Opinion
No. HHB CV 074014556S
June 1, 2009
MEMORANDUM OF DECISION
This is an appeal by the plaintiff, Dauti Construction, LLC ("Dauti") from the decision of the Town of Newtown Planning and Zoning Commission ("Commission") denying Dauti's application to amend Newtown's existing zoning regulations to create a new "Mixed Income Housing District" (MIHD); (2) rezone property to the MIHD; and (3) approve a site development plan. The appeal is properly and timely brought pursuant to General Statutes § 8-30g(g) and General Statutes § 8-8. Based on the facts presented at the time of trial, the court finds the plaintiff, as owner and contract owner of the property pursuant to General Statutes § 8-8, and as the intended developer of affordable housing pursuant to General Statutes § 8-30g(f) is aggrieved.
BACKGROUND AND FACTS
Plaintiff, Dauti Construction, LLC, ("Dauti") is a Connecticut limited liability company with a place of business at 5 Woodstone Court, Danbury, Connecticut 06793. Dauti is the owner of approximately 1.3 acres of land at 95 Church Hill Road in Newtown, Connecticut, and the contract purchaser of an adjacent parcel of land containing approximately 3.2 acres at 99 Church Hill Road, the ("Property").
Defendant Planning and Zoning Commission of the Town of Newtown ("Commission") is the agency designated by the Town of Newtown to receive, process, and act upon applications for amendments to the text of the zoning regulation of the Town of Newtown, for amendments of the Zoning Map of the Town of Newtown, and for site plan approval.
The Property presently contains an existing barn located at 95 Church Hill Road and a multi-family residence connected to the public sewer at 99 Church Hill Road.
On February 1, 2006, Dauti filed an application with the defendant Commission for (1) a text amendment of the zoning regulations to create a new "Mixed Income Housing District" ("MIHD"); (2) rezoning of the Property to the new MIHD; (3) site plan approval to construct a residential community known as "Edona Commons," comprised of 23-single-family residential dwellings, 30 percent of which would be preserved for moderate income households in compliance with Conn. Gen. Stat. § 8-30g(k)(3); and (4) a construction permit for incidental excavation. The prior application involved all of Dauti's property at 95 Church Hill Road and approximately 2.7 acres of the 3.2-acre property at 99 Church Hill Road. The prior application did not include the existing multi-family residence connected to the public sewer at 99 Church Hill Road.
The prior application received permit IW 06-01 to conduct regulated activities from the Newtown Conservation Commission (acting as the Inland Wetlands Agency pursuant to Conn. Gen. Stat. §§ 22a-3 et seq.) on May 10, 2006.
The prior application was received by the Commission at its regular meeting on February 2, 2006, and the Commission conducted a public hearing that began on April 6, 2006, and was continued to May 18, 2006, and June 18, 2006.
The Commission closed the public hearing on the prior application on June 18, 2006, and deliberated on the prior application at its meeting on August 3, 2006.
On August 3, 2006, the Commission denied the prior application, in part, because Dauti had not yet obtained approval to connect to the public sewer from the Water and Sewer Authority of the Town of Newtown, and in part over concerns about the lack of a secondary emergency access.
The Town of Newtown has established, by ordinance, the Water and Sewer Authority ("WSA") to perform the duties of a municipal water pollution control authority as set forth in Chapter 103 of the Connecticut General Statutes. Pursuant to Conn. Gen. Stat. §§ 7-245, et seq., the WSA has adopted a regulation and a Water Pollution Control Plan. Because the Property is located within a "Sewer Service Area," as provided by Section 1.5.2 of the Newtown Sewer Use Regulations and the Property abuts a public street in which there is located a public sewer, Section 2.1.1 of the Newtown Sewer Use Regulations requires Dauti to connect any building at the Property to the Newtown sewer system.
Following the Commission's denial of the prior application, Dauti obtained an option to purchase the entirety of the 3.2-acre property at 99 Church Hill Road, which includes the existing multi-family dwelling at 99 Church Hill Road. The expansion of the option to include all of 99 church Hill Road provides the Property with both a second access and an existing sewer connection at the dwelling located on 99 Church Hill Road.
On October 4, 2006, pursuant to Conn. Gen. Stat. 8-30g (the Affordable Housing Land Use Appeals Act) Dauti filed the application at issue in this appeal with the defendant Commission for (1) a text amendment to the zoning regulations to create a new "Mixed Income Housing District;" (2) rezoning of the Property to the new Mixed Income housing District ("MIHD"); and (3) site development plan approval to construct a residential community known as "Edona Commons" comprised of 26 single-family residential dwellings, 30 percent of which would be set aside for low and moderate income households in compliance with Conn. Gen. Stat. § 8-30g(k)(3) (the "Application"). The Application involved the entire 4.568-acre Property at 95 Church Hill Road and 99 Church Hill Road. The Application also proposed the removal of the existing multi-family dwelling located at 99 Church Hill Road, which is currently connected to the public sewer.
