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Autumn View, LLC v. Planning and Zoning Commission of Town of East Haven

Court of Appeals of Connecticut

September 24, 2019


          Argued April 11, 2019

         Appeal from the decision of the defendant denying the plaintiffs’ application for approval of an affordable housing development, brought to the Superior Court in the judicial district of New Haven and transferred to the judicial district of Hartford, Land Use Litigation Docket, where the matter was tried to the court, Berger, J.; judgment sustaining in part the plaintiffs’ appeal and remanding the matter to the defendant for further proceedings; thereafter, the court rendered judgment sustaining the plaintiffs’ appeal, from which the defendant, on the granting of certification, appealed to this court. Affirmed.

          Alfred J. Zullo, for the appellant (defendant).

          Timothy S. Hollister, for the appellees (plaintiffs).

          DiPentima, C. J., and Prescott and Moll, Js.


          DiPENTIMA, C. J.

         “[T]he key purpose of [General Statutes] § 8-30g is to encourage and facilitate the much needed development of affordable housing throughout the state." West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 511, 636 A.3d 1342 (1994). Accordingly, in passing the affordable housing statute, the legislature eliminated the deference traditionally given to commission judgments for affordable housing applications. See Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 716, 780 A.2d 1 (2001). This case exemplifies the significance of this aspect of the affordable housing statute enacted in 1989.

         The defendant, the Planning and Zoning Commission of the Town of East Haven, appeals from the decision of the Superior Court, sustaining the appeal of the plaintiffs, Autumn View, LLC (Autumn View), Statewide Construction Corporation, and Vicki Imperato. On appeal, the defendant claims that the court improperly concluded that (1) the September 27, 2016 affordable housing application filed by the plaintiffs pursuant to § 8-30g was not a new application, (2) the September 27, 2016 application complied with a remand order issued by the Superior Court, (3) evidence regarding the failure to comply with town regulations did not support the defendant’s denial of the application, and (4) evidence of how the storm water drainage aspects of the application posed significant dangers to human health and safety did not support the defendant’s denial of the application.[1] We disagree and, accordingly, affirm the judgment of the Superior Court.

         The record reveals the following facts and procedural history. The plaintiffs are the owners of 17.09 acres of undeveloped real property that includes frontage on Strong Street and South Strong Street and abuts the New Haven Municipal Golf Course. The property contains several abandoned structures but is otherwise undeveloped and contains no wetlands.

         Pursuant to § 8-30g (b) (1), the plaintiffs submitted an affordable housing application on December 20, 2012, that sought to amend the East Haven zoning regulations to create a new "mixed income housing" zone, to rezone the property to the newly created zone and to approve a site plan to construct 105 detached single-family homes in common interest ownership with thirty-two homes deed restricted for forty years. To comply with the requirement of § 8-30g (a) (6) that at least thirty percent of the houses be price restricted, the plan set aside thirty-two homes to be offered at a reduced price. Sixteen homes were to be sold at sixty percent of the median price in East Haven, and the other sixteen would be sold at eighty percent of the median. Based on 2012 data, the reduced price homes would be offered at $155, 175 and $222, 084, respectively. The defendant held a public hearing on the plaintiffs’ application on February 6 and 20, 2013. In response to concerns raised during the hearings, the plaintiffs submitted revisions to the application that included changes to the detention basins, sidewalks and lighting plan. Despite these revisions, the defendant denied the application at a hearing held on March 6, 2013.[2] The defendant also suggested that the plaintiffs make a number of changes to the site plan and zone change request in their application.[3]

         In accordance with § 8-30g (h), [4] the plaintiffs submitted a modified application to the defendant on March 27, 2013. The modified application responded to the defendant’s reasons for denial[5] of the revised application and addressed the suggestions set forth by the defendant.[6]

         On May 29, 2013, the defendant held a public hearing on the modified application. In preparation for this hearing, the defendant retained an engineer, Geoffrey Jacob-sen, to review, criticize, and comment on the site plan submitted by the plaintiffs as part of the modified application. He prepared a report regarding the plaintiffs’ plan submitted with their modified application, which was not made available to the plaintiffs until the public hearing on May 29, 2013. As a result, the plaintiffs were unable to review and respond to Jacobsen’s criticisms. Despite repeated requests by the plaintiffs for a continuance in order to respond to the Jacobsen report, the hearing concluded that same night.

         On June 5, 2013, the defendant denied the modified application for essentially the same reasons it had denied the plaintiffs’ previous application.[7] On June 24, 2013, the plaintiffs appealed from the denial of the modified application to the Superior Court as provided in § 8-30g (h). On December 23, 2014, the Superior Court sustained the plaintiffs’ appeal in part and remanded the case to the defendant for further proceedings. Specifically, the Superior Court remanded the modified application site plan and the corresponding proposed zone change to the defendant only with respect to five issues related to storm water management.[8] The court required the defendant to "schedule, as soon as reasonably possible, a meeting at which it will allow the plaintiffs to respond, comment and discuss with the [defendant] Jacobsen’s analysis with particular attention to storm water management . . . and storm water quality . . . ."

