ChristianCouncil v Town Council [Dissent]

{Christian Activities Council v. Town Council -- DISSENT}

BERDON, J., dissenting. Today the majority rips the soul out of affordable housing in the state of Connecticut. By enacting the affordable housing land use appeals statute, General Statutes § 8-30g (affordable housing), the legislature sought to address a panoply of social ills.[1] First and foremost, the statute attempts to address the dire housing needs of low and moderate income citizens. See, e.g., West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 636 A.2d 1342 (1994). That said, affordable housing is not just about providing shelter for the economically disadvantaged. It is also about cultivating racial and ethnic diversity in residential communities, just as Sheff v. O'Neill, 238 Conn. 1, 678 A.2d 1267 (1996), was about cultivating racial and ethnic diversity in our classrooms.[2] My colleagues in the majority seem to have set their sights on frustrating these equitable aspirations.

This case calls upon us to resolve the issue that lies at the heart of affordable housing in this state: what burden is a municipality required to satisfy before it may reject an affordable housing proposal? According to the majority, this burden is exceedingly deferential to the local zoning authorities whom § 8-30g was designed to keep in check. In my view, both the plain meaning of § 8-30g and the history surrounding its enactment supply irrefutable evidence that the legislature intended to impose upon towns a rigorous burden that resembles the gauntlet of strict scrutiny. If there were any doubt about this conclusion, "the mandate of liberal construction would be sufficient to dispel it." In re Baby Z., 247 Conn. 474, 551, 724 A.2d 1035 (1999) (Berdon, J., dissenting); see Kaufman v. Zoning Commission, 232 Conn. 122, 140, 653 A.2d 798 (1995) ("[a]s a remedial statute, § 8-30g must be liberally construed in favor of those whom the legislature intended to benefit" [internal quotation marks omitted]).[3]

One preliminary matter must be noted. A town can easily avoid the mandate of § 8-30g entirely -- and thus revert to a traditional regime in which we must defer to its judgments -- once it has attained the following goal: 10 percent of its dwelling units are affordable for families with low or moderate incomes. See General Statutes § 8-30g (f). Because the town of Glastonbury falls far short of qualifying for this exemption (only 6 percent of its housing is affordable), the present appeal does not implicate this escape clause.

In order to determine the burden that § 8-30g imposes upon a town before it may reject an affordable housing proposal, our fundamental objective is to evaluate the intent of the legislature. See, e.g., West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 507–508. "In seeking to discern [this legislative] intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 663, 680 A.2d 242 (1996); accord Kaufman v. Zoning Commission, supra, 232 Conn. 133; State v. Rado, 14 Conn. App. 322, 329, 541 A.2d 124, cert. denied, 208 Conn. 813, 546 A.2d 282, cert. denied, 488 U.S. 927, 109 S. Ct. 311, 102 L. Ed. 2d 330 (1988) ("[i]t is axiomatic that courts are required to read a statute in light of its purpose"). I shall begin with a brief review of the legislative history surrounding the enactment of § 8-30g.

In 1987, the legislature established the Blue Ribbon Commission on Housing (Blue Ribbon Commission). Public Acts 1987, No. 87-550, § 4 (a). After conducting an intensive, two year study, the Blue Ribbon Commission released its "Report and Recommendations to the Governor and General Assembly, February 1, 1989" (Blue Ribbon Report). This report confirmed the worst fears about the magnitude of the housing crisis in our state.[4] Blue Ribbon Report, supra, pp. 7–10. The report also contained a comprehensive plan designed to address the crisis. Id., p. 1. The legislature modeled the original affordable housing appeals act on this comprehensive plan.

Although the legislature had attempted to encourage affordable housing before it enacted § 8-30g, the Blue Ribbon Commission concluded that local zoning authorities under the prior regime were not sufficiently sensitive to the dire need for affordable housing -- at least not in their backyards. Blue Ribbon Report, supra, p. A-9. Accordingly, the Blue Ribbon Commission proposed a unique appeals process. In its most significant innovations, the Blue Ribbon Commission (1) proposed an appellate procedure that was much more efficient than garden-variety zoning appeals and (2) recommended displacing the traditional deferential standard of review with a rigorous burden of proof that would preclude a town from rejecting an affordable housing proposal unless it could marshal exceedingly persuasive reasons. Id., pp. A-6 through A-9. The legislature put the force of our law behind these recommendations.[5] By so doing, the legislature recognized the desperate need for affordable housing and demonstrated its robust commitment to addressing this need. See, e.g., West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 511 ("the key purpose of § 8-30g is to encourage and facilitate the much needed development of affordable housing throughout the state"). In contrast to garden-variety appeals from ordinary zoning decisions -- in which the standard of review is highly deferential[6] -- the legislature clearly intended to forbid a town from rejecting a proposal for affordable housing unless it could prove that its decision satisfied the rigorous criteria set forth in § 8-30g (c).[7]

