Opinion
No. CV 02-05155125
September 10, 2003
MEMORANDUM OF DECISION
I. PROCEDURAL HISTORY
The plaintiff is the contact purchaser of a 37.641 acres of unimproved parcel of land located at 5 Nabby Road in the Town of Brookfield. On September 29, 2000, plaintiff submitted an application for an affordable housing project consisting of four buildings with a total of 112 housing units. (Record 2.) The Commission commenced a public hearing for the purpose of considering the plaintiff's application, on January 11, 2001. The public hearing was continued to various dates. On one such date, March 8, 2001, the Commission heard the Towne Brooke Application, ended the hearing for the evening and subsequently reopened the hearing, without the applicant or his attorney present, and discussed ways in which the Commission could deny the application on purported health and safety grounds. (Record 11 at 14-21, Record 116.) The hearing was closed on March 22, 2001. (Record, 111.) On June 14, 2001, the Commission voted to deny the plaintiff's application. (Record, 125.)
Pursuant to Connecticut General Statutes Sec. 8-30g (b) the Applicant submitted an amended application on June 24, 2001. (Record, 129.) This amended application addressed the Commission's prior concerns and eliminated one of the buildings originally proposed.
On August 16, 2001, the public hearing commenced on the Amended Application and was continued to various dates. On March 14, 2002, the Commission approved the project as amended, with certain conditions. Notice of the Commission's decision was published on March 19, 2002, in the Danbury News Times. On April 2, 2002, the plaintiff appealed the Commission's decision arguing that the imposition of the conditions was a de facto denial making it impossible for the plaintiff to build the proposed affordable housing. The matter was briefed and argued before this Court on August 14, 2003.
II. JURISDICTION A. Aggrievement
Connecticut General Statutes Section 8-8 governs appeals taken from a Planning and Zoning Commission to the Superior Court. A statutory right to appeal must be in strict compliance with the statutory provisions by which it is created. Testa vs. Waterbury, 55 Conn. App. 264, 268, 738 A.2d 740 (1999). Pleading and proof of aggrievement are pre-requisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal. Jolly vs. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). "In the case of a decision by a zoning commission an aggrieved person includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the boards." General Statutes Section 8-8 (a) (1). Pursuant to Connecticut General Statutes Section 8-30g (b) "any person whose affordable housing application is denied may appeal such decision pursuant to the procedures of the section. Thus, under Section 8-30g (b) only an affordable housing applicant may initiate an appeal from a decision of a commission." Ensign Bickford Realty Corp. vs. Zoning Commission, 245 Conn. 257, 267, 715 A.2d 701 (1998). Said section further provides that "except as otherwise provided in this section, appeals involving an affordable housing application shall proceed in conformance with the provision of said sections 8-8, 8-9, 8-28, 8-30 or 8-30a, as applicable. Thus, as the reference to Section 8-8 would indicate, it is clear that aggrievement must be shown in an affordable housing appeal. TN Associated v. Town of New Milford Planning Zoning Commission, Superior court, Judicial District of New Britain, Docket Number 492236 (November 10, 1999) (Holzberg, J.).
Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected. We traditionally have applied the following two part test to determine whether aggrievement exists: (1) does the allegedly aggrieved party have a specific, personal and legal interest in the subject matter of a decision; and (2) has this interest been specially and injuriously affected by the decision." Gladysz v. Planning and Zoning Commission, 256 Conn. 249, 255-56 (2001). The plaintiff has the burden of pleading and proving aggrievement. McNally v. Zoning Commission, 225 Conn. 1, 6, 621 A.2d 279 (1993).
The parties have stipulated that the plaintiff is an aggrieved party in this case. The plaintiff has also produced deeds showing ownership of the property in the principal party of the plaintiff. The court, therefore, finds aggrievement.
