Topic:
LAND USE; HOUSING FINANCE; ZONING;
Location:
HOUSING - FINANCE;

OLR Research Report


February 26, 2008

 

2008-R-0055

AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE

 

By: John Rappa, Principal Analyst

Meghan Reilly, Legislative Fellow

Julia Thomson-Philbrook, Research Analyst

You asked for summaries of cases tried under the Affordable Housing Land Use Appeals Procedure (i.e., the procedure; CGS 8-30g).

SUMMARY

This report updates 1999 and 2006 OLR reports summarizing Superior and Appellate court cases tried under the procedure, which requires towns to bear the burden of defending a decision denying an affordable housing project or approving it with conditions that make the units unaffordable to low- and moderate-income people. In a conventional appeal, the developer must convince the court the town made the wrong decision.

Developers can use the procedure in towns where fewer than 10% of the housing units are affordable based on statutory criteria (about 138 towns in 2007). But they may do so only if the proposed project includes affordably priced units as the law requires. Courts must review the record to see if it identifies and supports the substantial public interests for which towns may legally deny an affordable housing application.

We divided the report into four sections reflecting the outcome or nature of the appeal and summarize the cases within each section in chronological order.

DECISIONS SUSTAINING DENIALS

INDIAN RIVER ASSOCIATES V. NORTH BRANFORD PLANNING AND ZONING COMMISSION, 7 CSCR 637 (JUNE 1, 1992)

The commission denied the developer's proposed affordable housing overlay zone because the application (1) failed to identify affordable housing needs, (2) was inconsistent with the town's 1990 plan of development, and (3) lacked specific safety standards. It also did this because it was dissatisfied with the minimum deed restrictions and the proposed density. The Supreme Court dismissed the developer's appeal because the record contained sufficient evidence to support the town's concerns and the developer's failure to address them. It also held those concerns addressed substantial public interests in health and safety.

JAMES D. GREENE V. RIDGEFIELD PLANNING AND ZONING COMMISSION, 8 CONN. L. RPTR. NO. 5, 142 (FEBRUARY 1, 1993)

The developer applied to the commission for (1) a zone change allowing a multifamily development, (2) an amendment to Ridgefield's plan of conservation and development, and (3) a special permit for an affordable housing development. The commission denied the application because it was concerned about traffic and pedestrian safety, the adequacy of the water supply and sewer system, and incompatibility with other developments.

The developer appealed to Superior Court, which first addressed the site-specific reasons for the commission's denial. The commission was concerned about the water supply because the Ridgefield Water Supply Company wrote that town water could be provided only after an additional water supply was obtained. The court concluded that the commission's concern over the water supply was well founded, and the appeal was dismissed.

The court also discussed the developer's failure to file an inland wetlands application. The developer's argued that he did not need to do this because the planning and zoning commission was also the inland wetlands commission. Although a commission "owns many hats," it does not necessarily wear all of them at the same time, the court concluded.

The court also stated that the developer and the commission did not comply with the wetlands law, which requires (1) the applicant to file an wetlands application and (2) the planning and zoning commission to consider the wetland's report when acting on an application.

D'AMATO V. ORANGE PLANNING AND ZONING COMMISSION, 1993 CT SUP. 1336

The developer applied to the commission (1) to amend the zoning regulations and the zoning map and (2) for approval of a coastal site plan and subdivision in order to develop a 60 acre parcel into 86 lots with 20% designated as affordable housing. The commission denied the application and its subsequent modification for a number of reasons including that development would dramatically and adversely affect the infrastructure and finances of the town and there was inadequate sewerage disposal, potential traffic problems, miscellaneous planning problems, and drafting problems with the proposed regulations. The court noted that although the commission can reasonably be concerned about traffic and regulation drafting problems the court did not fully address either of these two reasons because the sewerage disposal issue controls the outcome of the case.

The applicant petitioned the Water Pollution Control Authority to designate the proposed development as an area to be serviced by a community sewerage system. The authority denied the applicant's request. According to the court what controls the case is not the commission's agreement or disagreement with the proposed community sewerage system. Rather it is the action of the authority in not allowing the areas to be served. The commission cannot approve the zone change, not to mention the subdivision, when the authority has denied the applicant the ability to construct the system. The commission does not have any review authority over the authority. Since the authority has denied the request the commission's approval does not appear to be a reasonable probability. The court found that the commission's denial is supported by the evidence in the record, that the decision is necessary to protect public interest in health and safety. As the concerns are both site specific and plan specific the public interests outweigh the need for affordable housing and the interests cannot be protected by a change to the proposed development. The court dismissed the appeal.

UNITED PROGRESS V. STONINGTON PLANNING AND ZONING COMMISSION, 1994 CT. SUP. 2306

The developer proposed building a multifamily housing complex and marina on a five-acre parcel of land in Stonington. The applicant filed three related applications with the commission: (1) an amendment to the zoning regulations to create a new affordable multifamily housing zone; (2) a request to change the zone from industrial to affordable multifamily housing; and (3) a request to approve a site plan. A coastal site plan was also submitted. The court noted that the proceedings in this case were not routine. In addition to the appeal of the commission's decision, three groups sought intervention claiming aggrievement. One of the groups intervened under the environmental protection statutes claiming that the application would likely pollute, impair, or destroy the public trust in the air, water, or other natural resources of the state.

The commission denied the initial and modified application for three reasons: retention of the land's industrial use and potential industrial use, consistency with the goals and policies of the Coastal Management Act, and maintenance of the diverse community character and preservation of the unique historic area. The commission was also dissatisfied with the proposed revisions to the affordable housing district text and the site plan.

The court addressed all three reasons for denial. With regard to the site's potential industrial use the site is the only available industrial site in town and the town has consistently over time expressed a desire to retain it as industrial. The site has been used for industry since the mid-1800's, and the commission has not rezoned a parcel just to preclude the plaintiff's proposed use. The court concluded the commission's desire to retain the industrial use, together with the other reasons that will be discussed, constituted a substantial public interest in health, safety, or other matters, which outweighed the need for this affordable housing proposal.

In addressing the second reason for denial, the site's consistency with the goals and policies of the Coastal Management Act (CCMA), the court noted that the parcel was located entirely within the coastal boundary in a flood zone. The Department of Environmental Protection had commented on the CCMA application for consistency with the act's policies. It found the application to be inconsistent with the act because it permitted intensive residential development on a site where severe coastal flooding was probable. The court found that the commission's decision to deny the application based on the finding of inconsistency with the CCMA was supported by sufficient evidence that outweighed the need for the affordable housing proposal. The third reason offered in support of the denial was maintenance of the diverse community character and preservation of the historic unit. The court found sufficient reason to uphold the commission's decision. It stated that this court was not holding that the historic factors, height limitations, density issues, or scenic vistas individually outweighed the need for affordable housing.

Rather, it was the combination of all these factors and the physical characteristics of the Borough and this site, which controlled this case. The appeal was dismissed.

In addition the court concluded that (1) the commission's concern over the drafting of the zoning standards was proper and (2) the individuals' intervention under the environment laws was warranted since the proposal was incompatible with the CCMA.

ENSIGN-BICKFORD REALTY V. SIMSBURY ZONING COMMISSION, 1996 CT. SUP. 6549

The developer applied for a zone change in order to construct 115 single-family detached dwelling units of which 23 units would be deed restricted affordable housing. The property was part of a tract known as the Powder Forest, which had been used for many years in connection with the developer's explosive manufacturing business. The commission denied the application for several reasons: (1) the environmental history of the site and of adjacent land where gunpowder had been stored and an explosion occurred that required further environmental assessment, which the applicant did not provide; (2) the need to preserve the land for future industrial development; and (3) the site was incompatible with its intended use.

The court concluded that the record contained a reasonable basis for the commission to conclude that its decision was necessary to protect the public interest: (1) past storage of gunpowder on the site, (2) active manufacturing and storing of gun powder on adjacent property, (3) ground water contamination east of the site, (4) the 1984 explosion and the ensuing investigation and findings, and (5) the absence of evidence to the contrary. The court found that these concerns and the developer's failure to address them were supported by sufficient evidence in the record and dismissed the appeal. The court then dealt briefly with its concerns about the commission's other two reasons for denying the application, which they did not sustain.

EDWARD MACKOWSKI V. STRATFORD PLANNING & ZONING COMMISSION, 1998 WL 828109 (OCTOBER 22, 1999)

Facts

Edward Mackowski applied to the zoning commission to construct an affordable elderly housing project. The commission denied the application because:

1. the proposed density, lot coverage, and parking arrangements violated the zoning regulations;

2. the development was inconsistent with the town's plan of development;

3. the development threatened the neighborhood's character and historic value; and

4. the development's scale and density threatened the community's health, safety, and welfare.

Decision

The court upheld the commission's decision because the record evidence confirmed that the development exceeded the sewage system capacity and increased traffic congestion. These concerns addressed substantial public interests, and these interests outweighed affordable housing needs. The town could not protect those interests without denying the application.

Reasoning

The record evidence supported the commission's concern that the project's scale could overburden the sewage system and congest the roadways. The town engineer testified that the development could compromise the sewer system. The public testified that the development would likely increase traffic congestion in an already congested area. These concerns constituted substantial public interests in public health and safety, which the commission had the right to protect. The court ruled that the application could not be modified to protect those interests. Consequently, the commission had to deny the application.

Although the court sustained the commission, it found the commission's other reasons for denying the application to be invalid under the affordable housing law. Those reasons included denying a project because it fails to adhere to the town's plan of conservation and development or preserve a neighborhood's character.

FAIRFIELD 2000 HOMES CORPORATION V. TOWN OF NEWTOWN PLANNING AND ZONING COMMISSION, 1999 WL 186768 (MARCH 22, 1999)

The developer sought to construct 96 detached single-family dwellings, including 24 units of affordable housing. The commission denied the application because of problems with the sewage disposal, the traffic impact, and earth removal.

The court only discussed the issue of sewage disposal. The developer planned to construct a single sewerage system for all 96 units. The record showed that Newtown had a policy of avoiding sewers, since mechanical septic systems were a threat to the environment. In addition, the development would have been located on the Pootatuck aquifer. Several experts testified that there was a real possibility that the proposed sewerage system could contaminate the town's water supply. The defendant did not offer any evidence to dispute the experts' testimony.

The court found that Newtown's longstanding policy of avoiding sewers was not a compelling reason to deny the application. However, safeguarding the town's primary water supply was a substantial public interest, which outweighed the need for affordable housing. The record had substantial evidence to indicate that the development would have threatened the aquifer. The court consequently ruled in favor of the commission. (The plaintiff did not raise the issue of modifying the application to address the public interests. So, the court did not discuss this matter.)

CARR V. BRIDGEWATER PLANNING & ZONING, 1999 WL 391584 (JUNE 4, 1999)

Carr applied for a zone change to allow the construction of 35 residential units, 25% of which would be affordable. The planning and zoning commission denied the application. Carr simultaneously appealed to the Superior Court and submitted a revised plan to the commission. The commission cited the following reasons for denying the revised application.

1. The application did not provide for safe roads within the subdivision. It was therefore a risk to public safety.

2. The subdivision lacked adequate potable water.

3. The proposed septic system was insufficient and threatened the water supply.

4. The developer failed to provide for the preservation of the area's delicate natural resources.

5. The application did not provide enough information about plans for one of the lots.

The court considered both the initial and the revised applications. It concluded that the commission sustained its burden of proof with regard to two of the five stated reasons. One expert testified that it was doubtful the development would have a sufficient water supply. Additional experts indicated that it was likely the septic system would contaminate the water that was available. Since the developer did not provide conflicting evidence, the court held that the record substantiated the commission's concerns for the water supply and the septic system. It also concluded that each of these concerns constituted a public interest that outweighed the need for affordable housing. Since there was no way for the developer to modify the application to address these concerns, the court upheld the commission's decision.

CHRISTIAN ACTIVITIES COUNCIL, CONGREGATIONAL V. TOWN COUNCIL OF THE TOWN OF GLASTONBURY, 249 CONN. 566 (1999)

The Christian Activities Council, Congregational (CACC) contracted to purchase 33.42 acres from the Metropolitan District Commission, provided CACC could obtain a zone change to construct 26 single-family affordable units. The Glastonbury town council (council) cited six reasons for denying the zone change.