The legislature did not create this new burden by accident. The forceful opposition from certain members of the legislature rules out the possibility that any legislator failed to appreciate the profound consequences that would follow in the wake of the new law. Representative Robert M. Ward stated: "I don't see this just as a shifting of the burden. I see it really as throwing out the basic concept of zoning altogether." 32 H.R. Proc., Pt. 30, 1989 Sess., p. 10,651. Representative Oskar G. Rogg remarked that, under traditional zoning law, "as long as you acted reasonably . . . you won because . . . the applicant had to prove you were unreasonable . . . . Here we are reversing this whole process." Id., pp. 10,666–67. Senator Fred H. Lovegrove commented that, "[a]s I read this it seems to me that when a claim is filed against a municipality that they are considered guilty until they prove their innocence. I wondered why the bill wasn't written so that the burden of proof of abuse was on the developer, instead of the town having to prove they didn't abuse [their power]." 32 S. Proc., Pt. 12, 1989 Sess., p. 4052.

The Blue Ribbon Report -- which we may presume received the careful consideration of every legislator -- stated that the Blue Ribbon Commission was "sensitive to the strongly expressed concern of municipalities that they might lose control over the pace and direction of land development in their communities. Nonetheless, and despite lengthy discussions, the [Blue Ribbon Commission] was unable to develop any other proposal [aside from the special appeals procedure] that would ensure sufficient consideration is given to the affordable housing needs of those not already adequately housed in the municipality. [The Blue Ribbon Commission] strongly felt . . . that if municipalities do not give greater weight to the need for creation of affordable housing when evaluating development proposals, we will have business as usual: the housing crisis will not go away." Blue Ribbon Report, supra, p. A-9; see also Town Close Associates v. Planning & Zoning Commission, 42 Conn. App. 94, 104, 679 A.2d 378, cert. denied, 239 Conn. 914, 682 A.2d 1014 (1996).

A proponent of the bill, Representative Miles S. Rapoport underscored this sentiment, remarking that "[t]he primary conclusion of the Blue Ribbon Commission was that . . . the single largest obstacle to the building and creation of affordable housing . . . was the availability of affordable land and overcoming the resistance of communities who do not want to have affordable housing in those towns. . . . [I]f we're going to reject this amendment . . . we might as well say to ourselves . . . that [a community's right to decide] what kind of housing [it will have] far overshadows in our view the . . . amply demonstrated crisis -- and I do believe it's a crisis -- that we have in this state for affordable housing . . . ." 32 H.R. Proc., supra, pp. 10,672–75.

This legislative history thus establishes with unmistakable clarity the fact that the legislature intended § 8-30g to create a major shift away from traditional zoning law. See, e.g., Town Close Associates v. Planning & Zoning Commission, supra, 42 Conn. App. 104. As the Appellate Court observed several years ago, "[t]raditional land use policies did not solve Connecticut's affordable housing problem, and the legislature passed § 8-30g to effect a change." Wisniowski v. Planning Commission, 37 Conn. App. 303, 317, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995). It is against this backdrop that we must interpret the requirements imposed by § 8-30g.

Pursuant to § 8-30g (c) (1), a town may not reject an affordable housing proposal unless, on appeal, it can sustain the burden of proving each of the following four elements: "(A) the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record; (B) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (C) such public interests clearly outweigh the need for affordable housing; and (D) such public interests cannot be protected by reasonable changes to the affordable housing development . . . ." (Emphasis added.) As the emphasized language makes clear, this standard establishes a new burden that is far more rigorous than the deferential review afforded to garden-variety zoning appeals.[8] From nothing more than the text of § 8-30g, it is thus apparent that affordable housing appeals are worlds apart from garden-variety zoning appeals.[9] See, e.g., Kaufman v. Zoning Commission, supra, 232 Conn. 150. I consider each subsection seriatim.

I begin with the plain language of § 8-30g (c) (1) (A): "the decision from which [an] appeal is taken and the reasons cited for such decision [must be] supported by sufficient evidence in the record . . . ."

We presume that the drafters of statutes are familiar with the legal definitions of the statutory terms that they decide to utilize. Black's Law Dictionary (6th Ed. 1990) defines "sufficient evidence" as "[a]dequate evidence; such evidence, in character, weight, or amount, as will legally justify the judicial or official action . . . evidence . . . which is satisfactory for the purpose; that amount of proof which ordinarily satisfies an unprejudiced mind, beyond a reasonable doubt. . . ." Instead of deferring to the majoritarian biases of zoning commissions, judges with "unprejudiced minds" must independently conclude that sufficient evidence exists. In the course of this inquiry, courts must reject evidence as insufficient unless it supplies "[legal] justif[ication] . . . beyond a reasonable doubt."[10] Id.