B. Timeless and Service of Process
Pursuant to Connecticut General Statutes Section 8-8 (b), as amended by Public Act No. 01-47, an appeal shall be commenced by service of process within fifteen days from the date that the commission's Notice of Decision is published. Further, it shall be commenced by leaving the process with or at the abode of the clerk or Chairman of the Commissioner and with the clerk of the municipality. See Statute Sec. 8-8 (F) as amended by Public Act No. 01-17.
Plaintiff served process on the Assistant Town Clerk for the Town of Brookfield and Mr. Parker of the Zoning Commission on April 2, 2002. The legal notice of the denial of the application was published on March 19, 2002. This appeal, therefore, is timely and the proper parties were served pursuant to Connecticut General Statutes Section 8-8 (e) and 8-30 (g). For appeals brought pursuant to Connecticut General Statutes Section 8-8 (e) and 8-30 (g), the citation is analogous to the writ used to commence a civil action and directs a proper officer to summon the agency whose decision is appealed. Tolly v. Department of Human Resources, 225 Conn. 13, 18-19, 621 A.2d 719 (1993). The file contains a proper citation.
III. SCOPE OF JUDICIAL REVIEW
At the time the instant appeal was filed on April 2, 2003, General Statutes (Rev. 1999) Section 8-30g was in effect and provided, in relevant part: (A) As used in this section: (1) Affordable housing development means a proposed housing development which is (a) assisted housing, (b) in which not less than twenty-five percent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that such dwelling units be sold or rented at or below prices which will preserve the units affordable housing, as defined in section 8-39a, for persons and families whose income is less than or equal to eighty percent of the area median income or eighty percent of the state median income, whichever is less, for at least thirty years after the initial occupation of proposed development; (2) Affordable housing application means any application made to a commission in connection with an affordable housing development by a person who proposed to develop such affordable housing; (3) Assisted housing; means housing which is receiving, or will receive, financial assistance under any governmental program for the construction of substantial rehabilitation of low and moderate income housing, and any housing occupied by persons receiving rental assistance under Chapter 319 or Section 1437 of the United States code.
(B) Any person whose affordable housing application is denied or is approved with restrictions which have substantial adverse impact on the viability of the affordable housing development . . . may appeal such decision pursuant to the procedures of the section.
(C) Upon an appeal taken under subsection (b) of this section, the burden shall be on the Commission to prove, based upon the evidence in the record compiled before such commission (1)(A) the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record; (B) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (C) public interests clearly outweigh the need for affordable housing; and (D) such public interests cannot be protected by reasonable changes to the affordable housings 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.
(D) Following a decision by a Commission to reject an affordable housing . . . the applicant may; within the period for filing an appeal of such decision, submit to the Commission a proposed modification of its proposal responding to some or all of the objections or restrictions articulated by the Commission, which shall be treated as an amendment to the original proposal. The filing of such a proposed modification shall stay the period for filing an appeal from the Decision of the Commission of the original application.
Connecticut General Statutes (Rev. to 1999) Section 8-39a provides that "affordable housing" means housing for which such income is less than or even to the area median income for the municipality in which such housing is located as determined by the United States Department of Housing and Urban Development.
The scope of judicial review of a planning and zoning commission's decision in an application brought under Connecticut General Statutes Section 8-30g was changed by the Connecticut Supreme Court's July 17, 2001 decision in Quarry Knoll II Corporation et al, Planning and Zoning Commission of the Town of Greenwich et al., 256 Conn. 674 (2001). Prior to the Quarry Knoll decision, the Supreme Court held in Christian Activities Council, Congregation vs. Town Council of Town of Glastonbury, 249 Conn. 566, 583 (1999) that a Commission had the burden on such an appeal to marshal the record evidence to support its decision and to persuade the reviewing court that there is "sufficient evidence" in the record to support the reasons given, in a "formal, official, collective statement," for its decision under Connecticut General Statutes Section 8-30g (c)(1). If "sufficient evidence" in the record was demonstrated reasonably to support the Commission's determination as to all four parts of the standards for any one of the reasons given for its decision, the Commission's decision had to be upheld. Christian Activities Council, Congregational v. Town Council of the Town of Glastonbury, 249 Conn. 566, 583, 589-92 (1999).
