Opinion
No. HHB CV 06 4010191S
May 3, 2007
Memorandum of Decision
The plaintiff, Halter Estates Senior Community, LLC, has filed this appeal from the decision of the defendant, the Planning and Zoning Commission of the town of Bethany (commission), denying the plaintiff's applications to develop a condominium complex with affordable housing. Defendant Louise Harter (Harter), who intervened in the administrative proceedings under the environmental statutes, has filed a brief supporting the commission's decision.
I A
The procedural history of the case can be briefly summarized. In January 2005, the plaintiff submitted applications to the commission for approval to build a community known as Halter Estates, consisting of fifty-two units housed in twenty-six buildings. The proposal called for sixteen of the fifty-two units to be set aside for affordable housing for households in which at least one person is over the age of fifty-five. After public hearings, and in response to denials of the applications by the commission in October 2005, the plaintiff submitted a modified proposal for forty-eight units, fifteen of which were for affordable housing. On January 4, 2006, after additional public hearings, the commission voted concurrently to deny the applications for the modified proposal. From this decision, the plaintiff appeals pursuant to General Statutes § 8-30g(f).
General Statutes § 8-30g(f) provides: "Any person whose affordable housing application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units in a set-aside development, may appeal such decision pursuant to the procedures of this section. Such appeal shall be filed within the time period for filing appeals as set forth in section 8-8, 8-9, 8-28, 8-30 or 8-30a, as applicable, and shall be made returnable to the superior court for the judicial district where the real property which is the subject of the application is located. Affordable housing appeals, including pretrial motions, shall be heard by a judge assigned by the Chief Court Administrator to hear such appeals. To the extent practicable, efforts shall be made to assign such cases to a small number of judges, sitting in geographically diverse parts of the state, so that a consistent body of expertise can be developed. Unless otherwise ordered by the Chief Court Administrator, such appeals, including pretrial motions, shall be heard by such assigned judges in the judicial district in which such judge is sitting. Appeals taken pursuant to this subsection shall be privileged cases to be heard by the court as soon after the return day as is practicable. Except as otherwise provided in this section, appeals involving an affordable housing application shall proceed in conformance with the provisions of said section 8-8, 8-9, 8-28, 8-30 or 8-30a, as applicable."
B
The record establishes the following additional facts. The proposal called for building the project in the town of Bethany, which is a rural community. Most of Bethany's land falls within a public water supply watershed. Almost all of the town's residents are served by well water drawn from this natural watershed. Bethany has no water pollution control authority and no access to publicly owned treatment works. As a result, regulation of sewage from approved large scale projects in Bethany is a state responsibility.
The property on which the plaintiff proposes to build lies near a light industrial and commercial area. At one point, the property is approximately a 1500-foot distance from Lake Chamberlain, a significant source of public water. The plaintiff's proposal would encompass thirty-three acres, six of which are currently zoned for two-acre lots and twenty-seven of which are currently zoned for three-acre lots. All acres are designated public drinking water supply watershed land.
As of 2000, Bethany had three out of a total of 1792 dwellings that qualify as affordable housing. (Return of Record [ROR], Exhibit 5B, part F.) The commission has stated that it is in favor of providing affordable housing in the town and it has enacted a new elderly housing regulation in part to increase the supply of affordable housing options. (ROR, Exhibits 1Y, p. 40; 13K.) In denying the plaintiff's applications, the commission indicated its willingness to approve, under certain conditions, a development by the plaintiff consisting of fifteen units, five of which would constitute affordable housing. (ROR, Exhibit 1Y, p. 40.)
II
The court finds, based on the hearing in this case, that the plaintiff is both the affordable housing applicant and the owner of the subject property. Despite these indicia of standing, defendant Harter challenges the plaintiff's right to appeal on the ground that its application did not comply with some of the technical requirements of the affordable housing statute and related regulations. The plaintiff counters by contesting Harter's right to raise any issue other than environmental ones. The court agrees with the plaintiff. In the administrative proceedings, Harter filed an intervention petition under General
Statutes § 22a-19, which gave Harter a right to participate only in environmental issues. See Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989). The appeal names Harter only in her capacity as an intervenor under § 22a-19. (Appeal, paragraph 31.) Although there is no dispute that Harter is also an abutting property owner, that status would necessarily confer on Harter only the right to file an appeal as a plaintiff. See Smith v. Planning Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987). Her status as an abutting property owner would not make her an indispensable defendant unless she had also filed the application or initiated proceedings before the commission, which she did not do. See Fong v. Planning Zoning Board of Appeals, 212 Conn. 628, 632-34, 563 A.2d 293 (1989). She is not truly an adverse party to the plaintiff as she took no action against it. In this situation, the interests of "abutters or aggrieved members of the public . . . may be regarded as adequately represented by the board itself . . ." Id., 633. Therefore, Harter has authority only to raise environmental issues.
