GARDEN HOMES MANAGEMENT CORPORATION ET AL.
v.
TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF FAIRFIELD
Argued
December 5, 2018
Procedural
History
Appeal
from the decision of the defendant denying the named
plaintiff's application for approval of an affordable
housing development, brought to the Superior Court in the
judicial district of Fairfield and transferred to the
judicial district of Hartford, Land Use Litigation Docket,
where the matter was tried to the court, Bates,
J., which issued a memorandum of decision reversing
the decision of the defendant and remanding the matter to the
defendant for further proceedings; thereafter, Garden Homes
Residential, L.P., was substituted as a plaintiff;
subsequently, the court rendered judgment sustaining the
plaintiffs' appeal, from which the defendant, on the
granting of certification, appealed to this court.
Affirmed.
Melinda A. Powell, with whom were Sarah L. Wilber and, on the
brief, Cindy M. Cieslak, for the appellant (defendant).
Daniel
J. Krisch, with whom were Mark K. Branse and, on the brief,
Kenneth R. Slater, Jr., for the appellees (plaintiffs).
Keller, Moll and Lavery, Js.
OPINION
LAVERY, J.
The
defendant, the Town Plan and Zoning Commission of the Town of
Fairfield (commission), appeals from the judgment of the
Superior Court sustaining the appeal of the plaintiffs Garden
Homes Management Corporation (Garden Homes) and Garden Homes
Residential, L.P., [1] from the decision of the commission
denying Garden Homes' application to construct an
affordable housing development. On appeal, the commission
claims that (1) reversing the court's decision will serve
the public interest; (2) the court improperly declined to
review certain evidence presented to the commission on
remand; (3) the commission has satisfied its burden under
General Statutes § 8-30g on the basis of fire safety
deficiencies in Garden Homes' site plans; and (4) the
commission has satisfied its burden under § 8-30g on the
basis of pedestrian and traffic safety concerns. We affirm
the judgment of the trial court.
The
following facts and procedural history are relevant to this
appeal. Pursuant to the Connecticut Affordable Housing Land
Use Appeals Act, General Statutes § 8-30g et seq.,
Garden Homes applied for permission to build a ninety-five
unit apartment building that would accommodate affordable
housing units.[2] The proposed development would be situated
on a combined 2.9 acres of abutting lots located at 92 and
140 Bronson Road in the Southport section of Fairfield. This
site is bounded to the north by Interstate 95, to the east by
the Mill River, to the south by Metro-North Railroad tracks,
and to the west by a private residence. Consequently, the
buildable area is constrained by the nearby highway and by
wetlands restrictions that prohibit encroaching upon the
river.
Cognizant
of these limitations, Garden Homes consulted Fairfield's
fire marshal, William Kessler, early in the design process
for direction as to compliance with safety standards. Kessler
confirmed that Garden Homes' projected twenty foot wide
access way would be the ‘‘minimally acceptable
parameter'' to provide for fire truck safety and
functionality. Garden Homes, thus, submitted to the
commission initial site plans that proposed a single entry,
twenty foot wide access way, among other features that would
make the development suitable to accommodate all ninety-five
units within the buildable area.
The
commission held an initial public hearing on Garden
Homes' application on July 8, 9, 15, and 16, 2014. Joseph
Versteeg, Garden Homes' fire code expert, testified at
the public hearing that the twenty foot wide access way was
adequate for fire safety purposes. He stated in relevant
part: ‘‘[According to] the Technical Committee of
[National Fire Protection Association, Standard 1 (NFPA 1)]
and [National Fire Protection Association (NFPA)] Technical
Committee members, as well as the NFPA staff, the reason for
the twenty foot road width is that it facilitates two-way
traffic, it also will facilitate one fire truck to pass
another fire truck that has stopped either to connect with a
hydrant or for whatever reason.''
Laura
Pulie, Fairfield's senior civil engineer, cautioned that
the proposed twenty foot wide access way could be
‘‘too narrow for an emergency vehicle to pass
into the site/building location, should a vehicle park along
the driveway despite ‘No Parking or Fire Lane'
signs.'' Accordingly, Pulie recommended increasing
the proposed access way width by four feet.
An
additional concern addressed at the public hearing pertained
to the adequacy of the proposed fire truck turnaround area.