The Application was received by the Commission at its regular meeting on October 5, 2006.
After receipt of the Application, the Commission conducted a public hearing that began on December 7, 2006, and was continued to January 18, 2007.
The Commission closed the public hearing on the Application on January 18, 2007.
The Commission deliberated on the Application at its meetings on February 15, 2007 and April 5, 2007.
On March 14, 2007, the Newtown Conservation Commission (acting as the Inland Wetlands Agency pursuant to Conn. Gen. Stat. §§ 22a-36 et seq.) Modified existing permit IW 06-01 to permit the regulated activities shown in Dauti's Application.
On April 5, 2007, the Commission denied the Application, stating in pertinent part:
The findings herein clearly support the conclusion that sewers will not be available to the Project based upon the communications from the WSA that the Property is not entitled to a sewer allocating sufficient to support the Project.
Because the applicant has failed to provide an adequate sewage disposal plan to meet the needs of future residents of the Project, the evidence supports the conclusion that the substantial public health interest in providing sewers outweighs the need for affordable housing."
The proposed application is not in conformance with the requirements of Section 8-30g and the regulations promulgated by the Department of Economic and Community Development to implement such statute, for the reason that the affordable units are not comparable to the market value unit in one or more respects: The affordable units have one fewer bathroom than the market rate units, and the affordable units are smaller in size (floor area) than the market rate units."
CT Page 9039
"Because the applicant has failed to provide a regulation that would ensure that adequate measures are taken to protect the sole source of the Public Water Supply the substantial public health interest in providing protection for the public waste supply outweighs the need for affordable housing."
I. 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).
The Supreme Court has held that, under General Statutes § 8-30g. "with regard to the question of whether the zoning commission was required to establish that there was sufficient or substantial evidence in the record to support its decision, the correct test is whether [the commission] met the lesser burden of adducing sufficient evidence to support its decision . . . The commission's only burden [is] to show that the record before the [commission] support[s] the decision reached . . . and that the commission did not act arbitrarily . . . illegally . . . or in abuse of discretion . . .
"[The Supreme Court] further defined sufficient evidence in this context to mean less than a preponderance of the evidence, but more than a mere possibility. [It] stated that the zoning commission need not establish that the effects it sought to avoid by denying the application are definite or more likely than not to occur, but that such evidence must establish more than a mere possibility of such occurrence . . . Thus, the commission [is] required to show a reasonable basis in the record for concluding [as it did]." (Citations omitted; internal quotation marks omitted.) Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 584-85, 735 A.2d 231 (1999).
"`[A] fundamental purpose of the affordable housing statute was to eliminate . . . deference to commission judgments.' . . . To accomplish this goal, the legislature `recommended a new review procedure in which the reasons given by a commission . . . for its adverse decision will have to be persuasively supported in the record . . .'" (Citation omitted.) AvalonBay Communities, Inc. v. Planning Zoning Commission, 103 Conn.App. 842, 845, 930 A.2d 793 (2007), quoting Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 716, 780 A.2d 1 (2001). "In applying § 8-30g(g), we are mindful that the commission `remains the finder of fact and any facts found are subject to the "sufficient evidence" standard of judicial review.' . . . The sufficient evidence standard under the first prong of § 8-30g(g) requires the commission `to show a reasonable basis in the record for concluding that its decision was necessary to protect substantial public interests. The record, therefore, must contain evidence concerning the potential harm that would result if [the application were granted] and concerning the probability that such harm in fact would occur.'" (Citation omitted.) AvalonBay Communities, Inc. v. Planning Zoning Commission, supra, 103 Conn.App. 846-47, quoting River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 24, 26, 856 A.2d 973 (2004).
II DISCUSSION
In support of its decision, the defendant, the Newtown Planning and Zoning Commission, argues that the main reason for its denial of the application of the plaintiff, Dauti Construction, LLC, was that a sewer connection for twenty-six units was not available to the subject property. It maintains that the lack of a sewer connection for twenty-six units was a valid reason for its denial of the affordable housing application, which is supported by sufficient evidence in the record, and that the commission has satisfied its burden of proof under General Statutes § 8-30g(g). It further notes that it also denied the application and site plan because the proposed affordable units were smaller in floor area and had one fewer bedroom than the market priced units and because the proposed mixed income housing district regulations did not provide for aquifer protection.
