Opinion
LNDCV156062796S
09-20-2016
Milford Developers, LLC et al. v. Milford Planning and Zoning Board
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
I
The plaintiff, Milford Developers, L.L.C. (Milford Developers), is the contract purchaser of twenty-six acres of land known as Wheelers Woods with an address of 0 Wheelers Farms Road in Milford. Milford Developers and the parcel's current owner, the coplaintiff, Wheelers Woods, LLC, appeal from an August 4, 2015 decision by the defendant, the city of Milford planning and zoning board (board). The board denied the plaintiffs' three applications made pursuant to General Statutes § 8-30g to adopt a new housing opportunity district (HOD) allowing the construction of affordable housing, to rezone the parcel to the HOD district and to approve a site plan for a 180-unit development. (Return of Record [ROR], Item 20; Item 82.) The parcel has frontage on both Wheelers Farms Road and East Rutland Road and is the southerly portion of a larger piece of land known as 440 Wheelers Farms Road--which is the location of the Merritt Crossing office building--that was subdivided in 2004. (ROR, Item 75; Item 125.) One of Merritt Crossing's auxiliary parking lots is located on the subject parcel. (ROR, Item 6; tab 2; Item 75.) It is bounded on the south and east by single-family homes on Wheelers Farms Road and East Rutland Road and on the west by the " Milford Connector" which connects the Merritt Parkway to Interstate 95. (ROR, Items 5-6; Item 75.) Most of the parcel is currently zoned as Design Office-25, for commercial office use, and a small portion is zoned R-A, for residential use. (ROR, Items 5-6; Item 75.)
Section 8-30g applies if less than 10 percent of the dwelling units in the municipality meet the statutory criteria for affordable housing. General Statutes § 8-30g(k). In the board's brief, it argues that the plaintiffs have not proven that Milford needs the affordable housing as proposed in this project and that there is sufficient evidence in the record to support the denial of this application based upon lack of need. Section 8-30g(k) does provide an exemption to the strict review process for affordable housing applications. Specifically, § 8-30g(k), in relevant part, provides: " 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 located in mobile manufactured home parks or legally approved accessory apartments, which homes or apartments are 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, for a period of not less than ten years, 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. The municipalities meeting the criteria set forth in this subsection shall be listed in the report submitted under section 8-37qqq . . ." Nevertheless, according to the 2015 Connecticut department of housing affordable housing appeals list attached to the plaintiffs' brief (pleading #126.00) at appendix page 146, only 5.49 percent of Milford's housing stock qualifies as affordable. Therefore, Milford is not entitled to an exemption under § 8-30g(k) and is therefore subject to the statutory scheme of § 8-30g.
The plaintiffs filed the applications in January 2015, and thereafter submitted further revisions. (ROR, Item 6; Item 36; Item 51; Item 68; Item 82; Item 115.) The board opened the public hearing on May 19, 2015, continued it on June 16, 2015, July 7, 2015, and July 21, 2015, and concluded it on August 4, 2015. (ROR, Items 59-60; Items 79-80; Items 101-02; Items 113-14; Items 139-40.) On that latter date, the board denied the proposed HOD regulation and the rezoning of the parcel without providing reasons and denied the site plan articulating nine reasons. (ROR, Item 141.) Notice of the decision was published in the Milford Mirror on August 13, 2015. (ROR, Item 142.)
Simultaneously with the subject zoning applications, the plaintiffs filed an application for an inland wetlands permit with the Milford inland and wetlands and watercourses agency (agency). (ROR, Item 60.) The site plan involved the same footprint as that approved by the agency in the 1986 application for phase two of the Merritt Crossing development. (ROR, Item 6; Item 36; Item 60.) While phase two was not built, topsoil from much of the subject parcel was removed for the first phase, leaving ditches and depressions which over time became vernal pools. (ROR, Item 60.) Indeed, 6.5 acres of the subject parcel constitute wetlands although only .02 acres in the northwest corner are within the proposed development area. (ROR, Item 6; Item 60, p. 13.) The agency conditionally approved the application, as revised to June 29, 2015, in a letter dated July 16, 2015. (ROR, Item 106.)
