September 3, 2004		2004-R-0718
COURT DISCRETION IN AFFORDABLE HOUSING APPEALS
By: John Rappa, Principal Analyst

You asked if a judge could order a town to fix or eliminate the conditions it cited for rejecting a proposed affordable housing project under the Affordable Housing Land Use Appeals Procedure (CGS § 8-30g). The answer requires a legal opinion, which Office of Legislative Research cannot give. For this reason, you should not regard this report as one.

SUMMARY

It appears that a judge could order a town to reduce or eliminate the conditions it cited for rejecting a proposed affordable housing project. But it also appears to limit the extent to which he can do so. The law implicitly limits the scope of the judge’s review to the record of the town’s decision. The judge may sustain the developer’s appeal only if the record does not support the decision. In other words, the judge cannot look outside the record to make his decision.

But in reviewing that record, the law also allows judges to revise, modify, remand, or reverse the town’s decision if the evidence fails to meet statutory criteria. They may do these things only in a manner that is consistent with the evidence in the record. The courts have not ruled on what it means to be consistent with the record. But cases where the judges have sustained an appeal and remanded a decision suggest two things:

1. judges will remand a decision only to address issues and concerns stated in the record and

2. judges will leave it for the towns to decide how to address them.

For example, in Kaufman v. Zoning Commission (232 Conn. 122 (1995)), the trial court remanded an affordable housing application to the zoning commission so that it could impose conditions on the project addressing the public heath and safety reasons it gave for rejecting the project. The court did not specify or prescribe the types of conditions the town had to impose. The Connecticut Supreme Court upheld the trial court’s decision.

SCOPE OF REVIEW

Both the law and court decisions interpreting it appear to limit the extent to which a judge can order a town to address the reasons it cited for rejecting an affordable housing project. The law requires judges to base their decisions strictly on the evidence contained in the record of the town’s decision. It also requires them to determine if that evidence satisfies the statutory criteria a town must meet to defeat an affordable housing appeal. In other words, judges cannot look beyond the record for information regarding the town’s decision.

The judge must review the record and evaluate the information it contains based on statutory criteria. He must specifically determine if:

1. it contains sufficient evidence to support the decision;

2. the decision was necessary to protect substantial public interests in health, safety, or other matters the commission may legally consider;

3. these interests clearly outweigh the need for affordable housing; and

4. the interests could not be protected by making reasonable changes to the proposed development (CGS § 8-30g(g)).

The judge must base his decision only on these four criteria, which constitute the town’s burden of proof.

JUDGE’S DECISION

The judge can do one of four things if the record shows that the town failed to meet the burden of proof. He can wholly or partly revise, modify, remand, or reverse the town’s decision. But he must do so “in a manner consistent with the evidence in the record before it” [the court]. This provision seems to limit the extent to which the judge can revise or modify the town’s decision to matters, options, or recommendations that are consistent with the evidence contained in the record.

But even with this limitation, it is still unclear how far a judge can go in ordering the town to take specific actions. The Land Use Law Practice Book states, “to some extent the trial judge must suggest how the project can be redesigned where there are plan specific problems” (pp. 539-540, emphasis added). This provision suggests that a judge can order design changes when they only address problems specifically related to the developer’s plan. But the Practice Book adds that case law, not the statutes, set those limits:

The statute places no significant limits on judicial power when reviewing the project, although the appellate case law does establish some standards for judicial review. In most cases, however, the trial judges have not tried to partially redesign the project but have sustained the appeal and remanded the application to the local agency to work out a solution (p. 540).

CASE LAW

Given the short deadline you gave us for completing this report, we could not review each case heard under the Affordable Housing Land Use Appeals Procedure to determine if judges required local agencies to work out solutions instead of prescribing ones. But our review of Connecticut Supreme Court case summaries contained in an earlier OLR report confirms this conclusion (99-R-0870). Table 1 lists three of these cases and summarizes the remand.

Table 1: Selected Cases Sustaining Remanding Affordable Housing Project Applications

Case	Remand
Kaufman v. Zoning Commission, 232 Conn. 122 (1995)	The commission denied a zone change application stating that the density was too high, and would increase traffic and reduce fire safety, the project could harm the local watershed, and the need for affordable housing did not clearly outweigh the need to preserve the neighborhood in its present form. The trial court sustained the plaintiff's appeal, but remanded the case to the commission to give it an opportunity to impose reasonable conditions on the development. The Supreme Court affirmed the trial court's decision, and remanded the case to the commission to approve the application under such terms and conditions as it might reasonably prescribe.
Wisniowski v. Planning Commission, 37 Conn. App. 303 (1995)	The planning commission rejected the plaintiffs’ request to subdivide a 14. 5 acre parcel to accommodate 30 lots, while the town's zoning plan required that lots be approximately one acre. The commission cited the steep slopes on part of the parcel as one of its reasons. The trial court sustained the appeal, but noted that the slope of two of the lots might pose a valid safety concern. It ordered the commission to approve the application, but remanded the potential problem of the slopes to the commission to determine whether the affected lots were buildable. The Supreme Court affirmed this decision.
TCR New Canaan, Inc. v. Planning and Zoning Commission of the Town of Trumbull, 6 Conn. L. Rptr. 4, 91 (March 30, 1992)	The commission rejected the plaintiff’s requests for several zoning amendments, citing traffic and fire safety concerns. The court remanded the case to the commission, suggesting, among other things, that it hear another presentation on traffic and safety issues.

JR: ts