1. The development would constitute a traffic hazard, since it would create a new road at an already dangerous intersection.

2. It was a threat to the public interest of maintaining that region as open space.

3. The parcel of land was part of the MDC's larger public trust holdings. The council thought it was not wise to develop the smaller parcel without first having a comprehensive plan for all of MDC's holdings.

4. The development was a threat to a potential future water supply.

5. These considerations outweighed the need for affordable housing at that site, since there were other sites in the town that were more suitable.

6. The council also referred to all of the objections individual council members stated during the proceedings.

The Superior Court found that the record contained sufficient evidence to prove the development was a threat to a potential future water supply and that public interest in the water supply outweighed the need for affordable housing. The court also determined that since at least one of the reasons cited by the council for denying the application satisfied the requirements of 8-30g, it was not necessary for the court to examine the remaining reasons.

However, the court did discuss reasons #5 and #6. The court indicated that while the council could specifically cite any member's specific objection, the "bootstrapping technique" found in reason #6 was not sufficiently specific. The court further commented that the language in reason #5 did not appear to be in strict compliance with the statutes. The statutes require the public interests to clearly outweigh the need for public housing (CGS 8-30g (c)(1)(C)). There is no qualification as far as where the housing is located. Rather than remanding the decision, the court opted to read reason #5 as the council's attempt to weigh the public interests against the need for affordable housing in the town, which the statutes require.

The CACC appealed to the State Supreme Court on the following grounds.

1. The trial court applied an improper scope of review.

2. The trial court should examine each of the council's reasons. If any are found to be invalid, then the court should remand the decision.

3. The council did not meet the burden of proof under 8-30g.

Majority Decision

The Supreme Court reiterated its position that the court has a limited role under 8-30g (Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527(1991) and West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498 (1994)). It must only examine the council's cited reasons and determine if the record has sufficient evidence to support the decision that the public interests outweigh the need for affordable housing. The court limits itself to the council's stated reasons because the statute refers explicitly to the reasons cited by the town. Therefore, unlike a traditional zoning appeal, the court does not cull through the record looking at all of the reasons given during the public hearings.

The court goes on to define "sufficient evidence" as less than a preponderance of the evidence, but more than a mere possibility (Kaufman v. Zoning Commission, 232 Conn. 122 (1995)). The court does not examine the record to see if it would have reached the same conclusion. Rather, it looks to see if there is reasonable evidence to support the council's conclusion that the development threatens a public interest, which outweighs the need for affordable housing and there is no way for the developer to modify the application to address the public interest. If the record contains sufficient evidence, the court must uphold the council's decision. It is not the role of the court to dictate the town's zoning policy.

The court also reaffirmed that the council's decision must be sustained if the record supports even one of the council's stated reasons (West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498 (1994)). This is similar to the traditional role of judicial review regarding zoning decisions. The court commented that the plaintiff's interpretation, which required the court to remand the council's decision if the record failed to support any of the stated reasons, would encourage zoning commissions to withhold reasons for denying the application.

The affordable housing appeals procedure requires that the record prove:

1. the council identified a public interest that the development would have threatened,

2. that public interest outweighed the need for affordable housing, and

3. it was not possible for the developer to modify the plan in order to address the public interest.

While the Superior Court focused on the development's threat to a potential water supply, the Supreme Court focused on the threat to open space. It concluded the council most plainly satisfied its burden of proof to justify the application's denial on the grounds that it was a threat to open space.

The court first found that it was necessary to define the need for affordable housing. The court decided, based on legislative intent, that need should be assessed at the local level. For legislative intent, the majority pointed to a statement by Representative Cibes. ("The intent is to make very clear that it is the municipality's responsibility to care for the housing needs of its citizens and not some broader community" 32 H.R. Proc., supra, pp. 10,622-23.)

Furthermore, the court ruled that when assessing need in Glastonbury the council was allowed to consider its knowledge of affordable housing under construction and other sites that would have been more suitable for the proposed development. The record showed that at the time CACC filed the application there were 10 other units of affordable housing already under construction. The council also proved that Glastonbury had surpassed its goals for constructing affordable housing under the Capitol Region fair Housing Compact. Consequently, the court found that Glastonbury had made a consistent effort to address the local need for affordable housing. It appears that this evidence decreased the need for affordable housing in Glastonbury.

The court examined the record for evidence that the public had an interest in maintaining the parcel as open space. Since 1971, the council had repeatedly expressed an interest in maintaining the MDC's property as open space. More importantly, the council had clearly documented this interest. As a result, the court ruled the record had sufficient evidence that Glastonbury had a public interest to maintain the parcel as open space. The court indicated that the documented history of efforts to preserve the parcel for open space was essential to the court's final ruling.

The court further found that the interest of preserving public space was site specific. Therefore, there was no way for the developer to modify the proposal to address the interest. The court concluded that the record contained sufficient evidence to support the council's denial of the application. The council satisfied its burden of proof under 8-30g, and the court upheld the decision.

Dissenting Opinion

Justice Berdon dissented from the majority opinion for several reasons. First, he believed that legislative history suggested that the court should define the need for affordable housing at the state level. He also disagreed with the majority's definition of "sufficient evidence," citing instead the Black's Law Dictionary's definition as "that amount of proof, which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt." He further argued that the court was compelled to examine all of the council's stated reasons for denying the application. The court should remand the decision to the council if the record failed to support any of the reasons. He then examined each of the council's reasons and concluded that the record didn't contain sufficient evidence to support any of them.

RIVER BEND ASSOCIATES, INC. V. SIMSBURY PLANNING COMMISSION, 271 CONN. 41 (2004)

Companion Case

The Supreme Court decided this case based on its holding in a companion case. Both cases involved a proposed affordable housing project that required zoning and subdivision approval from the town's separate zoning and planning commissions, respectively. Both commissions denied approval, citing each other's decision as ground for doing so. Consequently, the developer appealed both denials, which generated separate but interrelated decisions.

Both decisions sustained the planning and zoning commissions' actions, but the grounds for sustaining the zoning commission excluded many of the substantive reasons it gave for its decision. Consequently, we discuss the zoning appeal in the section summarizing decisions sustaining affordable housing appeals.

Planning Commission Appeal

In River Bend Associates, Inc. v. Simsbury Planning Commission, 271 Conn. 41 (2004), the Supreme Court affirmed the planning commission's denial of the developer's subdivision application. The commission denied the application because the zoning commission and water pollution control authority (WPCA), respectively, denied the developer's applications for zone change and site plan approval and sewer connections. The developer appealed, and the trial court ruled that the commission's reasons for denying the subdivision application were invalid. The commission subsequently appealed the trial court's decision.

The Supreme Court affirmed the commission's reasons for denying the subdivision application. In doing so, it rejected the trial court's claim that the WPCA's denial of the sewer application was not a valid reason for denying the subdivision application. Given the WPCA's action, the commission could justifiably conclude that the developer was unlikely to obtain the WPCA's approval in the near future.

The court also ruled the law did not allow planning commissions to approve subdivision applications contingent on the developer obtaining other approvals. Consequently, the commission had no authority to approve the subdivision contingent on the developer obtaining sewer approval. The court further ruled that the lack of statutory authority to grant conditional approvals did not require the commission to approve the subdivision.

The court did not rule on whether the zoning commission's denial of the zone change and site plan application was a valid reason for the planning commission to deny the subdivision application. It did not rule on this question because its decision in the companion case rendered the question moot. In that case (see below), the court ruled that the zoning commission's reasons for denying the zone change were improper.

CHALLENGES RAISED BY ABUTTERS

NOTESTINE V. FARMINGTON TOWN PLAN AND ZONING COMMISSION, NO. CV94 0534253 (JUN. 30, 1995)

Carrier Enterprises, Inc. filed a series of applications starting in 1992 under CGS 8-30g to rezone a parcel on Route 6 in Farmington and obtain a permit to build multifamily housing. The town Plan and Zoning Commission granted permission to build a 34-unit building on January 10, 1994. Notestine and other abutters originally appealed the rezoning and the granting of the permit, but subsequently limited their appeal to the permit. Among other things, they argued that:

1. the project would be out of character with the neighborhood;

2. the project did not comply with the town's zoning requirements limiting building lengths and requiring landscape plans; and

3. the developer failed to seek review of the project by the town's inland wetlands commission as required by CGS 8-3(g).

The court first decided on the standard of review. Normally, when a zoning commission states the reasons for its action on the record, the court must sustain its decision if the reasons were reasonably supported on the record and were pertinent to the consideration the commission had to make under the zoning ordinance (Goldberg v. Zoning Commission, 173 Conn. 23 (1977)). But the Farmington commission argued, and the court agreed, that abutters have a heavier burden when appealing a commission decision approving an application under CGS 8-30g. Following Wisniowski v. Planning Commission, 37 Conn. App. 303 (1995) the court appears to have held that in such cases the appellant must demonstrate that (1) denial of the application was necessary to protect substantial public interests, (2) these interests outweighed the need for affordable housing, and (3) the public interests could not be accommodated by reasonable changes to the proposed development.

In this case, the court held that the plaintiffs had failed to meet their burden of proof. It found that the parcel was originally zoned for mixed use, and the immediate neighborhood contained a wide variety of uses including condominiums as well as single-family homes. The court deferred to the commission's decision that the proposal met the requirements of the town's zoning ordinance. With regard to the issue of the landscape plan, the court acknowledged that the plan contained in

the application was outdated but found that this was an insufficient reason to deny an affordable housing application. The court found that the development did not constitute a regulated activity that required a review by the inland wetlands commission.

MURTHA V. CANTON ZONING COMMISSION, NO. CV 95 05506708 (MAR. 11, 1996)

In this case, the Canton Zoning Commission moved to dismiss an appeal of its decision to grant an application by Carrier Enterprises, Inc. to rezone 29.1 acres for an affordable housing development. Murtha, who lived more than 100 feet from the development, claimed that the development would decrease the value of her property and increase traffic volumes.

The court granted the commission's motion, finding that Murtha had not presented any evidence in support of her allegations and thus did not demonstrate that she was classically aggrieved.

SCHULTZ V. FARMINGTON PLANNING AND ZONING COMMISSION, NO. CV 93 0521404 S (FEB. 15, 1994)

In this case, Elihu Realty sought a zone change in the fall of 1992 to permit the construction of 92 units on 9.4 acres on Route 6. The commission denied the change, citing concerns about traffic, water supply, building height, and the number of units on the site. The developer resubmitted the proposal, reducing the number of units to 72 and addressing the commission's other concerns. The commission approved the modified plan in January 1993 after holding a public hearing. Schultz and several other abutters appealed the decision, arguing that the developer did not have standing to submit the modified plan, because it was a subsidiary for a bank that had obtained the property through foreclosure and subsequently went into receivership. They also argued that:

1. 1.5 acres of the property should not have been included in the zone change application because it is the subject of an easement;

2. the commission acted arbitrarily, illegally, and in abuse of its discretion in the way it held the public hearing on the application; and

3. some of the plaintiffs failed to receive the notice of the application as required by the town's zoning regulations.

The court rejected the plaintiffs' arguments. It found that Elihu Realty had a valid title to the property and thus was entitled to seek a zone change. It noted that the easement that applied to the 1.5 acres limited its development to residential uses, but that the application called for the construction of two single-family houses on the parcel, in conformity with the easement. The plaintiffs' argument about the hearing arose because the commission heard from the applicant at 10:29 p.m. and then continued the proceeding without hearing the abutters who had been there since 7:30. The court noted that such continuances are common in land use hearings and do not have any legal significance. Finally, it found that notices were mailed to all persons entitled to notice, and that the town's zoning regulations require that the applicant send notices by certified mail, not that it be able to prove that they had been received.

More generally, the court noted that the commission was acting in its legislative capacity in approving the zone change. The question on appeal is not whether the court would have reached the same conclusion as the commission, but whether the record supports the commission's decision. In such cases the court must grant the commission very broad discretion and should not substitute its judgment for the commission's unless the aggrieved parties demonstrate that the commission's action was clearly arbitrary or illegal. In this case the court found that the developers had not met this burden.