The plaintiffs commenced this appeal on August 18, 2015. On October 27, 2015, the board filed an answer. The board filed the return of record on November 18, 2015, and its brief on February 26, 2016. On March 21, 2016, the plaintiffs filed their brief and the board filed a brief in reply on April 12, 2016. The court heard the appeal on June 9, 2016. On June 15, 2016, the plaintiffs filed a supplemental brief addressing the court's questions regarding a part of the results of the Phase I environmental study attached to the plaintiff's brief. (Pleading [Pl.] #126.00, pp. A-120-A-123.
The designation " A-page number" refers to the appendix items attached to pleading #126.00, submitted with the plaintiffs' brief on March 21, 2016.
II
A stipulation of facts, with related exhibits, was introduced on June 9, 2016, before this court. (Exhibit 1.) The stipulation indicates that Wheelers Woods, LLC has been the fee owner of the parcel and that Milford Developers has been the contract purchaser throughout the administrative process up to the present time. In the board's brief, it notes that the three separate applications can all be considered as one under § 8-30g. See, e.g., River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 30-31, 856 A.2d 973 (2004); Wisniowski v. Planning Commission, 37 Conn.App. 303, 317-18, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995). Furthermore, it concedes that Milford Developers is aggrieved under General Statutes § 8-30g(f) as the applicant. Accordingly, this court finds that both Wheelers Woods, LLC; see Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 527, 119 A.3d 541 (2015) (" [i]t is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner"); and Milford Developers are aggrieved. General Statutes § 8-30g(f) (" [a]ny person whose affordable housing application is denied . . . may appeal such decision pursuant to the procedures of this section . . .").
It is noted that Wheelers Woods, LLC was the original applicant (ROR, Item 6); but that Milford Developers informed the city by letter, dated March 26, 2015, that it would be the applicant going forward. (ROR, Items 119-20.)
III
Review of an affordable housing appeal is governed by § 8-30g. Section 8-30g(g), in relevant part, 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 . . . 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."
" [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 . . . 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." (Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. at 26. " The foregoing determinations present mixed factual and legal determinations, the legal components of which are subject to plenary review . . . [T]he planning and zoning commission remains the finder of fact and any facts found are subject to the 'sufficient evidence' standard of judicial review." (Internal quotation marks omitted.) Eureka V, LLC v. Planning & Zoning Commission, 139 Conn.App. 256, 266, 57 A.3d 372 (2012).
" 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).
IV
The proposed site plan for the 180-apartment unit development of 62 one-bedroom, 100 two-bedroom, and 18 three-bedroom units included a conservation easement of 11.9 acres, or approximately 40 percent of the site, between this development and the homes on East Rutland Road and Wheelers Farms Road. (ROR, Item 82, tab 6; Item 102, pp. 9-10.) According to page seven of the plaintiffs' brief, " 54 of 180 apartment homes would be preserved for 40 years for households earning, based on 2015 data and depending on household size and number of bedrooms, between $38, 880 and $71, 885, and paying monthly rent, net of utilities, between $822 and $1, 647." Evidently in response to comments by town staff, the site plan application was revised several times during the process. (ROR, Item 6; Item 36; Item 51; Item 68; Item 75; Item 82; Item 102; Item 115.) Ultimately, the site plan was approved by the Milford sewer commission; (ROR, Item 19); the Milford city engineer; (ROR, Item 11); the Milford fire marshal; (ROR, Item 9; Item 62); the department of public works; (ROR, Item 43); the department of energy and environmental protection's (DEEP) office of Long Island Sound programs; (ROR, Item 27); and the south central Connecticut regional planning agency. (ROR, Item 46.)
As noted by the plaintiffs in their brief on page eight, " [t]he subject site is well inland from Long Island Sound . . . but because Milford itself is a coastal community, and some of its waterways drain to the Sound, it refers applications to DEEP's Office of Long Island Sound Programs."
" Section 8-30g obligates a land use agency to make a collective statement of its reasons on the record when it denies an affordable housing land use application . . . That requirement serves to provide 'a clear basis' for a court to review that decision . . . as opposed to reasons that later might be culled from the record." (Citations omitted; internal quotation marks omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission, 162 Conn.App. 678, 691, 136 A.3d 24, cert. granted, 320 Conn. 928, 133 A.3d 460 (2016). " [W]here a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision." (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994), quoting De Maria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970).