The site plans proposed that the 300 foot long, twenty foot
wide access way would be the only route to enter and exit the
property, which dead-ended at the apartment building. The
concern, therefore, was that fire trucks would be able to
exit the site only by backing up the full length of the
access way. David Spear, a traffic engineer retained by Joel
Green, attorney for the Lower Bronson Neighborhood Alliance
in opposition to Garden Homes' proposal, opined:
‘‘The turnaround right here is the weak link . .
. once [a fire truck] get[s] in here, they're stuck. They
have to back out and back all the way out of the
site.'' Additionally, Richard Felner, Fairfield's
former fire chief, testified: ‘‘[I]f other
emergency vehicles get [to the proposed access way] first,
for example, an ambulance should get there first, our rescue
truck comes in second, to get the ambulance back out, we have
to back a truck out, and we'd have to back the ambulance
out. . . . To make that swing with our ladder truck is
almost, as I see it in looking at the plan, [i]s almost
impossible . . . .''
During
its rebuttal on the final night of the public hearing, Garden
Homes submitted a revised sketch that eliminated four parking
spaces and three units to afford larger vehicles sufficient
space to turn around at the end of the access way. The
commission did not consider this submission in reaching its
decision.
After
the close of the public hearing, the commission voted to deny
Garden Homes' application and unanimously granted a
motion to adopt, as its collective grounds for denial, the
recommendations set forth in a staff report presented to the
commission, with the addition of a statement that Garden
Homes had not demonstrated that its application reflected
adequate sewage capacity. Subsequently, on July 24, 2014, a
clerk for the commission sent Garden Homes' counsel a
letter that memorialized the commission's statement. The
letter noted, inter alia, that ‘‘the record
indicates that the [twenty] foot paved [access way] width is
insufficient for the number of dwelling units proposed and
for the length of the singular access point to the proposed
development.'' The letter also indicated that the
twenty foot width of the access way would not provide fire
trucks sufficient space to turn around on-site. The
clerk's letter stated that the commission expressly made
the following three findings: ‘‘1. There is
sufficient evidence in the record to support a finding that
the proposed development would pose substantial risks to
public interests in health and safety. 2. Those public
interests clearly outweigh the need for affordable housing.
3. There are no reasonable conditions of approval that can be
made to protect those public interests. Therefore the
application is denied.''[3]
The
original plaintiffs, Garden Homes, Sandra Conner, and Richard
Irwin; see footnote 1 of this opinion; timely appealed from
that decision to the Superior Court. In its September 10,
2015 memorandum of decision, the court reviewed the record as
to each of the commission's grounds for denial to
determine whether the commission had satisfied its burden
under § 8-30g. The court began by noting that each of
the concerns set forth in the commission's letter
pertained to ‘‘ ‘substantial public
interests in health, safety, or other matters' that are
generally ‘supported by sufficient evidence in the
record.' ''
The
court then reviewed the commission's concerns as to
several specific features of Garden Homes' site plans to
determine whether that given feature would pose such a health
or safety hazard as to outweigh the need for affordable
housing. The court first reviewed the adequacy of the
proposed twenty foot wide access way. Recognizing that a
twenty-four foot wide access way would be desirable, the
court nonetheless concluded that such an access way was not
required. It reasoned that under applicable fire codes twenty
feet was ‘‘the minimum acceptable width . . . and
that level of compliance should generally be sufficient for
an affordable housing project.''[4] It further
reasoned that even if twenty feet deviated from applicable
standards, such deviation would not ‘‘create a
public health or safety concern that outweighs the need for
affordable housing in the community.'' On balance,
the court, therefore, concluded that the commission's
concerns as to the twenty foot access way width did not
outweigh Fairfield's need for affordable housing.
The
court also assessed the commission's concerns as to the
proposed single entrance drive onto the site. As in its
assessment of the access way width, the court acknowledged
that a secondary point of entrance would be desirable but
concluded that it would not be necessary. It noted that
neither the NFPA nor the American Association of State
Highway and Transportation Officials (AASHTO) codes would
require multiple means of access to accommodate Garden
Homes' proposed site plans.[5] Thus, on balance, the court
concluded that ‘‘the single access [way] . . .
should be sufficient for an affordable housing
project.'' Although the court determined that a
secondary access way was not necessary, it nonetheless was
concerned that the site otherwise contained no area with
adequate turnaround space for fire trucks, among other large
vehicles. Such vehicles, therefore, could exit only by
backing up the full length of the access way.
