AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE

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

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.

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.

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.

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)

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;

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.

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.

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 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.

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.

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.

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.

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.

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

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.

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)

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.

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.

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:

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.

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:

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.

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.

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.

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.

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.

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.


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