Opinion
No. CV 04 0527391
September 12, 2005
MEMORANDUM OF DECISION
The plaintiff, AvalonBay Communities, Inc., (hereinafter "Avalon") appeals from a decision of the defendant, the Wilton planning and zoning commission (hereinafter "Commission"). The defendant had approved the plaintiff's application to amend the Wilton zoning regulations with modifications and denied its modified zone change and site plan applications, which, had they been approved, would have allowed the plaintiff to construct a multifamily housing development in Wilton, 30 percent of which would have consisted of affordable housing units.
In February 2003, the plaintiff, Avalon, filed three related applications with the defendant, the commission: a proposed amendment of the Wilton zoning regulations to add a section entitled "Housing Opportunity Development" (HOD), an application to change the zone for the subject property and a site plan application. After conducting a public hearing on the applications on April 14, 2003, May 12, 2003, May 27, 2003, June 9, 2003 and June 23, 2003 and deliberating on July 28, 2003, September 8, 2003 and September 15, 2003, the commission approved the zoning amendment with modifications and denied the zone change and site plan applications at its regular meeting on September 22, 2003. In October 2003, the plaintiff submitted revised applications pursuant to General Statutes § 8-30g(h). The commission held a public hearing on the revised applications on November 24, 2003. The commission deliberated on the revised applications on December 3, 2003 and January 12, 2004. On February 9, 2004, the commission adopted resolutions to approve the zoning amendment with modifications and to deny the zone change and site plan applications. The plaintiff appealed from the commission's decisions to the Superior Court. The hearing on the matter was held on May 20, 2005. General Statutes § 8-30g governs affordable housing land use appeals from planning and zoning commissions to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
General Statutes § 8-30g(h) provides in relevant part, "Following a decision by a commission to reject an affordable housing application or to approve an application with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units, the applicant may, within the period for filing an appeal of such decision, submit to the commission a proposed modification of its proposal responding to some or all of the objections or restrictions articulated by the commission, which shall be treated as an amendment to the original proposal . . ."
AGGRIEVEMENT
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of en administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.). Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. "Because § 8-8 provides that only `aggrieved parties' may appeal, and because § 8-30g does not alter that requirement for appeals involving affordable housing applications, [the Appellate Court has] conclude[d] that an appeal under § 8-30g of a denial of an affordable housing application requires proof of aggrievement." Trimar Equities, LLC v. Planning Zoning Board, 66 Conn.App. 631, 638-39, 785 A.2d 619 (2001).
An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and a plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
1 Site Plan and Zone Change Applications
The plaintiff alleges that it "is classically and statutorily aggrieved. It is aggrieved as a matter of law under [General Statutes] § 8-8 in that it is the contract purchaser of the subject property, and the applicant whose zoning applications have been denied. [It] is also aggrieved as the proposed developer of housing with an affordable housing component pursuant to [General Statutes] § 8-30g." At trial, the plaintiff presented testimony by Mark Forlenza, a vice president of development for the plaintiff, explaining that the plaintiff had exercised its option to purchase the subject property in March 2005. The plaintiff also introduced as an exhibit a copy of a deed for the subject property, showing that James and Marilyn O'Halloran sold the property to the plaintiff on February 16, 2005. Forlenza testified that the O'Hallorans' ownership was continuous from February 2003, when the original applications were filed, until the plaintiff purchased the property. From this undisputed evidence, the court finds that the plaintiff is aggrieved for purposes of appealing the defendant's denial of its site plan application and zone change application.
2 Proposed Amendment to the Wilton Zoning Regulations
The plaintiff's proposed amendment to the Wilton zoning regulations was approved by the commission with several modifications. The plaintiff claims it is aggrieved by the commission's decision to approve the amendment with conditions claiming the conditions have a substantial adverse impact on the viability of the application. The defendant argues that the plaintiff failed to establish aggrievement because it provided no financial analysis to lead the court to the conclusion that the application is not financially viable. At trial, the plaintiff offered testimony of an engineer, John Milone, Jr., to establish that the plaintiff is aggrieved because the defendant's decision to approve the amendment to the regulations with conditions would require substantial changes to the site plans, thereby impacting the viability of the project. The defendants objected to his testimony, arguing that Milone was not qualified to testify as to the financial viability of the project under § 8-30g to prove aggrievement as a result of the commission's approval of the HOD regulation with modifications. The court allowed the testimony, reserving the decision whether the statute intended to allow aggrievement only when the financial viability of the project is substantially adversely impacted. The court concludes that the defendant's objection was proper.
General Statutes § 8-30g provides in relevant part, "(f) Any person whose affordable housing application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units in a set-aside development, may appeal such decision pursuant to the procedures of this section . . ." (Emphasis added.)
In its supplemental memorandum filed on May 20, 2005, the plaintiff argued as a matter of law that it is aggrieved with regard to approval of the amendment with conditions for two reasons. First, relying on SSM Associates Limited Partnership v. Plan Zoning Commission, 211 Conn 331, 559 A.2d 196 (1989) and River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 30-31, 856 A.2d 973 (2004), it argues that the zone change and site plan applications are integrally related to the proposed amendment to the zoning regulations and that the defendant's denials of the zone change and site plan applications, therefore, effectively constitute denial of the proposed regulation. In support of this contention, it argues that the proposed amendment was site specific, noting that it is applicable only to sites between nine and eleven acres in size having frontage on Route 7/Danbury Road which are not currently zoned DE-5 or DE-10. It maintains that these restrictions render the new regulation applicable to the subject property alone.
At trial, it argued that the amendment to the regulations, as modified by the defendant, is so different from the proposed version such that the defendants' approval of it is effectively a denial of the version proposed. It contends that although the purpose of the proposed amendment was to allow the plaintiff to construct its housing development on the subject property, and was drafted to apply only to that property, the modified version of the amendment does not apply to any property in Wilton. For these reasons, the plaintiff argues that it is aggrieved by the defendant's decision to approve the proposed amendment to the regulations with modifications. SSM Associates Limited Partnership v. Plan Zoning Commission, supra, 211 Conn. 331, and River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 30-31, do not support the plaintiff's position. SSM is factually distinguishable from the plaintiff's situation.
In SSM Associates Limited Partnership v. Plan Zoning Commission, supra, 211 Conn. 331, the parties had stipulated that the defendant commission had failed to act on the plaintiff's application, which included a site plan which was inseparable from a special permit application, within sixty-five days of the first regular meeting following submission of the application. Id. 333. The court held that automatic approval of a site plan by passage of sixty-five days after submission, pursuant to General Statutes § 8-7d(b), resulted in automatic approval of the special permit application, which had included the site plan as a supporting document in accordance with the Fairfield zoning regulations. The present case does not involve the automatic approval doctrine.
