Opinion
HHDCV176077573S
11-15-2018
Royce Palmer et al. v. Town of Simsbury Planning Commission
UNPUBLISHED OPINION
File Date: November 16, 2018
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Frazzini, Stephen F., J.T.R.
MEMORANDUM OF DECISION
STEPHEN F. FRAZZINI JUDGE TRIAL REFEREE
The plaintiff Royce Palmer owns approximately 4.4 acres of land, located at 80 Climax Road in the town of Simsbury. The plaintiff Mansour Prime Properties, LLC (MPP) is a joint venture formed to develop that property. On July 16, 2016, the plaintiffs filed an application to build an affordable housing subdivision of nineteen homes on the Climax Road property. After several days of a public hearing, the defendant, the Town of Simsbury Planning Commission (commission), voted on March 28, 2017, to deny that application. The plaintiffs then brought this action as an affordable housing land use appeal under General Statutes § 8-30g challenging the commission’s decision. The court has granted intervenor status to Tall Wood Property, LLC, the owner of land abutting the property on which the plaintiffs seek to build the affordable housing, and to Jeremy Vearil, the sole member of that LLC. The parties appeared for trial of this matter on March 29 and April 4, 2018, after which the matter was continued for a site visit by court and counsel on April 30, 2018, and a subsequent court hearing on May 3, 2018. The parties filed briefs before the trial and supplemental briefs afterward, the last of which was received on July 24, 2018. The court later requested submission of three items omitted from the record that were presented to the commission as necessary for a well reasoned decision. The parties then filed all three items as supplements to the record, the last of which was filed on October 11, 2018. The matter is now ready for decision.
While the commission was considering the motion to deny the application, one of the commissioners did ask to "include some reference" in the resolution to "water flowing across Climax Road sheet-sheet flow of water that would possibly freeze in the winter creating traffic." ROR, Ex. C11, Tr., March 28, 2017, p. 80. The Town Attorney responded that the Town Engineer had not made or adopted that statement, and the commission chair pointed out that "there’s differing opinions on the sheet flow on the road." Id., 80-81. No such language was added.
Subjecting an affordable housing development to a higher standard than the town manual suggests, however, is not a substantial public interest outweighing the need for affordable housing that the commission was entitled to protect, at least in the absence of evidence that such a higher standard was warranted under its regulations. A zoning board lacks discretion or authority to deny an application complying with its regulations. See, e.g., Schuchmann v. Milford, 44 Conn.App. 351, 358, 689 A.2d 513 (holding that a sewer commission may not deny a permit when an application complies with the commission’s own regulations), cert. denied, 240 Conn. 924, 692 A.2d 818 (1997). The town manual suggests use of the rational method employed by the plaintiffs’ expert to determine the volume of runoff for drainage areas, such as that of the plaintiffs’ of less than 200 acres, as does the state manual. Stormwater calculations using that methodology would not support a finding that the proposed subdivision would violate § 5.2.1(j) of the town’s manual, as the amount of runoff from the proposed affordable housing subdivision on the plaintiffs’ property, when calculated using that methodology, is less than the pre-development runoff. Calculations using the methodology employed by the intervenor’s expert, however, lead to the opposite conclusion. Although the rational method is "suggested" by the town design manual for determining runoff from the plaintiffs’ property, the manual does contemplate that "[h]igher standards may be required due to special project or site features." ROR, Ex. D-3, § 5.1.1, p. 5.01. There was no evidence in the record, however, that the characteristics of the particular project or property were such that the "suggested" rational method was inadequate for determining volume of stormwater discharge or that special project or site features required higher methods. Lally’s submissions and presentations said that the rational method was inadequate and inferior, but did not cite any site-specific or project-specific factors that warranted rejecting the rational method here. (Although Lally did have criticisms about "[t]he coefficients of runoff used by the Applicant ... for the Class C soils existing on the site," these criticisms affected "the rates of stormwater runoff," not the methodology for determining amount of runoff. See, e.g., ROR, Ex. 83, Letter from Lally to Def. regarding "Storm Drainage Analysis" dated January 23, 2017, p. 2.) Denying the affordable housing application for a reason for which the only support in the record is derived from one of those "higher standards," without sufficient (or any) evidence that they were "required," is not a sufficient public interest that the commission was legally allowed to consider and that clearly outweighed the need for affordable housing when the methodology "suggested" by the town manual calculates the volume of stormwater discharge at amounts that would not violate § 5.2.1(j) by producing more runoff than before development. It is important to note that the commission did not find or formally adopt as a reason for denying the application Lally’s assertions that massive quantities of stormwater would leave the property after development. Yet, although neither the commission nor the Town Engineer ever adopted the opinions of the intervenor’s expert, the record does contain Lally’s assertions that the plaintiffs’ stormwater system derived from the rational method was inadequate, would fail, and would cause massive flooding off the property after storm events. If Lally’s opinions had been accepted or adopted by the commission, a supposition for which there is no support in the record, there would have been sufficient evidence as to the probability of harm.
Section 5.2.2 of the manual, captioned "Drainage Easements and Right to Drain," states in relevant part: "(c) Rights to Drain: Where the discharge shall be onto private property adjoining the proposed subdivision, the applicant shall secure drainage rights, from the adjacent property owners, in writing." (Underscoring in original.) ROR, Ex. D-3, § 5.2.2(c), p. 5.04.
I
JURISDICTION
As with any administrative appeal, before considering the substantive merits, the court must address aggrievement and standing. "[P]leading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal ... It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003).
At the hearing before this court, the plaintiffs offered evidence establishing that, at the time of the public hearings and trial, the plaintiff Palmer owned the property in question. Deeds showing ownership were introduced into evidence. Palmer is also the president of Mansour Developers, Inc. (MDI). The evidence showed that the other plaintiff, MPP, is a joint venture formed by MDI and Whispering Woods Land Subdividers, LLC (WWLS), a limited liability company that has a contract to purchase the property in question. The evidence further showed that Edward Ferrigno is a member of WWLS and acted as its agent in the various transactions shown in the evidence. Exhibits introduced into evidence showed that WWLS entered into a contract to purchase the property on December 10, 2014, conditioned on subdivision approval within the next year from the town of Simsbury. The evidence further showed that the contract was later extended twice, first to provide enough time to obtain that approval and then to provide time to obtain approval for an affordable housing subdivision, including time for any related appeal. On February 26, 2015, MDI and WWLS entered into a joint venture agreement to form a limited liability company for the purpose of developing the Climax Road property into an affordable housing subdivision and to which WWLS’s contract to purchase the property would be assigned; the joint venture agreement entered into evidence shows that both venturers have an undivided one-half ownership interest in the assets and property of the limited liability company to be created. Evidence was further introduced showing the formation of the plaintiff MPP as a limited liability company, its articles of incorporation listing its two members as Michael Mansour and Edward Ferrigno, and its registration with the Secretary of State of Connecticut on April 7, 2015.
Standing is established by showing that the party claiming it is authorized by statute to bring an action or is classically aggrieved. As the owner of the property in question, the plaintiff Palmer is statutorily aggrieved by the defendant’s decision; Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 702-03, 780 A.2d 1 (2001), citing Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 502, 264 A.2d 566 (1969) (court can find aggrievement based upon a plaintiff’s status as owner); and has standing.
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002), quoting Briggs v. McWeeny, 260 Conn. 296, 308-09, 796 A.2d 516 (2002). Because of the joint venture formed between MDI and WWLS and the subsequent formation of MPP to effectuate that joint venture, MPP will benefit financially by approval of the affordable housing application. Such an approval will trigger the contractual obligation of WWLS to purchase the Climax Road property; under the joint venture agreement between MDI and WWLS, MPP will then have the contractual right to develop the property into the approved affordable housing development. MPP, as the intended developer of the property, need not itself have a written agreement with the owner of the property, for the evidence shows the mutual agreement of all three entities to proceed in that fashion and abide by the agreement for MPP to develop the property. "[A]n agreement between a landowner and a non-owner developer need not be in writing to establish the developer’s aggrievement in a zoning appeal. When the evidence establishes the existence of an oral agreement and the intent of the parties to abide by that agreement, a substantial and legitimate interest in the property exists." (Internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 669-70, 899 A.2d 26 (2006). The evidence here thus establishes that MPP has a direct financial interest in the outcome of this matter, is aggrieved, and has standing.
The affordable housing statute provides an exemption from zoning regulations and a shifting of the burden of proof on appeal in favor of developers constructing affordable housing in Connecticut towns unless at least 10 percent of the town’s housing units qualifies as "affordable" housing. See General Statutes (Sup. 2018) § 8-30g(g) and (k). The commission makes no claim here that the town of Simsbury qualifies for such an exemption, and the evidence showed that, at the time of this case, only approximately 3.7 percent of the town’s housing stock met the statutory definitions of affordability. See ROR, Ex. C-4, Tr. of Regular Commission Meeting and Public Hr’g on November 22, 2016, p. 10. At trial, neither the commission nor the intervenors made any claim that the town of Simsbury was not subject to the requirements of § 8-30g.
Thus, Quirk stated that "[t]he drainage analysis modeling ... demonstrates at 25-year storm event rate 9% decrease and 100-year storm event decrease of 57% ... Given the reduction in runoff rates from the site to less than the rate before development and the connection to the existing Town drainage system, we maintain that the proposed discharge complies with the Town Highway standards. Furthermore, no additional legal rights to drain than the present Town drain outfall are required since the location and rate of discharge are not to increase according to the stormwater modeling." (Emphasis omitted.) ROR, Ex. 94, Mem. dated January 24, 2017, p. 1.
In order to qualify as an affordable housing development covered by the affordable housing statute, a development must set aside 30 percent of the total number of units. General Statutes (Sup. 2018) § 8-30g(a)(6). Pursuant to this statute, of this 30 percent, 15 percent must be affordable for individuals making 80 percent of the area median income and 15 percent must be affordable for individuals making 60 percent of the area median income. Id. All affordable units must be conveyed by deeds requiring the units to remain affordable for forty years. Id. The plaintiffs’ application satisfies these requirements, thus subjecting the parties to the law and procedures set forth in § 8-30g.
II
STANDARD OF REVIEW
The standard of review in a judicial appeal under § 8-30g(g) is twofold in nature. See JPI Partners, LLC v. Planning & Zoning Board, 259 Conn. 675, 690, 791 A.2d 552 (2002). First, "the trial court 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 ... 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." (Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004). "The sufficient evidence standard under the first prong of § 8-30g(g) requires the commission ‘to show a reasonable basis in the record for concluding that its decision was necessary to protect substantial public interests. The record, therefore, must contain evidence concerning the potential harm that would result if [the application were granted] and concerning the probability that such harm in fact would occur.’" AvalonBay Communities, Inc. v. Planning & Zoning Commission, 103 Conn.App. 842, 846-47, 930 A.2d 793 (2007), quoting River Bend Associates, Inc. v. Zoning Commission, supra, 26, quoting Kaufman v. Zoning Commission, 232 Conn. 122, 156, 653 A.2d 798 (1995). Our Supreme Court has also cautioned that § 8-30g requires the commission to show "a quantifiable probability that a specific harm will result if the application is granted." AvalonBay Communities, Inc. v. Planning & Zoning Commission, supra, 853-54, citing Kaufman v. Zoning Commission, supra, 156; see also Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 597, 735 A.2d 231 (1999).
In River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26, the court also described the court’s second obligation: "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." "Under subparagraphs (B), (C) and (D) of the statute ... the court must review the commission’s decision independently, based upon its own scrupulous examination of the record. Therefore, the proper scope of review regarding whether the commission has sustained its burden of proof, namely that: its decision is based upon the protection of some substantial public interest; the public interest clearly outweighs the need for affordable housing; and there are no modifications that reasonably can be made to the application that would permit the application to be granted-requires the court, not to ascertain whether the commission’s decision is supported by sufficient evidence, but to conduct a plenary review of the record in order to make an independent determination on this issue." Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 727.
III
COMMISSION’S REASONS FOR DENIAL
Under the affordable housing statute, "if a town denies an affordable housing land use application, it must state its reasons on the record, and that statement must take the form of a formal, official, collective statement of reasons for its actions." (Internal quotation marks omitted.) Christian Activities Council, Congregational v. Town Council, supra, 249 Conn. 576. The role of the court on appeal is to determine if there is sufficient evidence to support those reasons; see Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 717; not to scrutinize the record to determine if there were other possible reasons that might have supported the decision. West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994).
The commission’s resolution denying the plaintiffs’ application cited ten reasons, which may be summarized as follows: (1) failure to comply with town and state standards regarding intersection sight distances; (2) different grading scenarios contained in the applicant’s grading and sight line profiles made it difficult to determine the actual grading required to accommodate proper sight line; (3) failure to comply with state and town standards regarding intersection separation distances; (4) the affordability plan did not comply with statutory standards; (5) the drainage plan did not comply with town standards that drainage discharge to suitable discharge point; (6) the applicant did not demonstrate a lawful right for storm drainage to flow over private properties downstream; (7) failure to submit valid soil testing in the area of their proposed drainage basins; (8) inadequate data to model accurately the length of time required for each drainage pond to dry; (9) functionality of dry well not proven due to inadequate investigation of the soils surrounding and beneath the dry well; and (10) insufficient topographical information. See ROR, Ex. C-11, Tr., March, 28, 2017, p. 71-79.
IV.
DISCUSSION
Although the commission’s attorney asserted at trial that the commission was "advancing all of the reasons for [the] denial"; Trial Tr. dated March 29, 2018, p. 74; its brief asserted only two reasons for denying the application: traffic safety for not complying with town and state standards regarding intersection sight and separation distances and a "flawed" drainage system. See Def.’s Br. dated December 1, 2017. The court will discuss these in turn, and the issues not briefed are deemed to have been abandoned.
See the text of the Commission Resolution on these issues in footnote 39 above.