As the amicus cogently points out, the sufficient evidence standard "requires some objective verification or support beyond the mere belief of a commission. This reflects a fundamental concern of the Blue Ribbon Commission . . . that [i]t appears that many times the local commissions decisions elevate vaguely-stated and relatively unimportant concerns over the important need to build affordable housing."[11] (Internal quotation marks omitted.)

By employing the standard of "sufficient evidence," the legislature thus clearly and unambiguously directed courts to carefully scrutinize a zoning authority's decision to deny an application for affordable housing. It is well settled that, "[w]here the language of the statute is clear and unambiguous, we have refused to speculate as to the legislative intention, because it is assumed that the words express the intention of the legislature. Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984); Delevieleuse v. Manson, 184 Conn. 434, 438–39, 439 A.2d 1055 (1981); Mazur v. Blum, 184 Conn. 116, 118–19, 441 A.2d 65 (1981)." Sutton v. Lopes, 201 Conn. 115, 118–19, 513 A.2d 139, cert. denied, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986); accord Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 279, 679 A.2d 347 (1996) ("[w]hen the language is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent" [internal quotation marks omitted]); State v. Luzietti, 230 Conn. 427, 433, 646 A.2d 85 (1994) ("[i]t is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary"); Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988) ("When the statutory language is clear and unambiguous, it is from that source that we deduce the intent of the legislature. Commissioner v. Freedom of Information Commission, 204 Conn. 609, 620, 529 A.2d 692 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986); 2A J. Sutherland, [Statutory Construction (4th Ed. Sands 1984)] § 48.01.").

Nevertheless, in response to the majority's reliance upon legislative history, I wish to point out that my interpretation of § 8-30g (c) (1) (A) comports with the legislative intention to combat the majoritarian biases of local zoning authorities. Moreover, my interpretation of sufficient evidence is further reinforced by additional legislative history. The Blue Ribbon Commission recommended that the denial of an affordable housing application must be reversed unless the zoning authority proffers reasons that are (1) "bona fide," (2) "legitimate" and (3) "directly and substantially [necessary to] protect public health and safety concerns that are significantly more important than the need for affordable housing . . . ." Blue Ribbon Report, supra, p. A-7. During the debate on the floor of the House, Representative Richard D. Tulisano, a proponent of the bill, was asked to clarify the sufficient evidence standard. Representative Dale W. Radcliffe asked Representative Tulisano to "give me an idea what sufficient evidence is. Is that a particular test? Has that been developed? Is there any precedent as to what sufficient evidence is?" 32 H.R. Proc., supra, p. 10,578. After Representative Radcliffe explained that he was familiar with the "fair preponderance," "clear and convincing" and "beyond a reasonable doubt" standards; id.; Representative Tulisano responded that the sufficient evidence standard "is none of the three . . . ." Id., p. 10,579. Instead, Representative Tulisano stated that sufficient evidence "is in fact a new system we're developing here today. . . . [C]ourt decisions have in fact left it to . . . the Boards of Planning and Zoning Commissions to reach these conclusions and particularly with evidence of -- I'm trying to think of the word, belief, rather than any hard evidence and I think that they will have to have something on the record that third parties can look at in an objective manner and reach the same conclusion."[12] (Emphasis added.) Id.

If the legislature had intended to insulate denials of affordable housing proposals with the deferential standard of review that we employ in garden-variety zoning appeals, it knew very well how to do so. Instead of incorporating the traditional "abuse of discretion" standard, the legislature invoked the more rigorous criterion of sufficient evidence. Steelcase, Inc. v. Crystal, 238 Conn. 571, 586, 680 A.2d 289 (1996) (legislature deemed to be aware of settled meanings of terms in related areas of law when it enacts statute).

In short, the plain language of § 8-30g (c) (1) (A) and its legislative history supply ironclad evidence of the legislative intention to create a standard of review that requires zoning authorities to satisfy a high burden of persuasion before they may deny affordable housing proposals. In garden-variety zoning appeals, decisions by a zoning authority "must be upheld by the trial court if they are reasonably supported by the record" and if the zoning authority has not acted arbitrarily, illegally, or in abuse of its discretion. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 542–43, 600 A.2d 757 (1991). When affordable housing is at stake, however, the record must contain "sufficient evidence," i.e., a sufficient quantum of evidence to persuade the unprejudiced minds of the trial court and the appellate courts that -- from an objective standpoint -- the reasons that the zoning authority has set forth rise to the level of legal justification beyond a reasonable doubt. See Black's Law Dictionary (6th Ed. 1990).

