Opinion
No. CV 02 0513808
July 23, 2004
MEMORANDUM OF DECISION
The plaintiff, AvalonBay Communities, Inc. (hereinafter "AvalonBay"), appeals from the decision of the defendant, the Zoning Commission for the Town of Stratford (hereinafter the "Zoning Commission"), denying the plaintiff's application for an affordable housing development at 1600 Cutspring Road (hereinafter the "Development").
AvalonBay commenced this appeal on January 7, 2002 by service of process upon Stratford's town clerk and upon the chairperson of the Stratford Zoning Commission on January 8, 2002. On January 11, 2002, the appeal was filed in the Superior Court, Judicial District of Fairfield at Bridgeport and then, on March 11, 2002, was transferred to the Superior Court, Judicial District of New Britain, tax and administrative appeals session. On April 16, 2002, the Zoning Commission filed its answer and the return of record. On April 24, 2002, Roy and Donna Weaver, Salvatore and Dr. Gwendolyn Testa, and James and Martha Giering, residents and owners of property located on Circle Drive, Stratford, Connecticut, filed a motion to intervene as defendants in this appeal and a memorandum of law in support of the motion. On May 9, 2002, AvalonBay filed an opposition to the motion to intervene. On May 13, 2002, the Superior Court, Cohn, J, denied the motion to intervene.
On June 7, 2002, the Zoning Commission filed its brief and on August 2, 2002, AvalonBay filed its brief. On September 13, 2002, the Zoning Commission filed its reply brief. On February 13, 2003, the Town of Stratford (Town) filed a verified pleading pursuant to Connecticut General Statutes § 22a-19 to intervene in the appeal proceeding. On March 25, 2003, AvalonBay filed a motion to strike the Town's environmental intervention petition and a memorandum of support thereof. On May 9, 2003, the Superior Court, Shortall, J., granted AvalonBay's motion to strike [34 Conn. L. Rptr. 613]. On May 29, 2003, the Town filed a petition for certification to appeal, which the court granted on June 25, 2003.
The appeal was assigned to this court. The parties made oral argument February 11th and March 25th 2004.
This appeal arises from the denial of the plaintiff's, AvalonBay's affordable housing applications filed pursuant to Connecticut General Statutes § 8-30g. Since May of 2000, AvalonBay has been the holder of a duly-executed contract to purchase a 11.99 acre parcel of land located on Cutspring Road in the Town of Stratford (hereinafter the "Cutspring Road Property"). The property is owned by Howard and Karen Peck. The land sale contract has been in continuous effect since May of 2000.
The Cutspring Road property currently contains a commercial building, which is now unoccupied and in disrepair. The building was operated from approximately the 1950s until the late 1990s as a dance hall and, more frequently, as a banquet facility. The Cutspring property is bordered on the south side by the Merritt Parkway, on the north side by single-family homes on Circle Drive, and on the east side by a stream called Pumpkin Ground Brook. The property consists of 1.37 acres and is classified as inland wetlands or watercourses.
The three applications AvalonBay filed with the Zoning Commission on September 26, 2000 consisted of proposals: (1) for the creation of a new zoning classification for the town called a "Mixed Income Housing Development (MIHD)" District; (2) a zone change for the property at 1606 Cutspring Road to this new MIHD zone; and (3) for a zoning permit to construct a one hundred and sixty unit apartment complex in which 25% of the units would be "affordable housing," i.e., housing with deed restrictions limiting its occupancy to persons and families of low and moderate income. (Decision of Stratford Zoning Commission, Exhibit 139) (ROR-110). In conjunction with these applications, AvalonBay also submitted a wetlands application to the Stratford Inland Wetlands Commission (hereinafter the "Wetland Commission"). The Zoning Commission conducted public hearings in the September 2000 application commencing on December 12, 2000. Stating public health and safety concerns as reasons for denial, on or about April 9, 2001 and May 3, 2001, respectively, the Zoning Commission denied AvalonBay's three applications. (ROR-91 and 92.) (Decision of Stratford Zoning Commission, Exhibit 139.)
Under its right to reapply pursuant to General Statutes § 8-30g(h), on May 24, 2001, AvalonBay filed a timely resubmission of its original application, in which it addressed several of the reasons for denial of the original application by reducing the number of requested units from one hundred and sixty (160) to one hundred and forty-six (146) with thirty-seven units, or slightly more than 25% being preserved for affordable housing. The re-submission also reduced the number of residential buildings from six to five; moved the building away from the wetlands; provided additional parking totaling three hundred and one parking spaces, or 2.06 spaces per unit; and provided greater access to the site. (ROR-153.) In addition, AvalonBay entered into a contract to purchase 140 Circle Drive, an abutting parcel to the north, for the purpose of providing a second emergency access to the site. (ROR-153.) With the addition of 140 Circle Drive, AvalonBay proposed a sixteen-foot-wide paved emergency access route to Circle Drive, which would be gated, but accessible by the fire and other emergency responders. (ROR-153.)
The proposed maximum rents, including utilities, for the affordable units, based on the 2001 statewide median income of $70,000, were: (1) $1,050-$788 for a one-bedroom unit; (2) $1260-$945 for a two-bedroom unit; and (3) $1456-$1092 for a three-bedroom unit. (ROR 111.)
On July 12, 2001, at the public hearing on the revised application, AvalonBay agreed to make four additional changes to the site plan. It agreed to widen the secondary emergency access drive to twenty feet; widen the entrance from Cutspring Road to forty feet; install sprinklers on the outside decks and patios; and designate with stripes those areas of the twenty-six foot driveway that were not flanked by parking as fires lanes, to prevent parallel parking there. (ROR-153.) Following the public hearing on July 12, 2001, and a denial by the Wetlands Commission of the revised plan on December 10, 2001 (ROR-136), the Zoning Commission denied AvalonBay's three revised applications. (ROR-140.)
AGGRIEVEMENT
The first issue is whether AvalonBay was aggrieved by the Zoning Commission's denial of its affordable housing applications, and thus has standing to pursue this appeal. "The fundamental test by which the status of [classical] aggrievement . . . is determined encompasses a well-settled twofold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (1nternal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 702, 780 A.2d 1 (2001).
The Connecticut Supreme Court has held that a court can find aggrievement based upon a plaintiff's status as owner or contract purchaser. "[W]here the issue of title or ownership is directly involved, the proper way to prove title is by the production of the original documents or certified copies of the record . . . Moreover, [w]hen ownership has once attached, it is presumed to have continued until it has been shown to have ceased." (Citation omitted; internal quotation marks omitted.) Id., 703. In this case, both parties have stipulated to facts to which this court could find aggrievement. They agree that AvalonBay is a contract purchaser of the land which is the situs of the proposed development which is the subject appeal. The parties have stipulated to the admissibility of AvalonBay's contract to purchase the subject property and signed extensions of that contract. (Letter by Attorney Timothy Hollister, dated February 4, 2004.) Having established that it is the contract purchaser of the subject property and unsuccessful applicant to the Zoning Commission, AvalonBay successfully demonstrates a specific, personal and legal interest in the subject matter of the decision which it has appealed, as distinguished from a general interest, and that its specific personal and legal interest has been specially and injuriously affected by the decision. Id., 703-04. Accordingly, the court finds that AvalonBay is aggrieved by the denial of its applications.