In the present case, the board stated its reasons for its denial of the site plan as follows:
" 1. Site conditions and potential hazardous materials have not been satisfactorily addressed.
" 2. The risk that contaminants such as lead, asbestos and MPBE are in the soil and were not part of soil testing that took place.
" 3. Construction of the complex would present a health and safety hazard with trucks and materials being transported through a narrow street.
" 4. Dubious statements regarding emergency access have not been satisfactorily addressed.
" 5. Fire safety concerns regarding emergency vehicle access to the property.
" 6. Rear windows of the complex could not be accessed by emergency fire vehicles.
" 7. The Police Commission had a negative review and had concerns that have not been addressed.
" 8. The emotional health of the community is negatively affected.
" 9. The proposed development is too dense and not in the best interest of the neighborhood." (ROR, Item 141.)
Consistent with the above, the court confines its review to these stated reasons. Because the board failed to address reasons three, five, eight, and nine in its brief, this court considers those reasons abandoned. See Kelib v. Connecticut Housing Finance Authority, 100 Conn.App. 351, 353, 918 A.2d 288 (2007) (" [w]here a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned" [internal quotation marks omitted]); see also Avalonbay Communities, Inc. v. Planning & Zoning Commission, 103 Conn.App. 842, 851 n.7, 930 A.2d 793 (2007) (" As a reviewing court, [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly" [internal quotation marks omitted]).
The burden is on the board, based on the evidence in the record, to prove " that the decision . . . and the reasons cited for such decision are supported by sufficient evidence in the record . . ." General Statutes § 8-30g(g). Reasons one and two concern possible contamination from the prior pesticide use and perhaps other uses on the site. The plaintiffs conducted a Phase I environmental study pursuant to DEEP's regulations to determine whether such contamination concerns were well founded and whether the property needed further exploration and ultimately remediation. (Pl. #126.00, pp. A-54-A-128.) While there was an acknowledgment of past pesticide use; (ROR, Item 102, p. 6); the property was excavated in the 1980s and the topsoil was removed and used for the development of 440 Wheelers Farms Road. (ROR, Item 102, p. 20.) The plaintiffs' licensed environmental professionals conducted soil sampling for pesticide contamination, but there was no evidence of contamination in excess of state standards. (ROR, Item 101, pp. 5-6; Item 102, pp. 5-6; Item 114, pp. 53-54; Pl. #126.00, pp. A-109-A-127.) Indeed, the level of Dieldrin, the only pesticide that was detected and in only one sample, was well below the state remediation standard regulation level. (Pl. #126.00, pp. A-109, A-118.) It is true that the soil testing, discussed previously, did not include heavy metals or " MPBE." Nevertheless, after site investigations by both the plaintiffs' licensed engineering professionals and the inland wetland agency staff, there was no indication of soil contamination warranting a Phase II environmental study or further examination. Moreover, some further testing is required in paragraphs ten and twelve of the conditional approval of the inland wetlands permit. (ROR, Item 106.)
Presumably this is a typographic error and the board's decision should have referred to MBTE for methyl tertiary butyl ether, which is a gas additive.
Regarding the concern about prior automobile salvage dumping on the property; (Item 102, pp. 3, 19-25, 34-38; Item 114, pp. 22-23; Item 126); the Phase I site walk revealed, " a dilapidated, sheet-metal truck box was observed on the southern portion of the property. Miscellaneous minor surficial debris was observed in several areas of the site, including asphalt, concrete, tires, silt fencing, metal piping, brush piles, and several five-gallon pails. GeoQuest did not observe any signs of staining or stressed vegetation in the vicinity of the truck box or debris." (ROR, Item 68, tab 4.) The plaintiffs agreed to remove all such debris. (ROR, Item 102, p. 5; Item 114, pp. 2-3.) Additionally, the concern expressed by certain individuals for further testing in connection with the automobile salvage dumping is encompassed within the conditional approval of the inland wetlands agency permit. (ROR, Item 106.)