A
Traffic Safety
The subject property runs approximately 168 feet along the east side of Climax Road in Simsbury. The southern boundary of the property stands on the town line between Simsbury and Avon and abuts a private drive into properties at the rear of the subject property. The plaintiffs’ application proposed to build a subdivision of nineteen homes located on an interior cul-de-sac named Hendrick Cottage Lane that would connect with Climax Road at the northern edge of the property. Wheeler Road is located on the opposite side of Climax Road from the subject property and intersects Climax Road approximately 143 feet south from the proposed entry point of Hendrick Cottage Road onto Climax Road. Climax Road is classified by the town as a "collector road," based on "the observed average daily traffic volume," meaning that between 1, 000 and 3, 000 vehicles traverse it daily. ROR, Ex. 19, Letter from Christoper O. Granatini, Pls.’ Traffic Engineer, regarding "Traffic Statement for Hendrick Cottages" dated July 18, 2016, p. 1. In a traffic study conducted for the application, average daily weekday traffic was 1, 023 vehicles traveling north and 1, 073 vehicles traveling south, for a total of 2, 096 vehicles. Id. Saturday traffic consisted of 1, 630 vehicles, 814 of them traveling north and 816 of them traveling south. Id. Climax Road has one travel lane in each direction, with a posted speed limit of 35 miles per hour on the Simsbury side and 25 miles per hour on the Avon side. Id. The average speed during the traffic study was 45 miles per hour northbound and 47 miles per hour southbound. Id. "Within the vicinity of the project site, Climax Road is approximately 31 to 32 feet wide. As you head south into the Town of Avon, the road narrows to approximately 24 feet wide. As you extend north through the Town of Simsbury, Climax Road is essentially anywhere between 30 feet wide up to approximately 33 feet wide." ROR, Ex. C-4, Tr., November 22, 2016, remarks of Pls.’ traffic consultant Christopher Granatini, p. 31.
Quirk’s January 24, 2017 memorandum stated that such testing had been conducted at approximate elevations of 305.7 feet and 309.2 feet in test pits A and B in Pond 1, where the bottom elevation is 303 feet, and at approximate elevations of 301.2 and 306.2 in test pits C and D in Pond 2, where the bottom elevation is 302 feet. ROR, Ex. 94, p. 2.
1. Intersection Sight Distance
The commission’s first reason for denying the plaintiff’s application was that the proposed location for Hendrick Cottage Lane, the access road from the subdivision onto Climax Road, did not satisfy the requirements of the Town of Simsbury Highway Construction and Design Standards and the State of Connecticut Highway Design Manual for "intersection sight distance" (ISD), which refers to how far a driver stopped at an intersection can see down the intersecting roadway. Section 3.2.5 of Simsbury’s Highway Construction and Design Standards provides that the minimum sight distance for intersections on a collector road is 475 feet, "measured from a point on the intersecting road 20 feet from the edge of the other road pavement." ROR, Ex. D-3, § 3.2.5, p. 3.03-3.04. The town’s intersection sight distance criteria are "uniformly applied by the standards for all collector roadways ... [and] do not make any adjustments for actual travel speeds on the road ..." (Emphasis omitted.) ROR, Ex. 19, p. 4. The State of Connecticut Department of Transportation (CTDOT) Highway Design Manual, written in 2003, on the other hand, uses actual observed roadway traffic speeds to calculate intersection sight distances, and, based on the 85th percentile average observed speeds, its minimum intersection sight distance for the Climax Road project is 520 feet looking to the right and 500 feet looking to the left, measured fifteen feet from the edge of Climax Road. ROR, Ex. 19, p. 4.
For unexplained reasons, the full text of Shea’s "Application Comments" dated January 20, 2017, was not contained in the record originally filed. After request from the court, the parties filed those comments in a supplement to the record on October 5, 2018.
The record established that the plaintiffs’ application comported with both state and local standards for intersection sight distance looking northward (to the right) down Climax Road into Simsbury from the proposed Hendrick Cottage Lane, but did not meet either standard looking southward (to the left) toward the Avon portion of Climax Road due to the geometry of the roadway, the width of Climax Road, and the location and proximity of other properties and vegetation that partially obstruct the view in that direction. As this court has recognized in the past, an adequate line of sight from Hendrick Cottage Road looking southward onto Climax Road was an obvious and legitimate traffic safety issue that the commission could consider.
As noted above, the traffic safety issues encompass the grading issue adopted by the commission in its second reason for denying the plaintiffs’ affordable housing subdivision application.
The plaintiffs’ initial response to the deviation from town and state standards for intersection sight distance was to assert that "stopping sight distance" (SSD), defined in this context as the distance necessary for a driver on Climax Road to stop safely and avoid an object entering Climax Road from Hendrick Cottage Lane, is "the more important sight distance provision" because it "allows the traveling driver, in this case the driver along Climax Road, to safely stop before an upcoming object," whereas intersection sight distance "is intended to enhance operations without disrupting street travel speed." See ROR, Ex. 74, Letter from Christopher O. Granatini to James D. Rabbitt, Town Director of Planning and Community Development, dated January 6, 2017, p. 2-3. The plaintiffs asserted that the stopping sight distance is "a safety standard," whereas intersection sight distance is merely "an operational efficiency standard." See ROR, Ex. C-7, Tr. of Regular Commission Meeting and Public Hr’g on January 24, 2017, remarks of Pls.’ counsel, p. 87-88. The evidence did show that northbound traffic on Climax Road toward the Hendrick Cottage Lane intersection would have stopping sight distance of 520 feet, exceeding town and state standards.
AvalonBay Communities, Inc. v. Zoning Commission, 284 Conn. 124, 140-41 n.15, 931 A.2d 879 (2007). We discuss one aspect of the commission’s substantive claims, because it relates to the proper interpretation of the trial court’s remand order. The commission claimed that the trial court’s remand order was improper because it had the effect of improperly directing the commission to redesign the plaintiff’s affordable housing application. This argument is based on the commission’s assumption that the trial court sustained the plaintiff’s appeal and ordered the commission to grant the plaintiff’s application subject to reasonable conditions and changes. As discussed previously, we disagree with that interpretation of the trial court’s order. The affordable housing appeals statutes authorize trial courts to employ much more expansive remedies than are available to courts in traditional zoning appeals. Specifically, § 8-30g(g) provides that, if the commission does not meet its burden of proof, "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." The trial court applied the balancing test and explicitly determined that the commission had failed to meet its burden of proving that reasonable changes could not be made that would protect the public interest ... Rather than order the commission to grant the application on remand, which it had the power to do, the trial court chose instead to exercise the power of remand granted to it by § 8-30g(g) by ordering the commission to provide the court with more evidence. Thus, the trial court reserved judgment concerning approval of the plaintiff’s application pending the results of its remand order.
In view of the upcoming wintry season, the court is hesitant to schedule deadlines without knowing whether and when plaintiffs could accomplish any additional testing they might wish to conduct.
The commission’s insistence in its decision that "lack of proper sight lines is a public safety concern" was supported by sufficient evidence in the record. The record establishes that an inadequate line of sight (intersection sight distance) for an object entering Climax Road from Hendrick Cottage Lane presents "more than a mere theoretical possibility, but not necessarily a likelihood, of specific harm to the public interest." Public safety should not depend solely on whether a driver on Climax Road is sober and unimpaired, and has enough distance to stop and avoid an object entering from the subdivision (stopping sight distance). The need for public safety may also properly and legitimately require that a driver entering Climax Road from Hendrick Cottage Lane is able to see far enough down Climax Road to observe approaching vehicles and their manner of operation (intersection sight distance). The court thus concludes that stopping sight distance in conformity with state or local standards does not obviate the safety issue. One issue this appeal raises is whether the commission properly rejected the plaintiffs’ application for not complying with town or state standards for intersection sight distance.
a. Alternative One: Striping on Climax Road
The plaintiffs proposed two alternatives to address this problem. One proposed solution was to place striping along both outer edges of Climax Road in Simsbury so as to create eleven-foot wide travel lanes and five-foot shoulder areas in each direction; ROR, Ex. 19, p. 4; and the striping on Climax Road would end at the Avon town line. After regrading and vegetation clearance on public lands, the introduction of a white striped line establishing a minimum of a four-foot wide shoulder area on the east side of the Simsbury portion of Climax Road would satisfy the state intersection sight distance requirement of 500 feet visibility from a distance of fifteen feet from the edge of the road. Id., p. 2. As the commission’s decision noted, however, that proposal, "was rejected" (for safety reasons) by both the town’s Director of Public Works and its Chief of Police, 12 the latter of whom also serves as the town’s legal traffic authority and whose permission is required, under General Statutes § 14-29713 and § 14-298-601 of the Regulations of Connecticut State Agencies, 14 to place striping on the road.
The possibility of intervenors also submitting additional evidence will be considered at the status conference.
The police chief’s disapproval was sufficient evidence for the commission to reject the striping proposal, because the commission did not itself have authority to authorize striping on Climax Road, which would instead require approval of the town’s legal traffic authority. The affordable housing statute, however, allows a zoning commission to attach reasonable conditions to the approval of an affordable housing application. To accept the striping proposal, the commission would have had to approve the plaintiffs’ application on the condition that the local traffic authority approve the striping. In affordable housing cases, "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, supra, 271 Conn. 59-60. Where the evidence shows, however, as it does here, that approval by the other municipal agency is unlikely, a zoning authority has no such authority. Id., 57 ("a commission cannot impose conditions on a subdivision approval that are unlikely to be fulfilled"). The commission therefore properly rejected the plaintiffs’ proposal for striping as a method of achieving an adequate line of sight.
b. Alternative Two-Measuring Intersection Sight Distance from Eleven Feet
The plaintiffs’ other alternative was to show that, at a distance of eleven feet from the edge of the (unstriped) roadway, a driver in a vehicle on Hendrick Cottage Road could see southward down Climax Road for more than the state or local standards for intersection sight distance. The plaintiffs also presented evidence that such an "11’ offset from the edge of the roadway is considered consistent with the 2011 AASHTO [American Association of State Highway Traffic Officials] ‘A Policy on Geometric Design of Highways and Streets’ (2011 Green Book)." ROR, Ex. 74, p. 2.15
In this technical publication, which serves as the policy basis for CTDOT’s Intersection Sight Distance’ methodology, the following language is provided:
Field observations of vehicle stopping positions found that, where needed, drivers will stop with the front of their vehicle 6.5’ or less from the edge of the major-road traveled way. Measurements of passenger cars indicate that the distance from the front of the vehicle to the driver’s eye for the current U.S. passenger car population is nearly always 8 feet or less.
Based on this empirical field data presented in the 2011 Green Book, a driver would be able to advance the vehicle to a driver’s eye offset of 11 feet from the edge of Climax Road and be able to see the minimum required ISD looking to the left (500 feet), and still have approximately 3 feet between the front of their vehicle and the edge of Climax Road.(Emphasis in original; footnote added.) Id., 3. At the public hearing on January 10, 2017, Granatini stated his opinion that "at an 11-foot offset [a vehicle] would be still sitting on Hendricks Cottage Lane with the available sight distance that they can see to the south ... [and] the intersection is therefore safe." ROR, Ex. C-6, Tr. of Regular Commission Meeting and Public Hr’g on January 10, 2017, p. 18. The town’s Highway Construction and Design Standards, however, measure intersection sight distance "from a point on the intersecting road 20 feet from the edge of the other road pavement"; ROR, Ex. D-3, § 3.2.5, p. 3.04; while the State of Connecticut Highway Design Manual measures it at fifteen feet from the edge of the intersecting roadway.17
The commission’s first stated reason for denying the plaintiffs’ application was for failing to comply with the town’s and state’s intersection sight distance requirements. In the recent case of Brenmor Properties, LLC v. Planning & Zoning Commission, 162 Conn.App. 678, 700, 136 A.3d 24 (2016), aff’d, 326 Conn. 55, 161 A.3d 545 (2017), however, our Appellate Court held that failure to comply with a local road ordinance is not, per se, a sufficient basis to sustain the denial of an affordable housing application. That case highlights the twofold nature of the standard of review embodied in § 8-30g(g) affordable housing cases. Id., 694.
The court held in Brenmor that "noncompliance with a municipal legislative enactment intended to protect the public health and safety constitutes evidence sufficient to satisfy the minimal threshold determination under § 8-30g(g)" of establishing more than a theoretical possibility of a specific harm to the public interest. Id., 697. The local road ordinance here is contained in the town’s Highway Construction and Design Standards, which specifically state that their "intended [purpose is] to provide the best possible design and construction of public improvements in terms of service, safety, and economy and ease of long-term maintenance." ROR, Ex. D-3, § 1.3, p. 1.01. This language is similar to the language the town used in Brenmor, which that court concluded showed the purpose "to protect the public health and safety."18 Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 697. This court must thus conclude that the commission’s decision here to deny the plaintiffs’ application for not complying with the intersection sight distance requirements set forth in the local road ordinance meets the first prong of the sufficient evidence standard that there be "more than a mere theoretical possibility, but not necessarily a likelihood, of specific harm to the public interest if the application is granted," and the plaintiffs do not appear to contest this proposition.
The town’s denial of the affordable housing application foundered in Brenmor, however, on the second prong of the statute. That court specifically rejected the town’s argument there that" ‘any deviation’ from the requirements set forth in the road ordinance entitles it to deny an affordable housing application." Id., 697. In so doing, it recited the broad purposes of the affordable housing statute:
Noncompliance with a municipal legislative enactment alone does not furnish a proper basis for a land use agency to deny an affordable housing application. Rather, the agency also must determine whether, in light of the rationale underlying the municipal legislative enactment, compliance is necessary to protect a substantial public interest and whether the risk of harm to that interest clearly outweighs the need for affordable housing. * * * [W]hether the issue is noncompliance with a municipal zoning regulation or noncompliance with a municipal road ordinance, the inquiry is the same. Thus, "[i]nstead of simply questioning whether the application complies with [the municipal legislative enactment at issue] ... under § 8-30g, the commission considers the rationale behind the [enactment] to determine whether [compliance is] necessary to protect substantial public interests in health, safety or other matters ... The commission must look at the rationale behind [the enactment] to determine if there is a substantial interest, outweighing the need for affordable housing, that must be protected by the denial of an application." ... In sum, we agree with the commission that "the establishment of town-wide standards for road construction is matter of public health and safety that a commission may properly consider under the affordable housing appeals act." We disagree with the commission’s contention that any deviation from those standards constitutes a "per se" ground for denial of an affordable housing application ... [T]he commission must further demonstrate, as part of its burden in an affordable housing appeal, that compliance with such standards is necessary to protect the public interest, that the risk of harm thereto clearly outweighs the need for affordable housing, and that the public interest cannot be protected by reasonable changes to the affordable housing development.(Citations omitted; emphasis in original.) Id., 698-700. This rule is consistent with the construction of the affordable housing statute since the first cases applying it. See, e.g., Wisniowski v. Planning Commission, 37 Conn.App. 303, 317, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995) ("Section 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").