PUBLIC ACT 00-206
The next issue that must be addressed is whether this appeal is properly governed by the affordable housing statute, General Statutes § 8-30g in effect before or after its amendment by Public Act 00-206. Public Act 00-206 became effective on October 1, 2000. Public Act 00-206 states that in order for an application to be considered as an affordable housing application, and therefore subject to the standard of review set forth in General Statutes § 8-30g, at least thirty percent of the apartment units must be designated affordable housing units for a period of forty years. Prior to the effective date of Public Act 00-206, only twenty-five percent of the apartment units had to be designated affordable housing units and for a period of only thirty years. AvalonBay filed its affordable housing applications with the Zoning Commission in September of 2000, prior to the effective date of Public Act 00-206. AvalonBay filed its modified application with the Zoning Commission in May of 2001, after the effective date of Public Act 00-206. AvalonBay designated only twenty-five percent of its apartment units as affordable housing for a period of thirty years, which satisfied the requirement for qualification as an affordable housing development before the effective date of Public Act 00-206, but not afterward.
The applicable law is General Statutes § 8-30g as in effect prior to the effective date of Public Act 00-206. Then on May 28, 2000 the legislators proposed and later rescinded in response to criticism an amendment which would have made the act effective upon passage and thus applicable to pending zoning applications. House Transcript 4/27/00 Schedule C4809. The amendment was revoked and the bill was then adopted with an effective date of October 1, 2000 because legislators objected to its application to applications which were in the process of being prepared for submission. Id.
Moreover, although AvalonBay reapplied after the enactment of Public Act 00-206, General Statutes § 8-30g(h) provides "a proposed modification of its proposal modified its original proposal in response to the reasons for denial of the original application, the effective date of AvalonBay's application was the date of the original application and the twenty-five percent set aside applies. Therefore the re-application qualifies as an affordable housing appeal under the standards set forth in General Statutes § 8-30g.
SCOPE OF REVIEW
General Statutes § 8-30g(g) establishes the scope of judicial review that must be applied to affordable housing appeals; "Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1)(A) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development or (2)(A) the application which was the subject of the decision from which such appeal was taken would locate affordable housing in an area which is zoned for industrial use and which does not permit residential uses, and (B) the development is not assisted housing, as defined in subsection (a) of this section. If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it." General Statutes § 8-30g(g).
In Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 780 A.2d 1 (2001), in the seminal case enunciating the standard and scope of judicial review in affordable housing appeals, the Supreme Court held "[u]nder § 8-30g(c)(1)(A), the court must determine whether the commission has shown that its decision is supported by sufficient evidence in the record. Under subparagraphs (B), (C) and (D) of the statute, however, the court must review the commission's decision independently, based upon its own scrupulous examination of the record. Therefore, the proper scope of review regarding whether the commission has sustained its burden of proof, namely that: its decision is based upon the protection of some substantial public interest; the public interest clearly outweighs the need for affordable housing; and there are no modifications that reasonably can be made to the application that would permit the application to be granted — requires the court, not to ascertain whether the commission's decision is supported by sufficient evidence, but to conduct a plenary review of the record in order to make an independent determination on this issue" Id., 727. (Emphasis added.) Since Quarry Knoll the court does not defer to the Commission's determination, but rather scrupulously reviews the record and decides for itself whether denial of the zoning application protects some substantial public interest; whether the public interest clearly outweighs the need for affordable housing; and whether there are modifications that reasonably can be made to the application that would permit the application to be granted.
The Connecticut Supreme Court has defined "sufficient evidence" as "less than a preponderance of the evidence, but more than a mere possibility . . . [T]he Zoning Commission need not establish that the effects it sought to avoid [by imposing the condition] are definite or more likely than not to occur, but . . . such evidence must establish more than a mere possibility of such occurrence . . . Thus, the commission was required to show a reasonable basis in the record for concluding [as it did]. The record, therefore, must contain evidence concerning the potential harm that would result if the [condition was not imposed] . . . and concerning the probability that such harm in fact would occur." (Citation omitted; internal quotation marks omitted.) Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 585, 735 A.2d 231 (1999), superceded in part by Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 674.
"In order to prove that the Commission's decision was necessary to protect substantial public interests and health, safety or other matters which the Commission could legally consider it must establish (1) that it reasonably could have concluded that `substantial public interests' were implicated by the action based upon the evidence in the administrative record and (2) that it would reasonably have concluded from the record evidence that its decision was necessary, namely that any public interests could not have been protected if it had approved the application, which is more than a mere possibility that granting the application would harm the public interests . . . The burden of proof on the Commission to show that such public interests clearly outweigh the need for affordable housing has similar considerations . . . The need for affordable housing is determined on a local and not a regional basis . . ." (Citations omitted.) Towne Brooke Developments, LLC v. Brookfield, Superior Court, judicial district of NewBritain, Docket No. CV 02 05155125 (September 10, 2003, Eveleigh, J.), citing Christian Activities Council, Congregational v. Town Council, supra, 249 Conn. 588-89.
In conducting a plenary review, the court must decide whether the conclusions drawn by the commission are legally and logically correct and supported by the facts in the record. Miller v. Town of Westport, 268 Conn. 207, 214 A.2d (2004). "A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Id., 219 n. 20. "Where, however, some of the facts found [by the trial court] are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole . . . If, when taken as a whole, they undermine appellate confidence in the courts fact finding process, a new hearing is required." (Internal quotation marks omitted.) Owens v. New Britain General Hospital, 32 Conn.App. 56, 78-79, 627 A.2d 1373 (1993), aff'd, 229 Conn. 592, 643 A.2d 233 (1994). Thus in conducting a plenary review of the Commission's decision this court must determine whether the Commission's findings of fact are supported by sufficient evidence on the record or are clearly erroneous. If any finding of fact is clearly erroneous, the court must determine whether the erroneous finding is harmless. Where some facts are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. If, when taken as a whole, they undermine confidence in the fact finding process the Commission's denial may not stand Owens v. New Britain General Hospital, 32 Conn.App. 56, 78-79, 627 A.2d 1371 (1993), aff'd, 229 Conn. 592, 643 A.2d 233 (1994).
