Opinion
LNDCV156059519S
04-08-2016
Garden Homes Management Corp. et al. v. Milford Planning and Zoning Board et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
I
The plaintiffs, Garden Homes Management Corporation (corporation) and Garden Homes Residential, L.P. (partnership), appeal from a decision of the defendant, the Milford planning and zoning board (board), denying their special permit and site plan application to construct an affordable housing development (application). Pursuant to General Statutes § 8-30g, the plaintiffs seek to construct a 257-unit residential development on an approximately 7.4-acre parcel known as 460 Bic Drive in Milford in the office district (OD) zone. (Return of Record [ROR], Item 1; Items 12-13.) The property is bounded on the north by Bic Drive and on the east by Naugatuck Avenue. (ROR, Item 1.) A fifty-foot-wide easement for a gas transmission line of the Iroquois Gas Company (Iroquois) encumbers the west side of the property and then traverses the southern boundary of the property. (ROR, Item 1; Item 15, p. 13.) The property is described as irregular with steep slopes along Naugatuck Avenue. (ROR, Item 1.) The only proposed access to the site is from Bic Drive. (ROR, Item 1.) The 257 units will be constructed in one four-story building and will consist of 194 one-bedroom units and sixty-three studio units and 322 parking spaces will be provided with 140 in the lower level of the building and 182 surface parking spaces. (ROR, Item 1.)
Section 8-30g applies if less than 10 percent of the dwelling units in the municipality meet the statutory criteria for affordable housing. General Statutes § 8-30g(k). In the board's brief, it concedes that 6.05 percent of Milford's housing stock qualified as affordable under the statute in 2012. The 2014 list of non-exempt municipalities, attached to the plaintiffs' brief as exhibit B, reflects that Milford's affordable housing stock decreased to 5.48 percent. Milford has prepared a plan, entitled " Consolidated Plan for Housing and Community Development 2011-2014, " to address its desire to provide more affordable housing. (ROR, Item 13, pp. 149-64, 165-75, 178-79, 182-85.)
Attached to the plaintiffs' brief as exhibit C, § 3.5 of the Milford zoning regulations provides that the OD zone allows " any building or use permitted in an one-family residential district" with certain exceptions.
The board conducted a public hearing on January 20, 2015, February 3, 2015, and February 17, 2015. (ROR, Item 15; Item 25; Item 41.) On April 7, 2015, the board voted to deny the application and notice of the decision was published on April 16, 2015, in the Milford Mirror . (ROR, Item 49; Items 52-53.)
The board initially rejected the plaintiffs' application on July 1, 2014, and they filed an appeal; Garden Homes Management Corp. v. Planning & Zoning Board, City of Milford, Superior Court, land use docket at Hartford, Docket No. LND CV-14-6053528-S; but withdrew it with this court's approval on September 4, 2015. Number 14-217, § 122, of the Public Acts of 2014 imposed a one-year moratorium on affordable housing applications for towns with affordable housing stock falling between 6 to 10 percent, which included Milford. (ROR, Item 39.)
The chairperson of the board stated, " I will simply say having been on this Board for a while I know what's going to happen at the court level and whether or not you like 8-30g this application, in my opinion, satisfies statutory requirement[s] so I'll be voting against the motion." (ROR, Item 29, p. 5.) Several denials of § 8-30g applications have come to this docket from this board in a relatively short time frame. See, e.g., Seaview Cove, LLC v. Planning & Zoning Board, City of Milford, Superior Court, land use docket at Hartford, Docket No. LND CV-16-6065739-S (to be argued); Milford Developers, LLC v. City of Milford Planning & Zoning Board, Superior Court, land use docket at Hartford, Docket No. LND CV-15-6062796-S (to be argued); Bella Properties Milford, LLC v. Planning & Zoning Board of the City of Milford, Superior Court, land use docket at Hartford, Docket No. LND CV-14-6051876-S (appeal withdrawn); Colberg, LLC v. Planning & Zoning Board of the City of Milford, Superior Court, land use docket at Hartford, Docket No. LND CV-14-6052509-S, (June 29, 2015, Berger, J.), on appeal, Docket No. A.C. 38714; Milwood Properties, LLC v. Planning & Zoning Board of the City of Milford, Superior Court, land use docket at Hartford, Docket No. LND CV-13-6048506-S (appeal withdrawn).