In River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 30, the court held that "because the text amendment [to the zoning regulations] related solely to the plaintiffs' property, the text amendment and the map amendment were inextricably intertwined. In other words, matters affecting the viability of one amendment necessarily would affect the viability of the other." This holding was not made in the context of the question of aggrievement under § 8-30g(f). Moreover, in River Bend Associates, Inc., the plaintiff's proposed amendment had been denied, not approved with conditions. The plaintiff, therefore, for purposes of aggrievement, was not required to establish that the commission's conditions would have had a substantial adverse impact on the viability of the development. Accordingly, the court does not find aggrievement as to the proposed amendment to the zoning regulations solely on the basis of the commission's denial of the site plan and zone change applications. The question then remains, then, whether the plaintiff meets the standard for determining aggrievement under § 8-30g(f) with regard to the proposed amendment to the zoning regulations.
In its supplemental memorandum the plaintiff erroneously cites to subsection (h) of General Statutes § 8-30g, which relates to an applicant's right to file a proposed modification to a proposal that was rejected or approved with conditions. In that brief, however, the plaintiff quotes language from subsection (f) of that section. Accordingly, the court will treat each reference in the plaintiff's memorandum to § 8-30g(f) as a reference to § 8-30g(f).
The plaintiff also argues that it has met the standard for determining aggrievement under § 8-30g(f) with regard to the application to amend the zoning regulations. Section 8-30g(f) provides in relevant part: "Any person whose affordable housing application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units in a set-aside development, may appeal such decision pursuant to the procedures of this section . . ." It contends that the standard set forth therein is an aggrievement standard and that it is satisfied if there is a possibility of a substantial adverse impact resulting from the defendant's decision. Further, it maintains that the phrase "adverse impact on the viability of the affordable housing development" in § 8-30g(f) does not refer to the viability of affordable housing in general but to the viability of the proposed development at issue. It argues that § 8-30g(f) provides two alternatives for aggrievement: a substantial adverse impact on "the viability of the affordable housing development" or "the degree of affordability of the affordable dwelling units." It contends that the latter refers to the financial impact while the former refers to whether the commission's action requires material changes to the site plan. It also argues that it needs only to show that one of the amendments imposed by the commission will have a substantial adverse impact in order to demonstrate aggrievement and, therefore, it is not necessary to establish aggrievement as to all five amendments.
In support of these arguments, the plaintiff relies on three unpublished Superior Court decisions. First, it notes that in Griswold Hills Newington Limited Partnership v. Newington, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0540954 (January 9, 1996, Mottolese J.), the court held that although the plaintiff's application for special permit and site plan approval was granted, the plaintiff "was granted substantially less than it requested and so in fact, the plaintiff's application as presented to the commission was denied. To this extent the plaintiff has suffered a specific injury and is aggrieved." (Emphasis in original.) Next, it notes that in Mutual Housing Assn. v. Trumbull, Superior Court, judicial district of New Britain, Docket No. CV 98 0492254 (August 24, 1999, Koletsky, J.), the court held that the plaintiff "is `aggrieved' under § 8-30g(b) [now § 8-30g(f)], since the degree of affordability of the affordable dwelling units will be impacted in a substantially adverse manner by the restriction removing Building Eight from the project." Neither of these cases relates to aggrievement with respect to approval of a proposed amendment to zoning regulations with conditions.
Although the plaintiff failed to provide copies of these opinions to the court as required under § 5-9 of the Practice Book, and the court, therefore, is not required to consider them, the court will consider these cases to the extent that they may be relevant.
The case law in Connecticut supports a view of § 8-30g(f) that requires evidence of an adverse effect on the financial viability of a project for a finding of aggrievement. In Jordan Properties, LLC v. Old Saybrook, Superior Court, judicial district of New Britain, CV 01 0508892 (November 10, 2003, Tanzer, J.), the court found such evidence present in finding aggrievement. In Jordan Properties, LLC, supra, the court held that the plaintiffs were not aggrieved with regard to a proposed amendment to the zoning regulations because "[t]he plaintiffs have failed to present any evidence at trial or on the record before the commission that they have been ` specially and injuriously affected' by the commission's denial of the petition to amend the zoning regulations." In support of this conclusion, the court noted that "[a]t the December 18, 2000 hearing before the commission on the petition to amend, counsel for the plaintiffs stated that the zoning amendment ` is not legally necessary for you to approve our affordable housing site plan.' That is so here as well. `[Z]oning compliance is not mandatory prior to approval of an affordable housing subdivision application.' Wisniowski v. Planning Commission, 37 Conn.App. 303, 319, 655 A.2d 1146 [cert. denied, 233 Conn. 909, 658 A.2d 981] (1995). `No formal zone change application is needed because the act is designed to allow circumvention of the usual exhaustion of zoning remedies and to provide prompt judicial review of a denial of an application.' Id., 315." Jordan Properties, LLC v. Old Saybrook, supra, CV 01 0508892.
The facts in Jordan Properties, LLC are analogous to those of the present case. At trial, the plaintiff's attorney noted that the regulation drafted is a "matter of convenience" and that it is not necessary for the affordable housing development. Moreover, as in Jordan Properties, LLC, the plaintiff's attorney further stated that the regulation amendment would be helpful in attaining financing for the project, but provided no evidence of this. In Wisniowski v. Planning Commission, supra, 37 Conn.App. 319-20, the Appellate Court held that "zoning compliance is not mandatory prior to approval of an affordable housing subdivision application . . . The burden of proof in § 8-30g(c) takes away some of the discretion that local commissions have under traditional land use law and allows the reviewing trial court to effect a zone change if the local commission cannot satisfy the statutory requirements for its denial of an application." Regardless of the testimony presented at trial to prove that compliance with the approved amendment to the zoning regulations would adversely impact the viability of the project, the plaintiff would not be required to adhere to such a regulation because affordable housing projects may not be denied solely for noncompliance with zoning regulations. Accordingly, the plaintiff has not established aggrievement with regard to the proposed amendment to the Wilton zoning regulations.
Although the plaintiff could not have been required to file a zone change application and would therefore not be aggrieved had it been approved with conditions; see Wisniowski v. Planning Commission, supra, 37 Conn.App. 312 ("the plain and unambiguous language of § 8-30g does not contemplate a denial of an affordable housing subdivision application on the ground that it does not comply with the underlying zoning of an area"); General Statutes § 8-30g(f) allows a plaintiff to appeal if its "affordable housing application is denied . . ." Accordingly, the plaintiff is aggrieved and therefore has standing to appeal from the defendant's denial of the plaintiff's zone change applications.
