Opinion
No. CV 02 0518161S
November 13, 2008
MEMORANDUM OF DECISION
The plaintiff, Forest Walk, LLC, has brought this action as an affordable housing land use appeal under § 8-30g of the General Statutes challenging decisions by the defendant, the Middlebury planning and zoning commission, denying applications for an amendment to zoning regulations, zone change and site plan approval related to the construction of 286 residential units that would include affordable housing. The court has carefully reviewed the record of the proceedings before the commission concerning the reasons for its denial. For the reasons stated below, the court concludes that the commission has sustained its burden of proof with respect to one of the reasons articulated, and, accordingly, the appeal is dismissed.
On July 24, 2001, the plaintiff submitted an application for an affordable housing development on Regan Road in Middlebury. After a public hearing on November 1, 2001, the plaintiff withdrew that application on December 5, 2001, and that same day submitted a revised application that included a draft zoning amendment and incorporated the entire record of the July application. The application proposed combining two parcels east of Regan Road in Middlebury with a third parcel west of that road into a development consisting of 32.25 total acres. The plaintiff intended to construct 286 residential units in fifteen buildings and ancillary facilities on the east side of the road and to set aside the 13.3-acre parcel on the west side of Regan Road as open space. The application included an affordability plan pursuant to § 8-30g restricting 30 percent of the 286 units as affordable for forty years and a proposed zoning regulation amendment creating a new § 27 of the Middlebury zoning regulations and a new affordable housing zone. On February 20, 2002, the applicant submitted a revised proposed zone change. A public hearing on the revised application began on January 30, 2002, and was continued to February 28, 2002. The record before the commission also included the application and public hearing record on the initial application.
The defendant has referred to these applications throughout its brief and argument as Applications II and III. Its brief refers to an earlier zoning application filed in November 2000, but not under § 8-30g, as Application I. That application is not before the court. The court will here refer to the July 24 application as the initial application and the December 5 application as the revised application. The court will refer to the "application" when it is not material to identify the particular application.
On June 6, 2002, the commission voted to deny the application. The twenty-six page resolution adopted by the commission contained fifty numbered paragraphs of findings, with numerous subparagraphs, in fifteen pages and set forth the commission's reasons in eleven additional pages. On July 23, 2002, the plaintiff filed this appeal in the judicial district of Waterbury, which transferred the matter to the administrative appeals docket of the judicial district of New Britain. The case was then assigned to this court, and the parties appeared for hearings on December 3 and 5, 2003. Argument continued on March 5, 2007, after which the court and counsel conducted a site visit on January 23, 2008, and argument concluded on April 18, 2008. On June 25, 2008, the court received the final transcripts of the parties' arguments, and the matter was ready for decision.
I AGGRIEVEMENT AND STANDING
As with any administrative appeal, the court must first consider the questions of aggrievement and standing. "[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). General Statutes § 8-30(f) provides in relevant part: "Any person whose affordable housing application is denied . . . may appeal such decision pursuant to the procedures of this section . . ." At the hearing before this court, the plaintiff offered evidence establishing that, at the time of the public hearings, it was a contract purchaser of the property in question, which it has since purchased. A deed showing ownership was introduced into evidence. The plaintiff was thus aggrieved by the defendant's decision; Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001), citing Fletcher v. Planning Zoning Commission, 158 Conn. 497, 502, 264 A.2d 566 (1969) (court can find aggrievement based upon a plaintiff's status as owner or contract purchaser); and has standing to bring this appeal under § 8-30g(f).
In order to qualify as an affordable housing development covered by the affordable housing statute, a development must set aside 30 percent of the total number of units. General Statutes § 8-30g(a)(6). Of this 30 percent, 15 percent must be affordable for individuals earning 80 percent of the area median income and 15 percent must be affordable for individuals earning 60 percent of the area median income. All affordable units must be conveyed by deeds requiring the units to remain affordable for forty years. The plaintiff's application satisfies these requirements. Moreover, the affordable housing statute only applies if less than 10 percent of the housing in the municipality qualifies as affordable. At the time the application was submitted, only 6.6 percent of Middlebury's housing qualified as affordable, thus subjecting the parties to the law and procedures set forth in § 8-30g.
General Statutes § 8-30g(a)(6) provides: "`Set-aside development' means a development in which not less than thirty per cent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that, for at least forty years after the initial occupation of the proposed development, such dwelling units shall be sold or rented at, or below, prices which will preserve the units as housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to eighty per cent of the median income. In a set-aside development, of the dwelling units conveyed by deeds containing covenants or restrictions, a number of dwelling units equal to not less than fifteen per cent of all dwelling units in the development shall be sold or rented to persons and families whose income is less than or equal to sixty per cent of the median income and the remainder of the dwelling units conveyed by deeds containing covenants or restrictions shall be sold or rented to persons and families whose income is less than or equal to eighty per cent of the median income . . ."
General Statutes § 8-30g(k) provides in relevant part: "[T]he affordable housing appeals procedure established under this section shall not be available if the real property which is the subject of the application is located in a municipality in which at least ten per cent of all dwelling units in the municipality are (1) assisted housing, or (2) currently financed by Connecticut Housing Finance Authority mortgages, or (3) subject to binding recorded deeds containing covenants or restrictions which require that such dwelling units be sold or rented at, or below, prices which will preserve the units as housing for which persons and families pay thirty per cent or less of income, where such income is less than or equal to eighty per cent of the median income, or (4) mobile manufactured homes located in mobile manufactured home parks or legally-approved accessory apartments, which homes or apartments are subject to binding recorded deeds containing covenants or restrictions which require that such dwelling units be sold or rented at, or below, prices which will preserve the units as housing for which, for a period of not less than ten years, persons and families pay thirty per cent or less of income, where such income is less than or equal to eighty per cent of the median income."
II STANDARD OF REVIEW
Subsection (g) of § 8-30g establishes special law and procedure for appeals of affordable housing applications. "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."
In Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 727, the Supreme Court summarized the court's duty on appeal in the following manner: "Under § 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 of this issue."
Judge Everleigh's analysis of a zoning commission's burden of proof under § 8-30g is particularly instructive:
"1. The statute is remedial, and its purpose is to assist property owners in overcoming local zoning regulations that are exclusionary or provide no real opportunity to overcome arbitrary or local limits, and to eliminate unsupported reasons for denial."
"2. The statute requires the Commission to state its reasons and analysis in writing."
"3. The Commission, in its denial resolution and its brief, must discuss, with references to the record, how each of its reasons for denial satisfies the criteria stated in the statute."
"4. The statute eliminates the traditional judicial deference to commission factual findings and regulatory interpretations for all types of zoning or planning applications, including zone changes."
"5. Regarding the statutory criterion of a "substantial public interest in health or safety," the commission must identity the type of harm that allegedly will result from approval of the application and the probability of that harm."
"6. The statute requires the Court to conduct an independent examination of the record and to make its own determination with respect to the second, third, and fourth criteria of subsection (g). It is incumbent upon the Commission to first establish the correctness of its decision. If demonstrated it is then incumbent upon the Court to conduct a plenary review pursuant to the last three prongs of the statute." Juniper Ridge Associates v. Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 02 0518845 (March 8, 2004). As noted by Judge Munro in Avalonbay Communities, Inc. v. Wilton Planning and Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 04 0527391 (September 12, 2005), "[t]he court must evaluate each reason individually because if any one of its reasons meets the standard set forth above, the appeal must be dismissed."
III DISCUSSION A Summary Description of the Development
The plaintiff's application proposed to build a development on the eastern side of Regan Road consisting of fifteen residential buildings, each with eleven or twenty-two units of two or three bedrooms, a 2500 square foot community building and a pool. Each building would have some inside parking and some exterior parking, and there were also two larger parking lots. The property rises in elevation east of Regan Road to a ridge approximately halfway into the property, then descends to the eastern boundary, beyond which lies the flood plain and streambelt of Long Swamp Brook, which merges with Hop Brook south of the site. This eastern portion of the development contains approximately five acres of wetlands, including flood plain. On the other side of Long Swamp Brook east of the development is a small residential neighborhood located on Porter Avenue. The 13.3-acre parcel across Regan Road set aside as open space declines gently in elevation from Regan Road, is composed almost entirely of wetlands and watercourses and is bisected by Hop Brook, which runs the length of the property roughly parallel to Regan Road.
The application proposed to flatten the topographic features of the eastern portion of the development, where there are slopes, some of which are more than 25 percent, by excavating the ridge to create a site for the roads and buildings that would cover 50 percent of this portion of the property. (RB5, O-4, p. 27; RB1, A-1, VII [referring to RB4, M-3, SE1-29]; RB4, M-5; RB2, L-3, p. 44; RB4, M-3, SE23.) The applicant's engineer estimated that the project would excavate 146,000 cubic yards of earth, 90,000 cubic yards of which would be removed from the site. Some of the excavation would be within fifteen feet of the Long Swamp Brook flood boundary, based on 1979 FEMA maps. (RB4-M3, RB2, J-2 p. 5.)
The return of record is in five three-ring binders and consists of various documents, drawings, and maps. Each binder will be referred to here separately by binder number in the following format: RB [numeral]. The binders are divided into tabbed alphabetical sections using capital letters, and further subdivided into tabbed numerical sections. The record for those binders will be cited here as follows: RB [numeral], [Lettered Section]-[Numbered Section], page number (of the numbered section except where otherwise noted). Certain maps and drawings are indicated by the designation "SE."
B Proposed Zoning Amendment
In response to commission comments that the initial application did not contain a draft zoning amendment, as required by a 2001 amendment to the affordable housing statute, the plaintiff's revised application included a proposed zoning amendment, which the applicant revised during the public hearing process.