The specific issue here is whether the town’s denial of an affordable housing application that proposed measuring the intersection sight distance from a distance of eleven feet from Climax Road, rather than from the fifteen or twenty feet distances set forth in the state and local standards, was necessary to protect a substantial public interest in traffic safety that clearly outweighs the need for affordable housing. The commission’s decision denying the plaintiffs’ application did not consider or recite this question. Moreover, the record is devoid of any evidence that measuring intersection sight distance from eleven feet away from Climax Road poses a risk to public safety. In their briefs and throughout trial, the commission and intervenors present several arguments on why noncompliance with the state and local standards should be considered sufficient to meet the second prong of § 8-30g(g), but none of these arguments shows that such compliance was necessary to protect the public interest or outweighed the need for affordable housing.
First, the commission argues that the 2011 AASHTO Green Book "is a policy, rather than a design standard ... [and] does not contain standards for intersection sight distances." (Citation omitted; emphasis in original.) Def.’s Br. dated December 1, 2017, p. 19. Although acknowledging that "AASHTO is a national reference guide to be used by traffic engineers in formulating their traffic reports and by civil engineers in designing road systems"19 and that "the Town Design Manual incorporates AASHTO ... as a reference to be used in applying the Design Manual, "20 the commission asserts that "it is not intended to replace specific town and state standards for highway design." Def.’s Post-Hr’g Br. dated June 8, 2018, p. 11. The record shows that the AASHTO manual has been developed based on actual observations of motorist habits, established practices, and recent research. The record also shows that it is a widely employed resource that guides and serves as the basis for road and highway planners at all levels of government. Even if not a "standard," the 2011 AASHTO Green Book contains relevant information derived from field studies about driving habits and practices; more specifically, it states that "where needed," drivers typically stop with the front of their vehicle within 6.5 feet from the edge of intersecting roads. ROR, Ex. 74, p. 3. This information suggests that, regardless of the distance from which ISD has been calculated, motorists exiting Hendrick Cottage Road would typically stop their vehicle in the last 6.5 feet from the edge of Climax Road to assess visibility. Within that 6.5-foot zone, when the front of their vehicle reached three feet from the edge of Climax Road, with their eyes eleven feet from that road edge, motorists would have an adequate line of sight southward on Climax Road.
The commission also sought to portray the commission’s decision to reject the plaintiffs’ proposal as within its purview of evaluating the experts’ opinions. A zoning commission is generally allowed to make credibility decisions in terms of which witness it will believe and, when presented with conflicting expert opinions, is entitled to decide which witness to believe. In affordable housing cases, however, if a commission decides to disbelieve expert opinions offered by an applicant’s expert, that commission must have sufficient evidence in the record to warrant doing so. "Although 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 omitted.) Kaufman v. Zoning Commission, supra, 232 Conn. 156-57. A conflicting expert opinion could be such evidence, but, contrary to the commission’s claims, there was no conflicting expert opinion challenging the opinion of the plaintiffs’ expert that measuring the line of sight with the driver’s eye eleven feet from Climax Road was safe.
The commission claims that evidence in the record from the intervenor’s traffic expert and the Town Engineer supports its decision to reject the opinion of the plaintiffs’ expert that it was safe to assess sight distance at the eleven-foot mark.21 The court has reviewed the record for evidence regarding opinions from Scott Hesketh, the intervenor’s traffic expert, and James Shea, the Town Engineer, about the safety of the plaintiffs’ proposal. The intervenor submitted three sets of written comments from its traffic expert. The first was Exhibit 45, a letter dated November 18, 2016, signed by Scott Hesketh, professional engineer. The second was Exhibit 61, a letter dated December 9, 2016, again signed by Hesketh. The third was Exhibit 84, a letter dated January 23, 2017, also signed by Hesketh. None of these exhibits states that the plaintiffs’ proposal to measure line of sight southward at a distance of eleven feet away from the edge of Climax Road is unsafe, or even directly addresses this proposal from the plaintiffs. In these exhibits and in his testimony before the commission, Hesketh instead opined more generally, stating, for example, that the commission "should defer to the Town standard on roadways which are owned, maintained and operated by the Town. So the design standards as provided by the Town are in my opinion the controlling criteria here." ROR, Ex. C-5, Tr. of Regular Commission Meeting and Public Hr’g on December 13, 2016, p. 61. Hesketh’s only comment that might be construed as addressing line of sight from eleven feet away was that
the plans as submitted are a little confusing. They seem to show that the sight line still looks through the existing ground pavement and they do not demonstrate that they’re doing enough clearing or enough grading or enough anything there to achieve those sight distances.
In addition, the plans which were submitted do show that with some grading and the driver’s eye closer to the end of pavement, they can see the 500-foot distance at one point. But because of the geometry of Climax Road there is a dip in the pavement and the pavement comes back up; they have not demonstrated that they can see a vehicle approaching them continuously from the 500-foot distance all the way to the driveway ...Id., 55-56.22
The town’s reply brief refers to a similar statement made by the Town Engineer, Shea, as evidence in the record to support its decision to reject the opinion of the plaintiff’s traffic expert.’ The full text of Shea’s statement is as follows:
The applicant does not satisfy the requirements of the Town of Simsbury for intersection sight distance because of limitation to grading rights available to accomplish this standard. In consideration of the Town of Simsbury intersection sight distance requirements, I cannot provide a favorable recommendation for the application relative to intersection sight distance requirements.ROR, Ex. 96, Mem. from Shea to Rabbitt regarding "Application Comments" dated March 10, 2017, p. 3. This statement focuses, however, on the plaintiff’s failure to satisfy the town standard "because of limitation to grading rights available" and makes no comment on their proposal to measure line of sight from eleven feet. In none of the application comments prepared by Shea did he refer to the safety of using an eleven-foot setback to measure line of sight as proposed by the plaintiffs’ traffic safety expert.
The grading issue mentioned by Shea in the March 10 Application Comments was discussed extensively at the public hearing on January 24, 2017. On that occasion, Andrew Quirk, the plaintiffs’ traffic expert, said that he had just submitted a new drawing sheet, G3, 24 to the Town Engineer, which Granatini said shows that "the sight line is about a foot in front of the property line." ROR, Ex. C-7, Tr., January 24, 2017, p. 71. The regrading results in "clear sight lines looking to the left." Id., 74.25 James Rabbit, the Town Planner, then noted that the plans needed to be "modified to reflect the consistency between G3 and the proposed grading shown on other plans." Id., 74-75.26
The commission also attempts to distinguish this situation from that in Brenmor by arguing that the court there "concluded that the commission could not consider the road standards at issue (dealing with road widths) as absolute, where the language of the ordinance at issue allowed alternate designs and contemplated construction of roads that deviated from the standards." Def.’s Post-Hr’g Br. dated June 8, 2018, p. 7.27 The Brenmor court did not, however, require a town ordinance permitting variation from its strictures as a condition for deviating from town standards. Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 697. The pivotal factor in that court’s decision28 and the Supreme Court’s affirmance29 was the opinion of the developer’s expert that the proposed road design was safe and the lack of any evidence in the record to the contrary. Moreover, contrary to the commission’s claims here, the town’s Highway Construction and Design Standards do not bar alternative designs not conforming to the town’s standards, but instead allow "the use of new and innovating design methods" where "substantiating documentation is submitted for approval, "30 and, as noted in footnote 20 above, specifically refer to AASHTO guidelines as a reference for using its own standards.
Finally, the commission argues that it could rely on the experience and opinions of its own members to reject the opinion of the plaintiffs’ expert. As the commission has asserted, the Supreme Court did indicate in Kaufman v. Zoning Commission, supra, 232 Conn. 156, that testimony from commission members or lay witnesses may provide a sufficient basis to reject expert opinion on nontechnical matters, but the court there "assumed" that proposition "without deciding" it. That court reiterated, however, that "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." Id., 157.
Here, the commission points to remarks made by three commissioners at the commission meeting on March 28, 2017: "Lastly, at least three Commissioners viewed the site and concluded that the new intersection, if built, would not be safe because of the obstructed site line to the left and the heavy traffic on Climax Road." Def.’s Post-Hr’g Br. dated June 8, 2018, p. 10. The court has reviewed those remarks, however, and they all simply address the fact that vision is limited southward on Climax Road from the portion of the subject property where the plaintiffs propose to build their access road.31 To address the line of sight issues, however, the plaintiffs proposed to regrade and remove some vegetation (to reduce visual obstructions looking southward), and their expert asserted, without contradiction in the record, that those changes would provide an adequate line of sight south for a motorist eleven feet from the edge of Climax Road to enter the road safely. None of the commissioners specifically challenged the visibility or line of sight from this distance and with these changes.
The last three sentences of the commission’s first reason for denying the plaintiffs’ application for not complying with the town’s intersection sight distance requirements also refer to Simsbury’s location in a "northern climate" in which "snow is common place during the winter season" and assert that the need to remove snow "from the shoulders of the road to maintain sightline creates an unsafe condition even in minimal snow events." See ROR, Ex. C-11, Tr., March 28, 2017, p. 72-73. The record does show that the town will have responsibility for removing snow from Climax Road, but this portion of the commission’s first reason asserts that snow cleared from the road could accumulate on the shoulder and thereby obstruct line of sight. The same would be true, however, if this development had provided an adequate sight line southward at fifteen feet, in compliance with the state standard, or at twenty feet, in compliance with the town standard. Wintry elements obstructing vision of motorists are common in New England, and all Connecticut motorists are familiar with having to creep forward slowly at an intersection to peer around snow piled on sidewalks or shoulders that block a clear line of sight.
The Brenmor case was the first appellate decision expressly addressing the legal significance of town road standards. That decision follows a long line of cases holding that more than generalized statements regarding public safety are necessary to sustain a denial of affordable housing. As the court in Brenmor noted, moreover, in order for a commission to meet its burden in a § 8-30g case to show that denial of an affordable housing application is necessary to protect substantial public interests that outweigh the need for affordable housing, "the administrative record must contain evidence in the record concerning the probability that such harm in fact would occur." (Internal quotation marks omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 704. Here, as in Brenmor, "[t]he commission has identified no such evidence regarding the probability of harm to the public health and safety in the record"; id.; such as, for example, any increased likelihood of traffic accidents if the line of sight were measured eleven feet from the roadway rather than twenty feet.32
The public safety issue is whether motorists on Hendrick Cottage Road will be able to see far enough southward to determine whether it is safe to enter onto Climax Road. There is no doubt that traffic safety is a legitimate issue of substantial public interest that a commission may consider, and that an unsafe traffic plan that cannot be modified outweighs the need for affordable housing and is a valid reason to deny an affordable housing application. On the issue of intersection sight distance, however, the record does not contain sufficient evidence to justify rejecting the expert opinion of the plaintiffs’ traffic engineer that this intersection would be safe with a 500-foot line of sight southward measured eleven feet away from the edge of Climax Road. Motorists on Hendrick Cottage Road looking left will be able to see northbound traffic 500 feet away on Climax Road, the minimum ISD under the state standard, from a distance of eleven feet from the edge of Climax Road, while those traversing Climax Road will similarly be able to see vehicles entering from Hendrick Cottage Road at a distance of 500 feet, which exceeds the minimum stopping sight distance for the road under the state and local manuals.
There is no evidence in the record that compliance with the local requirement that intersection sight distance be measured twenty feet from the roadway edge or the state requirement that ISD be measured at fifteen feet from the roadway is necessary to protect the public interest, when motorists will be able to see safely at eleven feet from the roadway edge. The AASHTO research indicates that motorists will move the edge of their vehicles forward, past the twenty-foot and fifteen-foot distances and into a six-and-one-half-foot zone, in order to assess line of sight. At eleven feet from Climax Road, they will be able to see 500 feet to the south. In the present case, the commission has not sustained its burden to show evidence in the record that supports its decision not to accept the opinion of the plaintiffs’ traffic expert that the intersection would be safe after vegetation removal and road grading or that denying the plaintiffs’ application for not complying with the town or state ISD standard is necessary to protect a substantial public interest that clearly outweighs the need for affordable housing.
2. Intersection Separation Distance
The commission’s other traffic safety reason was that the application did not comply with state or local criteria for "intersection separation distance" between Hendrick Cottage Road and Wheeler Road, 33 a street that dead-ends at the westernmost lane of Climax Road, 143 feet to the south of Hendrick Cottage Road (and on the opposite side of Climax Road from the subject property). Motorists entering Climax Road from either Wheeler Road or Hendrick Cottage Road would be able to see each other. Other than failing to comply with the town standard, the record is devoid of any evidence that this issue poses a safety problem. In his final "Application Comments" for the commission on March 10, 2017, for example, the Town Engineer does not recommend denying the application on this ground, unlike his statement in a previous paragraph of those comments that he could not provide a favorable recommendation because of the application’s failure to comply with the town’s intersection sight distance requirements. See ROR, Ex. 96, p. 3. On the issue of intersection separation distance, he merely noted the discrepancy between the plaintiffs’ application and the town standard and stated that "[t]he applicant should request a waiver of this requirement from the Planning Commission." Id.
The plaintiffs’ engineer, moreover, opined that "the intersection spacing will not have a negative impact on public safety." ROR, Ex. 94, Mem. from Quirk to Rabbitt and Shea dated January 24, 2017, "Traffic/Roadway Impacts" section, cmt. 3, p. 4. Two trucks entering Climax Road at the same time from the two different intersecting roads, Wheeler Road and Hendrick Cottage Road, could not only see each other but could "make opposing left turns towards each other and not intercept each other’s turning paths prior to entering their traffic lane." See id. In addition, two local streets that intersect Climax Road less than one mile to the north have "spacing ... almost identical to [this] spacing." Id. With such expert opinion and none to the contrary undermining that expert’s credibility or conclusion on this point, the commission had no basis in the record to reject that opinion. See Kaufman v. Zoning Commission, supra, 232 Conn. 156-57. There was also no evidence in the record that enforcing the 200-foot intersection distance standard for an affordable housing subdivision but not for the other two nearby intersections was "necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider" or that "such public interests clearly outweigh the need for affordable housing."
