Opinion
No. CV 02 0518060 S
August 7, 2003
MEMORANDUM OF DECISION
This case returns to court as a fresh appeal after this court remanded to the Bridgewater Planning and Zoning Commission (hereinafter "the defendant") a prior appeal from the denial of an affordable housing subdivision (CV01-0506450) with direction to hold a public hearing on what the court determined to be the plaintiff's proposed modification of his affordable housing proposal § 8-30g (h). The defendant duly held the public hearing and denied the proposed modification. The subdivision application which the proposed modification purports to revise calls for the erection of 35 housing units on three parcels of land and would constitute a "set aside development" as that term is defined in § 8-30g (6).
The property in question consists of 24 acres in the R-2 residential zone which permits single-family homes on lots of 87,120 square feet. On each of the three parcels the plaintiff proposes to build sixteen, ten and nine housing units respectively, each unit to be located in either a two- or four-unit building.
Further background is necessary in order to place this appeal in its proper procedural perspective. The plaintiff's original application for the same subdivision was first denied by the defendant in 1997. Thereafter, the plaintiff filed a proposed modification of the subdivision plan. In 1998 the defendant denied the first proposed modification and the denial was sustained by the court in 1999 D.N. 98-0492227 (Axelrod, J.). No appeal followed. Following that decision the plaintiff filed a second application which the defendant denied in 2000. It is that denial which produced the appeal in CV01-05066450. Following that denial and within the time prescribed by § 8-30g (h), the plaintiff filed another modified proposal which is the subject of this appeal after remand.
MOTION TO DISMISS
As a threshold matter the court must first consider the defendant's Motion to Dismiss which raises mootness and lack of standing. The mootness argument is based on the fact that the Bridgewater Conservation and Inland Wetlands Commission (hereinafter "wetlands commission") denied the plaintiff's application to construct this subdivision and that denial has become final and unappealable, see footnote 1 infra. John F. Carr, Jr. v. Bridgewater Zoning and Planning Commission, Superior Court Judicial District of New Britain, CV01-0084553 S. Very simply, the defendant contends that even if the plaintiff were to prevail in this appeal he could not build the subdivision because he could not obtain the required wetlands permit from the wetlands commission. This issue was previously considered by this court in its Revised Articulation of August 2, 2002. In construing the Appellate Court's decision in Arway v. Bloom, 29 Conn. App. 469 (1992), and Thoma v. Planning and Zoning Commission, 31 Conn. App. 643 (1993), this court held that § 8-26 does not prevent a planning commission from approving a subdivision over the disapproval of a wetlands commission. Both Appellate Court opinions are replete with statements which underscore the separate, distinct and independent function of the two agencies. The decisions of both bodies clearly contemplate that while there will be coordination between agencies, the jurisdiction of a planning commission is not preempted by an adverse decision by a wetlands commission. These cases recognize implicitly the reality that a subdivider may obtain planning commission approval without having obtained wetlands commission approval either before or after the planning commission acts. Therefore, because the defendant enjoyed jurisdiction over the subdivision regardless of what the wetlands commission did this court must have jurisdiction over this appeal. The defendant's claim of mootness has no relevant application under the foregoing analysis. Moreover, should the plaintiff's appeal in this action succeed, the plaintiff would be free to reapply to the wetlands commission in reliance on such success and any mandated conditions which may serve to induce the wetlands commission to take a more favorable view of the application. Such a nonpreclusive approach is especially important where a strong public interest such as affordable housing is at stake and where no procedure corresponding to § 8-30g is available for an appeal from a wetlands commission. The Motion to Dismiss is denied,
AGGRIEVEMENT
The plaintiff is aggrieved by virtue of his continuous and uninterrupted ownership of the subdivision property during the entire time relevant to this appeal. The plaintiff introduced a photocopy of his deed dated April 5, 1986 and testified that he maintained his ownership continuously to the date of trial. Goldfeld v. Planning and Zoning Commission, 3 Conn. App. 72 (1986).