Section 8-30g (c) (1) (B) requires a zoning authority to prove -- based upon "sufficient evidence" in the record -- that its reasons for denying an affordable housing application are "necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider . . . ." We therefore must reverse the denial of an affordable housing proposal if the zoning authority has failed to sustain its burden of proving by sufficient evidence two independent facts: (1) the public interest allegedly at stake is "substantial" and (2) there is a "necessary" nexus between the denial of the proposal and this substantial public interest. The plain meaning of the word "substantial" compels the conclusion that a proposal cannot be denied unless it represents a strong likelihood of significant harm to "health, safety, or other matters which the commission may legally consider . . . ."[13] General Statutes § 8-30g (c) (1) (B). Accordingly, the zoning authority must prove by sufficient evidence two independent facts: (1) the affordable housing proposal threatens a serious probability of grave harm to an interest that the commission may legally consider; and (2) denial is necessary to avert this harm.

Section 8-30g (c) (1) (C) builds upon subparagraphs (A) and (B). Once a zoning authority has established that it could not avert a serious probability of grave harm to substantial public interests without denying an affordable housing proposal, the zoning authority must go on to prove that these "public interests clearly outweigh the need for affordable housing . . . ."[14] General Statutes § 8-30g (c) (1) (C).

In determining precisely what is required under § 8-30g (c) (1) (C), we should begin with the pivotal piece of statutory language. According to Black's Law Dictionary (6th Ed. 1990), the term of art "clearly" is synonymous with the word "[u]nequivocal." Accordingly, subparagraph (C) requires that the public interests referred to in subparagraph (B) must unequivocally outweigh the need for affordable housing. It is apparent that this standard demands an exceedingly rigorous level of proof.

Before today, we had not yet decided the scope of the inquiry into the need for affordable housing. In other words, we had not previously determined whether we should evaluate the need for affordable housing by focusing at the statewide level, the regional level, or the local level. Today, the majority holds that "the need for affordable housing is to be addressed on a local basis." I believe that this holding is dangerously incorrect, and that it undermines the beneficial purposes of § 8-30g.

In West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 511, we noted that a local focus -- as opposed to a statewide or regional focus -- would threaten the development of affordable housing in wealthier towns. Because they have few low income residents, such towns could claim that they have no (local) need for affordable housing. For this reason, the need for affordable housing cannot be evaluated strictly in terms of a town's current population. As I discussed previously, § 8-30g was designed to address the following problems: (1) public servants are unable to afford to live in the communities that they serve; (2) Connecticut corporations have a difficult time recruiting employees; and (3) the lack of affordable housing contributes to de facto segregation along the vectors of both race and ethnicity. See footnote 4 of this dissent. Thus, an intelligent assessment of the need for affordable housing must take into account the needs of nonresidents who might decide to live in a town if affordable housing were available.[15] The contrary result would permit affluent towns such as West Hartford, Glastonbury and Greenwich to keep the poor corralled in ghettos in Hartford, New Haven and Waterbury.

Provided that sufficient evidence demonstrates (1) that denial of an affordable housing application was necessary to avert a serious probability of grave harm to substantial public interests and (2) that these interests unequivocally outweigh the need for affordable housing, the zoning authority must clear one final hurdle: it must demonstrate that "such public interests cannot be protected by reasonable changes to the affordable housing development . . . ." General Statutes § 8-30g (c) (1) (D). The majority has tacitly modeled its interpretation of this final prong of § 8-30g on the analytic framework set forth in Huntington Branch, National Association for the Advancement of Colored People v. Huntington, 844 F.2d 926 (2d Cir.), aff'd, 488 U.S. 15, 109 S. Ct. 276, 102 L. Ed. 2d 180 (1988). I join my colleagues in adopting this well reasoned authority from the Second Circuit Court of Appeals, upon which the Blue Ribbon Commission placed heavy reliance.

In Huntington, the court distinguished between "plan-specific" and "site-specific" reasons for denying an affordable housing application. Id., 939. Plan-specific problems may be eliminated by "requiring reasonable design modifications." Id. Site-specific problems, in contrast, can only be avoided by denying the application. Id. Applying this approach to § 8-30g, the zoning authority must approve an application for affordable housing unless it can advance site-specific reasons for its refusal to do so. In other words, denying the application for affordable housing must by the only way to avert a serious probability of grave harm to substantial public interests that are so important they unequivocally outweigh the need for affordable housing.

III

I now apply the four part test set forth in § 8-30g (c) (1) to the evidence in the record. In my view, the trial court abused its discretion by concluding that the defendant satisfied its heavy burden with nothing more than the highly speculative assertion that "the proposed development could endanger a potential future water supply source . . . ." (Emphasis added.)

The named defendant, the town council of the town of Glastonbury (defendant), relied upon the following evidence to justify its decision to deny the application for the development of affordable housing: (1) a report by the Environmental Planning Services prepared in 1991 contained two sentences referring to the fact that the 578 acre tract owned by the Metropolitan District Commission (Metropolitan) -- which included the thirty-three acre parcel at issue in the present case (parcel) -- was "underlain by coarse-grained stratified drift with a saturated thickness . . . typically capable of yielding high quantities of ground water to properly developed wells and may be considered potential public water supply aquifers"; (2) a similar resolution was submitted by the defendant's conservation committee; (3) expert witness Sarah Trombetta, a senior consulting hydrogeologist, testified that the plaintiff's expert had not definitively established that the subject property could not be used for a water supply; (4) Trombetta submitted a report to the defendant stating that the parcel might support a community-sized water supply system of a sort already in use in Glastonbury; and (5) other experts testified that the development of the parcel would preclude its use at any future time as a water supply source.