Section 1 of Public Acts 2000, 00-206, added subsection (b)(1) to § 8-30g, which provides in relevant part: "Any person filing an affordable housing application with a commission shall submit, as part of the application, an affordability plan which shall include at least the following: . . . (E) draft zoning regulations, conditions of approvals, deeds, restrictive covenants or lease provisions that will govern the affordable dwelling units."
The existing Middlebury zoning regulations contain a planned residential development overlay district (PRD) that, according to the commission's brief, permits affordable housing by landing a floating zone "onto a qualifying property and then conducting site specific special exception safety and design review." (Def. Brief, p. 7.) The plaintiff's brief correctly points out, however, that the PRD regulation's "definition of affordable units . . . does not comport with [General Statutes] § 8-30g." Section 22.7.1 of the regulations defines "moderate income" as an income that does not exceed the median family income for the Waterbury metropolitan statistical area (MSA) as determined by HUD. Section 22.7.2 defines an affordable housing unit as a "dwelling unit which is for sale at a purchase price which equals 2.75 times the median family income of a moderate income household for the Waterbury MSA." Section 22.7.2 also defines an affordable rental unit as a unit for which rent, excluding utilities does not exceed 28 percent of the moderate income for the Waterbury MSA. (See Pl. Brief, p. 7.) These income levels are higher than those under § 8-30g.
C Commission's Reasons for Denial
The commission's resolution denying the plaintiff's application cited ten reasons, which may be summarized in the following categories: (1) lack of sewer service; (2) lack of water service; (3) off-site flooding; (4) inadequate emergency access because of limited parking and narrow interior roadways; (5) inadequate standards in the proposed regulation governing excavation operations; (6) inadequate fire safety because of lack of water, inadequate parking, and narrow interior roadways; (7) various other deficiencies in the proposed zoning amendments; (8) protection of wetlands and watercourses from pollution caused by runoff from interior roadways or from off-site flooding; (9) environmental and safety risks resulting from the density of the proposed development; and (10) the administration of the affordability restrictions.
D Discussion 1. Denial for lack of sewer service
The plaintiff's application proposed that the development be served by public sewers, but the record before the commission showed that on January 15, 2002, the Middlebury water pollution control authority, the local board assigned the power under General Statutes § 7-26 by the town of Middlebury to "designate and delineate the boundary of . . . [a]reas served by any municipal sewerage system" had denied the plaintiff's application to provide sewer service on the property.
The town's plan of development adopted in March 2001 establishes a "sewer avoidance policy" not to extend sewer service to new areas "except as a last resort to alleviate a significant public health problem where there is no other feasible alternative. This allows a natural balance to be maintained for on-site sewer and water systems." (Plan of Development, RB2, L-3, pp. 86 and 89.) The plan of development also states that "most Middlebury residents draw their water directly from individual wells on site." (Plan of Development, RB2, L-3, p. 47.) The commission found that the "rationale for avoiding sewer extensions except in case of pollution is to preserve the water recharge in a town where the population's water needs are almost wholly served by ground water from private wells." (Def.'s Br. p. 29, citing plan of development, RB2, L-3, p. 47.) The WPCA denial, the town's sewer avoidance policy and the rationale behind that policy of protecting groundwater recharge in a town with many private wells reliant on groundwater surely pass the first level of muster under § 8-30g(c)(1)(A) that the commission show its decision on this ground to have been supported by sufficient evidence in the record.
Section 8-30g(1) next provides that the court must itself engage in a plenary review of the record to determine whether the commission met its "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; [and] (B) such public interests clearly outweigh the need for affordable housing . . ." In this case, as in 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], "[t]he applicants do not appear to dispute that a commission may properly reject an affordable housing application if the development proposed will have inadequate water and sewer facilities to serve the development. Obviously, there is a substantial and compelling public health and environmental interest in ensuring that a large, high-density development such as the one proposed here has adequate water and sewer services. Courts that have addressed this issue are in agreement with this fundamental fact." Id., citing Greene v. Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 90 0442131 (January 6, 1993, Berger, J.) ( 8 CONN. L. RPTR. 137); D'Amato v. Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 92 0506426 (February 5, 1993, Berger, J.) ( 10 CONN. L. RPTR. 444); Halter Estates Senior Community, LLC v. Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 06 4010191 (May 3, 2007, Schuman, J.). There is no serious dispute here that the need for sewage disposal is a substantial public health and safety interest clearly outweighing the need for affordable housing sufficient for the commission to have met its burden of proof under § 8-30g(g)(1)(A) and (B).
The court must finally determine, under § 8-30g(g)(1)(C), whether the commission has also met its burden of proving, "based upon the evidence in the record compiled before such commission," that any "substantial public interests in health, safety, or other matters which the commission may legally consider" and which have provided a legitimate basis for denying the application "cannot be protected by reasonable changes to the affordable housing development . . ." The plaintiff claims before this court that, despite the WPCA denial, the commission should have approved the application conditioned on the applicant obtaining the necessary approvals to connect to the sewer system. In support of this position, the plaintiff argues that (1) analysis of the town's sewer shows sufficient capacity to handle the needs of the property and the town's future needs; (2) the WPCA's own regulations provide that "owners of nearby or abutting properties have rights of access" to the town's sewer system; (3) it has contracted to purchase an easement over an adjoining parcel of property in order to connect to an existing trunk line of the town sanitary sewer line ending 35 feet from the development; and (4) it "was in the process of obtaining a sewer connection for the Property."
In response, the commission argues that this case is governed by River Bend Associates, Inc. v. Planning Commission, 271 Conn. 41, 856 A.2d 959 (2004), in which our Supreme Court held that a water pollution control authority's denial of a sewer application was a valid reason for denying the affordable housing application and reversed a trial court decision conditioning approval of the affordable housing application on the results of the judicial appeal of the WPCA denial. In River Bend, the court analyzed two lines of cases, one holding that zoning "commission action which is dependent for its proper functioning on action by other agencies over which the zoning commission has no control cannot be sustained unless the necessary action appears to be a probability;" Carpenter v. Planning Zoning Commission, 176 Conn. 581, 592, 409 A.2d 1029 (1979); and the other that, in the affordable housing context, "approval of necessary applications by coordinate municipal agencies should be presumed to be a probability in the absence of any evidence to the contrary." River Bend Associates v. Zoning Commission, supra, 271 Conn. 56-60, discussing Kaufman v. Zoning Commission, 232 Conn. 122, 164, 653 A.2d 798 (1995). In River Bend, the court held that the zoning commission "had no authority to approve the plaintiffs' subdivision application subject to the granting of their sewer application because, in light of the water pollution control authority's previous denial of the application, there was no `reasonable probability' that the application would be granted." River Bend Associates v. Zoning Commission, supra, 271 Conn. 56-57. Balancing the competing interests, the court held: "The very purpose of the rule disfavoring conditional approvals of subdivision applications in the absence of a reasonable probability that the condition can be fulfilled within a reasonable time period is to avoid placing subdivision applications in limbo for indefinite periods . . . Second, even if conditional approval of their subdivision plan had been authorized, the plaintiffs would have been required to wait until their dispute with the water pollution control authority was resolved to implement the subdivision plan. The only consequence of the denial is that, once the sewer dispute is resolved, the plaintiffs must resubmit to the planning commission either the current subdivision application or a modified plan." (Citation omitted.) Id., 64.
The defendant commission here similarly argues that this court cannot sustain plaintiff's appeal by conditioning approval on the success of judicial appeal from the WPCA denial because the denial itself is a sufficient basis for concluding that there is no reasonable probability that sewer service will be available to the development. Counsel have made this court aware that the WPCA decision is on judicial appeal (although after the original WPCA denial, the plaintiff withdrew that WPCA application and refiled, and the WPCA then again denied plaintiff's reapplication). But a WPCA denial was also on judicial appeal in River Bend; yet the Supreme Court held there that the municipal agency's decision, even if on appeal, was still a valid reason to deny the affordable housing application without condition. This court is bound by that decision, and the commission's action on this ground must therefore be sustained unless there is a reasonable alternative for providing sewage removal other than by using the public sewers.
The alternative, of course, would be an on-site septic system, but the commission resolution concluded that "[t]here is a substantial public interest in providing adequate sewer service to the property . . ." In its brief, the plaintiff argues that the commission did not demonstrate "the feasibility or infeasibility of on-site septic systems" and that the commission's opinion that the property cannot support an on-site system "is not supported by any credible evidence in the record." (Plaintiff's Brief, p. 13.) The plaintiff acknowledges that the town's engineer stated that "on-site sewer service is not feasible on the [p]roperty," but argues that "[t]his bald statement is not supported by any data, any citation to testing done on the [p]roperty or by any other reliable technical information." (Plaintiff's Brief, p. 13.) At the public hearing on January 30, 2002, however, the applicant's attorney conceded that "[t]his site is unfeasible for septic." (RB5, O-3, p. 6.) Such an admission was more than sufficient for the commission to conclude as it did; this admission supported the conclusions of its own engineers and obviated the need for the commission to consider on-site septic as a reasonable alternative. The plaintiff's counsel acknowledged at the hearing before this court that "the sewer service is an issue of substantial health and safety. We don't disagree that that is the criteria that the commission had to decide." (Transcript, 3/5/2007, p. 30.)
The commission resolution stated: "The Applicant provided no alternate plans showing feasibility of on-site septic systems or an indication of how an on-site system could be accommodated and the site plan reconfigured given the intensive site development proposed." (Def's Br., p. 12.) "The Applicant provided no alternate plans showing feasibility of on-site septic systems or indication of how the plans that completely cover the development parcels could be revised to accommodate such systems." (Middlebury Resolution, Finding #5.)
