Opinion
HHDCV145038167S
12-02-2015
James N. Sakonchick et al. v. Bethany Planning and Zoning Commission
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Barbara M. Quinn, Judge Trial Referee.
The plaintiff, James N. Sakonchick, is the owner and both he and Brian Sakonchick are the developers of 4 Peck Road in Bethany, Connecticut, a parcel of land on which there is presently located a large single-family dwelling. On January 6, 2014, the plaintiffs submitted an application for this parcel of land; seeking (1) to amend the Bethany Zoning Regulations 4.2 to add a new section 4.3k " Set-Aside Development" and (2) for the construction of an additional three housing units pursuant to Connecticut General Statutes § 8-30g, the " Affordable Housing" statute. The town held a public hearing on the application on March 5, 2014 which was continued to and closed on April 2, 2014. On June 4, 2014, the Bethany Planning and Zoning Commission voted unanimously to deny the application for many detailed reasons set forth in the record.
See Return of Record, hereafter " ROR" Exhibits 7 and 9.
ROR, Exhibit 13.
Publication of the required notice occurred on June 11, 2014. Despite the opportunity to resubmit the application with changes as provided by Connecticut General Statues § 8-30h, the plaintiffs did not do so and commenced this appeal on June 16, 2014. For the reasons set forth in detail below, the court remands the matter to the Bethany Planning and Zoning Commission, hereafter the " defendant Commission, " for further hearing and action consistent with this opinion.
1. Aggrievement
In order to maintain their appeal, the plaintiffs must demonstrate that they are aggrieved by the decision of the defendant Commission from which this appeal emanates. Agreement is jurisdictional, and a prerequisite for maintaining an appeal. Winchester Woods Association v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1989); Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 507, 242 A.2d 705 (1968). Both plaintiffs are developers of the property and, pursuant to Connecticut General Statutes § 8-30g(f) " any person whose affordable housing application is denied may appeal pursuant to the procedures of this section." The plaintiffs appear to be aggrieved parties pursuant to the statute.
The defendant Commission urges the court to determine it has no jurisdiction to hear this appeal, since the Commission concluded the application filed by the plaintiffs does not meet the requirements of a set-aside development pursuant to Connecticut General Statutes § 8-30g. Specifically, the defendant Commission concluded that the application did not set aside 30% of the housing units as affordable housing. Such an analysis requires the court to accept the defendant Commission's analysis of agrievement without any opportunity to examine the conclusion reached. First, the court must of necessity exercise jurisdiction to entertain the appeal and consider the application and the record before it in detail in order to affirm or deny the defendant Commission's assertion. Second, if the court simply accepted the defendant Commission's conclusion and found it had no jurisdiction to entertain the appeal, any claims raised by appealing parties could consequently never be litigated. Given the remedial public policies supporting affordable housing and Connecticut's statutory scheme to promote affordable housing whenever feasible, such an outcome would run directly counter to those policies permitting court review. See West Harford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 508-12, 636 A.2d 1342 (1994). Applying such policies, the court finds, from the facts in the record and adduced through exhibits introduced into evidence, that each of the plaintiffs is aggrieved by the action of the defendant Commission.
2. Facts and Background
The land on which the subject proposed affordable housing set-side development is to be located has a large residence already situated on it. The parcel of land is located in a R-65 zone, which is a residential district in the Town's public drinking water supply watershed. The R-65 zone permits a single dwelling unit only. To address this issue, the plaintiffs submitted with their application a proposed amendment to the Town of Bethany Zoning Regulations Section 4.3 which, in its current version, relates to the general criteria for the establishment of a rear lot, as may be authorized by the Planning and Zoning Commission. The plaintiffs proposed a text amendment, Section 4.3(k), which would apply only to land located within 1000 feet from the Bethany Town Hall and fronting on a state highway. In addition, the proposed amendment uses the term " set-aside development" and would permit the defendant Commission to authorize a multi-family dwelling on an existing building lot, even with a current dwelling on the lot, by adding this new section, proposed Regulation Section 4.3(k). The plaintiffs' application proposes to add three housing units in addition to the existing house on the property. It seeks to designate one of the units as an affordable housing unit.