DEFENDANT'S ACTION ON REMAND
When Judge Axelrod upheld the defendant's denial of the plaintiff's subdivision application, the court did so only on two grounds, viz: (1) the lack of an adequate potable water supply, and (2) the inability of the proposed septic systems to function adequately. As stated above, the plaintiff's resubmitted subdivision plan which was considered by the defendant both in October 2000 and September 2002 was not materially different from the plan that was before Judge Axelrod in 1999. However, at the time this decision was rendered, there had not yet been a final determination with regard to the plaintiff's application for an inland wetlands and water courses permit. Thus, the lack of such a permit was not a factor before that court. However, when the plaintiff reapplied to the defendant and that application led to this appeal, the defendant had before it at the remand hearing the final report of the wetlands commission which by then was final and unappealable. That report culminated in denial and formed the basis for the defendant's first reason in support of its denial in this case.
On June 5, 2002 the Appellate Court denied certification to appeal the Bridgewater Conservation and Inland Wetlands Commission denial of the plaintiff's permit. (PAC 01-045.)
SCOPE OF REVIEW
In Quarry Knoll II Corporation v. Planning and Zoning Commission, 256 Conn. 694 (2001), our Supreme Court revised substantially the scope of review applicable to decisions of zoning authorities under § 8-30g. In responding to the legislature's enactment of Public Act 00-206, § 1(g) the court determined that the trial court must first decide "whether the commission has shown pursuant to § 8-30g that its decision is supported by `sufficient evidence' in the record. Under subparagraph (1) (A)(B) and (C) of subsection (g) however, the court must review the Commission's decision independently, based upon its own scrupulous examination of the record." Id. at 727. The court goes on to state that this 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." Ibid. That Court explained the "sufficient evidence" test in the following way. "We . . . defined `sufficient evidence' in this context to mean less than a preponderance of the evidence, but more than a mere possibility. We stated that the zoning commission need not establish that the effects it sought to avoid by denying the application `are definite or more likely than not to occur,' but that 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 zone were changed . . . and concerning the probability that such harm would in fact occur." Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 585 (1999).
The court notes that the codified version as found in § 8-30g (g) of the Revised General Statutes, January 1, 2003, contains slightly different sentence structure which is deemed to be of no material significance.
To promote clarity the court believes that each reason given by the defendant, as gleaned by the court, should be examined and tested under this dual standard of assessment. Before doing so, however, brief mention must be made of the defendant's threshold attack on the plaintiff's application. The defendant claims in its Brief on Consolidated Appeal and Remand (hereinafter "Remand Brief") that just prior to the remand hearing held by the defendant the plaintiff submitted additional maps and drawings which in effect, varied the terms of the modified proposal which this court ordered the defendant to consider: The defendant also identified certain errors and inaccuracies in the site plan and subdivision map which allegedly could have had an impact on the approvability of the subdivision if not resolved. At oral argument it became apparent to the court that any discrepancy between what accompanied the modified proposal when filed and what the plaintiff presented to the defendant at the hearing was of no material consequence. It was equally apparent that any inaccuracies in the drawings were easily correctable and of no real concern to the defendant.
Reason #1
As a preliminary matter the court points out that the numbers that it has assigned to the reasons do not correspond with the defendant's number system but represent the court's understanding of the reasons in the numerical order in which the defendant stated them.
"The applicant has failed to adequately address substantial issues stated by the Inlands Wetlands Commission which includes storm water discharge into a water course, location of the septic systems in relation to the wetlands, project density in relation to the proximity to the wetlands and the lack of a detailed maintenance plan for the proposed storm water retention/detention basins. The lack of proper maintenance could lead to a catastrophic failure of the basins, potentially causing more erosion and damage to downstream septic systems. The Inland Wetlands Commission found that the protection of the inland wetlands required a reduction in the number of units, which would lessen septic discharges and storm drainage in proximity to the wetlands or the spreading out of units by employing a portion of the applicant's property that has not been considered or investigated. The Planning and Zoning Commission accepts this conclusion and finds that it cannot reasonably recommend modifications to the current plan without further investigation of the applicant's other property and without further specific proposals from the applicant for the Planning and Zoning Commission to evaluate."