Milone MacBroom wrote a letter dated January 30, 2002, stating: "While on-site sewer and water facilities for on-site sewer and water facilities may be possible for some low density development, we believe that suitable soils for on-site sewage disposal and the geologic formations capable of yielding sufficient quantities of water to support do not exist in Middlebury." (RB2, 19, p 3.) At the public hearing on that same date, the author of that letter, Vincent McDermott, describing himself as a licensed landscape architect and certified planner, stated, similarly to the letter, that: "on-site sewage disposal and on-site water might be fine for lower density development but [with] the limited geologic formations in town, to provide high yields of water from wells, or suitable soils for large scale on-site sewage disposal systems, simply doesn't exist in Middlebury." (RB5, O-3, p. 34.)
In view of the Supreme Court's decision in River Bend, the appeal must therefore be dismissed. The court could enter such an order without addressing the other reasons, but since here, as in River Bend, there may be additional proceedings before the commission should the plaintiff prevail in its judicial appeal of the WPCA decision denying sewer service, the court will consider those other reasons as well. If successful in that other matter, the plaintiff could then resubmit the current application or a modified plan. "We trust that the commission will take notice of our decisions in the present case . . . and conduct its review of the application accordingly. We do not believe that this course imposes any undue inconvenience or delay on the [plaintiff]." Id., 64.
2. Denial for Lack of Water
The next reason cited by the commission for denying the application was lack of water to serve the development: The commission stated that "there is no indication that public water is immediately available or will serve the property in the near or distant future. Further, there is no basis to find that the private wells or on-site community water system could adequately serve a site of this density." Reason 2b, RB1, F-15, Commission Resolution, p. 16. The evidence in the record shows that no public water system yet served the site and that no public body had approved of providing future service. The commission resolution cited a Superior Court decision, Mollica v. Planning Zoning Commission, overturning the Middlebury planning and zoning commission's approval of a zoning change to provide senior housing, where the applicant had not demonstrated that it could provide immediately available water in violation of town zoning regulations requiring such access as a precondition to the approval of such a zone change. See Mollica v. Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 99 0155622 (December 19, 2001, West, J.). Although a correct statement of the law in that instance, however, the holding in Mollica is not applicable in an affordable housing appeal, in which, as already noted above, in the context of affordable housing applications, "approval of necessary applications by coordinate municipal agencies should be presumed to be a probability in the absence of any evidence to the contrary." River Bend Associates v. Zoning Commission, supra, 271 Conn. 59-60.
The resolution adopted by the commission on June 6, 2002 is located in the return of record at RB1, F-15, after the minutes of the meeting. The minutes and resolution have separate page numbering. The resolution will be cited by its own pagination. The resolution is also found at RB1, F-17, in materials sent before the June 6 meeting to the applicant's counsel. A transcript of the June 6, 2002 commission meeting is located in the record at RB5, O-5.
The evidence in the record on this issue consists principally of two letters, one to the commission from the town of Middlebury water commission on November 26, 2001, (RB1, D-12) and the other to the applicant from the Connecticut Water Company (CWC) on January 25, 2002. (RB1, D-23). The town water commission letter stated in part: (1) The nearby Route 64 water main was large enough to support the development; (2) An agreement between the town and the Connecticut department of environmental protection (DEP) provided that any connections to the water main, other than for serving the Tucker Hill Road firehouse or fire hydrants on the water main, "will not be allowed unless approved by the Commissioner after a diversion permit has been issued" by DEP; (3) Due to an unspecified "diversion permit issue involving the City of Waterbury and the Shepaug river group, no water could be supplied at this time"; (3) The applicant had not yet requested water to serve the development; and (4) "[T]here is no water available for this project at this time."
The CWC letter stated that it was responding to a January 2002 inquiry "requesting an estimate of when water will be available for your development." It stated in part: (1) "Pending regulatory approval from the DEP and/or other agencies, as may be required, CWC can provide water for domestic use and fire protection to the Forest Walk Condominium project"; (2) Transfer of water from CWC's Naugatuck system to Middlebury in quantities sufficient to serve the development "will require a diversion permit" pursuant to General Statutes § 22a-368; (3) CWC estimated that it would "take approximately one month to prepare a permit application and . . . a minimum of six months to secure the necessary permit(s);" (4) The applicant would have to build a water main extension at its cost "of approximately 12,800 feet from our facilities in Naugatuck;" (5) Customers connected under this agreement would be customers of CWC, not the town of Middlebury; and (6) "Extension of service from the Middlebury system to Forest Walk is not available due to unresolved diversion and funding issues with DEP. Once these issues are resolved, service from Middlebury as an alternative . . . maybe [sic] possible."
The only reasonable reading of these two letters is that they present two different alternatives as possible sources of public water for the Forest Walk development: (i) public water from the Town of Middlebury via an extension/diversion from the Route 64 water main, which was not presently available as an option because of what both the water commission and CWC described as an "unresolved" diversion issue, and (ii) public water from CWC's Naugatuck system, which would require a diversion permit from the DEP and construction at the applicant's cost of a water main extension from Naugatuck to the development. The water commission letter did not, as defendant's brief argues, indicate that "an extension into Middlebury is not possible until `unresolved diversion and funding issues with the DEP are resolved.'" (Emphasis added.) (Def.'s Br., pp. 13 and 34.) It said that connections from the Route 64 fire main to the development — i.e., an extension of service CT Page 17753 from the Middlebury water system — could be not accomplished until those issues had been resolved. The CWC letter said that water was available from the Naugatuck system.
Judge Mottolese has aptly described the court's role in case such as this: "[T]he court is required to apply the principle first formulated in Faubel v. Zoning Commission, 154 Conn. 202 (1966), and repeated in a long line of decisions, including affordable housing decisions . . . This principle simply states that a zoning authority's action `which is dependent for its proper functioning on action by other agencies over which the zoning authority has no control cannot be sustained unless the necessary action appears to be a reasonable probability.' In the context of an affordable housing appeal where the burden of proof is always on the zoning authority, the zoning authority must prove under Section 8-30g(b)(2)(g) that there is sufficient evidence in the record to establish that it is more than a mere possibility that such approval will not be forthcoming. In other words, the Commission must show a reasonable basis in the record to support its conclusion that the sewer connection probably will not be approved by the BPUC. Unlike a conventional zoning appeal the burden of establishing reasonable probability of attainment does not rest with the plaintiff. Indeed, in an affordable housing appeal unlike a conventional administrative appeal, approval of necessary applications by coordinate municipal agencies should be presumed to be a probability in the absence of any evidence to the contrary." (Citations omitted.) Toll Brothers v. Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 03 0523881 (October 19, 2006). On the record here, this court concludes that the commission did not have sufficient evidence in the record to support its finding that public water was not available to serve the proposed development.
The issue of water in this case is thus distinctly different from that of sewers. Although neither yet served the property, the appropriate public body had already denied a sewer application, a sufficient basis under River Bend to deny the application; but no application had yet been formally submitted to sources of public water and there was no indication in the record of a reasonable probability that such an application to the CWC would be denied. Here, as in River Bend Associates v. Zoning Commission, 271 Conn. 1, 40, 856 A.2d 973 (2004), the commission "has pointed to no evidence in the record establishing that there is no reasonable probability" that the plaintiff's application for water to the CWC would not be approved once submitted and, hence, that plaintiff could not obtain public water for the development. Under Kaufman v. Zoning Commission, supra, 232 Conn. 163-64, approval by another municipal agency shall be presumed in the affordable housing context in the absence of evidence to the contrary. The record shows here that public water from the Connecticut Water Company was likely. This basis for commission's denial was inadequate to sustain its decision and should instead have prompted the commission to impose water service as a reasonable condition.
3. Denial because of downstream flooding
The third reason that the commission denied the application was that the development would increase the flow of water running off the site. The commission's decision to deny the application for this reason stood on two legs: its finding that there was a "history of chronic flooding" and recommendations from the engineers retained by the town that any increase in runoff from the development site, because it "exacerbates an already critical flooding condition . . . is unacceptable." (Commission Findings 3c and 3d, RB1, F-15, Commission Resolution, p. 16.) At the public hearings in this case, the commission heard impassioned testimony from neighbors complaining about existing flooding conditions, including a dramatic videotape showing flooding in the summer of 2001 at a nearby property east of Long Swamp Brook. The commission's resolution shows the effect of that testimony: "The Commission's concerns for the safety of the potential residents of the project arise, in part, from the testimony and videotape of neighboring and downstream properties; the neighbors have shown that there is a history of chronic flooding that has occurred in the past near or at the subject site and downstream; The nature and extent of the harm to neighboring and downstream owners were graphically and undeniably presented in the videotape that showed submerged septic systems, submerged bridges, and testimony regarding 4'-6' of water in basements. The application property will border the same flood hazard area on the opposite side of the Long Swamp Brook and will present a special flooding danger to the proposed housing and parking areas . . ." (Commission Finding #3c, RB1, F-15, Commission Resolution, p. 16.)
In addition to the testimony from neighbors, the commission findings also cited two reports, a "Hydrologic Study of the Long Swamp Brook Watershed" prepared in 1991 by the Pare Engineering Corporation (the PARE Report) and the King's Mark Environmental Review Team Report prepared in 1978, as evidence "of a long history of adjacent streambelt and downstream flooding of both Hop Brook and Long Swamp Brook." (Finding 41, RB1, F-15, Commission Resolution, p. 9.) In its brief, the commission suggests that these two reports recommended no increase in runoff to either waterway. While the Kings Mark report did recommend that the town consider adopting regulations that would require developers to "maintain the base peak flow regimen," the PARE Report did not make such a recommendation.
"In direct contravention of the 1981 condition of approval for the Northern parcel of the Property and the PARE and Kings Mark reports, the Applicant's hydraulic analysis shows an increase in flows to both Long Swamp Brook and Hop Brook flows and downstream as a result of the project." (Def's Brief, p. 15.)
