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Brenmor Props., LLC v. Planning & Zoning Comm'n of Lisbon

Appellate Court of Connecticut

February 2, 2016


         Argued October 13, 2015

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[Copyrighted Material Omitted]

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          Appeal from the decision of the defendant zoning commission denying the plaintiff's application for subdivision approval, brought to the Superior Court in the judicial district of New London and transferred to the judicial district of Hartford, Land Use Litigation Docket; thereafter, the matter was tried to the court, Shluger, J.; judgment sustaining the appeal, from which the defendant, on the granting of certification, appealed to this court.


         The plaintiff developer appealed to the trial court from the decision of the defendant planning and zoning commission denying its modified application for approval of an affordable housing subdivision pursuant to statute (§ 8-30g). The commission previously had denied the plaintiff's initial application, and the plaintiff submitted a modified application addressing the commission's concerns with respect to road construction and its impact on fire safety, including changes to the homeowner's agreement that residents of the subdivision were required to follow. Following the public hearing on the modified application, an oral motion to deny the application was made by one commissioner, and the commission voted to deny the modified application. The trial court rendered judgment sustaining the plaintiff's appeal and remanded the matter to the commission with direction to grant the modified application. On the granting of certification, the commission appealed to this court, which held :

         1. This court found unavailing the plaintiff's claim, raised as alternative ground for affirmance, that the commission had improperly failed to state its reasons for denying the modified application when it rendered its decision: although the oral motion to deny the modified application was not precise, it stated that the proposed roadway did not comply with the town code or the state fire code, and it echoed the commission's previous denial in which the formal motion to deny the initial application incorporated by reference a document detailing the commission's concerns regarding noncompliance with both the town's road ordinance and the fire code, such that the record contained a clear basis to review the commission's decision.

         2. The commission could not prevail on its claim that the plaintiff's noncompliance with the town's road ordinance constituted a valid ground per se to deny its affordable housing application, as the commission's burden in an affordable housing appeal is prescribed by § 8-30g and requires the commission to prove that its decision to deny the application was necessary to protect substantial public interests in health, safety or other matters that the commission may legally consider and that such public interests clearly outweighed the need for affordable housing: although the commission's decision to deny the plaintiff's modified application was supported by sufficient evidence in the record, as the road ordinance at issue expressly indicated that its purpose was to protect the public health and safety and the commission reasonably could have concluded that noncompliance therewith created more than a mere theoretical possibility of harm to public health and safety, the commission could not demonstrate that its decision was necessary to protect those interests in light of the remedial purpose of § 8-30g and the importance of developing affordable housing; moreover, the commission failed to demonstrate that strict compliance with the road ordinance was necessary to protect a substantial public interest, as the road ordinance itself makes plain that its requirements are not absolutes, the proposed roadway was private rather than public and would serve only fifteen homes, there was expert testimony in the record that the proposed road was safe in that emergency vehicles could pass even if cars parked on the road in contravention of the homeowner's agreement, and there was no evidence in the record of any specific harm that would result from not strictly complying with the road ordinance in this case; furthermore, the record contained no evidence that the need for strict compliance with the road ordinance outweighed the need for affordable housing such that the commission did not meet its burden under § 8-30g.

         3. The administrative record before this court did not substantiate the commission's claim that the plaintiff's alleged noncompliance with the fire code constituted a valid ground on which to deny its modified application, as the fire marshal reviewed only the plaintiff's initial application and not the modified application, and the trial court determined that the modified application incorporated changes that corrected the deficiencies the fire marshal had identified; moreover, the modified application also addressed the commission's concerns as to snow removal, snow storage, and restrictions on parking, and the commission did not identify any evidence in the record of a quantifiable probability of a specific harm to public safety stemming from its speculative assumption that residents would not comply with the various no parking and fire lane designations, nor with the requirements set forth in the homeowner's agreement.

