Opinion
HHDCV146052002S
06-02-2017
Garden Homes Management Corporation et al. v. Planning and Zoning Commission of the Town of Oxford
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON AMENDED MOTION FOR STAY
STEPHEN F. FRAZZINI, JUDGE.
On March 3, 2017, this court entered judgment sustaining the affordable housing appeal brought by Garden Homes Management Corporation et al. (Garden Homes) under General Statues 8-30g from the denial of an application for approval of an affordable housing site plan by the Planning and Zoning Commission of the Town of Oxford (the commission). The commission then moved for a stay of execution of that decision while the Appellate Court considered its petition for certification. That petition having been granted, the commission has now filed an amended motion seeking a stay during the appeal. After the motion and an objection thereto were filed, the parties appeared for argument on May 9, 2017. The court then scheduled an evidentiary hearing on the commission's claim that denying a stay would cause environmental damage for May 17, 2017. On that latter date, both parties presented testimony from licensed professional engineers, and Garden Homes also called its president and on-site construction supervisor as witnesses. Various exhibits were also submitted into evidence. As is more fully explained below, the amended motion for a stay of execution is denied.
I
PROCEDURAL HISTORY
A
2015 Memorandum of Decision
On February 28, 2014, Garden Homes filed its current application for approval of an affordable housing site plan with the commission. The commission retained an engineering firm and a land use company as technical consultants on Garden Homes' application. During the review process, those consultants identified approximately 20 issues with Garden Homes' application, but by the final public hearing Garden Homes had already addressed most of those issues. At or just before that hearing, Garden Homes then proposed four more changes to its application on issues that had not been resolved between the parties' experts:
To address a poor line of sight from one of the proposed access points for the development (Emily Drive) onto an adjacent public road (Hurley Road), Garden Homes proposed prohibiting left turns from the development roadway onto the public thoroughfare.
To address concerns about sharp curves on roadways within the development, Garden Homes proposed stop signs and stop bars at those locations.
Because of a concern stated by the fire marshal and town's planning consultant that vehicles parked on interior roadways would impede access of public safety vehicles, Garden Homes proposed to include restrictions in its leases that would prohibit on-street parking by residents or their guests. Garden Homes also agreed to " revise the vertical geometry" at certain intersections to address an issue regarding " cross slopes."
After the final public hearing, the commission issued a decision on May 6, 2014, denying the application for three reasons:
[I]t's an incomplete application since the fees have not been paid for review.
[N]ew information has been presented. The commission and the staff and experts have not had a reasonable opportunity to review the information presented of the applicant at today's public hearing . . .
[T]he commission has requested an extension in order to provide a fair and reasonable evaluation of this application and supporting documents. The extension request was refused.
Memorandum of Decision, Dated July 20, 2015, filed July 23, 2015 (2015 Memorandum of Decision), p. 19, citing Return of Record (ROR), Item 10, p. 123-24. Garden Homes then filed this appeal to the Superior Court under General Statues 8-30g.
On appeal, this court concluded that there was insufficient evidence in the record to support of any of these reasons. The court further concluded that the public interest could have been protected by modifications to the site plan conforming to most of the modifications to which Garden Homes had agreed by conditioning approval on such conformity. " In those respects, Garden Homes had adequately addressed concerns raised by the commission and the consultants it had retained." 2015 Memorandum of Decision, p. 30.
But the court also concluded that the " new information" presented to the commission at the very end of the review process raised issues of public safety that the commission should have an opportunity to review, and thus remanded the matter back to the commission " for evaluation of these issues. The commission will first hold a hearing and make evidentiary findings on these issues, and retains discretion on these issues and on whether to grant or to deny the plaintiffs' application." Id., 34.
B
2016 Memorandum of Decision After Remand
On remand, Garden Homes submitted revised site plan drawings and a traffic report for the proposed development to the commission on August 19, 2015. On October 6, 2015, the commission adopted a ten-page " Final Resolution" rejecting the revised site plan. On the four issues that had been remanded for evaluation and new evidentiary findings, the court found that the commission did not sustain its burden of proof as to any of the stated reasons for denying the revised site plan application.