There is no dispute that the wetlands commission took the action which the defendant describes in reason #1, however, that reason incorporates several distinct conditions which the wetlands commission identified. The first is storm water discharge into a water course. The court notes from Judge Axelrod's opinion that court had this very issue before it and concluded that there was sufficient evidence in the record to support the defendant's statement that the discharge of untreated storm water runoff would impair the site's wetlands and water courses. That court further found that this reason was necessary to protect a substantial public interest in wetlands but finally held that the public interest did not outweigh the need for affordable housing. It is significant to this court that this analysis was predicated upon and followed the pre Quarry Knoll II guidelines for judicial review of a zoning authority's action pursuant to § 8-30g (g)(1)(A)(B) and (C). The court also notes that while the defendant's Remand Brief quotes the reason verbatim it makes no argument and offers no analysis. Indeed, it does not even mention the effect of storm water runoff on the wetlands. Finally, the issue was not addressed in oral argument. Accordingly, the court is free and does consider the issue abandoned by the defendant if not precluded from reconsideration by the doctrine of res judicata. Mather v. Griffin Hospital, 207 Conn. 125, 129, n. 2 (1988).
Included within this reason is the subsidiary reason that the individual septic systems as designed by the plaintiff could cause damage to the wetlands. As with the issue of storm drainage, Judge Axelrod held that there was sufficient evidence in the record to support this reason and that preservation of the wetlands from harm constituted a substantial public interest but nevertheless determined that such public interest did not outweigh the need for affordable housing. Thus, prior to the defendant's denial after remand, the issue of the possible or probable detrimental effect that both storm drainage and septic discharge might have on the wetlands had already been adjudicated for the defendant. Therefore, the defendant was in no position to act contrary to this determination.
Reason #2
The defendant was not satisfied that the plaintiff had performed adequate testing to enable the experts and eventually the defendant to ascertain whether the domestic water wells, when placed on line, "would not adversely impact the neighboring and adjacent property wells in terms of water quality and quantity." In assessing evidence sufficiency, the court notes that the defendant had differing but not necessarily conflicting testimony before it. First, the Connecticut Department of Public Utility Control (DPUC) advised the defendant by letter dated August 18, 2000 that after reviewing information supplied by the plaintiff "any potential for interference" of the proposed wells with wells on adjoining property "is extremely remote or nonexistent and that there is no longer an issue." This conclusion was accepted by the DPUC's sister agency, the Connecticut Department of Health Services. (Now known as Department of Public Health (DOPH).) The other evidence that the defendant had before it was a report from a hydrology consulting firm, Leggett, Brashers and Graham, Inc. That firm disagreed with both the DPUC and DOPH and opined "that while it is unlikely that there will be such interference, there is no guarantee." In addition, there was evidence in the record that other wells in the area have run out of water and that two adjacent wells have reported "shortfalls." There was further expert testimony from Melvin and Meade, LIP Consulting Hydrologist, that if the on and off site wells happen to share a fracture, "there could be an impact." Vetting this evidence for "sufficiency," the court concludes that while it creates a justifiable concern that well interference is possible, there is no reasonable basis in the record for the defendant to have concluded as it did. On the other hand, the evidence did provide a reasonable basis for the defendant itself to have sponsored and supervised the performance of tests designed to provide more definite answers to these questions. Such action would have partially fulfilled its responsibility to make reasonable changes to the affordable housing development pursuant to § 8-30g (H)(1)(C). Quarry Knoll II Corporation v. Planning and Zoning Commission, supra at 732. At least in a case such as this where a zoning authority's decision to approve an affordable housing application turns in important part on the availability of engineering data which if presented, would eliminate the possibility of harm from a particular activity and it has engaged its own experts in the field, then the zoning authority is obliged under subparagraph (C) to instigate the procurement of such data.
Other than the plaintiff himself, all experts that testified at the hearing were engaged to do studies and then testified at the hearing at the request of the defendant.
Reason #3
"The plaintiff has failed to adequately address the level of radionuclides in the water which has already been determined to be higher than recommended safety standards . . ., that successful treatment techniques are feasible, or that discharges associated with treatment would not have a deleterious impact on the site or the surrounding property."
