Opinion
HHDCV146052002S
03-03-2017
Garden Homes Management Corporation et al. v. Planning and Zoning Commission of the Town of Oxford
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
STEPHEN F. FRAZZINI, Judge Trial Referee.
This matter is before the court on an appeal under the affordable housing statute, General Statutes § 8-30g, from decisions of the defendant, the Planning and Zoning Commission of the Town of Oxford (the commission), denying an application filed in 2014 by the plaintiffs, Garden Homes Management Corporation and Third Garden Park, L.P. et al. (Garden Homes), to build a housing development in the town of Oxford that would have included affordable housing on forty-one acres of undeveloped land owned by the plaintiffs. This court has twice previously sustained the appeal, with certain exceptions that were remanded each time to the commission for further action. The appeal is now ready for final determination, and, as more fully described below, is sustained.
General Statutes § 8-30g provides, in relevant part, as follows: " (g) Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission, that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1)(A) the decision is necessary to protect substantial public interests in health, safety or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development . . . If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it."
I
STANDARD OF REVIEW
In a judicial appeal under § 8-30g, " the trial court must first determine whether the decision . . . and the reasons cited for such decision are supported by sufficient evidence in the record . . . Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of 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 may legally 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." (Citation omitted; footnote omitted; internal quotation marks omitted.) River Bend Assocs. v. Zoning Comm'n, 271 Conn. 1, 26, 856 A.2d 973 (2004).
" 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.'" AvalonBay Communities, Inc. v. Planning & Zoning Commission, 103 Conn.App. 842, 846, 930 A.2d 793 (2007), quoting Kaufman v. Zoning Commission, 232 Conn. 122, 156, 653 A.2d 798 (1995). The court initially examines " 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." River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26. Section 8-30g also requires the commission to show " a quantifiable probability that a specific harm will result if the application is granted." AvalonBay Communities, Inc. v. Planning & Zoning Commission, supra, 103 Conn.App. 853-54, citing Kaufman v. Zoning Commission, supra, 232 Conn. 156. See also Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 597, 735 A.2d 231 (1999).
II
The court's recitation of the prior proceedings before Judge Pickard and this judge is summary in nature, for the purposes of framing the issues addressed in this decision, and not meant to replace the fuller description of prior proceedings contained in this court's earlier decisions.
A
2006 and 2007 Affordable Housing Applications
The plaintiffs' 2014 zoning application was not the first affordable housing application they had filed for this property. In 2006, Garden Homes sought approval from the commission for a text amendment to the town's zoning regulations to create a new residential district, an amendment to the town's zoning map placing the plaintiffs' property in the newly-created zone, and a zoning permit and site plan approval for a development containing 127 (later revised to 113) manufactured mobile homes that would have included affordable housing. After the commission denied that application in February 2007, Garden Homes submitted a modified application, which the commission denied in September 2007. The ensuring affordable housing appeal by the plaintiffs was sustained in 2009. Garden Homes Management Corp. v. Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-07-4015729-S, (November 3, 2009, Pickard, J.) (2009 Decision). The court remanded the proceedings to the commission with direction to adopt the proposed amendment to the zoning regulations, approve an amendment to the zoning map placing the plaintiffs' property into the new zone, and approve the site plan and zoning permit applications subject to conditions that the court found reasonable and necessary to address certain health and safety issues.
B
2014 Affordable Housing Application
1. 2015 Decision
In February 2014, Garden Homes filed the present site application for this property, now seeking to build 124 mobile manufactured dwellings that would have included affordable housing in the Mixed Income Housing District established by the commission in accordance with the court's remand order in 2009. To review that application, the commission retained two technical consultants--an engineering firm, Nafis & Young, and a land use company, the Turner Miller Group. Before the commission meeting in May 2014 at which it adopted a resolution denying the 2014 application, those two consultants had submitted two letters and a written memorandum to the commission identifying approximately twenty issues that they claimed were problems with the plaintiffs' application. See 2015 Decision, p. 12-15. A meeting between the engineers for the plaintiffs and the commission resolved some of those issues, and, by the time of the final public hearing on the application, Garden Homes had already addressed most of the health, safety or other issues of substantial public interest that had been raised by the town's two consultants. Just before and at that final public hearing, Garden Homes submitted written and oral proposals and revised site plan drawings addressing the remaining issues that the two consultants had identified. See id., p. 15-19.