In balancing the equities and weighing the Griffin Hospital factors, the amended motion for stay is denied. The commission has not put forth a persuasive argument that it is likely to win on appeal or that the public interest would be damaged. The equities lie in favor of allowing the property owner to develop its property now so as to accelerate its ability to meet the public's need for affordable housing should the appeal be denied. If the result of the appeal is that construction or development on the property is no longer legally viable, there has been no showing that suitable controls do not protect the public's interest in the safety of the environment, streams, waters, and wetlands. --------- Notes: Memorandum of Decision, dated October 25, 2016, and flied October 26, 2016 (2016 Memorandum of Decision), p. 19. The town's new traffic consultant, however, stated that a " channelized island physically directing] exiting motorists to make a right turn" at that access point could successfully prevent motorists from turning left, and Garden Homes proposed installing such an island. See 2016 Memorandum of Decision, p. 21, n.14. That same consultant, however, also expressed concern that the " presence of the physical barrier could preclude access by emergency vehicles"; id.; but Garden Homes agreed to install a " mountable curb" over which emergency vehicles could safely pass. Although the commission's remand decision stated that " mountable curbing . . . would not be effective to prevent left turns, as motorists will continue to ignore the prohibition"; id., p. 22, n.14; there was absolutely no evidence in the record that mountable curbing would not successfully deter left turns. 2. Did the trial court erroneously hold that late submission of information could not be the basis for denial of an application as incomplete? 3. Did the trial court erroneously hold that Garden Homes' failure to comply with a prior judicial decision could not be the basis for denial? 4. Did the trial court erroneously apply the substantial evidence rule and its quantifiable probability requirements? Petition for Certification, dated March 23, 2017. The commission's briefs suggest various harms that could result to towns if affordable housing applicants are not required to pay such fees, and those concerns might be legitimate if the fees charged were actually borne by the town. However, there is no health and safety reason for, or substantial public interest in, a policy not to refund any excess fees collected. The record does not show a quantifiable harm, or even any probability that any specific harm would result, by granting the application upon a condition that Garden Homes pay the actual costs charged to the commission by the two consultants here; nor does the record show that any interest the commission has in up-front payments that may exceed its actual costs outweighs the need for affordable housing in the town of Oxford. The public interest could have been protected here by a condition of approval that Garden Homes pay the fees borne by the commission. Memorandum of Decision, July 20, 2105, p. 21. River Bend Assocs. v. Zoning Comm'n, 271 Conn. 1, 856 A.2d 973 (2004), " the trial court must . . . determine whether 'the decision . . . and the reasons cited for such decision are supported by sufficient evidence in the record." (Citation omitted.) Similarly, in Christian Activities Council, Congregational v. Town Council of Town of Glastonbury, 249 Conn. 566, 577, 735 A.2d 231 (1999), the court held that the affordable housing statute requires that the town establish that sufficient record evidence supports " the decision from which such appeal is taken and the reasons cited for such decision. Thus, textually the statute contemplates 'reasons' that are 'cited' by the town. This strongly suggests that such reasons be cited by the zoning agency at the time it took its formal vote on the application, rather than reasons that later might be culled from the record, which would include, as in a traditional zoning appeal, the record of the entire span of hearings that preceded the vote." (Citations omitted; quotations omitted; internal alterations omitted.) . . . My own review of the record leads me to conclude that a single access point for the 99 units in Oxford Commons West presents a serious health and safety issue which clearly outweighs the need for affordable housing. Affordable housing units should be just as safe as any other form of housing. The emergency access proposed by the plaintiffs is inadequate to safeguard the residents from the danger of one entrance being blocked. The reliance upon the proposed emergency entrance is insufficient. The use of this access would be subject to confusion and to human error in the event of a real emergency. This issue could be resolved with a condition that requires the plaintiffs to provide a full second access point which is separated from the access on Hurley Road.
The commission's decision on remand also gave numerous other reasons for denying Garden Homes' application that were not within the scope of remand order. Two of those reasons were the following:
roadways . . . too narrow to allow people to yield to emergency vehicles particularly because they cannot pull off the road due to the bioswales; Remand Record of Return (RROR), Item, 18, p. 2; and location of Emily Drive 140 feet away from the other access road into the development from Hurley Road. Id., p. 6.