ROR Exhibit 10, Town of Bethany Zoning Regulations Section 3.4.
ROR Exhibit 10, Regulations Sections 4.2 and 4.3.
ROR Exhibit 1, text of amendment 4.3(k).
ROR Exhibits 2, 3 and 8.
3. Additional Fact and Discussion
A. Standard of Review
In Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 716, 780 A.2d 1 (2001), the Supreme Court articulated the standard of review for affordable housing appeals. " [A] fundamental purpose of the affordable housing statute was to eliminate . . . deference to commission judgments." An affordable housing appeal is governed by General Statutes § 8-30g which, in relevant part, provides:
Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission, that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1)(A) the decision is necessary to protect substantial public interests in health, safety or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development.
The statutory framework as well as the court's obligations are further described in River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004).
" [I]n conducting its review in an affordable housing appeal, the trial court must first determine whether the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record . . . Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted. If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission's decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development."
The defendant Commission must set forth its reasons for the denial in detail and in writing and specify in detail the harm to the public interests that it finds. Unlike a standard zoning appeal, where the burden is on the appealing party to demonstrate that the Commission acted illegally, arbitrarily and in abuse of the discretion vested in it, the affordable housing statute shifts the burden to the defendant Commission to show that the proposed development specifically harms an important public interest or interests.
The court's review obligation in an affordable housing appeal is also of a different nature than in a usual zoning matter. " As a remedial statute, § 8-30g must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 140, 653 A.2d 798 (1995). " [T]he key purpose of § 8-30g is to encourage and facilitate the much needed development of affordable housing throughout the state." West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 511, 636 A.2d 1342 (1994).
A useful starting point in this case is to consider the first issue raised by the defendant Commission in its brief, that this is not an affordable housing application because of the number of units in question. This claims requires the court to consider whether pursuant to Connecticut General Statutes § 8-30g(g) " (1)(A) the decision is necessary to protect substantial public interests in health, safety or other matters the Commission may legally consider . . . (C) and such interests cannot be protected by reasonable changes to the affordable housing development." (Emphasis added.)
B. The Defendant Commission's Reasons for Denial
(1) The Percentage of Required Affordable Units
The defendant Commission's reasons for its denial are set forth in the record and detailed in a letter to the applicants dated June 10, 2014. Those reasons were also stated on the record at its June 4, 2014 hearing. The first substantive reason for denial is that the application does not propose a 30% set aside of the dwelling units as required by § 8-30g. The plaintiffs vehemently disagreed with this analysis. Specifically, the applicants count only the units in the proposed small apartment building, of which there are three, and therefore they believe they fall within the guidelines of the statute. The defendant Commission states that all units on the property, including the large preexisting home, must be included and therefore they find that there is only a 25% set aside of the units for affordable housing.
A review of the applicable state regulations regarding affordable housing is of assistance in resolving this dispute. The regulations contain a definition of dwelling units for purpose of the statute. Those regulations state:
§ 8-30-G-1. Definitions . . . 7) " Dwelling unit" means any house or building, or portion thereof, which may include legally approved accessory apartments, which is occupied, is designed to be occupied, or is rented, leased, or hired out or to be occupied, as a home or residence of one or more persons.
As this parcel of land has not been subdivided, the court agrees that plain language of the statute and the regulations require the large single-family home to be included in order to calculate the percentage of affordable housing. On its face, therefore, the pending application, without further revision, does not qualify for treatment under the Affordable Housing Act.
Nonetheless, there may be reasonable modifications to the plan which could correct this shortfall. Such modifications are the obligation of the plaintiffs to propose in revising and modifying their application, but might include, for example, two units in the proposed apartment house as designated affordable housing units. As it is the conclusion of the court that this matter must be remanded for further proceedings by the Commission for other reasons stated below, the plaintiffs will have the opportunity to make such changes as they see fit to bring themselves within the confines of the statutory requirements of a 30% set aside. If they are not able to do so, then the defendant Commission would be justified, after hearing, in denying this application as it would not qualify as an affordable housing application under the statute.