Although the resolution identifies the Kings Mark Report as addressing "flooding conditions in Long Swamp Brook"; (see, e.g., Commission Finding 41i, RB1, F-15, Commission Resolution p. 10); the report actually analyzed the effect of two proposed subdivisions that would drain into Hop Brook. The purposes of the report were to estimate the extent to which those developments would "contribute to the flooding problem that already exists off Tower Road," which lies south of Whittemore Road, which is itself southwest of the applicant's property and is the southern terminus of Regan Road, and to provide "guidance in developing a `long-term' control that will eliminate the existing flooding problem within the watershed." (RB2, J-7, p. 1.) The "flooding problems" it mentioned were water overtopping a culvert passing under Tower Road, wetland water discharging across a local resident's property into a cul-de-sac "west-southwest of Tower Road," and wetland water that "rises to a level of near-encroachment on the lawns of some residents living on the east side" of Tower Road. (RB2, J-7, p. 11.) The report stated that: "continued development in the watershed could ultimately have a severe impact on peak flows at the culvert . . . [A]ny small development would not, in itself, result in a major runoff change, but a series of small developments over a period of time could have a significant combined impact . . . Effective control of the watershed would involve estimating the present peak flow conditions and using these conditions as a base for evaluating future development proposals. It may be prudent for the town to adopt regulations requiring each developer to provide engineering measures that would maintain the base peak flow regimen. Under the concept of "environmental performance standards," the town could require developers to provide controls that will ensure that run-off from any specific development does not exceed that which would occur under natural conditions." (RB2, J-7, p. 14.)
The purpose of the 1991 PARE Report was to assess "methods to alleviate chronic flooding of the Long Brook Swamp in the vicinity of Porter Avenue and Brook Lane. Several properties on Porter Avenue are reported to experience flooding during periods of heavy rainfall" and "during relatively small storms." (RB2, J-8, p. 3 and 4.) It proposed certain remedial measures — installing flashboards, constructing a detention basin, or constructing a detention embankment — that could reduce peak flows by between 8 percent and 26 percent and would range in cost from $21,000 to $290,000. It also stated that "it may be possible to alleviate the effects of flooding in the Porter Avenue neighborhood through channel improvements, site grading on the affected properties or other work." Although clearly addressing certain flooding problems experienced by residents of properties near the development, the PARE Report made no specific recommendations about any future developments other than they "should be carefully evaluated for [their] effect on Long Swamp Brook at Porter Avenue." (RB2, J-8, p. 7.)
The development property east of Regan Road consists of two existing parcels of land. The northern such parcel, containing 10.983 acres, was the subject of an earlier proceeding before the commission in 1981, when the commission approved a nearby senior housing project north of the project site, but imposed a condition on the northern parcel that "no portion . . . should be developed except in conjunction with an overall solution to the drainage problems in the area whether located on or off said property." (RB2, K-5.) The applicant's site plan provided that drainage from half of the combined parcel, 0.160 square miles, would be directed to Long Swamp Brook, whose total watershed is 1.69 square miles; drainage from the other half, 0.167 square miles, would be directed across the road to Hop Brook, whose total watershed is 6.94 square miles.
Neither the initial nor revised application contained information on the amount of water that would run off the site after the development was completed. On September 27, 2001, Milone MacBroom requested that the applicant provide "a hydrologic and hydraulic analysis of the pre-and post-Development impacts of this project. Special attention should be focused on the potential impacts on Long Swamp Brook and Hop Brook. A computer model such as the Soil Conservation Service TR-20 program should be employed in this analysis." (RB1, D-7).
The record is not clear whether there is a distinction between "hydrologic" and "hydraulic" analysis.
What followed over the next five months was a series of exchanges between the engineers for the town and the applicant. The applicant provided data showing an increase in runoff to both Long Swamp Brook and Hop Brook from Douglas DiVesta, the senior project manager for the applicant's engineering firm, and from Donald Ballou, a professional engineer and, as recognized by both parties, the applicant's hydrologist. DiVesta's data showed more runoff from the site as a result of the development than Ballou's. Ballou explained that the difference resulted from DiVesta employing a computer model that is no longer recognized as valid, although it is adequate for planning the size of stormwater drains because it yields higher numbers than the model Ballou used; Ballou stated that the model he used is the current standard. In DiVesta's letters and his testimony at public hearings, moreover, DiVesta repeatedly made clear that the applicant was submitting and relying on Ballou's data as to the effect of water discharge from the site on Long Swamp Brook and downstream properties.
See Pl.'s Brief, p. 22: "The Applicant's hydrologist, Donald Ballou" and Def.'s Brief, p. 18: "Plaintiff's hydrologist, Donald Ballou, P.E."
In response to Milone MacBroom's September 27 request, DiVesta submitted data on November 1, 2001, based on an SCC TR-20 computer model, showing "a significant increase in the peak rate of runoff flowing to the two brooks." (RB2, 1-2, p. 2.) The data in his letter contains an obvious transposition of numbers that results in his analysis being incorrect, but the error is immaterial to this appeal because DiVesta later submitted different data based on a revision to the project in response to criticisms from the town's engineers The November 1 letter also stated that the peak rate of runoff from the site for both streams would occur at a different time than the peak rate of runoff for each stream: "the large time differential indicates that the two hydrographs would have different peaking times and therefore not creating a combining effect." (RB2, I-2, p. 3.)
Milone MacBroom then wrote on November 14, 2001, that "[t]he applicant's hydraulic calculations show a significant increase in flows from the site. The applicant's engineer has assumed that this increase in flow is proportionally small to the overall flow in Hop Brook and Long Swamp Brook, thus there will be no adverse impact. While this may be a valid assumption for some projects, it is inappropriate for this area due to the known flooding problems. No increase in the amount of downstream flooding should be acceptable . . . The applicant should determine the effect this development will have on the base flood elevation. A computer model such as HEC-RAS is the appropriate model in this instance." (RB2, J-1, p. 11.) The next day, William Root, who described himself as "senior environmental scientist" at Milone MacBroom, wrote a letter "re: Forest Walk — Wetland Comments" to the Middlebury conservation commission. Root's only specific comment regarding runoff was as follows: "The control of storm water discharge utilizing detention measures does not appear to be a component of the proposal. This may generate or aggravate local/regional flooding and requires in-depth analysis . . . The soils on site seem suitable for measures utilizing infiltration to reduce off-site impacts. The site is sufficiently large to accommodate such controls." (RB2, J2, p. 2.)
On November 19, 2001, after revising the site plans to redirect site runoff away from the wetlands, DiVesta submitted "a revised hydrology study" on behalf of the plaintiff. His letter again stated that the result was "a significant increase in the peak rate of runoff flowing to the two brooks." (RB2, I-3, p. 2.) For a 100-year storm, the new data showed 40.6 cubic feet per second (cfs) peak rate of runoff from the site into Hop Brook and 49.54 cfs into Long Swamp Brook, 1.93 percent increase in the total peak rate of runoff from the Hop Brook drainage area and 13.9 percent increase in the total peak rate of runoff from the Long Swamp Brook drainage area, and 1.88 percent increase in velocity "at this cross section on Hop Brook" and 7.10 percent increase in velocity "at this cross section in Long Swamp Brook." (RB2, 1-3, p. 2-3.) The large time differentials continued to show that the two hydrographs would have different peaking times, "therefore, not creating a combining effect" and "not combining to exacerbate flood flows." (RB2, 1-3, p. 3.)
At the public hearing on November 27, 2001, the applicant submitted two letters of that same date from DiVesta, each with attachments. One letter, contained in the record at RB2, I-6, stated that it was "offered in response to" William Root's November 15 letter, was specifically "addressing the engineering issue presented by Mr. Root," and that "our Environmental Analyst will respond to the other comments in a separate letter." This first letter stated that the applicant had revised its plans in response to Root's comments and to those of Milone MacBroom in its November 14 letter. It contained slightly different data: a 1.92 percent increase in the peak flow rate for a 100-year storm into Hop Brook with an increase in flow velocity of 1.92 percent. (RB2, I-6, p. 1.) For Long Swamp Brook, the letter stated that there would be "a 14% increase in the flow rate with an increase of 7.14% in the velocity." (RB2, I-6, p. 2.)
DiVesta's other letter, contained in the record at RB2, I-5, was "offered in response to the letter" from Milone MacBroom on November 14, 2001. In the section of the letter on "Hydrology/Storm Drainage/Floodplain," it stated: "Please see the attached letter and calculations prepared by Mr. Donald Ballou, P.E., dated November 27, 2001." Ballou's letter stated that it contained "computer printouts using the Corps of Engineers HEC-1 flood management modeling program." Ballou stated that, using the FEMA Flood Insurance Study 100-year discharges, he had evaluated "two models" generating inflow storm hydrographs for (i) "the 6.74 sq-miles Hop Brook watershed and the 10.67 acre (0.0167 sq-mile) project site area that discharges to Hop Brook and (ii) "the 1.69 sq-mile Long Swamp Brook watershed and the 10.25 acre (0.0160 sq-mile) project site area that discharges to Long Swamp Brook." The two generated storm hydrographs "are combined to produce a final composite hydrograph in the Hop Brook . . . [and] Long Swamp Brook at the downstream end of the project site." He found that there was an increase in water discharge of 1.3 cfs and .062 per cent into Hop Brook and 1.0 cfs and .145 per cent into Long Swamp Brook. He stated that "the percentage increase . . . is essentially too small to consider water surface profile evaluations using HEC-RAS," as had been requested on November 14 by Milone and MacBroom. "The reason is that [neither] HEC-RAS nor HEC-2 (both Corps of Engineers models) have the ability to model such small flow increases. A value of 0.01 feet on a water surface profile analysis is equal to one-eighth of an inch (1/8"). The flow increase percentages are so small that any attempt at water surface profile modelling [sic] woul[d], in fact, be ludicrous . . . [T]he effective flow increases in the watersheds are so insignificant as to be of no concern." (RB2, I-5, p. 2.)