Memorandum of Decision, dated October 25, 2016, filed October 26, 2015 (2016 Memorandum of Decision), p. 32. Both of these reasons addressed elements that had been part of Garden Homes' application since it had been filed in February 2014. Neither the width of roadways nor the location of the second access road had been the subject of the " new information" presented just before the commission's final hearing in May 2014 that the court had believed warranted further time for consideration. The court concluded that the remand order had not extended the time for the commission to give new reasons unrelated to that order as bases for denying the site plan application.
" The commission has been citing 'minimal roadway width' as a problems with regard to Garden Homes' efforts to develop this property as affordable housing since Garden Homes' first applications to build a development in this area back in 2006. The twenty-four-foot-wide interior roadways of the present application comply with the commission's recommendation in 2007 to address the 'safety concerns' that the commission stated as a reason for rejecting the original application submitted by Garden Homes in 2006, but, even after Garden Homes proposed regulations and altered its plans for the development to comply with this recommendation, the commission has continued to mention narrow roads as a reason for rejecting Garden Homes' applications. The location of Emily Drive as the second access point had been known since the very first day that Garden Homes submitted the site plan drawings for the 2014 application. The commission's time and opportunity to deny the 2014 application for one of these reasons expired at the end of the sixty-five-day statutory period provided by the legislature for it to review and decide zoning site plan applications. And none were within the scope of the issues remanded to the commission by this court. Hence, none are valid reasons for denying the application on remand." 2016 Memorandum of Decision, p. 35-36.
The court did conclude, however, that one issue not specifically remanded to the commission remained a proper subject for the commission to review on remand. That issue concerned Garden Homes' compliance with one of the conditions for approval ordered by the court in the 2015 decision: that " [t]uning diagrams shall be added to the plans showing the turning path for Oxford fire department trucks and that such trucks can make turns at all intersections." On remand, the commission retained a new traffic safety consultant that provided turning diagrams showing that the wheels of town's largest fire truck would leave the roadway at various points entering, leaving and within the development. Garden Homes' expert maintained, however, that the town's new expert had " used incorrect fire truck dimensions for creating those turning diagrams." 2016 Memorandum of Decision, p. 25.
The reference to " tuning diagrams" is a scrivener's error. The correct terminology was " turning diagrams" and was clearly understood as such by all concerned.
Although a zoning commission is ordinarily allowed latitude to decide which expert to believe, the reasons the commission gave for deciding to believe its expert had no support in the record. Since the ability of fire trucks to traverse the developments' access points and roadways presents an obvious issue of public safety, the court remanded the case again, but for the sole and exclusive purpose of determining the fire truck's actual dimensions.
The commission's resolution on remand stated that the commission had decided to accept its expert's conclusions regarding turning dimensions because that expert was relying on fire truck dimensions located in a document in the record that had been provided by the town fire marshal. That document, however, was illegible, and despite the court's request for a more legible copy no one was able to provide one.
The court further determined that, except for the limited issue that was the subject of the second remand order, the commission had not sustained its burden of proof as to any of its stated reasons for denying the revised site plan application and that the public interest could have been protected by the commission conditionally approving that application subject to certain changes found reasonable, as set forth in the court's 2015 and 2016 decisions.