DISCUSSION
"The key purpose of 8-30g is to encourage and facilitate the much needed development of affordable housing throughout the state." West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 511, 636 A.2d 1342 (1994). AvalonBay argues that the Zoning Commission's denial of its affordable housing applications should be reversed because the Zoning Commission failed to satisfy its burden under General Statutes § 8-30g in that it failed to support each reason for denial with sufficient evidence from the record. In addition, AvalonBay asserts that the Zoning Commission failed to demonstrate that its reasons for denial "clearly outweigh" the need for affordable housing in Stratford. On The contrary, the Zoning Commission argues that its denial was based on substantial public health and safety reasons that clearly outweigh Stratford's need for affordable housing development. The Zoning Commission cited five reasons for the denial: (1) fire safety concerns; (2) traffic safety concerns; (3) internal circulation/site design concerns; (4) density concerns; and (5) wetlands concerns. (ROR 139.) In its decision, the Zoning Commission stated that the changes that need to be made to the proposed site plan in order to address these health and safety concerns are "of such a magnitude that the Commission cannot accomplish them through modifications of the existing site plan." (ROR 139.)
Stratford's Need for Affordable Housing
In its appeal from the Zoning Commission's denial of its affordable housing applications, AvalonBay alleged that Stratford has "an acute need for affordable housing." AvalonBay states that according to statistics compiled by the State Department of Economic and Community Development, only 8.2 percent of Stratford's housing units qualify as affordable housing, and many of those that do qualify are homes purchased with mortgages underwritten and originated for and sold to the Connecticut Housing Finance Authority. (ROR-149, p. 12; ROR-151, pp. 3-4.) Moreover, the record shows that as of December 2000, the Stratford Housing Authority had a list of over 770 people waiting for low income housing units. (ROR-56, Tab 7.) The record shows that as of 2000, the Town of Stratford in the year 2000 had 20,500 units of housing, but as of September 2000, not one unit had been subjected to a long-term price rental restriction that would comply with the formula set forth in Connecticut General Statutes § 8-30g. (ROR-27, Tab 2/Appendix Exhibit D.) Therefore, the Town of Stratford did not have a single residential unit that is restricted, even for a short term, by deed, regulation, covenant or condition to a price or rent that complies with General Statutes § 8-30g. (ROR-56, Tab 2; ROR-151, pp. 3-4.)
Review of Reasons for Denial Emergency Access
The first issue the Zoning Commission raised for its denial of AvalonBay's revised application is emergency access and attendant fire safety concerns. In its decision, the Zoning Commission enumerated six safety reasons for its denial. The Zoning Commission states that these conclusions were reached by the commission's analysis of the evidence presented in response to AvalonBay's revised application and at the public hearings. This evidence includes testimony by traffic expert David Spear, Fire Chief Ronald Nattrass, Police Lieutenant LoSchiavo and registered professional engineer Andrew Sims. First, the Zoning Commission stated that "[t]he height of the individual apartment buildings remains unchanged, requiring response by Tower I (the town's tall fire truck), which will have difficulty accessing and servicing the site. A recent fire in a similar AvalonBay project in Trumbull underlines the need for quick and adequate access to the buildings by fire apparatus." Similarly, although AvalonBay has proposed a sprinkler system to aid with containing a fire, adequate access to the buildings is imperative. (ROR-139, Decision Regarding Site Application, p. 2.) Moreover, the Zoning Commission asserts that because Tower One could only access the proposed site by driving in the center of a two-way road, straddling the double yellow line, the Merritt Parkway underpass is an essential safety concern for the access of emergency vehicles to the proposed site. Second, the Zoning Commission states that "[s]ome of the individual apartment buildings remain difficult for fire personnel to reach from the rear." (ROR-139, Decision Regarding Site Application, p. 2.) Third, the Zoning Commission argues that "[w]hile the applicant has provided emergency access to Circle Drive, Circle Drive itself does not appear to be of adequate width to handle emergency equipment needed to service the site." (ROR-139, Decision Regarding Site Application, p. 2.) Fourth, the Zoning Commission argues that "[t]he internal turning radii of the driveways [are inadequate and] pose present and future difficulties for large fire equipment seeking to service the individual buildings." (ROR-139, Decision Regarding Site Application, p. 2.) Fifth, "[t]he width of the driveways, combined with the back-out parking configuration, will inhibit fire access to the individual buildings." Finally, the sixth reason cited by the Zoning Commission was that "[t]here are no fire lanes provided adjacent to the individual buildings." (ROR-139, Decision Regarding Site Application, p. 2.) The Zoning Commission states that these conclusions were reached by the commission's analysis of the evidence presented in response to AvalonBay's revised application and at the public hearings. This evidence includes testimony by traffic expert David Spear, Fire Chief Ronald Nattrass, Police Lieutenant LoSchiavo and registered professional engineer Andrew Sims.
At the public hearing on July 12, 2001, although Fire Chief Nattress stated he believes that properly maintained sprinklers "are a wonderful system," he also stated that they "are not 100 percent fool proof" (ROR-153, p. 36.) Fire Chief Nattress stated that "if there are problems with the maintenance of the [sprinkler] system, in the case of arson, they can be overwhelmed." (ROR-153, p. 36.) Moreover, Pelton admitted that the revised site proposal did not include firewalls or sprinklers in the attic. (ROR-153, p. 24.) Paxton Cannoll, with Avalon Communities, stated that "you have a draft stopping in the attic. You do not have what we call firewalls. I believe the breezeways you have one-hour walls that run to the underside of the roof. But, a one-hour wall is not technically a firewall." (ROR-153, p. 24.)
At the public hearing on July 12, 2001, AvalonBay admits that the revised site plan does not contain a proposed structural design change for the underpass problem: "The underpass remains untouched from all of our previous dialogue." (ROR-153, p. 25.) Attorney Kevin Kelly, Stratford Town Attorney, stated that "the town has documented that Tower One must cross a yellow line to properly address the Merritt Parkway underpass, which may also be further compromised in the event of Connecticut Department of Transportation Repair or maintenance of the bridge and/or the Merritt Parkway surface itself The applicant provides no new documentation to prove its claim [that Tower One can safely fit beneath the Merritt Parkway]." (ROR-153, p. 26.)
Fire Chief Nattress stated that the Merritt Parkway underpass is still a concern, because "[I]f for some reason, at any time, we lose the ability to get under that underpass, there is just no other way to get to the property. It's not a question of taking two or three minutes longer, or five minutes longer. It's just, it's impossible. That's the only way to get in there." (ROR-153, p. 35.)
At the public hearing on June 12, 2001, Andrew Sims, registered professional engineer stated that there is no approachability to the rear of the buildings on the proposed site: "That means we're forcing the fire department into manual means of access to the rear of the buildings. With the slopes that are available, that means that the hose and the ladders have got to be brought down those slopes to a clear area before the fire department can begin to carry out either rescue or fire suppression operations . . . Mr. Pelton is quite correct. The fire department does routinely thread its way through parked cars, into back yards, etc. in the course of fighting a fire. But, that certainly should not be the designed criteria when we have the opportunity to do better during the initial design . . . Even if you're young, if you're healthy, if you're in good condition, if you are frail, if you are elderly, if you are impaired in any way whatsoever, the ability to come down a 45-foot ladder is greatly decreased. And, I am concerned that the rescue operation remains a matter of question, that I don't believe has been adequately addressed." (ROR-153, p. 37.)