CT Page 9041
A Whether the Record Supports the Defendant's Denial Based on the Water and Sewer Authority's Likely Denial of a Sewer Connection for the Plaintiff's Proposed Development The defendant first argues that its denial of the plaintiff's applications was proper because the record contains sufficient evidence to establish that the water and sewer authority (WSA) would not grant a sewer connection for twenty-six units and that, without a sewer connection, development of the property at the proposed density would adversely affect the public interest in health and safety. In support of this argument, the defendant argues that the plaintiff's preliminary request for sewer service for the subject property had been denied by the WSA on July 14, 2006 because the sewer capacity available for the property under the WSA's priority matrix was far less than the amount that would be needed to service the twenty-three-unit development originally proposed by the plaintiff. Accordingly, the defendant argues, it denied the plaintiff's first application, in part, because the available sewer capacity was inadequate to serve the plaintiff's proposal.The defendant further asserts that when the plaintiff submitted its second zoning application, the application at issue in this appeal, both the plaintiff and the defendant were aware that "at best it was very unlikely that the WSA would ever grant a sewer connection for 26 units of residential housing on the subject property." The defendant maintains that after the plaintiff submitted its second zoning application, the chairman of the defendant commission submitted the relevant documents related to the application to the WSA and requested its comments. The defendant argues that after discussion at the WSA's meeting on October 12, 2006, the director of the WSA, Fred Hurley, responded to the defendant commission with a report, which stated in part that the plaintiff's application "did not meet any of the five priorities for allocation of available sewer capacity as established by the Water Pollution Control Plan matrix first adopted April 28, 1994." It contends that the WSA also opposed "the proposed zone change because it would allow over intensive development leading to a discharge greater than that used in the design and construction of sewer capacity in the existing system." (Internal quotation marks omitted.). The defendant notes that on January 16, 2007, the WSA further stated, in a response to the plaintiff's comments, that "under the Water Pollution Control Plan the sewer plant has a capacity of 332,000 gallons per day and that all of the capacity was allocated by a priority matrix which was part of the plan . . . As of [April 28, 1994] all properties within the sewer service area, developed or undeveloped, were assigned a specific gallonage per day of sewer treatment plant capacity. Since the subject property of 4 plus acres was located in a one-acre zone, the property was assigned 212.5 gallons of capacity per equivalent dwelling unit or 850 gallons per day for the entire property." According to the defendant, on February 7, 2007, the WSA further stated that "the proposed development of the subject property would result in a 650% increase in the planned sewer capacity, and if that would occur other properties could also make a similar request, and that allowing such [an increase] would exceed the current capacity of the sewer treatment plant of 332,000 gallons per day."
The defendant maintains that "[i]t is clear from the administrative record that the [WSA] is not going to grant a connection for 26 residential housing units for the subject property, but will only approve a connection for 4 units even though the property is in the sewer service area and the sewer line is presently in Church Hill Road near the property . . . It is obvious that if the WSA disapproved a 23-unit connection it would also disapprove a 26-unit connection. Even though the plaintiffs have not filed an application with the WSA for the 26-unit plan at the time the defendant Commission denied the 26-unit plan, the three letters filed with the Commission from the WSA, (RECORD 17, 33 and 59) clearly show that the WSA recommended against approval of the three-part application before the Commission and that it would not allocate additional sewer capacity to the subject property beyond the four units that were assigned pursuant to the [priority] matrix developed in 1994 . . . [E]ven if [the WSA's] reasons [for its subsequent denial of the sewer application for twenty-six units] were questionable, the defendant Commission could reasonably and properly conclude that there will never be a sewer connection for 26 units for the subject property, and accordingly denied the zoning applications on that basis."
In its brief, the defendant commission also sets forth several arguments in support of the WSA's decision. The court will not consider these arguments because they are beyond the scope of this appeal from the decision of the planning and zoning commission. The issue before the court is not whether the WSA's stated opposition to the proposed development was proper, but whether the planning and zoning commission's reliance on the WSA's opposition in denying the affordable housing applications was proper.
The defendant also argues that the proposed mixed income housing district (MIHD) regulations did not allow an on-site septic system. It contends that its denial of an application which does not have adequate means of waste disposal protects a substantial public interest, and that public interest clearly outweighs the need for affordable housing. It further contends that without approval from the WSA for a sewer connection to serve twenty-six or fewer units, no modifications could be made to the plan to protect this public interest. Moreover, the defendant argues, it had no authority to approve the affordable housing applications on the condition that the applicant subsequently obtain approval of its sewer application by the WSA because such approval was not reasonably probable. It maintains that such approval was not reasonably probable because the WSA had already denied approval for a sewer connection for fewer units and because sewer authorities are not subject to the affordable housing statute.
The plaintiff counters that the defendant's denial based on the WSA's disapproval was inappropriate because it allowed the WSA to determine whether the application conformed to the zoning regulations, it allowed the WSA to make a qualitative zoning determination regarding intensity and density, and allowed the WSA to control changes in zoning designations of property. It further argues that the defendant's denial does not satisfy its burden of proof under § 8-30g(g) because it is not supported by sufficient evidence in the record and it is not based on substantial interests in public health and safety or other matters it legally can consider. It maintains that the stated reasons do not clearly outweigh the need for affordable housing and that the stated reasons could have been addressed by reasonable changes in the application.