Although the commission's consultants had identified various issues regarding Garden Homes' application, none of those issues were cited by the commission in its decision denying the application. Instead, the commission gave only three reasons for doing so:
[I]t's an incomplete application since the fees have not been paid for expert review. ROR, Item 10, Transcript of meeting of Town of Oxford Planning and Zoning Commission on May 6, 2014, p. 123;
[N]ew information has been presented. The commission and the staff and experts have not had a reasonable opportunity to review the information presented of the applicant at today's public hearing . . . Id., p. 123-24; and
[T]he commission has requested an extension in order to provide a fair and reasonable evaluation of this application and supporting documents. The extension request was refused. Id., p. 124.
The record on the 2014 appeal resulting in the court's 2015 Decision is referred to here as " ROR, " and the record on remand resulting in this court's 2016 Decision as " RROR."
The commission's decision neither referred to nor specifically relied on any of the substantive issues that its consultants had identified in their submissions to the commission or in their statements at the public hearing.
Garden Homes then filed the present appeal under the affordable housing statute. In 2015, this court sustained that appeal, with certain exceptions that were remanded to the commission for further consideration. Garden Homes Management Corp. v. Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-14-6052002-S, (July 23, 2015, Frazzini, J.) (2015 Decision). This court found that the commission had " not sustained its burden of proof as to any of its stated reasons for denying the site plan application." Id. p. 32. The court determined that the public interest could have been protected by the commission conditionally approving the application subject to certain changes found reasonable and set forth in the memorandum of decision. See Id. p. 30-32. Instead of ordering the commission to grant the application on remand after compliance with the conditions set forth in that decision, however, the court remanded the site plan application for further consideration of certain " new information" that had been presented by Garden Homes at the final public hearing regarding issues that had been identified by the commission's experts. Noting that " [e]ach of these new proposals concerned issues that could legitimately be regarded as matters of public interest"; Id. p. 23; the court remanded the proceedings to the commission for further consideration of those four issues.
As noted by this court in the 2015 Decision, the only " new information" presented by Garden Homes at the public hearing or in a letter that same day that did not consist of acquiescing to requests made by the commission's consultants consisted of the following:
" [T]he court remands the site plan application for further consideration of the three issues related to traffic safety--the adequacy of stop signs and stop bars to address the vertical curve issue, the adequacy of the no-left-turn sign on Emily Drive to address the line of sight issue, and the cross slopes issue--as well as enforcement of the no-parking ban." 2015 Decision,
2. 2016 Decision
After remand, Garden Homes submitted revised site plan drawings and a traffic report for the proposed development to the commission on August 19, 2015. On October 6, 2015, the commission adopted a ten-page " Final Resolution" rejecting the revised site plan and setting forth numerous reasons for the commission's decision. In 2016, this court again sustained the plaintiffs' appeal. Garden Homes Management Corp. v. Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-14-6052002-S, (October 25, 2016, Frazzini, J.) (2016 Decision). With regard to the remanded issues, the court again conducted its own plenary review of the record, after which the court found that the commission has not sustained its burden of proof as to any of the stated reasons for denying the revised site plan application. The court further determined that the public interest could have been protected by the commission conditionally approving that application subject to certain changes found reasonable, as set forth in the court's 2015 and 2016 decisions, thereby ensuring that the site plan conformed to most of the modifications to which Garden Homes had agreed by conditioning approval on such conformity.
