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Jag Capital Drive, LLC v. East Lyme Zoning Commission

Court of Appeals of Connecticut

October 4, 2016

JAG CAPITAL DRIVE, LLC
v.
EASTLYME ZONING COMMISSION

          Argued May 19, 2016

         Appeal from Superior Court, judicial district of Hartford, Land Use Litigation Docket, Cohn, J.

          Edward B. O'Connell, with whom, on the brief, was Mark S. Zamarka, for the appellant (defendant).

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

          Sheldon, Mullins and Harper, Js.

          OPINION

          SHELDON, J.

         The defendant, the East Lyme Zoning Commission (commission), appeals from the judgment of the Superior Court sustaining the administrative appeal of the plaintiff, JAG Capital Drive, LLC, from the commission's denial of the plaintiff's application for approval of a proposed affordable housing development. The commission claims that the trial court erred in concluding that it failed to meet its burden of proof in denying the plaintiff's application on the ground of the industrial zone exemption-that the proposed affordable housing development would be located in an area which is zoned for industrial use and does not permit residential uses-pursuant to General Statutes § 8-30g (g) (2) (A). More specifically, the commission claims that the trial court erred in determining that the area in which the proposed affordable housing project would be located permits residential uses.[1] We disagree with the commission, and thus affirm the judgment of the trial court sustaining the plaintiff's appeal from the commission's denial of its affordable housing application.

         In its December 23, 2014 memorandum of decision, sustaining the plaintiff's administrative appeal, the trial court set forth the following relevant factual and procedural history. ‘‘The plaintiff's land is located in East Lyme. It consists of 24 acres, zoned LI, Light Industrial, adjacent on the north side to a small commercial/light industrial area served by a street called Capital Drive, ending in a cul-de-sac north of [the plaintiff's] 24 acres. West of the plaintiff's property are wetlands, a stream, and the East Lyme/Old Lyme border. To the east are a single-family residential neighborhood and Camp Niantic, a seasonal campground. To the south is State Route 156, which in that location is called West Main Street. The plaintiff's property has frontage on Route 156/West Main. . . .

         ‘‘The plaintiff filed its initial application for site plan approval with the commission on August 7, 2012, consisting of 69 units, a proportion of which were to be affordable housing units under § 8-30g. . . . The units were to form a residential development to be known as ‘Rocky Neck Village, ' proposed as rental units with possible future conversion to common interest ownership. They were to be two bedroom townhome style units. . . . The town's wetlands commission had given its approval to the development in March 2011. . . .

         ‘‘The commission held a public hearing on this application on February 7, 2013. The plaintiff's attorney and his designees explained the proposed site plan demonstrating that it would not cause any health or safety concerns, submitted a traffic report that had no safety concerns, entered favorable reports on stormwater and other environmental topics, and explained the inapplicability of coastal management zoning. The attorney also explained the difficulties that the plaintiff faced in marketing the property for light industrial use. . . .

         ‘‘The commission staff gave a presentation and the public spoke out, some favoring and others objecting to the site plan. There was also testimony from three business owners located in the LI zone of the application. Norman Birk, president of Birk Manufacturing, informed the commission that his company uses corrosive acids, liquid stainless steel and metal finishing techniques in the manufacture of circuit boards. . . . It has an approval from the Department of Energy and Environmental Protection to treat wastewater on site. . . . In 2011, Birk Manufacturing experienced an industrial accident when bari-chloride and muriatic acid were mixed, creating dangerous chlorine gas. Federal, state and local agencies, including a hazardous materials team were called to the scene, a large portion of the industrial park was evacuated and two Birk employees were hospitalized. . . .

         ‘‘Two other company executives also spoke at the public hearing. The first was Susan Spellman, owner of Salon Associates, also located on Capital Drive. Her company receives, stores and ships chemicals used in the salon industry, including bleach, aerosols and acetones. In 2011 she was visited by an FBI agent to explain that the type of chemicals at her site might make her business a terrorist target, and to suggest means of safe storage. . . . Richard Beck, owner of Embalmer's Supply Company on Capital Drive, informed the commission that he stores embalming fluid and formaldehyde, a carcinogen on site. Evidence was taken of industrial sized truck traffic in the industrial park at all hours. . . .

         ‘‘The plaintiff's attorney in reply stated to the commission that the project would be built in stages starting from Route 156. The only contact with Capital Drive would be the opening of an access road for water and other utilities. He also pointed out that the Birk Manufacturing incident had occurred inside the building, the longstanding proximity of the three businesses to the single-family residential neighborhood to the southeast, and during five to six months of each year, to Camp Niantic, a residential campground to the east and south of the plaintiff's parcel. He also noted the fact that the commission had approved the 38 Hope Street residential development in the LI zone in 2006, with an adjacent lumber yard with truck traffic and an active rail line. ...

         ‘‘On February 21, 2013, the commission met after the close of the public hearing. It concluded that the application should be denied on the ground that it was proposed in a Light Industrial District, under § 11 of its zoning regulations.[2] It was to be located in an area zoned for industrial use and in which residential uses were not permitted. The commission's resolution stated that it acted under the provisions of the affordable housing statutes that had an exemption for an ‘industrial zone.' [General Statutes} § 8-30g (g) (2) (A). . . .