Moreover, there is no evidence in the record as to a quantifiable level of harm or risk. The harm in this matter is not difficult to discern: for traffic safety, the "harm" is the risk of traffic accidents. On the issue of intersection separation distance, just as with intersection sight distance, the commission’s desire to rely on the town’s promulgated standard had to be, but was not, supplemented by evidence in the record "concerning the probability that such harm would occur." Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 704, quoting Kaufman v. Zoning Commission, supra, 232 Conn. 156, and citing 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).34
B
Storm Drainage
The property at 80 Climax Road is a wooded site with one house and various outbuildings. The property slopes gently from the northern and eastern edges of the property, which are located at elevations ranging from 313 feet to 316 feet above sea level, toward the western and southern edges of the property on Climax Road and Tallwood Drive, which are set at elevations ranging from 303 feet to 309 feet above sea level. The western boundary on Climax Road is the lowest portion of the property.35 A private well and septic system currently being used will be replaced after development by public water and sewer. Water runoff from the property currently drains toward either Tallwood Drive to the south or Climax Road to the west. The nineteen homes that the plaintiffs propose to build there will each have attendant lawns and driveways leading into the cul-de-sac (Hendrick Cottage Road) that ends at Climax Road.
As part of their application, the plaintiffs submitted a storm water drainage plan prepared by their engineer, as described in his written plans:
In the pre-development condition, the site is described by two watersheds draining from the crest towards Climax Road ..."EX#1" watershed drains to a small depression near Climax Road before eventually draining to an unnamed watercourse running southerly from Evans Drive to Wheeler Road. "EX2" drains across private Tallwood Drive to an offsite depression. In the post-development, the site is described by a similar two watersheds ... The new home roof water runoff is collected in an underground groundwater recharge system.36 The Town Road and other site runoff is collected and detained in a series of two stormwater basins. An 18" deep bio-retention soil mixture, a drywell in each basin and conservation seed mixtures are proposed to provide year round opportunity for infiltration and biological uptake. Outlet control structures devices are proposed for each basin so as to attenuate discharge rates to less than the present 25-year storm rates. Any discharge is to be conveyed by a storm pipe to the Town drainage cross culvert associated with the low point in Climax Road just as an overflow from the present site.(Footnote added.) ROR, Ex. 48, "Stormwater Management Report 7/15/16 Revised 11/15/16" (Stormwater Management Report), Executive Summary p. 1. The plaintiffs’ proposed storm water management system would thus consist of water kept on-site and water leaving the site. The on-site system would use an "underground groundwater recharge system"37 for roof runoff, two dry wells, and "conservation seed mixtures ... to provide year round opportunity for infiltration and biological uptake." Id. Driveway and other storm water runoff would be directed on-site to two "storm water basins" with dry wells to retain runoff.38 Id. Any excess runoff would be collected and diverted via an underground pipe to an existing town culvert of the town’s drainage system at the low point of Climax Road on the east side of that road and north of the subject property. Storm water runoff from the property would there join other water flowing through the culvert under the road to the west side of Climax Road and then on a preexisting watercourse along Evans Road and adjacent private property. According to the plaintiffs’ engineer, "the watersheds associated with this property make up only about 1% of the overall 75-acre watershed that leads to Evans Drive." ROR, Ex. C-6, Tr., January 10, 2017, p. 28-29.
Five of the reasons contained in the commission’s resolution statement denying the plaintiffs’ application pertained to their proposed stormwater drainage system.39 These issues may be summarized as suitability of the storm drainage discharge point, drainage through downstream private properties, invalid soil testing near the proposed drainage basins, inadequate infiltration data regarding length of time for drainage ponds to dry, and unproven functionality of dry wells.
Regarding the adequacy of the plaintiffs’ stormwater drainage system, unlike the traffic safety issue, the commission had contradictory opinions from two experts. Andrew Quirk, the engineer for the plaintiffs who designed the stormwater drainage system, said that the system would reduce runoff from the property; Ed Lally, an engineer retained by the intervenor, said that massive quantities of water would flow from the site and cause flooding of streets and downstream properties.40 Each engineer used a different methodology to determine stormwater drainage, and there appears to be no question about the results each engineer derived from the particular methodology employed.
The methodology employed by the plaintiffs’ engineer, the "rational method," is the one suggested by the town’s Highway and Construction Standards41 and the state Department of Transportation’s drainage manual42 to be used for determining runoff from drainage areas of less than 200 acres, as the subject property is. Rabbitt, the town’s Director of Planning and Community Development, told the commission that "on smaller sites it’s ... been accepted to use rational method on smaller sites"; ROR, Ex. C-9, Tr. of Regular Commission Meeting on February 28, 2017, p. 7; and also, that the rational method is "an accepted engineering standard" for measuring runoff from "smaller sites." Id., 9.
Ed Lally, the intervenor’s expert, did not use a methodology specifically mentioned in the town’s highway manual, but instead used a system identified as TR20. Lally described the rational method as "unsatisfactory for determining the total volume of stormwater flows over time ... The [R]ational Method is neither a state-of-practice formula and model nor is it an appropriate hydrologic estimating procedure. It is an inappropriately [sic] method to determine the rate and volume of existing or proposed stormwater flows." (Emphasis omitted.) ROR, Ex. 69, "Storm Drainage Analysis Hendrick Cottage Road" prepared by Ed Lally and Associates, Inc. dated December 14, 2016, Summary p. 1.43 Rabbitt told the commission that TR55, one of the methods mentioned in the town’s highway manual for estimating runoff from drainage areas greater than 200 acres; see footnote 41; is "the predecessor" of TR20.44 He described both to the commission as "computer-generated version[s] of the rational method where you can put more inputs into it. So, if someone said for larger drainage areas when there are more inputs, and you’re looking at the implications of run after run after run after run affecting either pipe in length or sizes for pipe, you go to the TR55 because it takes into more considerations in complicated manner." ROR, C-8, p. 7. Rabbitt also told the commission that the state DOT manual suggests using TR55 for areas over 200 acres. Id., 11.
During the commission’s post-hearing deliberations, both the commission’s attorney and Town Planner Rabbitt were careful to indicate to the commission, however, that the concerns about stormwater raised by the Town Engineer, which are embodied in reasons five through nine of the commission’s resolution denying the plaintiffs’ subdivision application, did not mean that the Town Engineer had rejected the results derived from using the rational method that the plaintiffs provided. In fact, both told the commission that the Town Engineer had accepted the calculations regarding stormwater runoff presented by the plaintiffs.45 At the March 28, 2017 commission meeting, the commission’s attorney even told the commission that he had incorrectly stated in a letter to the commission that Town Engineer Shea was concerned about stormwater runoff causing freezing on public roads, which would be a traffic hazard.46 Town Planner Rabbitt then directly asked Town Engineer Shea whether he had ever made such a statement, and Shea responded that he did not recall ever doing so.47 In his final "Application Comments," Shea also commented that "[t]he applicant has revised the drainage analysis to accurately model the subwatersheds as requested by Town Staff." ROR, Ex. 96, Mem. dated March 10, 2017, p. 1.
The commission’s briefs and oral argument portray this issue as one where the commission exercised its lawful discretion to decide which of two experts’ testimony the commission would credit-i.e., that the commission decided to believe the opinion of the intervenor’s expert that the proposed drainage system was inadequate and unsafe rather than that of the plaintiffs’ expert, who said that the system would reduce the total amount of runoff from the property.48 The commission’s briefs also repeatedly refer to the exhibits prepared by Lally and his statements before the commission to the effect that the plaintiffs’ methodology "greatly underestimates the volume of water flowing into the system" and that the methodology Lally used "more accurately predicts greater flow that will overwhelm the system in heavy storm events or in back-to-back storms." See, e.g., Def.’s Post-Hr’g Br. dated June 8, 2018, p. 3. It is true that commission members, in their discussion, made various remarks about the two drainage experts, the methodologies they used, and which expert to credit.49 In an affordable housing appeal, however, "if a town denies an affordable housing land use application, it must state its reasons on the record, and that statement must take the form of a formal, official, collective statement of reasons for its actions." (Internal quotation marks omitted.) Christian Activities Council, Congregational v. Town Council, supra, 249 Conn. 576. The role of the court is to ascertain whether the commission’s articulated reasons for denying the application are supported by sufficient evidence in the record and then to determine whether a decision based on such reasons is necessary to protect substantial public interests that the commission may legally consider and that clearly outweighs the need for affordable housing. Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 717.
This court may only consider the reasons expressly given by the commission for its decision. Neither of the commission’s two reasons related to the amount of stormwater drainage from the property (the suitability of the storm drainage discharge point and drainage through downstream private properties), however, shows or reflects any indication that the commission accepted the testimony and opinions of the intervenor’s expert and rejected those of the applicant’s expert. These two reasons refer instead to concerns raised by the Town Engineer, whom Town Planner Rabbitt and the commission’s own attorney told the commission had accepted the calculations of the plaintiffs’ expert. The court will thus follow the mandate of our appellate courts and determine if these reasons are supported by sufficient evidence in the record. If so, the court will next consider whether the commission’s decision was necessary to protect substantial interests in health, safety, or other matters that the commission may legally consider, whether the risk of such harm to such public interests clearly outweighed the need for affordable housing, and whether the public interest could have been protected by reasonable changes to the affordable housing development.
1. Storm Drainage Off-Site:
a. Reason #5: The Town’s Engineer has stated that the proposed drainage is not in compliance with Town Highway Standards in regards to the discharge of the storm drainage to a suitable discharge point
On its face, this reason is not clear and requires extrapolation from the record. It appears to relate to comments made repeatedly by the Town Engineer about the use of the culvert under Climax Road and the subsequent flow of water along Evans Road and adjacent private property to the north and west of the subject property and then to the Town of Avon to the east.50 The plaintiffs offered responses to Shea’s concern on several occasions, the last of which were in remarks made by their attorney at the final public hearing on January 24, 2017, and in a memorandum their engineer, Quirk, submitted to the commission that evening. These responses provide context for Shea’s reference, repeated by the commission in its fifth reason, to the town’s highway standards.
Quirk’s January 24, 2017 memorandum quotes § 5.2.1(j) of the town’s Highway Construction and Design Standards, which states:
Discharge from Drainage System: Where runoff from the development could adversely affect the environment or cause flood damage, the runoff rate outside of the subdivision, during or after development, shall not exceed the rate which existed before development. This may be accomplished by detention basins, retention basins, infiltration basins, or other acceptable means. Final discharge points shall be approved by the Planning Commission. The final discharge shall be into suitable streams or rivers, or into Town drains with adequate capacity to carry the additional water.(Underscoring in original.) ROR, Ex. 94, p. 1, quoting ROR, Ex. D-3, § 5.2.1, p. 5.03. As the plaintiffs’ attorney explained at the public hearing,
your regulations having to do with the drainage system have-they’re basically two things that-two standards-two requirements that you need to meet and Andrew mentioned both of them. First, you have to-I’m referring now to Section 5.2.1(j). This is your highway regulations related to drainage. And this provision says, among other things, but it says that you have to ensure that the runoff rate outside of the subdivision during or after development, shall not exceed the rate which existed before development. And the second-second requirement is that the final discharge of the runoff shall be into suitable streams or rivers or into town drains with adequate capacity to carry the additional water.ROR, Ex. C-7, Tr., January 24, 2017 p. 86-87. Quirk stated in his memorandum that the stormwater runoff predicted by the rational method would be less after the affordable housing subdivision was built than the property produced before development. This reduced runoff, which would "not exceed the rate which existed before development," would comply with that requirement of § 5.2.1(j) of the town’s highway standards. Quirk’s January 24, 2017 memorandum, thus, asserted:
Given the reduction in runoff rates from the site to less than the rate before development and the connection to the existing Town drainage pattern, we maintain that the proposed discharge complies with the Town Highway Standards. Furthermore, no additional legal rights to drain than the present Town drain outfall are required since the location and rate of discharge are not to increase according to the stormwater modeling.ROR, Ex. 94, p. 1.
Shea responded to that assertion in his "Application Comments" dated March 10, 2017. In a section of those comments pertaining to "Drainage Analysis Summary Report/Design," Shea wrote:
The applicant’s response to our previous comments indicated that the applicant is in compliance with Town Highway Standards in regards to the discharge of the storm drainage to a suitable discharge point. We continue to disagree with these opinions of compliance and do not agree of the suitability of the outlet point. We are also requesting a legal confirmation of the right to drain through private properties downstream of the proposed drainage system. These in my opinion are critical issues. I do not recommend approval of the application because of our concerns with the suitability of this outlet location.ROR, Ex. 96, p. 1.
Shea never directly explained his concerns about a suitable discharge point or the highway standards to the commission. Town Planner Rabbitt, however, explained Shea’s comments to the commission as follows: "[T]he Town Engineer didn’t reject the calculations prepared via the rational method. He had questions about the impact associated with the resulting stormwater that was calculated using the rational method." ROR, Ex. C-9, Tr., February 28, 2017, p. 11-12. Rabbitt continued,
[I]n my discussions with the Town Engineer, his primary concerns, and they are in writing, are at the ultimate outlet to the proposed drainage scheme. And again, they have detention on-internal to the project-which is piped to an end wall on Climax. It goes underneath Climax Road, and then it sheet flows to Wheeler. Once it reaches Wheeler, there-it’s-water would end up in the gutter of Wheeler Road. We do not have an analysis about the capability of Wheeler Road to handle that gutter flow. So, again if the system fails, water goes through a pipe under Climax Road, sheet flows through the woods and ends up in the edge of another town road.Id., 13.
[H]e is concerned about the sheet flow over land to the northern gutter of Wheeler Road. Once on Wheeler Road, he’s concerned that that could cause an icing problem during winter weather conditions.