VINEYARD CONSTRUCTION MANAGEMENT CORP. V. TOWN OF TRUMBULL, 1999 WL 566967 (JULY 23, 1999)

Vineyard Construction sued the town of Trumbull because the zoning commission approved a revised affordable housing plan for the property abutting Vineyard's Stonebridge Estates. Vineyard claimed that the zoning commission violated several zoning regulations when it approved the Mutual Housing Authority's (MHA) revised site plan. Specifically, Vineyard alleged that the development:

1. would decrease property values,

2. had insufficient parking and would create a traffic hazard,

3. had an insufficient turning area for trucks and emergency vehicles, and

4. had an unacceptable setback distance.

The court found none of Vineyard's arguments compelling. Vineyard referred to the regulations that required the zoning commission to consider property values and the testimony of several neighbors that were concerned their property values would decrease if the commission approved the project. The court held that there was no evidence to substantiate the neighbors' concerns and that concerns over property values did not outweigh the need for affordable housing. In searching the record, the court also found that Vineyard's concerns for parking, traffic, and the development's turning area were based on MHA's original plan. MHA had addressed all of these issues in its revised plan, which the commission approved. The court also dismissed Vineyard's concern for the development's setback because it complied with regulations.

DECISIONS WHERE A COMMISSION'S ACTIONS WERE NOT SUSTAINED

WEST HARTFORD INTERFAITH COALITION, INC. V. TOWN COUNCIL OF THE TOWN OF WEST HARTFORD, 228 CONN. 498 (1994)

Facts. The Interfaith Coalition sought a zone change and special development district designation to build 10 units of affordable housing on 1.25 acres in West Hartford. The town council, acting as the zoning commission, rejected the proposal. The coalition appealed the decision to the Superior Court under CGS 8-30g, which sustained the coalition's appeal and ordered the town to rezone the parcel and to approve the special development district designation.

The town appealed to the appellate court and the Supreme Court transferred the appeal to itself pursuant to Practice Book 4023 and CGS 51-199(c). In addition to the parties, the Connecticut Civil Liberties Union Foundation and several groups appeared as amici.

Majority Decision

Applicability of Law to Zone Changes. The town maintained that CGS 8-30g did not apply to legislative decisions such as zone changes, which the Supreme Court rejected for three reasons. First, it construed the language of CGS 8-30g to apply, on its face, to every type of application filed with a zoning commission with regard to affordable housing proposals. The court based this interpretation on the absence of any statutory limits on the types of applications covered by the law and the fact that a key definition explicitly refers to any such application. Second, the court found that the circumstances surrounding the adoption of CGS 8-30g and its legislative history, including discussion of the subject at issue on the floor of the House, supported this interpretation. Third, the court held that interpreting the law the way the town suggested would thwart the legislative policy the law was designed to implement.

Application of Traditional Zoning Review Concepts. The town further claimed that even if the law applied to zone changes, the trial court failed to apply traditional concepts of the judicial review of zoning commission review. The town alleged that the court improperly (1) required the council to state its reasons for denying the application and refused to search the record for reasons supporting the denial, (2) substituted its judgment for the council's regarding the density of the site, and (3) ignored the council's decision that the proposal was inconsistent with the town's comprehensive plan and overlooked the council's right to rely on personal knowledge of the site.

The Supreme Court rejected these claims. It found that the trial court had not demanded that the council collectively state its reasons for the denial. Rather, it found that the court had, in the absence of such a statement, properly searched the record to determine whether the council had been justified in its decision. On the second point, the Supreme Court found that the trial court did not substitute its judgment for the council's. Instead, it found that the trial court had determined that the town's concerns regarding density were outweighed, under the law, by the need for "affordable housing." The Supreme Court rejected the third argument for essentially the same reasons as it rejected the first.

Assessing Need for Affordable Housing. The town asserted that the trial court improperly refused to consider the overall affordability of housing in West Hartford in determining the need for "affordable housing" under the law. The trial court had only considered units that are defined as affordable under the law, i.e., those built with governmental assistance or limited to low and moderate income households under long-term deed restrictions. The town argued that the court should have considered other relatively low cost housing available in the town and the town's efforts to promote such housing. The court found that there was no support in the statute or its legislative history for this interpretation.

The court chose not to decide the issue of whether the need for affordable housing should be defined in terms of the town or the region. The court noted that only 6% of the town's housing stock met the statutory definition of affordable housing, well below the 10% needed to exempt a town from the provisions of CGS 8-30g. As a result, the court found that there was a need from either a local or regional perspective. This issue was the subject of Judge Berdon's concurring opinion, discussed below.

Likelihood That Housing Will Be Built. The town claimed that the trial court should have required the coalition to demonstrate that it could actually develop the project it proposed. It claimed that the court should have required the coalition to demonstrate that the development would likely receive government assistance or be subject to deed restrictions in order to meet the definition of "affordable housing." The Supreme Court rejected this argument, stating that it would impose a stricter standard than mandated by the law and would thwart the intent of the law. The court also found that the record indicated that the proposed project met both tests of an affordable development, although it only needed to meet one.

Failure to Remand. Finally, the town asserted that the trial court should have remanded the case back to the council, rather than reversing its decision and ordering a zone change and approval of a special district designation. The town also faulted the trial court for failing to require the coalition to submit a modified proposal.

The Supreme Court held that CGS 8-30g explicitly allows the trial court to reverse a zoning commission decision as well as to remand it to the commission. It also held that the law allows, but does not require, a developer to submit a modified proposal to the commission.

Concurring Opinion

Justice Berdon concurred with the majority's decision and most of its analysis. However, he disagreed with the majority's decision to defer deciding whether the trial court should only consider local need for affordable housing needs in reviewing an affordable housing land use appeal. He stated that the failure to define need will cause needless confusion for both zoning commissions and the trial courts. In reviewing the genesis of the law, particularly the report of the governor's Blue Ribbon Commission on Housing, Justice Berdon concluded that the need should be determined in reference to the statewide need for affordable housing.

KAUFMAN V. ZONING COMMISSION, 232 CONN. 122 (1995)

In this case Kaufman appealed the Danbury zoning commission's decision to reject his request to change the zoning of a 27.4 parcel acre he owned to allow for the construction of 102 rather than 27 single family homes. The commission denied the 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 commission appealed, raising three arguments. First, it claimed that Kaufman had not submitted an affordable housing application under CGS 8-30g, because it did not include specific development plans and that he had failed to provide adequate evidence that he would build affordable housing if the zone change was granted. Second, the commission argued that even if CGS 8-30g applied, the trial court erred by improperly rejecting the commission's decision by imposing too high an evidentiary burden on the commission. Third, the commission argued that the trial court mischaracterized the substantive evidence on the record. On its own, the court raised the issue as to whether the trial court's order of a remand constituted a final judgment that would sustain an immediate appeal.

The court first determined that since the remand did not require further evidentiary proceedings and since the proceedings on remand could not deprive Kaufman of his right to a zone change, the trial court's decision was final and could be appealed. Next, the court determined that CGS 8-30g did apply to this case. Contrary to the commission's claims, the law does not require the developer of affordable housing to submit any more detailed plans at the time of his application than any other applicant for a zone change. The court found that Kaufman had demonstrated his intent to build affordable housing. In addition, the court found that the commission could condition its approval on the use of the new zone for affordable housing only.

The court found that the trial court had erred by requiring the commission to show "substantial" rather than "sufficient" evidence to support its denial of the application. The latter, lower evidentiary standard, applies when a commission is acting in its legislative capacity, for example when it approves a zone change. But the court found that this error was harmless, upholding the trial court's conclusion that the record did not support the commission's decision that a denial of the proposed zone change was necessary to protect substantial public interests. The 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)

In this case, the plaintiffs sought 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 plaintiffs did not seek a zone change to permit smaller lots. The planning commission rejected the request, in part because of its inconsistency with the plan, the failure of the plaintiffs to seek a zone change, and steep slopes on part of the parcel. The plaintiffs appealed the decision and the trial court found that the commission's reasons did not meet the requirements of CGS 8-30g. The trial court did note that the slope of two of the lots, not designated for affordable housing, might comprise 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 commission appealed, claiming that the trial court improperly concluded that CGS 8-30g overrides the uniformity requirement of CGS 8-2 and the need under CGS 8-26 that a developer obtain a zone change before obtaining subdivision approval for a development that is not consistent with the current zoning requirements. The commission also claimed that the court illegally usurped its legislative and administrative authority.

The Supreme Court first addressed the issue of whether the commission's action represented a final judgment that could be appealed. Following Kaufman, the court decided that it was.

Next, the court held that the "plain and unambiguous language of CGS 8-30g does not contemplate a denial of an affordable housing subdivision application on the ground that it does not comply with the underlying zoning of an area" Wisniowski at 312. In this case, where CGS 8-30g conflicts with CGS 8-2 and 8-26, the court held that the newer, more specific provision takes precedence over the older, more general provisions. The court also found that the legislative history of CGS 8-30g did not support the commission's contention that zone conformity would be a prerequisite to approval of a subdivision application.

Finally, the court held that the trial court had not usurped the commission's legislative and administrative discretion. It noted that all of the commission's powers are derived from the General Statutes and

that the legislature had, in adopting CGS 8-30g, taken away some of the discretion commissions have under traditional land use law. As a result, the court affirmed the trial court's decision.

QUARRY KNOLL II CORPORATION ET AL. V. TOWN OF GREENWICH PLANNING AND ZONING COMMISSION ET AL., 256 CONN. 674 (2001)

This decision involved two cases. In the first, a developer and a nonprofit organization appealed the town planning and zoning commission's denial of a proposed affordable elderly housing development. In the second, the plaintiffs appealed the commission's denial of their modified application. The Superior Court consolidated the appeals, which it sustained.

The commission and several interveners appealed to the Supreme Court. Among other things, that court held:

1. the commission's failure to act on the plaintiffs' request for approval of a municipal improvement proposal within 90 days of its submission constituted automatic approval under the town's charter;

2. the 2000 changes to the affordable housing statute clarifying the court's scope of review applied retroactively (PA 00-206);

3. the commission was not required to state explicitly in its decision that its reasons for denying the application clearly outweighed affordable housing needs; and

4. the fact that interveners joined the commission in appealing the trial court's decision did not shift the burden of proof back to the developer.

JPI Partners, LLC v. Milford Planning and Zoning Board, 259 Conn. 675, (2002).

In this case, the plaintiffs appealed to Superior Court the planning and zoning commission's decision denying six applications related to a proposed affordable housing development, the site for which straddle a light industrial zone and a residential zone. The commission denied the plaintiffs' applications because the proposed development would adversely affect the town's tax base and jeopardize traffic safety.

The plaintiffs' appealed, claiming these reasons failed to satisfy the statutory burden of proof for denying an affordable housing application. The commission responded by citing a reason for denying the application that was not in the decision record. It claimed that it was not subject to the burden of proof standard because the proposed development's site was in an industrial zone. CGS 8-30g (c) allows a commission to defend its decision denying an affordable housing project by meeting the burden of proof or showing that the project is privately funded and being proposed in industrial zone. The trial court determined, among other things, that the commission's reliance on the industrial zone exemption was proper and dismissed the plaintiffs' appeal.

Plaintiffs appealed to the Supreme Court, which held that the trial court improperly permitted the commission to invoke the industrial zone exemption for the first time during the appeal. The affordable housing statute requires a commission to state all of its reasons for denying an application in the record.

River Bend Associates, Inc., et al. v. Zoning Commission of the Town of Simsbury, 271 Conn. 1 (2004)

The plaintiffs filed an application with the town zoning commission for amendments to the zoning regulations and zone map and sought approval of a site plan for an affordable housing development. The zoning commission denied the application, concluding, among other things, that the plaintiffs' plan to reduce residual pesticide levels in the soil was not adequate to reduce the public health risks.

The plaintiffs appealed to the Superior Court. That court concluded that the zoning commission had not met its burden under the affordable housing statute of proving that the reasons for its denial outweighed the need for affordable housing. It sustained the appeal and ordered the commission to approve the zone change and site plan subject to certain conditions.