         ‘‘Notice of the denial of the plaintiff's application was published on March 14, 2013. . . . On March 28, 2013, the plaintiff filed a resubmission pursuant to § 8-30g (h). . . . The revised site plan (1) eliminated nine units closest to the existing uses in the LI zone as well as one building, (2) increased landscaped buffer between the industrial uses and the proposed homes to meet the East Lyme multifamily/affordable housing regulations, (3) reduced site coverage, (4) improved traffic access, (5) increased open space, and (6) decreased stormwater runoff. . . .

         ‘‘At a public hearing on May 16, 2013, a professional engineer, retained by the commission, suggested minor plan revisions that were accepted by the plaintiff. . . . The plaintiff provided documentation that the LI zone allowed for types of residential uses. . . . These documents included the commission's 1990 resolution approving Bride Brook [Nursing and Rehabilitation Center (Bride Brook)] as a place where people would ‘reside' within the LI zone, along with its approvals of Sea Spray [Condominiums, an affordable housing development] and 38 Hope Street as multifamily residential uses on parcels zoned LI.

         ‘‘The plaintiff noted that Salon Enterprises, an operation discussed at the original public hearing, was a wholesale business, not a manufacturing facility; it conducts on-site classes for beauty parlor employees. As to Birk Manufacturing, the plaintiff showed that in the revised plan, Birk's building at its closest point is 360 feet from the corner of the nearest residential unit. The attorney for the plaintiff concluded that Birk did not expect future accidents. This was also confirmed by Mr. Birk. . . . Birk and Spellman from Salon did express concern that the approval of the plaintiff's application could cause them to have to consider moving out of East Lyme to another location. . . .

         ‘‘The commission voted at its June 6, 2013 meeting to deny the plaintiff's amended application. The commission adopted a resolution that states in part as follows: ‘Whereas, for the purposes of this Resolution, the Commission will address the Amended Application in two separate parts: (1) As an affordable housing application that would locate affordable housing in an area which is zoned for industrial use . . . and (2) As an application for approval of an affordable housing development pursuant to General Statutes § 8-30g (g) (1).'

         ‘‘With regard to the ‘industrial use' exception, the commission found that the proposed development ‘would be located entirely in an area that is presently zoned Light Industrial (LI) according to the East Lyme Zoning Map.' It further found that the LI zone provided for industrial and commercial uses and did not permit residential uses in the zone. The commission had heard testimony from business owners in the zone on the industrial uses in the area, ‘including, but not limited to, manufacturing processes, heavy truck travel and chemical manufacturing, storage and transportation.'

         ‘‘It was resolved that the commission denied the amended application ‘to be located on Capital Drive at or near its intersection with Route 156 in East Lyme, for the reason that the development is located entirely in an area which is zoned for industrial use and which does not permit residential uses, and that the Application does not seek approval for assisted housing as defined in § 8-30g (a) of the General Statutes.' . . .

         ‘‘With regard to the general approval of an affordable housing development, [the commission found that] there was both sufficient evidence and evidence of the need to protect the public health and safety to support the commission's denial. The development was inconsistent with the town's plan of conservation and development. It was to be located in an LI zone with industrial uses, as stated above. There was an industrial accident of concern in the last year requiring evacuation of the area, drawing responses from hazardous materials teams, the Department of Energy and Environmental Protection and the federal [Environmental Protection Agency]. There was a ‘quantifiable probability' of specific harm raising interests in public health and safety. ‘There is a necessity to protect the public that cannot be remedied by changes to the application and the risk of such harm to the public interest outweighs the need for affordable housing.' . . .

         ‘‘This appeal [from the commission's denial of the plaintiff's application] was subsequently filed. On July 15, 2014, the attorneys for the parties and the court conducted a view of the site. The group met at the cul-de-sac end of Capital Drive. Birk Manufacturing was to the left, as well as a parking lot and a small garden. Outside of Birk were two burning pots of some type. Salon Enterprises was to the right. There were a few other buildings in the cul-de-sac. There was no heavy truck traffic at the time of the viewing in midday. The court and the parties walked down a path in to a wooded area. To the left along this path is Camp Niantic and to the right is an open space conservation area with the Four Mile River. The entryway to the proposed project is about 400 feet from the cul-de-sac in the midst of the woods. At this point, the plaintiff proposes to place a gate and additional plantings. The court viewed the general area where the development is to be built. There were people making use of the trail into the woods for recreational activities. This trail is to serve as an emergency entrance and exit to the development. The parties returned to the cul-de-sac and drove out of Capital Drive to Route 156. The court observed the premises along Route 156, commercial in nature, the main entrance to the proposed development, and also [Bride Brook]. Sea Spray was also viewable nearby.

         ‘‘Along with the view that the court conducted, the court ordered that the commission hold a further factual hearing on the ‘day-to-day operation' of Bride Brook. This order was based on exhibit M, which dated from 1989/1990, where a Bride Brook officer indicated that the center was functioning partly as a ‘rest home.' The commission conducted a further hearing on ...


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