General Statutes § 22a-19(a) provides: "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state."
Harter's attack on the plaintiff's application claims noncompliance with the statutory requirements that the application name an administrator of an affordability plan, include a housing affordability study, and contain draft zoning regulations. See General Statutes § 8-30g(b)(1)(A), [C], (E). These claims, which focus on housing and economic matters, do not raise environmental issues. See Nizzardo v. State Traffic Commission, 259 Conn. 131, 198, 788 A.2d 1158 (2002) (Borden, J., concurring and dissenting) (agreeing that it would be bizarre to argue that the department of motor vehicles has jurisdiction over environmental issues under § 22a-19 because it "issues licenses to drive, and driving a car can contribute to air pollution"). Accordingly, Harter does not have authority to raise them.
General Statutes § 8-30g(b)(1) provides: "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: (A) Designation of the person, entity or agency that will be responsible for the duration of any affordability restrictions, for the administration of the affordability plan and its compliance with the income limits and sale price or rental restrictions of this chapter; (B) an affirmative fair housing marketing plan governing the sale or rental of all dwelling units; (C) a sample calculation of the maximum sales prices or rents of the intended affordable dwelling units; (D) a description of the projected sequence in which, within a set-aside development, the affordable dwelling units will be built and offered for occupancy and the general location of such units within the proposed development; and (E) draft zoning regulations, conditions of approvals, deeds, restrictive covenants or lease provisions that will govern the affordable dwelling units."
In any event, even if Harter did have authority to raise these claims, they would not refute the plaintiff's standing. To begin with, nothing that Harter argues negates the plaintiff's status as owner of the property affected by the commission's decision. This status in itself renders the plaintiff classically aggrieved and sufficiently confers standing to appeal. See Harris v. Zoning Commission, 259 Conn. 402, 409-15, 788 A.2d 1239 (2002); see also Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 701, 780 A.2d 1 (2001) ("The question of aggrievement is essentially one of standing . . ." [internal quotation marks omitted]).
Further, Harter's claims do not defeat the plaintiff's statutory standing. General Statutes § 8-30g(f) grants the right to appeal to "[a]ny person whose affordable housing application is denied . . ." The statute then defines "affordable housing application" to mean "any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing . . ." General Statutes § 8-30g(a)(2). There can be no valid dispute that the plaintiff has filed such an application. What Harter claims is that the application did not meet certain additional, technical requirements. Yet standing "is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 409. The court accordingly concludes that the plaintiff has standing to appeal.
Even if the court were to consider Harter's claims as properly before the court on the merits of whether the commission should have granted the application, they would not succeed at this juncture. Of the three claims raised by Harter, the only one that appears in the commission's ultimate January 4, 2006 findings is the claim that the plaintiff did not name an administrator. As a remedy, the commission proposes that the plaintiff submit a modified application that designates a proper administrator. (ROR, Exhibit 1Y, pp. 24, 41.) On appeal, the commission's brief merely mentions its finding that "[t]he application contained a series of defects that were not corrected . . ." (Commission's brief, p. 4.) The commission does not brief the matter any further other than to incorporate Harter's brief by reference. In response, the plaintiff asserts that it specifically named Halter Estates as the administrator, but expresses its willingness to consider other entities in that role. Based on this exchange, the court finds that the commission, which bears the burden of proof in this appeal; see River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 25 n. 14, 856 A.2d 973 (2004); has failed to meet its burden of showing that Harter's claims affect "substantial public interests in health, safety, or other matters which the commission may legally consider" or that "such public interests cannot be protected by reasonable changes to the affordable housing development . . ." General Statutes § 8-30g(g); note 5 infra. In short, these matters are better addressed as conditions for approval rather than reasons for denial.