The plaintiffs commenced this appeal on May 1, 2015. On July 1, 2015, the intervenors, MDC Milford Associates, LLC (MDC), and Northeast Electronics Corporation (NEC), moved to intervene in the appeal as abutting property owners. Their motion was granted by this court on September 4, 2015. See General Statutes § 8-8(a)(1) (" 'aggrieved person' includes any person owning . . . that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board"). The board filed an answer on July 27, 2015, and the return of record on August 28, 2015. On October 2, 2015, the board and the intervenors filed their briefs; the plaintiffs filed their brief on November 9, 2015; and the intervenors filed a brief in reply on November 20, 2015. The court heard the appeal on January 28, 2016, and the plaintiffs filed excerpts of Milford's zoning regulations on February 9, 2016.
On February 29, 2016, the intervenors filed a motion to dismiss the appeal on the grounds of lack of subject matter jurisdiction based upon lack of aggrievement. The plaintiffs filed a memorandum of law in opposition on March 23, 2016, and the intervenors filed a memorandum in reply on April 1, 2016. On April 4, 2016, the court heard argument.
II
As the corporation was the unsuccessful applicant, this court found on January 28, 2016, that it was aggrieved under General Statutes § 8-30g(f), which provides that " [a]ny person whose affordable housing application is denied . . . may appeal such decision pursuant to the procedures of this section . . ." Additionally, on January 28, 2016, the plaintiffs submitted, without objection from the other parties, an affidavit of Richard K. Freedman, the president of the corporation. According to the affidavit and attached deeds, the corporation is the general partner of the partnership. The corporation received title from BIC Consumer Products Manufacturing Co., Inc., on April 4, 2013, and then conveyed it to the partnership on December 5, 2013. The partnership has owned it since then, throughout the administrative process, and owns it presently.
After these undisputed facts and the appeal were heard by the court, the intervenors moved to dismiss the appeal arguing that the plaintiffs lack standing and are not aggrieved because the corporation does not own the property and the partnership was not the applicant. The intervenors cite Trimar Equities, LLC v. Planning & Zoning Board, 66 Conn.App. 631, 785 A.2d 619 (2001). In Trimar Equities, the court upheld the trial court's finding that the plaintiff did not have standing because an assignment of the contract for purchase of the property was void. Id., 633. The original contract required that any assignment of the contract be agreed to by all of the owners, but the assignment was only signed by one of the owners. Id. These are not the facts in the present case and Trimar Equities is not controlling.
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . .
In Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 663, 671, 899 A.2d 26 (2006), the commission asserted that the property owner, a general partnership with three partners, was not aggrieved arguing that " a property owner must have been either an applicant before the commission or a partner in the proposed project in order to establish aggrievement." The court rejected that argument and held that " [t]he case law suggests that any such argument would be without merit." Id., citing Bossert Corp. v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968).
In the present case, the intervenors make the same argument as in Moutinho and the court agrees that this argument is without merit. The partnership consists of the corporation as general partner and Freedman as the sole limited partner according to the affidavit attached as exhibit e to the plaintiffs' memorandum of law in opposition to the motion to dismiss. Also according to this affidavit, Freedman is the president of the corporation and the application was filed at his direction and with his consent as the sole limited partner of the partnership. Based on these uncontested facts and as the partnership owns the property, it is aggrieved. See Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 527, 119 A.3d 541 (2015) (" [i]t is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner"); RYA Corp. v. Planning & Zoning Commission, 87 Conn.App. 658, 670, 867 A.2d 97 (2005) (" As an expressly consenting landowner, [the landowner] has a specific, personal and legal interest in an application for improvement of its property. As a consequence, it had a colorable claim of direct injury [that it had] suffered or [was] likely to suffer, in an individual or representative capacity . . . No more is required." [Citation omitted; internal quotation marks omitted.])
Additionally, the motion seems untimely. Several times at oral argument on the motion to dismiss, the court asked the intervenors' counsel why they could not have asserted the lack of aggrievement when the appeal was heard by the court, i.e., what had changed from the time of the appeal before the court to the time they moved to dismiss. No facts were unknown to or disputed by the intervenors and the caselaw relied upon by the intervenors is not new.
The corporation and the partnership have the same phone number and address according to the cover page of the plaintiffs' application found at Exhibit C attached to the plaintiffs' memorandum of law in opposition to the motion to dismiss.
Further, " [s]tatutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case." (Internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 665. Once again, the court finds that the corporation as applicant is aggrieved. General Statutes § 8-30g(f); see also RYA Corp. v. Planning & Zoning Commission, supra, 87 Conn.App. 672 (concluding that record before court permitted it to find inferentially that applicant had agency relationship with landowner and applicant's owner and that applicant " had a specific, personal and legal interest in the approval of its subdivision application"). Therefore, the court denies the intervenors' motion to dismiss.
III
Review of an affordable housing appeal is governed by § 8-30g. General Statutes § 8-30g(g), in relevant part, provides: " 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 . . . 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."