The commission appealed to the Supreme Court. That court, based on its River Bend Associates, Inc. v. Planning Commission (271 Conn. 41, see above) decision, held that commission properly denied the plaintiffs' subdivision application. But it reversed the trial court's ruling that the site plan should have been approved subject to conditions, saying the plaintiffs could not claim there was a reasonable probability that its subdivision plan would be approved.

The court further held that the trial court properly determined that the zoning commission's denial of the plaintiffs' zoning amendment requests was not supported by valid reasons. In particular, the commission's reliance on evidence of soil contamination to deny the amendment requests was improper. The record established only a possibility of harm and not, as required under 8-30g, that there was a threat to a substantial public interest. Nor was the commission's reliance on deficiencies in the plaintiffs' affordability plan proper; the perceived deficiencies did not involve a substantial public interest in health, safety or other legitimate concerns so as to justify the denial.

The court affirmed the trial court properly determined that the commission failed to meet its burden of proof. The trial court carefully examined the record evidence and independently weighed the commission's reasons for denying the application against the town's affordable housing needs. Its decision was not, as the commission claimed, based only the fact that the commission failed to explicitly (1) acknowledge the town's affordable housing need and (2) balance that need against the need to protect a substantial public interest.

The court also found that the commission's claim that the trial court improperly failed to consider the cumulative weight of the reasons for denying the zoning amendments was not useful. The commission failed to establish that the reasons it presented to support its denial—soil contamination and deficiencies in the affordability plan—even considered cumulatively, constituted a threat to substantial public interests.

Finally, the court held that the zoning commission could not prevail on its claim that the trial court had to affirm its denial of the plaintiff's amendment requests rather than impose conditions that the commission claimed was unreasonable. The trial court, it held, was authorized to require as the condition that the soil and groundwater comply with the applicable regulations before any construction could begin.

Carr v. Bridgewater Planning and Zoning Commission, 273 Conn. 573 (2005)

The Supreme Court affirmed the trial court's decision sustaining an affordable housing subdivision appeal on substantive and procedural grounds. In doing so, it rejected the planning and zoning commission's claim that the trial court decision set a new standard for meeting the statutory burden of proof. Although that court acknowledged the developer's failure to address several ground water issues, it improperly required the commission to study the extent to which the proposed development would harm the water supply, the commission claimed.

The Supreme Court rejected the claim that the trial court imposed a heightened burden of proof. According to the record, the commission's expert stated there was no guarantee that the developer's well drilling would not interfere with the ground water. This testimony appeared to contradict that provided on the developer's behalf by the Public Health and Public Utilities Control departments that the chance of interfering with the neighboring wells was “extremely remote.” Consequently, the commission could not deny the project without determining if:

1. there was a quantifiable chance that the project could interfere with the ground water and

2. that no reasonable changes could be made to the project that would prevent this from happening.

The Supreme Court also affirmed the trial court's procedural reasons for sustaining the developer's appeal.

1. The fact that the developer initially withdrew his wetland's application did not prevent the commission from acting on his subdivision application. The commission could deny the application because it requires wetlands approval, but it cannot refuse to accept it.

2. The commission cannot deny a subdivision application solely because the wetlands commission denied a companion wetlands application. It must still meet the affordable housing law's burden of proof.

3. The wetlands commission subsequent denial of the developer's wetland's permit did not render the developer's affordable housing appeal moot.

4. The law requiring a commission to hold a public hearing on a modified affordable housing application if it held one on the original application applies retroactively.

5. The commission must treat the developer's subdivision application as a modified application when he changes it to comply with the legal requirements of the wetlands commission or other land use agency.

TOWN CLOSE ASSOCIATES V. NEW CANAAN PLANNING AND ZONING COMMISSION, 42 CONN. APP. 94 (1996) CERT. DENIED (1996)

In this case, the owner of a 3.6 acre parcel in downtown New Canaan had entered into a stipulated agreement with the town in which it permitted the development of an office building if the development met certain conditions. The owner never built the building and subsequently sold an option on the property to the plaintiff. In December, 1992 the plaintiff sought to build a mixed-use development, including an affordable housing component. Under the town's zoning ordinance, affordable housing developments were allowed in the zone by special permit. The town rejected the original proposal in April 1993 and a modified proposal in June 1993. The town cited 14 reasons for its denial but did not identify which constituted substantial public interests that would outweigh the need for affordable housing.

The plaintiff appealed, and in its brief the town identified three substantial public interests to be protected by its decision: (1) the integrity of its affordable housing regulations, (2) the protection of property values against excessively large structures, and (3) preservation of existing traffic conditions. The trial court, following CGS 8-30g, first reviewed the commission's 14 reasons. It found that nine, including the concern regarding traffic, were not supported by sufficient evidence. The court then examined whether the commission's decision was necessary to support the two remaining substantial interests and whether these interests outweighed the need for affordable housing. The court found that the commission's decision was not needed to protect property values and that maintaining the integrity of the town's affordable housing regulations did not outweigh the need for affordable housing.

The commission appealed, claiming that the trial court improperly concluded that the commission had to prove that the public interests advanced by its decision clearly outweighed the need for affordable housing. The commission also claimed that the court improperly refused to review the legal effect of the situation between the property's owner and the town.

The court rejected the commission's argument that CGS 8-30g(c)(3), which requires that the public interests cited by a commission outweigh the need for affordable housing, should not apply where the site is already zoned for affordable housing, as in this case. The court found no support for this argument, either in the statute's language or its legislative history. It also held, following Kaufman, that the statute must be construed liberally in favor of those it is intended to benefit.

The court also rejected the commission's argument that the trial court had improperly refused to consider the legal effects of the stipulated agreement between the owner and the town. It found that there was no evidence that any restrictions were placed on the plaintiff's option. The Appellate Court concluded that the trial court had correctly determined that several of the issues raised by the commission were issues of fact that were beyond its proper scope of review in the appeal.

EDWARD F. MACKOWSKI ET AL. V. ZONING COMMISSION OF THE TOWN OF STRATFORD, 59 CONN. APP. 608 (2000)

Facts

The zoning commission denied Mackowski permission to build a 43-unit affordable elderly housing project. Mackowski appealed to Superior Court, claiming that the commission failed to meet the statutory burden of proof. The court dismissed the appeal, and the plaintiffs appealed to the Appellate Court, which reversed the commission's decision and ordered the trial court to sustain the appeal.

Issue

The Appellate Court's decision turned on whether the commission proved, by sufficient evidence, that a substantial public interest in health or safety clearly outweighed affordable housing needs. The court ruled that the commission failed to meet the burden of proof because the record did not contain enough supporting evidence.

Reasoning

Based on the Connecticut Supreme Court's Christian Activities Council decision, the court found that the record evidence failed to sufficiently prove that the commission's decision was necessary to protect substantial interests in health, safety, or other matters a commission may legally consider when deciding an affordable housing application. Nor did the record show why those interests clearly outweighed affordable housing needs. The commission made only general comments about the project's potential impacts without supporting them with facts.

Dissenting Opinion

The Chief Judge dissented, arguing that the neighbors' testimony was enough for the commission to question the evidence presented by the traffic expert and the planning official. Consequently, the commission met the burden of proof. In an affordable housing appeal, a commission does not have to show that the adverse impacts will definitely occur. Instead, he argued, it satisfies the burden if there is better than an outside chance that the impacts will occur.

PRATT'S CORNER PARTNERSHIP V. SOUTHINGTON PLANNING AND ZONING COMMISSION, 9 CONN. L.RPTR. NO. 10, 291, JULY 26, 1993

The developer proposed an amendment to the zoning map to change the designation of land from single-family on 40,000 sq. ft. lots to single-and two-family on 12,000 sq. ft. lots. The zone change would permit construction of nine two-family houses and 26 single-family houses on a 35-lot subdivision. The town denied the application and the developer's subsequent modified application for several reasons including: (1) double down zoning would not be in the best interests of the area, (2) the development would result in overburdening the educational system, (3) it would adversely affect existing property values in the areas, and (4) it was not supported by sufficient evidence contained in the record. The town also noted that the application could have been served by a zoning amendment, which did not contain all of the features of the new zone.

The court stated that the commission, under the law must demonstrate (1) that its decision is necessary to protect substantial public interest in health, safety, or other legitimate matters; (2) the public interest clearly outweighs the need for affordable housing; and (3) the public interest cannot be protected by reasonable changes to the affordable housing development. The court in reviewing the commission's reasons for denying the application found that the commission only made generalized reference to the necessity of protecting the public interest and did not focus on either of the other two reasons. With regard to double down zoning not being in the public interest, the court noted that the town's plan of development recommended the very same piece of property for high-density residential development. In examining the record for information on the development overburdening the education system, the court noted that this is a fiscal impact consideration (not a pertinent consideration for a zoning commission) and the record is totally devoid of evidence to support it. The court noted that the record contradicts the statement that the development would adversely affect existing property values. It rejected the commission's attempt to impose upon the applicant the burden of proof imposed upon the commission by law.

It noted that the applicant is under no obligation to demonstrate that its way is the only way or to submit to a lesser density development simply because the commission thinks it more appropriate. The court concluded that the town failed to satisfy its burden of proof, sustained the developer's appeal, and reversed the commission's 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 developer (plaintiff) made three requests: the first proposed an amendment to the zoning regulations to create an affordable housing development zone; the second an amendment to the site plan regulations; and the third involved the actual rezoning of the property to an affordable housing development. The commission denied the developer's request and cited 19 comments made by some of the commissioners as reasons for the denial. The court noted that the reasons given by a zoning commission to deny an affordable housing application must be collective reasons of the zoning commission, not a recitation of individual views. It found that failure by a zoning commission to state the reasons for a decision is more likely to result in reversal on an appeal under the Affordable Housing Act than on other appeals because the act shifts the burden of proof to the agency. But the usual rule that a court must search the record for reasons to support a decision still applies under the act. The court noted that because some of the reasons listed for denial may be legitimate considerations and there may have been some confusion about the commission's obligations under the act, it is remanding the case to the commission for further action.

Briefly the reasons given for denying the application were that (1) the application violated the town's zoning regulations, (2) there were traffic and fire safety concerns, (3) it did not carry out the intent of the affordable housing law and would deteriorate neighboring communities since young professionals from Bridgeport would move to Trumbull, (4) the additional school children would have a negative affect on the school system, and (5) no one supported the amendment or spoke in favor of it. The court discussed these concerns and suggested that the commission in explaining the reasons for denial might review the density issue, decide to hear another presentation on traffic and safety issues, and review using the parcel for housing rather than industry. The court remanded the case to the commission for further review.

SHAPIRO FARM LIMITED PARTNERSHIP V. PLANNING AND ZONING COMMISSION OF THE TOWN OF NORTH BRANFORD, 1993 CT. SUP. 8831

The developer proposed constructing 40 single-family units on 38.61 acres. He filed applications to change the zone from industrial to residential and to modify the restrictions, which limited affordable housing complexes to 35 acres and limited the total town wide units to 50 built per year. The initial application also wanted to change the formulas for buildable acreage, street frontage, interior lots, open space, and deed restriction time. The town rejected the initial application charging that it would adversely affect the town's recently adopted affordable housing regulations.

The applicant filed a modified application deleting almost all of the requested changes except the one to increase the number of affordable units that could be constructed in a year to 25 from 12.5 and to change the deed restriction to 20 years from in perpetuity. The number of proposed units was reduced to 23 homes on 29.19 acres. The commission also rejected this application. The plaintiff appealed the denials but asked that the court only review the second denial. The court sustained the plaintiff's appeal and reversed the commission's decision. It concluded that the town's regulations must be corrected to be consistent with the law by deleting the requirements that 25% of the development be affordable to count as an affordable housing development and that the homes must remain affordable in perpetuity. It also found that the cap on the number of units that can be built in a year must be modified. The court also dealt with the zone change application denied in the first application. The commission had listed a number of reasons for its denial including its desire to have the property developed for industrial use. The court overturned the commission's denial and granted the zone change.

The commission offered seven reasons for denying the application. The first stated that the commission had adopted affordable housing regulations and had previously approved a 42 lot development. The court noted that there is nothing about a prior approval that could be deemed a substantial public interest in health, safety, or other matters, which the commission could legally consider as grounds for a denial.