III
General Statutes § 8-30g(g) provides the legislative standard for judicial review of appeals in affordable housing cases. In River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 856 A.2d 973 (2004), our Supreme Court interpreted this standard to impose the following obligation on trial courts reviewing these cases: "[T]he trial court must first determine whether the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. General Statutes § 8-30g(g). 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." (Internal quotation marks omitted.) Id., 26. The Court also noted that the commission bears the burden of persuading the trial court to uphold its decision. Id., 25 n. 14. See also Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 576, 735 A.2d 231 (1999) ("the scope of judicial review under § 8-30g[c] requires the town, not the applicant, to marshal the evidence supporting its decision and to persuade the court that there is sufficient evidence in the record to support the town's decision and the reasons given for that decision" [emphasis in original]).
Section 8-30g(g) provides as follows: "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 this case, the commission made eleven detailed findings concerning the plaintiff's modified zoning and subdivision applications. The commission ultimately denied the application based on these findings. (ROR, Exhibit 1Y, pp. 16-26.) The commission's brief summarizes these findings and the reasons for its denial as follows:
"a. The location of the proposed housing units on [the] site was not feasible due to the need to protect the public water supply;
"b. The on-site well water supply was not demonstrated to be adequate to the project's needs and, if a public waterline were required, the costs would be a significant financial drain on the affordability of the project;
"c. The density of units proposed by the applicant significantly exceeded the dwelling unit density acceptable for the subject properties, which are located in a drinking water supply watershed area;
"d. The subdivision proposal had significant public safety defects and had as its purpose the avoidance of [d]epartment of [e]nvironmental [p]rotection review of the septic system and the resulting increased density on water supply watershed land;
"e. The application contained a series of defects that were not corrected; disparities in size were not addressed; road width and drainage issues raised in the [t]own [e]ngineer's comments were not addressed; no bond estimate was provided for the site work; no pedestrian walkways were proposed and the [i]ntegrated [p]est [m]anagement plan was deficient." Commission's brief, pp. 3-4.
A
The court first 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 main issue throughout the hearings was the potential harm to the nearby public water supply and watershed area. The commission had before it testimony and letters from several experts who expressed concern about the impact of the proposed development in this regard. For example, an environmental analyst from the regional water authority wrote that "[t]he potential impacts to water quality due to increased land disturbance, septic system flows, and stormwater runoff will be greater than that of a residential development allowed under the current zoning." (ROR, Exhibit 13D, p. 2.) Similarly, a supervisor of the source water protection unit at the state department of public health observed that "[i]ntensive development within a public water source protection [area] fosters increased impervious surfaces, loss of vegetation and topographic features with the potential to impede or alter natural runoff and groundwater recharge and degrade water quality." (ROR, Exhibit 14D, p. 1.) In addition, an engineer from the regional water authority criticized what he regarded as the insufficient pollution testing by the plaintiff's consultants of the plaintiff's proposed individual septic systems. (ROR, Exhibit 9L, 13J.)
The court cannot dismiss this evidence as amounting only to speculation or junk science. Given the location of the proposed development in a public watershed area and the proximity of the development to an actual public water supply, the potential for harm to these areas is more than theoretical. Further, the integrity of these areas is an issue of critical importance to the town of Bethany. 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.
B 1
The court must next 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 . . ." Id. This analysis necessarily resumes with the critical issue of the safety of the public water supply. Although there is, as stated, evidence showing more than a theoretical possibility of harm to a watershed from this type of development, the record contains substantial evidence showing that the actual likelihood of harm to the specific area in question is sufficiently low so that the commission's decision becomes unnecessary to the protection of this area. A wetlands analysis reported, for example, that "there will be no adverse impact to Lake Chamberlain. There are no direct wetland impacts associated with this project." (ROR, Exhibit 7C, part 9, p. 3.) Much of the concern focused on the plaintiff's proposal to install individual septic systems for each duplex building. The state department of public health and the Bethany sanitarian approved this proposal. An engineer testified that there were "no public health or safety concerns associated with the design criteria for the water or septic systems." (ROR, Exhibit 4B, p. 36.) His company's report added that "domestic wastewater can be disposed onsite in an appropriate manner that is consistent with the Nitrate-Nitrogen standard applied to larger community septic systems that are subject to [state department of environmental protection], not [state department of public health], review." (ROR, Exhibit 9F, p. 6).
State department of environmental protection standards are more demanding than state department of public health standards, which focus on compliance with the public health code. The department of environmental protection did not have to approve this project because its proposed subdivision into four smaller segments had the effect of putting the project below the agency's jurisdictional threshold. The court discusses this issue in more detail below.