Attorney Kelly states that "the width of the driveway isn't sufficient for emergency purposes, and the applicant has indicated a willingness to increase that." (ROR-153, p. 26.) However, Kelly states that there are two ancillary issues beyond the width issue with regard to Circle Drive. First, Kelly states, "the presence of a wetland/intermittent water course has been identified on 40 Circle Drive to which the applicant has agreed. This may create the necessity for the applicant to obtain an Inland/Wetland Commission permit prior to the construction of the proposed secondary access, because it may be located within regulated area as defined by the Stratford Inland/Wetland and Water Course Commission regulations." (ROR-153, pp. 26-27.) Second, Kelly states that "Circle Drive itself is a substandard road. In fact, its present width is only 18 feet at Cutspring Road, which is substantiated by our Town Engineer, John Casey. Furthermore, the right of way on Circle Drive near Cutspring Road is a mere 25 feet. However, Circle Drive is located in an RS-3 zone and properties in that zone are required to have a minimum lot depth of 90 feet and a minimum lot area of 10,000 square feet . . . all properties on the south side of Circle Drive are nonconforming in lot depth and/or lot area. And, all properties on the south side of Circle Drive are nonconforming in lot depth and/or lot area. Therefore, widening Circle Drive would render all the properties on Circle Drive even more nonconforming." (ROR-153, p. 27.)
At the public hearing of July 12, 2001, John Casey, the Town Engineer for the Town of Stratford, stated that the revised site plans do not actually indicate a larger turning radii: "The revised plans show the center line of the driveways just as the original plans did. But the revised plans don't have labels on them as to the dimensions of the radius. So, if you compare the original plan to the existing plan, you actually have to overlay the two plans to determine if there's been a change, which we did. And, we could not discern much of a change in turning radii of the various curves within the driveway system. The revised plan, however, indicates two locations or possibly three, where they dimensioned the outside radius of the turning radius. So, if you look at the plan quickly, you would see a greater radius identified at some of the curves, when in fact, the radius hasn't been increased at all. It's just dimensioned at a different location." (ROR-153, pp. 31-32.)
At the July 12, 2001 public hearing, Andrew Sims, registered professional engineer addressed the turning radii issue and stated, "The fact of the matter is that the recommended turning radius is 45 feet for a large apparatus, such as a tower, a ladder, or a snorkel, that's not been provided. The turning radius does get to be as much as 40 to possibly 41 feet in a couple of areas . . . there have been some areas where the radius has been improved, but only by a couple of feet. In no case, do we get to the point where we have the 45-foot recommended turning radius. Now, it is quite correct that Tower One does not require a 45-foot radius. But, I submit that this project is being built for a lot longer life expectancy than Tower One has." (ROR-153, p. 36.)
AvalonBay argues that the Zoning Commission's concerns about fire safety access and response are not supported by sufficient evidence and are not substantial public safety concerns. AvalonBay responds to the Zoning Commission's site plan denial reasons, first stating that the proposed buildings will be fully sprinklered, which adds fire safety as well as a method to contain the spread of fires. Second, AvalonBay conceded that at the hearing before this court that Tower One could only access the proposed site if oncoming traffic was blocked from accessing the Merritt Parkway underpass and Tower One straddles the double yellow lines dividing the two-lane two-way road. It nevertheless insists that the Merritt Parkway underpass does not inhibit emergency vehicle access from reaching the proposed site. AvalonBay argues that the Zoning Commission's argument that the Department of Transportation may close off some portion of the underpass to conduct maintenance, making access impossible, is unwarranted because the underpass was documented to be in good shape with no current plans for maintenance.
AvalonBay argues that Marshall Klein's testimony that fully sprinkled buildings are "a very reliable, excellent life safety building protection system," the Fire Safety Code itself and the official government website for the U.S. Fire Administration all recognize the effectiveness and reliability of sprinkler systems for combating fires and increasing safety. Moreover, in his testimony at the July 12, 2001 public hearing, Pelton referred to the recent fire in an Avalon complex in Trumbull and stated that "[t]he sprinkler inside the housing unit activated and did what sprinklers do — contain the spread of fire. While it is not a regulation in the town of Stratford, or from the Connecticut State Fire Marshal's Office, the applicant will, as a condition of approval, install wall-mounted sprinklers on all the patios and all the decks in this application." (ROR-153, pp. 14-15.) Moreover, Fire Chief Nattress stated, "Properly installed, properly maintained sprinklers are a wonderful system. I highly endorse them."
AvalonBay contends that Tower I has one foot of clearance under the northbound side of the Merritt Parkway underpass (ROR-150, pp. 19-20); and even the town attorney, Attorney Kelly, admits that Tower I can "make it under the bridge." (ROR-150, p. 42.) The Department of Transportation reported that the underpass is in good repair with no maintenance scheduled. (ROR-56, Tab 8.) Pelton stated that even if the Department of Transportation had to make repairs on the underpass, these repairs would not block any portion of the bridge in a manner that would hinder the response of emergency vehicles. (ROR-151, p. 15.)
Third, AvalonBay admits that access to the rear of the buildings on the proposed site is "not optimal" but exists. AvalonBay argues that it addressed access to the rear of buildings by clearing out vegetation and landscaping, flattening the grades, moving retaining walls, and installing stairs. AvalonBay argues that there is no reason why road access is required to the rear of each building, and contends that the rear of the buildings are accessible on foot by existing grades or stairs. Fourth, with regard to building height, AvalonBay argues that although two of the buildings will be forty-one feet and the others shorter, the highest window of any building would be approximately thirty-five feet, not the forty-five feet stated by the Zoning Commissioner. Fifth, AvalonBay argues the width of the proposed driveways meets the safety minimum.
According to Tim Pelton, from the firm of Holdsworth, Pelton Associates, AvalonBay perceived no requirements for roads in the rear of the buildings in the commission's regulations nor do other housing sites within Stratford have these roads. (ROR-153, p. 14). Moreover, Pelton states with regard to accessibility to the rear of the buildings, stairways have been added to the sides of the buildings and "the topography has been modified such that you can negotiate it when carrying a ladder." (ROR-153, p. 14.)
According to Pelton, the reach of Tower I is "more than sufficient to reach the roof of any unit while parked in the driveway." (ROR-111, Tab 2). Moreover, although Tower I is the only apparatus that could reach the roof of a building, AvalonBay argues that other Stratford apparatus are fully capable of fulfilling other fire safety functions.
AvalonBay argues that the Stratford Fire Department stated that a twenty-five foot driveway width would be acceptable, but that Chief Nattrass later requested twenty-six feet, and Mr. Sims argued that the NFPA required twenty-six feet. At the public hearing of July 12, 2001, AvalonBay modified the site plans to provide for driveway widths of twenty-six feet. (ROR-153, p. 8.) AvalonBay insists that the Fire Department's later request for thirty feet was a request for an optimal standard, but is not a safety minimum.
