GARDEN HOMES MANAGEMENT CORPORATION et al.
v.
TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD
Argued
December 5, 2018
Appeal
from Superior Court in the judicial district of Fairfield and
transferred to the judicial district of Hartford, Bates, J.
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[Copyrighted Material Omitted]
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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.
[191
Conn.App. 738] 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]
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from the decision of the commission denying Garden Homes
application to construct an affordable housing development.
On appeal, [191 Conn.App. 739] the commission claims that (1)
reversing the courts 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.
[191
Conn.App. 740] Cognizant of these limitations, Garden Homes
consulted Fairfields 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, Fairfields 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
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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 [191 Conn.App. 741] 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, theyre stuck.
They have to back out and back all the way out of the
site." Additionally, Richard Felner, Fairfields 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 wed 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 commissions statement. The letter
noted, inter alia, that "the record indicates that the
[191 Conn.App. 742] [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 clerks 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]
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The
original plaintiffs, Garden Homes, Sandra Conner, and Richard
Irwin; see footnote 1 of this opinion; [191 Conn.App. 743]
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 commissions 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 commissions 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 commissions 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 commissions concerns as to the twenty foot access
way width did not outweigh Fairfields need for affordable
housing.
The
court also assessed the commissions concerns as to the
proposed single entrance drive onto the site. [191 Conn.App.
744] 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
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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 commissions 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 [191 Conn.App. 745]
[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 ...