As to environmental conservation concerns, the board argues in its brief that " [r]esidents expressed objection to the environmental damage which would be caused by this development of now a naturally wooded, wetland site of 26 acres, in an area of town which still has some natural character and wildlife." Objections by residents, without more, are nothing more than mere possibilities and do not constitute sufficient evidence. See River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. at 32 (" 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)"). This is especially true where those concerns focused on the wetlands portion of the property that, as previously noted, is within the area in the conservation easement, which was the subject of its own statutory review process; (ROR, Item 106); and over which the jurisdiction of that agency was primary. See Samperi v. Inland Wetlands Agency, 226 Conn. 579, 591-92, 628 A.2d 1286 (1993) (" The legislature . . . created an orderly statutory scheme whereby each municipality is required to 'establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of [the act].' . . . The local inland wetlands agency was given the sole authority to license and regulate wetland activities, consistent with the factors set forth by the legislature in [General Statutes] § 22a-41." [Citation omitted.]); see also Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 96, 977 A.2d 127 (2009) (" [i]n accordance with its authority as the agency charged with the preservation and protection of wetlands and watercourses in the town, pursuant to the Connecticut Inland Wetlands and Watercourses Act . . .").
In addition to several letters in opposition; (ROR, Item 56; Item 61; Item 66; Item 72; Items 97-98;); the return of record contains numerous petitions in opposition to the development. (ROR, Item 55 [28 pages]; Item 74 [24 pages]; Item 100 [37 pages]; Item 127 [19 pages].) The board's counsel stated that the petitions contain over 1500 signatures. As this court stated in TCR New Canaan v. Planning & Zoning Commission of the Town of Trumbull, Superior Court, judicial district of Hartford, Docket No. CV-0384353-S (March 5, 1992) [6 Conn.L.Rptr. 91, ], " Zoning is not to be based upon a plebiscite of the neighbors. Their wishes are to be considered but the final ruling is to be governed by the basic consideration of the benefit or harm involved to the community at large . . . Or. as stated by another court: in exercising their zoning powers, the local authorities must act for the benefit of the community as a whole following a calm and deliberate consideration of the alternatives, and not because of the whims of either an articulate minority or even majority of the community . . ." (Citations omitted.)
More generally, the board raises concerns about potential hazardous materials onsite in reasons one and two. " 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, supra, 130 Conn.App. 58. In the present case, the record does not establish more than a mere theoretical possibility of a specific harm to the public interest and the record is devoid of sufficient evidence to support such concerns.
While the burden is not exactly the same, i.e., sufficient evidence versus substantial evidence, it is informative that in another pesticide concern case the court held that " [e]vidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 71, 848 A.2d 395 (2004).
For reason four, the board stated that " [d]ubious statements regarding emergency vehicle access have not been addressed." (ROR, Item 141.) In a June 3, 2015 memorandum, Robert Healey, assistant fire chief and fire marshal, states that the main access road and the secondary access road meet the criteria for minimum width. (ROR, Item 62.) The memorandum also stated, however, that " [t]his driveway will need to be maintained and remain passable during all seasons if considered as secondary emergency access." (ROR, Item 62.) The police chief, Keith Mello, opined, " Persons attending an event at the clubhouse site would park in close proximity to the facility and create a traffic hazard condition that will impede emergency vehicles responding to any incidents in the area of the clubhouse or buildings located beyond the clubhouse site." (ROR, Item 64.)
Insofar as reason four may encompass reason six, i.e., " [r]ear windows of the complex could not be accessed by emergency fire vehicles emergency fire access through back windows, " it is noted that this is neither argued by the board in its brief nor was it mentioned by the fire department in the record. (ROR, Item 9; Item 62; Item 109.) Thus, the court does not address this reason separately.
