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Brenmor Properties, LLC v. Planningand Zoning Commission of Town of Lisbon

Supreme Court of Connecticut

June 27, 2017

BRENMOR PROPERTIES, LLC
v.
PLANNING AND ZONING COMMISSION OF THE TOWN OF LISBON

          Argued January 20, 2017

         Procedural History

         Appeal from the decision of the defendant 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 the Appellate Court, Gruendel, Mullins and Sullivan, Js., which affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this court. Affirmed.

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

          Timothy S. Hollister, with whom were Beth Bryan Critton and Andrea L. Gomes, for the appellee (plaintiff).

          Mark K. Branse and Caleb F. Hamel filed a brief for the Garden Homes Management Corporation as ami-cus curiae.

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

         Syllabus

         The plaintiff developer appealed to the trial court from the decision of the defendant planning and zoning commission denying its application for an affordable housing subdivision pursuant to statute (§ 8-30g). The commission had denied that application on the ground that the project, as proposed, did not comply with a municipal ordinance governing the construction of roads or the state fire safety code. The trial court rendered judgment sustaining the plaintiff's appeal, concluding that neither noncompliance with the ordinance nor noncompliance with the fire code constituted a valid ground on which to deny the application, and remanded the matter to the commission with direction to grant the application as presented. The commission appealed to the Appellate Court, which concluded that the trial court properly sustained the plaintiff's appeal and did not abuse its discretion by ordering the commission to approve the application as is. The commission, on the granting of certification, appealed to this court from the Appellate Court's judgment. Held that the Appellate Court properly affirmed the judgment of the trial court, this court having concluded that, following consideration of the arguments presented, the Appellate Court's opinion should be adopted as the proper statement of the issues and the applicable law concerning those issues, and, in light of the commission's concession before both the Appellate Court and this court that the abuse of discretion standard of review applied to the trial court's decision to order the commission to approve the plaintiff's application as presented, this court declined to consider the standard applicable to a trial court's affordable housing remedy under § 8-30g.

          OPINION

          PER CURIAM.

         This certified appeal requires us to consider the relationship between a town's roadway construction standards and the more flexible treatment given to development proposals made pursuant to the Affordable Housing Appeals Act, General Statutes § 8-30g. The defendant, the Planning and Zoning Commission of the Town of Lisbon (commission), appeals, upon our grant of its petition for certification, from the judgment of the Appellate Court affirming the judgment of the trial court sustaining the administrative appeal of the plaintiff, Brenmor Properties, LLC. Brenmor Properties, LLC v. Planning & Zoning Commission, 162 Conn.App. 678, 680, 136 A.3d 24 (2016); see footnote 4 of this opinion. On appeal, the commission claims that the Appellate Court improperly concluded that (1) the commission was required to grant the plaintiff's application for subdivision approval, despite the application's lack of compliance with a municipal road ordinance (road ordinance), [1] and (2) the trial court properly ordered the commission to approve the plaintiff's application ‘‘as is, '' rather than remand the case to the commission for consideration of potential conditions of approval. We disagree and, accordingly, we affirm the judgment of the Appellate Court.

         The record and the Appellate Court's opinion reveal the following facts and procedural history.[2] ‘‘At all relevant times, the plaintiff 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. In May, 2012, the plaintiff filed an application with the commission pursuant to . . . § 8-30g for approval of an affordable housing subdivision. 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 would be erected. The proposal also included 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 . . . .

         ‘‘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 and the commission characterizes as an interior road network. This appeal concerns that roadway.'' (Footnotes omitted; internal quotation marks omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn.App. 681-82.

         The commission held a public hearing on the plaintiff's application over the course of five evenings in 2012. See id., 682-83. ‘‘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 . . . 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 . . . road ordinance . . . generated the most discussion, as the roadway violated its minimum width and maximum grade requirements.'' (Footnote omitted.) Id., 683. Following deliberations at the commission's regular meeting on January 8, 2013, the commission voted unanimously to deny the plaintiff's application, with ...


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