of the fire or the emergency vehicles . . ." Id., 44 (Bates No. 0365).

In response, at the first remand hearing on September 15, 2015, Garden Homes proposed, in addition to the stop and no-left-turn signs on Emily Drive at its intersection with Hurley Road, installation of " a [flat] concrete island, a low island, with striping, so, you can follow over it; a fire truck can drive over it; but it will direct people to a right-turn-only situation in addition to the signage." Id., 5 (Bates No. 0243). As noted in the text above, the commission stated that " a low-profile physical barrier to left turns onto Hurley Road, such as . . . mountable curbing" or Belgian Blocks would not be effective to prevent left turns, as motors will continue to ignore the prohibition." RROR, Item 18, p. 5 (Bates No. 0186). For this proposition, the Final Resolution stated that the commission " relies on the expert testimony presented to it" by its traffic and planning consultants on pages 6, 13-16, and 44 of the transcript of the final hearing. RROR, Item 18, p. at 5 (Bates No. 0186). The court has reviewed those portions of the transcript recited by the commission: Pages 6 and 13-16: On these pages, traffic safety consultant Michael O'Rourke stated that: " the proposed left turn sign prohibition--or the proposed left-turn prohibition with signing and even with some type of traffic island from Emily on to Hurley is really not sufficient to prevent left-turn movements . . . You need something more . . . If there is a small raised concrete island, you now have a possible problem for an emergency vehicle trying to get into the site, via Emily"; Transcript of Hearing, September 29, 2015, RROR, Item 26, p. 6 (Bates No. 0327); and, " No left turn signs supplemented by the raised concrete island would typically be the mitigation that would be recommended. However . . . the [fire department's] ladder truck . . . is now going to overrun whatever is on that road . . . You've essentially created an obstacle to be addressed in another fashion." Id., p. 13-14 (Bates Nos. 0334-0335). Page 44: On this page, planning consultant Bryan Miller stated that " [what] works is . . . actually a curbed entrance that prevents you from turning left . . . But then I was told by the safety experts that that would hinder the introduction of the emergency access because if there is an actual curb of, I don't know of four inches or six inches or whatever it is . . . But when you prevent the left turn, you also, effectively, you hinder the access of the fire or the emergency vehicles . . ." Id., p. 44 (Bates No. 0365). When specifically asked by a Garden Homes representative " [w]hat about a mounted curb, a so-called-Cape Cod curve?" Miller stated: " I'll defer. I'm not an expert on that, okay, and I'll admit that . . . I don't know. That is up to I think the decision of or the opinion of either the traffic experts or more importantly the fire marshal and the State Police." Id., 44-45 (Bates Nos. 0365-0366). On the issue of whether a mountable curb would effectively channel traffic on Emily Drive toward a right turn, both the planning and traffic consultants thus agreed, contrary to what the commission resolution states, that installation of a mountable concrete island would resolve the commission's concern that motorists would ignore the no-left turn sign. Thus, there was no evidence that a mountable curb would not prevent left turns.

As noted in the text, however, the commission's Final Resolution did not state, as a reason for rejecting the adequacy of the no-left-turn sign and mountable curb, that emergency vehicles could not traverse a mountable curb. (The commission's Final Resolution did state, however, that " high profile curbing" in contrast with its description of " mountable curbs" as " low-profile physical barriers" would prevent access to the site by emergency vehicles.) See RROR, Item 18, p. 5 (Bates No. 0186).

The regulations adopted by the commission upon remand by the court in the 2007 appeal are contained in Article 6A of the Oxford Zoning Regulations, captioned " Mixed Income Housing District." ROR, Item 6. Section 6A.9, captioned " Interior Roadways, " provides, in pertinent part, as follows: " All manufactured home spaces shall abut an interior roadway with a paved travel way no less than 24 feet in width." Id. The town regulations for certain other types of housing also allow roads that are twenty-four feet wide: Article 5A of the Oxford Zoning Regulations governs " Residential Golf Community Districts." Section 5A.4, captioned " Roads & Access Ways, " states in pertinent part as follows: " 5A.4.2 Design and Construction Standards A) Except for the portion of the interior road which serves the golf course and club house, 65% of the roads in the project area shall be at least 24 feet in width and 35% of the roads in the project shall be at least 22 feet in width." Article 10 of the Oxford Zoning Regulations governs " Special Exceptions." Section 10.10 of that article provides the regulations for " Age Restricted Housing" for residents who are 55 years or older living in independent living units, congregate care facilities, assisted living facilities or nursing convalescent facilities. Section 10.10.8, captioned " Roadways and Sidewalks, " provides, in pertinent part as follows: " (B) Except for one-way travel lanes, the internal roads in the project shall be at least 24' in width." Similarly, Article 6 of the Oxford Subdivision Regulations is captioned " Design and Construction Standards." Section 6 of that article, captioned " Private Roads in Place of Public Highways, " provides, in pertinent part, as follows: " The Commission may, at its discretion, for good cause shown, approve lots with frontage on a private road . . . 6.5 All private roads shall be constructed in accordance with the standards and requirements of the Town Road Ordinance." The town road ordinance is contained in the Oxford Code of Ordinances. Section 98.001, captioned " Street, Roadway and Sidewalk Widths, " provides in pertinent part as follows: " (A)(1) The right-of-way to be dedicated for a public street in the town shall be defined as one of the following . . . LOCAL STREET. A street primarily providing access to abutting residential properties can be a through street or a street ending in a permanent or temporary turnaround (cul-de-sac) . . . (B)(1) Roadway, sidewalk and curb details will conform to typical cross sections described below: (1) Pavements shall be designated with a crown at the centerline and a cross slope of three-eighths inch per foot with a minimum width between curbs of . . . 24 feet for local streets."

The court notes that engineer Galligan's letter discussed the necessity of sidewalks in terms of pedestrian circulation, not as an aid to the circulation and maneuverability of the town's fire trucks. Nonetheless, the commission was aware of the issue of whether sidewalks should be required in the Garden Homes development well in advance of the final public hearings on the original application, and the commission did not give the lack of such sidewalks (or the presence of bioswales next to roadways) as a reason for denying that application.