C
2017 Memorandum of Decision
On the second remand, the commission determined that Garden Homes had been right about the dimensions of the fire truck, that the vehicle dimensions used by the commission's experts were incorrect, and that the turning diagrams that had been provided by its expert were not accurate. Nonetheless, the commission continued to assert that " the turning diagrams support its assertions that the centerline radii of the access roads and interior roadways are insufficient to allow safe passage of town fire trucks and that the physical geometry of at least one of the two entrances into the development is unsafe." Memorandum of Decision, March 3, 2017 (2017 Memorandum of Decision), p. 12. The basis for that assertion was that the town's largest fire truck would cross over the center line or into the lane of oncoming traffic at certain points. Relying on Avalon Bay Communities, Inc. v. Zoning Commission, 130 Conn.App. 36, 56-57, 21 A.3d 926, cert. denied, 303 Conn. 909, 32 A.3d 962 (2011), this court rejected such a possibility as a reason for denying the application. The court then concluded that
" A legible copy of the document located at Bates No. 0170 in the remand record, which contains the schematics for the town's largest fire truck (the model known as the Pierce Arrow XT Ladder Quint) has now been made available to the parties and filed with the court. Digital (and zoom-able) and full-sized copies of an updated drawing of the development and its roads containing turning diagrams for the Pierce Arrow XT Ladder Quint on interior roadways and the two access points to and from Hurley Road were provided to the commission and have also been filed with the court. The commission now acknowledges that Adler's [the traffic safety consultant hired by the commission on remand] original assertions, which the commission had previously accepted, regarding the dimensions of the town's Pierce Arrow XT Ladder Quint and the turning radii of that equipment were incorrect. Based on the updated, accurate data about the vehicle's schematics and turning radii, the commission and its consulting experts now also acknowledge that the Pierce Arrow XT Ladder Quint equipment owned by the Oxford Fire Department will not leave the roadway when entering or exiting the development at either Emily Drive or Oxford Commons West or when traversing interior roadways of the development." Memorandum of Decision, March 3, 2017 (2017 Memorandum of Decision), p. 11-12.
the commission has not sustained its burden of proof to show sufficient evidence in the record for commission's decision as to (i) any of reasons stated by the commission in its 2014 decision, and (ii) any of the issues remanded to the commission in this court's 2015 and 2016 decisions for the revised site plan application.2017 Memorandum of Decision, p. 21. Accordingly the appeal was sustained, subject to conditions for approval set forth in the court's decisions.
II
DISCUSSION
Practice Book § 61-11 provides that there are no automatic stays of execution for judgments in administrative appeals. Pursuant to Practice Book § 61-12, any motion for a discretionary stay must be addressed by the trial court, and in Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 493 A.2d 229 (1985), the court set forth the standard for determining whether to grant such a stay pending appeal. In Griffin Hospital, the court recognized a court's broad authority to balance the equities when considering whether an order should be stayed. The balancing of the equities focuses on four factors: (1) the likelihood that the plaintiff will prevail on the merits; (2) the irreparability of the injury to be suffered from immediate implementation of the probate court's order; (3) the effect of a stay upon other parties to the proceeding; and (4) the public interest involved. Id., 456. The court will address these factors in turn.
A
Likelihood of Success on Appeal
The applicant for a stay has the burden " to show a reasonable degree of probability of success before a temporary injunction to preserve the status quo may be granted." Id., 457. The Appellate Court granted the petition for certification on all four questions that the commission presented for appellate review. In its amended motion for stay, the commission asserts that " [p]resumably, this means that the Appellate Court finds there to be at least some merit in each of the questions presented. Accordingly, it is appropriate to enter a stay to preserve the status quo until the final determination of the cause on appeal."
1. Did the trial court erroneously hold that Garden Homes' refusal to pay application review fees was not a proper basis for denial?
The first question presented by the commission for appellate review is whether " Garden Homes's refusal to pay application review fees" was a proper basis for the commission to deny the affordable housing application. The record before the court, however, showed different circumstances than a mere refusal to pay. The commission received estimates from its technical consultants that the cost of reviewing Garden Homes' application would be at least $12, 100. This court's 2015 memorandum of decision acknowledged the responsibility of developers to pay costs borne by a zoning commission to assess the developer's land use application. The record in this case, however, showed that the commission's rules and practices subjected Garden Homes to potentially paying more than the actual costs of those services, since the record showed that commission usually would not refund to a developer any difference between the original estimated cost and the final actual cost. Under those circumstances, this court found that there was no probability " that any specific harm would result, by granting the application upon a condition that Garden Homes pay the actual costs charged to the commission by the two consultants." Memorandum of Decision, July 20, 2105, p. 21. The commission's petition for certification did not address this factual circumstance, and the court here can find no basis for concluding that, without doing so, commission has shown a reasonable probability of success on this issue.