The second reason suggested that the proposed amendments adversely affected the intended goals and objectives of the town's affordable housing strategy by allowing up to 50 units to be built in a year and eliminating the in perpetuity provision. The third expressed the commission's disappointment in the applicant choosing to modify the existing affordable housing regulations and the fourth that the commission believes that the general public health interest cannot be protected by making modifications to the regulations. The court did not interpret the law as allowing a commission to impose more stringent percentages or set aside periods than the law. It concluded that the cap

is unlawful since it discriminates against people of lower incomes and the requirements that the units be set aside in perpetuity also violates the law.

The fifth reason was that the proposed amendments were in conflict with the town's strategy to encourage small-scale projects. The court did not agree. Reason six stated that the amendments were inconsistent with the plan of development, which encouraged affordable housing that was compatible and harmonious with nearby residential properties. The court found nothing in the two proposals which was inconsistent with existing properties. Reason seven was concerned with the expense to the town of funding public services and schools for the development and others that may be proposed. The court reiterated its position that fiscal zoning per se is irrelevant to the statutory purposes of zoning.

NATIONAL ASSOCIATED PROPERTIES V. NORTH BRANFORD PLANNING AND ZONING COMMISSION, 1993 CT. SUP. 9305; 37 CONN. APP. 788

The developer proposed an amendment to the town's zoning regulations to add an Affordable Housing District and change the zoning of 12.4 acres of land from central business and residence garden apartment to the new district. He proposed this in order to build an additional 40 units on a site, which contained 54 multifamily dwelling units. The town denied the application for a number of reasons, the predominant theme being the commission's desire to discharge its responsibility to promote affordable housing in its own way. The court noted that the validity of the town's affordable housing regulations could not directly be an issue in the case, but their appropriateness as a suitable vehicle for the satisfaction of the town's obligations to promote affordable housing was open to question. The court held unlawful the town's cap on construction of 200 units town-wide during the life of the regulation. It also noted that the regulations deviated from the law in three other material respects, (1) they required at least 25% of the units to be affordable, (2) they required that the units be two- or three-bedroom units, and (3) they were oriented to moderate not low income people. The court decided that the regulations were repugnant to the law and the developer's proposal was entirely compatible with the law. (The town's regulations were also condemned in the Shapiro case (see above).)

In denying the application, the town also reasoned that the higher density requested by the plaintiff would only exacerbate traffic and visual impacts to the area. The court, in discussing the town's density concern, searched the record and found that it was totally devoid of any evidence to support a public interest precluding this development. Likewise it found that neither traffic safety nor flow constituted a substantial public interest, which warranted protection against the development. With regard to visual impact the court stated that that town's regulations appeared to give the commission adequate control over visual impacts, and if the commission was uncertain about this, it could have articulated its objections under the affordable housing law. Another of the commission's reasons for denial was its concern that the proposed regulation would have a negative impact on schools and other public services. The court found that there was nothing in the record to support this. The commission also argued that the absence of approval from the Water Pollution Control Authority for the sewer connection was sufficient justification for the denial. But the commission did not include this reason in its list of reasons given to the court for denying the application, and the court was not permitted to look behind the reasons actually given.

The last reason the court analyzed was that the proposal was inconsistent with the plan of development. The court noted that "curiously, the plan of development contains a statement that seems to contemplate this very type of development."

The court found that the decision of the commission and the reasons cited for the record were not supported and reversed the commission's decision.

The town appealed the decision of the trial court. The appellate court found that the trial court properly determined that the application satisfied the law's requirements for an affordable housing development and the defendant's claim to the contrary notwithstanding, that the language to be included in the proposed deed restricted both the rental and sale of housing units within the requirements of the affordable housing act. It also found that the town could not prevail on its claim that its decision should have been upheld because the plaintiff did not obtain the approval of the water pollution control authority. Since the town had not listed this as reason for its denial, the trial court was not required to go behind the reasons listed by the commission for its denial. It also stated that the defendant's unpreserved claim that the trial court improperly viewed the property was not reviewable.

NIZZA V. TOWN OF ANDOVER PLANNING AND ZONING COMMISSION, 1994 CT. SUP. 7883

The developer proposed building a 14-unit affordable housing subdivision on 10 lots. He filed an application with the town for approval of a subdivision including a request for a waiver of roadway width specifications and a waiver of certain zoning regulations including minimum lot floor area requirements. The court found that with one exception having to do with emergency vehicle access and parking the reasons cited by the commission were either not supported by evidence in the record or were not substantial bases for rejecting the application. The court remanded the application to the commission to address that issue.

The first reason for the commission's denial was that the application did not comply with the subdivision and zoning regulation as itemized in the plan review prepared by the zoning agent. The main thrust of the review was the proposal's failure to comply with existing zoning and subdivision regulations. The court found that the record did not support the commission's denial based on the review and that the commission could have proposed reasonable changes to the proposal to address any unsatisfied requirements. The second group of reasons had to do with the application being inconsistent with the town's plan of development. The court reviewed the plan and found that its underlying rationale gave no consideration to the issue of affordable housing and reiterates the town's desire to retain the status quo. The court concluded that the commission's reliance on the plan was misplaced and could not be sustained. The third reason had to do with the proposal causing an abutting lot to become nonconforming due to inadequate setbacks. There was no provision in town regulations prohibiting the creation of a nonconforming lot outside of a proposed subdivision. The court found the third reason to be not sufficient for denial. The fourth reason stated that the subdivision would cause traffic safety problems because of increased traffic on an unimproved road. The court noted that in examining traffic safety the commission did not request updated calculations or devise its own solutions by suggesting reasonable changes. Therefore the commission failed to sustain its burden of proof.

The fifth group of reasons had to do with the size of the proposed cul-de-sac and whether there would be room for emergency vehicles to service the area and whether the driveway cuts, off-street parking areas, and turnarounds were adequate. The court viewed the property and determined that these items were of legitimate concern. But it noted that the commission failed to consider several reasonable changes suggested to the plans and as a result it failed to meet its burden of proof that the public interest could not be protected by these changes. The court remanded these issues to the commission to address whether these safety concerns could be resolved.

Another reason the commission gave for denying the application was concern about the closeness of a retaining wall to the property line. The court concluded that the commission had no evidence in the record to support its denial. The final reason the court reviewed concerned the commission's concern about the cost of erosion control. The court found that the commission's denial could not be sustained for cost reasons since there was no evidence that the proposal could not be effectuated as planned.

BARBERINO REALTY AND DEVELOPMENT CORP. V. TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF FARMINGTON, 1994 CT. SUP. 9660

The developer proposed building 267 housing units on 54.9 acres with 89 of the units deed restricted as affordable housing. The developer applied for a zone change, approval of a site plan, and approval of an affordable housing project. The commission denied the initial application and the subsequent modified applications for several reasons based on criteria in the town's zoning regulations. The court reversed the commission's decision for all but one reason where along with reversing the decision it required the commission to modify the application as suggested by the developer.

One reason for the commission's denial was concern over the increased traffic generated by the project. The applicant's traffic planner proposed various ways to alleviate the congestion. He testified that his recommendations together with the improvements the State Traffic Commission would require would accommodate the additional traffic. The court found that the commission failed to meet its burden of proof that the public interest could not be protected by reasonable changes to the proposed development. Accordingly this reason was insufficient to sustain a denial.

The commission's second concern was that a number of the proposed cartways (narrow dead end streets) were designed to serve an excessive number of units resulting in a safety hazard because of their narrow width and dead end nature. The developer's planning expert suggested several improvements to the roads. The court noted that is was unclear from the record whether the commission had considered the modifications. The court did not sustain this reason for denial and directed the proposal be revised consistent with the suggested modifications.

Another of the commission's reasons for denial was that the density, scope, and size of the proposed development was incompatible with the surrounding single-family one acre zoning. The court found that, although many residents spoke against the proposal based on its

incompatibility, there was no evidence that this incompatibility had an adverse effect on substantial public interest in health or safety. The court did not sustain the commission's denial for this reason.

The commission also denied the application because it believed that the schools could not accommodate the expected number of students generated from this development. The court noted that although the commission bears the burden of proof, it made no findings as to what the increased number of children would be and if the number would affect the number of bus trips or create any dangers to public safety. This failure to reveal publicly any facts or special knowledge that were critical in its decision denied the developer the opportunity for rebuttal. The court found that the commission's denial was not supported by sufficient evidence in the record and could not be sustained. The commission also advanced other reasons for its denial, including that the development should be located near mass transit. Yet the commission made no showing why this development needed more mass transit than other residents.

NICHOLS V. KILLINGLY PLANNING AND ZONING COMMISSION, 1995 CT. SUP. 7282

The developer applied to rezone a v-shaped parcel of land from rural to medium density to construct eight single-family homes, including two affordable units. The commission denied the application for several reasons. The court reversed the commission's decision.

The court considered reason one and two together, i.e., that the shape of the parcel was inappropriate and located at the intersection of two highly traveled state routes. The court found that neither the commission nor the record showed that the shape of the parcel would damage a substantial public interest. Reason three was that the proposal was inconsistent with the future land use plan especially with regard to density. The court in examining the record found that the density concerns reflected nothing more than the commission's value preference to maintain the current classification. The record was barren of any evidence that a density-based preference was supported by a substantial public interest, which would be harmed by the zone change.

Reasons four and five addressed the character of the neighborhood being changed by the development. The commission failed to demonstrate that these reasons implicated a substantial public interest. Reason six stated that the proposal would result in a negligible increase

in the affordable housing stock. The court noted that the need for affordable housing was determined by the legislature, and the town was not at liberty to characterize the number of units as negligible.

Reasons seven, eight, and nine dealt with traffic safety. The court noted the commission had not ordered a traffic study or ordered the developer to provide one. The only evidence presented on traffic safety was generalized citizen fears. The commission failed to sustain its burden of proof that the traffic safety issue outweighed the need for affordable housing or that the public interest could not be protected by reasonable changes to the development.

Reason 10 was that the project should be located on a parcel already zoned medium density. The courts, however, have consistently held that a town's existing zoning regulations may not constitute a bar to an affordable housing project. Reason 11 was that the proposed zone change did not meet the criteria for the need of a zone change. The court found that the reason has no legal validity. Reason 12 stated that the proposal violated the town's zoning regulations' statement of purpose. The court stated that noncompliance with a highly generalized expression of intent cannot stand in the way of an affordable housing development. Reason 13 denied the application because it would result in spot zoning. The court noted that the prohibition against spot zoning does not prevent a zoning authority from imposing specific conditions on the approval of a change in a zoning classification as long as the conditions are reasonable and are for the general community benefit rather than for the benefit of a single landowner. It stated that the imposition of specific conditions by a zoning commission to ensure compliance with the affordable housing law has been approved by the Supreme Court and that the town's reason was legally insufficient.

The commission asked the court to remand the case to them to protect the public interest, especially with regard to traffic safety. The court stated that the town's traffic safety concerns could be addressed satisfactorily at the subdivision application stage and reversed the commission's decision.

GRISWOLD HILLS NEWINGTON LIMITED PARTNERSHIP V. NEWINGTON TOWN PLANNING AND ZONING COMMISSION, 1996 SUP. CT. 940540954S

The developers applied for a special permit to build a 128-unit affordable housing project in a planned development zone. The commission approved the project, but allowed only 40% of the units to be affordable and required the developers to construct a swimming pool for the project's residents. The commission denied the developers' request to remove these conditions, which they claimed undermined the project's economic viability. The commission denied the request, but increased the percentage of affordable units to 50%.

The developers appealed, claiming that they were aggrieved by the commission's conditions. The commission argued they were not aggrieved since it ultimately approved the project. The court held that the developers were aggrieved, since the commission rejected the project they proposed.

The commission claimed that it capped the percentage of affordable units in order to promote economic diversity, which the zoning statutes require (CGS 8-2(a)). The court rejected this argument for several reasons. The statute requires commissions to adopt regulations promoting economic diversity; it does not authorize them to impose conditions on special permit applications. When read in context, the statute also requires the regulations to promote housing that includes rather than excludes low- and moderate-income households. It does not authorize regulations that limit the number of these households that may reside in a project. Further, CGS 8-30g does not authorize commissions to limit the economic make-up of affordable housing projects.