The evidence on radionuclide contamination of the domestic water supply is found in item R-15 of the record which indicates very clearly that well water samples furnished to DOPH contained radionuclide levels which were unacceptable. Consequently, DOPH ordered the taking of quarterly samples of ground water at various times of the year to determine whether there was a consistent pattern of exceeding the standard. The defendant denied the application because the plaintiff never provided the samples. Without knowing whether there would be a need, the defendant then went on to condemn the plaintiff's failure to propose an appropriate means of disposing of the treated discharges.
"A zoning commission undoubtedly is entitled . . . (during hearings on an affordable housing application) . . . with constraints . . . to require an applicant to provide whatever additional information the Commission needs to fulfill its duties." Kaufman v. Zoning Commission, 232 Conn. 122, 141 (1995). This court finds that the defendant's failure to satisfy itself concerning the continued presence of radionuclides and effective means of disposing of them, constitutes a failure of its statutory burden to provide the court with a record that contains sufficient evidence to support its decision. This is not to say that in all cases a zoning authority must gather the information itself. It is to say that under § 8-30g a zoning authority must do more than merely say that the affordable housing applicant has failed "adequately to address the matter"; it must inform the applicant of the nature of the tests it wishes performed and of the results it will accept. Anything less is inconsistent with the zoning authority's responsibility to "attempt to make all reasonable changes" to an application for an affordable housing development before denying it. Quarry Knoll II Corporation, supra at 732. If the applicant is unwilling or unable to perform such tests and the zoning authority has engaged its own experts in the field, as in this case, then the authority must cause the tests to be performed itself.
As in Kaufman v. Zoning Commission, supra at 140, to leave an affordable housing applicant with a disapproved application because it has "failed to adequately address" an issue or issues runs counter to the policy consideration that the conduct of scientific tests by experts in the field must necessarily result in considerable expense to the applicant. Moreover, because such tests are site specific they cannot be reused if approval is denied. Incurring substantial expense by affordable housing developers who often are nonprofit organizations, would waste financial resources. The court finds this reason lacks sufficient evidentiary support in the record.
Reason #4
"The applicant has failed to address that the levels of nitrate have been reduced to acceptable levels." There was evidence from the experts that "the hydrologic setting is favorable for the transport to the on-site wells of septic effluent." Although the DOPH mandates a distance of 75 feet between a well and a septic system, the defendant's expert Robert L. Melvin opined that such a universal requirement was "arbitrary" and failed to take into account site specific conditions. He further opined that "it is likely, if not certain that septic effluent . . . will move toward the wells in response to pumping. What is uncertain are the rate of movement and the attenuation and dilution that will occur from any specific constituent and if the resulting concentrations in the well water will exceed the mcl's for drinking water."
Moreover, the plaintiff challenges the authority of the defendant to exact higher standards of health and safety then those required by the state agencies having jurisdiction, namely, the Departments of Public Health and Public Utilities Control. Specifically, it denies the defendant's right to require longer separation distances between wells and septic systems than are permitted by the DOPH. For instance, the defendant accepted the opinion of Robert L. Melvin that the 75-foot distance requirement between wells and septic was arbitrary and in this case should be greater. The plaintiff argues that the defendant had no right to insist upon a higher standard because the subdivision regulations contain no provision which sets such a standard. The Bridgewater subdivision regulations provide in pertinent part as follows:
2.2.4 Sewage Disposal Report
As part of the subdivision application the applicant shall submit a written sewage disposal report prepared by a qualified engineer (subject to the standards set forth in § 4.1 and certified as accepted by the Bridgewater Health Officer. In this report the applicant shall show and the Health Officer shall certify that the location for the subsurface sewage disposal system for each lot meets or exceeds the most stringent applicable requirements of the Bridgewater Sanitary Code as amended, the State Public Health Code, as amended, and the appropriate design criteria of these regulations. The report shall include the results of percolation tests and deep hole test pits taken at locations and at times approved by the Health Officer.
