Opinion
No. CV 08 4018175S
October 20, 2010
MEMORANDUM OF DECISION
This is an affordable housing and land use appeal arising from an application for a zoning map and text amendment by the plaintiff, Eureka V. LLC (Eureka). The defendant, the planning and zoning commission of the city of Ridgefield (commission), denied the application of Eureka, to amend the zoning map of the city of Ridgefield and approved a modified version of Eureka's amendment proposal.
The subject property, located at 616 Bennett's Farm Road in Ridgefield, Connecticut is owned by Eureka and consists of approximately 153 acres. The property is currently zoned as a Corporate Development District ("CDD Zone"), which does not permit residential use, except as "an accessory use to accredited institutions of higher learning." (Return of Record, (ROR), Ex. 233, Zoning Regulation § 410.0.G.2.e). A primary source of controversy of this appeal concerns Saugatuck Public Water Supply Watershed ("Saugatuck Watershed"), the watershed for the Saugatuck Reservoir. Sixty-seven acres of the subject property are located in the Saugatuck Watershed. Map, Ex. 206E. The Saugatuck Reservoir is a public drinking water supply, which is a source of drinking water for a half million people. (ROR, Ex. 190, p. 107.) Pursuant to General Statutes § 8-30g. Eureka seeks approval of a zoning text amendment (Record Exhibit, 7), and map, amendment, (RE 5), to add a Housing Opportunity Development Zone ("HOD Zone") to the Ridgefield Zoning Regulations and change the zone of the subject property from a CDD Zone to the HOD zone. In accordance with § 8-30g, Eureka submitted a conceptual site plan for development of the subject property, but did not request site plan approval. (RE 7, Tab 9.) Originally, the site plan depicted 509 homes on the 153 acres, with a proposed density of 14 homes per acre. Id. The subject of this appeal, however, is limited to the zoning text and map amendment. Under the proposed HOD regulation, thirty percent of the homes developed would be preserved as affordable housing options for low and moderate income households for at least forty years (for households earning a range of $59,850 to $82,992 and maximum purchase price from $145,235 to $207,987 or monthly rental including utilities from $747 to $1,261). Id. Eureka's original application also included a proposed change to the Town Plan of Conservation and Development to be consistent with its zone and map amendment. (RE 38, Tab 4.)
Plaintiff's Brief at 3. See also footnote 7.
Eureka identifies documents as Record Exhibit, henceforth recognized as "RE".
A density of 14 houses per acre could yield a maximum of 2,142 dwellings on the property. Defendant's Brief, at 2.
Any person filing an affordable housing application, as part of the application, must comply with the factors under § 8-30g(8)(b)(1).
On November 13, 2007, after public hearings and deliberation, the commission approved a modified proposed HOD Regulation. (ROR, Ex. 150.) The commission also approved a modified proposed change to the State Plan of Conservation and Development, (ROR, Ex. 149), and denied the application for a zone change because the HOD Zone Regulation approved by the commission was an overlay zone. (ROR, Ex. 151.)
Eureka took issue with the following HOD Zone Regulation modifications: (1) a maximum density setting of 1.9 dwellings per acre and barred development within the Saugatuck Watershed; (2) the requirement that all dwelling units within the HOD to be served by public water and sewer and prohibited the placement of sewer lines within the Saugatuck Watershed; (3) the twenty-five percentage maximum of three-bedroom units; (4) the requirement that at least seventy percent of the homes be age restricted; and (5) the requirement of one hundred foot rear and side yard setbacks.
On December 6, 2007, in accordance with Conn. Gen. Stat. § 8-30g(h), Eureka resubmitted a modified application for changes to the HOD Regulation and for a change to the zoning map adding an overlay zone on top of the existing CDD Zone. (ROR, Ex. 158.) This revision proposed: (1) a density within the Saugatuck Watershed of one unit per acre and a density of 2.6 units per acre for the non-Saugatuck Watershed land; (2) the option to connect units to public sewers or to use private septic systems; (3) a mix of efficiency, one, two, three, and four bedroom units, limiting the three and four bedroom units to no more than forty-five percent of all dwelling units; (4) the option, but not the requirement to develop age restricted housing; and (5) twenty foot side setbacks and twenty-five foot rear setbacks. (RE 158 Tab 1 pp. 2-3.)