Nevertheless, the plaintiffs, in the second supplemental materials, dated June 16, 2015, responded, " At no time will this access be opened to residents for vehicular access or recreational/pedestrian use. The access will be kept in clear, passable condition at all times for emergency vehicles." (ROR, Item 68, tab 6; Item 80, pp. 5, 15-16, 18-20; Item 102, pp. 14-15, 28-31.) On July 20, 2015, Gary Baker, assistant fire chief, indicated in a memorandum that the plan meets the requirements for fire department access. (ROR, Item 109.) Furthermore, speculation regarding illegal parking is not sufficient to deny the affordable housing application. See Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. at 708 (" 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.'") Thus, the board has not sustained its burden under § 8-30g(g) to prove that reason four is supported by sufficient evidence in the record.
In addition to reason four, reason seven states that " [t]he Police Commission had a negative review and had concerns that have not been addressed." (ROR, Item 141.) In its May 8, 2015 report to the board, the Milford police department traffic division commented on four concerns: the traffic signal at 440 Wheelers Farms Road was not functioning and needed to be repaired; the proposed 352 parking spaces did not meet the current zoning requirement of 444 spaces; if the development was required to have more than 400 parking spaces, it would need one more handicap space; and the emergency access driveway to East Rutland Road must be kept locked. (ROR, Item 44.) The police chief agreed with this report. (ROR, Item 45.) On June 2, 2015, the report was updated focusing on the 444 parking space requirement. (ROR, Item 63.) It recommended a denial of the application due to parking concerns even though the plaintiffs were still actively seeking a waiver. (ROR, Item 63.) The report was adopted by the police chief on June 2, 2015, and the police commission on June 8, 2015. (ROR, Items 63-64; Item 96.) Several residents commented at the police commission's meeting on June 8, 2015, concerning the amount of traffic on East Rutland Road and Wheelers Farms Road; (ROR, Item 96); as they did before the board. (ROR, Items 59-60; Items 79-80; Items 101-02; Items 113-14.)
Specifically, the traffic division stated: " The attached memo has a one line disclaimer addressing my concerns which I informed Mr. Sullivan about on the phone, that they 'believe' 352 parking spaces would be enough to facilitate any event that would take place at the community clubhouse due to an estimated 80 vacant parking space projection. There is no guarantee that the 80 vacant spaces will be in close proximity to the clubhouse area, rather throughout the entire complex. Persons attending an event at the clubhouse site would park in close proximity to the facility and create a traffic hazard condition that will impede emergency vehicles responding to any incidents in the area of the clubhouse or buildings located beyond the clubhouse site." (ROR, Item 63.)
The plaintiffs submitted information in response to these comments. In connection with their application for the regulation amendment, they included a traffic study, prepared by its engineers Milone & MacBroom, Inc. (Milone), dated January 9, 2015, examining both current and future traffic volume and the impact of the proposed development. (ROR, Item 6, tab 7.) The report stated, " It was found that no perceptible changes in operations are expected at area intersections due to added traffic generated by the proposed development. In conclusion, we find the traffic associated with the proposed development can be readily accommodated on the surrounding roadways." (ROR, Item 6, tab 7, p. 5.) An addendum to the traffic study, dated March 25, 2015, was filed as part of the supplemental materials to the application on April 21, 2015. (ROR, Item 36, tab 3.) It concluded, " [T]here is an overall decrease in traffic volumes on the surrounding roadways, and the study intersections are projected to have the same [level of service] found in the original traffic study. Furthermore, the residential development is not expected to adversely impact safety on Wheelers Farm Road. Therefore, the findings of our original traffic study are still valid." (ROR, Item 36, tab 3, p. 4.) On June 30, 2015, Milone again submitted a letter adding, " we are confident in our findings that the existing conditions will not be altered or made worse on East Rutland Road by the proposed development." (ROR, Item 82, tab 4; Item 83.) The board only had the expert testimony of Milone and did not conduct a second study despite requests from a number of residents.
" 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." (Emphasis in original.) Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995); see also Colberg, LLC v. Planning & Zoning Board, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-15-6052509-S, (June 29, 2015, Berger, J.) (" [w]hile courts have recognized that traffic safety is a substantial public interest . . . the record does not contain sufficient evidence to justify rejecting the expert's opinion and the town staff's recommendations"). In the present case, the commission has not sustained its burden to show evidence in the record to supports its decision not to believe the Milone report.