On November 29, 2001, after having reviewed the November 19 letter from DiVesta regarding the revised plans and considered testimony from the November 1 public hearing, Milone MacBroom wrote that the "hydraulic analysis does not evaluate the effect this project will have on Long Swamp Brook or Hop Brook. A detailed analysis was completed for the project site only . . . The Applicant has stated that only a nominal increase in Hop Brook and Long Swamp Brook flows will occur. Any increase, even nominal, should be avoided considering the current downstream flooding problems." (RB2, J-5, p. 2.) The letter did not address the applicant's November 27 data described above, which apparently Milone MacBroom had not yet received, or address Ballou's testimony at the November 27 hearing (see footnote 12). On December 20, 2001, the applicant again submitted Ballou's November 27, 2001, this time in specific response to Milone MacBroom's letter of November 29. At the public hearing on January 30, 2002, Ballou repeated his findings but also further explained his methodology: "Now this was using a program called Tech One Corp. of Engineers floodwater management program. Generally, these hydrographs shall evaluate the nature of the soils in the shed, evaluate the nature and the time it takes water to travel from the uppermost point down to the exist and the watershed area. Then we use surface storm flows to generate those peaks . . . [T]hese flow differences are so small . . . that the computer program itself cannot generate a water surface profile . . . The methodology is just not that accurate or precise." (RB5, O-3, p. 20.)
On January 30, 2002, Milone MacBroom wrote another letter addressing water runoff from the development. It stated, in part, as follows:
3.1 The Applicant's hydraulic analysis shows an increase in the Long Swamp Brook and Hop Brook flows. Existing significant flooding problems are well documented. This documentation includes the testimony by downstream property owners at the wetland commission Public Hearing, a King's Mark report on the Woods Hill and Conton Drive Subdivisions and a 1991 hydrologic study of the flooding problems on Long Swamp Brook as prepared by Pare Engineering Corporation. This application should definitively demonstrate that there would be no net increase in downstream flooding. The information provided to date does not accomplish this.
3.2 The proposed site flows used in the hydraulic calculations for Hop Brook and Long Swamp Brook prepared by Donald T. Ballou, P.E. are lower than with the flows submitted by the Applicant's site engineers, Consultants Engineers, Inc. The flows presented by CE are 2.7 and 11.3 cubic feet per second higher. The use of the correct flows will result in a greater increase in flows in Long Swamp Brook and Hop Brook as the result of this project.
3.3 No documentation on how the time of concentration for Long Swamp Brook and Hop Brook has been calculated been calculated. The time of concentration used for Long Swamp Brook is inconsistent with that used in the detailed analysis prepared by Pare Engineering for the Town of Middlebury . . . The use of this time of concentration will result in a greater increase in flows in Long Swamp Brook than that which has been presented.
3.4 No documentation on how the time of concentration for on-site post-development flows have been calculated. The time of concentration for the site hydraulic analysis should be computed independently of the drainage system analysis.
(RB4, J-9, pp. 6-7.) An engineer retained by the commission testified at the public hearing that same night that "the increases in flooding of Hop Brook and Long Swamp Brook are a hazard to the health, safety and welfare of downstream residents." (RB5, O-4, p. 18.) He further stated that "if there is any increase where there is a historic flooding problem, that is something that needs to be addressed with either zero increase allowed, or a reduction in the flows for downstream residents." (RB5, O-4, p. 18.)
On February 15, 2002, the applicant's engineer wrote a letter responding "to comments prepared by Milone MacBroom dated January 30, 2002." In the section on "3.0 Storm Drainage/Hydrology," it stated: "3.1-3.4 Please refer to the letter and calculations prepared by Mr. Donald Ballou, P.E." (RB2, I-10, p. 2.) Ballou then wrote a letter dated February 18, 2002, responding to 3.1-3.4 of Milone MacBroom's January 30 Letter. Ballou also complained that Milone MacBroom had used an incorrect number for the time of concentration found by the PARE Report. From the court's own independent review of the PARE report it was impossible to determine if he was correct, for the test of the PARE Report did not address time of concentration, which must somehow be contained tables and graphs that would require expert analysis.
In response to these two letters, Milone MacBroom wrote the commission on February 28 that "[n]o hydraulic modeling to quantify the affect [sic] these increased flows will have on current flooding problems have been submitted to submit the applicant's conclusions. At this time, the Commission has not received enough data to enable them to evaluate the potential flooding impacts." The letter also stated that "the applicant should provide hydraulic calculations for all storm events, not just the 100-year storm." (RB2, J-10, p. 3.)
Ballou's letter of February 18, 2002, acknowledged that his analysis of site flows "are lower than those . . . prepared by the applicant's site engineer." Explaining technical differences in the two modeling methodologies, he stated that he had used "100 Type III rainfall distribution points," which he termed "generally the accepted standard," and that DiVesta had used "a computer model called Hydro-Cad that utilizes 240 Type III storm rainfall distribution points." lie said that using "240 points represents an increase in flow of 30 percent when compared to the use of 100 points." He then said that his analyses were undertaken "for different reasons than the Site engineers analyses. As a result, the onsite stormwater pipes may be larger than needed." Finally, he said that he served with Jim MacBroom of Milone MacBroom on a "Department of Environmental Protection Committee for the evaluation of `hydraulic modelling' by invitation since 12/1996, and that `[o]ne of the many issues discussed, and in this case resolved, is to use 100 Type III rainfall distribution points in synthetic hydrograph generation; also resolved was to cease using 240 points in the rainfall distribution analyses." (RB2, I-12, p. 2.)
For example, as noted in footnote 10, the November 27 DiVesta letter, which stated that it was "offered in response to the letter" from Milone MacBroom on November 14, 2001, specifically referred to Ballou's November 27 letter for responses to Milone MacBroom's criticisms regarding "Hydrology/Storm Drainage/Floodplain."
At the November 27 public hearing, the applicant's attorney stated that he had brought Doug DiVesta to "present to you the site plan and the proposal" and Don Ballou, "who will speak to you on the hydrological and drainage issues." (RB5, O-1, p. 11.) DiVesta spoke briefly and then said, "I'd like to ask Don Ballou to come up and explain the hydrology of the site and the two brooks that are discharging into our rivers." Ballou repeated the major data from his November 27 letter but also added that runoff from the site "represents about 1.8, 1.9%" of the 100-year flow coming down to Hop Brook and "5.9% of the 100-year flow coming down to Longswamp Brook." (RB5, O-1, p. 15.) In his letter of December 20, 2001, DiVesta again submitted Ballou's November 27, 2001, this time in specific response to Milone MacBroom's letter of November 29 criticizing DiVesta's November 19 letter regarding the revised plans.
DiVesta's February 15, 2002 response to the portions of Milone MacBroom's January 30, 2002 letter on "Storm Drainage/Hydrology" issues again specifically stated "Please refer to the letter and calculations prepared by Mr. Donald Ballou, P.E."
And at the final public hearing on February 28, DiVesta said that "I'll go through mostly the general sites plan information. Irving Chan and Don Ballou will go though their specific site engineering and drainage or hydrology." RB5, O-4, at 7. Later, after a town engineer had referred to DiVesta's November 19 data; see RB5, O-4, at 18; the applicant's counsel asked Ballou to address those comments. (RB5, O-4, p. 28.)
At the final public hearing open for evidence, both sides summarized the positions taken previously. A representative from the town's engineering company stated that, despite the applicant's position that the increase is small, "[w]e feel that if there is any increase where there is a flooding problem already, basically a historic flooding problem, we feel that is something that needs to be addressed with either zero increase allowed, or a reduction in the flows for downstream events . . . [T]he increases in flooding of Hopbrook and Longswamp Brook are a hazard to the health, safety and welfare of downstream residents." (RB5, O-5, p. 18.) Ballou stated that he had "followed procedures that are in the trade and that are acceptable for combining the upstream watershed and the site watershed." (RB5, O-4, p. 28.) He reiterated his previous assertion that "I've documented the very, very small increases." (RB5, O-4, p. 28.) He pointed out that he had, as requested by the commission's engineer, provided data for the 1-year, 2-year, 5-year, 10-year, 25-year, 50-year and 100-year storms in combining with site runoff.
Ballou also again explained why he claimed that the town's engineer had mis-analyzed the PARE report; but the court finds it difficult to determine which party is correct on this point, which apparently requires technical expertise to parse the data in the various reports.
The commission's resolution adopted at its next meeting stated in relevant part: "There is a substantial public interest in protection against danger to buildings and residents from adjacent and downstream flooding that is not met by Application III as follows: . . .
"1. The Commission has weighed the risk of injury and damage by flooding of future residents, neighbors, and down stream properties and determined that, absent a re-engineered plan for alternate drainage measures to reduce the peak increase in run-off from the site to zero, the evidence presented shows a compelling and substantial public interest in preventing losses due to flooding and in preventing any exacerbation of an existing serious flooding problem, and these interests, clearly outweigh the need for affordable housing . . ." (Commission Finding 2, RB1, F-15, Commission Resolution, p. 16.)
This court's first task is to determine whether the commission's decision on this ground is "supported by sufficient evidence in the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 717. "The sufficient evidence standard under the first prong of § 8-30g(g) requires the commission `to show a reasonable basis in the record for concluding that its decision was necessary to protect substantial public interests. The record, therefore, must contain evidence concerning the potential harm that would result if [the application were granted] and concerning the probability that such harm in fact would occur.'" AvalonBay Communities, Inc. v. Planning Zoning Commission, 103 Conn.App. 842, 846-47, 930 A.2d 793, 797 (2007), quoting River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26, quoting Kaufman v. Zoning Commission, supra, 232 Conn. 156. The court initially examines "whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted." River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26.
The court cannot dismiss this evidence as amounting to mere speculation. Given the location of the proposed development in a public watershed area, some of which is in a 100-year flood plain, its proximity to two waterways, the neighbors' reports of flooding problems, the 1981 restriction on the northern parcel, and the history of flooding reported in the PARE and Kings Mark reports, the record shows that the potential for harm by flooding is more than theoretical. In this case, "the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted." River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26. There is no doubt that flooding, and the consequent threat to life and property, is a substantial public interest that the commission may consider.