"Following a decision by a commission to reject an affordable housing application or to approve an application with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units, the applicant may, within the period for filing an appeal of such decision, submit to the commission a proposed modification of its proposal responding to some or all of the objections or restrictions articulated by the commission, which shall be treated as an amendment to the original proposal." Conn. Gen. Stat. § 8-30g(h).
Total number of units reduced from 509 to 389; Units within the Saugatuck Watershed reduced from 321 to 62 units. Plaintiff's Brief at 13.
After public hearings and deliberation, on February 12, 2008, the commission issued its decision, agreeing to amend the zoning map to show properties designated as eligible for the HOD Overlay Zone with modifications of the HOD Zone Regulations. The commission's response to the resubmission: (1) set a maximum density of two dwellings per acre and prohibited development in the Saugatuck Watershed; (2) made no change to the commission's original approval of the utilities section which required all dwelling units within the HOD to be served by the Town of Ridgefield public water and sewer and prohibited the placement of sewer lines within the Saugatuck Watershed; (3) set the maximum percentage of three bedroom units at 30% and barred four bedroom units; (4) made no change to the original seventy percent age restriction; and (5) made no change to the originally required one hundred foot side and rear setbacks. (ROR, Ex. 227.)
Eureka timely appealed the commission's decision. Eureka claims to be statutorily and classically aggrieved as the owner of the subject properly and filed this appeal in response to the commission's modifications of the proposal. Eureka claims that the commission lacked sufficient evidence supporting its denial of Eureka's application for a zoning amendment. Specifically, Eureka challenges the commission's decision with respect to five issues: (1) the allowable density of the development and the prohibition of development on the sixty-seven acres of the Saugatuck Watershed; (2) the requirement to connect the housing development to the Ridgefield public sewer system; (3) the age restriction requiring that seventy percent of the development be dedicated to senior housing; (4) the prohibition of the construction of four bedroom homes and cap on the number of three bedroom homes; and (5) the requirement of one hundred foot side and rear yard setbacks. (Plaintiff's Brief, at 19-20.)
On July 23, 2010, the plaintiff proffered a deed, which evidenced conveyance of the subject property to the plaintiff on February 3, 1998. Plaintiff's Ex. 1.
"In a typical zoning appeal, the court's function . . . is to review the record made in the zoning proceeding." Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 727, 780 A.2d 1 (2001). The zoning commission has a duty to comply with § 8-30g when evaluating an affordable housing application. Id. The requirements under § 8-30g "strongly suggest that the town be obligated, when it renders its decision, to identify those specific public interests that it seeks to protect by that decision, so that the court in reviewing the decision will have a clear basis on which to do so . . . Requiring the town to state its reasons on the record when it denies an affordable housing land use application . . . will help guard against possibly pretextual denials of such applications." Id.
Pursuant to § 8-30g(g), the burden is on the commission to prove, based on the evidence in the record, "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." If this burden is not satisfied by the commission, the court may wholly or partly revise, modify, remand or reverse the decision being appealed. Id.
"Under subparagraphs (B), (C), and (D) of the statute . . . the court must review the commission's decision independently, based upon its own scrupulous examination of the record." Quarry Knoll II Corp. v. Planning and Zoning Commission, supra, 256 Conn. 674, 727. "Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of specific harm to the public interest if the application is granted. If the court finds that sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission's decision was necessary to protect substantial interests in health, safety and other matters that the commission may legally consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development." Riverbend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004); CMB Capital Appreciation, LLC. v. Planning Zoning Com'n, 124 Conn.App. 379 (2010).
Because § 8-30g is a remedial statute, it "must be liberally construed in favor of those whom the legislature intended to benefit." (Citations omitted; internal quotation marks omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 140, 653 A.2d 798 (1995).
Pursuant to § 8-2 and § 8-23, zoning regulations and local conservation and development plans are to be made with consideration for the protection of existing and potential public surface and ground drinking water supplies. It is consistent with the goals of State water resources policy, "to preserve and protect water supply watershed lands and prevent degradation of surface water and groundwaters; (2) to protect ground water recharge areas critical to existing and potential drinking water supplies; (3) to make water resources conservation a priority in all decisions; . . . (5) to prevent contamination of water supply sources or reduction in the availability of future water supplies." § 22a-380.