In so ruling, the court notes that in its previous decision concerning the same parties and similar applications, Avalon Bay Communities, Inc. v. Wilton, Superior Court, judicial district of New Britain, Docket No. CV 00 0500917 (September 6, 2001, Munro, J.), the undersigned found aggrievement as to the defendant's decisions on all three applications, including a proposed amendment to the Wilton zoning regulations. Nevertheless, in that case, the defendant had denied all three applications, thereby entitling the plaintiff to appeal all three decisions. In light of the court's reasoning in Jordan Properties, LLC v. Old Saybrook, supra, CV 01 0508892, the court finds that the plaintiff is not aggrieved as to the defendant's approval of the proposed amendment to the zoning regulations with modifications in this case because that application was not denied and, for the reasons discussed above, the record does not establish that the conditions imposed will "have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units."
General Statutes § 8-30g(f) grants the right to appeal to "[a]ny person whose affordable housing application is denied."
B Timeliness and Service of Process
General Statutes § 8-30g(f) provides, in part, that an appeal from the denial of an affordable housing application "shall be filed within the time period for filing appeals as set forth in section 8-8 . . ." General Statutes § 8-8(b) provides in relevant part: "The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the [G]eneral [S]tatutes . . ." Section 8-8(f)(1) provides, in part, that "[for any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
On February 19, 2004, the commission published a notice of its decisions in the Wilton Bulletin. On March 4, 2004, the plaintiff commenced the appeal by service of process on Cathy Kelly, assistant clerk for the town of Wilton, and on the chairman of the defendant commission, Calvin R. Braunstein. (Marshal's return.) As this appeal was commenced by service of process on the defendants within fifteen days from the date of publication, the court finds that it is timely and that service was made upon the proper parties.
SCOPE OF REVIEW
"[I]n conducting its review in an affordable housing appeal, the trial court must first determine whether `the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record.' General Statutes § 8-30g(g). Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted. If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission's decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development." (Internal quotation marks omitted.) Carr v. Planning Zoning Commission, 273 Conn. 573, 596-97, 872 A.2d 385 (2005).
DISCUSSION
Although the plaintiff appeals from three decisions of the defendant Wilton planning and zoning commission, which pertain to the plaintiff's three modified applications, the court will address only those relating to the application for zone change and the application for site plan approval, because, as discussed above, the plaintiff is not aggrieved and therefore does not have standing to appeal the decision to approve the amendment to the zoning regulations with modifications. The defendant stated reasons for its denials of the plaintiff's applications to change the zone of the subject property and for site plan approval are in the record. The court must evaluate each reason individually because if any one of its reasons meets the standard set forth above, the appeal must be dismissed.
Nevertheless, as some of the defendant's reasons for denying the plaintiff's applications overlap, those reasons that are closely related will be analyzed together.
Nevertheless, as some of the defendant's reasons for denying the plaintiff's applications overlap, those reasons that are closely related will be analyzed together.
The plaintiff appeals the denial of the modified zone change application and the modified site plan application on the grounds that "the resolutions fail to satisfy the Commission's burden of proof under [General Statutes] § 8-30g in that the reasons given and the actions taken (a) are not supported by sufficient evidence in the record; (b) do not represent substantial public interests in health and safety or other matters that the Commission may properly consider; (c) do not clearly outweigh the need for affordable housing in the Town of Wilton; and (d) could have been obviated by reasonable changes to the applications." (Complaint, ¶ 34.)
A Whether the Defendant Commission Cannot Have Satisfied its Burden of Proof because the Commission's Resolutions and Brief Do Not Contain the Balancing Analysis Required by General Statutes § 8-30gThe plaintiff argues that the defendant's resolutions and brief do not contain the balancing analysis required by General Statutes § 8-30g and the defendant, therefore, cannot have satisfied its burden of proof as a matter of law. As a threshold matter, the court notes that parties' briefs are not evidence and may not, in themselves, be used to satisfy a party's evidentiary burden. See New Haven v. Freedom of Information Commission, 205 Conn. 767, 775, 535 A.2d 1297 (1988) ("[a]rguments . . . are not evidence upon which findings can be based"). Accordingly, to the extent that the plaintiff argues that the defendant failed to meet an evidentiary burden by its brief submittal, it may not prevail on such an argument.
With regard to the defendant's resolutions, the plaintiff argues that the defendant failed to examine the characteristics of Wilton's affordable housing need "and to explain why a claimed safety concern is so important that it justifies denying housing to low or moderate income households." (Plaintiff's memorandum, p. 32.) It contends that the defendant failed to analyze the housing need of the Wilton region in that it failed to pose questions concerning whether the safety concerns justify denial of the affordable housing application. Although it notes that the defendant prepared a matrix listing whether the concerns of the commission outweigh the need for affordable housing, it argues that the defendant failed to address the "relevant burden of proof standards." (Plaintiff's memorandum, p. 33.)
The defendant argues that it was aware of and conscientiously discharged its duties with regard to balancing the need for affordable housing with health and safety concerns raised by the applications. It contends that during its deliberations, it utilized a matrix which included a column in which the commission indicated whether each health and safety concern outweighed the need for affordable housing. It maintains that as a result of discussing whether each concern outweighed such a need, it found that certain concerns, such as the applicant's failure to comply with the plan of conservation and development and inadequate building setback distances, did not outweigh the need for affordable housing.
The defendant commission is not required to include its entire analysis in its resolutions to deny affordable housing applications. "[I]t was not required to acknowledge expressly on the record the town's need for affordable housing or that its reasons for denying the applications clearly outweighed that need." River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 38, 856 A.2d 973 (2004). The test for determining whether such a decision is supported by sufficient evidence requires only that such evidence be included in the record upon which the commission's decision is based. See Carr v. Planning Zoning Commission, supra, 273 Conn. 596-97 (in reviewing an affordable housing appeal, the trial court first determine, inter alia, whether the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record); see General Statutes § 8-30g(g) (same). Accordingly, the court may not sustain the appeal on the grounds that the commission failed to conduct an adequate balancing analysis. The court must review the evidence in the record to determine whether the defendant's conclusions, which are clearly set forth in the record, are supported by sufficient evidence.
B Whether the Commission's Modifications to the HOD Regulation Were Not Supported by Sufficient Evidence of Health or Safety Concerns
As discussed above in the section concerning aggrievement, the plaintiff is not aggrieved with respect to the approval of the proposed amendment to the zoning regulations with modifications. Accordingly, the issues raised regarding that application will not be addressed.
C Whether the Defendant Commission's Decisions to Deny the Application for Zone Change and Site Plan Application are Supported by Sufficient Evidence in the RecordWith regard to the denial of the modified zone change application, the defendant commission stated, inter alia, the following reasons on the record in a resolution dated February 9, 2004: "After a careful evaluation of the application, the site, the evidence in the record and the need for affordable housing . . . the Commission finds that the zone change requested will adversely affect the health and safety of future site residents, adjacent property owners and the community, especially travelers along Route 7. To this end, the modification request does not effectively balance the physical characteristics of the site, the requirements of the HOD and the concerns of the Commission." The resolution then elaborates on these reasons at length. These elaborations will be set forth below as needed.