In Quarry Knoll, the Court analyzed the effect of Public Act 00-206 section 1(g) which took effect on October 1, 2000 upon the scope of judicial review. It determined that Act clarified the statutory standard and could therefore, be applied retroactively. While a Commission's collective reasons for denying an affordable housing application are still to be upheld under CGS Section 8-30g (c)(1)(A) if there is sufficient record evidence to support them, the scope of judicial review under Subsections (B), (C) and (D) of the same statute has been changed by the Quarry Knoll Court.
The Quarry Knoll Court at pp. 726-27, described a two-step judicial review process for each reason articulated for a commission's decision:
In summary, we concluded on the basis of our review of the legislative history, that P.A. 00-206, Section 1(g), was intended to clarify the original intent of Section 8-30g (c), namely, that there are two standards of judicial review; under Section 8-30g (c)(1)(A) through (D). We begin by noting the established rule that as in a typical zoning appeal, the court's function in an appeal under Section 8-30g (c) is to review the record made in zoning proceeding. Christian Activities Council, supra 249 Conn. 582. Under Section 8-30g (c)(1)(A), the court must determine, as it had prior to the enactment of P.A. 00-206, Section 1(g), whether the Commission has shown that its decision is supported by "sufficient evidence" in the record. Under subparagraphs (B), (C), and (D) of the statute, however, the court must review the commission's decision independently, based upon its own scrupulous examination of the record. Therefore, the proper scope of review regarding whether the Commission has sustained its burden of proof namely that: its decision is based upon the protection of some substantial public interest; the public interest clearly outweighs the need for affordable housing; and there are no modifications that reasonably can be made to the application that would permit the application to be granted, requires the court not only to ascertain whether the Commission's decision is supported by sufficient evidence, but also to conduct a plenary review of the record in order to make and independent determination on this. Ct. State v. Pinder, 250 Conn. 385, 409-12 736 A.2d 857 (1999).
The difference between the Christian Activities Council and Quarry Knoll review processes is that for the three-part statutory standard of Subsection (B), (C) and (D) to which each commission reason is held, the Christian Activities Council Court gave deference to the Commission's determination, so long as it was supported by "sufficient evidence" in the record; while under Quarry Knoll, the reviewing court makes a scrupulous, plenary review of the record and arrives at its own independent determination of whether the Commission's reasons to deny an application meet the three-part test.
When the trial court reviews the Commission's decision it only considers the collective reasons stated by the agency. Kaufman v. Zoning Commission, 232 Conn. 122, 142 (1995). This requires the Commission to state its reasons on the record in the form of a formal official collective statement, and the agency must give all its reasons for a denial, because only those reasons will be considered on appeal. Christian Activities Council, Congregational v. Town Council of Town of Glastonbury, 249 Conn. 566, 594, 595 (1999). The Commission's collective reasons are those stated by it at the decision making session. The reasons must be the collective reasons given when the agency voted on the application. Mackowski v. Planning and Zoning Commission, 59 Conn. App. 608, 615 (2000). With affordable housing applications, the same as conventional zoning applications, the trial court considers only the collective reasons assigned by the agency, and not the reasons of individual agency members. Schwartz v. Town Planning and Zoning Commission, 159 Conn. 534, 541 (1970). The reasons for the denial of the application must relate to the public interests of the state to be protected. Town Close Associates v. Planning and Zoning Commission, 42 Conn. App. 94, 98 (1996). If any of the reasons actually assigned by the Commission are not supported by sufficient evidence, they are not considered further. If the Commission meets the initial burden of proof that there is sufficient evidence in the record to support a reason for denial, the trial court then considers the three other statutory factors; namely, whether the decision is necessary to protect substantial public interests in health, safety, or other matters which the Commission may legally consider; and that such public interests cannot be protected by reasonable changes to the affordable housing development. As determined by Quarry Knoll, the Commission has the burden of proof on all of these issues, 256 Conn. at p. 277, 733, 735. Moreover, the trial court engages in a plenary review and makes its own independent determination whether the Commission has satisfied its burden of proof on these three factors. Id. at p. 727, 735.