" [I]n conducting its review in an affordable housing appeal, the trial court must first determine whether th6 decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record . . . Specifically, the court must determine 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. If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission's decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development." (Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004). " The foregoing determinations present mixed factual and legal determinations, the legal components of which are subject to plenary review . . . [T]he planning and zoning commission remains the finder of fact and any facts found are subject to the 'sufficient evidence' standard of judicial review." (Internal quotation marks omitted.) Eureka V, LLC v. Planning & Zoning Commission, 139 Conn.App. 256, 266, 57 A.3d 372 (2012).
" The record must establish more than a mere possibility of harm to a substantial public interest . . . The record must contain evidence as to a quantifiable probability that a specific harm will result if the application is granted . . . Mere concerns alone do not amount to sufficient evidence to support the denial of an affordable housing application pursuant to § 8-30g(g)." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 130 Conn.App. 36, 58, 21 A.3d 926, cert. denied, 303 Conn. 909, 32 A.3d 962 (2011).
IV
" Section 8-30g obligates a land use agency to make a collective statement of its reasons on the record when it denies an affordable housing land use application . . . That requirement serves to provide 'a clear basis' for a court to review that decision . . . as opposed to reasons that later might be culled from the record." (Citations omitted; internal quotation marks omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission 162 Conn.App. 678 691 (February 2, 2016). " [W]here a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision." (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994), quoting De Maria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970).
In the present case, the board stated its reasons as follows:
1. The water pressure to the area is low and the water usage by the proposed building for both domestic water and fire protection is reliant on an artificial system to increase water pressure to an adequate level to function.
2. The site has limited access with its one driveway entrance and restricted directional turning.
3. The lack of a second means of access for emergency vehicles to enter the site.
4. The increase in traffic at the intersection of Bic Drive and Naugatuck Avenue.
5. The explosive based excavation required to prepare the site would endanger the Iroquois natural gas pipeline that crosses the site.
" The Board further amended the Motion of Denial to include: The traffic impact at the Post Road at Naugatuck Avenue and Bic Drive at Plains Road. Because of the entrance restrictions there is a health and safety risk. Parking is inadequate and potentially dangerous with no provision for snow removal and further restricted emergency vehicle access. Potential maintenance on the Iroquois pipeline could create a health hazard. Increased stress to the inhabitants of the area will create an unhealthy living condition." (ROR, Item 52.)
A
1.
The burden is on the commission, based on evidence in the record, to prove " that the decision . . . and the reasons cited for such decision are supported by sufficient evidence in the record . . ." General Statutes § 8-30g(g). The board's first reason for denial is based upon low water pressure and the need for an " artificial system" to ensure adequate pressure for both domestic supply and fire protection. (ROR, Item 52.) On January 20, 2015, NEC's attorney, Diane Whitney, testified that there was insufficient water pressure at NEC's site. (ROR, Item 15, pp. 42-43; Item 25, pp. 17-18.) Additionally, residents living nearby commented on their low water pressure. (ROR, Item 15, p. 46; Item 25, pp. 26, 33.)
The fire marshal wrote to the board on February 20, 2014, indicating that " the plan meets the requirements with regard to the water standard, specifically fire hydrants and water supply." (ROR, Item 13, p. 38.) Indeed, the letter also stated in bold print that " this office has no objection to the applicable permit being issued." (ROR, Item 13, p. 38.) Additionally, Steve Trinkaus, the plaintiffs' design engineer, indicated that they would resolve any pressure problem by supplying water tanks or booster pumps. (ROR, Item 15, pp. 50-52; Item 19, p. 32.) On February 3, 2015, at the public hearing, the plaintiffs submitted copies of correspondence from Dave Johnson of the South Central Connecticut Regional Water Authority who indicated that an ample supply of water for the project exists, but that booster pumps would be required for sufficient pressure. (ROR, Item 25, p. 4.) Trinkaus submitted an amendment to the site plan showing both the booster pumps and a generator backup. (ROR, Item 19, p. 6.)
Joseph Coci of MDC questioned the suitability of the pumps for fire suppression. (ROR, Item 25, pp. 22-23.) On February 17, 2015, MDC offered the testimony of Joseph Walker, the fire marshal of Bolton, who stated, among other things, " the selection of sprinkler design, building materials, and the available water supply may create a scenario where the sprinklers will be unable to their intended job." (ROR, Item 31, p. 3.) Finally, Joe Versteeg, who is, among other things, the former supervisor of the Connecticut state fire marshal's fire code and plan review units and former commanding officer of the technical services section, testified on behalf of the plaintiffs that there was sufficient water, but that the booster pumps--a standard remedy--were required. (ROR, Item 36; Item 41, pp. 44, 32-50.)