1 Denial of the Zone Change Application
In its resolution to deny the zone change application, the defendant states five reasons. They fall into the following categories: (1) "Physical Characteristics of the Site"; (2) Carrying Capacity of the Site"; (3) "Bus Stops"; (4) "Traffic Issues," which include "Gaps" and "Sight Lines"; and (5) "Planned Improvements," which include those of Connecticut Light Power and the department of transportation. Each of these reasons is discussed in detail below, with the exception of those pertaining to bus stops, because those reasons relate specifically to the site plan application.
Regarding the physical characteristics of the site, the defendant in its reasoning stated, "A large portion of the property consists of wetlands and regulated wetland areas, an 80-foot wide overhead high voltage [power line] easement and steep slopes in excess of 15% grade. Such features encompass approximately 43% of the property's land area. Thus, the physical characteristics of the site severely limit the areas available for development of the type proposed involving up to 100 families where a safe environment is critical, including at a minimum, an atmosphere where children may play, residents may move throughout the site in an unconstrained manner, vehicles may circulate without creating a conflict with residents and where the site is not compromised by slopes that would pose dangers during a typical New England winter. These physical characteristics pose a serious impediment to a safe and viable multi-family development on this site and consequently this site is not suitable for the proposed HOD."
With regard to carrying capacity of the site, the defendant went on to state, "The site cannot safely accommodate the requirements of the HOD, as proposed by Avalon Bay Communities, Inc. or as modified by the Commission. HOD requirements govern coverage, size of units, number of parking spaces, recreational areas, building setbacks and driveway grades, all of which have a bearing on the capacity or ability of a specific site to support a Housing Opportunity Development (HOD). For example, in this case, due to the limited amount of level land and other site constraints, recreational areas for children would have to include large expanse of land consisting of steep slopes and areas overgrown with thickets and briars. Further, the site is not conducive to safe pedestrian circulation due to physical constraints associated with the property, including steep grades, wetlands and regulated areas, powerline easements, and the planned widening of Route 7. The modification request failed to properly address these concerns."
The defendant concedes that the various physical constraints of the property, such as the wetlands and regulated upland areas, an eighty-foot power line easement and steep slopes, may not make the site inappropriate for a HOD when considered individually. It is the commission's reasoning that such physical characteristics limit the development capacity of the site when considered together because there will not be enough room for recreation and pedestrian circulation on the site. It contends that such limitations present a health and safety issue that outweighs the need for affordable housing.
The plaintiff argues that the defendant's factual assertions concerning the physical characteristics and carrying capacity of the site are incorrect. It contends that of the 10.6-acre property, approximately seven acres are already developed, containing various improvements such as an office building, a residence, pavement, lawns, outbuildings, drainage pipes and utilities. It contends that wetland soils and intermittent watercourses comprise merely three tenths of an acre while upland review areas comprise about two acres. Plaintiff does not intend to build in these areas. Further, plaintiff may build within the Connecticut Light and Power Co. (CLP) easement because CLP agreed in writing that the plaintiff could do so. Finally, the plaintiff argues that the slopes on the property are not per se unsafe; the defendant prohibits building on slopes of 15% or more regardless of whether it can be accomplished safely noting that Kent Schwendy, a civil engineer, testified at the public hearing that building on slopes is not inherently unsafe. It maintains that these physical limitations of the site would not prevent the site from being developed safely in accordance with the type of development embodied by the proposed HOD regulation.
At the public hearing on May 12, 2003, Schwendy explained that "[i]t's not necessarily impractical or technically impossible to build on a site with 15 percent slopes or even 25 or 30 percent slopes, just increases the potential for problems . . . I think in this particular situation you have a site that is very difficult to build on and in order to put this type of density on they need to exceed all of the normal rules for the 15 percent grade. It can be done but it would require careful construction methods and very careful erosion control methods especially. Might also require phasing of the work, to make sure not too much is disturbed at any given time. Unfortunately, there is not a black and white answer in this situation, really more of a risk assessment that really has to be done on a site by site basis."
The defendant's justification for its denial of the plaintiff's application to rezone the property based on physical limitations and carrying capacity are not supported by sufficient evidence in the record. The record fails to establish that there is more than a mere theoretical possibility of a specific harm to the public interest if the application is granted. The defendant's denial is based, in part, on a concern that children will not have sufficient recreation space away from parking areas and driveways. Although the defendant argues that much of the proposed recreational space is inaccessible and that there are no nearby public playgrounds, the record contains no evidence beyond the conjecture of the commissioners that children will be forced to play in roadways or on steep slopes. The evidence in the record simply does not support a finding that the site cannot safely be used for a HOD because of recreational needs. It also noted that approximately 90,000 square feet of recreation space are provided for in the plans in the form of an outdoor swimming pool, a "tot lot," undeveloped wetlands and upland areas, as well as landscaped areas adjacent to the buildings. Finally, a lack of recreational space, in itself, does not render a housing development unsafe. The residents of this housing development may simply venture elsewhere to fulfill their recreational needs if those provided on site are considered inadequate by a resident.
With regard to traffic issues, the defendant asserts in its resolution that inadequate gaps in traffic on Route 7 and the projected 110 cars that will enter or exit the site during peak hours of each day are likely to cause traffic backups in the steep driveway raising the potential for accidents there during inclement winter weather and resulting in increased risk-taking by drivers seeking to turn left as they exit the site. It further states that although sight line distances at the intersection of the primary driveway and Route 7 exceed the minimum requirements stated in the town's traffic engineering consultant's report, the sight distance to the north falls below the "State's desired sight distance . . ." It states that this concern, when combined with the concern regarding the traffic gaps, "point[s] to the potential for safety concerns." These reasons are substantially similar to the reasons asserted for its denial of the site plan application. For the reasons discussed in the section of this memorandum concerning the site plan application, these reasons fail to support the defendant's denial of the modified zone change application.
Finally, the defendant states that "[t]he Commission received evidence concerning CLP's plan to construct an electrical transition station" on the opposite side of Route 7 directly across from the site which will limit "the widening options of Route 7 to the East side of the highway where they will primarily impact the subject property and constrain the ability to develop the road frontage of the site . . ." It further asserts that the upgrade planned by CLP will involve enlargement of the power line easement from 80 feet in width to between 125 and 170 feet. It states that the "requested change of zone to permit multi-family housing is premature given that both CLP and [the department of transportation) are pursuing plans that have a direct and significant impact on the site which may be contrary to the safety of Town residents and the motoring public."