The court stated that towns subject to the affordable housing appeals procedure cannot claim that the need to promote economic diversity is a substantial public interest that outweighs the need for affordable housing. It based this finding on the fact that less than 10% of Newington's housing stock was affordable, as defined under CGS 8-30g. "Bearing in mind the socially remedial purpose of CGS 8-30g, this court believes that it would subvert the purpose of the statute if a nonexempt municipality such as Newington were permitted to rely on economic diversity as a bona fide public interest at the same time that it is classified as a municipality in need of affordable housing."

The court also noted that the record did not show why economic diversity was important for the neighborhood or the town. Nor did it show how 100% affordable occupancy would lower property values or harm the neighborhood's character.

The court struck down the limit on affordable units, but remanded the case, requiring the commission to reexamine how the swimming pool requirement affected the project's viability. (The court did not address this requirement since neither the developers nor the commission addressed it in their briefs.)

OLD FARMS CROSSING ASSOCIATES LIMITED PARTNERSHIP V. PLANNING AND ZONING COMMISSION OF THE TOWN OF AVON 1996, CT. SUP. 0547862S

The developers applied for a special permit to build a 45-unit multifamily project. They originally proposed a 48-unit project, which the commission rejected for traffic safety reasons. The developers reduced the number of units to 45 and then reapplied for the permit, which the commission subsequently denied. They appealed, and the court sustained the appeal, ordering the commission to approve the permit after making changes needed to insure pedestrian safety.

The commission gave three reasons for its decision and claimed that the court had to sustain it if the record contained "sufficient evidence" to support them. The developers argued that the court had to apply a stricter standard, and the court agreed.

The court rejected the commission's argument that the children from the project would wander into a nearby street heavily used by trucks serving an adjacent industrial business. The commission based this on the opinion of an engineer employed by that business. The court stated that a commissioner could rely on his own knowledge to confirm facts cited by witnesses, but not their beliefs and opinions. The commission accepted the engineer's opinion despite "a negligible record of one traffic accident per year on average." The record contained no testimony from the police chief, the town planner, the school superintendent, or other public officials with traffic safety responsibilities.

Other evidence contradicted the commission's concern for safety. The town helped other parties convert an abandoned railroad track, which bordered the zone, into a recreational trail. And the zoning regulations allowed multifamily housing in the zone under a special permit.

The court rejected the commission's claim that the poor sight line at a nearby intersection could only be remedied by acquiring the property rights from an uninvolved landowner. The commission would have to do this only if it applied the state's optimum standard for designing intersections. The alternative was to apply the state's minimum standard, which was supported by the town engineer, the town planner, and the police department. There was no evidence in the record that the commission examined whether the minimum standard adequately protected public safety or considered how the need to adopt the optimum standard outweighed the need for affordable housing.

The court found that the record failed to support the commission's claim that the project would diminish the value of the surrounding industrial uses. Experts testified that the project was incompatible with these surrounding uses, but the court interpreted their testimony as being directed at the zone, which allowed multifamily uses. The court also rejected the commission's argument as contradicting the town's affordable housing policy. The town's plan of development acknowledged the need for affordable single- and multifamily housing, but neither it nor the zoning regulations provided mechanisms to address this need. For this reason, the court concluded that, "these affordable housing opportunities must be met within existing residential zones."

Lastly, the court dismissed the commission's claims that public safety needs outweighed those for affordable housing. The commission argued that the need to protect the public from heavy truck traffic was self-evident. The court apparently rejected this argument, finding nothing in the record showing that the commission tried to balance public safety and affordable housing needs.

FRUMENTO V. PLANNING AND ZONING COMMISSION OF THE TOWN OF NORTH BRANDFORD, 1993, CT. SUP. 505665S

Frumento appealed under CGS 8-30g the commission's adoption of an amendment allowing affordable housing under a special permit. The commission argued that this statute could only be used to appeal decisions regarding affordable housing projects, not the adoption of zoning amendments. It also argued that the court had no jurisdiction to hear the appeal. In 1993, the statute required all appeals to go to the Superior Court in the Hartford-New Britain judicial district, regardless of where they originated. Since the statute did not apply to the adoption of amendments, Frumento could only have appealed under the normal procedure, which would have required him to appeal to the New Haven judicial district.

The court ruled that the statute did not allow appeals from the adoption of regulations. But it also held that it had jurisdiction over Frumento's appeal and would review it under CGS 8-8. In the subsequent trial, Frumento failed to prove that he was aggrieved by the amendment.

FRUMENTO V. ZONING BOARD OF APPEALS OF THE TOWN OF NORTH BRANDFORD, 1996, CT. SUP. 532862S

Frumento applied for a special permit and subdivision permit to build a 42-lot affordable housing subdivision. The commission had already approved the site for 31-lot subdivision. Frumento also applied for a variance from the requirement that developers connect each lot in a affordable housing subdivision to municipal sewers. The commission approved the special permit but denied the subdivision permit. It denied the latter because the permit proposed changes to a recorded subdivision. The commission claimed that these changes constituted a resubdivision, which required a new public hearing. The court agreed and dismissed the appeal.

Frumento sought the variance after the town's water pollution control authority approved connections for only 31 lots. He proposed installing septic systems for remaining 11 lots, an option that was supported by the regional health district on the grounds that the soils could safely accommodate the effluent.

The board denied the variance because Frumento could still develop the site without it. Under the hardship doctrine, the board had to grant the variance if the regulations prevented him from making any use of the property. The board apparently saw Frumento's request to develop 42 lots as a self-imposed hardship or as an attempt to maximize the property's economic value.

The court rejected this argument and sustained the appeal. First, it substituted the criteria for denying an affordable housing project under 8-30g for the traditional hardship test. Those criteria required the board to show that its decision was necessary to protect substantial public health and safety interests, which the court claimed the board failed to do. The court then applied the hardship test and found that the regulations, not Frumento, caused the hardship since they required sewer connections only for affordable housing projects and not other types of housing projects. While that requirement was designed to protect the public health, the record contained evidence that the proposed site could safely accommodate septic systems.

The court rejected the board's argument that Frumento was simply trying to maximize the property's economic value (maximum enrichment doctrine), noting that the commission approved the special permit for a 42-lot subdivision. It also stated that the board could not use the maximum enrichment doctrine to deny a variance for an affordable housing project under CGS 8-30g. Doing so would "doom almost every affordable housing application which sought variance (whether in a statutory or informal sense) from a standard which stymied the building of units." Applying 8-30g's criteria instead, the court found no evidence in the record to justify the board's decision as "necessary to protect substantial public interest in health, safety or other matters or that these interests outweighed the needs for affordable housing."

MUTUAL HOUSING ASSOCIATION OF SOUTHWESTERN CONNECTICUT INC. V. TRUMBULL PLANNING AND ZONING COMMISSION, 1996 CT. SUP. 549155 (UNPUBLISHED DECISION)

The commission denied the developer's request for a zone change because the zoning regulations required the separation of housing developments. It also rejected the application because the developer did not submit a fully engineered site plan. The court sustained the appeal, stating that the "commission's claim that its affordable housing regulations promote the separation of housing developments is neither accurate nor a substantial enough public interest to outweigh the need for affordable housing in Trumbull." It also found that the regulations did not require zone change applicants to submit fully engineered site plans.

GLASTONBURY AFFORDABLE HOUSING DEVELOPMENT INC. V. TOWN COUNCIL OF THE TOWN OF GLASTONBURY, 1996 CT. SUP. 543581

The council denied the developer's request for a zone change that would have allowed him to build affordable housing on a site that spanned three different nonresidential zones. The court sustained the appeal and required the council to approve the change with conditions insuring the housing's affordability.

The council claimed that the developer could not appeal under CGS 8-30g because he gave no meaningful assurances that the land would be developed for affordable housing. The court rejected this reason based on an earlier decision, which held that a statement of intent to build affordable housing under CGS 8-30g was enough to prove standing. It also noted that the town could have approved the change with conditions insuring affordability.

The court then found that the record did not support the council's reasons for denying the zone change. The council claimed that nearby oil storage tanks threatened the safety of the project's residents. The court

rejected this claim, stating that it could not see how these tanks threatened residential users more than the existing industrial and business users.

The council argued that the flood hazard area included in the site also threatened public safety. The court rejected this argument as well, citing examples in the record of how the developer planned to address the potential hazard. It noted that the council could approve the change after imposing additional safety requirements. The court also rejected the council's claim that the town would be liable for any flood-related damages and injuries if it approved the zone change. It held that the council failed to support this claim, and noted that the record contained testimony that the town would not be liable if it failed to implement a proposed emergency response plan.

The court found nothing in the record supporting the town's claim that the project was incompatible with surrounding land uses and that it would increase the concentration of affordable housing in the northwestern part of the town. Even if the latter were true, "Glastonbury is not exempt from the affordable housing provisions of the General Statutes because Glastonbury has not yet met the legislature's mandate requiring a municipality to provide 10% of its housing stock as affordable...." The court noted that the town's plan of development calls for multifamily housing in that area.

The record did not support the town's claim that changing the zone to residential would deprive it of "one of the last undeveloped parcels in that area of the Town Center." Instead, it suggested that poor road access and "the small amount of acreage" limited the center's development potential. Nor did the record support the town's claim that the zone change would eliminate productive farmland.

The court rejected the developer's request to treat the request for a zone change as a Planned Area Development (PAD) proposal, a move that would have eliminated the need for further review by the council. The court acknowledged the developer's reluctance to reapply for a zone change and took judicial notice of the hostile emotional undertones toward the project he reported reflected in his brief and in the record. But it had to reject the request since the record did not have the kind of information needed to treat the appeal as a PAD application.

DIME SAVINGS BANK V. DURHAM PLANNING AND ZONING COMMISSION, 1995 CT. SUP. 10526

The bank foreclosed on a site in an "industrial park/commercial development zone" and then sought to change the zone to farm residential, which would have allowed the site to be developed for affordable housing as defined in CGS 8-30g. The commission denied the zone change application because it did not include a site plan or subdivision application describing the proposed housing. For this reason, the commission claimed that there was no affordable housing project for it to review. The commission also denied the application in order to preserve the town's limited supply of land zoned commercial and industrial uses.

The court rejected the argument that the commission could not approve the zone change because the bank failed to submit a site plan and subdivision application. It noted that the zoning regulations did not require zone change applicants to submit these documents and that the bank indicated that the land would be developed for affordable multifamily housing with 20% of the units reserved under restrictive convenants for low- and moderate-income people.

The court held that the commission failed to document its reasons for denying the zone change. Preserving land for commercial and industrial development could outweigh the need for affordable housing, especially if the town is attempting to reduce the tax burden on residential property owners. But the commission failed to document the demand for commercial and industrial uses. Nor did it support its claim that the existing industrial uses adjacent to the site of the proposed project would harm its residents.

RINALDI V. SUFFIELD ZONING AND PLANNING COMMISSION, 1995 CONN. SUP. 49 AND 1995 CONN. SUP. 1183

The commission denied Rinaldi's special permit application to build 52 detached single-family homes in a multifamily district. (A special permit allows a commission to approve an otherwise permitted use after imposing conditions and requirements specified in the regulations.) The court rejected most of the commission's reasons for denying the permit, but remanded the case, requiring the commission to reexamine those reasons regarding the need for adequate parking and insuring the affordability of the designated units.

The record did not support the commission's reasons regarding density (Rinaldi proposed 5.2 units per acre while the regulations allowed up to 5.0), area requirements, and neighborhood impact, the court stated. Nor did it support the commission's claim that its decision was consistent with earlier decisions approving single-family developments in the multifamily district.

The court rejected several reasons on the grounds that the commission failed to comply with its own regulations. It also rejected the commission's claim that Rinaldi failed to specify the units' dimensions and configurations, noting that the special permit regulations did not require this. The commission raised several public safety concerns, but the record showed that it did not use its power under the regulations to address these concerns by making reasonable changes to the special permit application. The court rejected the commission's claim that it could not grant Rinaldi's request to waive certain zoning requirements, noting that the commission regulations allow the commission to do this with respect to public, elderly, and handicapped housing. The commission also failed to show how open space needs outweighed those for affordable housing.