At the hearing before the defendant, the plaintiff offered the testimony of an expert witness, Jeffrey Heidtman, who is the senior vice president and chief hydrogeologist of Fuss and O'Neill, an engineering consulting firm. Based upon extensive tests that he performed on or near the parcel, Heidtman testified: (1) that the affordable housing proposal would have only a negligible impact on ground and surface water in the area; and (2) that no portion of the parcel was capable of supporting a significant ground water supply source. The plaintiff also introduced the results of a study performed by the engineering firm of Geraghty and Miller in 1966, which revealed that no land within 2000 feet of the parcel was suitable for groundwater exploration. Furthermore, the plaintiff produced evidence demonstrating that the defendant had stopped using the parcel as a public water source in 1953, because of its limited potential for supplying water in the future. Finally, the plaintiff adduced evidence that, more than forty years ago, the state department of public health designated the parcel as nonwatershed land.

The trial court determined: (1) that there was "sufficient evidence in the record" to support the defendant's conclusion that "the proposed development could endanger a potential future water supply source"; (2) that the application had to be denied in order to avert a serious probability of grave harm to "`a substantial public interest in health, safety or other matters'"; and (3) that "loss of a potential public water supply is both a site-specific issue and one which is implicated by [the proposed] development with or without `reasonable changes.'" In my view, the evidence that the defendant relied upon falls far short of satisfying the sufficient evidence standard contained in § 8-30g (c) (1) (A). Moreover, this evidence does not demonstrate that denial of the application was necessary to avert a serious probability of grave harm to substantial public interests pursuant to § 8-30g (c) (1) (B). Accordingly, I believe that the trial court abused its discretion by affirming the defendant's denial of the affordable housing proposal.

To begin with, the evidence that the defendant relied upon is highly speculative. As in Kaufman, the record suggests only a mere possibility that the purported "substantial public interest" rises to the statutory level of proof by sufficient evidence -- i.e., "that amount of proof which ordinarily satisfies an unprejudiced mind, beyond a reasonable doubt." Black's Law Dictionary (6th Ed. 1990). Indeed, it even fails under the majority's watered-down definition of sufficient evidence.

Trombetta -- the only witness whose testimony supported the defendant's decision -- made two fatal concessions: (1) there was insufficient evidence to determine whether the parcel could be used as a ground or surface water supply; and (2) development of the parcel "would likely have a limited or minimal impact on a ground water supply in the area . . . ." In light of these concessions, the trial court could not reasonably have determined that the defendant's explanation that the parcel was the site of a potential public water source was "legally justif[ied] . . . beyond a reasonable doubt."

In addition, the evidence in the record does not demonstrate that denial of the application was necessary to avert a serious probability of grave harm to the town's water supply. The defendant did not adduce any evidence with respect to the likelihood that the proposed development would cause any harm whatsoever, let alone substantial harm. The defendant merely asserted that it denied the application because development of the parcel "could endanger a potential future water supply source . . . ." (Emphasis added.) As a matter of law, this sort of unsubstantiated speculation cannot satisfy § 8-30g (c) (1) (B). Even if it were true that the proposed development could endanger a potential source of water in the future, this is a far cry from the requisite showing that denial of the application is necessary.

Because the defendant failed to satisfy the threshold test of marshaling sufficient evidence to prove that it had to deny the proposal in order to avert a serious probability of grave harm to substantial public interests, my inquiry under § 8-30g has come to an end. The defendant's decision to deny the application in order to avoid theoretical and highly speculative problems with the future water supply must be reversed.

The majority claims that "[a] zone change must be sustained if even one of the stated reasons is sufficient to support it."[16] (Internal quotation marks omitted.) If we were deciding an ordinary, garden-variety zoning appeal, I would agree. In the context of affordable housing applications, however, the majority is simply wrong.

The statutory language precludes the majority's argument. Section 8-30g (c) (1) requires a town to demonstrate that its "decision is necessary to protect substantial public interests" -- plural -- that "clearly outweigh the need for affordable housing . . . ." (Emphasis added.) This language demands a totality of the circumstances balancing test, in which the aggregate heft of multiple public interests must "clearly outweigh" the need for affordable housing. For example, we will assume for the sake of argument that a town determined that the sum of two reasons "clearly outweighed" the need for affordable housing. If the reviewing court determined that one of these reasons did not satisfy the statutory criteria, then it would be senseless for the trial court to go on to review the town's conclusion that the sum of the valid and the invalid reasons clearly outweighed the need for affordable housing. The zoning authority very well may have come to its conclusion based upon the totality of a laundry list of reasons.