Although the board heard concerns that the booster pumps might fail, there was no testimony that the pumps did not meet the applicable building codes. According to Exhibit G attached to the plaintiffs' brief, § 604.7 of the 2003 International Plumbing Code, which is part of the state building code; Regs. Conn. State Agencies, § 29-252-1d; provides: " [w]herever water pressure from the street main or other source of supply is insufficient to provide flow pressures at fixture outlets . . . a water pressure booster system conforming to Section 606.5 shall be installed on the building water supply system." Even NEC indicated that it used booster pumps to maintain appropriate water pressure. (ROR, Item 25, pp. 17-18.) Additionally, Versteeg testified that the proposal was in compliance with all Connecticut fire codes and with national codes that Connecticut " has not yet even thought about adopting as of yet." (ROR, Item 41, p. 34.)
On March 11, 2015, board member Sutton stated, " During the public, during the hearing of this matter we heard testimony regarding compliance with municipal codes and regulations. I wanted to state that my belief that I think regardless of strict compliance with codes and regulations, I still believe that in light of that there can be legitimate and reasonable safety concerns that can exist beyond that strict compliance and the lowest standard applicable to our regulations." (ROR, Item 45, p. 7.)
In the present case, the record indicates that the booster pump remedy meets all applicable codes. See Irwin v. Planning & Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998) (" Although it is true that the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations. If, during the exercise of its discretion, the zoning commission decides that all of the standards enumerated in the special permit regulations are met, then it can no longer deny the application." [Emphasis in original.]). Additionally, " [a]lthough the commission [is] entitled to deny an application because it did not believe the expert testimony, the commission [has] the burden of showing evidence in the record to support its decision not to believe the experts, i.e., evidence which undermined either the experts' credibility or their ultimate conclusions." (Emphasis in original.) Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995). If the board did not believe Versteeg, it needed to show evidence that undermined his credibility or his conclusions; it has not done this. Therefore, the board's first reason for denial is not supported by sufficient evidence in the record. See AvalonBay Communities, Inc. v. Zoning Commission, supra, 130 Conn.App. 58 (" [m]ere concerns alone do not amount to sufficient evidence to support the denial of an affordable housing application pursuant to § 8-30g(g)").
2.
a.
The next several reasons concern traffic issues caused by the topography of the site and by the traffic expected to be generated by the project. Reason two relates to the single entrance to the development with restricted turning and the related reason three concerns a second means of access for emergency vehicles. Due to the topography of the property, a single access way was designed, but there is no claim that the single entrance does not meet the appropriate codes. (ROR, Item 13, pp. 79-80.) This is evident in the Milford police department traffic division's report. (ROR, Item 13, pp. 38-40.) While the restricted sight line will preclude a left hand turn on to Bic Drive, " [t]he sight lines are adequate to exit the development safely" turning right on to Bic Drive. (ROR, Item 13, p. 40.) Additionally, the plaintiffs' traffic engineer, Bruce A. Hillson of Traffic Engineering Solutions, P.C., testified that he believed cars would be turning right toward Interstate 95, not left toward the industrial area, and that the turn restriction would ensure a better sight line and meet the state regulations. (ROR, Item 15, pp. 28-29; Item 30.)
The board has not produced sufficient evidence to indicate that the proposed access way and its turn restriction violates any regulations. Additionally, speculation that drivers might take the prohibited left hand turn is not sufficient evidence to support its denial. See AvalonBay Communities, Inc. v. Zoning Commission, supra, 130 Conn.App. 58 (" [m]ere concerns alone do not amount to sufficient evidence to support the denial of an affordable housing application pursuant to § 8-30g(g)"). Furthermore, if the board believed that turning in both directions was required, it could have conditioned approval on the relocation of the access road; see Kaufman v. Zoning Commission, supra, 232 Conn. 164 (" [i]n the context of an application to build affordable housing, however, we agree with the trial court that, on the present record, the conditional granting of a zone change was not only authorized but required"); CMB Capital Appreciation, LLC v. Planning & Zoning Commission, 124 Conn.App. 379, 394, 4 A.3d 1256 (2010) (" [t]he goals of affordable housing can be satisfied by conditional approvals"); it did not.
Hillson noted that the sight line for NEC across the street was similar, but that NEC did not have a turning prohibition. (ROR, Item 30, p. 2.) For the proposed development, relocation of the access road across from the existing NEC access road may allow for left hand turns. Before this court on January 28, 2016, the board's counsel advocated for remanding the matter back to the board to consider this possibility and the plaintiffs' brief at page thirty suggests that this court may revise the decision with that provision. The plaintiffs' counsel noted, however, that the matter could have been addressed at the public hearing. A review of the record indicates that very little time was spent on this subject. (ROR, Item 25, p. 41.) Thorough discussion and a redesign might have resolved this issue and the emergency vehicle access issue. Nevertheless, a remand seems inappropriate given the lack of sufficient evidence for this reason.