* * *
That’s if any water leaves the site from the detention basin.
* * *
If the water leaves that basin, it is piped roughly five hundred feet to the north northwest-on Climax Road to where there’s a cross culvert. It-it leaves the pipe, lands on the ground, then it flows into that pipe-or its planned to flow into that pipe to the south side of Climax Road. From there, it sheet flows through the woods, or travels through the woods above-on the ground, and there is no additional structure before it hits the edge of pavement or the gutter of Wheeler Road. Once it’s on Wheeler Road, it would travel in the gutter to the next lowest point, and there’s a cross culvert, which ultimately discharges under Evans.Id., 14-15. After that last remark, the commission’s attorney and Rabbit then added:
MR. DeCRESCENZO: There is not a structured system from the beginning of the flow to the-
MR. RABBITT: To the end.
MR. DeCRESCENZO:-end of the flow. There’s a gap. And it leaves the structure system which they propose, flows over ground, and down a gutter of another town road, eventually into another structured system which carries it to the receiving water course ...Id., 15-16.
Despite these explanations, the meaning of Shea’s comments is not completely clear on why the "discharge point" was "unsuitable." Shea’s concerns were not the result of accepting Lally’s prediction of massive flooding and ice, as Rabbitt told the commission that Shea’s questions were "about the impact associated with the resulting stormwater that was calculated using the rational method." Id., 11-12. The commission’s briefs do not further explain this concern, 51 nor do those of the intervenors.
The commission’s fifth reason does not itself state that the discharge point is unsuitable, but merely recites a statement of the Town Engineer to that effect. It has long been the law that a recital of evidence is not a finding. "A finding that certain testimony was given does not establish the truth of the facts testified to." (Internal quotation marks omitted.) Post Road Iron Works, Inc. v. Lexington Development Group, Inc., 54 Conn.App. 534, 541, 736 A.2d 923 (1999), citing Velsmid v. Nelson, 175 Conn. 221, 225, 397 A.2d 113 (1978); see also Cutler v. MacDonald, 174 Conn. 606, 614, 392 A.2d 476 (1978), citing Coast Central Mill Co. v. Russell Lumber Co., 88 Conn. 109, 113, 89 A.2d 898 (1914) ("[a] finding should state ultimate, not evidential, facts; the statement of what a witness testified to is not, in that form, even a statement of an evidential fact").
The court is aware that municipal lay commissions should not be treated like a court in terms of the specificity of findings, as reiterated by the Appellate Court in Brenmor:
[O]ur Supreme Court has cautioned against exalting form over substance in contemplating the adequacy of such decisions ... Rather, we must recognize that the commission is composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate ... We must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions ... Affording a degree of latitude is particularly appropriate in the context of affordable housing appeals, where-unlike traditional zoning appeals-the reviewing court is not empowered to scour the record in search of a proper basis for the agency’s decision.(Citations omitted; emphasis in original; internal quotation marks omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 692. In the present case, however, the record shows that this commission was considering, and in its fifth reason adopted, language contained in a draft resolution prepared by the Town Planner that had been provided to the commission at its meeting two weeks earlier, 52 then modified "a little bit since [their] last meeting to incorporate the comments that the Commissioners had"; ROR, Ex. C-11, Tr. of Regular Commission Meeting on March 28, 2017, p. 33; and, unlike in Brenmor, 53 but as reflected here by the transcripts of the last two commission meetings, considered it in the presence of and with the assistance of both the Town Planner and Town Attorney.
Upon review of the record, the court concludes that reason number five for denying the plaintiffs’ affordable housing application is not supported by sufficient evidence in the record. Even if the reference to the Town Engineer’s statement were to be accepted as a finding that the application does not comply with town highway standards for lack of a suitable discharge point, such a conclusion is not supported by sufficient evidence in the record. The commission did not adopt the opinion of the intervenor’s expert that massive amounts of water would flow in sheets off the property and cause flooding. Instead, the commission’s fifth reason recited the Town Engineer’s conclusion, which was based on accepting the plaintiffs’ stormwater calculations. Based on those calculations, there is not sufficient evidence, or even any evidence, in the record that the application does not comply with the requirement of the town highway standards with regard to discharge point.
Moreover, as Brenmor points out, noncompliance by itself does not satisfy the requirements of § 8-30g. Shea’s "Application Comments" dated December 9, 2016, stated that the plaintiffs’ stormwater system "could have potential impacts to adjacent private properties" and "may result in flooding," which "may increase the potential for well contamination." (Emphasis added.) ROR, Ex. 63, p. 2.54 Such speculation about possible harms does not satisfy the requirement that the commission show "a quantifiable probability that a specific harm will result if the application is granted." "The record ... must contain evidence concerning the potential harm that would result if [the application were granted] and concerning the probability that such harm in fact would occur." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Planning & Zoning Commission, supra, 103 Conn.App. 846.
Finally, after this court’s own plenary review of the record, this court independently determines that the commission did not sustain its burden of proof that a decision to deny the plaintiffs’ application for this reason was necessary to protect a substantial public interest that the commission was legally allowed to consider and that clearly outweighs the need for affordable housing. While stormwater control measures may affect substantial public interests that potentially outweigh the need for affordable housing, the facts of each case are unique. Here, the commission had evidence in the form of statements and opinions from the intervenor’s engineer, which were recited copiously in the commission’s and intervenor’s briefs, that the plaintiffs’ stormwater management system was designed using a faulty methodology, would fail, and would cause flooding and other harms. Neither the commission’s formal collective statement of reasons nor the Town Engineer’s comments that were the basis for those reasons, however, adopted Lally’s opinions.1 It is evident that the commission was careful to limit its findings and reasons about stormwater discharge off the property to the Town Engineer’s opinions and conclusions, which as noted above, had accepted the plaintiffs’ stormwater calculations. The record shows no substantial public interest for this fifth reason that the commission was legally allowed to consider and that clearly outweighs the need for affordable housing.2
b. Reason #6: The applicant has not demonstrated that they have adequate right to drain through private properties downstream of the proposed storm drainage system per Town of Simsbury Highway Construction and Design Standards
The town’s sixth reason is related to the fifth reason. Although not specifically referring to the Town Engineer, this sixth reason essentially adopts a portion of Shea’s "Application Comments" dated March 10, 2017, that stated that "[w]e are also requesting a legal confirmation for the right to drain through private properties downstream of the proposed storm drainage system." ROR, Ex. 96, p. 1. The town manual explicitly refers to a right to drain through private properties only in two circumstances-for drainage easements or, pursuant to § 5.2.2(c),3 where the owner of adjacent private property that will receive stormwater discharge provides written permission. An earlier section of the manual, § 5.2.1(j), also implicitly refers to a right to drain through downstream properties by providing that "[w]here runoff from the development could adversely affect the environment or cause flood damage," post-development runoff may not exceed pre-development runoff. ROR, Ex. D-3, § 5.2.1(j), p. 5.03. In the abstract, neither of these reasons is a sufficiently important public interest that outweighs the need for affordable housing. Giving veto rights over an affordable housing development to neighbors whose property receives any quantity of stormwater discharge, as the town manual provides, is not a substantial public interest outweighing the need for affordable housing. Prohibiting affordable housing that "could adversely affect the environment or cause flood damage," without some quantifiable probability of such a consequence, also violates the strictures of § 8-30g requiring more than speculation about possible harms.
The evidence in the record offered by the plaintiffs’ engineer, moreover, was that all runoff from the property would be diverted to a pipe that ran underground until the town culvert on Climax Road north of the subject property. Under the plaintiffs’ stormwater management plan, all runoff from the subdivision property would there join other water from the watershed and then pass through that culvert onto private and town properties across Climax Road in the vicinity of Evans Drive and then Wheeler Road. The town culvert is not on property "adjoining’ the plaintiffs’ property, nor are any of these other properties, so as to invoke the provisions of § 5.2.2(j), even to the extent that this section has legal effect here. The plaintiffs also disputed the applicability of either §§ 5.2.1(j) or 5.2.2(j) because the stormwater discharge calculations derived from the rational method showed that they would be discharging less stormwater runoff than before construction of the subdivision.4 Thus, the plaintiffs’ stormwater discharge calculations provide no evidence or basis to support the commission’s sixth reason.
The sixth reason flows directly from Shea’s stated concern, based on his acceptance of the plaintiffs’ stormwater calculations, that stormwater runoff from the subdivision would flow through the culvert under Climax Road and discharge on the west side of Climax Road and that "additional flows could have potential impacts to adjacent private properties." ROR, Ex. 63, Mem. dated December 9, 2016, p. 2. The sufficient evidence standard of § 8-30g, however, requires more than "potential impacts." "The record ... must contain evidence concerning the potential harm that would result if [the application were granted] and concerning the probability that such harm in fact would occur." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Planning & Zoning Commission, supra, 103 Conn.App. 846. Only if the opinions of the intervenor’s expert had been accepted or adopted by the commission would there have been sufficient evidence as to the probability of harm. As noted above, however, there is no support in the record for such a supposition, and denying the plaintiffs’ affordable housing application for a reason based on Lally’s methodology was not, on this factual record and as further discussed in footnote 56 above, a sufficient public interest that the commission was legally allowed to consider and that clearly outweighed the need for affordable housing.
2. On-Site Stormwater Management
The commission’s seventh through ninth reasons pertained to the adequacy of on-site stormwater management measures: (7) failure to submit valid soil testing in the area of their proposed drainage basins; (8) inadequate data to model accurately the length of time required for each drainage pond to dry; and (9) functionality of dry well not proven due to inadequate investigation of the soils surrounding and beneath the dry well.5 These reasons essentially are that the plaintiffs did not provide certain information to assure the satisfactory performance of the ponds and dry wells, the purpose of which is to capture and retain some of the stormwater on-site. The specific problems cited by the commission again, as on the off-site stormwater issues, derive from comments made by the Town Engineer.
a. Reason #7: The applicant failed to submit valid soil testing in the area of their proposed basins. Standard practice for infiltration system design includes testing at appropriate elevations in relation to the proposed detention /retention pond as well as testing in the vicinity of each pond to avoid localized anomalies
The Town Engineer wanted additional data about soil in the area of the drainage basins. Shea’s "Application Comments" on March 10, 2017, stated that "standard practice for infiltration system design includes testing at appropriate elevations in relation to the proposed detention/retention pond as well as testing in the vicinity of each pond to avoid localized anomalies." ROR, Ex. 96, p. 2. According to Quirk’s memorandum dated January 24, 2017, the plaintiffs had conducted testing in the vicinity of each pond,6 but that memorandum did not specifically address Shea’s request on January 20, 2017,7 for soil "percolation testing" data "at the proposed bottom of each pond or at the bottom of the bioretention soil layer" (except for Test Pit C, where, Quirk acknowledged, such testing had been done). See ROR, Ex. 94, p. 2.
Shea’s "Application Comments" on March 10, 2017, also contained "guidelines from the 2004 Connecticut Stormwater Quality Manual regarding Infiltration Practices." ROR, Ex. 96, p. 2. In this appeal, the plaintiffs have objected to the reference to those guidelines and assert that such a reference in that memorandum was "the first time [that] the Town Engineer claimed that the Applicant had failed to satisfy the referenced Manual guidelines which deal with clogging, depth of soil borings and methodology of conducting test pits. Because the Town Engineer chose to make these claims after the hearing was closed, the Applicant had no opportunity to respond." Pls.’ Post-Trial Br. dated July 24, 2018, p. 8. The plaintiffs argue that making claims for the first time after close of the hearing deprived them of their "due process right to cross examine witnesses and offer rebuttal evidence"; id.; as well as, perhaps, the opportunity to perform tests in accordance with those guidelines first mentioned after the close of evidence.
The commission responds to this assertion by arguing, correctly, that the Town Engineer had referred to the Connecticut Stormwater Manual in his December 9, 2016 Application Comments. The commission further asserts, again correctly, that lay commissions are allowed to receive post-hearing comments from their staff and counsel. See, e.g., McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 77, 282 A.2d 900 (1971) (zoning commission permitted to confer with its planning consultant); Spero v. Zoning Board of Appeals, 217 Conn. 435, 444, 586 A.2d 590 (1991) (zoning board allowed to consult with its attorney). The commission then argues that the information objected to "is the type of advice and analysis that commissions routinely request from staff to assist them in evaluating the Record." Def.’s Post-Hr’g Br. dated June 8, 2018, p. 19.
On this issue, the court concurs with the plaintiffs. Shea’s reference to three specific guidelines as to the manner in which "measured infiltration rates should be adjusted to allow for a factor of safety" was the first time that he had asked the plaintiffs to "adjust" their test results in such a manner. Previously, he had only asked for the test results themselves. Post-hearing comments from commission staff are permissible "where the comments and opinions of the consultants were not based on information outside the record." R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2017) § 49.14. "The proper inquiry for a reviewing court, when confronted with an administrative agency’s reliance on nonrecord information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter." Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 573-74, 602 A.2d 613 (1992). The guidelines referred to by Shea were not part of the hearing record and, hence, were not properly considered by the commission. One cannot assume the commission did not consider this post-hearing comment in adopting this reason.