Relying on Aaron v. Conservation Commission, 183 Conn. 532 (1981), the defendant argues that the town has concurrent jurisdiction with the state to regulate septic and wells. The court agrees. However, in Aaron the Conservation Commission, pursuant to its legislative authority conferred under chapter 446K of the General Statutes, had enacted a wetlands regulation which called for more stringent standards for septic systems than did the state Department of Health. In upholding the commission's right to enforce its regulation the court held that in this area of regulation of septic systems, jurisdiction is concurrent as long as the municipal regulation does not conflict with the state regulation. The critical distinction between Aaron and this case is that in Aaron the Commission was engaged in enforcement of an existing ordinance which contained specific requirements whereas here, no municipal ordinance or sanitary code provision has been invoked or applied by the defendant. The defendant's application of standards which have the force of legislation violates the principle that in reviewing a subdivision application a planning commission can only apply existing regulations. Westport v. Norwalk, 167 Conn. 151, 155 (1974). The defendant has pointed to no provision either in the State Public Health Code or the Bridgewater Sanitary Code which elevates the standards to the level which it prefers.
As with the previous reasons, this reason fails to satisfy the sufficient evidence test because there is no evidence of more than a mere possibility that septic-produced nitrates will actually infiltrate the wells. The defendant was not entitled to equate the likelihood or even certainty of effluent movement toward the wells with effluent entry into the wells. As the expert pointed out, further testing is necessary to resolve this issue. Without these tests the record is silent on both the potential for harm and that such harm would in fact occur. Kaufman v. Planning and Zoning Commission, supra at 585.
The other aspect of the matter of septic effluent is the ability of the systems, as designed, to dilute the nitrogen contained in the effluent sufficiently so as to avoid exceeding acceptable levels at the point of possible entry into the wells. As learned from the record and the arguments of counsel, effective nitrogen dilution depends upon the availability of adequate permeable land surfaces suitable for penetration so that rain water may enter the groundwater flow and renovate the nitrogen. On this issue, the defendant had before it the testimony of Ryan C. Curtis of Nathan L. Jacobson Associates, Inc., a firm of civil and environmental engineers. Mr. Curtis stated in his letter of 2002 that the firm had an area of "continuing concern" over possible infiltration of nitrogen into the domestic water supply as a result of the failure of the leach field system to dilute the nitrogen adequately. Mr. Curtis performed a nitrogen dilution analysis and concluded that two of the three subdivision lots "do not have adequate contributing land and land area for renovation of nitrogen associated with the subsurface disposal systems." This conclusion is supported by the DOPH's recommended guidelines for when nitrogen renovation analysis should be performed since the density proposed for lots one and two of the subdivision exceeds the guideline below which the test is not recommended by DOPH. In addition, Christopher Allen, an environmental consultant, stated that there is a high likelihood of ground water contamination due to this high density of development.
On the other hand, the plaintiff testified that since the Axelrod decision he has redesigned the storm water drainage system by specifying the installation of detention basins which are designed to collect ground water, percolate into the soil and thereby contribute to the nitrogen dilution process. However, the plaintiff failed to provide the commission with sufficient engineering data to support that claim.
It is well settled that a Planning and Zoning Commission is free to accept or reject expert testimony as it deems appropriate as long as its decision is fundamentally fair. Huck v. Inland Wetlands and Water Courses Agency, 203 Conn. 525, 542 (1987). Here, the evidence before the Commission on this point was sufficient for it to conclude that there was more than a mere possibility but rather there was some quantifiable probability that nitrogen would not be renovated adequately so as to prevent pollution of the onsite wells. Christian Activities Council, Congregational v. Town Council, supra at 589. Therefore, the defendant has satisfied the sufficient evidence prong of the four-part test of § 8-30g (g)(1)(A).
The plaintiff's testimony is characterized as "expert" simply because he was a licensed professional engineer who prepared the engineering plans and drawings.
The next step in the court's analysis is to determine whether the decision to deny the application is necessary to protect substantial public interests in health, safety or other matters which the defendant may legally consider § 8-30g (g)(1)(A).
There can be no question that protection of a domestic water supply constitutes a substantial public interest which is entitled to protection from a zoning authority. The question that does arise from the application of this prong of the test is whether denial of the application was necessary to protect that interest. On this point the court is instructed by Quarry Knoll II, supra at 727 to review the defendant's decision "independently, based on its own scrupulous examination of the record." To carry out this responsibility the court must conduct "a plenary review" of the record. Thus, in asserting its scrutinizing independence, the court cannot be influenced by the defendant's judgment but must make its own judgment by weighing the record evidence. Christian Activities Counsel, Congregational v. Town Council, supra at 589.