On remand, the commission again denied Rinaldi's application. Rinaldi appealed, and the court sustained the appeal. The commission failed to show that Rinaldi's parking provisions could not be changed without compromising public safety. It also failed to consider ways to keep the units affordable. For example, the commission could have approved the permit on the condition that Rinaldi annually certify the units' affordability.

GERARD NUCERA, DBA HELPING WAY V. ZONING COMMISSION OF THE TOWN OF STRATFORD, 1998 WL 470587 (AUGUST 3, 1998)

The developer filed an application with the Stratford Zoning Commission that requested an amendment to the zoning regulations, a zone change, and approval to construct 48 rental units for elderly tenants on 0.7 acres. Nucera planned to reserve at least 25% of the units as affordable housing. The commission denied the application and issued a memorandum. It listed six reasons for denying the amended regulation, four reasons to deny the zone change, eight reasons for rejecting the proposed plan. Nucera submitted a revised application to address the commission's concerns. However, the commission rejected the revised application. In the letter it sent to Nucera, informing him of their decision, the commission claimed that the revisions did not go far enough to alleviate the problems they expressed in the memorandum. Nucera appealed to the Superior Court under 8-30g.

To determine if the commission justifiably denied the revised application, the court needed to evaluate the commission's collective statement of why it denied the revised application. The letter the commission issued to Nucera and the minutes of the commission's meeting indicated that the original memorandum contained the commission's collective statement. However, the transcribed minutes from the commission's meeting showed that the motion before the commission was to deny the revised application based on the comments of the commission members and the professional staff. The court held that this expressed the commission's collective statement, not the memorandum. The court searched through the transcribed minutes of the commission's meeting and public hearing. It identified 11 reasons why the commission denied the application. Table 1 summarizes the court's review of each reason.

Table 1

Commission's Reason

Does the record support it?

Is the rejection necessary to protect a substantial interest in public health, safety, or other matter?

Does the interest clearly outweigh the need for affordable housing?

Can the commission protect the interest through reasonable changes to the plan?

The developer did not prove the project needed 40 units in order to be feasible.

The Town Administrator testified that the development could contain fewer units and still be financially feasible. The developer did not offer any contradictory proof.

No. A lack of financial specifics does not constitute a threat to the public health, safety, or other legitimate matter.

No comment.

No comment.

The development would increase traffic to unacceptable levels.

No. A traffic consultant testified that 48 units of elderly housing would not have a significant impact on traffic. The court found no credible evidence to dispute his conclusion.

No comment.

No comment.

No comment.

The plans contained insufficient parking and threatened pedestrian and vehicular traffic.

The record showed that eight of the 48 proposed parking spots were located in Bridgeport. The developer had not gotten authorization from Bridgeport to construct them. The court found no evidence that the development threatened pedestrian and vehicular traffic.

No. The court found no evidence that the traffic patterns or the development's parking threatened the public's health, safety, or other legitimate matter.

No comment.

Yes. The commission can condition the approval on the Bridgeport Zoning Commission authorizing the eight parking spaces.

The revised development had insufficient emergency access.

No. In fact, the Fire Marshal testified that the revised plan provided acceptable access for emergency vehicles.

No comment.

No comment.

No comment.

Table 1 (continued)

Commission's Reason

Does the record support it?

Is the rejection necessary to protect a substantial interest in public health, safety, or other matter?

Does the interest clearly outweigh the need for affordable housing?

Can the commission protect the interest through reasonable changes to the plan?

The development had insufficient landscaping.

No. The revised plan had a landscaped area of 7600 square feet. This was equivalent to 24% of the total lot area.

No comment.

No comment.

No comment.

The development had insufficient recreation areas.

No. The plan included a roof top recreation area and a meeting room.

No comment.

No comment.

No comment.

The proposed units were too small.

No. The proposed units were 720 square feet, which was big enough for an apartment in a two-family zoning district.

No comment.

No comment.

No comment.

The proposed project was too dense and threatened public health and safety.

Yes. The planning and zoning administrator testified that the revised plan would have a density of 54.8 units per acre. The permitted density in the area was 11.61 units per acre.

Yes. The court ruled that the commission could consider density to protect the public's health and safety.

No. The court did not elaborate.

No comment.

The proposed project was too tall.

Yes. The building was to be 60 feet tall. The zone permitted a maximum height of 35 feet.

Yes. The court ruled that the commission could consider building height to protect a public interest.

No. The court did not elaborate.

No comment.

The proposed regulation did not cite an existing regulation designed to address the public's health, safety, and welfare.

No comment.

No. The proposed regulation concerned affordable housing. The commission already has the authority to deny applications that threaten the public's health, safety, or welfare. The reference in the regulation was not necessary.

No comment.

No comment.

Table 1 (continued)

Commission's Reason

Does the record support it?

Is the rejection necessary to protect a substantial interest in public health, safety, or other matter?

Does the interest clearly outweigh the need for affordable housing?

Can the commission protect the interest through reasonable changes to the plan?

The development would likely overburden the sewage system.

Yes. An expert testified that the sewer system in the area had capacity limitations. The Water Pollution Control Authority (WPCA) of Bridgeport had not decided if the project could connect to the Bridgeport Wastewater Collection System (BWCS).

Yes. The court ruled that the commission could consider the capacity of the sewer system to protect the public's health and safety.

Yes.

Yes. The commission could condition approval on the WPCA authorization to allow the project to connect to the BWCS.

In light of its findings, the court sustained the appeal and ordered that the commission approve the application, provided the developer satisfied eight conditions.

1. The developer obtained the necessary approval to be able to connect to the Bridgeport Wastewater Collection System.

2. The Bridgeport Planning & Zoning Commission allowed the developer to construct the eight parking spaces located in Bridgeport.

3. The proposed zoning regulation contained a provision that allows the developer to change which units he designates as affordable.

4. Before the commission issued building permits, it approved the landscaping plan.

5. The developer adhered to the commitments the architect made during the public hearing. These included, among other things, site lighting, fire alarms and sprinklers, minimum apartment specifications, and a recreation area on the roof.

6. The developer maintained its agreement with the Stratford Housing Authority, which allowed emergency vehicles on the Housing Authority's property.

7. He adhered to the revised plan's specifications regarding emergency access.

8. He complied with all aspects of the revised site plan.

NORTH HAVEN OPPORTUNITY FOR AFFORDABLE HOUSING, INC. V. NORTH HAVEN PLANNING AND ZONING COMMISSION, 1999 WL 73919 (FEBRUARY 5, 1999)

The North Haven Opportunity for Affordable Housing (NHOAH) submitted an application to construct 24 units of affordable housing. The commission denied the application because it was too dense, had insufficient parking, and lacked a recreation area. NHOAH modified the application by reducing the number of buildings from six to four and the number of units from 24 to 20. It also included a recreation area and increased the number of parking spaces. The commission rejected the revised application, claiming the development was still too dense, had insufficient parking, and insufficient detail about the recreation area. NHOAH appealed the commission's denial of the modified application to the Superior Court.

The court found that the commission failed to sustain its burden of proof for any of its stated justifications. The commission never argued that the density threatened the community's health or safety. Rather, it made vague references to the developments adverse impact on the environment, particularly the wetlands. However, the record showed that both the Quinnipiac Valley Health District and the Inland Wetlands Commission saw no reason to deny the application. The record further showed that the development was consistent with the Town's Plan of Development. The number of parking spaces was also in compliance with the Town's Zoning Regulations. The court ruled that NHOAH could easily alleviate any of the reservations the commission had about the recreation area by simply revising a portion of the modified application. The court overturned the commission's decision because the record did not support any of the commission's concerns and none of the concerns constituted a substantial public interest.

TERRAR, LLC V. TOWN OF RIDGEFIELD PLANNING AND ZONING COMMISSION, CV 05-4004079 (2006)

Facts

After Ridgefield's planning and zoning commission denied Terrar's application for an affordable 50-unit multifamily condominium, Terrar appealed to the Superior Court. The application consisted of the project site plan and proposed regulatory changes to accommodate it. The commission held a public hearing on the application and then denied it for reasons discussed below. The court sustained the appeal and reversed the commission's decision.

Issue

The issue turned on whether the record showed that:

1. the commission's decision was necessary to protect a substantial public interest,

2. that that public interest clearly outweighed affordable housing needs, and

3. no reasonable modifications could be made to the proposed project.

Reasoning

Proposed Regulatory Changes. The court began by addressing the commission's reasons for denying the proposed regulatory changes. The commission claimed they were unnecessary because (1) the existing regulations already promoted housing choice and economic diversity, as the law required, and (2) they did not prevent Terrar from submitting an affordable housing application under CGS 8-30g. Lastly the changes eliminated the commission's authority to impose changes on an application needed to address public health and safety concerns.

The court found no evidence in the record supporting these reasons. But even if it did, the court found nothing in the record that identified the public interests each reason sought to protect and why those interests clearly outweighed affordable housing needs.

The commission also denied the application because it proposed to increase the permitted density in a heavily traveled area. It noted that Terrar would not consider reducing the proposed density or show how a lower density would undermine the project's feasibility. Again, the court found nothing in the record supporting the commission's concern about traffic impact or showing how it weighed this concern against affordable housing needs.

The court addressed the commission's other regulatory-related reasons for denying the application. These included Terrar's refusal to amend his proposed regulations to allow three-bedroom units, as the town's affordable housing committee suggested. The court found nothing in the record identifying the public interests that would be harmed because the application did not include these units. Nor did it find any evidence of the commission proposing reasonable changes to the application allowing three-bedroom units. The record showed there was a need for two- and three-bedroom units.

The commission denied the application because it would have increased the housing densities recommended in the town's plan of conservation and development. It reasoned that the higher densities would increase traffic and consequently jeopardize public safety. Although the record evidence supported this reason, it did not outweigh affordable housing needs, the court concluded.

Site Plan Issues. Besides denying the application because of the proposed regulatory changes, the commission denied it based on the project's site plan. It did so because the heavy traffic flow near the site could endanger motorists entering and leaving the proposed project. The commission heard public testimony to that effect and relied on its own knowledge of the area's traffic situation. It noted that it denied two previous conventional, market rate housing projects in that area for the same reason. One, submitted by Terrar, was appealed to Superior Court, which upheld the commission.

The court used this point to illustrate the difference between conventional and affordable housing applications. The record evidence in both of the appeals supported the commission's decision. This was enough for the court to sustain the commission with respect to the conventional project, but not enough with respect to the affordable one. In these cases, the court must find that the record shows that the public interests outweighed affordable housing needs. In this case, the court found no evidence to that effect.

In discussing the traffic impact, the court noted that the record contained no expert testimony contradicting Terrar's traffic impact study, which was prepared by a traffic expert. The study showed that the project would increase traffic flow without jeopardizing public safety.

Although the court had to consider the commission's knowledge of the traffic situation, the record contain no evidence that that knowledge outweighed the expert's.

Lastly, the court rejected the commission's claim that all of its reasons for denying the application, when taken together, amounted to a substantial public interest. Given the cumulative effect of these reasons, the commission argued that that interest clearly outweighed the need for affordable housing. Again, the court found no evidence supporting this claim.

HALTER ESTATES SENIOR V. PLANNING AND ZONING COMMISSION OF THE TOWN OF BETHANY, CV 06 4010191S (MAY 3, 2007)

Facts

Halter Estates Senior Community, LLC appealed to the Superior Court under CGS 8-30g after the planning and zoning commission denied its application for a 48-unit development that included 15 affordable units. Halter originally proposed a 52-unit development with 16 affordable units, but it modified the application in response to public hearing testimony and the commission's denial. This development, the commission held, would harm the public water supply.

Besides these procedural facts, the court noted three other facts the record established.

1. Almost all of Bethany's residents depend on well water drawn from a public watershed encompassing most of the town. The town has no water pollution control authority or access to a publicly owned waste treatment plant.

2. Halter proposed to develop the project near a light industrial and commercial area on a site that is about 1,500 feet from a lake that is a significant public water source.

3. Less than 1% of the town's housing supply is affordable. The commission favored increasing the share of affordable housing and adopted regulations allowing elderly housing developments. Although it denied Halter's project, the commission indicated that it could approve a smaller one.

