Opinion
No. CV 98 492224
July 9, 2003
MEMORANDUM OF DECISION
William H. Wilson, the owner of 30 acres of land on the west side of East Street in East Granby, lost the race to rezone that property to the town. But, he successfully appealed the Planning Zoning Commission's (the commission) rezoning of the property from agricultural uses to industrial uses. See Wilson v. Planning Zoning Commission, 260 Conn. 399 (2002). Now, by way of this appeal, he challenges the commission's denial of his own application to rezone the property from agricultural uses to multi-family designed residence (MFDR) uses.
To be exact, 29.9 acres
I
First of all, the court finds that Mr. Wilson is aggrieved by the commission's decision denying his application. At the time of the decision he was the fee owner of the land in question, and it was his application that was denied. He remains the owner of the property.
II
The relevant facts are as follows. In December 1995 the commission proposed to rezone a tract of land including Mr. Wilson's 30 acres from agricultural uses to industrial uses. A public hearing on that proposal was scheduled for February 27, 1996. While that application was pending and before the public hearing, on February 7, 1996, Mr. Wilson filed his own application to rezone his property from agricultural uses to MFDR uses, "so as to allow the construction of affordable housing". ROR, Item C, p. 2. A public hearing on that application was scheduled for March 26, 1996. Both hearings were held, and the commission voted on April 2, 1996 to approve its own proposal and on April 23, 1996 to deny Mr. Wilson's proposal.
The sole ground upon which the commission denied Mr. Wilson's affordable housing proposal was that the property had been "previously rezoned from Agriculture (sic) to Industrial on April 2, 1996", the date the commission approved its own rezoning proposal. ROR, Item E. When an application for affordable housing seeks to "locate affordable housing in an area which is zoned for industrial use and which does not permit residential uses", General Statutes § 8-30g (g) (2) (A) exempts a zoning commission from the burden of proof ordinarily imposed on it in an affordable housing appeal. See JPI Partners, LLC v. Planning Zoning Board, 259 Conn. 675, 680, 791 A.2d 552 (2002) (referring to § 8-30g (g) (2) (A) as "the exclusive industrial zone exemption" of § 8-30g.) Otherwise, "the scope of judicial review under § 8-30g[(g)] requires the town, not the applicant, to marshal the evidence supporting its decision and to persuade the court that there is sufficient evidence in the record to support the town's decision and the reasons given for that decision. By contrast, in a traditional zoning appeal, the scope of review requires the appealing aggrieved party to marshal the evidence in the record, and to establish that the decision was not reasonably supported by the record." Id., 688. Because the commission relied entirely on its prior rezoning of the property to industrial uses, it did not meet or even attempt to meet the burden of proof it would otherwise have had under § 8-30g to justify its denial of an affordable housing application.
At the April 16, 2003 hearing on Mr. Wilson's appeal, the commission's counsel said, "(I)t seems to me that any fair reading of those minutes [of the commission meeting at which Mr. Wilson's application was denied] is that we are going to deny Mr. Wilson's application because this is now industrial land. We've changed from agricultural to industrial. That's the only reason we need. My position is that's the reason — we made [it] industrial and now it's industrial and we don't need any further reason." (Transcript of hearing of April 16, 2003, p. 22; see also Id., p. 34.)
Section 8-30g (g) provides in relevant part:
Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1) (A) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development, or (2) (A) the application which was the subject of the decision from which such appeal was taken would locate affordable housing in an area which is zoned for industrial use and which does not permit residential uses, and (B) the development is not assisted housing, as defined in subsection (a) of this section.
Last year, however, the Supreme Court held that the commission's rezoning of the property from agricultural uses to industrial uses was "void" because it published notice of the zone change on April 11, 1996, the effective date of the zone change, when General Statutes § 8-3 (d) requires notice of a zone change to be published prior to its effective date. "We conclude that the language of § 8-3 (d) requiring such publication is mandatory and that the commission's failure to comply therewith renders the zone change void." Wilson v. Planning Zoning Commission, supra, 260 Conn. 400.
Mr. Wilson argues that, as a result of the Supreme Court's decision, "the property was zoned, both at the time of [Mr. Wilson's] Application and at the time of the decision [denying his application], Agricultural. As such, Wilson must be afforded the special appeal procedure of [General Statutes § 18-30g." (Plaintiff's Amended Brief, p. 3.) The commission argues that the Supreme Court's decision does not operate "to rezone Mr. Wilson's parcel retroactively back to agricultural, thus removing the industrial status as a reason for denial." (Commission's Supplementary Brief, p. 3.) This is important because, as previously noted, the commission approved a zone change of the subject property from agricultural to industrial on April 2, 1996, which approval formed the sole basis of the commission's denial of Mr. Wilson's application on April 23, 1996. If the Supreme Court's decision invalidates the zone change to industrial uses from its inception, the commission's reliance on the "exclusive industrial zone exemption" to deny Mr. Wilson's affordable housing application is undermined, and its failure otherwise to meet its burden of proof under the affordable housing land use appeals statute may be fatal to its denial of the application.