Sixth, AvalonBay argues that the second means of access for emergency vehicles provided by Circle Drive is adequate and does not compromise emergency vehicle access. Seventh, although it argues that the internal turning radii are adequate it has agreed to increase them if they are inadequate. Finally, AvalonBay argues that the Zoning Commission's requirements for fire lanes is without merit. AvalonBay proposed a twenty-six foot wide travel lane with perpendicular parking, with those areas where perpendicular parking is not allowed to be striped as fire lanes. However, AvalonBay states that Chief Nattrass demanded a twenty-six-foot-wide driveway, flanked by an area approximately twenty feet wide and 126 feet long in front of each building. AvalonBay contends that this fire lane requirement is a nonexistent health and safety issue, which is manifestly excessive, and which Mr. Pelton pointed out was without either precedent or logic.
AvalonBay asserts that both Chief Nattrass and Mr. Sims concurred that it was acceptable to use Circle Drive as connected to a twenty-foot-wide secondary access, which AvalonBay agreed to on July 12, 2001. (ROR-153, p. 13.)
AvalonBay asserts that it is well established in the record that the Tower I apparatus requires a turning radius of thirty-seven feet and that the revised plans show a radius of forty to forty-one feet. Tim Pelton, who contacted Pierce Manufacturing, the manufacturer of Tower I, stated that the revised design of the site "will exceed the need of the turning radius as designed by the manufacturer." (ROR-153, p. 14.) Pelton based his conclusions on the technical turning radius data he received from Pierce Manufacturing.
According to Tom Sheel, landscape architect and principal with Malone McBroom, even though the turning radii are adequate, AvalonBay could include an even larger radius in the site plan: "We have maintained adequate turning radii into the property. I believe we have 35-foot radii. You've [the Zoning Commission] expressed an interest in having a wider radius of access into the site. And, if you so desire, that still is part of this application that can be accommodated; We don't feel it's necessary." (ROR-153. p. 8.)
This court concurs that there is no question that sufficient access for fire, police, and ambulance personnel is a substantial public interest. AvalonBay Communities, Inc. v. Milford Planning and Zoning Board, Superior Court, judicial district of New Britain, Docket No. CV 02 0514399 (January 14, 2004, Pickard, J.) ( 36 Conn. L. Rptr. 383). The Affordable Housing Act is not intended to authorize the construction of substandard housing, but rather to foster and promote the construction of safe and sanitary housing and thereby enable financially challenged persons to escape the substandard housing to which they are now relegated. The question for the court is whether the safety concerns about emergency access to AvalonBay's proposed site clearly outweigh Stratford's need for affordable housing. This court finds that there is sufficient evidence in the record for the Zoning Commission to have found that the Merritt parkway overpass, the height of the individual apartment buildings in the proposed site, the inadequacy of Circle Drive to handle emergency vehicles and equipment and the internal turning radii of the driveways pose health and safety concerns. Upon an independent review of the record, this court finds that there is sufficient evidence in the record for the Zoning Commission to have found that the denial of AvalonBay's application on these bases would protect a substantial public interest in health and safety and that the public interest in health and safety in this context clearly outweigh the need for affordable housing. Although Stratford has an acute need for affordable housing, the impediments to emergency vehicle and equipment access to the site and to the rear and upper floors of certain buildings proposed to be constructed on the site pose grave risks to the health and safety of prospective residents. Our public policy which encourages the development of affordable housing is designed to promote the development of safe housing and to afford financially less privileged individuals the opportunity to escape the unsafe housing to which they are relegated by market forces. That public policy would be perverted if the housing constructed under its aegis did not meet the same health and safety standards as market rate housing.
However, based on the record before this court, the Zoning commission has failed to prove that the denial was necessary as there is insufficient evidence to prove that the public interest could not be served by reasonable changes to the affordable housing development plan. If the roads are too narrow, the buildings too high and the buildings too close to slopes, it stands to reason that widening or relocating roads and shortening and relocating buildings would eliminate or sufficiently reduce health and safety concerns so that the public interest can be served and the affordable housing can be built. The record does not contain sufficient evidence of those parameters. The Zoning Commission is in the best position to identify the structural, environmental, equipment and technical context into which the development must be designed to fit. Carr v. Bridgewater Planning and Zoning Commission, Mottolese, J. (CV02-0518060S August 7, 2003), WL 2204'492*4. The Zoning Commission bears the burden of proving that the public interest cannot be protected by reasonable changes to the applicant's proposed development. Jearry Knoll, 256 Conn. 674, 733, 780 A.2d 1, 38. To allow the Zoning Commission to simply deny an application after having determined whether changes could be made to sufficiently limit the health and safety concerns would simply thwart rather than promote the purpose of § 8-30g. See West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, 511, 636 A.2d 1342 (1994). The court therefore remands the matter to the Zoning Commission with an order that it specify categorically the changes reasonably necessary to protect the substantial health and safety concerns cited as reasons for its denial.
Traffic Safety Concerns
Another issue the Zoning Commission raised as a reason for denying AvalonBay's applications is traffic safety concerns. The Zoning Commission denied the application stating that: a) "[t]he sight line for southbound drivers from Pumpkin Ground Road presents a continuing concern, especially as emergency equipment will have to take a wide turn into the sight (sic)"; and b) "[t]he level of service at the intersection of Huntington Road and Tavern Rock Road will be reduced to `F.'" (ROR No. 139.) The Zoning Commission's argument is two-fold. First, that due to the angle of intersection between Pumpkin Ground Road and Cutspring Road and a dip in Cutspring Road before it passes under the Merritt Parkway, cars exiting Pumpkin Ground Road and heading south would hit a blind spot. AvalonBay proposed the installation of stop signs which a town official acknowledges must be studied to determine whether they would solve the problem.
According to Lieutenant LoSchiavo, the stop-signs that AvalonBay added to the revised plan "could in fact exacerbate the problem or create other traffic concerns . . . The Traffic Authority of Stratford must approve all stop sign applications. The requested location would be studie[d] and if the stop sign is warranted it will be approved and if not, it will be disapproved. It would appear to me that the signage proposed by Avalon is not warranted." (ROR-96, Tab 5.)
The Zoning Commission further states that AvalonBay's revised plan will not alleviate the problems of the intersection. The commission argues that the same claims from the December 12, 2000 hearing regarding this issue and relies on Nicholas Daluka's testimony from this hearing. Nicholas Daluka, mechanical engineer with twenty-one years of experience in operations research, stated: "I spent some time studying the intersection as a system, and I came up with four major problems with the intersection that I'd like to speak about. The pneumatics study calculations on the north and southbound speeds of motorists traveling on that road calculate approximately to, from the entrance to the intersection to the center of the intersection, take about one second, and that would be traveling at the 30 and 36 mile per hour speeds that they quoted. My calculations of reaction, decision and interrogation time for the drivers in that intersection would show that they would exceed that by 50 percent, not giving motorists proper time to react with the present intersection." (ROR-149, p. 54.)