At the
same time, the court acknowledged that Garden Homes had
attempted to assuage the commission's concerns on this
issue by offering a sketch that proposed an expanded
turnaround area, as well as a decrease in the total number of
units. The court opined that this concern adequately could be
resolved with site plan revisions and, therefore,
‘‘remand[ed] the issue of the [plaintiffs']
most recent redesign of the access way and apartment building
. . . for due consideration by the commission.'' The
court additionally noted that Garden Homes
‘‘should submit to the commission a fully
engineered site plan, indicating the provision of the turning
radii necessary to allow these and other large vehicles to
turn around and exit the site with minimal reverse travel,
both via the elimination of four parking spaces and three
units, as [Garden Homes had] proposed [during rebuttal before
the commission], and by alternative
means.''[6]
On
remand, Garden Homes submitted revised site plans to the
commission, in which it proposed (1) reducing the number of
housing units from ninety-five to ninety-one, and (2)
replacing four parking spaces with a fire lane that would
serve as a turnaround area for fire trucks and other large
vehicles. The revised site plans also contained engineered
turning movement counts, indicating that the largest fire
truck of the Fair-field Fire Department (department) could
turn around in this area by making a four count W shaped
turning movement.
At the
outset of the public hearing that was held on May 24, 2016,
before the commission on Garden Homes' revised
application, Garden Homes contended that the court's
remand limited the commission's review to the issue of
the revised turnaround area. The commission, however, noted
that the court determined that the commission's concerns
as to Garden Homes' initial site plans pertained to
substantial interests in public health and safety. The
commission, therefore, interpreted the court's remand
order more broadly as direction to evaluate Garden Homes'
revised plans for new health and safety concerns pertaining
to the department's ability to access the proposed
building and to enter and exit the site. Accordingly, the
commission accepted new evidence during the public hearing on
the basis of that interpretation.
Such
new evidence included a report prepared by Scott Bisson
(Bisson report), the department's assistant chief, on
Garden Homes' revised site plans, which reiterated and
elaborated on the department's prior concerns as to the
access way width and lack of a secondary entrance to the
development, matters upon which the court already had ruled.
The Bisson report also considered several matters beyond the
turnaround area.[7] Fire Chief Denis McCarthy spoke at the
public hearing and elaborated on the opinions set forth in
the Bisson report. In light of that evidence, the commission
considered whether ‘‘there is support to make
findings different from those made in the initial application
and, if there is not, are there reasonable changes that could
be made to protect public interests in health and
safety.''
A clerk
for the commission sent Garden Homes' counsel a letter
memorializing the commission's grounds for
denial.[8] The commission listed several points from
McCarthy's testimony arguing that Garden Homes'
revised plans posed fire safety concerns, namely: the
department must be able to access the building; lack of
secondary access way; no area of refuge during an emergency;
residents will flee the property during an emergency; up to
ninety-five cars could be leaving at the same time; based on
McCarthy's experience, he expects to respond to an
emergency approximately twenty-four times annually, or about
twice per month, and all five of Fairfield's fire
stations would send responders; the department will be
on-site for hours; the ladder truck will not be able to
access the roof; the turnaround area will not help the
department access the building; despite the revised
turnaround area, McCarthy opined that the plans were not
safe; and McCarthy did not believe there was any alternative
way to address the department's concerns.[9] The commission,
therefore, concluded that Garden Homes' revised plans
would pose substantial risks to public interests in health
and safety, which outweighed the need for affordable housing,
and that noreasonable conditions of approval could protect
those interests.[10] Accordingly, the commission denied
Garden Homes' revised site plans.
The
trial court addressed that denial in a memorandum of decision
dated March 3, 2017, concluding that the commission's
stated concerns pertained to matters upon which the court
previously had ruled and did not pertain to the subject of
the court's limited remand. Additionally, the court
determined that none of those concerns outweighed the need
for affordable housing. Accordingly, the court sustained the
plaintiffs' appeal and ordered the commission to approve
Garden Homes' revised application and issue the requested
permit. The commission then filed a petition for
certification to appeal pursuant to General Statutes §
8-8 (o), which this court granted. Additional facts and
procedural history will be set forth as needed.