Before embarking upon this task, it is necessary to understand clearly the meaning of the statutory standards. As this court reads Christian Activities Council Congregational, supra at 597, the word "necessary" simply means that the public interest involved (the individual subdivision wells) cannot be protected if the subdivision is approved. The record in this case is very different from the record in Christian Activities Council. Congregational in that in the latter, approval of the affordable housing application would have effectively precluded use of the land in question for open space and therefore, denial was the only way to protect that public interest, whereas here, the record and the argument of counsel make it clear that denial was not necessary. Whereas, in Christian Activities Council, Congregational there were no alternatives to denial, here there is a readily apparent alternative which renders denial unnecessary. This alternative was stated by the experts, and indeed, by the defendant itself. The engineer, Brian C. Curtis, recommended that "nitrogen renovation analysis be performed" to determine whether there is any need to provide additional safeguards against nitrogen infiltration. Even the defendant, in its written decision, considered the possibility of conditional approval of the application pending receipt of favorable results from such an analysis. If testing reveals a need to address the problem there are various techniques available to reduce the impact of nitrogen loading, such as: (1) increasing permeable surfaces; (2) reducing impervious surfaces; (3) making permeable surfaces more permeable; (4) installing nitrogen pretreatment systems which are readily available in the construction market.
"Necessary" is defined in Webster's New World Dictionary 2ed. at pp. "unavoidable, indispensible."
Reason #5
Density of the subdivision is too great. Consequently, there must either be a reduction in the number of units or the units must be spread out by employing a portion of the plaintiff's adjacent property that has not yet incorporated into the subdivision. Although the defendant did not articulate this reason in so many words, this reason captures the essence of the defendant's conclusion concerning projected density.
The context in which the defendant used the principle of density control is limited to its relationship to domestic water supply and adequacy of sewage disposal. Though not couched in statutory terms it would appear that mention of the two alternatives constitutes the defendant's attempt to fashion "reasonable changes" to the development in accordance with subparagraph (C) of subsection (g). In order to fully and properly assess whether either of these changes might be considered reasonable by the court, consideration must be given to the state of affordable housing in the Town of Bridgewater.
Reduction in Density
Any mandated reduction in density will necessarily cause a reduction in the number of affordable housing units. Such a reduction is inconsistent with the policy found in § 8-30g and other legislative expressions designed to promote affordable housing, viz: §§ 8-2, 8-2g, 8-2i, 8-23 (c)(2) and the declaration of necessity found in Chapter 128, Part I. The defendant argues that density reduction is an appropriate means to affect a reasonable change when an affordable housing development is proposed for acreage zoned land because the land is so classified because of its limited ability to accommodate higher density development from the standpoint of water supply and sewage disposal. Such an argument is unacceptable in Bridgewater, where 0.13 of the total housing stock qualifies as affordable (one unit), the town has not enacted any legislation intended to deal with the manifest need for affordable housing in the town, and the town has not earmarked any land for fixture development as affordable housing.
Incorporation of Adjoining Land
The plaintiff owns undeveloped land adjoining the subdivision which if incorporated into the subdivision would permit lower density development. The defendant implied in its decision that if the plaintiff were to utilize that land, the public interests might better be protected. To the extent that this constituted an attempt by the defendant to devise a change in the subdivision plan for affordable housing pursuit to subparagraph (C) the defendant had no authority to do so for several reasons. The defendant relies on Hoffman v. Inland Wetlands Commission, 28 Conn. App. 262 (1992), as support for such authority. Such reliance is misplaced. Hoffman did not involve an § 8-30g affordable housing application but rather involved a regulated activities application brought pursuant to § 22a-39 (h) (wetlands and Water courses). This difference is significant because these two statutes seek to protect different interests, set forth different standards of review and are driven by different policy considerations.