The defendant's concerns regarding future road work and utility upgrades are not supported by sufficient evidence in the record. The defendant speculates that although the plaintiff presented a letter from the department of transportation to the commission explaining the department's plans, those plans had changed from its previous plans and therefore might change again. They further speculate that the department of transportation development "will likely spark a public outcry as to potential environmental impacts" which might contribute to the department's decision to move the road widening location again, because a 100-year flood plain exists in the vicinity of the planned road improvements. Speculation regarding potential conflicts between a housing development and utility or road improvements" not sufficient evidence to support denial of the plaintiff's application for a zone change.
2 Denial of the Site Plan Application
In its resolution to deny the plaintiff's site plan application, the defendant's stated reasons fall into the following categories: (1) Wilton Acres Road bus stop, (2) Wilton Acres Road bus walkway, (3) Danbury Road bus stop, (4) sidewalks adjacent to Route 7, (5) sidewalks within the site, (6) lighting, (7) traffic, (8) recreation areas, (9) driveways, (10) parking distribution, (11) storm water detention ponds, (12) drainage, and (13) guardrails. These issues will each be addressed in turn to determine whether the defendant's decision to deny the site plan application is supported by sufficient evidence in the record.
With regard to bus stops, the defendant states that the Wilton Acres Road bus stop will be nearly 250 feet from the proposed parent parking area and will be visually obscured by trees and underbrush. It states that as a result, parents will likely choose to park along Wilton Acres Road, which is not wide enough to accommodate parked cars and unrestricted passage of traffic. It states, without further explanation, that "the proposed location of this bus stop fails to represent a safe option for accommodating both parents and upwards of 28 young children." It further states that the "proposed pathway to the Wilton Acres Road bus stop area follows a circuitous route, traversing through parking fields, crossing several intersections within the development, passing under a potentially dangerous high voltage powerline easement before exiting at the visually obstructed area on Wilton Acres Road." It states that children and their parents will have to walk a great distance to the bus stop and that the parent parking area may not have enough spaces.
In its memorandum, the defendant argues that its main concern with respect to the Wilton Acres Road bus stop is that parents will drive their children to the bus stop and park along the road because the bus stop is too far from the parking area and is obscured from view. In support, it cites no expert testimony, but relies on the rhetorical comment of the town planner, Robert Nerney, who stated that "[t]he ability to ensure a safe environment for one's child(ren) is an issue of utmost concern for many parents; especially when walking beyond the view of parent." Nerney's comments, in turn, are based on testimony by members of the public "about the habits of Wilton parents driving their children to school bus stops. Town Staff has also observed two vehicles waiting at the bus stop in front of the Wilton Crest condominiums on June 9, 2003 and two vehicles were observed in front of the Crowne Pond development on June 4, 2003 (Attachment #1)." This is not evidence; it is insufficient to support the defendant's assertion that an excessive number of parents will drive their children to either bus stop at the site. Moreover, this assertion is not logically consistent with its argument, discussed below, regarding the difficulty that residents will have in turning left out of the main driveway, which they would need to do in order to reach Wilton Acres Road by car. The record does not contain sufficient evidence to suggest that parents would choose to drive down the site driveway, wait for an adequate gap to allow them to turn left onto Route 7, then drive back toward the site on Wilton Acres Road to the location of the bus stop and park on the side of Wilton Acres Road while blocking traffic, instead of walking their children less than 300 feet to that bus stop.
The court notes that "Attachment #1" is a photocopy of a photograph purporting to show "One of Two Vehicles Waiting at Crown Pond Bus Stop." The photograph shows two cars apparently traveling along a roadway and a third car stopped at a stop sign of an intersecting road.
Moreover, even if the record did contain sufficient evidence, the defendant has not offered any explanation as to how this behavior would present a health, safety or other issue that would outweigh the need for affordable housing in Wilton.
With regard to the Danbury Road (Route 7) bus stop, the defendant states that this bus stop will be connected to the site by a steep sidewalk that will result in children being driven to the bus stop. It further states that it is concerned that the number of parking spaces may be inadequate and that a large number of children congregating near Danbury Road would not be desirable. Moreover, it states that the design for the driveway connecting the site with the bus stop incorporates inadequate site lines which could lead to injury if a child were to step off of the sidewalk while traveling to or from the bus stop. It also states that Route 7 is unsafe for a bus stop because testimony was presented indicating that accidents have occurred on that road, including one accident involving a school bus. Finally, it states that a curvature in the road decreases visibility from the south and that planned road work on Route 7 and planned utility upgrade are likely to increase unsafe conditions.
The defendant argues that children will be unlikely to walk to this bus stop because it is located at the base of a "relatively steep, curving driveway." Defendant's memorandum, p. 48. It notes that only eight parking spaces would be provided near that bus stop; despite the projected twenty-eight school-aged children who would reside at the site. Notwithstanding this apparent discrepancy, the record contains testimony from the plaintiff's attorney, Timothy Hollister, that of the projected twenty-eight children, these children would fall into various age groups; which would necessarily congregate at the bus stops at different times. The plans include a sidewalk along the driveway, providing pedestrians with a separate path of travel. Speculation that someone could be struck if he or she were to step off of the sidewalk does not support the defendant's assertion that the sidewalk design is unsafe. Similarly, the defendant's assertion that the bus stop at Route 7 is unsafe because it is near a road upon which traffic accidents have occurred is similarly without merit. Conjecture by the defendant's traffic expert, professional engineer John Thompson, that children might run into the road chasing a ball, is not sufficient evidence to support its finding that a particular bus stop would be unsafe, as this situation could occur at any bus stop, regardless of the design or location. Moreover, Thompson also stated in the same paragraph of his report that "it appears that the latest plans by [Milone and MacBroom, Inc.] and [the department of transportation suggest] that a school bus stop with approximately 8 off-street parking spaces could be constructed, and that suitable [safe stopping sight distances) for vehicles approaching the school bus stop at this location are in fact achievable." The fact that traffic accidents have occurred elsewhere on Route 7 in the past does not, in itself, raise more than a mere theoretical possibility that the proposed development would present a health or safety issue that outweighs the need for affordable housing. Finally, the defendant states that the distance between the entrance to the bus stop parking area and the driveway entrance would be sixty feet, which, it contends, is not an adequate distance to prevent a conflict between cars entering the site and cars driving down the driveway in the opposite direction that turn left into the parking area.
Even if the site plans were to show that this distance is only sixty feet, the defendant has not referenced any evidence in the record that such a distance is inadequate. Moreover, the court notes that the site plans show this distance to be more than eighty feet. The record contains statements of the defendant's development expert, David Portman, who stated in his report pertaining to the original submission to the commission that the proposed bus stop at Route 7 is "not without its safety concerns," in part because of this "potential safety conflict" between cars entering the site and cars turning into the bus stop parking area. Nevertheless, this statement is not sufficient evidence to show more than a theoretical possibility of a safety risk associated with this design.