To be sure, the commission had evidence before it that the plaintiff's pollution testing was flawed or at least inconclusive. But it had no evidence that the tests showed any actual harm to the environment. Similarly, although experts testified or reported that a development on a scale similar to that proposed by the plaintiff could potentially degrade water quality, there was no evidence of any specific harm to the watershed or to Lake Chamberlain that would actually occur if the plaintiff were to go forward.
The commission's generalized concerns are not sufficient. The commission bears the burden of proving the necessity of its decision. The commission cannot point to evidence showing the probability that harm in fact would occur to the specific watershed area involved in this case. See Carr v. Planning Zoning Commission, 273 Conn. 573, 608, 872 A.2d 385 (2005) ("the mere possibility of harm to an important public interest is not a valid reason for denying an affordable housing application" [emphasis in original]); Kaufman v. Zoning Commission, 232 Conn. 122, 156, 653 A.2d 798 (1995) ("The record contains no evidence quantifying the potential level of harm to the Lake Kenoshia watershed or estimating the probability that the harm would occur if the zone change were granted.") The commission accordingly has not met its burden on this issue.
The same is true of the commission's concern about the density of the proposed units. The commission found that the plaintiff's proposal would result in density ranging from 0.487 acres per unit to 0.970 acres per unit, which is considerably more dense than the current zoning plan of two or three acres per residence. (ROR, Exhibit 1Y, pp. 21-22.) However, the affordable housing laws seem to contemplate a certain level of increased density. Thus, increased density per se is not a valid basis to deny an application. In this case, the commission, both in its brief and at oral argument, emphasizes that the real concern from increased density is the impact on the Lake Chamberlain public water supply watershed area. Because the court concludes that there is insufficient evidence of an adverse impact to this area, the commission's invocation of density-related concerns does not add to its case.
Were an affordable housing proposal to conform to a town's existing density or zoning plan, there would be less need for the special procedures applicable to affordable housing applicants, such as placing the burden of appeal on the commission, or the provision of General Statutes § 8-30g(b)(1)(E) requiring an applicant to submit "draft zoning regulations . . . that will govern the affordable dwelling units." See Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 715-16; West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 509-10, 636 A.2d 1342 (1994).
Also connected to the topic of density is the commission's point, as stated in its brief, that "[t]he subdivision proposal . . . had as its purpose the avoidance of [d]epartment of [e]nvironmental [p]rotection review of the septic system . . ." (Commission's brief, p. 4.) In its findings, the commission concluded that "the proposed subdivision is proposed solely for the purposes of intensifying density of the proposed development on this property and avoiding DEP review of the septic system designs and wastewater flow allocations with regard to the property of the [regional water authority] and the drinking water supply watershed." (ROR, Exhibit 1Y, p. 23.) The commission stated that "[t]he applicant's attempt to balkanize the property for the purpose [of] intensifying the proposed development is found to be unacceptable." (ROR, Exhibit 1Y, p. 23).
Although the commission's brief mentions this issue, it is Harter, rather than the commission, who briefs it. Because the issue is an environmental one, it is within Harter's role as an intervenor pursuant to General Statutes § 22a-19. The court accordingly will consider it.
These findings relate to the plaintiff's strategy of subdividing its property into four separate lots in order to lower the total wastewater discharge from each lot and thereby avoid the water pollution control standards of the department of environmental protection in favor of less rigorous standards required by the department of public health. See Regs., Conn. State Agencies § 22a-430-1(b). Prior to filing its application, the plaintiff wrote to the department of environmental protection to inquire if it would have jurisdiction over the sewage disposal system for a project that would have four separate
legal entities, each of which would produce fewer than 5,000 gallons of discharge per day. The department responded that on the contrary, it would be the state and local health departments that would have the responsibility for permitting such a project "if the property is subdivided and approved by the Bethany Zoning Commission . . ." (ROR, Exhibit 11A, part A.)
Although the department of environmental protection thus has not objected to the plaintiff's strategy, the plaintiff has not advanced any justification for it other than circumventing more stringent review. The court agrees with the commission that the plaintiff's approach to this matter is not satisfactory. "The courts of this state have never countenanced the tactic of avoiding regulation by organizational Balkanization." (Internal quotation marks omitted.) Wallingford v. Dept of Public Health, 262 Conn. 758, 781, 817 A.2d 644 (2003). The plaintiff's proposed development is essentially unitary. In this environmentally sensitive area of the state, the plaintiff should not become exempt from the highest environmental standards by the tactic of artificially creating separate legal entities.
The department of environmental protection exemption, of course, does not become operative unless the subdivision plan receives approval. While the commission did not approve the subdivision, the plaintiff justifiably argues that this court's reversal of the commission's decision in that regard would have the same effect.