The Zoning Commission also argues that due to the height of the Merrit Parkway underpass and the need to make a wide turn into the project off Cutspring Road, emergency vehicles would tend to travel down the middle of Cutspring Road as they approached the project from the south and passenger vehicles proceeding southerly from Pumpkin Ground Road would not see the emergency vehicles until it is too late to avoid a collision. The Zoning Commission has failed to prove that there is sufficient evidence on the record to establish that a denial of the application is necessary to protect a substantial public interest based on this concern. Even if it did, there is no evidence that reasonable changes could not be made to sufficiently reduce the concern.
See witness explanation under "Emergency Access" Section.
Second, the Zoning Commission argues that peak traffic from the development would aggravate congestion at the corner of Tavern Road and Hawley Lane and Huntington Road, the principal means of access and entrance to the site.
Barkan Mess, AvalonBay's traffic expert, studied this intersection and reported that one turning movement would be reduced in functioning from Level of Service E to Level of Service F "during the afternoon peak hour following completion of the proposed development." (ROR-56, Tab 8.) The Zoning Commission further argues that upon resubmittal of its applications, AvalonBay proposed no change in the operation or signalization of this intersection.
In response, AvalonBay argues that the Zoning Commission cannot demonstrate, through sufficient evidence, that unsafe traffic patterns will occur. As for the Huntington Road and Tavern Rock Road intersection, AvalonBay argues that the reduction in apartment units would reduce the amount of traffic generated by the development. Therefore, AvalonBay argues that denial of this plan was based, in part, on traffic concerns which were not based upon sufficient evidence in the record.
According to Alan Mess of Barkan Mess, AvalonBay's traffic expert, the off-site traffic concerns of the Zoning Commission were solved by the revised site proposal. (ROR-153, pp. 15-17.) First, on the issue of cars traveling south from Pumpkin Ground Road, Mess stated that the new site plan shows the creation of a four-way stop at the intersection of Cutspring Road with Pumpkin Ground Road and the site driveway, which would minimize the chance of accidents and add safety to the intersection. According to Mess, "This type of traffic operation will minimize the potential for accidents between turning vehicles at the intersection. Also, a four-way stop enhances the safety of this intersection by stopping motorists on all approaches before vehicles proceed through the intersection." (ROR-11, Tab 4.) Pelton also commented that under the new site design, "the driveway entrance has been widened to forty feet and there will be a four-way stop sign configuration at the entrance. The stop sign stop bars will be strategically located to enhance visibility of traffic in all directions." (ROR-111, Tab 2.) DLS stated that the proposed four-way stop at this intersection to lessen traffic is a "safe and appropriate traffic control measure." (ROR-153, p. 62.)
Mess testified that because the units in the development were reduced from 160 to 146 apartments, the amount of traffic generated by the development would be reduced. Mess stated, "The morning peak hour estimated by our firm is 75 trips entering. The afternoon peak hour, 100 trips. The original application and analysis for the driveway showed a level of service A and it would continue to be that even with a lesser amount of traffic, since that's the best level of service you can obtain." (ROR-153, p. 15.)
Connecticut courts have upheld off-site traffic concerns as legitimate public health and safety interests. "The impact of development on traffic and area roads is a legitimate concern affecting the safety and general welfare of the public." (Internal quotation marks omitted.) Vineyard Construction Management Corp. v. Town of Trumbull, Superior Court, judicial district of New Britain, Docket No. 0492251 (July 23, 1999, Koletsky, J.). In this case, however, the Zoning Commission has failed to prove that there is sufficient evidence on the record to establish that a denial of the application due to off-site traffic concerns is necessary to protect a substantial public interest. Even if it did, there is no evidence that reasonable changes could not be made to sufficiently reduce the concern.
On-site circulation CT Page 11769
The Zoning Commission cites on-site circulation concerns as another reason for denying AvalonBay's revised applications. In particular, the Zoning Commission stated it was concerned with: a) "[t]he relatively narrow driveways, combined with the back-out parking configuration, continues to inhibit site access and presents traffic safety concerns"; b) "[t]here continues to be a lack of area for depositing snow removed from the driveway and parking lot"; and c) "[g]uest parking remains inadequate."While the proposed development may not be optimal, there is insufficient evidence on the record to prove that the internal traffic safety issues cited by the Zoning Commission constitute a threat to a substantial public interest. In addition, the Zoning Commission has failed to prove that the denial is necessary to protect a substantial public interest and that any such interest cannot be protected by reasonable changes to the plan. On the other hand, the emergency access and traffic concerns not only constitute a danger to substantial public interest that outweighs the need for affordable housing in Stratford.
With regard to the "relatively narrow driveways," AvalonBay's expert Mess states that the revised design of the site provides adequate driveways. Moreover, with the installation of sidewalks, there will be areas for pedestrians. (ROR-153, p. 16.) AvalonBay argues, with regard to inadequate parking, that the Zoning Commission never conducted its own parking study and that the only evidence in the record is the parking study performed by Barkan Mess. According to this study, AvalonBay argues that its proposed number of parking spaces is adequate for both residents and visitors. Finally, on the issue of snow removal, AvalonBay argues that it submitted a snow removal plan in which snow would be placed to avoid blocking any available parking.
With regard to the driveway at the Pumpkin Ground Road intersection, Mess states that the location is the best location for the driveway. Mess states that the driveway "provides adequate sight lines up and down, provides for cross-traffic, even though Pumpkin Road is a dead end road, and probably would not have much direct straight cross traffic. The interior road essentially serves as a parking aisle. It's like driving through a parking lot. It's been designed, however, to accommodate truck movements, turning around the site and through the site. However, since it's a parking lot, we believe that you're going to have low traffic speeds. And, as indicated last time, if you wish to reinforce that concept and believe people would speed, we could install speed limit signs." (ROR-153, p. 16.)
According to Mess, "there's going to be an extension [of sidewalks] down to the connection with the bus stop at Tavern Road." (ROR-153, p. 16.)
Barkan Mess's study of parking on AvalonBay's proposed site indicates that there is sufficient parking for both residents and visitors. To estimate the parking demand, Mess conducted observations of parking utilization in Milford and Stratford in June 2001. Mess found that the parking demand ranged from 0.58 to 1.97 vehicles per unit for the developments studied. Observations included all parking on site: residents, employees, visitors and service vehicles. (ROR-111, Tab 1, pp. 2-3.) Tom Shed, landscape architect, stated that in the revised application, AvalonBay proposes 301 parking spaces for 146 apartment units. (ROR-153, p. 7.)