III
Whether the first zone change was void from the moment the commission failed properly to publish notice of the decision, as Mr. Wilson argues, or not until such time as the Supreme Court rendered its decision in the appeal from that decision, as the commission argues, must ultimately turn on the legal meaning of the term "void."
"A void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection." Hopkins v. Clemson Agricultural College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 89 (1910). See also Black's Law Dictionary (7th Ed. 1999) (defining "void" as "of no legal effect; null" and stating "the distinction between void and voidable is often of great practical importance. Whenever technical accuracy is required, void can be properly applied only to those provisions that are of no effect whatsoever — those that are an absolute nullity.")
While research has produced no zoning case precisely on point, in other contexts procedural failures of zoning commissions have been held to void their actions from their inception. For example, in Center Shops, Inc. v. Planning Zoning Commission, 52 Conn. App. 763 (1999), reversed on other grounds, 253 Conn. 183 (2000), the failure of a commission to give proper notice of a public hearing was held to invalidate its action at the hearing.
[O]ur Supreme Court has recognized that when action by a municipal entity is subsequently found to be invalid, it is as if that entity never met or voted. In Brooklyn Trust Co. v. Hebron, 51 Conn. 22 (1883), our Supreme Court held that no town meeting occurred nor was any vote taken because notice issued prior to the meeting failed to comply with the mandate of the applicable statute. Id., 29. The court held that because notice was insufficient, `[t]here was therefore no lawful meeting . . . and of course no vote . . . [T]here is absolutely nothing to consider.' Id. In other words, the meeting was void ab initio `[f]rom the beginning' or `from the first act.' Black's Law Dictionary (5th Ed.)." (Internal quotation marks omitted.) Id., 775.
See also Gay v. Zoning Board of Appeals, 59 Conn. App. 380 (2000) (a condition attached to the grant of a variance that prohibited building on an unconnected property was unreasonable, beyond the authority of the board and void ab initio).
In other contexts, such as contracts, marriages and statutes, the term describes an act or document which, from its inception, is of no force and effect, whereas the term "voidable" is used to describe a valid act which may be avoided or that is susceptible of legal ratification. See, e.g., Davis v. Davis, 119 Conn. 194, 199-202, 175 A. 574 (1934) (holding that a void marriage needs no decree to make it void because it never came into existence.); Treglia v. Zanesky, 67 Conn. App. 447, 454, 788 A.2d 1263 (2001); Livolsi v. Pylypchuk, Superior Court, judicial district of New Haven, Housing Session, Docket No. CV914747 (June 25, 1992) ( 7 Conn.L.Rptr. 722).
It is instructive, therefore, that in Wilson v. Planning Zoning Commission, supra, 260 Conn. 399, in addition to labeling the commission's decision "void," the court also states that the zone change is not susceptible of ratification:
We also reject the Appellate Court's conclusion that the commission can retroactively validate an otherwise invalid zone change by fixing a new effective date and publishing notice of its decision prior to that date . . . A failure to comply with the statutory publication requirements renders the zone change void . . . In the absence of a validating statute, the commission cannot retroactively make legal what is otherwise illegal and void. (Citations omitted.) Id., 405.
Finally, the plain language of the decision itself — that "[a] failure to comply with the statutory publication requirements renders the zone change void" — is consistent with the view that the zone change is void from the moment the commission fails properly to publish notice of the change, rather than with the view that some additional act is required to invalidate it.
A careful reading of the notice statute, itself, supports the conclusion that the commission's failure to comply with its time provision invalidates its action from the beginning. General Statutes § 8-3 (d) provides, in relevant part, that "Zoning . . . changes . . . shall become effective at such time as is fixed by the zoning commission, provided . . . notice of the decision of such commission shall have been published . . . before such effective date." (Emphasis added.) The Appellate Court, too, held that "the commission's decision to change the zone did not become effective," Wilson v. Planning Zoning Commission, 53 Conn. App. 182, 191 (1999) (Emphasis added.), because of its failure to give the statutorily required notice, but held that "it could become effective when the notice is properly published." Id. Now that the Supreme Court has reversed the latter holding of the Appellate Court, which had given the commission a chance to validate its invalid act, the commission is left with an attempt to change the zoning of Mr. Wilson's property that never became effective.
In a very recent opinion the Appellate Court recognized that the Supreme Court's action in Mr. Wilson's appeal from the rezoning of this property stands for the proposition that "the failure to comply with statutory . . . publication requirements rendered the commission's decision null and void, and that the commission could not retroactively validate an invalid zone change by fixing a new effective date and publishing notice." Wilson v. Zoning Commission, 77 Conn. App. 525, 526 (2003).