The plaintiff alternatively contends that, because the commission did not convene a subdivision hearing until July 13, 2005, which was more than sixty-five days after the receipt of the application on May 4, 2005, the subdivision application was automatically approved by operation of law. The plaintiff provides no authority for this contention other than its citation to General Statutes §§ 8-7d and 8-26. Section 8-26 provides that a planning commission "shall approve, modify and approve, or disapprove any subdivision or resubdivision application . . . within the period of time permitted under section 8-26d." It adds that "[t]he failure of the commission to act thereon shall be considered as an approval . . ." Section 8-26d provides that public hearings on subdivision applications "shall be held and all decisions made in accordance with the provisions of section 8-7d." Section 8-7d(a), in turn, states that, in a planning commission case, "such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty-five days after such hearing commences . . ." While § 8-26 mandates automatic approval if the commission fails to "act" by making a decision on an application within the statutory time frame, there is no comparable automatic approval language for failure to open the hearing on time. See Miles v. Foley, 253 Conn. 381, 390, 752 A.2d 503 (2000) (purpose of automatic approval rule is to ensure "expeditious action on the part of the commission to enable the applicant to know the status of an application in a timely manner."); Leo Fedus Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 440, 623 A.2d 1007 (1993) (§ 8-26 provides that "failure of a commission to act on a subdivision application within the time limits . . .'shall be considered as an approval.' "). Thus, the court rejects the plaintiff's assertion that it should deem the subdivision application automatically approved.
Beyond the bureaucratic concern is the more important issue of harm to the public. The commission's argument would have more force if it had shown that approval of the plaintiff's septic system plan under the less demanding standards of the department of public health masked some underlying peril to the public water supply. But, as discussed, the commission has failed to make such a showing. The court accordingly concludes that the commission has not met its burden of establishing that the plaintiff's proposal to install individual septic systems jeopardizes the water supply or the adjacent watershed. Nevertheless, because of the importance of testing by the department of environmental protection, and because of the plaintiff's efforts to avoid it, the court orders that, as a condition of approval, the plaintiff submit its proposed septic system testing to the department of environmental protection and obtain its approval.
This condition may not impose a significant burden on the plaintiff, as it claims that its tests already use department of environmental protection protocol.
Because the original basis for creating four separate legal entities no longer exists, the parties should consider whether it would now reduce expenses globally to approve the project as a single legal entity.
2
The next reason asserted by the commission in its brief for the court to approve its decision is that the on-site well water supply was inadequate to service the proposed project. To remedy this problem, the plaintiff proposed, in the first instance, a community drinking well. The regional water authority has agreed to serve as the water supplier for the plaintiff's project and to permit a portion of the sanitary radii from the project to extend onto land it owns.
The plaintiff's proposal would require approval from the state departments of public health and public utility control, and may also require a certificate of public convenience and necessity pursuant to General Statutes §§ 8-25a and 16-262m. The plaintiff has initiated this process but, at the present time, its applications are still pending. The governing rule in this situation is that "[zoning commission action] which is dependent for its proper functioning on action by other agencies and over which the zoning commission has no control cannot be sustained unless the necessary action appears to be a probability." Stiles v. Town Council, 159 Conn. 212, 221, 268 A.2d 395 (1970). While the present case involves applications to state rather than other municipal agencies, it is noteworthy that our Supreme Court has stated 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, Inc. v. Planning Commission, 271 Conn. 41, 59-60, 856 A.2d 959 (2004). Here, the cooperation of the regional water authority and the absence of any evidence that the relevant state agencies will deny the plaintiff's application leads the court to conclude that the necessary coordinate action is a probability. Accordingly, the project can go forward conditioned on obtaining the necessary approvals from the state.
General Statutes § 8-25a provides in pertinent part: "No proposal for a development using water supplied by a company incorporated on or after October 1, 1984, shall be approved by a planning commission or combined planning and zoning commission unless such company has been issued a certificate pursuant to section 16-262m."
General Statutes § 16-262m(b) provides in pertinent part: "(b) No water company may begin the construction of a water supply system, and no water company, except a water company supplying more than two hundred fifty service connections or one thousand persons, may begin expansion of a water supply system without having first obtained a certificate of public convenience and necessity for the construction or expansion from the Department of Public Utility Control and the Department of Public Health . . ."