In this case, however, the commission's rules and practice require a developer potentially to pay more than those costs, since the record shows that the commission does not refund any difference between the estimated costs that its regulations require the applicant to pay up-front and the actual costs borne by the commission.
The second question presented for review is whether the commission properly denied Garden Homes's affordable housing application as " incomplete" based on " late submission of information. " The petition for certification cites two cases for the proposition that " [a] commission is entitled to deny an application before it due to incompleteness." In both of the cited cases, the incompleteness that entitled a commission to deny a land use application was the failure to submit data on essential information. In Three Levels Corp. v. Conservation Com'n of Town of Redding, 148 Conn.App. 91, 89 A.3d 3 (2014), the court upheld a commission's denial of an application for a license to conduct regulated activities because of the " plaintiff's failure to submit adequate information on the impact of the proposed activities on the river and wetlands." Id., 93. Similarly, in Unistar Properties, LLC v. Conservation and Inland Wetlands Commission of the Town of Putnam, 293 Conn. 93, 977 A.2d 127 (2009), the court upheld a commission's denial of an application for wetlands permit in connection with a proposed 34-lot subdivision. In that case, the " incomplete information" consisted of a plant and wildlife inventory, the impact of the proposed subdivision on those species in each affected wetland and an analysis of proposed alternatives to the proposed subdivision, all information that the court held the commission had been entitled to require.
The present case is different. None of the three reasons given by the commission in its original resolution denying Garden Homes' application stated that " late information" was a basis for denying the application as " incomplete." Moreover, the commission never claimed before this court that late submission of information had rendered the application incomplete.
Thus, unlike the two cases cited in its petition for certification, the commission never claimed to the court that Garden Homes had failed to present necessary information, but instead that the commission did not have enough time to consider certain information initially presented at or just before the final public hearing. That hearing was held only a few days before the end of the 65-day period provided in the commission's regulations for review of an affordable housing site plan. The commission's resolution did not assert that any of this " new information" rendered the application incomplete, but that the commission did not have adequate time to consider these new proposals. The commission's resolution also asserted that Garden Homes had refused to agree to an extension of time for the commission to consider that new information. The court found that each of four issues presented by the " new information" concerned issues that could legitimately be regarded as matters of public interest and remanded the proceeding so that the commission could assess each proposal. Under these circumstances, this court does not believe that the commission has shown a probability of success on this question. First, the commission never denied the application because the application was incomplete. Second, that question was never presented to the trial court. Third, this court's decision gave the commission the time it needed to consider the " new information" by remanding the case to the commission for that purpose.
As our Supreme Court stated in
The third question presented for review is whether Garden Homes's " failure to comply with a prior judicial decision" provided a valid basis for denying the application. The current application was filed in 2014, but in 2007 Garden Homes had filed an earlier affordable housing application for the site that was the subject of a decision by Judge Pickard in 2009. That decision describes the earlier application as follows:
The plaintiffs own 40.7 acres of undeveloped land in Oxford (" the property"). The property is bounded by Hurley Road to the south, Donovan Road to the east and Oxford Airport Road to the north. Oxford Airport Road is a state-controlled limited access highway which provides access to the Oxford Airport. There is a substantial inland-wetland area which divides the property into two buildable sections. One section, known as Oxford Commons East, is proposed to have 14 units, all of which will have access to Donovan Road from a single interior road. Another section, known as Oxford Commons West, is proposed to have 99 units, all of which will have access to Hurley Road from a single interior road.Garden Homes Mgmt. Corp. v. Planning & Zoning Comm'n of Oxford, Superior Court, judicial district of New Britain, Docket No. CV-07-4015729-S (November 3, 2009, Pickard, J.) [48 Conn.L.Rptr. 743, ]. In the 2009 decision, Judge Pickard concluded that there should be " a full second access, separated from the access on Hurley Road" for the 99-unit portion of the development.
" The site plan shows an emergency strip from Oxford Access Road to the corner of the closest dead-end road within the development. The testimony at the hearing was that this strip would be gated to prevent normal access and egress but could be opened by emergency personnel . . . The Commission's own s opined that a second access road, not just an unpaved emergency entrance, is critical for safe and efficient access and egress.