Regarding access for emergency vehicles following the primary vehicle on the scene; (ROR, Item 41, pp. 4-5); the board received comments from Milford's fire marshal that the project " meets the requirements for Fire Department access"; (ROR, Item 13, p. 38); from Trinkaus that Milford's largest fire truck could access the proposed development; (ROR, Item 15, p. 14); and from Versteeg that the plans met both current and proposed state standards. (ROR, Item 36, pp. 3-4, 8.) In Garden Homes v. Fairfield Town Plan & Zoning Commission, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-14- 6053481-S, (September 10, 2015, Bates, J.), the commission had denied an affordable housing, in relevant part, because " [t]he proposed development's singular access way affords no alternative access for emergency services." The court rejected this reason and held, " [W]hile another means of vehicle access to the site would be desirable in terms of safety, it is not required by the applicable [National Fire Protection Association] or [American Association of State Highway and Transportation Officials] codes and is not feasible for this site. Given that the single access appears to meet the minimal level of compliance, it should be sufficient for an affordable housing project." Id.
The applicant had submitted a plan for a two-foot gravel shoulder for a turnaround area for ladder trucks and the court urged the parties to consider this on remand. Id.
In the present case, this court adopts the same reasoning. While another means of access would be ideal, the board has presented no evidence that it is required. See Irwin v. Planning & Zoning Commission, supra, 244 Conn. 628 (" the zoning commission does not have discretion to deny a special permit when the proposal meets the standards").
b.
The fourth reason given for denial was the " increase in traffic at the intersection of Bic Drive and Naugatuck Avenue" as well as the " traffic impact at the Post Road at Naugatuck Avenue and Bic Drive at Plains Road." " [T]he consideration that applies to zoning applications is not the overall volume of traffic, but whether the increase in traffic will cause congestion." Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 73 Conn.App. 442, 470, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002); see also CMB Capital Appreciation, LLC v. Planning & Zoning Commission, supra, 124 Conn.App. 399 (" while traffic problems and related safety concerns can be a valid reason for a denial . . . there must be more than a traffic increase, and either traffic congestion or an unsafe road design at or near the entrances and exits from the site" [internal quotation marks omitted]). " Moreover, the significance of the impact should not be measured merely by the number of additional vehicles but by the effect that the increase in vehicles will have on the existing use of the roads. An increase of 100 vehicles per hour may have a negligible impact at one time or location and a ruinous impact another time or location." Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 434, 941 A.2d 868 (2008).
In an affordable housing appeal involving a traffic issue in Terrar, LLC v. Town of Ridgefield Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-05-4004079-S, (March 29, 2006, Pickard, J.), the court noted the " sharp contrast . . . between a conventional application and an affordable housing application." The court held that there was " sufficient evidence in the Record supporting the Commission's denial on the basis of traffic safety. But, because this is an affordable housing appeal, the court has made its own plenary review of the Record." Id. In conducting its own review, it noted that the developer " presented testimony from a traffic expert . . . who submitted a detailed report and documentation in support of the site plan. There was no contradictory expert testimony . . . The Commission's own knowledge of the traffic situation must be considered . . . But, the court's own review of the Record reveals that the Commission's knowledge does not outweigh the unequivocal, uncontradicted testimony of [the developer's expert] that traffic safety does not dictate a denial of the application for site plan." Id.
In an affordable housing appeal several years prior to Terrar, another court, Mottolese, J., stated that " [t]raffic impact is an area of concern that usually involves neighborhood opposition." Kaufman v. City of Danbury Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV-92- 0507929-S (August 13, 1993, Mottolese, J.) . The court continued: " [The] commission was not required to accept the contents of the traffic engineer's report . . . On the other hand, the plaintiff's evidence was uncontroverted by any other expert. Feinson v. Conservation Commission, 180 Conn. 421 (1980) would seem to require that if the commission relied on traffic data, experience or projections in reaching these conclusions it must disclose it and give an opportunity for rebuttal in order to avoid acting arbitrarily." Id. On appeal, the Supreme Court held that " [a]lthough the commission would have been entitled to deny an application because it did not believe the expert testimony, however, the commission had the burden of showing evidence in the record to support its decision not to believe the experts--i.e., evidence which undermined either the experts' credibility or their ultimate conclusions." (Emphasis in original.) Kaufman v. Zoning Commission, supra, 232 Conn. 156-57.