In reviewing the record of the proceedings before the commission on the first remand, the court has noticed that the 2016 Memorandum of Decision inadvertently referred to and cited portions of the draft resolution before the commission, located at RROR, Item 18 (Bates Nos. 0182-0191), instead of the final resolution actually adopted by the commission, located at RROR, Item 31 (Bates Nos. 0442-0451). Before adopting the resolution, the commission amended the draft resolution slightly by adding and changing a few words; but the substance and pagination of the draft and final resolutions remained the same. References in the 2016 Decision to the commission's resolution should be corrected by adding 260 to each Bates number reference. For example, the first sentence of the first full paragraph on page seven of the 2016 Decision cited page seven of " Bates No. 0188." The correct citation should have been page seven of " Bates No. 0448."
Some of the reasons provided by the commission in its decision on remand had not been cited by the commission in its original decision in 2014, were therefore not " within the scope of the issues remanded to the commission by this court, " and hence were not " valid reasons for denying the application on remand." 2016 Decision,
One issue was not resolved on that remand, however. The 2015 decision had found that, with the exception of the issues remanded to the commission, the public interest could have been protected by the commission conditionally approving the site plan in various respects set forth in that decision. One of those conditions was that, as had been volunteered by Garden Homes at the final public hearing before the commission's 2014 decision, " [t]urning diagrams shall be added to the plans showing the turning path for Oxford fire department trucks and that such trucks can make turns at all intersections." During the remand proceedings, the commission therefore " properly considered the adequacy of the turning diagrams prepared by Garden Homes to satisfy the conditions of approval set forth in the 2015 decision. Such an ability is obviously an issue of public health and safety and legitimately considered by a zoning commission assessing an affordable housing application." 2016 Decision, Id. p. 23-24.
For the remand proceedings, the commission retained Adler Consulting, which describes itself as a " transportation planning and engineering" company, to review " the traffic engineering components" of Garden Homes' revised application. Adler Consulting sent a letter to the commission and provided testimony at the remand hearing disputing the accuracy of the plaintiff's turning diagrams and essentially asserting, for a variety of reasons, that the town fire department's largest fire truck, a vehicle known as the Pierce Arrow XT Ladder Quint, would have difficulty safely navigating the access points for the development from Hurley Road and certain interior roadways. Some of the reasons recited in the commission's decision on remand for continuing to deny Garden Homes' application referred to Adler's representations about the length and turning radius of that vehicle and the implications of those dimensions and radii on the truck's ability to safely navigate the access points and interior roadways. Garden Homes' insisted to the commission and this court, however, that the Adler dimensions and radii were incorrect, and Garden Homes had presented the commission with conflicting opinions from its own expert. Adler and Garden Homes both maintained, moreover, that their assertions about the vehicle's dimensions and turning radii relied on documents provided by the town's fire marshal. The document in the record that Adler and the commission claimed provided support for their assertions about the fire truck's dimensions and turning radii, however, was illegible.
Adler maintained that the Pierce Arrow XT Ladder Quint was 48.5 feet long, had a wheelbase of 28.9 feet, and had a turning radius of 48 feet. See Adler letter to the commission dated September 25, 2015. RROR, Item 15 (Bates Nos. 0165-0167). The first page of that letter stated these specifications were contained in a memorandum sent to the commission from the Oxford Fire Department dated April 15, 2014, which was located in the remand record at RROR, Item 16 (Bates No. 0170). Similarly, Adler representative Thomas O'Rourke also said at the September 29, 2015, public hearing that the Adler turning diagrams were based on " information provided to us . . . [in] a plan which is prepared by Pierce. It is titled Oxford Volunteer Fire Department, 105 foot Ladder Quint Arrow XT . . . This I believe was submitted to this Commission on April 15th, 2014, . . . by Fire Marshal Scott P." Transcript of Hearing on September 29, 2015, at page 35; RROR, Item 29 (Bates No. 0356).