I
We
begin by setting forth guiding principles of law as to our
jurisdiction over the present appeal. ‘‘Because
our jurisdiction over appeals . . . is prescribed by statute,
we must always determine the threshold question of whether
the appeal is taken from a final judgment before considering
the merits of the claim. . . . Thus, unless the remand order
of the trial court in [a] zoning appeal constitutes a final
judgment, we are required to dismiss the commission's
appeal to this court for lack of subject matter jurisdiction.
. . . [I]t is the scope of the remand order in [a] particular
case that determines the finality of the trial court's
judgment.'' (Citations omitted; internal quotation
marks omitted.) Barry v. Historic District
Commission, 108 Conn.App. 682, 688, 950 A.2d 1, cert.
denied, 289 Conn. 942, 959 A.2d 1008, and cert. denied, 289
Conn. 943, 959 A.2d 1008 (2008). ‘‘Determining
the scope of a remand is a matter of law . . . [over which]
our review is plenary.'' (Internal quotation marks
omitted.) State v. Tabone, 301 Conn. 708, 713-14, 23
A.3d 689 (2011).
When
the court's remand order dictates the outcome of the
case, the court's decision ‘‘so concludes the
rights of the parties that further proceedings cannot affect
them. . . . A judgment of remand is not final, however, if it
requires [the agency to make] further evidentiary
determinations that are not merely ministerial.''
(Citations omitted; internal quotation marks omitted.)
Kaufman v. Zoning Commission, 232 Conn. 122, 130,
653 A.2d 798 (1995). When the court's remand order does
not decide the outcome of the case and allows the commission
to retain discretion to deny the application, a reviewing
court does not have subject matter jurisdiction.
AvalonBay Communities, Inc. v. Zoning Commission,
284 Conn. 124, 139-40, 931 A.2d 879 (2007) (because court
remanded case to commission with instruction to consider
certain factors and, therefore, implicitly required
commission to conduct further evidentiary hearings, court
order did not decide outcome of case, and commission retained
discretion to grant or deny application and, therefore,
initial memorandum of decision was not final judgment).
In the
present case, the court, in its initial decision, expressly
concluded that the twenty foot access way width and the
single entrance complied with national fire safety standards
and that neither of those two features posed concerns that
outweighed the need for affordable housing. Additionally, the
court expressly concluded that neither the lack of sidewalks
nor the commission's concerns as to the ratio of parking
spaces per unit outweighed Fairfield's need for
affordable housing. As to the proposed turnaround area,
however, the court determined that ‘‘[t]he
ability of [fire trucks] to enter and turn around in the
parking lot is an issue of health and safety. The ability of
moving and large delivery trucks to do the same is an issue
of health and safety to a lesser degree but should also be
reviewed.'' The court, accordingly, issued a remand
order that was limited in scope. It remanded the matter to
the commission with direction to consider potential redesigns
to the turnaround area that would ‘‘allow . . .
large vehicles to turn around and exit the site with minimal
reverse travel . . . .'' At that point, the court had
not issued a final judgment, as the commission was required
to make evidentiary determinations as to the adequacy of
potential redesigns to the turnaround area. See Kaufman
v. Zoning Commission, supra, 232 Conn. 130
(‘‘[a] judgment of remand is not final, however,
if it requires [the agency to make] further evidentiary
determinations that are not merely ministerial''
[internal quotation marks omitted]); Barry v. Historic
District Commission, supra, 108 Conn.App. 690 (no final
judgment when trial court remands for additional
administrative evidentiary findings as precondition to final
judicial resolution). Given the court's limited remand
order, the only remaining matter for the commission to
consider was the adequacy of the turnaround area at the end
of the access way. See West Haven Sound Development Corp.
v. West Haven, 207 Conn. 308, 312, 541 A.2d 858 (1988)
(lower court should only review matters within scope of
remand order).
Despite
the court's limited remand order, the commission
reevaluated Garden Homes' revised application for any
potential health and safety risk that the turnaround area
could pose. The commission also accepted evidence that raised
issues beyond the turnaround area itself and then
incorporated this new evidence into its collective statement
of denial.
When
the trial court addressed the decision of the commission on
remand, it concluded that the commission exceeded the bounds
of the limited remand and that none of these concerns
outweighed Fairfield's need for affordable housing. The
court stated: ‘‘To the extent the [c]ommission
has raised any new health and safety concerns, the court
finds those concerns do not outweigh [Fairfield's] need
for affordable housing.'' The court, accordingly,
remanded the case with instruction to grant Garden Homes'
requested permit. Consequently, the court issued an
appealable final ...