In its resolution to deny the site plan application, the defendant states that the "proposed pathway to the Wilton Acres Road bus stop area" is "unsafe, impractical and particularly unsuitable for younger children." In support of this contention, the defendant argues that the walkway is approximately 700 to 800 feet long "as measured from the apartments," that it is "circuitous," that it "traverses parking areas and several driveway intersections, passes under a high voltage powerline easement, continues approximately 170 [feet] through the woods, on a poorly lit easement area, and terminates at the visually obstructed, unlit bus stop on Wilton Acres Road." (Defendant's memorandum, p. 46.) In so arguing, it refers to the site plans in the record; its resolution to deny the site plan application; commentary of the Wilton planning and zoning department staff essentially repeating these assertions; and Thompson's report, which states, in part, that the "functionality of this walkway remains a troubling (and unresolved) aspect of this development proposal." Despite these various assertions in the record regarding the walkway, the record does not contain sufficient evidence of any health, safety or other risks that would be associated with this walkway. The record shows that the walkway circumnavigates the site, providing a path for pedestrians to walk while separated from driveway traffic. The site plans show that residents living in buildings with garages will not have interconnecting sidewalks leading from their apartments to the central walkway, but will have crosswalks, leading from their sidewalks to the central walkway.
The plaintiff argues that the walkway to the Wilton Acres Road bus stop is neither "poorly lit" nor "through the woods." It contends that the walkway will have footlights along its entire length and that the "west end [of the walkway], where the apartments and parking are, will be cleared and landscaped. The part [walkway portion] under the CLP easement is and will remain clean. Existing trees and vegetation at the stop itself will be cleared and paved." (Plaintiff's memorandum, pp. 54-55.) With regard to lighting, the record contains little evidence as to the two-foot high walk lights shown on the site plans for the walkway along the emergency access driveway to the Wilton Acres Road bus stop. The plan's photometric analysis of lighting illustrated the walk lights (including November 24, 2003 revisions) along the walkway. The defendant's assertion that the Wilton Acres Road bus stop walkway would not have adequate lighting is not supported by sufficient evidence in the record. The defendant does not elucidate as to what is inadequate about those walk lights, which plaintiff claimed were standard residential foot lights at the hearing. Parenthetically the plaintiff requests the court to take judicial notice that "even on December 21, it is light out at 7:00 a.m.," the court cannot do this. Although "[t]he time of sunrise and sunset on any given day is a matter that falls within the realm of facts which are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy and therefore may be judicially noticed"; State v. Zayas, 195 Conn. 611, 614, 490 A.2d 68 (1985); the plaintiff has asked the court to take judicial notice, not of the time of sunrise, but of the time at which it is "light out."
As an exercise in curiosity the court searched on line for sunrise time on December 21. According to the State of Connecticut, Department of Environmental Protection Hunting and Trapping Field Guide, on December 20 the sun rises at 7:14 and on December 25 it rises at 7:16 in central Connecticut. http://dep.state.ct.us/burnatr/wildlife/fguide/sunrise.htm.
"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration." Conn. Code Evid. § 2-1(c). The court cannot take judicial notice of exact time at which it is "light out" because the point in time at which one considers it to be "light out" may be open to some disagreement and because the parties have not offered any evidence demonstrating precisely when this would occur. However, the walk lights present coupled with the fact of dawn occurring at or about that time leads the court to reject the defendant's assertion that the applicant's lighting plan for the Wilton Acres Road bus stop walkway is inadequate or creates an unsafe condition.
While the protection of children as they travel to and from the bus stop is a public interest that would outweigh the need for affordable housing in Wilton, the defendant has imposed a modification to permit the site plan application to be granted. In its resolution to deny the application, the defendant directed the plaintiff to "[p]rovide an improved lighting plan for the safe passage to Wilton Acres Road . . .
"Although it is not clear from the site plans what the plaintiff refers to as the "west end," as the walkway is located in the approximate center of the southern portion of the site and leads almost directly south to Wilton Acres Road, the record supports its assertion that it will not be "through the woods." The path begins at the parking area at the south side of the site, which is within the utility easement. It continues through a thirty-foot-wide easement along the side of a paved emergency access driveway. The pathway will be lined with twenty-one skyrocket juniper trees which are included in the landscaping plan. The plans do not show any other trees in the vicinity of the walkway. Moreover, the defendant has not established that sufficient evidence in the record shows that the walkway would pose any risk to the health or safety of the residents. Evidence that parents would not be comfortable using the path or allowing their children to use it is not sufficient evidence that it would not be safe to do so. Also, an alternative bus stop at Route 7 is included in the plans. The defendant's concern that children might be tempted to walk in the emergency access driveway instead of the walkway is purely conjectural. Even if children were to wander into that driveway, it is not accessible to traffic except in the event of an emergency. The plans include gates at each end of the driveway and a sign reading "EMERGENCY ACCESS ONLY." Any risk associated with such use, therefore, would not outweigh the need for affordable housing in Wilton.
The defendant's concern with respect to crosswalks is not supported by sufficient evidence in the record. The site plans show that pedestrians walking from their apartments on the eastern portion of the site are given crosswalks leading across the driveway and parking areas to the central walkway. A review of the plan shows logical placement for all crosswalks which if properly marked will provide for safe pedestrian travel.
Connecticut General Statutes § 14-300 et seq., make clear, as a matter of law, that the use of crosswalks is an appropriate manner to protect pedestrians where vehicular traffic may pose "an especial danger" to pedestrians.
With regard to traffic concerns, the defendant first argues that the gaps in traffic traveling along Route 7 will not be adequate to provide drivers exiting the site sufficient, safe opportunities to turn left onto Route 7. It notes that the site driveway will operate at the failing level of service referred to as LOS F. As noted in the traffic study by Alan Mess, a professional engineer with Barkan Mess Associates, Inc., the plaintiff's traffic experts, the LOS "is a measure of delay and inconvenience that motorists experience." "LOS F reflects an intersection or movement which is over capacity and one where long delays may be expected." With regard to traffic volumes, Mess concluded that "[t]he addition of the Avalon Springs II site traffic to U.S. Route 7 will not exacerbate the current condition." Despite Mess' conclusion that "[t]here are still a sufficient number of gaps in the traffic for the anticipated number of left turn vehicles exiting the site"; which is based on his estimation that twenty-five vehicles will turn left out of the site in the morning peak hour and that ten will do so in the evening peak hour, the defendant argues that the commission could reasonably have questioned the validity of those figures because its expert, John Thompson, noted that Mess did not provide supporting documentation for his findings. It also notes that Thompson questioned how Mess could have determined that the number of gaps did not decrease from 1999 to 2003 while traffic volumes increased at a rate of between 12 and 13 percent from 2002 to 2003.