Moreover, a reviewing court generally cannot determine whether reliance upon a single invalid reason has tainted the entire decision to deny an affordable housing proposal. Ordinarily, the members of a zoning authority premise their ruling on a number of reasons that they consider in the aggregate; they do not articulate the extent to which they rely on any particular reason.[17] If one of these reasons is invalid, then we must reverse, for the simple reason that every member of the zoning authority may have deemed the invalid reason both sufficient and dispositive. In other words, it is possible that -- but for the invalid reason -- the zoning authority would have approved the application for affordable housing. The presence of other valid reasons does not diminish this possibility.[18]

In part III of this dissent, I concluded that the defendant's highly speculative assertion that "the proposed development could endanger a potential future water supply source" does not satisfy the requirements of § 8-30g. As discussed in part IV of this dissent, this conclusion compels us to reverse the defendant's decision to deny the affordable housing application. Although I believe that no further analysis is required, I will nevertheless briefly respond to the majority's contrary opinion by demonstrating that not one of the defendant's remaining reasons passes muster.

Aside from speculative theorizing about potential future water sources, the defendant asserted that the proposed development would increase traffic-related dangers. More specifically, the defendant stated that "[t]he proposed development would create a new road exiting onto an already acknowledged dangerous curve on Hebron Avenue just west of its intersection with Keeney Street [intersection] in an area of high risk, serious traffic accidents and high traffic volume. The proposed development would increase . . . traffic hazards [and] would expose residents of the proposed development . . . to unreasonable risks." In order to support this statement, the defendant relied upon generalizations and anecdotal evidence, none of which empirically documented the effect that the development would have on the intersection.[19]

A traffic analysis conducted by the plaintiff's expert witness, Luchs Associates, a professional engineering group, demonstrated that the proposed development would not adversely affect the volume of traffic at the intersection. In fact, these engineers concluded that the development would have no more than a negligible impact on the intersection. Another of the plaintiff's experts, Frederick Hesketh, a licensed engineer from F. A. Hesketh and Associates, concurred with this conclusion. Hesketh testified that approximately 5070 automobiles passed through the intersection every day. According to Hesketh, the proposed development would generate only 160 additional trips per day.

In light of this record evidence, it is apparent that the defendant's concerns about traffic fail to satisfy § 8-30g (c) (1) (C). In my view, it is perfectly obvious that the addition of 160 trips per day to an intersection that already averages over 5000 trips per day -- a scant 3.2 percent increase -- does not unequivocally outweigh the critical need for affordable housing.

The defendant next cited evidence of the desirability of "provid[ing] open space in order to meet local and regional needs."[20] This reason is pitifully inadequate. In essence, the defendant concluded that its interest in providing open space trumped the need to provide affordable housing. It could not be more obvious to me that the desirability of ample open space -- which implicates interests that are purely aesthetic and recreational -- cannot possibly clearly outweigh (1) the basic human need for shelter and (2) the fundamental importance of racial and ethnic diversity. Even if I were mistaken, however, the defendant has failed to demonstrate that denial of the plaintiff's proposal is necessary to supply adequate open space.

Even if we were to assume for the sake of argument that the defendant's desire for open space rises to the level of a "substantial interest" within the meaning of § 8-30g (c) (1) (B), it is apparent that denial of the plaintiff's application is not "necessary to protect" this interest. The defendant has made no showing that development of the thirty-three acre parcel is likely to harm the defendant's ability to obtain adequate open space elsewhere. In addition, the plaintiff offered evidence demonstrating that residential development of the parcel pursuant to the plaintiff's proposal would in fact comport with the town plan, which identifies the thirty-three acre parcel as "fringe suburban." This means that it may be developed at a density of one dwelling unit per acre, which is precisely what the plaintiff's proposal sought to do.

The evidence relied upon by the defendant does not cast any doubt upon the conclusion that the town can accomplish its goal of providing ample open space without acquiring any of Metropolitan's holdings, let alone the thirty-three acre parcel at issue in this case. At best, the evidence merely indicates that the defendant had in the past considered acquiring some of the land owned by Metropolitan for open space. There is no reason to believe that development of the parcel -- a noncontiguous, thirty-three acre portion of the 578 acres held by Metropolitan -- would have jeopardized the defendant's ability to acquire sufficient land (including some portion of the remaining 545 acres held by Metropolitan) for use as open space.