The effectiveness of the plaintiffs’ stormwater management system depended in large part on the efficacy of their on-site mechanisms to retain water on the property, and the calculations of their expert about stormwater discharge off-site using the rational method were predicated on the on-site system working as designed. Stormwater management is potentially an issue of substantial public interest that, in certain circumstances, may outweigh the need for affordable housing. Flooding of other properties or icing of the roads are consequences that could outweigh the need for affordable housing. As this seventh reason apparently took into consideration post-hearing evidence that the plaintiffs never had the opportunity to rebut or otherwise respond to, the court concludes that the appropriate action is to remand this matter to the commission, as will be further discussed below.
b. "Reason #8: Infiltration data provided by the intervener and infiltration rates developed by the applicant are not sufficient to accurately model the length of time required for each pond to drain dry. Ponds that retain water for extended periods can be a safety hazard in regards to drowning potential and insect breeding
The commission’s eighth reason for denying the plaintiffs’ application was that the plaintiffs had not provided sufficient "infiltration data ... to accurately model the length of time required for each pond to dry." The plaintiffs’ engineer had reported that Pond 1 would drain within twelve to forty-nine hours after a storm and that Pond 2 would drain within two to twenty-five hours. (See footnote 38 above.) Shea’s "Application Comments" of January 20 stated that "[t]he drain dry condition is based on permeability rates from intervenor’s soil data dated May 10, 2016," and asked for data collected by the applicant regarding the time required to drain the basins dry. Suppl. Record, Mem. from Shea to Rabbitt dated January 20, 2017, p. 2. Quirk’s January 24, 2017 response to those comments noted that the "computations for the time to drain the basins are based upon the percolation tests performed as well as the intervenor’s permeability tests." ROR, Ex. 94, p. 2. Shea’s "Application Comments" dated January 20, 2017 also asked for "permeability testing ... within the vicinity and at the appropriate depth of the proposed ponds." Suppl. Record, Mem., p. 2. Shea’s "Application Comments" dated March 10, 2017, acknowledged the submission of "percolation rates developed by the applicant," but continued to assert that the data provided by the plaintiffs "[is] not sufficient to accurately model the length of time for each pond to drain dry." ROR, Ex. 96, p. 2. Thus, the plaintiffs had collected and considered their own data, as Shea had requested, as well as the data provided by the intervenor, but their January 24 memorandum did not respond to Shea’s request for testing "within the vicinity and at the appropriate depth of the proposed ponds." The manner in which the plaintiffs had not fully responded to Shea’s comments on this issue is not exactly clear. The plaintiffs had provided data about the length of time necessary for each pond to drain dry, but Shea still wanted testing done at particular locations. A logical inference from his March 10 request for such testing is that the permeability and percolation testing data provided by the plaintiffs (including data from the intervenor) had not included testing at those locations.
In an affordable housing appeal, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of specific harm to the public interest if the application is granted. Section 8-30g also requires the commission to show "a quantifiable probability that a specific harm will result if the application is granted." AvalonBay Communities, Inc. v. Planning & Zoning Commission, supra, 103 Conn.App. 853-54, The "harm" posited by the commission for lack of sufficient information about the time required for each pond to drain dry was the risk of drowning and transmission of disease: "Ponds that retain water for extended periods can be a safety hazard in regards to drowning potential and insect breeding." ROR, Ex. C-11, Tr., March 28, 2017, p. 78. The plaintiffs agreed to remedy the possible harm of drowning by installing fencing around the ponds, which would be a reasonable condition to impose on the plaintiffs, pursuant to § 8-30g(g)(C), as a reasonable change to protect the public interest because children and others might fall into the ponds, not only when water was present but at other times as well. Although the plaintiffs correctly assert in their brief that there is no evidence in the record about the probability of specific harm from insect breeding, the court does take judicial notice of the common problem these days of West Nile Virus transmission by mosquitos in the summer. In view of the necessity to remand this matter to give the plaintiffs an opportunity to address Shea’s post-hearing comments pertaining to the commission’s seventh reason for denial, the court deems it prudent to include this issue for remand as well to give the plaintiffs an opportunity to respond to Shea’s request for testing "within the vicinity and at the appropriate depth of the proposed ponds" or, if they choose, to propose methods for insect control.
c. Reason #9: Although the applicant added a drywell to Pond 2 hydraulically separated from the outlet structure, versus performance of the drywell depends on the surrounding and underlying soils, which have not been investigated to the proposed depth as indicated by test results to date. Therefore the functionality of the proposed structure has not been proven
A memorandum from the plaintiffs’ engineer, Quirk, stated that the plaintiffs were including an "additional drywell at the pond bottom," in response to an earlier comment from Shea that "[t]he drywell provided for Pond 2 should be relocated to the bottom of the pond consistent with the location for Pond 1." ROR, Ex. 87, Mem. to Rabbitt and Shea dated January 24, 2017, p. 3. Shea’s "Application Comments" dated March 10, 2017, adopted by the commission in its ninth reason for denying the application, noted that "[p]erformance of the drywell depends on the surrounding and underlying soils," which Shea then commented had not yet "been investigated to the proposed depth as indicated by test results to date." ROR, Ex. 96, p. 2. That comment and the ninth reason requesting soil testing at the proposed depth appear to be referring to this new drywell first mentioned by Quirk in his January 24 memorandum. Since neither the commission nor the town’s engineer had made a request for such data before the close of the public hearing, it is appropriate to remand the matter to the commission so that the plaintiffs have an opportunity to respond to this request.
V
CONCLUSION
The burden on a zoning commission in affordable housing cases is substantially different from that in regular zoning appeals. A commission’s decision must be based on evidence in the record, and a reviewing court can only consider the sufficiency of the reasons stated in the commission’s decision. In addition, the commission’s decision must be necessary to protect substantial interests in health, safety, or other matters that the commission may legally consider and the risk of harm to such public interests must outweigh the need for affordable housing. The commission’s traffic safety reasons8 do not meet that standard, as explained above, nor do the commission’s reasons addressing off-site stormwater drainage. The fourth and tenth reasons given by the commission for denying the plaintiffs’ application have been abandoned in this appeal, as have those portions of the second reason not dealing with sightline issues.
General Statutes (Sup. 2018) § 8-30g(g) provides in relevant part that "[i]f 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." The commission has not sustained its burden of proof as to the first, second, third, fourth, fifth, sixth, or tenth stated reasons for denying the site plan application. Instead of ordering the commission to grant the application, however, three issues remain for further hearing before and consideration by the commission. The seventh, eighth, and ninth reasons all concern potentially substantial issues of public interest. On the seventh and ninth issues, the plaintiffs did not have a full and fair opportunity to respond to comments made by the Town Engineer in his post-hearing "Application Comments" that the commission apparently considered. These two issues, thus, require a remand for the plaintiffs to have an opportunity to respond to the commission’s stated concerns. The eighth issue is one on which Shea had sought more information, and the court has decided to exercise its discretion to remand on it as well.
Accordingly, the appeal is sustained except as to the three issues identified above. The matter is remanded back to the commission for the plaintiffs to have an opportunity to respond to these issues, and for further hearing and consideration by the commission. After a reasonable time for the plaintiffs to respond to the reasons articulated by the commission and to the underlying comments made by Town Engineer Shea that were the apparent basis for those reasons, the commission will hold a hearing and make evidentiary findings on these issues; the commission retains discretion on these issues and on whether to grant or deny the plaintiffs’ application. The remand is limited to these three specific issues, however.9
Upon issuance of this decision, the court service officer is directed to schedule a status conference between the court and counsel for the purpose of the court ordering more specific time frames10 for the plaintiffs’ opportunity11 to respond to the commission’s concerns, the commission hearing, and its final decision.
See AvalonBay Communities, Inc. v. Zoning Commission, supra, 284 Conn. 140 (concluding that trial court did not render final judgment because commission retained discretion on ultimate issue).
BY THE COURT
1General Statutes (Sup. 2018) § 8-30g provides in relevant part:
(f) [A]ny person whose affordable housing application is denied ... may appeal such decision pursuant to the procedures of this section ... (g) 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 decisions 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.(After the plaintiffs filed this action, § 8-30g was amended by the legislature in No. 17-170 of the 2017 Public Acts. The amendments are not relevant to the present appeal. For the sake of simplicity, all references to § 8-30g within this opinion are to the version appearing in the 2018 supplement to the General Statutes.)
On November 18, 2016, Vearil moved to intervene in the administrative proceeding before the commission pursuant to General Statutes § 22a-19(a). That statute provides in relevant part:
(1) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law ... 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. (2) The verified pleading shall contain specific factual allegations setting forth the nature of the alleged unreasonable pollution, impairment or destruction of the public trust in air, water or other natural resources of the state and should be sufficient to allow the reviewing authority to determine from the verified pleading whether the intervention implicates an issue within the reviewing authority’s jurisdiction. For purposes of this section, "reviewing authority" means the board, commission or other decision-making authority in any administrative, licensing or other proceeding or the court in any judicial review. (b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect as long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.
At a public hearing held on November 26, 2016, the commission voted to permit intervention for the purpose of allowing Vearil to present evidence to the commission. The commission later voted that Vearil had not met his "burden of proof that the subdivision application, if approved, is reasonably likely to unreasonably pollute, impair, or destroy the air, water, or other natural resources of the State of Connecticut" and denied his application for intervention. Return of Record (ROR), Ex. C-11, Tr. of Regular Commission Meeting on March 28, 2017, p. 26, 32.
See Cowles v. Cowles, 71 Conn.App. 24, 25-26, 799 A.2d 1119 (2002) (holding that 120-day time limit set forth in General Statutes § 51-183b for rendering of an opinion after trial of a cause "begins to run from the date that the parties file post-trial briefs or other material that the court finds necessary for a well reasoned decision"); see also Frank v. Streeter, 192 Conn. 601, 604-05, 472 A.2d 1281 (1984); and Bramwell v. Dept. of Correction, 82 Conn.App. 483, 488, 844 A.2d 957 (2004).
General Statutes (Sup. 2018) § 8-30g(k) provides in relevant part: 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, or (5) mobile manufactured homes located in resident-owned mobile manufactured home parks.
The commission’s brief did not directly address the second, fourth, or tenth reasons, which dealt with grading, the affordability plan, and topographical information respectively. Ordinarily, an issue not briefed is deemed to be abandoned. "[A]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn.App. 601, 603, 10 A.3d 59 (2010). One aspect of the grading issue referred to in the commission’s second reason for denying the plaintiffs’ application was that "different grading scenarios ... make it difficult to determine the actual grading required to accommodate proper sight line"; See ROR, Ex. C-11, Tr., March, 28, 2017, p. 76; and was encompassed within the sight line issue that was briefed extensively. The court will thus regard this aspect of the grading issue identified by the commission in its second reason as fairly raised by the briefs and not to have been abandoned. The remaining grading issues contained in the commission’s second reason and the fourth and tenth reasons are deemed to have been abandoned.
ROR Exhibit 19 is duplicated at ROR Exhibit 27.
Reason #1:
The Applicant failed to demonstrate that the proposed road location satisfied the requirements contained in the Town of Simsbury Highway Construction and Design Standards associated with the intersection sight distances. The lack of proper sight lines is a public safety concern. In addition, the Applicant failed to demonstrate that the proposed road location meets the State of Connecticut Standards for intersection sight distances as measured 15 feet from the edge of pavement/traveled way. The applicant did propose to restripe Climax Road (11’ travel lanes and 5’ bike lanes-detailed on plans sheet P-6), however, that proposed treatment to Climax Road was rejected by the Director of Public Works and the Simsbury Chief of Police.
F. A Hesketh & Associates noted that the shoulder of the Road will need to be cleared of vegetation and snow to maintain the sight distances indicated on the plans. In the sight line profiles shown, when any vegetation growth occurs and/or when any snow accumulates sight line would be reduced substantially. Since this site is located in a northern climate and snow is common place during the winter season this scenario requiring snow to be removed from the shoulders of the road to maintain sightline creates an unsafe condition even in minimal snow events.ROR, Ex. C-11, Tr., March 28, 2017, p. 71-73.
See Garden Homes Management Corp. v. Planning & Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV- 14-6052002-S, 2015 WL 5315170, *13 (July 23, 2015, Frazzini, J.).
See also the plaintiffs’ first brief: ""[W]ith respect to the intersection separation standard, there is uncontradicted evidence of record that the purpose of the standard is operational efficiency rather than safety and that the noncompliance with this standard will not adversely impact public safety with respect to this Intersection." Pls.’ Br. dated February 2, 2018, p. 21-22.
The town’s Highway Construction and Design Standards set 300 feet as the stopping sight distance for a collector road; ROR, Ex. D-3, § 3.2.5, p. 3.03; again without reference to roadway geometry or travel speed. The state’s Highway Design Manual determines stopping sight distance based on factors such as actual observed speeds and existing roadway grades; see ROR, Ex. 74, Letter from Granatini to Rabbitt dated January 6, 2017, p. 3; and was calculated for Climax Road as 370 feet for southbound traffic and 345 feet for northbound traffic. ROR, Ex. 19, p. 5.
The plaintiffs introduced the proposal to stripe Climax Road in their Traffic Statement dated July 18, 2016, as follows: "The plan proposes striping 11’ lanes with 5’ shoulders that can accommodate bicycle traffic along Climax Road." ROR, Ex. 19, p. 4. The traffic statement explained further as follows:
Existing trees and vegetation within the public right of way and along the proposed site frontage will be cleared to provide a clear sight line to the right and left. Additionally, the site frontage to the left of the proposed intersection will be regraded to flatten out the existing grades ensuring that the sight line is not obstructed by topography.Id. At the final public hearing on January 24, 2017, Granatini then told the commission that
we did some refinements to the detail grading along the property frontage, essentially at the property line with the parcels to the south ... [W]e’ve adjusted the grading along the frontage to lower the grades along Climax Road so that we were definitively certain that we had sight lines looking to the south.ROR, Ex. C-7, Tr., January 24, 2017, p. 70.
Thomas J. Roy, the town’s Director of Public Works, wrote a letter dated December 12, 2016, to Chief of Police Peter Ingvertsen, which stated in relevant part that "I am concerned that narrowing the travel way may reduce the overall safety of this roadway. Additionally, the Bike lanes from Simsbury would most likely end at the Town line with Avon, potentially leaving cyclists more vulnerable." ROR, Ex. 62, Letter to Chief Ingvertsen dated December 12, 2016. Chief Ingvertsen then sent a memorandum dated January 11, 2017, to the town’s Director of Planning and Community Development, James D. Rabbitt, regarding "Proposed Bike Lanes-80 Climax Road." Chief Ingvertsen’s memorandum stated in relevant part: "I am in agreement with the concerns outlined in Tom Roy’s December 12th letter ... and therefore do not support the narrowing of the road for the addition of a bike lane." ROR, Ex. 80, Mem. from Chief Ingvertsen to Rabbitt dated January 11, 2017.
General Statutes § 14-297(3) provides in relevant part:" ‘Official traffic control devices’ means all signs, signals, markings and devices consistent with the provisions of this chapter and placed or erected, for the purpose of regulating, warning or guiding traffic, by authority of a public body or official having jurisdiction ..."