IV
The commission also contends that, even if the court finds that the subject property was zoned agricultural at the time the commission denied Mr. Wilson's application, his appeal is still not reviewable under § 8-30g because his application was not really an affordable housing application. "[T]he mere assertion that the applicant intends an affordable housing project as contemplated by the statute, accompanied by a refusal to submit any more information than the bare statement of intent despite inquiry, and further accompanied by an admission that the applicant really doesn't want to build an affordable housing project at all — as in the case here — seems quite clearly to disentitle the applicant to the substantial benefits properly afforded a serious developer of affordable housing under § 8-30g." (Commission's Supplementary Brief, pp. 5-6.)
The commission perceived no such problem in Mr. Wilson's application when it was submitted and denied the application solely because it had previously rezoned the property for industrial uses. See footnote 2. supra.
The issue of what constitutes an affordable housing application under § 8-30g was addressed by our Supreme Court in Kaufman v. Zoning Commission, 232 Conn. 122 (1995). There the court states:
We conclude, therefore, that § 8-30g does not independently require an affordable housing developer to submit to the commission, at the time of his initial application in connection with an affordable housing development, any more detailed plans than an applicant who requests a zone change for a purpose other than affordable housing. A zoning commission undoubtedly is entitled to enact regulations requiring all zone change applicants, including applicants for zone changes in connection with affordable housing developments, at the time their applications are filed, to submit information that the commission will need to fulfill its duties. In addition, during the hearings on an application, a zoning commission undoubtedly is entitled, within the constraints imposed by its regulations, to require an applicant to provide whatever additional information the commission needs to fulfill its duties. The provisions of § 8-30g require nothing more. (Internal quotation marks omitted.) Id., 141.
Under the East Granby zoning regulations, an applicant for a zone change must complete a two-page "Planning Zoning Commission Application Form" and a single-page "Land Use Application," both of which were completed by Mr. Wilson and submitted to the commission in accordance with town regulations. (ROR, Item C. pp. 3-5.) Although a zoning commission may adopt regulations requiring an affordable housing applicant to submit additional information in connection with a zone change application, the town of East Granby has adopted no additional requirements. Accordingly, Mr. Wilson was not required to submit any more detailed information than would be required of an applicant for any other zone change. Id. Despite the commission's assertions to the contrary, Mr. Wilson provided all the information required for a zone change application, both under the East Granby zoning regulations and under Kaufman. (See ROR, Item C.)
The commission adopted a "Policy Statement on Affordable Housing Application" in 1995, which provides in part: "All applicants for action by the Commission will be required to state whether the application is an affordable housing application as defined in [General Statutes] § 8-30g (a) and, if so, to describe the proposed affordable housing development in connection with which their application is filed . . ." Said policy statement, however, was never adopted as a zoning regulation.
Nor is the commission's assertion that Mr. Wilson refused to provide the commission with information regarding the proposed affordable housing supported by the record. At the March 26, 1996 public hearing on the application, Frederick O'Brien, chairman of the commission, inquired of Attorney Lobo, Mr. Wilson's counsel: "I'm wondering per item one of [the] application. Could you give us some details of this planned affordable housing project?" (ROR, Item E, p. 12.) Attorney Lobe responded: "We plan on providing greater details at the site plan stage. This is merely — since any type of development of this kind would not be appropriate in the agriculturally — zoned property — this is merely an application to have a zone change to multi-family. More specifics regarding units and the type of units . . . that would be done later on." ( Id.) Attorney Lobe also stated: "[O]f course any proposal would be in conformity with the state statute as well as any zoning regulations requiring — which would be applicable to this situation. I don't believe, as I said, that my client is required at this time to make any specific proposal . . . regarding number of units, the type of units and how they will be laid out on the parcel; "( Id.;, pp. 16-17.); to which Mr. O'Brien replied, "Okay," and moved on to another question. ( Id.) While it is true that a zoning commission may, at the time of the hearing, "require an applicant to provide whatever additional information the commission needs to fulfill its duties"; Kaufman v. Zoning Commission, supra, 232 Conn. 141; Commissioner O'Brien's remarks at the hearing cannot reasonably be construed as having put the applicant on notice that he was required to submit additional information before the commission could act on his application, nor is Attorney Lobo's response reasonably read as a refusal to produce such information.
Moreover, any such requests for additional information at the hearing are limited by the "constraints imposed by [the commission's] regulations," Id., and the record does not indicate any commission regulations that define for zone change applicants what additional information may be required by the commission at a hearing on the requested zone change.