(2) The Proposed Text Amendment
Together with the proposed affordable housing development, the applicants submitted a text amendment to the R-65 zone in which this parcel is located. The defendant Commission's first finding is that the amendment, as drafted, is ambiguous as it states:
(1) it is to be applied to any property within 1000 feet of the Town Hall and on a major highway, and;
(2) all other zoning regulations shall continue to apply.
The court agrees. One of the other existing regulations is that the property is in a single-family district. The application proposed two structures on the land and not just one. A related finding is that the amendment is so poorly drafted as to be too vague in areas and leave several important aspects so that its application cannot be fairly determined by the Commission or its staff. The court also agrees with this conclusion. The zone text amendment is internally inconsistent and difficult to administer fairly.
The defendant Commission also argues that the amendment violates the uniformity provision of Connecticut General Statues § 8-2a, which requires that the regulations " shall be uniform throughout for each class and kind of buildings, structures or use of land throughout each district . . ." The text amendment, if approved, would be " spot zoning" and violate the statute. The court agrees with the defendants Commission's conclusion that the text amendment, as presently worded, violates the uniformity provision of the zoning statutes.
Our courts have held that the " obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district shall be treated alike." (Citations omitted; internal quotation marks omitted.) Gaida v. Planning and Zoning Commission, 108 Conn.App. 19, 32-33, 947 A.2d 361, cert. denied, 289 Conn. 922, 958 A.2d 150 (2008).
Further reasons to deny the application and the text amendment is that there needs to be a zone change map filed as well as the text of the amendment. Last, the Commission concluded that the text amendment does not address many of the applicable goals, policies and measures provided in the 2010 Plan of Conservation and Development.
The court's inquiry, however, does not end with the determination that the zone text amendment, as presently worded, violates the uniformity provision of our zoning statutes. Certainly, if this case was not an appeal of an affordable housing application, the court would find that there was substantial evidence in the record to support the defendant Commission's decision to deny the application. However, the court must further consider whether reasonable changes could address the issue raised. See Connecticut General Statutes § 8-30g. It is not difficult to consider that a few added words and the deletion of a few others to the text of the zone change amendment could address and alleviate the reasons for the denial. Second, a zone change map could be filed by the applicants to address that particular deficiency as well. In the alternative, as noted in the hearing on March 5, 2014, a site plan application could be filed.
ROR Exhibit 7.
(3) Failure to meet the 2010 Plan of Conservation and Development Requirements
The defendant Commission also rejected the application because it found that the application did not meet the Plan of Conservation and Development in a number of enumerated ways. The court is mindful that the defendant Commission is a combined commission which has authority to act in both the planning and zoning realms. Nonetheless, as such;
[i]ts duties in each category are separate and yet related. As a planning commission, its duty is to prepare and adopt a plan of development for the town . . . And such plan should be designated to promote the coordinated development of the town and the general welfare and prosperity of its people . . . Such a plan is controlling only as to municipal improvements and to the regulation of subdivisions of land . . . Zoning, on the other hand, is concerned with the use of property . . . Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 571-72, 153 A.2d 441 (1959); see also Lord Family of Windsor, LLC v. Planning & Zoning Commission, 288 Conn. 730, 734-35, 954 A.2d 831 (2008).
The court concludes that the subject application was filed with the defendant Commission in its zoning capacity. Acting in its zoning capacity, while desirable that any development should be in accordance with the Plan of Conservation and Development, the application's shortcomings with regard to the plan requirements do not provide a sufficient reason to deny the application. The court cannot find that the record provides any support for the following that: " the public interests to be protected substantially outweigh the need for affordable housing." See Connecticut General Statutes § 8-30g(g). If these were the only reasons cited for denial, the appeal would be sustained. But there remain significant additional difficulties.