The plaintiff argues that this 12 to 13 percent increase is not accurate because actual traffic counts on Route 7 at the site decreased from March 1999 to 2002. Mess' report supports both arguments. Mess' report shows that from March 1999 to September 2003, the peak hour traffic volumes increased from 2147 cars to 2265 cars in the morning and from 2264 cars to 2356 cars in the afternoon. These counts reveal an annual increase of approximately 1 percent in both the morning and afternoon peak hours. Nevertheless, the report also shows that from September 2002 to September 2003, the peak hour traffic volumes increased from 2017 cars to 2265 cars in the morning and from 2082 cars to 2356 cars in the afternoon. These counts reveal an annual increase of approximately 12 percent in the morning peak hour and 13 percent in the afternoon peak hour. Both the plaintiff's and the defendant's assertions regarding traffic volume increases, therefore, are supported by the record. Nevertheless, the defendant's reliance on the fact that peak hour traffic volumes increased 12 and 13 percent to refute Mess' gap analysis is misplaced. Mess provided both testimony and a written report explaining that his gap calculations were based on actual on-site observations. Although the transcript of the public hearing held on November 24, 2003 shows that some of the commissioners were confused by Mess' analysis; (Commissioner Ward: "I think we need to have something a little more specific to explain to me how you have 46 eight hour gaps when 2,000 cars come by in that hour. You need to better explain that to me, because I'm not figuring it out. Unfortunately I'm the one who gets to vote. If you can't unconfuse me, I am still coming to the same conclusion"); the defendant has the burden to show that its conclusions are supported by sufficient evidence. "Although the commission would have been entitled to deny an application because it did not believe the expert testimony, however, the commission [has] the burden of showing evidence in the record to support its decision not to believe the experts — i.e., evidence which undermine[s] either the experts' credibility or their ultimate conclusions." (Emphasis in original.) Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995). The defendant has not provided such evidence, but relies on the report of its own expert, Thompson, who merely notes that Mess' report did not include "any statistical data to support their numbers" or "supporting documentation which indicates or confirms that the reported gaps are of sufficient duration . . ." Thus, Thompson's report does not present any evidence which undermines the conclusions in Mess' report, but merely states that he lacks sufficient information to confirm those conclusions.
Nevertheless, the record contains sufficient evidence that the site driveway would operate at LOS F. The plaintiff contends that traffic congestion, which is measured by the LOS designation, does not present a safety issue. The plaintiff also argues that traffic engineering is a field of technical expertise, suggesting that the defendant should not have relied on its own experiences concerning traffic delays. The Supreme Court, however, has "permitted lay members of commissions to rely on their personal knowledge concerning matters readily within their competence, such as traffic congestion and street safety . . ." Kaufman v. Zoning Commission, 232 Conn. 122, 156 n. 22, 653 A.2d 798 (1995). As the defendant's conclusion that the site drive will operate at LOS F is supported by sufficient evidence in the record, the commissioners were entitled to rely on their personal knowledge of traffic congestion and street safety to conclude that drivers would not have sufficient safe opportunities to turn left. Accordingly, the court concludes that the fact that the site driveway will operate at LOS F presents a safety issue. Having determined that sufficient evidence in the record supports the defendant's finding that the application presents a safety issue, the court must next determine whether the defendant's decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development.
"Computer analysis shows LOS F during both the morning and afternoon time periods, with predicted delays of 95 and 184 seconds, respectively"; "the site drive at Route 7 will be operating at `unacceptable' Levels-Of-Service, during both the AM and PM peak hours."
The safety issues associated with the LOS F designation pertaining to the main entrance of the site do not present such a risk that would outweigh the need for affordable housing in Wilton. As the plaintiff notes, the record contains evidence that despite the LOS F designation, actual on-site measurements of traffic delays revealed average delays of eighteen seconds in the morning and nineteen seconds in the afternoon, considerably less than those projected by the computer analysis which showed LOS F, which were ninety-five and 184 for the morning and the afternoon, respectively. Given this discrepancy between actual and predicted delays, the risks to health and safety based on this evidence, and the conjecture relating to driver behavior that would arise as a result of such delays, the court does not find that such risks outweigh the need for affordable housing in Wilton.
With regard to sight lines, the record does not contain sufficient evidence in support of the defendant's finding that sight lines for traffic exiting the site onto Route 7 present a safety issue. The defendant argues that the sight lines are inadequate because they do not meet the department of transportation's "upper desired distance" of 900 feet in both directions and that "given the totality of the circumstances, it was not clear that the 700 foot sight line [provided for in the sight plan] would be sufficient." In so arguing, the defendant misstates its burden of proof. As stated above, the defendant commission, in an affordable housing appeal, bears the burden of proving that the reasons for its decision are supported by sufficient evidence in the record. See General Statutes § 8-30g(g). The defendant has not met its burden to show that sight lines greater than those provided for in the site plan are necessary. Moreover, it concedes in both its memorandum and in its resolution in which it states the reasons for its decision, that the "[t]own's traffic expert reports that the proposed sight distance of 700 feet in both directions comfortably accommodates the necessary sight distance of 555 feet to the south, [and] exceeds the minimum sight distance standard of 685 feet to the north." The defendant has not referred to any evidence in the record that these distances would be unsafe, but instead contends that this concern, combined with its concern regarding gaps, presents a "substantial public safety interest." (Defendant's memorandum, p. 34.) This assertion is simply unsupported by the record.
The defendant further argues that the site plans do not include adequate recreation space. As discussed above in the section of this memorandum discussing the application for zone change, this does not present a health and safety issue that would outweigh the need for affordable housing in Wilton. With regard to the site plan application, further discussion is warranted here. The defendant contends that "[a]lthough the Site Plan shows 90,000 square feet of recreation space, the majority of the designated recreational area does not satisfy" the HOD requirements, such as that it shall be of such grade and dimensions that the space shall be readily usable for recreation, that it be planned in proper relation to the building and other on-site features, that it be located on safe and readily accessible land, designed and established to permit either active or passive recreational activities. (Defendant's memorandum, p. 50.) As stated above, an affordable housing application cannot be denied solely for noncompliance with zoning requirements. The only health or safety reasons set forth by the defendants, aside from the contention that children will be forced to play in "roadways or on steep slopes"; (defendant's memorandum, p. 52); which was addressed above, is that the areas provided for recreation "pose potential health risks due to the presence of tick and mosquito populations." (Defendant's memorandum, p. 51.) The presence of ticks on site is supported by the town planner's comments in the record. Nevertheless, regardless of whether sufficient evidence in the record supports this concern, such a concern does not outweigh the need for affordable housing in Wilton. Defendant provided no evidence that ticks and mosquitoes are specific to the site rather than ubiquitous in this region. This cannot be used as a sole justification to deny an affordable housing application. Moreover, much of the recreation space on the site plans will be cleared and landscaped. Accordingly, the defendant's concerns regarding recreation space are not supported by sufficient evidence in the record.