In support of these arguments, the plaintiff contends that, in light of the fact that the WSA had not yet acted on the plaintiff's current application, the defendant should have made its approval conditional on the plaintiff obtaining approval from the WSA, rather than deny the applications because the WSA had not granted sewer approval. It maintains that it should not be required to obtain sewer approval first because § 8-30g does not require applicants to obtain approval from the various agencies involved in an affordable housing project in any particular order. It contends that when the only impediment to development is the approval of a coordinate agency, a planning and zoning commission may not deny an affordable housing application solely for lack of such approval; it must be conditionally approved. Accordingly, the plaintiff argues that the application should have been conditionally approved and must be approved if the sewer appeal is sustained.
In so arguing, the plaintiff attempts to distinguish River Bend Associates, Inc. v. Planning Commission, 271 Conn. 41, 856 A.2d 959 (2004), a case mentioned by the defendant in its brief, by arguing that the holding of that case is limited to applications that cannot be conditionally approved because the coordinate agency has already denied the application and no appeal is possible. It maintains that it had not yet submitted an application to the WSA at the time its affordable housing applications were denied by the defendant, and that the defendant mischaracterizes the WSA's proceedings in 2006 as a denial of a sewer application when the WSA characterized its actions in 2006 as a recommendation on the plaintiff's proposed zone change. It argues that in River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 41, the plaintiff had already received a denial from the sewer authority, and the plaintiff had no right to appeal from the sewer authority's decision to the Superior Court, as the right to such an appeal was not created until 2003, after the plaintiff's declaratory judgment action challenging the sewer authority's decision had been dismissed for failure to exhaust administrative remedies. It argues that River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 41, is distinguishable from the present case because in that case, the sewer authority had already denied the sewer application, no appeal was possible, and the plaintiff's declaratory judgment action was dismissed. Since none of those factors are present in this case, the plaintiff argues, the holding in River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 41, does not apply.
The plaintiff also argues that the defendant's denial is based on the WSA's illegal exercise of zoning authority and that the defendant cannot delegate its exclusive land use authority to any other agency, directly or indirectly. It maintains that an order directing the defendant to approve the affordable housing application conditioned on the approval by the WSA of the sewer application would eliminate this illegality.
In its reply brief, the defendant argues that it properly denied the affordable housing applications because it was clear that the WSA was not going to approve a sewer connection for twenty-six units. It contends that although the plaintiff was not required to submit its applications to the defendant and the WSA in any particular order, a zoning commission may deny a zoning application when it is clear that a sewer connection would not be granted. It maintains that a connection for twenty-six units would not be permitted under the applicable sewer regulations, which limit the number of connections for the plaintiff's property to four dwelling units or 850 gallons, and that the reports submitted by the director of the WSA in three letters dated October 19, 2006, January 16, 2007, and February 7, 2007 indicate that the WSA would never approve an application for a sewer connection for twenty-six units for the subject property. It argues that when a zoning commission has evidence that another agency will not grant its approval for the project, the zoning commission cannot approve the application conditionally on the other agency's approval because the other agency's approval cannot be presumed to be a probability. Accordingly, it maintains that in light of the WSA's expressed opposition to the proposed sewer connection, the defendant properly denied the affordable housing applications.
Because the record contains sufficient evidence showing that the WSA virtually had denied a previous application for a sewer connection for the property for more than four units or, at the very least, had indicated that it would not approve such a sewer connection because the property would not be allocated adequate sewer capacity for its proposed development, the defendant's denial on that basis was proper. As discussed in detail below, it is well established that, although a zoning commission may condition its approval on the approval of another agency, it may only do so if such other agency's approval is reasonably probable. If the other agency has already denied the necessary permit, or has expressed its opposition to the project, such approval is not reasonably probable and, therefore, it would be improper for the zoning commission to approve the application before it where such approval is conditioned on the approval by the other agency.
In Faubel v. Zoning Commission, 154 Conn. 202, 224 A.2d 538 (1966), an appeal from the Ridgefield Zoning Commission's decision to approve an application for a zone change and an amendment to the zoning regulations to create a new zone in Ridgefield, the planning commission, as well has other organizations and individuals, had expressed opposition to the application. Id., 208. Despite this opposition, the zoning commission unanimously approved the application. Id. The trial court sustained the appeal and the Supreme Court affirmed that decision, noting that approval of certain critical improvements by the town plan commission would be required in order to implement the zone change and that the town plan commission had opposed the change. The court held: " In the light of the expressed opposition of the town plan commission to the rezoning of the area, its approval of measures to implement that rezoning cannot be assumed to be a probability." (Emphasis added.) Id., 210. The court stated that "a change of zone which is dependent for its proper functioning on action by other agencies and over which the zoning commission has no control cannot be sustained unless . . . the necessary action appears to be a probability." Id., 211. Although this rule does not require the commission to have evidence that approval by the coordinate agency is likely before it may conditionally approve a zoning application, evidence of expressed opposition or disapproval precludes conditional approval. See River Bend Associates, Inc. v. Planning Commission, 271 Conn. 41, 59-60, 856 A.2d 959 (2004); Kaufman v. Zoning Commission, supra, 232 Conn. 163. As in Faubel, in the present case, approval of the necessary permits by another agency would be necessary for the implementation of the plaintiff's plans, and that agency has expressed opposition to the project, thereby rendering approval by that agency highly unlikely. Accordingly, as the necessary approval by the WSA was not reasonably probable, the defendant could not properly have approved it on the condition that it obtain the WSA's approval, as such a condition would have been impossible to satisfy.