The commission urges the court to dismiss Mr. Wilson's appeal on the ground that Mr. Wilson failed to provide meaningful assurances to the commission that he would, in fact, build affordable housing if the zone change were approved. (Commission's Brief, p. 9.) The commission's argument is based on the following language in Kaufman:
We agree with the commission that an applicant cannot claim the benefits of § 8-30g in a zoning appeal without providing `some meaningful assurance' that he will build affordable housing. As the commission correctly argues, § 8-30g applies to appeals only if the application was made in connection with an affordable housing development; General Statutes § 8-30g (a) (2); i.e., only if the evidence demonstrates that the plaintiff proposed a `housing development (A) which is assisted housing or (B) in which not less than twenty percent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that such dwelling units be sold or rented at, or below, prices which will preserve the units as affordable housing'; General Statutes § 8-30g (a) (1) . . . We disagree, however, that the plaintiff failed to meet his evidentiary burden in this case. Id., pp. 141-42.
The court disagreed that the plaintiff in Kaufman failed to meet his evidentiary burden for two reasons. First, the court held that the trial court properly found that the proposed housing would be affordable based on the plaintiff's testimony before the commission "that at least 20 percent of the houses would be sold below the maximum price qualifying as `affordable' pursuant to § 8-30g . . ." Id., 144. Second, the court concurred in the trial court's finding "that the housing would be appropriately deed restricted." Id., p. 145. The court states: "As the trial court noted, the plaintiff clearly expressed his intention to build deed restricted housing pursuant to § 8-30g (a) (2) in his application, his testimony, and the testimony of his attorney." Id.
The record in the present appeal contains the same assurances that were deemed by the court in Kaufman to be sufficient evidence of an applicant's intent to build affordable housing. These assurances include a letter, attached to and constituting part of the zone change application, wherein Mr. Wilson explains his reasons for the requested change. The letter states in part: "The Applicant, who is the owner of property subject to this application, is requesting said zone change for the purpose of constructing affordable housing as defined in Section 8-39a of the Connecticut General Statutes. The development will consist of not less than twenty-five percent of the dwelling units which will be conveyed by deeds containing covenants, or restrictions which shall require that such dwelling units be sold or rented to at, or below, prices which will preserve the units as affordable housing, as defined in Section 8-39a . . . for persons and families whose income is less than or equal to eighty percent of the area median income or eighty percent of the state median income, whichever is less, for at least thirty years after the initial occupation of the proposed development." (ROR, Item C, p. 8.) The application submitted by Mr. Wilson was a genuine and sufficient affordable housing application.
The court realizes that Kaufman established a minimal standard for what constitutes a genuine affordable housing application, and that zoning commissions have a perfectly understandable desire to assure themselves of the genuineness of an application before assuming the burdens imposed by § 8-30g. The legislature in 2000 required far more detailed content in an affordable housing application if it is to receive the special treatment mandated by the statute. See Public. Act 00-206, now codified as subsection (b) of § 8-30g. This amendment does not apply to the application submitted here, however, in 1996.
V
Finally, the commission argues that, even if the court finds that the first zone change was void ab initio and that the application was a valid affordable housing application, the court should remand the case to the commission for further proceedings on Mr. Wilson's application. The commission contends that, because it relied on the industrial zone exemption as a basis for its automatic denial of Mr. Wilson's application, the commission did not make "the thorough investigation that would otherwise be required" of an affordable housing application. (Commission's Supplementary Brief, p. 3.)
It is certainly true that the commission did not meet or even attempt to meet its obligations when passing on an affordable housing application. The problem with the commission's argument is that, when the application was submitted and even at the time of the public hearing on Mr. Wilson's application, the commission had not yet voted to approve the zone change from agricultural to industrial; so, the property was still zoned agricultural. (ROR, Item E.) Almost two months passed from the time Mr. Wilson' s application was filed and the property was zoned industrial. The commission had the obligation and the opportunity to develop the record had it chosen to do so. Instead, it seems that the commission had determined to deny Mr. Wilson's application before hearing it, knowing that it would rezone Mr. Wilson's property from agricultural to industrial on April 2. Under these circumstances it would not be appropriate for the court to remand the case to allow the commission to make the inquiry and the record it should and could have made in 1996.
VII
The court finds that the zone change to industrial uses was ineffective from its inception, and that the property was zoned agricultural at the time the commission denied Mr. Wilson's affordable housing application. Because the commission failed to meet its burden of proof under § 8-30g (g), its decision to deny the zone change to MFDR uses so as to allow the construction of affordable housing is reversed, and the commission is ordered to rezone the property in question to MFDR uses. Of course, the commission, if it chooses, can condition its zone change to MFDR uses on the use of the new zone only for affordable housing. See Kaufman v. Zoning Commission, supra, 232 Conn. 146-48.
BY THE COURT
Joseph M. Shortall, J.