In the present case, counsel for NEC characterized the traffic as " heavy industrial traffic, very large trucks." (ROR, Item 15, p. 43.) The board only heard from one traffic engineer, Hillson, who indicated that the project would result in a change in the level of service in the morning peak at the intersection of Bic Drive and Naugatuck Avenue from level A to level B and at the intersection of Bic Drive and West Avenue in the afternoon peak from level B to level C. (ROR, Item 13, p. 78.) Many residents voiced their opinions concerning existing congestion and that the additional vehicles from the development would make conditions worse. (ROR, Item 15, pp. 45-47; Item 25, pp. 20-36; Item 41, p. 27.) Indeed, many residents signed a petition against the proposal. (ROR, Item 33.) Several were worried about the delays at the intersections. For instance, board member James Quish indicated that with current conditions he had sat through the light at Schoolhouse Road and Boston Post Road three times; (ROR, Item 25, p. 11); resident Debra Weinstein noted that she had sat there through five or six lights. (ROR, Item 41, p. 21.)
In Robert Fuller's treatise, he explains the service levels of traffic: " For signalized intersections, Level A has a stopped delay per vehicle of less than 5 seconds. Level B is 5 to 15 seconds. Level C is 15 to 25 seconds. Level D is 25 to 40 seconds. Level E is 40 to 60 seconds and is a marginally tolerable level of delay. Level F is over 60 seconds and is considered unacceptable. These standards have been increased and Level F is now delay over 80 seconds." R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007), § 49.11, p. 134.
Hillson indicated, however, that 114 cars would turn right from the proposed development during the peak hours. (ROR, Item 13, p. 100.) The plaintiffs assert that there is no evidence that those cars will have any impact on the other intersections including Boston Post Road and Naugatuck Avenue. Hillson indicated that twenty-one more vehicles would travel through the intersection of Schoolhouse Road and Bridgeport Avenue, also known as Route 1, in the morning peak hour with twenty-seven more vehicles in the peak afternoon hour which is an increase in volume of approximately 1.3 percent compared to the 2016 no-build traffic volume of 1626 vehicles in the morning and 2103 vehicles in the afternoon. (ROR, Item 19, pp. 18-19.) He also stated that there would be no change of level of service for the Bridgeport Avenue and Schoolhouse Road intersection during peak times. (ROR, Item 19, pp. 10-11; Item 25, pp. 5-6.) Quish took issue with Hillson's findings; (ROR, Item 25, pp. 7-13); but Hillson noted that the Connecticut department of transportation had reviewed and accepted his report. (ROR, Item 25, p. 13.) Finally, the plaintiffs' counsel reminded the board that during the 1960s BIC ran its facility with three shifts employing 1, 500 people and that the proposed development would have 257 units. (ROR, Item 25, p. 38.)
This projection was based on 284 units as opposed to the current 257-unit proposal. (ROR, Item 13, p. 73.)
This record lacks sufficient evidence to justify rejecting the expert's opinion and the board made no findings regarding the proposed development and congestion, danger to public safety, or creation of an unsafe condition. Therefore, the board has not satisfied its initial burden to prove that its denial or the reason for its denial is supported by sufficient evidence in the record.
Assuming arguendo that the board sustained this threshold burden, traffic safety is generally considered to be a substantial public interest. See, e.g., Landworks Development, LLC v. Town of Farmington Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-00-0505525-S, (February 14, 2002, Eveleigh, J.). The board must also prove, however, that the denial of the plaintiffs' application " was necessary to protect substantial public interests and that such public interests clearly outweighs the need for affordable housing." (Emphasis in original; internal quotation marks omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 703. " [I]n discussing the commission's burden to demonstrate such necessity under § 8-30g, our Supreme Court has held that the administrative record must contain evidence in the record 'concerning the probability that such harm in fact would occur.'" Id., 704.
" Mackowski v. Planning & Zoning Comm'n, 59 Conn.App. 608, 757 A.2d 1162, cert. granted, 254 Conn. 949, 762 A.2d 902 (2000) (appeal withdrawn September 21, 2001), is instructive in this regard. In Mackowski, this court concluded that the defendant commission had failed to meet its burden of proving . . . that its denial of the plaintiffs' application was necessary to protect substantial public interests in health, safety or other matters that the commission may legally consider . . . We reasoned that [t]he commission never addressed the traffic . . . concerns in detail; rather, it made generalized statements concerning the adverse impacts on the health, safety and welfare of the community that would be created by the project and remarked that those adverse impacts appeared to be unnecessary in achieving affordability for this development. The evidence before the commission . . . established that there would be no significant problems with traffic . . . as a result of the proposed development. Neighbors of the proposed development did express concern with the impact on traffic from the development. While they claimed that at times traffic could be dense at the intersection of the proposed development, there was no record of any specific findings of fact, such as the frequency of the traffic, to support this allegation. Furthermore, while the town engineer expressed concerns regarding the effect that the continued development of the area would have . . . there was no showing that a possibility of substantial harm could ever result." (Citations omitted; internal quotation marks omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 704-05.