The commission's petition asserts that it could deny Garden Homes's application for not complying with Judge Pickard's 2009 decision. The commission did not give this reason as a basis for denying the affordable housing application in its original 2014 resolution, however, even though the commission knew, from the moment the current application was initially filed, that Garden Homes was proposing a second access point into the development from Hurley Road. Only after this court remanded the application to the commission for the limited purpose of considering the " new information" did the commission's subsequent resolution state that failure to comply with Judge Pickard's decision was a reason for denying the affordable housing application.
Garden Homes Management Corp. v. Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-07-4015729-S, (November 3, 2009, Pickard, J.). . . . Accordingly, the appeal is sustained except as to the three traffic safety issues identified above and the enforcement of the on-street parking ban. The matter is remanded back to the commission for evaluation of these issues. The commission will first hold a hearing and make evidentiary findings on these issues, and retains discretion on these issues and on whether to grant or to deny the plaintiffs' application. Id., 35-36. JPI Partners, LLC v. Planning & Zoning Board, 259 Conn. 675, 689-90, 791 A.2d 552 (2002), stating as follows: " Requiring the town to state its reasons on the record when it denies an affordable housing land use application will further that purpose because it will help guard against possibly pretextual denials of such applications. We therefore read the statute, consistent with its text and purpose, to require the town to do so." (Citations omitted; emphasis omitted; internal quotation marks omitted.) ---------
The commission claims that the effect of Judge Pickard's decision on the 2009 application is that any affordable housing development on Garden Homes's property must have a second access point somewhere else than on Hurley Road. The petition for certification refers to that decision as " the law of the case, " in effect according it preclusive effect. The 2014 affordable housing application was a new application, however, with substantial changes to the one reviewed by Judge Pickard five years earlier. Textually, moreover, the language of the 2009 decision does not necessarily lead to the conclusion asserted by the commission. In addition, both of this court's remand decisions in this matter addressed the specific safety issues raised by the commission regarding the second access point--whether Garden Homes's proposal to prohibit left turns and include a channelized mountable curb adequately addressed the poor line of sight issue (a subject of the first remand to the commission and this court's 2016 memorandum of decision) and whether the town's largest fire truck could safely navigate that intersection (the subject of the second remand to the commission and this court's subsequent 2017 memorandum of decision).
This court notes that the " law of the case" doctrine has always permitted subsequent courts the right to apply their own judgment as to the law.
One of the issues for the Appellate Court on this question is whether the commission could wait to give such a reason until after the first and limited remand on the four matters of " new information." The petition for certification does not present any argument on that issue. Our Supreme Court has strictly held zoning commissions and courts to the rule that the reasons for denying an application must be contained in the commission's decision. This court thus concludes that commission has not shown a substantial likelihood of success on this issue.
See, e.g.,
The fourth question presented for review concerns the substantial evidence rule and the requirement of quantifiable probability. The petition for certification refers to testimony and statements from the town's resident state trooper and the commission's traffic consultant concerning the adequacy of a no-left-turn sign at the second access point to deter motorists from turning left without an adequate line of sight. Both said, essentially, that motorists would ignore such signs. At hearings on the first remand, however, the applicant agreed to the suggestion of the commission's experts for a channelized island that would divert motorists leaving the development into a right-turn-only exit lane; and in response to the worry of those experts that such an island might impede the access of emergency equipment, Garden Homes proposed that the channelized island would consist of a " mountable curb" that emergency vehicles could drive over. As this court's 2016 memorandum of decision thoroughly discussed, there was absolutely no evidence that such a solution would not satisfactorily address the problem, and prevent motorists from turning left onto Hurley Road without impeding emergency vehicle access. See 2016 Memorandum of Decision, p. 21-22.