Moreover, even if the WSA had not expressed opposition to the plaintiff's proposed sewer connection, the defendant could not conditionally approve the plaintiff's applications if the WSA's approval would not be possible in light of the WSA's regulations. As the defendant argues, the applicable regulations prohibit the plaintiff's property from obtaining a sewer connection beyond the capacity allocated in the "priority matrix" adopted in 1994, which allows a connection for the equivalent of one dwelling unit per acre or 850 gallons for the property. In Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 574 A.2d 212 (1990), the Supreme Court explained that "any conditions imposed by the zoning authority must be reasonable. The board has conceded, before both this court and the trial court, that the third condition imposed upon the granting of the plaintiff's variance could not have been met, since the regulations governing the issuance of soil extraction permits specifically prohibited the removal of soil from property located within a flood plain district." Id., 64. Although the board's concern regarding compliance with the zoning regulation's requirements for soil removal was a legitimate consideration for the board, the board's imposition of this condition was held to be inappropriate because, as the board conceded, it would have been impossible for the plaintiff to obtain a soil extraction permit. Id., 64. The court held: "Conditions that are impossible to satisfy are patently unreasonable and we hold, therefore, that zoning authorities may not impose such conditions on their grants of variances, regardless of whether the condition is to be fulfilled by the applicant, another agency or the zoning authority itself." Id., 65. Accordingly, even if the WSA had not expressed opposition to the project, conditional approval would have been inappropriate in light of the WSA's regulations prohibiting connections beyond the capacities delineated in its priority matrix.
The plaintiff relies on Kaufman v. Zoning Commission, 232 Conn. 122, 653 A.2d 798 (1995), in support of its argument that conditional approval was required in order to avoid a deadlock between agencies. Accordingly, an analysis of the holding in that case is necessary for the disposition of this appeal. In Kaufman, an affordable housing appeal brought pursuant to § 8-30g, the Supreme Court affirmed the decision of the trial court, sustaining the plaintiff's appeal from the decision of the defendant Danbury Zoning Commission. The commission had denied the plaintiff's application "to amend the zoning map of the city of Danbury to change the classification of the plaintiff's property from RA-40 . . . to RA-8 . . ." Id., 124-25.
On appeal, the commission argued in relevant part "that the evidence of record supports its decision to deny the application because the affordable housing development would cause too much traffic on existing roads. The trial court rejected this argument in part because it determined that the record before the commission showed that the traffic problem could be solved if one or more existing roads were improved. The commission does not dispute the potential viability of this solution to the traffic problem. The commission argues, rather, that because the planning commission has sole jurisdiction to approve road improvements, and because there was no evidence in the record that the planning commission would approve the new roads, protection of the public interest in traffic control required a denial of the plaintiff's zone change application." (Emphasis in original.) Id., 162.
Although the commission in Kaufman relied on Faubel v. Zoning Commission, 154 Conn. 202, 224 A.2d 538 (1966), in which the Supreme Court held that "a change of zone which is dependent for its proper functioning on action by other agencies and over which the zoning commission has no control cannot be sustained unless . . . the necessary action appears to be a probability"; (internal quotation marks omitted) Kaufman v. Zoning Commission, supra, 232 Conn. 162-63; the court distinguished that case, reasoning: "The concerns that underlay Faubel do not, however, control the decision in this case if the commission has the authority to grant the application for a new zone on the condition that the planning commission approves, and the plaintiff makes, the necessary road improvements. If the roads are not built, the existing zone will continue in place, and the public interests in traffic control will remain protected. If the roads are built, on the other hand, the public interests in traffic control will not be adversely affected. In other contexts, therefore, we have allowed zoning commissions to approve a proposed development project on the condition that the applicant take other action, even when the other action required another agency's approval, and even when there was no `evidence that the other agency will act favorably on the future request.'" Kaufman v. Zoning Commission, supra, 232 Conn. 163, quoting Blaker v. Planning Zoning Commission, 212 Conn. 471, 482, 562 A.2d 1093 (1989).