Section 14-298-601 of the Regulations of Connecticut State Agencies, captioned "Legal Authority," provides: "Markings shall be placed or caused to be placed only by the traffic authority having jurisdiction over the regulating, warning, and guiding of traffic."
An attachment to Exhibit 74, prepared by the plaintiffs’ traffic consultant, included excerpts from the 2011 American Association of State Highway Traffic Officials (AASHTO) A Policy on Geometric Design of Highways. Its foreword notes that it "provides guidance based on established practices that are supplemented by recent research. This document is also intended as a comprehensive reference manual to assist in administration, planning, and educational efforts pertaining to design formulation." AASHTO, "A Policy on Geometric Design of Highways" (6th Ed. 2011), Foreword.
The intervenor’s traffic expert, Scott Hesketh from F.A. Hesketh and Associates, Inc. (Hesketh), submitted a letter dated December 9, 2016, to the commission in which he acknowledged that "ConnDOT has adopted a Highway Design Manual that is in part, based on the methodologies in the AASHTO Green Book." ROR, Ex. 61, Letter dated December 9, 2016, p. 6. Hesketh also appended portions of chapters seven and eleven of the 2003 edition of the state’s Department of Transportation Highway Design Manual, revised to February 2013, to that letter.
Chapter seven of the state manual is titled "Sight Distance." Section 7-1.0, for "Stopping Sight Distance," states in relevant part: "The designer is referred to AASHTO A Policy on Geometric Design of Highways and Streets for the criteria and assumptions used to develop the SSD." (Emphasis in original.) Id., p. 11.
Chapter eleven of the state manual is titled "Intersections At-Grade." Section 11-2.0 is for "Intersection Sight Distance (ISD)." Section 11-2.01 (captioned "General") states in relevant part: "Because all intersections on State highways are either stop controlled or signalized, no guidelines are provided for no control intersections. The use of yield-controlled intersections is limited to right turns that are channelized at major intersections and separated from the signal. For these types of intersections, the designer should review NCHRP Report 383, Intersection Sight Distance and/or the 2001 AASHTO Policy on Geometric Design of Highways and Streets for additional guidance." (Emphasis in original.) Id., p. 19.
Based on the information presented by AASHTO that the "the distance from the front of the vehicle to the driver’s eye for the current U.S. passenger car population is nearly always 8 feet or less," the following comparison may be shown between the plaintiff’s proposal and the state and local standards:
Distance of Driver’s Distance of front Line of Sight Eye from edge of edge of vehicle from Southward Climax Road edge of Climax Road Local (Town of Simsbury Highway Construction and Design Standards) 20 feet 12 feet 475 feet State (CTDOT Highway Construction and Design Standards) 15 feet 7 feet 500 feet Plaintiffs’ Application 11 feet 3 feet 500 feet
The "stated purpose" of the road ordinance in Brenmor was: "In order to protect the public health and safety, to promote the general welfare, to preserve property values and to assure the orderly growth and development of the Town, the following standards and procedures for the construction of all roads, drainage structures and appurtenances thereto have been adopted by a Town meeting ..." (Internal quotation marks omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 683 n.10.
This statement is consistent with that of the plaintiffs’ traffic expert that "AASHTO establishes national guideline[s] for highway engineering policies." ROR, Ex. 19, p. 3.
Section 3.0 of the town’s Highway Construction and Design Standards pertains to "Streets." Section 3.1.2 states that "[t]he following documents are required as references in using this document: ... (b) ‘Geometric Design for Local Roads and Streets’ by the American Association of State Highway Officials (AASHO)." ROR, Ex. D-3, § 3.1.2, p. 3.01.
The existence of competing expert opinions is paramount. The Commission was not required to believe the Applicant’s experts, and was free to credit the opinions of the Intervenor’s experts ... Thus, the Commission was not required to approve the Application simply because the Applicant offered an expert to opine that the design was safe. The Commission was free to credit Mr. Hesketh [the intervenor’s traffic expert], who opined that it was not.
* * *
[T]he Commission can point to specific evidence in the Record: namely, Mr. Hesketh’s testimony and analysis, as well as Mr. Shea’s [the town engineer’s] refusal to give the Application a favorable recommendation due to the Applicant’s failure to comply with Town and Safe safety standards.(Citations omitted; emphasis omitted.) Def.’s Reply Br. dated February 23, 2018, p. 3-4.
The commission’s briefs assert that Hesketh "testified that, in his opinion, if the intersection is built as designed it will not be safe"; see Def.’s Post-Hr’g Br. dated June 8, 2018, p. 9-10; and "further testified that a reasonable person could conclude that the proposed traffic design was unsafe because it did not meet either Town or State safety standards for intersection sight ... distances." Def.’s Reply Br. dated February 23, 2018, p. 3. Both of those briefs cite his testimony on page 61 of the December 13, 2016 public hearing as authority for those assertions. Id. His actual testimony that day, however, was rather not nearly so direct and never specifically stated that the plaintiffs’ proposal to measure line of sight from eleven feet from Climax Road was unsafe. His testimony, shown below, should be read instead as asserting that the town’s standard should be employed here, without reference to any analysis of the safety of the plaintiffs’ proposal.
MR. HESKETH: Well, the Town Engineering Department and the Commission has adopted a set of criteria based on safety criteria and they’ve set that forth as the criteria for which intersections should be designed to, and if an application cannot meet that criteria then they’re not living up to the safety standards set by the Town.
[COMMISSION] CHAIRMAN RICE: So in your professional opinion would you agree that there could be a safety issue?
MR. HESKETH: It certainly doesn’t meet the safety requirements that the Town has expressed. I don’t know if it’s safe or unsafe because the Applicant, the information they’ve submitted is not sufficient to make a complete determination upon that, but it certainly doesn’t meet the Town’s criteria. So even though you’ve got an AASHTO standard, you’ve got a ConnDOT standard, and then you’ve got a Town standard, the ConnDOT standard says that you should defer to the Town standard on roadways which are owned, maintained and operated by the Town. So the design standards as provided by the Town are in my opinion the controlling criteria here.
* * *
COMMISSIONER NEEDHAM: So just so I’m clear, can a reasonable and prudent person assume that if you don’t meet a safety standard it’s not a safe condition?
MR. HESKETH: A reasonable and prudent person would certainly assume that, yes.(Emphasis added.) ROR, Ex. C-5, Tr., December 13, 2016, p. 60-61. This last remark, acknowledging that not meeting a safety standard is not a safe situation, must be read in light of Hesketh’s immediately preceding statements that he did not know whether the applicant’s proposal was safe or unsafe and also referring to AASHTO as a "standard."
"Moreover, James Shea, the Town engineer, could not give a favorable recommendation for the Application due to the non-compliance with the intersection sight and separation distance safety standards. Exh. 96." Def’s Reply Br. dated February 23, 2018, p. 3.
Drawing G3 was not included in the record originally filed. Upon request of the court, the parties filed it in a supplement to the record on September 26, 2017.
See also Granatini’s further statement about the new grading profile contained in G3 in footnote 11 above.
The submission of map G-3 and its revised grading profile, moreover, establishes that there was not sufficient evidence in the record to support the commission’s second reason for denying the application because of different and inconsistent grading scenarios.
The court in Brenmor stated:
As an initial matter, we note that the minimum road width and maximum grade requirements set forth in §§ 4.3 and 4.4 of the road ordinance are not absolutes. To the contrary, § 2.2.3 of the road ordinance provides that "[t]he Board of Selectman may approve alternate design and construction standards when (a) such standards are prepared by a licensed professional engineer, and (b) the board determines that such standards will be in accord with the purpose and intent of the road ordinance." The road ordinance thus contemplates the construction of roads in Lisbon that depart from the standards specified therein.Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 700.
The burden placed on the commission in an affordable housing appeal requires it to prove, inter alia, that its denial of an affordable housing application was "necessary to protect substantial public interests" and that "such public interests clearly outweigh the need for affordable housing ..." ... The administrative record before us lacks evidence indicating that strict compliance with the minimum road width and maximum grade requirements of the road ordinance was necessary to protect the public health and safety on the proposed roadway or that the need for such compliance clearly outweighed the need for affordable housing in Lisbon.(Citations omitted; emphasis in original.) Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 703-04.
The Appellate Court first concluded that, "the establishment of town-wide standards [by ordinance] for road construction is [a] matter of public health and safety that a commission may properly consider under the [A]ffordable [H]ousing [A]ppeals [A]ct," although "any deviation from those standards" does not constitute "a per se ground for denial of an affordable housing application." The Appellate Court then concluded that the evidence in the record demonstrated that fire and traffic safety were not adversely affected by the plaintiff’s noncompliance with the road ordinance with respect to the proposed subdivision’s internal roadways, which were in essence low traffic driveways that served only the homes in the subdivision.(Citation omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission, 326 Conn. 55, 61-62, 161 A.3d 545 (2017).
The Highway Construction and Design Standards for the town of Simsbury provide in relevant part:
1.3 Design Standards ... Special designs are expected to be prepared for projects where unusual or extreme conditions are encountered.
1.4 Alternative Designs. These Standards are not intended to limit the use of new and innovative design methods and products, provided that substantiating documentation is developed and submitted for approval by the Town Engineer and Planning Commission.(Underscoring in original.) ROR, Ex. D-3, §§ 1.3 and 1.4, p. 1.01.
Excerpts typical of the commissioners’ remarks that day include the following:
Commissioner Needham: "Bill and I had occasion to visit the site at the invitation of the property owner ... I was unable to enter Climax Road without assistance from one of our party. I simply couldn’t see well enough to the left to feel safe to assume the risk ... of entering the road."
ROR, Ex. C-11, Tr., March 28, 2017, p. 41.
"I drove by a day of two after St. Patrick’s Day and there was a large mound of snow on either end of the driveway where the road will be. And I turned around in the driveway ... and I couldn’t see past the driveway at all ... So on that day, I could not see down the road at all. I really had to creep out into the road unsafely ..."Id., 41.
Commissioner Beum: "[Y]ou might have a car coming in and out of Wheeler ... And that’s right at the spot where you are also losing sight of a dip in the road of traffic coming in. So as you’re trying to find out what the dude on Wheeler’s going to do, you could lose sight of the fact that that guy’s going to come right over the dip when you think you’ve got your chance to get into the road and I think that’s unsafe."Id., 44-45.
Commissioner Burt: "So you have a perfect storm. If you have a car turning left off Wheeler, a car turning left out of Hendrix Road Cottages or Hendrix Cottage Road, and may be there’s a bike path and a bicycle coming, you have opportunity-and water across the road, you’ve got opportunity for a three-individual car crash. It sounds very dangerous to me."Id., 48.
Commissioner Needham: "So if you look at a regulation that requires that you be able to see a certain distance from 20 feet off the edge of the road-and remember, we’re not doing that-if you can’t meet that standard, the closer you get to the road to make a measurement, the less safe it becomes ... It’s a gauge of safety. So if you don’t meet that standard, I would suggest, then you are creating an unsafe condition."Id., 50.
In the present case, the document prepared by the commission’s legal counsel, on which the commission relied in denying the plaintiff’s original application, suffers a similar infirmity. It states in relevant part that "no town residents should be obligated to accept roads of lesser quality and safety than anticipated by the ... road ordinance," but it provides no specific findings of fact as to the harm that would result if the proposed roadway was constructed. The document contains generalized statements that "lesser quality roads would have a tendency to create a variety of problems ... including: lack of adequate space for parking; difficult or impossible turning movements for emergency vehicles, such as fire apparatus; and extremely steep grades." Yet neither that document nor the commission’s decision cite to any evidence as to the severity and probability of such harm. Such 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.(Emphasis added.) Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 705-06.
"Reason #3:
The applicant failed to demonstrate that the proposed road location satisfied the requirements contained in the Town of Simsbury Highway Construction and Design Standards associated with intersection separation distances. In addition the proposed road location does not meet the State of Connecticut standard for intersection separation distance as referenced in the State of Connecticut Highway Design Manual."ROR, Ex. C-11, Tr., March 28, 2017, p. 77.
In Kaufman v. Zoning Commission, supra, 232 Conn. 162, the Supreme Court upheld the trial court’s reversal of a zoning commission denial of an affordable housing project where" ‘nothing in the record that supports anything but a mere possibility’ that the requested zone change would harm the environment. The record contains no evidence quantifying the potential level of harm ... or estimating the probability that the harm would occur if the zone change were granted." In AvalonBay Communities, Inc. v. Zoning Commission, supra, 130 Conn.App. 47-48, the issue had been that fire trucks responding to an emergency in the proposed affordable housing subdivision would have to travel through a Merritt Parkway underpass. The fire marshal had said that such trucks would need to proceed slowly through the underpass, but the court pointed out that an emergency vehicle traveling to the subdivision would have had to slow down anyway just after the underpass in order to turn into the subdivision. Id., 57-58. The court held, however, that "[t]he record contains no evidence as to the delay in response time that would result from slowing a vehicle traveling through the underpass. The fire marshal did not offer any opinion as to the actual distance involved in slowing down or the amount of time lost that would affect response time. 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.) Id., 58.
"The existing topography today gently slopes from east to west and from north to south towards Climax Road and towards Tallwood Drive." ROR, Ex. C-4, Tr., November 22, 2016, remarks of Pls.’ engineer, p. 20.
"[A]ll the lots are proposed to have private underground ground water recharge galleys as part of the overall stormwater management plan whereby we collect roof water and return it to the subsoil in accordance with the low impact development guidelines of Simsbury." ROR, Ex. C-4, Tr., November 22, 2016, remarks of Pls.’ engineer, p. 24.
ROR, Ex. 48, Stormwater Management Report, Executive Summary p. 1.
[W]e’ve got a storm drainage system whereby we collect the storm drainage from the roadway system, it discharges to the first basin called Pond 1. It’s attenuated in this first basin; there’s water quality treatment ... and then it connects to a second basin on the north side that’s further attenuated ... All the attenuation takes place on site prior to ... the discharge offsite.