(4) Incomplete Application and Lack of Sufficient Technical Information
In this matter, the plaintiff and property owner, James Sakonchick, a licensed engineer, prepared the application and the text amendment. Throughout these proceedings, he and his son represented themselves. Due to their closeness to the subject matter, they were not responsive to many of the defendant Commission's requests for additional detail and further information. In many important respects, this application is technically incomplete and therefore presented difficulties for the town's experts and the defendant Commission members. As the application is substantially incomplete, so too does the record remain substantially incomplete. The defendant Commission could not and did not make any findings with respect to the omitted and missing data.
The incomplete nature of the application and the record creates substantial hurdles for the court as well. Any detailed analysis or exercise of independent judicial review as to the nature of the affordable housing development proposed or any potential substantial harm to the public interest created cannot be undertaken with any certainty.
The list of crucial incomplete items must be adequately addressed by the applicants before the application could be acted upon favorably by the defendant Commission. Among the incomplete items are many details of the required Affordability Plan. The defendant Commission provided detailed information as to what was needed and the plaintiffs' written responses are unavailing. These are not merely technical quibbles which the defendant Commission raises, but are important statutory and regulatory items for any affordable housing plan filed by the plaintiffs. They must be clarified and restated according to the regulatory requirements in any modified plan before further action could be taken by the defendant Commission.
Also missing is any traffic safety information including information about safe vehicular access to these units, due to the short distance from the corner of Peck Road and Amity Road. There is no verified information provided regarding adequate safe sight line distances to all existing and proposed driveways, no information about the adequacy of the available potable water supply nor any proof of adequate on-site sewage disposal for all units on a single small lot with significant slopes. The commission is correct to state that " the crucial concern remains unanswered and subsequently places the safety of the residents of the proposed development as well as the general public at great risk."
ROR, Exhibit 13, page 6.
The court has carefully reviewed the application, the various plan reviews conducted by the Commissions' experts and other town officials, the transcript of the public hearings and all the documentation in the record of the commission's actions. Connecticut General Statutes 8-30g(g), in relevant part, provides 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 some of the reasons stated for the denial. Other concerns could be addressed with a revised and amended application. Last, there is incomplete and missing information concerning the most compelling of its reasons for denial, that of traffic safety in the congested area of the Town of Bethany in which the proposed development is to be located.
This application is too incomplete and flawed for the court to remand it to the defendant Commission for approval. Given the information and other hurdles the applicants face, it may not be possible to bring the proposed development into compliance with the requirements for the affordable housing statute and the applicable regulations. That question remains to be answered at some future time, as at present a determination cannot be made on significantly incomplete information.
The plaintiffs' revised amendment application, should they choose to file one, must contain the following:
1. Revisions to bring the proposal into compliance with the Affordable Housing Statutes as to the required percentage set-aside units, the missing details of the Affordability Plan, and the designation of an appropriate plan administrator;
2. Revisions to the text amendment and the filing of a zone change map in accordance with this decision;
3. Revisions as to information concerning the potable water supply, traffic safety issues and sight lines as well as on-site sewage disposal for the proposed Affordable Housing development as well as any further information the defendant Commission may require upon its reconsideration of the amended plan.
The court, therefore, remands the entire application and the corresponding zone text amendment to the defendant commission for reconsideration and directs the plaintiff applicants to revise and amend their application in a manner consistent with this opinion.
It is important to note that the process of reconsideration will require some give and take between the defendant Commission and the plaintiffs. See Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 567, 538 A.2d 1039 (1988). " [T]he very purpose of [a] hearing [is] to afford an opportunity to interested parties to make known their views and to enable the board to be guided by them. It is implicit in such a procedure that changes in the original proposal may ensue as a result of the views expressed at the hearing." [Internal quotation marks omitted]). The defendant Commission should then decide whether the responses and information satisfy its regulations and should complete its duty as outlined by § 8-30g(g).
Upon receipt of the revised amended application within the next 60 days, the defendant Commission will hold a hearing and make evidentiary findings. For purposes of clarity, the defendant Commission retains discretion on any revised amended application the plaintiffs may choose to present. The defendant Commission may choose to grant or deny the plaintiffs' amended revised application. Upon the issuance of its decision, the defendant Commission shall file its decision and supplement return of record with this court for further consideration.