The defendant also contends that the design, which locates the main driveway and emergency access driveways within portions of the utility easement, constitutes a health and safety problem because, "as the Town Planner noted, `if you have downed power lines, wind storm, ice storm . . . there is the potential for downed lines to block really all three access points into the property.'" Context of such a comment is important. The colloquy that took place immediately following that comment by the town planner between him and other members of the commission reveals the conjectural nature of these comments:
COMMISSIONER McTEAGUE: Pretty far stretched apart though. Pretty catastrophic event if it went down in both of those places or all along that line.
MR. NERNEY: I don't know. Hurricane or icing condition. Icing is probably more prevalent. COMMISSIONER McTEAGUE: Or can have an earthquake. Starting to get into a little bit of ` What if this happened?' I think we are getting a little too far out.
COMMISSIONER COLLIER: If those lines came down, that apartment complex would be the least of our problems. For a hurricane coming though town to drop right down in the right-of-way, that is nothing but speculation.
The defendant's reasons for denying the site plan regarding the risk of fallen power lines blocking all three access points, therefore, are not supported by sufficient evidence in the record. The defendant has not provided any evidence in the record to show more than a theoretical possibility that these power lines would fall and block all access to the site, creating a health or safety issue that would outweigh the need for affordable housing in Wilton.
In its resolution, the defendant states that the "site plan provides a poor distribution of parking spaces with many spaces skewed to the south away from the apartment units. Such design is likely to result in illegal parking in areas closer to the buildings, causing roadway blockage and negatively impacting normal and emergency vehicle circulation and access. As noted in the Town Planner's report, there have been parking violations at other multi-family sites in Wilton, namely the Wilton Crest condominium development where residents have been cited for parking in fire lanes . . ." In support of these statements, the defendant notes that David Portman, the defendant's planning expert, expressed in his report to the commission dated July 25, 2003 that "[t]here are very few parking spaces readily available to serve tenants in Buildings 1, 2 and 6, as well as the northerly portions of Buildings 4 and 5 . . . [This] will encourage the illegal parking of vehicles which could block circulation aisles or otherwise interfere with the safe and proper functioning and servicing of this development, including emergency vehicle access." It also relies on the report of its town planner who reiterates this concern in his report dated November 20, 2003. This evidence in the record is not sufficient to support its conclusion that the parking distribution presents more than a theoretical likelihood of a specific harm to the public interest. The fact that residents at other housing developments have been cited for parking violations does not support its contention that residents would block access for emergency vehicles at this site. Moreover, inconvenient parking in itself is not a safety issue, and therefore cannot provide justification for the denial of an affordable housing application.
With regard to guardrails, the defendant contends that "[d]ue to the steep grade of the emergency and primary driveways, the Commission reasonably relied on its experts in seeking installation of guardrails along the south side of the emergency driveway and extending along the west side of the primary driveway to a point north of detention pond #140, as well as seeking confirmation that the proposed guardrails were of sufficient strength to stop trucks on a driveway of 7 [percent] grade." The plaintiff contends that such guardrails are not necessary because "[t]here is no reason to provide a guardrail along a driveway or emergency access simply because it climbs a grade. Guardrails are to keep vehicles away from drop-offs. AvalonBay's plan provides guardrails in both locations where this condition exists." (Plaintiff's memorandum, p. 60.) The defendant has provided no evidence in the record to suggest that the guardrails provided in the plans would be inadequate. Accordingly, the site plan application cannot be denied on this basis and the modification imposed in the defendant's resolution is unwarranted.
With regard to storm water detention ponds and drainage, the defendant argues that failure of components of the storm water detention and drainage system could result in dangerous water flow across Route 7. It also argues that the potential for water seepage from the earthen retaining walls of detention pond 140 was noted and that uncontrolled bleeding of groundwater could result in ice on Route 7 and instability of the retaining wall. It notes that its civil engineer, Tranquillo, stated that the plaintiff's responses to these concerns assume that components will be well maintained and free-flowing at the time of need and that "[g]ood engineering always assumes worst case scenario and designs a safe solution, which will not create unnecessary risks to life and property." It further contends that Tranquillo expressed concern that detention pond 120 and underground storage system 130 may charge the groundwater, causing water to bleed out of down-gradient slopes. The defendant has not met its evidentiary burden with regard to its concerns relating to storm water detention and ponds and drainage. The opinions relied upon by the defendant of its engineering expert that such problems may occur as a result of failure of the drainage and detention systems does not establish that such problems are more than a theoretical possibility.
Finally, the defendant contends that several other "reasonable changes" should be imposed to address its concerns. As many of the defendant's reasons for its denial of the modified site plan are not supported by sufficient evidence in the record, the court must consider only those changes that address reasons that are supported by sufficient evidence and which would otherwise outweigh the need for affordable housing in Wilton. As discussed above, the only reason for the defendant's denial of the site plan that was supported by sufficient evidence in the record, and which would outweigh the need for affordable housing in Wilton, is that the crosswalk design does not adequately protect pedestrians, particularly children. Nevertheless, this concern can be addressed by the reasonable changes discussed above, and therefore does not justify the denial of the application.
While the defendant also mentions a concern regarding the need for space between the sidewalk along Route 7 and the proposed adjacent sidewalk, this reason was not stated in its resolution to deny the site plan and therefore cannot be addressed as it was raised for the first time in its memorandum. The court must examine only those reasons stated in the record to determine whether those reasons are supported by sufficient evidence in the record. Although one of the "reasonable changes" imposed in that resolution includes the addition of a five-foot shoulder between the walkway and the road; this change does not address any of the defendant's stated reasons for its decision relating to that sidewalk. The remaining reasons asserted by the defendant are not supported by sufficient evidence in the record and need not be addressed with reasonable changes. Accordingly, the remaining "reasonable changes" discussed in the defendant's memorandum of law and in its resolution to deny the modified site plan application are unnecessary and should not be imposed.
In its resolution to deny the modified site plan application, the defendant stated, with respect to the proposed sidewalk adjacent to Route 7: "The Commission is of the opinion that a sidewalk along the Route 7 frontage is critical to facilitating the movement of pedestrians in a reasonable and safe manner. Whereas the Commission applauds the efforts of the applicant to provide a sidewalk along Route 7 property frontage, for reasons of public safety, the construction of such walkway should not be delayed. The Commission believes this issue can be addressed by means of a reasonable change as noted below in `Reasonable Changes — Item #4.'"
CONCLUSION
The court dismisses the appeal with regard to the proposed amendment to the zoning regulations for failure of the plaintiff to establish aggrievement.
For the reasons stated herein, the court sustains the plaintiff's appeal and remands this matter to the defendant commission with direction to approve the zone change and site plan applications.
Munro, J.