Emphasizing that the parcel is "particularly appropriate for open space," the majority states that "other sites in town . . . were suitable for affordable housing . . . [and that] the plaintiff makes no claim that there are no other sites in the town that are suitable for affordable housing development." This analysis has nothing at all to do with the inquiry that is prescribed in § 8-30g. To begin with, the possibility that the parcel is "particularly appropriate" for use as open space has nothing to do with the importance of devoting the parcel to aesthetic and recreational enjoyment, as opposed to affordable housing. Accordingly, this factor is irrelevant.[21]

Moreover, there is nothing in the text of § 8-30g suggesting that the plaintiff must bear the burden of proving that the parcel is the only possible location in town where affordable housing could be situated. Instead, the legislature placed all of the relevant burdens on the shoulders of the zoning authority, which failed to demonstrate that there were no other sites in town that were suitable for use as open space.[22] It is perfectly clear to me that it is this latter issue that lies at the heart of the proper determination of whether the desirability of open space clearly outweighs the need for affordable housing. Nevertheless, the majority refuses to consider it.

For these reasons, the defendant's decision to deny the plaintiff's proposal for affordable housing violates § 8-30g (c) (1) (B) and (C).

Finally, the defendant claimed that, because Metropolitan holds the parcel in public trust, an affordable housing proposal should not be considered until a comprehensive plan has been completed that accounts for all of Metropolitan's holdings. The defendant has declined to pursue this argument on appeal, and for good reason: it is apparent that Metropolitan has the authority to sell the parcel to the defendant.

By equating affordable housing appeals with garden-variety zoning appeals, the majority today undermines the statutory promise of affordable housing. In the process, the majority disregards: (1) the plain meaning of the statutory language; (2) clear expressions of legislative intent; and (3) the mandate that we must liberally construe statutes like § 8-30g if such a construction is necessary to fulfill the legislature's broad remedial goals. It would appear that the vocal minority of legislators who feared that § 8-30g would "[throw] out the basic concept of zoning altogether"; 32 H.R. Proc., supra, p. 10,651, remarks of Representative Ward; had nothing to worry about. The majority of this court, sitting as a superlegislature, has overruled the work of the elected representatives of the people. The majority has effectively unraveled the tapestry of shelter provided by affordable housing.

In my view, we should remand this appeal to the defendant with direction to grant the plaintiff's application for affordable housing. Accordingly, I dissent.

[1]Pursuant to General Statutes § 8-39a, "`affordable housing' means housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to the area median income for the municipality in which such housing is located, as determined by the United States Department of Housing and Urban Development." See footnote 2 of the majority opinion for the full text of § 8-30g. As indicated in the majority opinion, there have been changes made to § 8-30g since 1994, the time of the present appeal. Because those changes are not relevant to the present case, references herein are to the current revision.

[2]See footnote 4 of this dissent for an illustrative list of other social ills caused by the scarcity of affordable housing.

[3]In an attempt to camouflage the fact that they have dismantled affordable housing, my colleagues in the majority emphasize insignificant differences between affordable housing land use appeals and traditional zoning appeals. This is the judicial equivalent of smoke and mirrors: if the legislature had not intended to establish a uniquely rigorous standard of appellate review to govern affordable housing appeals, it would have had no reason to enact § 8-30g.

[4]In some towns, the scarcity of affordable housing means that educators, firefighters and other public servants are unable to afford to live in the communities that they serve. See 32 H.R. Proc., Pt. 30, 1989 Sess., p. 10,664, remarks of Representative Oskar G. Rogg. Similarly, the shortage of affordable housing deprives many citizens of the opportunity to remain in their home towns, where they had hoped to live out their entire lives. The affordable housing crisis also threatens the state's economic prosperity, because Connecticut corporations have a difficult time recruiting employees. Blue Ribbon Report, supra, p. 15. Finally, the lack of affordable housing contributes to de facto segregation along the vectors of both race and ethnicity. Id., p. 6.

[5]More specifically, the legislature (1) created an expedited appeals process and (2) established several criteria that zoning authorities must consider when evaluating affordable housing applications. General Statutes § 8-30g (b). As discussed previously, this process does not apply to towns that have devoted at least 10 percent of their housing units to affordable housing. See General Statutes § 8-30g (f).

[6]Traditionally, a decision by a zoning authority "must be upheld by the trial court if [it is] reasonably supported by the record" and if the zoning authority has not acted arbitrarily, illegally, or in abuse of its discretion. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 542–43, 600 A.2d 757 (1991).

[7]See part II of this dissent.

[8]According to § 8-30g (c), "the burden shall be on the [zoning authority] to prove" the various matters set forth in subdivision (1) (A) through (D). (Emphasis added.) I am unable to comprehend the majority's claim that the emphasized words represent "linguistic inaccuracy." These are common, everyday words in the lexicon of every legislator, and the majority has supplied no reason to believe that even one legislator misunderstood their common, everyday meanings. Although I can understand why the majority is not pleased with this statutory language, this displeasure does not confer upon my colleagues the power to excise a sentence from the General Statutes.

[9]See footnote 6 of this dissent.