B
Irreparability of Prospective Harm to the Applicant for the Stay
The commission has claimed irreparable harm in the form of environmental impact should Garden Homes begin and then halt construction of the affordable housing development before its completion. The zoning commission has already issued a partial zoning permit authorizing Garden Homes to undertake removal of trees, brush, and stumps and to install sediment and erosion controls on the site, and that work is already underway. Counsel for the commission expressed the concern of the planning and zoning commission that site grading, which is the next phase of construction, would pose serious environmental concerns if stopped or interrupted because of the commission's appeal being sustained.
The court heard extensive evidence on this issue. The commission's engineer testified that temporary measures to control sedimentation and erosion are adequate only during the period of construction, and not over the long term, to protect the nearby wetlands. If the top soil is stripped and the earth is left open--i.e., without adequate vegetation or impervious surfaces in place, then he testified there would be significant runoff from the site into those wetlands, with significant and permanent image to the wetlands and environment. He acknowledged, however, that there are accepted practices that could stabilize the area to protect the wetlands if construction was halted midway. He said his main concern was that the land would not adequately be vegetated to prevent excessive erosion and sedimentation should the project be interrupted before completion.
The evidence showed, however, that Garden Homes plans to construct the site in three-acre phases in specific areas, and that each phase would be at least 75% vegetated before Garden Homes would proceed to the next phased area. The plaintiff's engineer had expressed concern that the bond--in the form of a cash bond and letter of credit--posted by Garden Homes would not be sufficient to allow the town to stabilize the entire property if Garden Homes failed to do so upon interruption of construction. He acknowledged, however, that the developer's bond would be sufficient to allow the town to stabilize an area covered by an individual phase.
The commission did not establish that the temporary measures during the construction phase are inadequate to protect the environment during construction or that, if construction is stopped or interrupted, there are inadequate measures to protect the environment--either in the form of Garden Homes itself vegetating any cleared sites sufficiently to protect nearby wetlands or a bond to allow the town to do so.
C
Effect of Delay Upon Plaintiff
The principal effect of staying the judgment upon Garden Homes appears to be financial--the sooner the development is built, the sooner that Garden Homes can rent the residential units and begin receiving income from the development.
In argument on the motion for stay, counsel for the commission made two claims as to why a stay would not harm Garden Homes. The first was that, under General Statutes § 14-311, the commission's attorney asserted that Garden Homes cannot built the affordable housing development until it has a certificate of operation from the Office of the State Traffic Administration. Garden Homes' president Richard Freedman testified that the plaintiff is applying for an administrative determination pursuant to § 14-311 and will continue work on the development pending review of that application. Hence, it does not appear that the applicability and requirements of this statute will delay construction of development. The other argument was that the development cannot proceed without proper water and sewer approvals, but Garden Homes presented adequate proof that such approvals are likely.
General Statutes § 14-311 provides, in pertinent part, as follows: " (a) No person, firm, corporation, state agency, or municipal agency or combination thereof shall build, expand, establish or operate any open air theater, shopping center or other development generating large volumes of traffic that substantially affect state highway traffic within this state, as determined by the Office of the State Traffic Administration, until such person, firm, corporation, or agency has procured from said office a certificate that the operation thereof will not imperil the safety of the public, except that any development, including any development to be built in phases, without regard to when such phases are approved by the municipal planning and zoning agency or other responsible municipal agency, that contains a total of one hundred or fewer residential units shall not be required to obtain such certificate if such development is a residential-only development and is not part of a mixed-use development that contains office, retail or other such nonresidential uses, provided if any future development increases the total number of residential units to more than one hundred, and such total substantially affects state highway traffic within the state as determined by the Office of the State Traffic Administration, a certificate shall be procured from said office. (b) Except as otherwise provided in this subsection, no local building official shall issue a building or foundation permit to any person, firm, corporation, state agency or municipal agency to build, expand, establish or operate such a development until the person, firm, corporation or agency provides to such official a copy of the certificate issued under this section by the office."
D
Effect of Delay on the Public interest
The public has a strong interest in the maintenance of adequate controls for erosion and other potential adverse environmental impacts from construction on the site, but as discussed above there has been no showing that this interest is not adequately protected.
The public also has a legitimate interest in the creation of affordable housing stock in the town of Oxford, and delay in implementing the order negatively affects that public interest.
E
Conclusion