In determining whether the fact that an owner seeking a wetlands permit has an interest in an adjoining lot is relevant to a determination of whether a permit should be granted, the court was concerned with what it characterized as the nature of wetlands and water courses as an "interrelated web of nature." Hoffman v. Conservation Commission, supra at 267. The court emphasized the legislative purpose behind § 22a-36, namely to protect and preserve wetlands, and found that "[t]o require a commission to regard each parcel with blinders, ignoring the overall development of an area and, in particular, the ownership of abutting parcels, would defeat the statutes' purposes." Id. at 267-68. Thus, consideration of the parcel was necessary for the commission to satisfy the very purposes of the governing statute which by its terms requires a wetlands commission to "take into consideration all relevant facts and circumstances." (Emphasis supplied.) § 22A-41(a)). No corresponding provision is found in § 8-30g.
Additionally, in Hoffman the issue was whether the Commission properly considered the applicant's adjoining ownership when evaluating the application's potential effect on surrounding wetlands. In contrast, the issue in this case is whether the defendant can impose, as a condition of approval, the requirement that the plaintiff incorporate an adjacent parcel of land in order to alleviate the defendant's density concerns.
Next, neither § 8-25 nor the Bridgewater Subdivision Regulations authorizes the defendant to impose such a requirement. In fact, by the terms of § 8-25 the legislature has exempted affordable housing from all open space requirements when contained in a conventional subdivision, thereby exhibiting an intent to favor affordable housing units over subdivision open space at least in this limited field. Indeed, subsection. (C) by its terms limits the right of the defendant to making changes "to the affordable housing development" itself. It contains no authority for the defendant to look beyond the land which comprises the subdivision. Inclusion of non-subdivision land could extend the defendant's reach to property over which it has been given no control. Finally, in this field of affordable housing where many developers are nonprofit organizations, Kaufman v. Zoning Commission, supra at 141, such a requirement could be financially devastating to a developer and would effectively eliminate a parcel which itself may have potential for affordable housing development at some future time. And finally, although not an issue in this appeal, such a requirement would clearly implicate the provisions of subsection (h) of § 8-30g which authorizes an appeal from an approval which contains a condition which has a substantial adverse impact on the viability of the affordable housing development. Under these circumstances such a "change" would be patently unreasonable. The defendant has clearly failed to carry its burden under subparagraph (C). Quarry Knoll II Corp. v. Planning and Zoning Commission, supra at 733.
ORDER
The appeal is sustained and the decision of the defendant is reversed. The application is approved with the following revisions and subject to the following conditions:
1. The subdivision plan shall be revised so as to consolidate all three lots into one. This will trigger review by the State Department of Environmental Protection which will include an appropriate nitrate dilution analysis. The plaintiff will be required to comply with whatever recommendations result from that analysis. In requiring this consolidation the court has taken into account the plaintiff's claims that a three-lot subdivision lends itself more readily to favorable financing terms and that consolidation might cause a delay in ultimate approval. For an affordable housing development these are distinct disadvantages. But the court believes that the disadvantages are outweighed by the need for nitrate dilution analysis which is supervised by the Department of Environmental Protection. Additionally, consolidation will enhance the plaintiff's ability to move buildings and other structures within the site to accommodate needs which may be uncovered by this analysis and other tests which will be referred to below. Necessarily then, the approval ordered herein must be conditioned upon approval of the septic system by the Department of Environmental Protection. Kaufman v. Planning and Zoning Commission, supra at 163. The court deems this to be an obvious reasonable change which the defendant itself should have recognized and required.
2. The defendant may impose such reasonable conditions not inconsistent with this opinion and order as it deems appropriate and in addition shall impose the following conditions.
A. Water-well draw down tests shall be performed sufficient to determine whether and to what extent wells on adjacent property will be affected by the wells proposed for this development. As with number 1 above, the plaintiff will be required to comply with all recommendations which those tests produce. If no state agency is willing to claim jurisdiction then the results shall be approved by a licensed hydraulic engineer.
B. The plaintiff shall monitor the wells on a quarterly basis for radionucides and in the event that the samples exceed the maximum allowable level as determined by DOPH, the plaintiff shall install appropriate treatment apparatus to remove or reduce contents to within acceptable levels.
This court shall retain jurisdiction to enforce these orders and to resolve any disputes over the meaning and scope of these orders. Rosado v. Bridgeport Roman Catholic Diocesan Corporation, 77 Conn. App. 690, 722 (2003).
BY THE COURT
Mottolese, J.