The court further held that such conditional approval was "not only authorized but required" because such a conditional zone change would protect the public interest in traffic control, and would, therefore, advance "the legislative purpose of encouraging the construction of affordable housing." Kaufman v. Zoning Commission, supra, 232 Conn. 164. The court further explained that "[p]ublic officials are expected to cooperate in helping [affordable housing] to [be] locate[d] in their community . . . but it is hardly reasonable to expect that a highway authority or traffic authority would make the necessary expenditures and changes without knowing that when such work was completed the . . . zoning commission would approve and permit the project which the work was designed to make possible, nor, logically, should the commission grant an unconditional permit for a project when in its judgment the project was impermissible unless off-site work were done. In such circumstances it is entirely reasonable and logical that the . . . zoning commission which is entrusted with large powers . . . should be the agency to make the first move and the decision as to the conditions under which it would approve the [project]. This is so even though the project may subsequently fail to materialize because one or more of the conditions has for any reason not been met." (Internal quotation marks omitted.) Id., 164-65, quoting Lurie v. Planning Zoning Commission, supra, 160 Conn. 306-07.
In holding that the commission was not only authorized, but was required, to conditionally approve the application, the court reasoned that in light of the requirements of § 8-30g and the specific facts of that case, the commission was required to prove that denial of the application was necessary to protect substantial public interests. If it could conditionally approve the application for zone change while protecting those interests, as the record shows, then the application should have been so approved. Kaufman v. Zoning Commission, supra, 232 Conn. 166.
Although the court in Kaufman held that conditional approval is required even when the coordinate agency has not indicated whether it would act favorably on an application, the court did not hold that a commission should conditionally approve an application when the coordinate agency has indicated that approval of an application to it is unlikely. Moreover, such a reading of Kaufman would be inconsistent with Faubel, in which the court held that conditional approval under such circumstances would be inappropriate because: "In the light of the expressed opposition of the town plan commission to the rezoning of the area, its approval of measures to implement that rezoning cannot be assumed to be a probability." Id., 210. Such an interpretation of Kaufman would also be inconsistent with Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 64, 574 A.2d 212 (1990), in which the court held that "[c]onditions that are impossible to satisfy are patently unreasonable and we hold, therefore, that zoning authorities may not impose such conditions . . . regardless of whether the condition is to be fulfilled by the applicant, another agency or the zoning authority itself." Id., 65. Accordingly, the plaintiff's reliance on Kaufman, in support of its argument that the applications should have been conditionally approved, is misplaced.
The plaintiffs attempt to distinguish River Bend Associates, Inc. v. Planning Commission, 271 Conn. 41, 856 A.2d 959 (2004), is similarly unavailing. In that appeal from a planning commission's denial of a subdivision application, which the trial court had sustained, the Supreme Court agreed with the defendant commission's argument that it had no authority to condition approval of that application on the granting of the plaintiffs' sewer application. The planning commission argued that "it had no authority to approve the plaintiffs' subdivision application subject to the granting of their sewer application because, in light of the water pollution control authority's previous denial of the application, there was no `reasonable probability' that the application would be granted. The plaintiffs counter[ed] that the trial court properly concluded that the authority's denial of the sewer application was not final because that denial was likely to be, and indeed became, the subject of ongoing litigation . . . Therefore, they argue[d], the planning commission could have approved the subdivision subject to reversal of the authority's denial of the sewer application." (Citation omitted.) River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 56-57.
The Supreme Court agreed with the planning commission. It reiterated the reasoning set forth in earlier cases "that the rule that a commission cannot impose conditions on a subdivision approval that are unlikely to be fulfilled is particularly appropriate in cases where the condition imposed cannot be fulfilled by the action of the applicant, but must wait for an undetermined time for the approval of a coordinate municipal agency. The legislative purpose behind General Statutes §§ 8-26 and 8-28, to secure, in the public interest, by means of rather brief appeal time periods, a speedy determination of the issues involved . . . will best be facilitated if subdivision applicants know with certainty that a definite course of statutory action has been taken by a commission, setting in motion clear avenues of appeal . . . [The court] also stated that [w]e do not construe the imposition of conditions on a commission's `approval' of a subdivision plan to be an `approval and modification' within § 8-26 if those conditions cannot be fulfilled by the commission or subdivision applicant within a reasonable time . . ."
"Accordingly, [the court] conclude[d] that the planning commission was entitled to rely on the water pollution control authority's denial of the sewer application in concluding that there was no reasonable probability that the plaintiffs could obtain approval of the sewer application within a reasonable time. Both the time required for completion of an administrative appeal and the result of such an appeal are inherently unpredictable." (Citations omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 57-58.