The plaintiff proposes in the alternative that it extend an existing public water pipeline to serve the community. In view of the probability of state approval for the community drinking well, the court need not address this alternative in detail. It bears mention, however, that the plaintiff's alternative proposal is apparently an expensive one. (ROR, Exhibit 1Y, p. 20.) In the event that the state denies the necessary approval for the community drinking well, the plaintiff and the commission will have to assess anew the economic viability of the project using the alternative proposal.
3 CT Page 6031
The remaining reason for denial identified by the commission in its brief encompasses a variety of matters such as defects in the application, objections to road width, drainage issues, lack of bond estimates, absence of pedestrian walkways, and a deficient pest management plan. The commission's brief, however, does little more than mention these items and thus does nothing to discharge its burden of proof. While these issues undoubtedly have some importance, there is nothing to show that they are "necessary to protect substantial interests in health, safety or other matters that the commission legally may consider . . ." River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26. These matters are best addressed as conditions of approval, which the court has authority to impose pursuant to the last sentence of General Statutes § 8-30g(g). See Carr v. Planning Zoning Commission, supra, 273 Conn. 601. The plaintiff has expressed its willingness to comply with any such reasonable conditions.
C
The next factor to examine is "whether the risk of such harm to such public interests clearly outweighs the need for affordable housing . . ." River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26. As mentioned, the commission has stated that it is in favor of providing affordable housing in the town of Bethany and proposes that the plaintiff develop a modified project with five affordable housing units. It adds, however, that the real need for affordable housing focuses on single-story dwellings for residents sixty-two years and older, rather than for the type of two-story, less age-restricted housing that the plaintiff proposes. (ROR, Exhibit 1Y, p. 21.) The commission has recently enacted regulations that reflect these policies.
As stated, as of 2000, Bethany had only three assisted units out of 1,792 total housing units. The resulting ratio of 0.17 percent not only falls far below the 10 percent safe harbor benchmark in General Statutes § 8-30g(k) that renders the affordable housing appeals provisions inapplicable, but also gives Bethany one of the lowest percentages in the state. (ROR, Exhibit 5B, part F.) While there is no evidence that Bethany has acted with any exclusionary intent, the result is nonetheless that a significant need exists for Bethany to do more in providing affordable housing to residents of our state. Given that the risk of harm to the public interest from the plaintiff's proposal is not high, the court cannot find that this risk "clearly outweighs the need for affordable housing . . ." Therefore, the commission cannot prevail on this factor.
General Statutes § 8-30g(a)(1) defines "[a]ffordable housing development" to include "assisted housing." Subsection (a)(3) defines "[a]ssisted housing" to mean "housing which is receiving, or will receive, financial assistance under any governmental program for the construction or substantial rehabilitation of low and moderate income housing, and any housing occupied by persons receiving rental assistance under chapter 319uu of Section 1437f of Title 42 of the United States Code . . ."
General Statutes § 8-30g(k) provides in pertinent part as follows:
"Notwithstanding the provisions of subsections (a) to (j) inclusive, of this section, the 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 percent 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 percent or less of income, where such income is less than or equal to eighty percent 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 percent or less of income, where such income is less than or equal to eighty percent of the median income . . ."
CT Page 6032
D
The remaining criterion is "whether the public interest can be protected by reasonable changes to the affordable housing development." Id., 26. Because the court has found that the plaintiff's existing proposal does not unduly impair the public interest, there is no occasion to assess the necessity of additional changes. The plaintiff has, in any event, expressed its willingness to make reasonable changes to minimize any adverse impact of its development on the town's health and safety. In particular, the plaintiff has agreed to comply with the conditions set forth in a December 16, 2005 letter from the supervisor of the source water protection unit of the state department of public health. (Plaintiff's brief, p. 13; ROR, Exhibit 14C.) Additionally, the plaintiff agrees to cooperate with the commission with regard to housing size disparity issues, bonding requirements, a pest management plan, and appointment of an administrator. (Plaintiff's brief, pp. 20, 32-33.)IV
Accordingly, pursuant to General Statutes § 8-30g(g), the court reverses the defendant commission's denial of the plaintiff's application and remands the case to the commission with direction to grant the application on the condition that the plaintiff 1) obtain any necessary approval or certification from the state for the community drinking well or, alternatively, demonstrate the economic viability of the project using piped water, 2) obtain approval of its proposed septic system from the state department of environmental protection, and 3) comply with any reasonable conditions imposed by the commission consistent with section III.D. of this opinion.
It is so ordered.
CT Page 6037