For example, in the remand resolution, the commission asserted that [t]he centerline radii of the roads inside the development, both at intersections and non-intersection curves, continue to be insufficient to allow safe passage of the fire apparatus used by the Town of Oxford. (Emphasis in original.) Final Resolution on Remand, dated October 6, 2015, RROR, Item 31, p. 1 (Bates Nos. 0442-0443); and the physical geometry of the entrance at Emily Drive does not permit maneuvers by the fire apparatus used by the Oxford Fire Department, and as such, the proposed second access drive via Emily Drive is unsafe. Id., p. 5 (Bates No. 0446).
Garden Homes maintained in its written and oral submissions to the commission on remand that the Pierce Arrow XT Ladder Quint had a wheelbase of 247.50 inches (20.625 feet) and a wall to wall turning radius of 39.7 inches. See RROR, Item 14e, " Turning Performance Analysis, " dated April 21, 2014 (Bates No. 0145), and RROR, Item 29, Statements of Garden Homes' Attorney Mark Branse and Engineer Kevin Hua, Transcript of Public Hearing on September 29, 2015, p. 19-21 and 38-39 (Bates Nos. 0340-0342, 0359-0360).
In the remand resolution, the commission acknowledged the conflict between the two experts about the dimensions and turning radii of that vehicle and stated that it had elected to believe Adler rather than Garden Homes' expert because Adler was relying on the document in the record that the court, after its own independent and plenary review of the record, found to be illegible and not a sufficient basis for crediting the Adler conclusions or rejecting those of Garden Homes' expert. See 2016 Decision, p. 26-28.
In conducting a plenary review of the record, this court determined that, in view of the illegibility of that document relied upon by Adler and the commission, there was no evidence in the record to support the commission's decision to credit the Adler conclusions, disbelieve the contrary opinions of Garden Homes' expert, or reject the applicant's turning diagrams. See 2016 Decision, p. 24-29. The court determined, however, that the actual dimensions and turning radii of the town's largest truck " can surely be easily obtained, either from the fire marshal directly or the manufacturer, and is objective information over which there should be no legitimate dispute." Id., p. 38. Since the ability of the town's fire trucks to navigate the access points and interior roadways safely is a potential safety issue, the court again remanded the matter to the commission, but only for the purpose of determining " the actual dimensions and turning radii of the town's largest fire truck and the extent of any protrusion of such a truck into areas beyond the edge of the road." Id., p. 38. The memorandum of decision was filed on October 26, 2016, and remanded the proceedings to the commission with direction to provide that information back to the court within sixty days of the date of that decision, along with the reasons and evidence supporting such a determination.
III
CURRENT PROCEEDINGS
Both parties have filed certain materials with the court since the court's 2016 Decision. The court has also conducted several telephone conferences with counsel for the parties. After the last such conference call, the court entered an order, with the agreement of the parties, specifying the contents of the record as to events and proceedings since the 2016 decision.
A legible copy of the document located at Bates No. 0170 in the remand record, which contains the schematics for the town's largest fire truck (the model known as the Pierce Arrow XT Ladder Quint) has now been made available to the parties and filed with the court. Digital (and zoom-able) and full-sized copies of an updated drawing of the development and its roads containing turning diagrams for the Pierce Arrow XT Ladder Quint on interior roadways and the two access points to and from Hurley Road were provided to the commission and have also been filed with the court. The commission now acknowledges that Adler's original assertions, which the commission had previously accepted, regarding the dimensions of the town's Pierce Arrow XT Ladder Quint and the turning radii of that equipment were incorrect. Based on the updated, accurate data about the vehicle's schematics and turning radii, the commission and its consulting experts now also acknowledge that the Pierce Arrow XT Ladder Quint equipment owned by the Oxford Fire Department will not leave the roadway when entering or exiting the development at either Emily Drive or Oxford Commons West or when traversing interior roadways of the development.
A letter to the commission from Adler Consulting dated January 24, 2017, acknowledged that " [T]he recently obtained drawing of the Aerial Ladder Truck indicated that the wheel base of the fire truck is 20.6 feet . . . [T]he minimum [outside] turning radius measured approximately 39 feet."