         4. The commission could not prevail on its claim that the trial court exceeded its authority when it sustained the plaintiff's appeal and remanded the matter to the commission with direction to grant the plaintiff's modified application: a court is empowered by § 8-30g (g) to wholly or partly revise, modify, remand, or reverse the decision from which the appeal was taken in a manner consistent with the evidence, and the trial court here did not abuse its discretion because its order was consistent with the evidence in the record; moreover, the modified application detailed numerous conditions of approval proposed in response to the concerns expressed by the commission such that the trial court's order to grant the modified application " as is" necessarily included those conditions.

         Michael A. Zizka, for the appellant (defendant).

         Timothy S. Hollister, with whom was Andrea L. Gomes, for the appellee (plaintiff).

         Gruendel, Mullins and Sullivan, Js. GRUENDEL, J. In this opinion the other judges concurred.


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          [162 Conn.App. 680] GRUENDEL, J.

          The defendant, the Planning and Zoning Commission of the Town of Lisbon (commission), appeals from the judgment of the Superior Court sustaining the administrative appeal of the plaintiff, Brenmor Properties, LLC. The commission contends that the court improperly concluded that the plaintiff's failures to comply with (1) the road construction standards established by town ordinance and (2) the Connecticut State Fire Prevention Code (fire code) were not valid grounds to deny its application for an affordable housing subdivision. The commission also challenges the propriety of the remand ordered by the court. We affirm the judgment of the Superior Court.[1]

          [162 Conn.App. 681] The underlying facts are not in dispute. At all relevant times, the plaintiff

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owned a 12.92 acre parcel of undeveloped land with frontage on Ames Road and Route 169 in Lisbon (property). The property contains a small pond and 1.9 acres of the property are designated as wetlands. [2] In May, 2012, the plaintiff filed an application with the commission pursuant to General Statutes § 8-30g for approval of an affordable housing subdivision.[3] The proposed subdivision consisted of nineteen residential lots with an average size of 29,620 square feet. On all but one lot, a single-family, three bedroom modular home[4] would be erected.[5] The proposal also included [162 Conn.App. 682] a dedicated septic system and well for each home. With respect to price restrictions, six of the eighteen proposed homes " would be deed-restricted for forty years at prices within the economic reach of moderate income households, such that, based on 2012 data, three homes would be preserved for households earning $70,200 or less and sold at a maximum of $247,000; and three homes would be preserved for households earning $52,600 or less and sold at a maximum of $174,000. Other homes would be sold at market-rate prices in the range of $275,000." [6]

         Four of the proposed lots were to be located on the westerly side of the property and would be accessed by driveways on Route 169. The remaining lots were to be located on the easterly side of the property adjacent to Ames Road and would be accessed by a private roadway, which the plaintiff describes as a " common driveway" [7] and the commission characterizes as

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an " interior road network." [8] This appeal concerns that roadway.[9]

         The commission conducted a public hearing on the plaintiff's original application that began on August 7, [162 Conn.App. 683] 2012, and was continued over four additional evenings on September 4, October 2, November 7, and November 13, 2012. In response to various comments raised during that hearing, the plaintiff submitted multiple revisions to its proposal, culminating with its November 13, 2012 " final submission materials." Following the conclusion of the public hearing, the commission's legal counsel, Attorney Michael Zizka, prepared a document dated January 8, 2013, and entitled " Brenmor Subdivision Application Issues and Potential Conditions of Approval" (document). That document delineated seven issues and provided analysis thereof. At the commission's regular meeting on January 8, 2013, the commission reviewed those seven issues. The proposed roadway's nonconformance with the Lisbon road ordinance (road ordinance)[10] generated the most discussion, as the roadway violated its minimum width and maximum grade requirements.[11] On that issue, Commissioners Robert Adams, Ronald Giroux, Kim Sperry, John Dempsey, Gary Ritacco, Sharon Gabiga and David Gagnon all concurred that the proposed roadway needed to comply with the road ordinance as a matter [162 Conn.App. 684] of public safety.[12] When the deliberations concluded,

