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Garden Homes Management Corp. v. Town Plan & Zoning Commission of Town of Fairfield

Court of Appeals of Connecticut

August 13, 2019

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 ...


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