The court went on to discuss Kaufman v. Zoning Commission, 232 Conn. 122, 653 A.2d 798 (1995), and Faubel v. Zoning Commission, 154 Conn. 202, 224 A.2d 538 (1966). The court explained that in Kaufman, it stated that "the zoning commission was not merely authorized, but was required to approve a zone change for an affordable housing development conditioned on obtaining the approval of coordinate agencies." River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 58, citing Kaufman v. Zoning Commission, 232 Conn. 162. In Faubel v. Zoning Commission, supra, 154 Conn. 202, the planning commission, whose approval of certain road improvements would be necessary for the approval of the zoning amendment pending before the zoning commission, had expressed its opposition to the zoning amendment. The court stated that "[i]n light of the expressed opposition of the town plan commission to the rezoning of the area, its approval of measures to implement that rezoning cannot be assumed to be a probability." River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 59, quoting Faubel v. Zoning Commission, supra, 154 Conn. 210. The court concluded that "the present case is more like Faubel than Kaufman. Although there was no evidence in Kaufman that the planning commission would approve an application for new roads, there was also no evidence that the planning commission would deny such an application. In both Faubel and the present case, there was strong evidence that the respective applications would not be approved; indeed, in the present case, the application already had been denied. Moreover, unlike in Kaufman, where the planning commission's review of road improvements was subject to the affordable housing provisions, making approval more likely, the water pollution control authority's review of the subdivision plan in the present case is not subject to those provisions." River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 60.
As the Supreme Court stated in River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 60, "the present case is more like Faubel than Kaufman." Id. Because the defendant is correct in asserting that the record contains sufficient evidence that the WSA had expressed opposition to the project and that the WSA's regulations would require the WSA to reject an application for a sewer connection for twenty-six units, such evidence would have precluded the defendant commission from conditionally approving the affordable housing applications.
Moreover, the fact that the WSA's subsequent denial is the subject of ongoing litigation would not have supported a decision by the defendant to conditionally approve the affordable housing applications because the outcome of such litigation is "inherently unpredictable." See River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 57 ("[T]he planning commission was entitled to rely on the water pollution control authority's denial of the sewer application in concluding that there was no reasonable probability that the plaintiffs could obtain approval of the sewer application within a reasonable time. Both the time required for completion of an administrative appeal and the result of such an appeal are inherently unpredictable").
In light of this court's conclusion, for the reasons discussed above, that the defendant's denial of the affordable housing applications was proper in light of the evidence of a likely denial of a sewer connection by the WSA in the record, the court must consider the impact of this court's concurrent decision sustaining the plaintiff's related appeal from the WSA's denial of the plaintiff's sewer application. If the plaintiff's appeal from the decision of the WSA were to be dismissed, then the plaintiff's argument that the defendant should have conditionally approved the zoning application would be rendered moot because such a condition could not be fulfilled once the sewer permit has been denied. Nevertheless, as the court is sustaining the appeal from the WSA's denial of the plaintiffs application for a sewer connection, thereby reversing the WSA's denial of the sewer application, the WSA's denial no longer provides an adequate basis for upholding the defendant's denial even though the defendant's reliance on that denial was a proper basis for its denial of the plaintiff's affordable housing application when it made its decision. Consequently, it is not necessary to "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, supra, 273 Conn. 573, 596-97. Instead, the court must consider whether the defendant's other stated reasons are supported by sufficient evidence in the record.
B Whether the Defendant's Denial of the Applications Was Proper Because Sufficient Evidence in the Record Supports the Defendant's Finding that the Proposed Mixed Income Housing District Regulations Did Not Provide for Aquifer Impact Protection The defendant also argues that the plaintiff's proposed regulations would have been problematic because twenty-nine other properties would become eligible for affordable housing in the proposed MIHD zone and because the proposed regulations did provide for aquifer impact review for properties located in the aquifer impact protection district. The defendant acknowledges that the plaintiff did not propose a septic system for the site, but argues that the proposed regulation would allow other projects using the regulation to place high density developments over the aquifer without ensuring that adequate safeguards would be taken. The plaintiff does not address this argument.Even if the defendant's concerns are supported by sufficient evidence in the record, the denial on this basis was not "necessary to protect substantial interests in health, safety or other matters that the commission legally may consider"; see Carr v. Planning Zoning Commission, supra, 273 Conn. 597; because the public interest can be protected by making reasonable changes to the proposed regulations. If the defendant properly found that the regulations should provide for aquifer protection review, it could have conditioned its approval on the inclusion of such a provision in the MIHD regulations. Moreover, the defendant maintains that its existing affordable housing district regulations "recognize this and provide for special protections in the aquifer protection zone . . ." The commission could simply require the inclusion of these provisions in the plaintiff's proposed MIHD regulations. Accordingly, the appeal is not dismissed on this basis.
Although the court is generally required to make a determination of whether the defendant's findings are supported by sufficient evidence in the record prior to considering the other prongs of the test set forth in 8-30g, a finding that the public interest can be protected by reasonable changes to the affordable housing development renders resolution of the threshold issue, i.e., whether the defendant's reasons relating to the proposed MIHD regulations are supported by sufficient evidence in the record, moot. Accordingly, it is not necessary for the court to consider that threshold issue.
The defendant contends that the site plan application is defective because the affordable units are not comparable to the market value units, in that "the affordable units have one further bathroom and are smaller in size (floor area) than the market rate units." It maintains that the statute and regulations require the affordable units to be comparable in size and workmanship to the market rate units. The defendant concedes that this defect could be corrected by reasonable changes to the application, but argues that such a modification would "require a new application with new development and architectural plans and not merely a remand to the Commission, because the applicant did not follow the affordable housing statute."