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Zizka stated that, in light of the sentiments expressed [162 Conn.App. 685] by commission members, his " recommendation would be that the commission deny the application for the reasons set forth in the [document] regarding issues numbered 1, 2, 4 . . . ." Commissioner Giroux then immediately made such a motion, stating: " I'd like to make a motion to deny the application to the issues of 1, 2, 4 . . . ." [13] The motion was approved by a vote of eight to zero, with one commissioner abstaining. Following that vote, Zizka remarked for the record that " as [he] understood it, [the commission

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is] prepared to entertain and . . . perhaps even welcome the [plaintiff] to come back with . . . a renewed proposal where the road meets town standards because . . . the belief is that that would solve most of . . . the issues that the commission has the greatest concerns with."

         On January 30, 2013, the plaintiff filed with the commission a modified affordable housing proposal pursuant [162 Conn.App. 686] to § 8-30g (h).[14] Consistent with the strictures of that statutory mechanism, the plaintiff emphasized that " this resubmission constitutes a continuation of the application denied January 8; this is not a new application." The revised plan contained certain modifications that the plaintiff made " in direct response to the [commission's] January 8, 2013 denial." [15] That revised plan [162 Conn.App. 687] nonetheless did not modify the width or grade of the proposed roadway adjacent to

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Ames Road so as to fully comply with the requirements of the road ordinance. In its written response to the commission's January 8, 2013 denial of its subdivision application, the plaintiff acknowledged that the commission at that time had proposed, as a potential condition of approval, that the roadway " shall conform to standards established" in the road ordinance. The plaintiff nonetheless submitted that such a condition was unnecessary, as " [t]here is no expert or other testimony in the record that the proposed [roadway is] unsafe." The plaintiff thereafter further revised its proposal, as reflected in its revised plan that was received by the commission on March 5, 2013.

         On March 5, 2013, the commission held a public hearing on the plaintiff's modified application, as required by § 8-30g (h). At its outset, the plaintiff's representative, Attorney Timothy Hollister, provided an overview of the changes to its proposal. On the issue of compliance with the road ordinance, Hollister candidly acknowledged that " [w]e just don't think it's necessary to build these internal private roads including the town standard in terms of widths and sidewalks and turn arounds and so forth. It's just not--these don't serve enough lots that that's required to do." Hollister concluded his prefatory remarks by stating that " where we end up is really, I [162 Conn.App. 688] think . . . one big issue . . . and that is . . . whether this internal, what we call the private internal roadway system, driveway is safe for the people who want to live there . . . ."

         Mark Vertucci, a traffic engineer retained by the plaintiff, then addressed the commission. Vertucci prepared a traffic impact study that was submitted with the plaintiff's original application. That study utilized traffic rates provided by the Institute of Transportation Engineers Trip Generation Manual, an " industry accepted resource." Vertucci's analysis concluded that the proposed subdivision was " going to be a very low traffic generator, given the . . . small number of units." Vertucci further concluded that " the development will provide safe and efficient access, egress, and circulation for the residents and guests of the subdivision as well as the general public entering or passing the property. In addition, the [proposed roadway] interior to the site will sufficiently accommodate circulation by emergency vehicles." As part of the plaintiff's modified application, Vertucci provided both a written " traffic safety review" and testimony before the commission, in which he opined that the plan set forth in the resubmission " does provide for safe traffic operations and site circulation. It provides for safe ingress and egress for passenger cars and emergency vehicles [and] does not present any public health or safety concerns."