The State's 2005-2010 Conservation and Development Policies Plan, which became effective after its adoption by the General Assembly in 2005, identifies the protection of those environmental assets which are critical to public health and safety, as one of its primary growth management principles. (ROR, Exhibit 53, p. 79.) This plan instructs agencies to recognize the finite nature of our natural resources and ensure that our activities neither deplete nor unduly damage such resources. Id. It further directs agencies to protect current and future drinking water resources from intensive development and potentially deleterious land uses. Id., 80. In order to protect public health and prevent degradation of the State water supply, the State plan recommends that intensive development be guided away from existing and potential water supply watersheds and aquifers. Id., 82. This instruction is consistent with the commission's denial of development on the Saugatuck Watershed land.
Further evidence indicates that the Saugatuck Watershed should be protected from intensive development. The Saugatuck Watershed is a public drinking water supply, which serves as a source of drinking water for five hundred thousand consumers in Ridgefield and Redding. (ROR, Ex. 190, p. 1072.) The Connecticut Department of Public Health stressed that it does not support intensive development of the Saugatuck Watershed, identifying the Saugatuck Watershed as an important source of public drinking water in Southwest Connecticut. (ROR, Ex. 45, pp. 150-2, letter dated July 10, 2007.) The Department of Public Health further indicates that intensive development of the Saugatuck Watershed is inconsistent with State policy and urges that, in the interest of public health, that lot sizes greater than two acres or more should be used. Id. This is the highest density recommended in a publication by the Bureau of Water Management. (ROR, Ex. 45, p. 20, Protecting Connecticut's Water-Supply Watersheds: A Guide for Local Officials.) In that report, it is urged that two-acre zoning not be broadly applied to watershed areas; individual lots should be evaluated on a site-by-site basis.
The Department of Public Health may review and comment on local development projects and zoning regulations or changes thereto that may affect a public water supply
The Norwalk River Watershed Association condemned high density development of the Saugatuck Watershed portion of the site and indicated that Eureka's property borders on two stratified drift aquifers, which are both potential sources of potable water. The senior environmental analyst and supervisor of environmental protection for the Aquarian Water Company, which owns and operates the Saugatuck Reservoir, contended that high density development of the Saugatuck Watershed would threaten the public drinking water supply and stressed that the geography of the area could support no more than ten units. (ROR, Exs. 46, 171, 64.)
The commission acknowledged the potential for limited housing on the Saugatuck Watershed. (Defendant's Brief, at 12.) But rather than permitting development of the Saugatuck Watershed lands, the commission increased the density of allowable development on the non-Saugatuck Watershed property by fifteen units. Id.
Eureka alleges that in relying on the State Conservation and Development Plan, the commission bases its denial on generalized concerns of potential harm, rather than identifying a specific quantifiable harm. (Plaintiff's brief, at 2.) Eureka argues that as a guidance document, the state conservation and development plan is intended as a watershed planning tool, not a site-by-site regulatory tool, and therefore is not a reasonable basis by which to determine whether development of the Saugatuck Watershed poses a significant risk to public health and welfare. Id.
Eureka relies in part on Kaufman v. Zoning Commission, 232 Conn. 122, 653 A.2d 798 (1995), in which the Court held that recommendations from a draft of a development guidance document were not enough to support a zoning board's denial of an affordable housing application. However, Kaufman is distinguishable from the present case. In Kaufman, there was a question of whether an increased development density would be more detrimental than the lower density that was already permitted. Id., 160. Not only did the defendant in that case rely on a draft of a guidance document, but the evidence presented by experts did not indicate whether the damage caused by a higher density development would be any greater than that caused by the lower density development. Id.
In the present case, the question is whether any development will cause harm to the Saugatuck Watershed. A decision in favor of completely banning development on the Saugatuck Watershed is not contrary to the holding in Kaufman. Furthermore, courts have held that a denial of an affordable housing application is appropriate where there is a substantial public interest in preserving or protecting land and an affordable housing application is inconsistent with conservation and development plans to protect that land. See Landmark Development Group v. Zoning Commission, Superior Court judicial district of New Britain, Docket No. CV 05 4002278 (February 2, 2008, Prescott, J.) [ 45 Conn. L. Rptr. 63]; Christian Activities Council v. Glastonbury, 249 Conn. 566, 601, 735 A.2d 231 (1999). While the state conservation and development plan is a guidance document, with no binding power on the court, its contents are the recommendations of the General Assembly and should be considered by the court.