The plaintiff counters that the price restricted units meet the comparability requirement of § 8-30g. It argues that affordable units are not required to be identical to the market rate units, and that the only court decision addressing this issue, Wisniowski v. Planning Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 920511017 (May 14, 1993, Berger, J.) [9 Conn. L. Rptr. 193], merely held that affordable units "must be `of comparable size and workmanship' to the market rate units." It maintains that its proposed affordable units will meet the same construction requirements contained in the affordability plan and that any differences between the units are related to site topography, not affordability. It further maintains that the proposed differences are "not nearly as drastic as the unfinished second floors" in Wisniowski. Notwithstanding its assertion that differences relate merely to site topography and not affordability, the plaintiff acknowledges that the affordable units have one bathroom and a walk-in closet, while the market rate units "contain an extra bathroom in lieu of the walk-in closet," but argues that "these changes do not render the affordable units incomparable to the market rate units." Alternatively, the plaintiff argues that, under § 8-30g(g), the defendant should have addressed its concern regarding the comparability of units by identifying reasonable changes that would address its concerns. It maintains that the defendant could have addressed these concerns by designating different units as affordable units or by changing the floor plans of the affordable units.
"[A]lthough the `comparable size and workmanship' standard is not specifically mentioned in [§ ]8-30g, it is logically and inherently a part of the [§ ]8-30g definition." Wisniowski v. Planning Commission, supra, Superior Court, Docket No. CV 920511017. In Wisniowski, the court found that the affordable units in the set aside development at issue did not meet the comparability requirement set forth in General Statutes § 8-2g because the developer planned to leave the second floors of the affordable units unfinished. The parties in the present case do not dispute that affordable units in a set aside development must meet the comparability requirement discussed in Wisniowski, which is found in § 8-2g, but disagree as to whether the fact that the affordable units have one less bathroom than the market value units violates this requirement. As the record contains sufficient evidence showing that the two-bedroom units designated as affordable units have one less bathroom than the market value units, the difference in the number of bathrooms violates the comparability requirement of § 8-2g, which, as noted by the court in Wisniowski v. Planning Commission, supra, Superior Court, Docket No. CV 92 0511017, applies to affordable housing applications filed pursuant to § 8-30g.
General Statutes § 8-2g provides in relevant part: "(a) . . . any zoning commission . . . may provide by regulation for a special exemption from density limits established for any zoning district, or special exception use, in which multifamily dwellings are permitted, in accordance with the requirements contained in subsection (b) of this section. Such special exemption shall allow the construction of a designated number of such permitted multifamily dwelling units in excess of applicable density limits, in accordance with a contract entered into between a developer applying for the special exemption and the municipality. Any such contract shall provide: (1) For each dwelling unit constructed by the developer in excess of the number of such units permitted by applicable density limits, the developer shall construct in the municipality a unit of affordable housing, as defined in section 8-39a, which is of comparable size and workmanship . . ." (Emphasis added.)
Nevertheless, this defect in the application can be addressed by reasonable changes to the application. To address the discrepancy between the number of bathrooms in the affordable units and the number of bathrooms in the market rate units, the court remands the appeal to the commission to modify the plans, designating an equal percentage of units with one fewer bathroom as market priced units and affordable units, and designating an equal percentage of units with one additional bathroom as market priced units and affordable units. Under § 8-30g(g), the court has the power to revise or modify the decision of the commission for the purpose of protecting "substantial interests in health, safety, or other matters which the commission may legally consider . . ." General Statutes § 8-30g(g). As ensuring conformity of an affordable housing development with the requirements of § 8-30g is a matter that the commission may legally consider, the court hereby imposes this modification on the commission.
III CONCLUSION
For the above stated reasons, the appeal is sustained and, as discussed in greater detail above, the matter is remanded to the commission to modify the proposed regulations to provide for aquifer protection and to modify the plans as necessary to change the affordable unit and market value unit designations such that the affordable units are comparable to the market value units. As discussed above, although the defendant commission's decision based on the WSA's disapproval is supported by sufficient evidence in the record, the lack of adequate sewerage no longer serves as an adequate basis for the defendant's denial in light of this court's concurrent decision in the related appeal, Dauti Construction, LLC v. Water Sewer Authority, Superior Court, judicial district of New Britain, Docket No. CV 07 4015968, sustaining that appeal and remanding to the WSA for its approval of the plaintiff's sewer application. Further, although the defendant's finding that the proposed MIHD regulations failed to provide for aquifer protection is supported by sufficient evidence in the record, the public interest can be protected by reasonable changes to the proposed regulations. Finally, although the defendant's finding that the affordable units are not comparable to the market value units is supported by sufficient evidence in the record, the public interest can be protected by reasonable changes to the affordable housing development.