However, the affordable housing cases make clear that more is required: the commission must also show "a quantifiable probability that a specific harm will result if the application is granted." AvalonBay Communities, Inc. v. Planning Zoning Commission, 103 Conn.App. 842, 853-54, 930 A.2d 793 (2007), citing Kaufman v. Zoning Commission, supra, 232 Conn. 156; see also Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 597, 735 A.2d 231 (1999). The commission's engineers repeatedly stated, in letters responding to submissions by the applicant and in testimony at the public hearing, that public health and safety required no increase in water runoff from the site in order to avoid exacerbating flooding conditions off-site. The commission's engineers repeatedly criticized the applicant for not providing data to show the actual effect, and the commission repeated this criticism: "the Applicant has been asked to prove that there will be no increase in downstream flooding, but has not done so." (Commission Resolution ¶ 42d, RB1, F-15, p. 10.)
The November 14 letter from Milone MacBroom stated that "[t]he applicant should determine the effect this development will have on the base flood elevation." Its January 30, 2002, letter stated that "[t]his application should definitively demonstrate that there would be no net increase in downstream flooding. The information provided to date does not accomplish this." (RB2, J-9, p. 6.) Its February 28, 2002, letter stated that "no hydraulic modeling to quantify the affect [sic] these increased flows will have on current flooding problems have been submitted to submit the applicant's conclusions. At this time, the Commission has not received enough data to enable them to evaluate the potential flooding impacts." (RB2, J-10, p. 3.)
Nevertheless, the record shows that the applicant did provide expert opinion that any increase in runoff from the project site would not increase flooding downstream. First, the applicant's experts provided documentation that the peak runoff from the project site would not coincide with the time of peak runoff in either stream. In his letter dated November 19, DiVesta stated that "we compared the Time of Concentration (TC) of each portion of the site discharging to each brook . . . The large time differential indicates that the two hydrographs would have different peaking times and therefore, not creating a combining effect." (RB2, I-3, p. 3.) He further explained this in a letter dated November 27, 2001: "The Time of Concentration (TC) for the drainage shed needs to be compared to the site's TC. The Time of Concentration for the drainage shed is much longer compared to the site. Therefore, it is of the opinion of this office that site peak discharge without detention should reach the brooks prior to the drainage shed peak flow to avoid combining the two hydrographs." (RB2, I-6, p. 3.)
Earlier in that letter, and in previous letters before the project revision addressed in this letter, DiVesta had explained that he compared the tine of concentration from the project site to each stream with the time of concentration of each waterway's drainage shed: e.g., as relates to Hop Brook: "The flows to the two brooks should be compared to the peak flows of Hop Brook and Long Swamp Brook . . . The Hop Brook peak rate of runoff for the cross section nearest our discharge point is 2,106 cfs compared to a revised flow of 40.6 based on SCS tr-20 drainage model. Next the Time of Concentration (TC) should be compared, the Hop Brook drainage shed TC is 2.7 hours compared to 0.18 from the site. As one can see, the large time differential indicates the two hydrographs should have different effects; therefore, not creating a combining effect." (RB2, I-3, p. 2.)
Next, the statement of the town's engineer that the applicant had not provided "hydraulic modeling to quantify the effect these increased flows will have on current flooding problems"; see footnotes 15 and 19 of this decision, infra; is not exactly correct. On November 14, Milone MacBroom wrote that "the applicant should determine the effect this development will have on the base flood elevation. A computer model such as HEC-RAS is the appropriate model in this instance." (RB2, J-1, p. 1.) In specific response to that request, on November 27, the applicant submitted Ballou's November 27 letter. Ballou's letter stated that he had used the "Corps of Engineers HEC-1 flood management modeling programs." In response to Milone MacBroom's request for the HEC-RAS model, he stated that "[t]he percentage increase for either shed is essentially too small to contemplate water surface profile evaluations using HEC-RAS . . . [Neither] HEC-RAS nor HEC-2 (both Corps of Engineers models) have the ability to model such small flow increases. The flow increase percentages are so small that any attempt at water surface profile modelling woul[d], in fact, be ludicrous." (RB2, J-5.)
The commission's findings of fact and its stated reasons for denying the application acknowledged that it had received conflicting opinions on this issue: the town engineer stating that there should be no increase in water flowing off the site and the applicant's engineers stating that the amount of increase was so small as to be inconsequential. The commission did not formally or expressly adopt either of the conflicting expert opinions, but appears to have decided to reject the application because it had conflicting opinions on the effect of the development on downstream flooding and one of those opinions stated that the site would "result in a substantial increase in the peak flow from the site" and that any increase would exacerbate "an already critical flooding condition."
"The Commission had uncontradicted reports of serious flooding and conflicting expert reports on the impact of the development on the flooding conditions in abutting Long Swamp Brook. The Commission's engineering consultants testified and stated in their reports that the project would increase the flow in already flooding conditions thereby making the problem worse." (Finding of Fact 42, RBI, F-15, Commission Resolution, p. 10.)
"Although there is conflicting expert testimony, the independent engineering review of Milone MacBroom advises that the execution of the plan will result in a substantial increase in the peak flow from the site; further they advise that even if the percentage is small compared to the volume of the Brook, because the increase exacerbates an already critical flooding condition, it is unacceptable . . ." (Statement of Reasons ¶ 3d, RB1, F-15, Commission Resolution, p. 18.)
Since the commission's resolution refers more frequently to the views of the town's engineer than to those expressed by Ballou, one might assume that the commission had adopted the opinions of the town engineers. In view of the length and detail of resolution, which is 26 pages long and contains almost 250 paragraphs and 15,000 words, and its detailed findings and reasons on the flooding issue in 48 paragraphs, however, one cannot reasonably infer that the commission meant or intended anything more than it actually said.
The commission's findings and reasons on the flooding issue are replete with references to the applicant's acknowledgment that the development would increase the amount and velocity of water discharging from the site, but the record is absolutely devoid of any evidence that such an increase, whether one uses DiVesta's or Ballou's data, would increase or exacerbate the flooding conditions. The record shows that the twenty acres of the site to be developed would discharge half of its runoff to Hop Brook and half to Long Swamp Brook. The ten acres discharging to each waterway are only a small fraction of the total watershed discharging into each stream — 0.167 square miles discharging into the 6.94 square mile Hop Brook water shed, and 0.160 square miles from the development discharging into the 1.69 Long Swamp Brook water shed. They thus contribute only a small portion of the total water discharging into both streams at the point of discharge. (According to DiVesta, the project would discharge 1.94 percent of the water flowing into Hop Brook and 7.14 percent of the water flowing into Long Swamp Brook or, according to Ballou, 1.8 percent of the water flow "at the downstream end of the project site into Hop Brook and 5.5 percent into Long Swamp Brook.)
DiVesta's November 27, 2001, letter responding to William Root's letter of November 15 stated that the "the 100-year flow rate is 2,098.6 cfs . . . compared to the runoff generated from the site for a 100-year storm, which is 40.6 cfs." (RB2, I-1, p. 1.)
Ballou's November 27 letter states that the "FEMA Site Discharge" for a 100-year storm was 2107.6 cfs for Hop Brook and 691.6 cfs for Long Swamp Brook, figures which included "project site discharge" after development of 37.9 cfs for Hop Brook and 38.1 cfs for Long Swamp Brook." (RB2, I-5, p. 1.)
Finding 42i of the commission resolution states that "Donald Ballou, P.E. for the [a]pplicant testified that the project will cause an increase in downstream flooding" but this statement is palpably wrong. Although the commission is the finder of fact, it cannot find facts for which there is no support in the record. That particular finding refers to a portion of the February 28 public hearing when Ballou was asked by a member of the public whether there would be "an increase in flooding." He began his answer by saying "there would be an increase in flow" (emphasis added), but the record shows that he was then cut off by the meeting chairperson, who prevented Ballou from providing his full answer by asserting that Ballou had answered the question. Review of the full quotation of the relevant portion from that hearing, set forth in the margin, shows that Ballou neither stated nor even implied that there would be any increase in flooding, only an "increase in flow," which he said at that meeting and in his letters was so small as to be inconsequential.
This quotation begins immediately after Ballou had stated that "I've documented the very, very small increases."
Mrs. Culkin [Member of the public and owner of property near Long Swamp Brook and directly east of the northern portion of the Development site] — Well, when you say
Chairman — Excuse me, address through me. Her question specifically was, are you saying, she is saying, when you clear the site, you are now saying that there will be an increase to the flooding problem that was demonstrated on her tape, I think that is what I just heard you say.
Mr. Ballou — Without question, from the site, there is going to be an increase in flow, whether it's a fifth —
Chairman — That answers her question. Her question was, will there be an increase?
Mrs. Culkin — And that will really, I am a lay person, but I live next to this body of water and I would miss this flooding before
Chairman — And he answered that question and he answered it.
Mrs. Culkin — Ya, O.K.
Chairman — He agrees with you.
(RB5, O-4, pp. 22-23.)
There is thus no evidence in the record establishing the probability, or a quantifiable probability, that the increase in runoff from the project would increase flooding or affect the health or safety of the public. Protection of life and property from flood is without question a substantial public interest that may legitimately be protected by land use restrictions to control flood hazards; see Vartelas v. Water Resources Commission, 146 Conn. 650, 657, 153 A.2d 822 (1959); but there is no evidence here of either the nature or extent of the harm to which the downstream owners would be exposed or that such harm is at all probable.