In the present case, the record contains no evidence concerning the probability of specific harm. While neighbors expressed concern, the record does not reveal that the denial was necessary to protect the public interest of traffic safety, that the public interest clearly outweighs the need for affordable housing, or that the public interest could not be protected by reasonable changes to the affordable housing development. See id., 703.
c.
The last traffic-related reason for denial concerned parking. On January 31, 2014, the Milford police department recommended that approval be conditioned upon adding parking spaces. (ROR, Item 13, pp. 39-40.) Based on the proposal with 284 units, Hillson stated that the " 341 parking spaces proposed for the site (1.20 spaces per unit) along with the ability to provide an additional 42 spaces (up to 1.35 spaces per unit) will be more than adequate to meet the historical parking demands of no more than 1.18 spaces per unit." (ROR, Item 13, p. 82.) The plaintiffs' proposal with 257 units calls for a total of 322 to 364 spaces or a ratio of 1.25 to 1.42 spaces per unit. (ROR, Item 15, p. 8.) David Sulkis, Milford's city planner, stated: " [I]f this was being compared to parking in the CDD-1, I'm sorry the CDD-2 or the downtown district then the parking amounts would be, would meet the regulations, specifically the one to one and a half for the efficiency units, but outside of those 2 districts it's a minimum 2 parking spaces for each type of unit, both the efficiency and the 1 bedrooms. Having said that again the application does not have to meet any of the regulations, they are providing you know one and a quarter, by my estimation, about one and a quarter spaces for each unit which is most likely adequate for this kinds of uses they propose." (ROR, Item 15, p. 28.)
The board acknowledges in its brief at page twenty-four that these regulations do not apply to an affordable housing application. " As this court has held, § 8-30g does not allow a commission to use its traditional zoning regulations to justify a denial of an affordable housing application, but rather forces the commission to satisfy the statutory burden of proof." (Internal quotation marks omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 698.
In denying the application based upon inadequate parking, the board disregarded the officials' review. Moreover, the board has not shown evidence to support its denial. See Kaufman v. Zoning Commission, supra, 232 Conn. 156-57 (" [a]lthough the commission would have been entitled to deny an application because it did not believe the expert testimony, however, the commission had the burden of showing evidence in the record to support its decision not to believe the experts--i.e., evidence which undermined either the experts' credibility or their ultimate conclusions" [emphasis in original]). Without such evidence to support the board's conclusion, it cannot stand.
Related to this issue is the board's statement that " [p]arking is inadequate and potentially dangerous with no provision for snow removal." (ROR, Item 52.) The board argues, " With only one means of accessing the site and the likelihood of cars parking in unauthorized areas, it would not take much of a snowfall to paralyze movement of emergency vehicles in and around the building. There is simply no place to plow the snow, and no plans were put forward for its removal from the site."
This court has already addressed the issues of the single entrance and parking. The record does not reveal any regulations requiring snow storage plans. Additionally, the twenty-eight-foot-wide access way exceeds Milford's required twenty-four-foot-wide aisle according to exhibit I of the plaintiff's brief. Moreover, speculation regarding snow removal and illegal parking is not sufficient to deny an application. See Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 708 (" The commission also briefly argues that the risk of inadequate snow removal and illegal on street parking could result in 'a too narrow road for emergency vehicles.' That contention amounts to little more than speculation and conjecture, which 'have no place in appellate review.'"); Lexington Properties, LLC v. Planning & Zoning Commission, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-13-6041815-S, (May 15, 2014, Berger, J.) (" speculation that people would not comply with parking restrictions is not a sufficient reason to deny an application").
Furthermore, the board could have imposed conditions restricting on street parking, if this was not already part of the plan, and required a snow removal and storage plan. These changes seem to be exactly what is contemplated by § 8-30g(g)(1)(C).
3.
The board's next reason for denial concerned the required blasting for the site that the board found " would endanger the Iroquois natural gas pipeline that crosses the site." (ROR, Item 52.) As previously stated, Iroquois' fifty-foot-wide easement containing a gas transmission line runs along the westerly side of the property and then traverses the southern boundary of the property. (ROR, Item 1; Item 15, p. 13.) The board argues that if there is a problem with the gas line it will be catastrophic. The intervenors point out on page sixteen of their brief that, if excavation is required during maintenance, twenty-three parking spaces would be impacted and that the proposal contains no plans for such an event.