Issues

The court first determined if a party intervening under an environmental protection law could challenge Halter's right to bring an appeal under the affordable housing land use appeals procedure. (The party claimed that Halter's application failed to comply with some of the procedure's technical requirements.) The court then determined if the record evidence supported the commission's decision denying Halter's application and the reasons the commission gave for that decision.

Decision

The court dismissed the intervener's challenge, ruling that the intervener could participate only with regard to environmental matters.

The court reversed the commission's denial of Halter's application and remanded the case back to the commission on the condition that Halter comply with any reasonable conditions it imposed. The court also required Halter to obtain (1) the Environmental Protection Department's approval of the project's proposed septic system and (2) any necessary state approval or permit for the project's community drinking well or show that the piping water into the project would not undermine the project's economic viability.

Limiting Interveners to Environmental Issues

Harter challenged Halter's right to bring an affordable housing appeal even though the court found, at the hearing on the case, that Halter met the requirements for doing so. Because the appeal named Harter as an intervener only under an environmental protection law, she could not challenge the appeal on other grounds.

This was true even though Harter's property abutted Halter's. This fact allowed her to appeal only as a plaintiff, as someone aggrieved by the commission denial of Halter's application. She could not appeal as a defendant because she did not file an application with or initiate an action against the commission. Consequently, Harter could only raise environmental issues. Instead, she challenged Halter's application on the grounds that it did not contain certain housing related information the law requires.

Even if Harter could challenge the application on this ground, it would not affect Halter's standing to appeal the commission's decision. Halter has standing because it owns the property affected by the commission's decision. Consequently, Halter was aggrieved, and nothing in Harter's challenge disputed that point.

Further, Harter did not attack Halter's right to appeal based on the narrow statutory criteria for bringing affordable housing appeals. To meet those criteria, a zoning applicant must submit an “affordable housing application” and the commission must deny or approve it with conditions that undermine the project's affordability. Harter did not challenge Halter on these grounds, but instead claimed that Halter's application did not meet certain additional, technical requirements. Standing is a substantive right independent on meeting a technical rule, the court held.

Decision to Remand to the Commission's Decision

The court based its reasons for remanding the case on the statutory standard for deciding affordable housing appeals. That standard requires the court to determine if the record supports the decision and the reasons given for that decision. A record meets this standard if the evidence shows that “there is more than a mere theoretical possibility, but not necessarily a likelihood, of specific harm to the public if the application is granted.”

If the record meets this standard, the court must review it and determine (1) if the decision was necessary to protect substantial interests in health, safety, or other matters that the commission legally may consider, (2) whether the risk of harm to these interests clearly outweighs affordable housing needs, and (3) whether the interests can be protected by making reasonable changes to the application.

The court then applied this standard to the commission's findings and recommendations and concluded that the project posed more than a theoretical harm to the public water supply system and watershed. It did so based on written testimony of several experts expressing concerns about how intense development could affect the town's water supply. Because the evidence met this standard, the court reviewed the record to determine if the commission met the statutory burden of proof.

The court first considered if the commission's decision to deny Halter's application was necessary to protect the public water supply. Although the record showed that the potential harm to the water supply was more than a theoretical possibility, it was not enough to support that decision. In fact, the record included expert testimony stating that the project would not harm the water supply.

It also included evidence that undermined or contradicted this conclusion. The court recognized that Halter's pollution tests were flawed or inconclusive and that the experts acknowledged that a similar project could pollute the lake and the water supply. But it found no evidence in the record that Halter's tests indicated potential harm to the environment or specified how the project could harm the lake and

watershed. Consequently, the commission did not meet the burden of proof because the record did not support its “generalized concerns” about harm to the project's potential harm to the environment.

The record also showed that while the commission was concerned about the project's density, it did not explain why. Halter proposed building more units per lot than the zoning regulations normally allowed. Because the record did not explain the commission's concern, the court ruled that density alone is not a valid reason for denying an application. In fact, the court noted affordable housing land use appeals procedure contemplates developers propose density increases to reduce development costs.

The commission explained its concerns about the density in its briefs and oral arguments. Building more units on fewer lots lowered the amount of waste water each lot discharged. Consequently, the lower discharge would allow Halter to install a septic system that did not have to meet the Department of Environmental Protection's (DEP) standards, which are generally regarded as more stringent those of local and state health departments. The court noted that Halter asked DEP to confirm this fact, which it did. The court also noted that Halter gave no other reason for increasing the density than circumventing DEP's standards.

Although the court disapproved of Halter's strategy, it found that the commission failed to show how that strategy masked a potential environmental harm. Nonetheless, the court recognized the value of DEP testing and believed that Halter was trying to circumvent it. Consequently, it allowed Halter to proceed with the project only if DEP reviewed and approved the septic system.

Another reason the commission gave for denying the application concerned the on-site water supply. The commission claimed in its brief that this supply could not adequately serve the project, but the court did not state whether the commission cited any evidence supporting this claim. Instead, it noted that Halter proposed a community drinking well for the project and that the regional water authority agreed to supply water and allow a part of the project's sanitary radius to extend onto its land.

The court noted that Halter was applying for necessary approvals and found that the commission could not delay acting on the application while Halter was doing. Normally, commissions cannot act on an application when it also requires the approval of other independent bodies. But with respect to affordable housing applications, commissions, the Supreme Court ruled that commissions must presume that those bodies will approve the application unless the evidence suggests otherwise (River Bend Associates, Inc. v. Planning Commission, 271 Conn. 41).

The court did not address the other reasons the commission gave for denying the application because it did not explain how they related to the burden of proof.

Although the record did not support the commission's reasons for denying the application, the court still had to the project's potential harm against affordable housing needs. The town stated that it desires more affordable housing, but also asked Halter to scale back his project. In doing so, it claimed that it needs more single-family homes elderly households can afford than multistory, less age-restricted projects like the type Halter proposes. But the court noted that Bethany has very little affordable housing and must do more to help meet the state's overall housing needs. Consequently these needs clearly outweigh the relatively low public risks Halter's project poses.

PROCEDURAL ISSUES

PARTNERS EQUITY, INC. V. CHESHIRE PLANNING AND ZONING COMMISSION, 1997 WL 630042 (OCTOBER 6, 1997)

This case addressed the issue of who has the right to bring an appeal under 8-30g. In February 1995, Partners Equity, Inc. applied for a zone change, amendments to the zoning regulations, and a special permit to construct 300 rental units on 39.5 acres of land. It intended to set aside 20% of the units for affordable housing. In June, the commission denied the application and Partners filed an appeal. In March 1996, while the appeal was pending, Partners conveyed the property to Industrial Associates, Inc. Paul Bowman and Frank DiNatali were the officers, directors, and sole shareholders for both corporations. They also guaranteed the mortgage on the property. The commission claimed that Partners no longer had the right to appeal. Partners sought to amend the appeal to include Industrial, Bowman and DiNatali.

The court split the case so that it could first determine if anyone had the right to appeal. The statutes require that in order to be eligible for an appeal under 8-30g, an individual must have submitted an application for an affordable housing project, which was either denied or approved with substantial restrictions (CGS 8-30g). He must provide reasonable assurance that he intends to construct the affordable housing (Kaufman

v. Danbury, 232 Conn.122 (1995)). (It appears that the court places more emphasis on the assurance that the affordable housing will be constructed.)

The court considered each of the proposed plaintiffs. It ruled that Partners was no longer eligible for an appeal, since it had conveyed the property to another corporation. Industrial was not involved in the original application and offered no concrete evidence that it intended to construct the affordable housing. Consequently, the court ruled that Industrial was not entitled to an appeal. When considering Bowman and DiNatali's right to an appeal, the court examined the legal relationship between shareholders and corporations. Typically, the courts consider corporations to be separate legal entities from the stockholders (Betar v. United Sausage Co., 138 Conn. 18 (1951)). Hence, even though they guaranteed the mortgage, Bowman and DiNatali were not responsible for assuring that the affordable housing was constructed. The court found that the commission had no obligation to the individuals; therefore the individuals had no right to an appeal.

Having determined that no one had the right to the appeal, the court dismissed the case.

ENSIGN-BICKFORD REALTY CORPORATION V. ZONING COMMISSION OF THE TOWN OF SIMSBURY, 245 CONN. 257 (1998) (JULY 7, 1998)

The realty corporation applied for a zone change, which would have allowed it to construct 115 single-family residences, 23 of which would have been affordable units. The zoning commission denied the application. The realty corporation appealed to the Superior Court, but the court upheld the commission's decision. The realty corporation then petitioned the Appellate Court for certification to appeal and filed a direct appeal to the Appellate Court. The Appellate Court denied the certification. Regarding the direct appeal, the Appellate Court ruled that the realty corporation did not have the authority to file a direct appeal. The realty corporation appealed to the Supreme Court the right to a direct appeal.

Based on the statutes and legislative history, the Supreme Court concluded that plaintiffs under 8-30g do not have the right to appeal directly to the Appellate Court. The statutes state that, except as provided under 8-30g, affordable housing appeals are subject to CGS 8-8 and 8-9 (CGS 8-30g (d)). These sections of the statues explicitly state that a plaintiff aggrieved by the action of a zoning commission does not have the right to a direct appeal to the Appellate Court (CGS 8-8 (o)). The legislative history also showed that the legislature deleted language from 8-30g, before it was codified. The deleted language specifically stated that plaintiffs under 8-30g did not have the right to a direct appeal to the Appellate Court. The legislature opted to delete the language because it was redundant.

TRIMAR EQUITIES, LLC V. PLANNING AND ZONING BOARD, 66 CONN. APP. 631, A.2D 619 (2001)

The developer appealed the planning and zoning commission's denial of a request for a zone change, special permit, and site plan to build multi-family housing, 25% of which would be affordable according to CGS Sec. 8-30g. He claimed to be the “contract purchaser” and “intended developer” of the site of the proposed project. The trial court dismissed the appeal because the evidence did not show that the developer was aggrieved by the commission's decision.

The developer appealed the decision, claiming that a party filing an affordable housing appeal did not have to meet the statutory test for aggrievement. The Appellate Court affirmed the trial court's decision, ruling that the criteria for bringing affordable housing appeals did not exempt a developer from showing that the commission's decision harmed his personal and legal interests.

The Appellate Court envisioned a two-pronged test to determine eligibility to appeal. First, the person must have personal and legal interests in the decision. Second, the person must show that the decision has “injuriously affected” this interest. The court found that because the developer could not show that he had personal or legal interest in the commission's decision, he did not have grounds to appeal.

AVALON BAY COMMUNITIES, INC. V. ZONING COMMISSION OF THE TOWN OF STRATFORD, 248 CONN. 124 (2007)

Avalon Bay filed three applications with Stratford's zoning commission to build an affordable housing complex. After the commission cited fire safety, traffic, internal circulation, site design, density, and wetlands issues, Avalon Bay revised and submitted the applications. The commission held a hearing on the revised application. The commission denied them again and Avalon Bay appealed to Superior Court claiming that the commission failed to show sufficient evidence supporting its reasons for denying the application or why those reasons outweighed the town's affordable housing needs.

The trial court remanded the case to the commission directing it to “consider changes that could reasonably be made to protect the substantial public health and safety interests.” The commission appealed the trial court's decision, claiming that the court improperly (1) ordered it to redesign the project and (2) separately weigh each public health and safety reason instead of weighing them collectively.

The Supreme Court found that the trial court's decision to remand the commission's appeal was not a final judgment. Consequently, the Supreme Court did have subject matter jurisdiction to hear the commission's appeal. The right of appeal is purely statutory; here, appeal exists only for final judgment. A decision is final only if it so concludes the rights of the parties and further proceedings cannot affect them.

In this case, the trial court conducted a plenary review of the record and found evidence to be lacking. The court did not explicitly decide the issue for the plaintiffs. Rather, it found only that the commission did not complete its duty under the affordable housing law by showing that the public interest could not be protected by reasonable changes to the plaintiff's application. The court intended the commission to provide parameters for the plaintiffs to used in revising the application for resubmission, after which the commission could approve or deny it.

JR/MR/JTP:tjo