May 19, 2016
from Superior Court, judicial district of Hartford, Land Use
Litigation Docket, Cohn, J.
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
Sheldon, Mullins and Harper, Js.
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. 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.
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.
. . .
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. . . .
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. . . .
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. . . .
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. . . .
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. ...
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. 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). . . .
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. . . .
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.
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. . .
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).'
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.'
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.' . . .
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.' . . .
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.
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 ...