[10]To the extent that this court appeared to endorse a less rigorous standard in either West Hartford Interfaith Coalition, Inc., or Kaufman, we should disavow such an ill-advised interpretation of the statutory language and the legislative history. Although I joined the majority opinions in West Hartford Interfaith Coalition, Inc., and Kaufman, I never intended to endorse the interpretation of § 8-30g contained in the majority opinion in the present case. To the extent that I did so inadvertently, I acknowledge that it was an error. I wish that my colleagues in the majority shared my willingness to admit past mistakes in the interest of serving justice, instead of grappling themselves with hoops of steel to a jurisprudence that undermines the remedial purposes of affordable housing.

[11]One of the authors of the amicus brief was the cochair of the Land Use Subcommittee of the Blue Ribbon Commission.

[12]The majority correctly observes that Representative Tulisano also remarked that sufficient evidence "is not a very high standard whatsoever . . . ." (Internal quotation marks omitted.) In my view, it would be a grave error to rip this comment from its context and regard it -- in isolation -- as definitive. Instead, this remark must be viewed in the context of the other statements that Representative Tulisano and other legislators made on the floor of the House of Representatives. It also must be read alongside the Blue Ribbon Report, which it flatly contradicts.

[13]It is apparent that a proffered justification cannot reasonably be deemed "substantial" if it presents no reasonable probability of any harm; a serious probability of minor harm; or a small probability of grave harm. See, e.g., Kaufman v. Zoning Commission, supra, 232 Conn. 156 (explaining that § 8-30g prohibits zoning authority from rejecting affordable housing application based upon "mere possibility" of harm).

[14]As the majority acknowledges, the named defendant in the present case, the town council of the town of Glastonbury (defendant), "fail[ed] to include the word `clearly'" in its articulation of its reasons for denying the plaintiff's affordable housing proposal. Instead, the defendant simply asserted that various "considerations outweigh[ed] the need for affordable housing . . . ." Accordingly, the defendant did not even ask the right question, let alone provide a satisfactory answer to it.

[15]Nevertheless, I wish to reiterate that a town may opt out of the requirements of § 8-30g by setting aside 10 percent of its housing and ensuring that it is affordable. See General Statutes § 8-30g (f).

[16]The majority extracts this sentence from West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 513. What the majority neglects to mention is that this language (1) is quoted directly from a garden-variety zoning case (Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 544) and (2) has absolutely nothing to do with either § 8-30g in general or the holding of West Hartford Interfaith Coalition, Inc., in particular.

[17]In the present case, the members of the town council did not articulate the extent to which they relied on any of the various reasons that they advanced in support of their decision to deny the affordable housing proposal.

[18]Assume for the sake of argument that one alternative reason satisfied the requirements of § 8-30g. This determination would not enable us to resolve the purely factual question of whether the zoning authority deemed that reason sufficient -- in and of itself, wholly apart from any invalid reasons -- to deny an affordable housing application. Notwithstanding the presence of at least one valid reason, it is apparent that a town nevertheless may have denied an application for affordable housing based upon nothing more than a single invalid reason. Accordingly, we must reverse a denial of an affordable housing application if we determine that even one of the proffered reasons is invalid.

[19]More specifically, the defendant heard testimony indicating that drivers experienced lengthy delays at the intersection, which is an area marked by significant traffic and a large number of accidents. An attorney who had represented zoning authorities in the past testified that he could not recall an approval of a new subdivision near any area that resembled the intersection. Furthermore, individual council members who had driven through the intersection stated that the development would make a bad intersection even worse.

[20]More specifically, the 1994 Town Plan of Development suggested that the defendant consider purchasing part of Metropolitan's land for preservation as open space. In addition, there was evidence indicating that the defendant has for quite some time viewed all of Metropolitan's property as a valuable site for open space and recreation.

[21]While the majority is correct "that granting the plaintiff's application would have excised [the] parcel from the remaining acres of Metropolitan's land, and effectively would have eliminated its use for open space, conservation and recreation," I fail to see what this observation has to do with § 8-30g. Every affordable housing development entails certain opportunity costs. This is so for the simple reason that the same spot cannot be occupied simultaneously by both an affordable housing development and, for example, a drive-in movie theater. As this hypothetical demonstrates, however, the fact that an opportunity cost exists does not mean that the need for affordable housing is necessarily clearly outweighed.

In a similar vein, the majority asserts in the final sentence of its opinion that the zoning authority properly determined "that a 33.42 acre, twenty-eight unit residential subdivision, bisected by thirteen acres of open space, simply is not the same thing as 33.42 acres of open space." This is undeniably true, but it has nothing to do with the requirements imposed on the zoning authority by § 8-30g.

[22]In addition to finding no support in the text of § 8-30g, the regime posited by the majority makes no sense. It is exceedingly unlikely that any developer could ever prove that a given piece of land is the only place in town where affordable housing could be built. Under the majority's view, therefore, the zoning authority could always reject an affordable housing proposal by pointing to an available piece of property someplace else.