The court must next "conduct a plenary review of the record in order to make an independent determination of this issue" of whether the commission's decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider. See Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 727. The town's engineering firm made two statements that the court must assess and weigh in balancing the substantial public interest in preventing flood damage to life or property against the need for affordable housing. First, the town engineers stated that Ballou's data on the amount of water runoff were incorrect, thereby implying that DiVesta's data showing greater increases in discharge into Hop Brook and Long Swamp Brook were the correct data; but the town's engineer never provided any basis for such statements. There is absolutely nothing in the record to explain why Milone MacBroom asserted that DiVesta's data were correct or to support their assertion to that effect. Moreover, after Milone MacBroom began asking for data about the effect of project site runoff on Hop Brook, Long Swamp Brook, and downstream flooding, the applicant's engineer consistently submitted Ballou's data to address those issues, and the applicant obviously intended to present Ballou's data as the correct data on this issue. Milone MacBroom never replied to or rebutted Ballou's explanation as to why the computer model he used was the correct one and regarding accepted methodology for analyzing the effect of the project on Hop Brook and Long Swamp Brook.
For instance, in its letter of January 30, 2001, Milone MacBroom stated: "The proposed site flows used in the hydraulic calculations . . . prepared by Donald T. Ballou, P.E., are lower than with the flows submitted by the Applicant's site engineers . . . The use of the correct flows will result in a greater increase . . ." (RB2, J-9, p. 6.)
Second, Milone MacBroom and the commission both insisted that any increase in water runoff from the site, because it "exacerbates an already critical flooding condition, is unacceptable." (Finding 3d, RB1, F-15, Commission Resolution, p. 18.) This statement is premised on what the commission and Milone MacBroom referred to as "a long history [of] adjacent streambelt and downstream flooding of both Hop Brook and Long Swamp Brook." (Finding 41, RB1, F-15, Commission Resolution, p. 9.) Although the applicant's brief and its expert Ballou dispute the documentation of prior flooding, the court has reviewed the record closely and finds that there was sufficient evidence of past flooding to warrant commission concern. The videotape of flooding on Long Swamp Brook during the same summer that the applicant submitted its application was dramatic evidence of how much Long Swamp Brook can expand and how fast the water can flow during rain storms. The commission was entitled to take into consideration its knowledge of the reason it had imposed limitations on use of the northern parcel when it approved the senior housing project north of Forest Walk. What the commission lacked, however, was any basis for concluding that the increase in water flow from the project site would increase those flooding conditions. Ballou suggested that such an increase would be as little as one-eighth of an inch; as the neighbor Calkin stated, one-eighth of an inch could be very deadly if it raised the water level from the bottom of the lip to cover the nose, but, employing her same analogy, it is equally true that a one-eighth inch increase could be relatively inconsequential if it raised the water level upward from mid-ankle, or mid-knee.
As Ballou correctly pointed out, moreover, the PARE and Kings Mark reports were directed at very specific issues: flooding at a particular downstream culvert off Tower Road in the Hop Brook watershed and flooding on Porter Avenue just east of the project in the Long Swamp Brook watershed. The PARE report made specific suggestions for how to reduce the flooding, but there is no evidence that any of these were ever adopted; and there is no reason why the commission could not have imposed the condition that the applicant implement one or more of those measures, the least expensive of which was estimated in 1991 to cost approximately $20,000 and would have reduced water flow by slightly more than the increase set forth in DiVesta's data.
The PARE report estimated that the cost of its three recommendations ranged from $21,000 to $290,000 (in 1991 dollars) and would reduce peak flows by between 8 percent and 26 percent. See footnote 12 of this decision, supra. DiVesta's letter of November 21, 2001 (written to address environmental concerns raised by Milone MacBroom's environmental scientist William Root) stated that the 100-year flow at the project site's discharge onto Long Swamp Brook was 691.4 cfs, and that "the runoff generated from the site for a 100-year storm . . . is 49.4 cfs" (RB2, I-6, p. 2.) Adopting the least expensive of the measures recommended by the PARE report would reduce Long Swamp Brook's peak floor at the discharge point by eight percent, or 55.3 cfs, or more than would be contributed by the project, even using DiVesta's data, thereby resulting in a net decrease in Long Swamp Brook's peak flow.
The applicant correctly points out in its brief that the two eastern parcels of land on which the development would be constructed are already zoned for homes on lots with a minimum size of 40,000 square feet. (Regulations, § 11.1; RB3, L-4.) Several homes could be built as of right, upon the granting of building permits, on the 32.25 acres of the applicant's property east of Regan Road. Nothing in the town's zoning regulations would require those properties to reduce downstream flooding or not to increase water runoff from the site. The commission has not shown that the plaintiff's application presented any "special danger" not already in existence.
Although there is, as stated above, evidence showing more than a theoretical possibility of harm by flooding from this development, the record lacks substantial evidence showing the actual likelihood of harm, and, thus, from the court's own review of the record, the court cannot find that the commission has sustained its burden to show that its decision was "necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider," as required by § 8-30g(g)(1)(A) or that the legitimate public interest in protecting against flooding clearly outweighs the need for affordable housing, as required by § 8-30g(g)(1)(B). The court thus determines, after its own thorough and plenary review of the record, that the commission has not met its burden under § 8-30g(g)(1)(B) of proving that the public interest in health and safety represented by the legitimate need to prevent flood damage to life or property clearly outweighs the need for affordable housing and that such public interests could not be protected by reasonable conditions to the applicant's proposal.
4. Denial based on parking plans
The fourth reason given by the commission for denying the application was based on the roadway and parking plans submitted by the applicant. The commission claimed that there were not enough parking spaces for the number of people that the commission's engineers projected would live in the development and that too many parking spaces were located too far from the buildings where residents would live. The commission claimed that, as a result, residents and visitors would (i) park on roadways, thereby impeding access for emergency vehicles or (ii) park on natural or landscaping areas, thereby "circumvent[ing] the proposed protection of the neighboring brooks provided by Vortechnic storm water structure . . ." (Reason 3i, RB1, F-15, Commission Resolution, p. 18.) The commission argues: "The record shows that the roadways are subject to obstruction for emergency vehicles because of in sufficient parking spaces and long walking distances to parking lots that will force cars onto the road in a community with a dense population . . . Relying on its expert's recommendations, the commission found that the proposed plan presents a significant lack of parking that when coupled with the distance of parking from residences, the narrow roadways and density of the development resulting in inadequate emergency access or fire and emergency vehicles, particularly during winter conditions . . ." (Def.'s Br., pp. 46-47.)
The revised application proposed to provide 589 parking spaces for 286 residential units containing a total of 650 bedrooms. This number of parking spaces complies with the town's own zoning regulation requiring "two (2) parking spaces for each family or dwelling unit." (Regulations § 62.3.1, RB3, p. 1.) (Although the town's zoning regulations do require more spaces for its planned residential development overlay zone, two spaces per residential unit plus one-half additional space per unit for visitors; see Regulations § 22.9.4, RB3, p. 1; the PRD regulation did not, on its face, apply to the applicant's development).
In its letter of November 29, 2001, contained in the record at RB2, J-5, p. 4, Milone MacBroom initially recommended compliance with the PRD requirement. But Milone MacBroom changed that recommendation in a letter dated January 30, 2002. That letter stated that the town's engineering consultants had reviewed a study of parking spaces in AvalonBay properties and parking requirements in five other Connecticut communities and now recommended that the applicant's development needed seventy-five additional parking spaces. The January 30 letter said that the study of AvalonBay properties reported a range of between 0.59 and 1.97 parking spaces per residential unit. (RB2, J-9, p. 4.) Milone MacBroom wrote that applying the higher Avalon rate of 1.97 spaces per unit "seems appropriate when determining potential developmental impacts," and would lead to a projection that "the number of parking spaces for this development would be between 565 and 575 spaces . . . This seems like a reasonable number of spaces at first glance. However, since this project is not conveniently located on a mass transit line, it is expected that the majority if not all of the units would have at least two vehicles and likely more for the three-bedroom units." (RB2, J-9, at 7.) The January 30 letter said that the regulations of five other Connecticut towns, if applied to the plaintiff's application, would require between 572 parking spaces (if using Meriden regulations) or 735 (if using East Hartford regulations). Milone MacBroom then concluded, using the average of those towns' zoning regulations, that the applicant should provide an additional 75 parking spaces, and the commission cited this recommendation in its conclusion that "an inadequate number of off-roadway spaces" would create "emergency access safety problems as a result of residents and their guests parking along the roadways . . ." (Reason 4e, RB1, F-15, Commission Resolution, p. 20.)
Milone MacBroom also tried to limit the applicability of the AvalonBay data by stating that the study it cited had indicated that most AvalonBay properties were located near public transportation, but the applicant's engineer refuted that statement in a letter of February 15, 2002 ("Milone MacBroom cited a report prepared by Barken Mess Associates in June and July 2001 for Avalon Bay Communities, Inc. A follow up of Barken Mess will indicate the report was done on a number of Avalon sites most of which are not served by general mass transit." [RB2, I-10, p. 3.]) The record does not provide a basis for resolving this disagreement.
Ensuring adequate access to the development for emergency vehicles is a legitimate issue of public safety that the commission could reasonably consider. While the concerns raised by Milone MacBroom pass the first level of inquiry as not merely theoretical, the evidence before the commission as to the number and location of parking spaces did not establish a reasonable or quantifiable probability of the potential harm. The concerns stated by Milone MacBroom were not supported by any actual study of parking utilization, but merely a review of regulations in other towns — at least one of which the applicant satisfied — and a review of parking provided in certain other developments. Whether and why that parking in other developments had proven adequate or inadequate was not analyzed. Whether the parking space requirements of Middlebury's own zoning regulations, or those of Meriden, would or would not be adequate was not analyzed. Instead, the Milone MacBroom letters contain unsupported speculation and conjecture — for example, (i) that the majority of units would have at least two vehicles and probably more for the three-bedroom units, an assertion for which Milone MacBroom provided no basis, and (ii) that it was appropriate to require Forest Walk to provide parking spaces meeting the average number of spaces required in the zoning regulations of the five towns that Milone MacBroom had examined. The commission's concern about the location of parking, on the other hand, was a legitimate one, but should have been addressed by imposing a reasonable condition that the applicant impose and enforce a no-parking ban outside designated parking spaces.