In order to prove that the Commission's decision was necessary to protect substantial public interests and health, safety or other matters which the Commission could legally consider it must establish (1) that it reasonably could have concluded that "substantial public interests" were implicated by the action based upon the evidence in the administrative record and (2) that it would reasonably have concluded from the Record evidence that its decision was necessary, namely that any public interests could not have been protected if it had approved the application, which is more than a mere possibility that granting the application would harm the public interests. Christian Activities Council, Congregational v. Town Council, 249 Conn. at p. 588, 589 (1999). The burden of proof on the Commission to show that such public interests clearly outweigh the need for affordable housing has similar considerations. Id. pp. 590-92. The need for affordable housing is determined on a local and not a regional basis. Id. at p. 598. In order to meet the burden of proof that the public interests cannot be protected by reasonable changes to the affordable housing development, the Commission has the burden of proof that the public interests could not be protected by reasonable changes to the size and density of the zone or to the specified designs presented by applicant. Kaufman vs. Zoning Commission, 232 Conn. at 137 (1995).
IV. DISCUSSION
The purpose and statutory scheme of the affordable house statute, Section 8-30g, is to allow affordable housing whether or not it is otherwise permitted under the zoning regulations. Provided the statute is followed as to the requirements for affordable housing, and the specific site which it is proposed is suitable for that purpose, the underlying zoning of the property makes no difference. Stated another way, an affordable housing application can be approved even though it does not comply with the existing zoning regulations for the zone in which it proposed because Section 8-30g supercedes the usual zoning standards. Wisniowski v. Planning Commission, 37 Conn. App. 303, 315, 318 (1995).
The plaintiff argues that the Commission acted outside the scope of its authority in attaching conditions to the approval of the Application. It further contends that the Commission attached unreasonable conditions that have no basis in public health and safety, as required by Conn. Gen. Statute Sec. 8-30g and the conditions have a substantial adverse impact on the ability of the project and essentially make the project unbuildable. Thirdly, it argues that the Commission predetermined the application.
In view of the fact that the application was approved with thirteen conditions, the Court must review each condition to see if it meets the scrutiny required pursuant to the Quarry Knoll II decision. The Court will now review each condition.
1. Applicant is to provide a separate. independent means of emergency access to the site, specifying the location, width, surface grade and maintenance of such access road.
Plaintiff has already provided for a main driveway from Nabby Road and an emergency access road, 16 feet wide from Old Sherman Turnpike. (Record, 176 at 12-13.) This is prepared in accord with Town of Brookfield Zoning Regulations Sec. 202-404(3) which provides that a multifamily dwelling shall have two independent means of access. Access to all buildings for emergency vehicles and workers was also supplied. (Record, 176 at 16.) The Commission also forbids the Applicant from using road salt in connection with snow removal. (Record, 194.) Nowhere in the Regulations is there a provision allowing the Commission to regulate the use of salts on property or roads. The court finds that there is insufficient evidence in the record to support this condition.
2. Applicant must grade and contour all areas within twenty feet of the building in a manner acceptable to the Fire Chief of the Town of Brookfield.
The grade around the buildings varies from 2.9% to 6%, neither of which are considered steep slopes which would prevent emergency access. (Record 142 at 14.) The Court finds that there is insufficient evidence to justify this condition.
3. Each of the Three Buildings is to have a 30,000 gallon storage water tank and provide a two hour supply of water at the rate of 1.500 gallons per minute for each tank provide a continuous replenishment of all water supply tanks at the aforementioned rate for any potential fires.