Nonetheless, the commission continues to maintain that the turning diagrams support its assertions that the centerline radii of the access roads and interior roadways are insufficient to allow safe passage of town fire trucks and that the physical geometry of at least one of the two entrances into the development is unsafe. The reasons that had been cited by the commission in its resolution on remand for these assertions were Adler's former conclusions, based on the wrong dimensions for the fire truck and incorrect data about its turning radii, that the Ladder Quint Arrow XT would overrun curbs and parcels at various locations, thereby running the risk of becoming mired in the bioswales adjacent to the interior roadways, and overrun the far curb of the roadway while entering the site. None of the evidence in the record on remand now supports these assertions, which had all been based on Adler's now-withdrawn and incorrect assertions about the length and turning radius of the Pierce Arrow XT Ladder Quint equipment.
It is unclear whether the commission continues to maintain that the " physical geometry" of the entrance to the development at Emily Drive is unsafe. Its most recent resolution, which the parties agree does not have the force and effect of a formal decision by commission but instead is offered as argument in support of its denial of the plaintiffs' site plan application, contains seemingly contradictory assertions on this topic: " the physical geometry of the entrance at Emily Drive continues to be unsafe . Although the physical geometry of this access appears to have been resolved, the proposed bituminous curb will not be durable and as such will cause damage to the Oxford fire apparatus." (Emphasis added.) See Resolution of the Oxford Planning and Zoning Commission dated February 1, 2017, p. 3.
See the text of the October 2013 resolution on remand regarding these assertions at footnote 9, on page 9 above.
The 2017 letters from Adler and Nafis & Young, using accurate dimensions and turning diagrams, now state the following regarding the travel of that equipment:
When turning right from Hurley Road onto Emily Drive, the Pierce Arrow XT Ladder Quint fire truck " would overun the island to successfully negotiate the movement." 2017 Adler letter, p. 2.
When turning right from Emily Drive onto Hurley Road, the Pierce Arrow XT Ladder Quint fire truck " would mount the island and would overrun the pedestrian painted lane to negotiate the right turn into Hurley Road." Id.
When turning from Oxford Commons West onto Hurley Road, the turning diagram " depicts the Aerial Ladder Truck turn . . . is successfully negotiated without the wheels crossing over the far side of Hurley Road. The revised plan shows the position of the Aerial Ladder Truck slightly over the centerline of the Oxford Commons West. Also, when the Aerial Ladder truck turns onto Hurley Road, the overhang of the Aerial Ladder Truck will still cross over the far side of Hurley Road." Id.
" Several of the turning movements . . . show that the vehicle proposed travels into the oncoming traffic lane" at certain locations on the interior roadways of the development and at the Hurley Road-Emily Drive access point. 2017 Nafis & Young Letter, p. 1.
The 2017 Adler Letter identifies this " island" as the " channelized island with mountable bituminous curb . . . on the Emily Drive approach at Hurley Road." As noted in the text on page 16 above, Garden Homes has now agreed that this mountable curb would be constructed of concrete.
As noted in the text on page 17 above, Garden Homes is no longer seeking to add striping for a pedestrian lane,
Page two of the Adler 2017 letter refers to " [t]he revised December 27, 2016 plan . . ."
As noted by the Nafis & Young letter, the supposed safety hazard posed by any of these circumstances is " an obvious head on collision condition." Id., p. 1. Such a reason, however, appears to be foreclosed as a basis for denying an affordable housing application by the case of Avalon Bay Communities, Inc. v. Zoning Commission, 130 Conn.App. 36, 56-57, 21 A.3d 926, cert. denied, 303 Conn. 909, 32 A.3d 962 (2011).