Regarding the total number of parking spaces, Milone wrote in a May 19, 2015 report that after studying various developments in New Haven and Fairfield county and reviewing national data, the projected number of less than 2.0 parked vehicles per unit was more than sufficient for the development. (ROR, Item 54; Item 83, p. 2.) The report concluded, " we believe that typical parking use at the Wheelers Woods Residential Community will be less than 2.0 parked vehicles per unit. If we assume a parking demand of around say 1.5 vehicles per unit, for example, the 180 proposed units would generate 270 parked vehicles. With a total of 352 parking spaces proposed, this would leave around 80 empty parking spaces on the site under typical peak conditions. During atypical times such as holidays, parties, and events at the community clubhouse, we believe that the on-site supply of 352 spaces will still be adequate to accommodate any temporarily heightened parking demands." (ROR, Item 54, pp. 1-2.) In contrast, the June 2, 2015 police review, in relevant part, stated, " There is no guarantee that the 80 vacant spaces will be in close proximity to the clubhouse area, rather throughout the entire complex. Persons attending an event at the clubhouse site would park in close proximity to the facility and create a traffic hazard condition that will impede emergency vehicles responding to any incidents in the area of the clubhouse or buildings located beyond the clubhouse site." (ROR, Item 63, p. 1.) Such a dire forecast has already been rejected by our Appellate Court. See Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. at 708 n.29 (" [t]he commission's exhortation aside, we decline to take judicial notice 'that " no parking" signs are often disregarded'").
While Milford's zoning regulations require a certain number of parking spaces, those standards do not necessarily apply to an affordable housing development. See Wisniowski v. Planning Commission, supra, 37 Conn.App. 317 (" [s]ection 8-30g does not allow a commission to use its traditional zoning regulations to justify a denial of an affordable housing application, but rather forces the commission to satisfy the statutory burden of proof"). In terms of the emergency access onto East Rutland Road, the plaintiffs agreed that the road would be locked and accessible only to emergency personnel and vehicles and would be kept in clear, passable condition at all times. (ROR, Item 68, tab 6; Item 79, p. 3.) Similarly, the plaintiffs will repair the traffic light. (ROR, Item 80, pp. 10-11.)
Traffic-related safety concerns may rise to the level of a substantial public interest. See, e.g., Landworks Development, LLC v. Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-00-0505525-S, (February 14, 2002, Eveleigh, J.). Nevertheless, when this reason and all the others given are reviewed in light of the rest of the § 8-30g standards, they do not pass muster. The board did not discuss and made no findings as to whether any of its concerns outweigh the need for affordable housing, especially in Milford; see footnote 1 of this memorandum of decision; and whether reasonable changes could resolve the issues. General Statutes § 8-30g(g). Therefore, the board has not sustained its burden to prove any of the prongs under § 8-30g(g) as to the denial of the site plan.
As indicated, the board denied all three applications, providing reasons only for the site plan denial. While the plaintiffs could have proceeded with the site plan application alone, Wisniowski v. Planning Commission, supra, 37 Conn.App. 317-18; they chose not to do so and submitted the site plan along with its application for a text amendment as well as a request for a change to the new zone. The proposed HOD regulation contains, among other things, a number of bulk standards ranging from lot size and depth and setback requirements to open space to building size to parking requirements. (ROR, Item 6, tab 5; Item 82, tab 2.) In light of the lack of any discussion on the text amendment and the failure to provide any reasons for the denial, this court is unable to determine whether it is an appropriate land use regulation for the town. It was obviously drafted to conform to the current application, but it may or may not be appropriate for other affordable developments. Section 8-30g(g), in relevant part, provides: " 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." Hence, the text of the proposed legislative enactment for the new HOD regulation as well as the subsequent zone change is remanded to the town for further consideration in light of this opinion. This court expects the board to consider the amendment as soon as reasonably possible and, of course, this court is not remanding so that the board can simply scuttle that proposal. Perhaps the board will make minor changes; perhaps it will approve it as written. As explained previously, the site plan is not legally dependent on adoption of the HOD zone--although it is what was desired by the plaintiffs. Accordingly, the board's denial of the site plan is reversed and the other applications are remanded to the board for consideration of any appropriate conditions consistent with this decision.