The plaintiff correctly argues that a zoning commission cannot impose conditions that exceed the standard contained in its own zoning regulations; see Westport v. Norwalk, 167 Conn. 151, 155 (1974); but here the town had also adopted a zoning ordinance for its planned residential development (PRD) overlay requiring one parking space per bedroom plus one-half space per residential unit. See zoning regulations, 29.75, which would require 793 parking spaces in this instance. Because the commission reasons are speculative and not supported by evidence in the record, the court need not determine whether the PRD parking space requirements, though not directly applicable to the applicant's project, vitiate the applicability of Westport v. Norwalk.
5. Denial for inadequate fire safety because of lack of water, inadequate parking, and narrow interior roadways
The commission's next reason was based on inadequate fire safety. Two of its bases for this reason — lack of water and inadequate parking — should have been dealt with by imposing the conditions described above. The remaining basis was the commission's statement that the interior roadways, some of which were designed to be eighteen feet wide, were too narrow. At the last public hearing, a town representative indicated that twenty-foot wide roadways would address this issue, and a spokesperson for the applicant stated the plaintiff's willingness to make this change. (RB5, O-4, p. 32.) In its brief, the defendant makes the reasonable point, however, that "this road increase could further affect the increase of the peak flow from impervious surfaces on the site." (Def's Br., p. 19.) There was sufficient evidence in the record to show that the amount of impervious surface in the development could affect storm water control and water discharge from the site. This basis for the denial should have been addressed by a condition that the plaintiff submit revised plans showing the wider roadways and the effect of that change on storm water control and water discharge from the site.
In its brief, the defendant also claims that the applicant did not respond to reasonable inquiries from the town fire marshal about "water supply, pressure and flows and without this information, he cannot complete his review." (Def.'s Br., p. 23.) It is true that the fire marshal wrote such a letter on December 18, 2001, but the record shows that the applicant responded to that request and never received further inquiry or criticism from the fire marshal. See (i) RB2, I-3, a letter from the applicant's engineer to the commission on November 19, 2001, stating that site plan revisions include "additional fire hydrants at the request of the Fire Marshal"; (ii) RB5, O-3, p. 8, a statement by the applicant's engineer during the public hearing on January 30, 2002, that he discussed all of the information with the fire marshal on January 28, 2002, "faxed him the information that he was looking for," revised the plans to add additional hydrants requested by the fire marshal and that "those are the requirements he had asked for, in terms of hydrants and sprinkler connections and we did provide . . . load calculations for the sprinkler system;" and (iii) RB1, D-27, a letter from the commission to the fire marshal referring to testimony of the applicant's engineer at the January 30, 2002, public hearing that the plans faxed to the fire marshal "should satisfy the issues you raised" and asking that "[s]hould you have additional comment, please let us know" prior to next hearing date.
6. Denial to protect wetlands and watercourses
The Middlebury conservation commission denied a wetlands permit to the applicant, and the planning and zoning commission stated that it had considered "the rationale of the conservation commission in denying a wetlands permit and finds that the reasons stated in the denial resolution are valid concerns in protecting the public interest in the wetlands and watercourses." (Reason 8d, RB1, F-15, Commission Resolution, p. 24.) Although a zoning commission cannot deny an affordable housing application merely because of the denial of a wetlands permit, it is allowed to consider the reasons of a coordinate commission for such a denial, even while remaining bound by the standards of § 8-30g. "[T]he report of a conservation commission is not binding on a planning and zoning commission in the affordable housing context, where the burden is on the planning and zoning commission to weigh the potential harm to the wetlands against the town's need for affordable housing and to provide persuasive legal and policy reasons that the subdivision application should be denied." Carr v. Planning Zoning Commission, 273 Conn. 573, 599, 872 A.2d 385 (2005).
Among the reasons cited by the conservation commission, which were fairly summarized in the defendant's brief, were the following: "1) Significant and direct impact of the point discharges into Hop Brook and Long Swamp Brook; failure of applicant to provide a plan for or guarantee proper maintenance for the Vortechnic structures; 2) Due to the existing . . . downstream flooding conditions, the proposed increase in storm water run-off is unacceptable; 3) The impact on wetland areas by metals, oils, grease, salts and temperature cause from the large impervious surface proposed; 4) Failure to provide removal efficiency calculations to meet CTDEP requirements; 5) Hop Brook and Long Swamp Brook are major high quality perennial watercourses classified by the CTDEP as Class A and Class B/A) to which Applicant has not provided storm water renovation measures to meet water quality standards; 6) Failure to meet best management practice of DEP Fisheries Division by providing 100 feet along a perennial watercourse to preserve water quality and promote fishery habitat. RB1, G-3 p. 7-9." (Def.'s Br., pp. 19-20, 65.)
The conservation commission based its denial in part of the risk of increased downstream flooding that this court has already found did not establish a basis for denying the affordable housing application. The defendant commission was rightly concerned about possible pollution from the sewage system, but the plaintiff has agreed that a reasonable condition would be to require any sewage disposal system, whether by public sewer or private septic system, meet "all of the local WPCA as well as the State DEP requirements"; (Pl.'s br., p. 15); and such a condition should have been imposed. There was no evidence in the record, other than the conservation commission's denial, to support any concern about the adequacy of the maintenance plan for the Vortechnic structures or the other reasons given by the conservation commission. The defendant's decision shows no weighing of the interests for which the conservation commission denied the wetlands application against the need for affordable housing. Thus, the court concludes that the defendant did not show either a sufficient reason on this ground for denying the application or that any interests it considered clearly outweighed the need for affordable housing, other than the concern regarding possible pollution from the sewage system, which could reasonably have been accommodated by a condition of meeting local and state DEP requirements.
7. Denial because of environmental and safety risks resulting from the density of the proposed development
One of the specific reasons given by the commission for denying the plaintiffs affordable housing application was its density: "The density, when coupled with the environmental and safety risks of the project, is an appropriate basis for denial . . ." (Reason 9, RB1, F-15, Commission Resolution, p. 25.) "While density alone is not a basis for denial of an affordable housing development, there is a rational limit to the density the marginal Application property can support where the property is within and adjoining a 100-year floodplain, contains ledge, wetlands and steep slopes, is subject to chronic flooding and is without the availability of public water and sewer." (Reason 9d, RB1, F-15, Commission Resolution, p. 25.) This reason merely restates concerns addressed in the commission's other reasons. The flooding, water, and sewer issues have been already addressed elsewhere in this decision. Density greater than permitted by the town regulations or locating the development on land not town designated in the town regulations for affordable housing did not provide an independent basis to deny the application. There was not sufficient evidence in the record to support this reason.
8. Denial because the affordable housing application designated the municipal zoning officer to administer the plan's affordability provisions
The town also objected to the applicant's designation of the town's zoning officer to administer the plan's affordability provision as a conflict of interest, but its brief acknowledges that this issue "could be accommodated by revisions to the Affordability Plan and is amenable to a conditional approval." (Def's Br., p. 69.) At oral argument, the applicant agreed to amend this portion of its plan. This issue should have been addressed by a condition that an officer or employee of the entity that manages the Forest Walk development be responsible for administering the plan's affordability provisions.
9. Denial based on provisions of the applicant's draft zoning regulation
The remaining reasons given by the town related to its strenuous objection to many provisions contained in the applicant's draft zoning regulation. The draft regulation proposed a new Section 27 of the Middlebury zoning regulations (regulations) and a new "Affordable Housing Zone." (RB1, A-2, A-4.) Among the commission's objections were lack of meaningful standards regarding excavation, failure to require a traffic review, administrative approval of affordable housing developments without necessity for a public hearing and "without review of any site-specific concerns regarding the impact on the environment including the terrain and soil types, the infrastructure, the neighborhood, and natural resources." (Def.'s Br., p. 54.) It set no standards for drainage, sedimentation or flood control.
The specific project before the court in this proceeding shows the wisdom of many of the commission's concerns. The property has numerous slopes, contains and borders on wetlands, abuts properties where there has been flooding in the past, and the development will require substantial excavation. Eighty-five percent of the eastern parcel would be clear-cut of trees and vegetation and 50 percent of the site would ultimately be covered by buildings, roadway and impervious surface. The applicant would need to move 146,000 cubic yards of earthwork and remove 90,000 cubic yards of earth material from the site to build the development. The plaintiff estimated that it would require 5625 sixteen-yard dump truck loads during three years of construction to remove the 90,000 cubic yards of material.
The court has reviewed the proposed zoning amendment and agrees with the commission that it is rather "bare bones." Moreover, it contains numerous provisions that are less stringent than those proposed in the applicant's plans — such as only one parking space per dwelling plus one visitor space for every eight units and no provisions for an adequate water supply or for adequate maps of the proposed development. At oral argument, the plaintiff essentially conceded that its draft regulation is inadequate and suggested that the appeal could nonetheless be sustained except with regard to the regulation, or conditionally upon submission of a revised regulation with more detailed standards regarding excavation or adopting the excavation standards of the existing town regulation.
The court finds that the commission had sufficient reason to reject the proposed zoning regulation, that a substantial public interest lies in regulations adapted to protecting the health and safety of town and neighboring residents, that such a public interest clearly outweighs the need for affordable housing, but that reasonable changes could have been made to the plan by submission of a revised regulation tailored to the specific development proposed here.
IV CONCLUSION
The court has thoroughly reviewed the entire record of the proceedings before the commission and carefully considered each of the commission's reasons for denying the plaintiff's application. Since one of those reasons was sufficient under the standards for affordable housing appeals, the action is therefore dismissed.