         At that public hearing, the commission's professional staff also commented on the modified proposal. James Rabbitt, the town planner, and Robert DeLuca, the town engineer, disagreed with the plaintiff's assertion that the proposed roadway qualified as a driveway, as it would provide " the only access to fifteen single-family dwellings." Rabbitt and DeLuca both noted that the proposed roadway did not comply with the minimum width or maximum grade requirements of the road ordinance. In his March 1, 2013 letter to Rabbitt, DeLuca [162 Conn.App. 689] had opined that the standards set forth in the road ordinance " provide for an appropriate higher level of safety" and reflected " a typical policy within [Connecticut] municipalities for access roads to multiple residences as opposed to a shared driveway to 2-3 residences." At the public hearing, DeLuca stated, " I do feel that the infrastructure needs to be built completely to service all these lots safely . . . so that it'll be in place so that emergency vehicles can safely get around regardless of how

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many houses they have built." [16] Although they repeatedly emphasized that the proposed roadway did not comply with the requirements of the road ordinance, neither Rabbitt nor DeLuca indicated that compliance was necessary to protect a substantial public interest or that the risk of harm thereto clearly outweighed the need for affordable housing.

         The commission deliberated the merits of the plaintiff's application at its April 2, 2013 meeting. During those deliberations, commission members debated whether to defer their final vote, as Zizka was not present at that time but was available to attend a special meeting the following week. After one unidentified commissioner indicated his unavailability the following week, another stated: " There's gonna be quite a lot of information here between the three reports [submitted by Zizka, DeLuca and Rabbitt]. It's kind of tough to make a decision just reading them now." When Chairman Adams inquired as to whether his colleagues had " enough information to vote tonight," an unidentified commissioner responded: " I feel that we have enough information to vote tonight. This has been going on for quite a while. We did get all this information. It has been basically the same information over and over and [162 Conn.App. 690] over. [The plaintiff] made a couple changes last month, ah. Their attorney basically said to us last month you can vote tonight because, you know, you know we're gonna go to court. They're gonna deny it. So vote tonight and get it over with. And, that's it. And, ah, you know we're going over the same stuff tonight we went over last month and it's just saying how much stuff you gonna read on the same subject? You know. It's the same thing over and over and over."

         Shortly thereafter, Chairman Adams then asked, " [a]ny further discussion?" Hearing no reply, he continued: " Okay. All in favor of having a motion tonight. Vote tonight. Who would like to make a motion? And, and be forewarned. When you make a motion, you have to be pretty specific. You can't just say testimony or other information given by the planner and other staff. You have to be clear. As many of you know, that [the plaintiff is] already expecting us, expecting this [commission] to go to court so you have to be pretty specific and careful on what you're making a motion and how you're presenting it and the reasons you're for your motion." At that point, Commissioner Sperry made " a motion to deny the resubmitted application based on the testimony from the town engineer, fire marshal, and town [attorney]. The road does not meet code, doesn't meet fire code, doesn't meet town code. Um. Based upon the retraction of the commitment to build the entire infrastructure and we're back to a piecemeal infrastructure as we go. Um, ah, and, um the elimination of, ah, the, ah, the right of way, um, that can potentially, ah, put the wells at risk and does not allow the town the flexibility it needs to, um, maintain or widen or do work, now or in the future, on Ames Road as well as I believe Lot 17 is still on the plan and that is not an approved lot." Chairman Adams then inquired, " [a]m I to take that motion to mean, in addition to the other, ah, information on the record?" Commissioner Sperry [162 Conn.App. 691] replied, " in addition to the information on the record, the testimony submitted by [inaudible] engineers, that [of] the town of Lisbon fire marshal, [and Zizka and Rabbitt]." That motion to deny

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was approved by a vote of eight to zero, with one commissioner abstaining.

         From that decision, the plaintiff appealed to the Superior Court. On June 13, 2014, the court issued its memorandum of decision. In sustaining the plaintiff's appeal, the court concluded that neither noncompliance with the road ordinance nor noncompliance with the fire code constituted a valid ground on which to deny the plaintiff's application.[17] As a result, the court reversed the " denial of the plaintiff's resubmission and remand[ed] the case to the [commission] with direction to grant the plaintiff's resubmission as is." The commission thereafter filed a ...

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