The regulations provide that for multifamily development of this nature that a minimum source of 30,000 gallons of water be provided for each building. This is precisely what the applicant provided. The requirement of the commission would require a water supply which would accommodate 540,000 gallons of water in a two hour period. There is insufficient evidence in the record to support the condition.
4. Applicant to increase the number of parking spaces on site because the number provided in the proposal is considered marginal from the Commission's prior experience.
This condition also required the Applicant to reevaluate and expand the radius of emergency vehicles.
The experience of the members may be used as a basis for the Commission's decision if so stated by the members.
The Regulations provide for a minimum of 2 off-street parking spaces for each family unit. The Court finds that there is sufficient basis to increase the parking spaces from 211 to 216. The court further finds that there is an insufficient basis in the record to support a change in the radius of the emergency vehicles.
5. All buildings are required to have light Cape Cod grey siding with white trim and a black or slate grey roof. (Record, 194.) All bricks, stones and siding be built of fire retardant material and required sprinkler systems in all hallways and stairways.
There is no requirement in the zoning regulations requiring a building to be made of fire retardant material. Further, there is no requirement or authority for the Commission to dictate the color of the buildings or roof. The only fire protector requirement found in the regulation is that each multifamily dwelling unit shall be separated from other units within a single structure by a one-hour fire wall meeting state code requirement Sec. 242-404(c)(7). The applicant has complied with this regulation. The Court finds there is insufficient evidence to support this condition.
6. The applicant was required to ban the use of all outdoor grills on decks or balconies as well as requiring a special provision prohibit parking in fire lanes.
There is no authority in the regulations to authorize the banning of gas grills. The Court finds insufficient evidence to support this condition.
7. No de-icing materials be used with sufficient area to set aside to pile snow and that storm water run-off achieve a 97% effectiveness rating for preventing pollutants and sedimentation from entering the wetlands area on the property. (Record, 194.)
The regulations do not allow the Commission to place such conditions on the applicant. The Court finds that there is insufficient evidence in the record to support this condition.
8. The applicant was to provide technical data, within 180 days regarding maintenance plans for sewage treatment facilities, detention basins, insect control devices and drainage devices.
The project is to be connected to a public sewer so the condition is moot. The Commission has no control over insect control devices. The Court finds that there is insufficient evidence in the record to justify that condition.
9. Plaintiff must submit a new flood control plan. (Record, 194.)
A Commission may consider the risk of flooding as a safety measure, see 242-301c (c)(5), but no where is a flood control plan required. There is insufficient evidence in the record to support this condition.
10. Applicant must determine school bus operation in accordance with the Brookfield Board of Education. (Record 194.)
This requirement is within the province of the Board of Education. The Applicant would have to gain approval of the Board of Education. It is not within the power of the Zoning Commission. There is insufficient evidence to sustain this condition.
11. Applicant was required to make several site plan drawing revisions.
This is not required by the regulations. There is insufficient evidence to support this allegation.
12. Applicant required to reconfigure layout of site.
There is no requirement in the regulations for this provision. The Court finds that there is insufficient evidence in the record.
13. Applicant to have a 25-foot wide unobstructed access to the front access doors of each building.
There is no requirement in the regulations. The Court finds that there is insufficient evidence in the record to support this conclusion.
The defendant's application of conditions on the approval in this instance, violates the principle that in reviewing a subdivision application a planning commission can only apply existing regulations. Westport v. Norwalk, 167 Conn. 151, 155 (1974). The project was approved by the defendant commission. It cannot attach conditions to the project that go beyond the existing regulations.
Defendant argues that the conditions may be separated into three categories, namely; (1) conditions to protect and promote public health and safety; (2) conditions to protect the environment; (3) requests for additional information.