In the event of a large volume of snow that cannot be accommodated by the snow storage on the property, AvalonBay would carry the snow off site. (ROR-56, Tab 14.)
There is sufficient evidence on the record to support the Zoning Commission's finding that on-site circulation poses a danger to public health and safety; however, it has not proved that the denial is necessary to protect the public from these potential dangers, that they outweigh the need for affordable hosing or that there are not reasonable changes which could be made to redress these concerns.
Density Concerns CT Page 11770
The Zoning Commission raised three density concerns as reasons for denying AvalonBay's revised applications. First, "[t]he capacity of the existing public sewer facility to meet the demands of the project remains uncertain and problematic." (ROR-139.) The Zoning Commission concluded that the density of the development would aggravate a periodic exceedance of the Town's sewer treatment plant. Second, "[t]he project does not include adequate recreational areas, particularly for children who will reside in the complex." (ROR-139.) Third, "[t]he increase in density, over and above anything permitted for such uses in the Zoning Regulations, poses public health and safety concerns, particularly when combined with the other identified public health and safety concerns." (ROR-139.)AvalonBay argues that there is insufficient evidence to justify denial based on recreational space or density concerns. AvalonBay argues that with regard to Stratford's sewer treatment plant, the periodic exceedance of the Town's plant is an existing problem, not one that AvalonBay will create. Instead, AvalonBay argues that the sewer line in Circle Drive and the treatment plan would be able to service Avalon at Stratford. Moreover, AvalonBay states the recreational space it provided is sufficient. AvalonBay argues that under Connecticut General Statutes § 8-26, land may be subdivided for affordable housing without providing any open space and that one of the Town of Stratford's existing affordable housing zones has no minimum open space requirement. AvalonBay argues that the commission has not offered any written testimony to support the determination that the recreational and open space provided are sufficient.
With regard to the sewer connection, Andy Green, a licensed professional engineer with Malone McBroom, discussed the revised sewer connection at the public hearing on July 12, 2001. There, he stated, "[W]hat we've done in this revised plan . . . is we brought the sewer out through this new emergency access on Circle Drive. The existing banquet facility on the site for the existing development has a connection with the sewer line which is located in Circle Drive. And, the town's sewer line actually traverses through this portion of the site. And, the project's site is located within the town's district. And, our original research showed that the Stratford Sewage Treatment Plant was operating at less than its maximum capacity on an average daily basis. We do understand that it does have, under periodic high ground water or heavy rain fall events, the treatment plant does exceed its capacity. But it's our understanding that this site would be able to be tied into the sewer system regardless of the number of units proposed on this site." (ROR-153, p. 12.)
With regard to the eight inch sewer on Circle Drive, Green agreed that the sewer would be able to handle the increased capacity from the additional residences on the runoff that's coming through on the new attachment: "The sewer line actually ends before it gets to Cutspring Road. And, so, it serves the houses along Circle Drive. The capacity of an eight inch sewer at a minimum slope is about a half million gallons a day. And, you know, the number of houses along there is drastically less than that. So, the proposed development won't overtax the capacity of that line." (ROR-153, p. 23.)
AvalonBay argues that David Schiff, of Saccardi Schiff, Inc., AvalonBay's expert, presented evidence on the issue of recreational space that AvalonBay provides both indoor and outdoor recreational space, including the swimming pool, "tot lot" playground, and community building. AvalonBay states that minimum open space is required to be twenty-five percent, and maximum coverage is forty percent. The area around Pumpkin Ground Brook may be used as of right for passive recreation. Moreover, Schiff stated that Town of Stratford has acquired approximately ten acres of land from United Illuminating in the north end of Stratford, proximate to the proposed development. "According to the Town Planning Department, this land would be utilized as open space for passive recreation, possible trail to access the Roosevelt Forest. This acquisition will supplement the creation opportunities available to residents of Avalon at Stratford." (ROR-110, Tab 8.)
There is insufficient evidence on the record, to support the denial on the basis of inadequate recreational areas. Even if the Zoning Commission is correct in its assessment that there is little on-site recreational and open space, it has failed to prove, based on the evidence in the record that the condition possesses a substantial risk to health and safety sufficient to warrant denial of the application; much less that the risk outweighs the need for public housing or that reasonable chances could not be made to redress the issue.
There is sufficient evidence on the record to support the Zoning commission's conclusion that the proposed development would aggravate periodic exceedance of the town sewer treatment plant. However, denial of the application to permit the development is not necessary to protect a substantial public health and safety concern because the average daily flow combined with the increased output projected to flow from the development do not exceed the system's capacity. The additional output projected to come from the project is relatively inconsequential. Moreover, the town must address this long-standing problem regardless of whether the project goes forward. The need for affordable housing clearly outweighs the negligible exacerbation of this pre-existing health issue.
Environmental
Lastly, the Zoning Commission cited wetlands concerns as a reason for denying AvalonBay's revised applications. Specifically, the Zoning Commission stated, "the soil conditions and slopes on which the individual buildings are located — combined with the amount of anticipated blasting and acid content of the underlying rock — pose substantial environmental risks to the surrounding wetlands and watercourses." (ROR-139, p. 3.) The Zoning Commission states that a main environmental concern of the Wetlands Commission was the storm drainage system. The Zoning Commission argues that while AvalonBay redesigned its storm drainage system, it did not significantly reduce its construction activities in the area upgradient of the wetlands. The Zoning Commission argues that it did not deny AvalonBay's revised applications for environmental reasons because of the wetlands commission denial; rather, it based its environmental concerns on substantial evidence in the record, consisting of the decision of the wetlands commission, when it denied AvalonBay's wetlands application, along with reports from STV, Inc. and Steven Danzler, Environmental Planner. The Zoning Commission argues that the evidence substantiated the probable degradation of the wetlands and negative impact on wildlife from the intense construction activity. Furthermore, it contends that short of a major increase in the buffer area, which it states AvalonBay refused to offer and which would necessarily require redesign of the entire project, the concerns of the Wetlands commission and the Zoning Commission regarding protection of environmental resources cannot be accommodated with a major redesign of the project.
According to Town Engineer, John Casey, there are possible problems associated with the detention basins in the revised plan: "If the detention basins are constructed in a ledge of bedrock environment, it will be difficult for the detention basin to infiltrate and recharge the ground water, which was stated in the engineer's report. Further there would be a question of whether the plantings that are put into the detention basin will be able to survive in that environment . . . Another concern we have regarding the detention basin system, particularly along the Cutspring Road driveway entrance . . . There's a lot of potential for the water to bypass that catch basin that is located in the middle of the driveway without a curb inlet . . . So, if the storm water does not make it into that catch basin — in other words, if there's too much water, a portion of that water will bypass the catch basin, will get onto Cutspring Road, and won't get into the detention basin. And, therefore, the designer's calculations which show the water being discharged to Cutspring Road less than what it discharges today, that won't be the case if it bypasses the catch basin." (ROR-153, pp. 33-34.) Moreover, Mr. Green admitted that all of the runoff of the property will eventually drain into Pumpkin Ground Brook — in essence, same volume is moving off the property, but just in a different fashion." (ROR-153, p. 19.) However, at the public hearing of July 12, 2001, the Zoning Commission responded positively to Green's statement that "we have a dry well located to the east of the large building, adjacent to what would be the closest to Pumpkin Ground Brook. And, we also have some filtration in the detention basins, particularly the one up at the front of the site." (ROR-153, p. 20.)