* * *
Each basin also contains a dry well and we’ll be modifying [it] with 18 inches of a soil modification for bioretention soil. ... Pond 1 ... has a maximum depth to the first outlet of 18 inches retaining within the basin, 18 inches of stormwater. This basin would drain in the range of 12 to 49 hours based upon using a range of the percolation rate to using the permeability rate provided by the Intervenors. So from half a day to 2 says for this section to drain completely ... [W]e don’t anticipate a lot of infiltration in this basin. The purpose of that basin is to function more as a detention, first attenuation of the flows, treatment of the storm water. Then it is conveyed to the second basin where in that basin we retain in the bottom of the basin up to 24 inches of stormwater. In that basin the rates are much better in terms of the percolation and permeability. That basin would drain again in that range of between 2 and 25 hours ...ROR, Ex. C-6, Tr., January 10, 2017, remarks of Quirk, p. 29-31.
The commission’s resolution denying the plaintiffs’ application stated in relevant part:
Reason #5: The Town’s Engineer has stated that the proposed drainage is not in compliance with Town Highway Standards in regards to the discharge of the storm drainage to a suitable discharge point.
Reason #7 (sic) [#6]: The applicant has not demonstrated that they have adequate right to drain through private properties downstream of the proposed storm drainage system per Town of Simsbury Highway Construction and Design Standards.
Reason #8 (sic) [#7]: The applicant failed to submit valid soil testing in the area of their proposed basins. Standard practice for infiltration system design includes testing at appropriate elevations in relation to the proposed detention/retention pond as well as testing in the vicinity of each pond to avoid localized anomalies.
Reason #9 (sic) [#8]: Infiltration data provided by the intervener and infiltration rates developed by the applicant are not sufficient to accurately model the length of time required for each pond to drain dry. Ponds that retain water for extended periods can be a safety hazard in regards to drowning potential and insect breeding.
Reason #10 (sic) [#9]: Although the applicant added a drywell to Pond 2 hydraulically separated from the outlet structure, versus performance of the drywell depends on the surrounding and underlying soils, which have not been investigated to the proposed depth as indicated by test results to date. Therefore the functionality of the proposed structure has ... not been proven.
ROR, Ex. C-11, Tr., March 28, 2017, p. 77-79. In adopting the resolution denying the plaintiffs’ application, the commission began numbering the reasons incorrectly after the fifth reason. In this decision, the court will refer to the corrected reason number.
The "Storm Drainage Analysis" submitted by Lally to the commission, for example, stated that "the Rational Method was inappropriately used to determine the rates and volumes of stormwater flows ..." ROR, Ex. 46-A, "Storm Drainage Analysis Hendrick Cottage Road" prepared by Ed Lally and Associates, Inc. dated November 18, 2016, Summary p. 2. At the public hearings, Lally further asserted:
The deficiencies in the drainage system will lead to flooding of the road cul-de-sac in a 5-year storm, flooding of the depressed section of the proposed road in a 5-year storm, severely restricting public/private and emergency use of the new road, access to the homes at a great reduction of public safety.
Flooding of the cul-de-sac and the road will cause the water to overrun in the more intense storms, not in the lowest intense storms. It will run down Climax Road severely restricting public/private and emergency use of the new road and of Climax Road. And this water that’s flowing across the pavement from the emergency spillway flowing out onto the gutter of Tallwood running through the intersection of Tallwood and Climax onto Climax is not only just going to be water. This time of the year you get a freeze/thaw situation and it’s going to be ice. You’re going to have ice all over the place.
In a 10-year storm water comes out of the top of catch Basin #8 and I think catch Basin #9, out of the two emergency spillways and floods into Climax Road in a number of places.
ROR, Ex. C-5, Tr., December 13, 2016, Remarks of Lally, p. 43-44.
Section 5 of the Town’s Highway Design and Construction Standards addresses "Drainage." Section 5.1.1 provides that "[s]torm drainage systems for surface and subsurface water shall be as generally required by the Town of Simsbury Subdivision Regulations; design and construction shall be in accordance with standards and procedures hereinafter specified. Higher standards may be required due to special project or site features." ROR, Ex. D-3, § 5.1.1, p. 5.01. Section 5.2.4, captioned "Estimating Storm Runoff," provides in relevant part:
(a) The guidelines presented in this section are made available to assist in the development of the design of drainage facilities, but the designs themselves should be the application of sound engineering practices and judgment based on the best available date. (b) ... For drainage areas of less than 200 acres, it is suggested that the Rational Method be used in determining runoff ... For drainage areas greater than 200 acres, judgment between the following methods is recommended ... Various criteria and factors for utilizing these methods are given in the Conn. D.O.T. "Drainage Manual" and S.C.S. TR #55.ROR, Ex. D-3, § 5.2.4, p. 5.05.
The state Department of Transportation’s drainage manual is not contained in the record; no does the record contain any quotations from that manual on the methodologies for calculating stormwater discharge. The plaintiffs’ engineer, Quirk, told the commission at its meeting on January 10, 2017, that "[t]he Connecticut DOT, which is also referenced in your standards, has the exact same standard. So for watersheds less than 200 acres it’s recommended to use the rational method and that’s what we’ve done." ROR, Ex. C-6, Tr., January 10, 2017, p. 40. Section 5.1.5 of the town’s Highway Design and Construction Standards does in fact state that "[t]he following documents are required, or suggested, as references in using this document: ... (e) ‘Drainage Manual’ Connecticut Department of Transportation." ROR, Ex. D-3, § 5.1.5, p. 5.01. Rabbitt confirmed to the commission that "the [state] DOT manual ... looks at the same aspect that our regs do. Under two hundred acres, you look at rational." ROR, Ex. C-9, Tr. of Regular Commission Meeting on February 28, 2017, p. 11.
During the public hearing on the application, the intervenor’s witnesses repeatedly disparaged the rational method and praised the TR55 method as superior to the rational method for measuring runoff. At the December 13, 2016 public hearing, for example, Lally portrayed the rational method as outdated:
[T]he methodology they used was the rational method, and while that’s specified in your Town Highway Manual, the Town Highway Manual was adopted in 1981 and since then there’s been a lot of advances in the technology and the methodology used to analyze stormwater. And I’ve quoted what the state requires, and actually what we’ve used in our analysis is what the Town tells us what we have to use when we come in here with an application. They say we need an accurate representation of the storm drainage system and how it functions and really the only way to do that is to use TR55 throughout or TR20 throughout, TR20 being more accurate, the one we happen to own the computer programs for, so we use TR20 and that gives you the most accurate analysis of a watershed.ROR, Ex. C-5, Tr., December 13, 2016, p. 38. At the final night of the public hearing a year and a month later, he stated as follows:
[T]he question is what methodology is going to produce the correct answer, and what’s going to create the safest situation? And I think the more detailed an analysis and the more modern and advanced the system, then I think you’re going to end up with a better answer, a safer answer to use the system I’ve-the methodology I’ve used.
ROR, Ex. C-7, Tr., January 24, 2017, p. 23. Another of the intervenor’s witnesses was George Logan, who identified himself at the January 24, 2017 public hearing as an "environmental scientist" and the "principal" of REMA Ecological Services, LLC, which prepared two exhibits introduced into the record by the intervenor regarding environmental impact of the proposed development. Logan told the commission
[T]he bible of design for stormwater treatment practices [is] ... the Connecticut DEEP 2004 Stormwater Quality Manual.
* * *
[T]he TR55 is recognized as a valid and recommended method in the manual with no restriction on the size of the watershed ... It might also recommend the rational method but it doesn’t mean it doesn’t recommend the TR55 ... I think you’ve heard from Mr. Lally that he believes it’s a much more robust system, and I don’t have to be an engineer to agree with him.Id., p, 27, 34.
Lally described TR55 and TR20 as "first cousins. TR55 is a little simpler to use, though with a big computer that you can buy today for cheap, TR20 gives just slightly refined results." ROR, Ex. C7, Tr., January 24, 2017, p. 35.
MR. DeCRESCENZO [COMMISSION ATTORNEY]: [T]he Town Engineer accepted the calculations as presented by the Applicant. He had some issues that he wanted addressed based on the methodology, but he did not-I don’t believe that he totally rejected the methodology. He-he had some concerns about some of the conclusions drawn from the data that was derived from the methodology, but he didn’t say-don’t use TR55, use the rational method. So, and that issue-that so-called town standard, I think is flexible enough as written to allow an applicant to use TR55.
MR. RABBITT: Or. the rational method.
MR. DeCRESCENZO: Or. the rational method.
* * *
MR. RABBITT: Let me clarify. The town-if I may-the Town Engineer didn’t reject the calculations prepared via the rational method. He had questions about the impact associated with the resulting stormwater that was calculated using the rational method. They responded to his comments. I’m not making a statement that he accepted the response. They responded to his comments, in order, in an attempt to address them. We do not have a letter in the record, that I’m aware of, from the Town Engineer that says all of his issues associated with the drainage scheme have been resolved.(Emphasis added.) ROR, Ex. C-9, Tr., February 28, 2017, p. 8, 11-12.
MR. DeCRESCENZO: I would like to clarify something in my area, if I may? In re-reading my letter on page five, I make the following statement. "The Town Engineer raises three (indiscernible-papers rustling) related issues for the failure of Applicant to meet (indiscernible-papers rustling) could result in harm to the public ... 2. Stormwater runoff to (indiscernible-papers rustling) public road where freezing could cause a traffic hazard ...
* * *
In reviewing the materials, I don’t think that is accurate to attribute statement number two solely to the Town Engineer. I don’t think he said specifically in his comments or his testimony that the stormwater runoff sheeting over public roads was a freezing hazard that could cause traffic hazards. I think that came through the expert of the-(Cross mumbling.)
MR. DeCRESCENZO: I don’t want you to think that the town engineer-I think when you came to that conclusion ...ROR, Ex. C-11, Tr., March 28, 2017, p. 34-35.
MR. DeCRESCENZO: Is that true Jeff, that you did not come to that specific
MR. SHEA: I don’t recall ever making that statement.ROR, Ex. C-11, Tr., March 28, 2017, p. 35. Counsel then clarified that this criticism had come from another source, and one of the commissioners recognized it as originating from the intervenor’s expert. See id., p. 36.
See, for example, the following:
"[T]he commission concluded that stormwater runoff from the site would result in sheeting over public roads, causing a significant safety hazard. In arriving at this conclusion, the Commission credited the testimony and analysis of Mr. Lally and rejected the opinions of Mr. Quirk." Def.’s Br. dated December 1, 2017, p. 23.
"This appeal boils down to whether the Commission had authority to deny the application based on its decision to reject the opinions and conclusions offered by the Applicant’s experts on the issues of traffic safety and stormwater management and to rely [instead] on the conclusions reached by the Intervenor’s experts and its own observations as the basis for its denial." Def.’s Post-Hr’g Br. dated June 8, 2018, p. 5.
"[O]n the drainage issue, they simply gave greater weight to the, to the testimony of Mr. Lally, who was retained by the intervenor and presented a series of reports, and to the town engineer than they did to the applicants expert, drainage expert." Arg. of Commission Counsel, Tr. of Proceedings dated April 4, 2018, p. 4.At the commission’s meeting on March 28, 2017, the commission denied both the intervenor’s application for intervention and the plaintiffs’ affordable housing subdivision application. In the commission’s deliberation on those two matters, various commissioners made comments regarding the two experts’ conclusions, and while those discussions show recognition of "varied conclusions from two respected and reputable experts"; see ROR, Ex. C-11, Tr., March 28, 2017, p. 51; they contain no indication that the commission members formally agreed to adopt the opinions of the intervenor’s expert. See id., p. 12-18, 51-56, 66-67.
In comments to an earlier proposal by the plaintiffs to develop the property under the town’s "Workforce Housing Overlay Zone," the Town Engineer had commented that
[t]his stormwater drainage system discharges through private properties and to the Town of Avon to the east. It appears that the proposed stormwater drainage system redirects existing sheet flow from the site to a discharge point north and west of the current flow path for larger storm events. This proposed discharge to Evans Drive is undesirable and does not maintain the existing drainage patterns in the watershed. The applicant should consider other possible alternative stormwater discharge locations that would more closely mimic existing flow conditions in the watershed.ROR, Ex. 51, Mem. from Shea to Assistant Town Planner Michael Glidden regarding "Application Comments" dated September 14, 2015, p. 1. After the present affordable housing application was filed, Shea then submitted another memorandum containing Application Comments on December 9, 2016, to Rabbitt stating that
the proposed discharge point for the storm drainage system is undesirable. The proposed storm drainage system discharges to the inlet of an existing 15" RCP culvert on Climax Road. This culvert flows under Climax Road and discharges on the west side of Climax Road and additional flows could have potential impacts to adjacent private properties. The existing topography at 68 Climax Road is such that a surcharge at the culvert inlet may result in flooding of the frontage of 68 Climax Road, which has a private well serving the property located in the vicinity. Flooding around a domestic well may increase the potential for well contamination.ROR, Ex. 63, Mem. from Shea to Rabbitt dated December 9, 2016, p. 2.
The commission’s original brief refers to Shea’s conclusion "that the Applicant was not in compliance with the Town’s standards regarding the proposed discharge point for storm drainage"; Def.’s Br. dated December 1, 2017, p. 9; but does not discuss this assertion any further except by reference to Lally’s conclusions. The town’s reply brief links the requirement in the town highway standards "that runoff rate from a new development ‘shall not exceed the rate which existed before the development’ to Lally’s assertion that "runoff from the development would exceed the rate which existed before the development." Def.’s Reply Br. dated February 23, 2018, p. 6. The town’s post-hearing brief does not discuss adequacy of the discharge point, but focuses on Lally’s methodology and conclusions. As Rabbitt explained, however, the concerns of Town Engineer Shea were about the "impact associated with the resulting stormwater that was calculated using the rational method," not about Lally’s predictions.
See ROR, Ex. C-10, Tr. of Town of Simsbury Planning Commission Special Meeting on March 16, 2017, p. 3-4.
"The record indicates that the commission was without the assistance of its legal counsel when it rendered its decision on the plaintiff’s resubmitted application on April 2, 2013." Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 692 n.18.
These comments are quoted more fully in footnote 50 above.