Eureka further asserts that the commission's sources of evidence only allege potential harm specifically related to Eureka's proposal. (Plaintiff's Brief, at 23.) Citing River Bend Associates, Inc., Eureka argues that speculation of potential harm is not sufficient to support a denial of an affordable housing application where the experts did not identify what particular harm would result. River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 32, 856 A.2d 973 (2004). But, the experts have cited a specific harm: the degradation of the public drinking water supplied by the Saugatuck Watershed. Intensive development of the Saugatuck Watershed is contrary to State policy. The weight of the evidence indicates that restricting the development of the Saugatuck Watershed lands is necessary for the protection of a substantial public interest. Protection of state water resources is not only consistent with, but also a focus of established state laws. The protection of a source of public drinking water clearly outweighs the need for affordable housing. Intensive development of the Saugatuck Watershed poses more than a mere theoretical possibility of harm to the public drinking water.
The proposed zoning amendment was not limited to the Saugatuck Watershed area, but intended for the entire development site. Eureka originally proposed a maximum density of fourteen dwelling units per gross acre. (Defendant's Brief, at 8.) The commission initially modified the proposal and approved a lot density of 1.9 units per gross acre of land. Id. Upon resubmission, Eureka sought a density of 2.6 units per gross acre of land. Id., 10. Again, the commission modified the proposal, approving a lot density of 2.0 units per gross acre of land. Id. The commission claims that a density restriction in the non-watershed lands is necessary to protect public interests in health and safety, but has not presented evidence that identifies a specific risk or harm, supporting a density restriction in the non-watershed area. The commission provides no explanation for its calculation of the allowable density and has shown how arbitrary this limitation is by increasing the approved density to offset the development ban in the Saugatuck Watershed. The commission has failed to meet its burden to demonstrate that limiting the lot density in the non-Saugatuck Watershed area is necessary to protect a public health and safety interest that outweighs the need for affordable housing.
Conceivably, this could result in 2,142 units on 153 acres, however, the Plaintiff's concept plan was designed with 509 units.
The court next considers the issue of utilities servicing the development site. Eureka proposed in its resubmission that all units within the development be served by public water and have either adequate or private sewage disposal in accordance with sound engineering principals. (ROR, Ex. 158, Tab 2, p. 4.) But the commission insists that all units within the development be served by public water from the town of Ridgefield municipal sewer systems and restricted the sewer lines from passing through the Saugatuck Watershed. (ROR, Ex. 227, p. 1281.)
The commission argues that this regulatory provision is necessary in order to protect a substantial public interest in preserving the watershed lands. The above reasoning for restricting development of the Saugatuck Watershed lands applies to the extension of sewer lines through the watershed. Allowing sewer lines or large community septic systems within the Saugatuck Watershed would degrade the public water supply and outweighs the need for affordable housing. The commission alleges that if the sewers run through the Saugatuck Watershed, it will be in violation of the conservation and development plan; it is the practice of the state Department of Environmental Protection to withhold funding for sewer projects when such plans are in violation of the state conservation and development plan. (ROR, Ex. 227, p. 1281.)
According to OLR Research Report No. 2006-R-0452, "the DEP generally will not fund sewer projects in rural areas where this would be inconsistent with the plan of conservation and development." (ROR, Ex. 177, p. 1039 and 1041.)
On-site sewage systems cannot be used on the Saugatuck Watershed because the "soils which characterize the watershed portions of the site are generally considered to have `severe limitations' for on-site sewage disposal systems." (ROR, Redding Commission Report.) The commission sufficiently meets the burden to preclude sewering from running through the Saugatuck Watershed. The possible degradation to a source of public water is a sufficient reason for denying the use of sewering or community septic systems. Fairfield 2000 Homes Corp. v. Planning and Zoning Commission, judicial district of Fairfield, Docket No. CV 97 0578756 (March 19, 1999, Mottolese, J.).