In response, AvalonBay argues that impacts on wetlands, watercourses and regulated areas are outside the jurisdiction of the Zoning Commission. AvalonBay argues that denial of a wetlands permit is not a substantial public interest within the commission's jurisdiction under the affordable housing statute. Therefore, it argues that denial of coordinate permits by other agencies, such as the wetlands commission's denial of AvalonBay's wetlands application, is not a valid reason for denying a zoning permit application.
There is sufficient evidence on the record to support the claim that the development as proposed, would pose substantial environmental risks of degrading the surrounding wetlands and watercourses; however, the Zoning Commission has failed to prove that the denial is necessary to protect the public interest. The record before the Zoning Commission is speculative. The testimony before the Commission cited "potential problems" expressed concern that infiltration and recharge of the ground water will be "difficult," questioned whether proposed plantings could survive, expressed concern of "a lot of potential for water to bypass" a catch basin. Moreover, the Zoning Commission, while recognizing that changes could be made to redress these concerns, there are references in the record to dry wells and curb inlets suggestive of possible changes to alleviate the concerns cited by the Zoning Commission for its denial.
Zoning Regulation Amendment and Rezoning of Subject Property
AvalonBay argues that the Zoning Commission did not state sufficient reasons for denying the MIHD regulation or rezoning of the subject property. AvalonBay asserts that in addressing the reasons for denying the MIHD regulation or rezoning of the subject property, the Zoning Commission merely re-articulated the same reasons it used for denying the site application. In opposition, the Zoning Commission argues that because the affordable housing application was site-specific, similar reasoning applies to the applications for MIHD regulation and the rezoning. The Zoning Commission cited seven reasons for denying AvalonBay's MIHD district, including increases in building height, covered space, and density that could compromise the public safety. (ROR-139.) It stated that "these concerns outweigh the need for affordable housing and that due to the magnitude and nature of the changes that are required in the plan and the Zoning Regulations, they cannot be accommodated by mere changes in the text." (ROR-139.) Moreover, the Zoning Commission denied a map change to allow construction of an affordable housing project at 1600 Cutspring Road under the proposed MIHD regulations stating similar reasons, particularly that the increased density would cause public safety concerns with regard to traffic, emergency access and the wetlands. (ROR-139.) The Zoning Commission argues that the applicant's attorney assured the Zoning Commission that the legislative actions were inextricably bound to the site, and of the reasons for denial of the site plan were legally adequate under § 8-30g, certainly they would be adequate legally to support denial of the legislative requests ". . . legislative rather than an administrative capacity . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function . . . In the review of matters that lie within the discretion of local zoning authorities, each case must be considered individually on its own facts and circumstances . . ." (Internal quotation marks and citations omitted.) Parks v. Planning and Zoning Commission of the Town of Southington, 178 Conn. 657, 661-62, 425 A.2d 100 (1979) 661-62. Where "[t]he commission's failure to state on the record the reasons . . . the trial court must search the entire record to find a basis for the commission's decision; we, in turn, review the action of the trial court." Id. at 662. "The proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations is well established . . . Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally. Burnham v. Planning Zoning Commission." Harris v. Zoning Comm'n of Town of New Milford, 259 Conn. 402, 415-46, 788 A.2d 1239, 1250 (2002). Based on the record, the Zoning commission did not act arbitrarily or illegally.
Technically the proposed zone change is an affordable housing application because it was filed in connection with an affordable housing development by persons proposing to develop an affordable project. General Statutes § 8-30g(a)(2). Therefore the scope of review is unclear. Applying the Quarry Knoll analysis, however, the appeal of the denial of the zone change must still be overruled. The Zoning Commission in reiterating the reasons for denial of the zoning application as the reasons for denial of the MIHD met its burden of proving that denial of the zone was necessary to protect a multiplicity of significant public health and safety concerns as to do so would be tantamount to abdicating the legislative duty to establish land use policy as well as its administrative duty to review and analyze proposed plans of development for compliance with the current zoning laws. The Zoning Commission cites a plethora of concerns, which taken together and applied to other sites, clearly establish that its denial of the proposed zone change was necessary to protect significant health and safety concerns, that collectively these concerns outweigh the need for affordable housing and there are no changes which can reasonably be made to the proposed zone change which would protect these substantial public interests.
The power of a planning and zoning commission acting in its legislative rather than an administrative capacity, is much broader than that of an administrative board, "which serves a quasi-judicial function . . . In the review of matters that lie within the discretion of local zoning authorities, each case must be considered individually on its own facts and circumstances . . ." (internal quotation marks and citations omitted). Parks v. Planning and Zoning Commission of the Town of Southington, 178 Conn. 657, 661-62, 425 A.2d 100 (1979) 661-62. Where "[t]he commission's failure to state on the record the reasons . . . the trial court must search the entire record to find a basis for the commission's decision; we, in turn, review the action of the trial court." Id. at 662. "The proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations is well established . . . Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally. Burnham v. Planning Zoning Commission." Harris v. Zoning Com'n of Town of New Milford, 259 Conn. 402, 415-46, 788 A.2d 1239, 1250 (2002). Based on the record, the Zoning commission did not act arbitrarily or illegally.
Technically the proposed zone change is an affordable housing application because it was filed in connection with an affordable housing development by persons proposing to develop an affordable project. General Statutes § 8-30g(a)(2). Therefore the scope of review is unclear. Applying The Quarry Knoll analysis, however, the appeal of the denial of the zone change must still be overruled. The Zoning Commission in reiterating the reasons for denial of the zoning application as the reasons for denial of the MIHD met its burden of proving that denial of the zone was necessary to protect a multiplicity of significant public health and safety concerns as to do so would be tantamount to abdicating the legislative duty to establish land use policy as well as its administrative duty to review and analyze proposed plans of development for compliance with the current zoning laws. The Zoning Commission cites a plethora of concerns which taken together and applied to other sites clearly establish that denial of the proposed zone change was necessary to protect significant health and safety concerns, that these concerns outweigh the need for affordable housing and there are no changes which can reasonably be made to the proposed zone change which would protect these substantial public interests. The zoning commission's decision as to the zone change and creation are affirmed.
CONCLUSION
The decisions of the Zoning Commission are affirmed, reversed and the matter is remanded as stated herein for the Zoning Commission to consider changes which can reasonably be made to protect the substantial public health and safety interests.
BY THE COURT
Hon. Vanessa L. Bryant