The intervenors also note that the MDC property is subject to remediation orders from the department of energy and environmental protection and that blasting and excavation might create a risk of " contaminant releases." This court is very familiar with and can take judicial notice of at least two actions concerning this area. Commissioner of Energy & Environmental Protection v. Bic Corporation, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-11-6026501-S (November 9, 2015, Berger, J.) , on appeal, Docket No. A.C. 38594; Liss v. Milford Partners, Inc., Superior Court, complex litigation at Hartford, Docket No. X07 CV-04-4025123-S, (April 11, 2011 , Berger, J.). Regardless, there is no evidence in this record of such a risk.
Again, " [t]he record must establish more than a mere possibility of harm to a substantial public interest . . . The record must contain evidence as to a quantifiable probability that a specific harm will result if the application is granted . . . Mere concerns alone do not amount to sufficient evidence to support the denial of an affordable housing application pursuant to § 8-30g(g)." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, supra, 130 Conn.App. 58.
In the present case, no construction activity would occur within the easement area except to pave some of the parking spaces. (ROR, Item 1; Item 15, pp. 37, 49; Item 19, p. 2.) Blasting on the site would be required to prepare the site, but all agree that any blasting is subject to the supervision of Milford's fire marshal under General Statutes § 29-349 and Milford's code of ordinances § 7-67 et seq., found in Exhibit E attached to the plaintiffs' brief. The plaintiffs proposed that the blasting would be done by a licensed contractor under the supervision of Iroquois. (ROR, Item 1, sheet 8.) Versteeg testified that Iroquois, in addition to the Milford fire marshal, would be supervising any blasting. (ROR, Item 41, p. 47.) Trinkaus also testified that the building would be at least seventy feet from the gas line and that Iroquois had suggested no revisions to the plaintiffs' plan. (ROR, Item 15, pp. 49, 53.) Freedman noted the same and reiterated that Iroquois had submitted no proposed revisions. (ROR, Item 39, pp. 1-2.) Additionally, the record does not reflect that Iroquois voiced objection or concern to the board.
Trinkaus stated, " [W]e're not going to be excavating near it and they require, prior to any work being done out here, that we have to hire a contractor to excavate test pits under their direct supervision over where the line is to get accurate survey elevations of the line itself even though we're not digging anywhere near it." (ROR, Item 15, p. 37.)
Iroquois requires that it supervise any blasting within 200 feet of the pipeline. (ROR, Item 1, sheet 8.) The plaintiffs submitted plans to Iroquois even before they filed the application with the board and Iroquois would issue appropriate approvals at the time of construction. (ROR, Item 19, p. 2; Item 39, pp. 1-2.)
Although not as many residents commented on the gas line as those who expressed concern about water pressure and traffic, concern was voiced by some. (ROR, Item 25, p. 17; Item 32; Item 41, pp. 16, 18, 20, 24-25.) Nevertheless, no evidence was submitted that the blasting would cause damage to the pipeline and would endanger the community. Additionally, as previously noted, Iroquois has a protocol which must be followed prior to any blasting and the plaintiffs have clearly stated that they would comply with such protocol. Thus, there is insufficient evidence to support the board's decision to deny the application based upon blasting and the proximity to the gas line.
The board also denied the application because it found that " [i]ncreased stress to the inhabitants of the area will create an unhealthy living condition." The board did not brief this issue and argued in its brief that the reason was subsumed in the other reasons. The neighbors are obviously concerned about the development, but, without more, such a reason cannot withstand legal scrutiny.
B
Whether singularly or cumulatively; see River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 39 (" even considered cumulatively, these reasons did not constitute a threat to a substantial public interest"), the board's reasons do not support a denial of this application. Beyond traffic, the board listed several hypothetical disasters: inadequate water pressure to fight fires; blockage of the entrance preventing emergency vehicles to pass; traffic accidents from drivers turning right out of the development; motorists running red lights due to frustration over delays; heavy snowfall; and workmen or others detonating the gas pipeline. As previously stated, these possible scenarios do not satisfy the requirements of § 8-30g(g). See id., 26 (" [s]pecifically, the court must determine 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"); AvalonBay Communities, Inc. v. Zoning Commission, supra, 130 Conn.App. 58 (" [m]ere concerns alone do not amount to sufficient evidence to support the denial of an affordable housing application pursuant to § 8-30g(g)"). The board's concerns may be characterized generally as public interests, but " [s]uch generalized concerns cannot support a determination that the commission's decision was necessary to protect the public interest or that the harm outweighed the town's documented need for affordable housing." Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 706.
For the above reasons, the decision of the board is reversed.
The court notes that the board argues that to the extent reasonable changes might be appropriate to protect the identified public interests the court should remand the matter to the board for further proceedings on the " reasonable changes." In light of the previous discussion, the court does not find such a step necessary.
" Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. " Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).