         In order to effectuate the court’s remand order, the plaintiffs submitted another application to the defendant on September 27, 2016 (remand application).[9] The defendant held hearingsonNovember30and December 8, 2016. At the outset, the plaintiffs’ counsel provided an overview of the procedural history involving the application and the changes that had been made in response to the Superior Court’s remand order. He emphasized how the purpose of the hearing was to discuss the storm water issues on which the Superior Court’s remand order had focused and to reach agreement about the technical comments on the storm water revisions in the remand application.

         To prepare the site plan for the remand application, the plaintiffs retained an engineering firm, Milone and MacBroom, to develop the site plan and conduct storm water calculations. Ted Hart, an engineer from Milone and MacBroom, addressed the defendant and described how, in preparing the design work for the remand application, he and his team reviewed the 2013 site plan, the report by Jacobsen dated May 28, 2013, and the 2014 Superior Court’s remand order. He explained in detail the new storm water system in the site plan for the remand application, emphasizing how this site plan addressed each of the five issues set forth in the remand order. Hart concluded by saying that "the plans and the storm water management design meets the comments in the 2013 review letter by Jacobsen Associates and . . . we have been back and forth with Jacobsen Associates and I believe we have addressed the comments. I met with [Jacobsen] this morning quickly and went through our last comments and responses and he is going to be going through our responses probably one more time."

         The hearing was continued to December 8, 2016, when Hart testified that Jacobsen had reviewed the storm water plans prepared by Hart and his firm for the remand application. He further described his communications with Jacobsen regarding the remand application site plan. Jacobsen also addressed the defendant at that hearing and described his communications with Hart’s office since the November 30, 2016 hearing. Jacobsen noted that the plaintiffs had agreed to accept any additional comments or conditions that he may have on any of the outstanding aspects of the site plan.

         During the December 8, 2016 hearing, members of the defendant questioned the plaintiffs’ counsel about the scope of the remand application. Some commissioners thought these revisions had changed the site plan so substantially that it could not be considered a new iteration but, instead, required a new application. The plaintiffs’ counsel disagreed and described the minor changes that had been made to the modified application, most of which were made in order for the site plan submitted with the remand application to meet Jacobsen’s concerns regarding the 2013 application. The defendant provided the following reasons for its decision to deny the remand application: (1) "The [plaintiffs] failed to respond to the remand order of the court as [they] failed to address Jacobsen’s analysis as to the resubmission dated March 27, 2013, with particular attention to storm water management . . . and storm water quality. . . as contained in his report dated May 28, 2013"; (2) "[t]he submission to the [defendant] constitutes an entirely new plan, which is not contemplated or allowed under . . . [§] 8-30g (h) or any other statute regulating affordable housing applications"; (3) "[t]he [plaintiffs] failed to prepare and resubmit hydrology reports, runoff calculations, and storm water impact analyses in response to Jacobsen’s requests as to the resubmission dated March 27, 2013, and instead prepared an entirely new plan for a new development with a new drainage system thus supporting the [defendant’s] original decision that the drainage system proposed in the March 27, 2013 plan could not be built as designed and would not function as designed"; (4) "[t]he new plan did not comply with . . . § 8-30g and is not a valid . . . § 8-30g [application] insofar as it carelessly fails to meet the 30 [percent] affordable housing ‘set aside’ requirement specified in . . . § 8-30g [and] [t]he plan further violates the [plaintiffs’] own regulations as contained in the definition of its [mixed income housing district] as well as [their] own affordability plan by failing to provide for 30 [percent] of the units to be set aside for affordable housing"; (5) "[t]he plan violates [their] own [mixed income housing district] setback provisions as to the location of the culverts and [fifteen] of the units"; (6) "[t]he plan failed to address the adequacy and effectiveness of the natural mechanical filtration mechanisms intended to treat runoff and the prevention of a discharge of solids into nearby water sources"; (7) "[t]he new plan contemplates a huge infrastructure project to connect to the storm water system with a new sewer hookup being built on Strong Street and down onto Robby Lane [and] [t]here was no evidence before the [defendant] as to the true scope of that project and its impact on the adjoining neighborhoods"; and (8) "[t]he new plan did not comply in several respects with the provisions relative to affordable housing development and the [defendant] did not have sufficient information to develop the appropriate conditions that would be necessary to approve it."

         The plaintiffs appealed from the denial of their remand application to the Superior Court. The court heard argument on April 10, 2017, and issued its memorandum of decision on July 24, 2017. In sustaining the plaintiffs’ appeal, the court concluded that the "record indicates that [the plaintiffs] satisfactorily complied with Jacobsen’s concerns regarding the substantive water management modifications. Additionally, the [defendant] failed to comply with the mandatory review process of § 8-30g (g) and has not sustained its burden of proof under the statute." The defendant thereafter filed a ...

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