The commission has not sufficiently addressed the issue of sewering in the non-Saugatuck Watershed lands. Eureka argues that the development site could safely be served by either private septic treatment or connection to the public sewer system if connected to either the Danbury or Ridgefield sewers. (Plaintiff's Brief, at 27.) The commission fails to provide any basis for requiring the development in the non-watershed lands to be serviced only by the town of Ridgefield municipal sewer. Because the commission fails to cite a substantial public interest that would be harmed if the development's sewering were serviced by a neighboring city or by private septic systems, its sewering requirements cannot be upheld as they pertain to the non-Saugatuck Watershed lands.
The court considers the final three issues collectively. The commission has put restrictions on the age of occupants, the number of allowable bedrooms per unit, and the size of rear and side yard setbacks. In creating each of these restrictions, the commission has ignored its burden; the commission has failed to identify any risks to public health and safety that support the following restrictions.
In the proposed zoning application, Eureka requested that the development be age-restricted in part or in its entirety in accordance with the Federal Fair Housing Act. (Defendant's Brief, at 26.) The commission modified this provision to restrict seventy percent of the dwelling units to persons over fifty-five years old, thirty percent of which would be designated as affordable. Id., 26-27. The remaining thirty percent would be a separate condominium association, with no age restriction, dedicated as affordable. Id. The commission reasons if there is a substantial public interest in establishing affordable housing, then there is an equal interest in establishing such housing for seniors. Id., 29. This age restriction is based on the commission's preference and was not decided based on a public health or safety interest. The commission relies primarily on a commissioner's personal knowledge regarding the need for senior housing in Connecticut and cites a single statement from Home Connecticut that housing developments for low to moderate income seniors have typically not been affordable.
Home Connecticut is a statewide campaign aimed at increasing affordable housing in Connecticut. Defendant's Brief, at 28.
The commission has restricted the HOD zoning amendment by placing a thirty percent cap on the number of three bedroom units and prohibiting four bedroom units. Id., 29. The commission alleges that its approved combination of one, two, and three bedroom dwellings will provide diversity of housing types for singles, families, and seniors. Id., 30. The commission argues that Eureka has not established that this has a substantial adverse effect on the affordable housing development and that Eureka has not provided justification for its request for four-bedroom units and increase in three-bedroom units. Id. However, it is not the responsibility of Eureka to justify this request.
Finally, Eureka requests a side yard setback of twenty feet and a rear yard setback of twenty-five feet. Id., 31. The commission, instead, approved one hundred feet setbacks for the side and rear yards because these requirements are consistent with the current requirements for the CDD zone. Id. Once this zoning amendment is adopted, Eureka's property will be subjected to the requirements of residential (HOD) zoning. Therefore, CDD zoning requirements are not relevant to current issues and provide no basis for limiting the length of rear and side yard setbacks.
Zoning commissions are not entitled to protect interests that they deem optimal, instead of the minimum standards they are entitled to protect under § 8-30g(c)(2). Old Farms Crossing v. Planning and Zoning Commission, judicial district of Hartford, Docket No. CV 95 0547862, (June 11, 1996, Mottolese, J.). The commission has not alleged a substantial public interest that this restriction protects for the age restriction, bedroom restriction, or rear and side yard setback requirements and therefore does not meet its burden under § 8-30g.
The court cannot sustain administrative decisions which are arbitrary, capricious, or are clearly an unwarranted exercise of discretion. Conn. Gen. Stat. § 4-183(j). In light of the findings, Eureka prevails on the issues of age restriction, number of bedrooms, and length of setbacks. These issues are remanded to the commission, with the direction that the modified application be approved under reasonably justified terms and conditions. In recognition of the statutory requirements of § 8-30g and the specific facts presented in the case, the court concludes that the commission has sufficiently demonstrated that precluding development of housing or sewer within the Saugatuck Watershed land is necessary to protect a substantial public interest. As for the density level and sewer requirements in the remaining land, the court remands these decisions to the commission. The commission has not demonstrated adequate evidence to require a density of two units per acre in the non-Saugatuck Watershed lands; the number appears too arbitrary and lacks scientific justification. Furthermore the commission has not carried its burden to support the requirement that the development connect to the Ridgefield municipal sewer. These issues are remanded to the commission, with the direction that the modified application be approved under reasonably justified terms and conditions.