The conditions to promote the public health and safety are the requirements to ensure emergency access for fire, police and emergency; provide an adequate water supply in the event of a fire; use fire retardant materials; prohibiting residents from using outdoor grills; and from parking in fire lanes. The report of Town of Brookfield Volunteer Fire Company is the foundation upon which the Commission relies for these safety issues. This report is inherently suspect as discussed by the Court in the next section. The building has the necessary requirements for fire retardant materials in a building with sprinklers. The town cannot prohibit outdoor grills when there is no town regulations regulating such.
The parking of vehicles in any fire lanes is a matter for police enforcement. The conditions imposed by the Commission are not reasonable and go well beyond the existing regulations.
The conditions attached to protect the environment are (1) reducing the surface of the project; (2) relocating storm water treatment further out of wetlands area; (3) provide an effective treatment of storm water run-off and (4) prohibit salt and other substances harmful to the environment. The town has no regulation prohibiting road salt. It cannot impose conditions which are beyond existing regulations. The applicant addressed these considerations reasonably in its application. The application was approved. The imposition of additional conditions, other than the parking, is arbitrary and unreasonable in light of the evidence in the record. The Zoning Commission may impose reasonable conditions not specifically articulated in the regulations which are necessary to protect health and safety. Sehillman v. Zoning Boards of Appeals, 154 Conn. 426-29, 226 A.2d 380 (1967). The Court finds that the conditions imposed, other than the parking, were unreasonable, and most were covered under existing regulations.
The defendants further argue that the remaining conditions were merely requests for information. As indicated previously, the sewer maintenance request is moot. The school bus schedule is a matter for the Board of Education. If the Commission required this information before acting, it should have made the request for information before approving the project. These conditions are not reasonable.
V. Predetermination
The first application was denied. At a hearing during the application the Commission heard testimony from Mr. Cole in the absence of the Applicant or its attorney. During the hearing on March 8, 2001 the Commission asked Mr. Cole to write a letter to the Commission about health and safety concerns. When speaking to Mr. Cole, one Commission member said "half the stuff you are talking about is the ammunition we need. You are the only thing we've got. Would you bring up everything we have talked about tonight, make sure it's in a letter form, get it to us as soon as possible."
Obviously, the communication between Mr. Cole and the Commission was improper. If the initial denial had been appealed, the applicant would have had a solid issue on appeal. Instead, the application was amended and subsequently approved with conditions. It is particularly disturbing to the Court that the Commission still relied upon Mr. Cole's observations in attaching several conditions to the approval. These conditions, in light of the Commissions directives to Mr. Cole, must be viewed with a jaundiced eye. The conditions attached to the approval, at times, border on the patently absurd. The amount of water the Commission required for its fire prevention was, according to the applicant's expert, comparable to the water flow of the city of Bridgeport. The requirement of specific colors for the project, and ban on gas gills suggest an animus on the part of the Commission toward this project.
In view of the Court's decision, it is not necessary to reach the issue of predetermination. The prior comments of the Commission leave open, however, the question of the Commission's objectivity in this matter.
VI. Quarry II Analysis
The Court has found that the Commission had sufficient evidence to attach the parking conditions to the approval. The applicant indicated that the parking issue had not been previously raised but did not object to an increase in parking. The court has examined the record and finds that there is a modification to the plan which would make the condition reasonable and protect the public interest. Namely, the parking spaces should be increased from 211 to 216. Although the Applicant does not have to comply with zoning regulations in an affordable housing appeal, the issue of adequate parking is material to the question of fire access for emergency vehicles. Assuming, arguendo, that the Court had found sufficient evidence in the record on all other conditions, all of these conditions would not have a survived a Quarry II Analysis and would have been stricken by the Court.
VII. CONCLUSION
Based upon the foregoing, the Appeal is sustained and the conditions attached to the approval are erased except for the parking. With regard to the parking it is hereby ordered that the condition of the approval be that the parking spaces are increased from 211 to 216.
By The Court,
Eveleigh, J.