In that case, one reason cited by the trial court for upholding a zoning commission's decision to deny an affordable housing application was that fire trucks responding to the proposed affordable housing development would have to travel down the center of a road while traversing an underpass of the Merritt. Parkway to get to the development. The trial court had reasoned that " the likelihood of collision with oncoming traffic increases as a fire truck moves to the center of the road." I d., 48. The Appellate Court, however, noted that " [d]rivers of other vehicles on the roadway, after hearing the horn and siren and being alerted by the flashing lights of a fire truck, are obligated by statute to pull off to the side of the road to permit emergency vehicles to pass them. There is no more of a hazard involved in driving down the centerline to the proposed development than there would be in driving down the center of any road in response to any emergency call." Id., 57. The court concluded that the commission's speculation about the " likelihood of a collision" did not reach the required standard of sufficient evidence in the record:
The trial court had " also stated that there would be a greater likelihood of a collision with oncoming traffic when the aerial fire trucks proceeded down the center of the road." Avalon Bay Communities, Inc. v. Zoning Commission, 130 Conn.App. 36, 53, 21 A.3d 926, cert. denied 303 Conn. 909, 32 A.3d 962 (2011). The Appellate Court further noted that " [t]he commission concluded, and the trial court agreed, that driving on the centerline of Cutspring Road would be a hazard because there would be a greater likelihood of a collision with oncoming traffic." Id., 56-57.
In a footnote, the Appellate Court identified that statute as General Statutes § 14-283(e), which provides as follows: " Upon the immediate approach of an emergency vehicle making use of such an audible warning signal device and such visible flashing or revolving lights or of any state or local police vehicle properly and lawfully making use of an audible warning signal device only, the operator of every other vehicle in the immediate vicinity shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a state or local police officer or a firefighter." See Avalon Bay Communities, Inc., v. Zoning Commission, supra, 130 Conn.App. 57, n.20.
The record does not establish that there is " more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest" if the commission granted the affordable housing application. There must be a reasonable basis in the record for concluding that the denial was necessary to protect substantial public interests, which means that the record must contain evidence concerning the potential harm that would result if the site plan application were to be granted and evidence concerning the probability that such harm in fact would occur.(Citations omitted.) Id., 53-54. The same conclusion applies here as well. The possibility of a " head on collision" is a speculative concern, lacking any " evidence as to a quantifiable probability that a specific harm will result if the application is granted . . . Mere concerns alone do not amount to sufficient evidence to support the denial of an affordable housing application pursuant to § 8-30g(g)." Id., 58, citing Avalonbay Communities, Inc. v. Planning & Zoning Commission, 103 Conn.App. 842, 853-54, 930 A.2d 793 (2007). Moreover, motorists at these locations will be under the same obligation imposed by § 14-283(e) to " stop and remain in . . . position" that the Appellate Court had noted in Avalon Bay Communities, Inc. v. Zoning Commission, supra, 130 Conn.App. 57, n.20, as one of the reasons that the driving conditions there did not pose an unwarranted safety hazard.
This same conclusion also applies to the statements in the January 19 letter from Nafis & Young that the fire truck would cross " into the oncoming traffic lane" at least three locations within the development (" Emily Lane at Jessica Lane, Oxford Commons West at Jessica Lane, et al. . . . [and] in front of Unit 89 on Emily Lane"; Nafis 2017 Letter, p. 1) and at the Emily Drive entrance into the development from Hurley Road:
Three other matters remain. One of the conditions for approval of the site application imposed by this court in the 2016 Decision was that " Garden Homes shall . . . [i]nstall an island with a mountable curb directing traffic on Emily Drive to make only right turns onto Hurley Road." 2016 Decision, p. 38. The revised site plan drawing submitted to the commission and filed with the court shows a " mountable bituminous curb" at that location. The new letter from Adler Consulting stated that " bituminous material would not be particularly durable" and that " [a] more durable edging and surface should be used for the canalization island." Adler 2017 letter, p. 2. At the last public hearing on the first remand, Michael O'Rourke, who identified himself as a " senior associate with Adler Consulting" (RROR, Item 29, Transcript of Public Hearing before the Oxford Planning and Zoning Commission on September 29, 2015 (Bates No, 0323), had stated that " [n]o left turn signs supplemented by the raised concrete island would typically be the mitigation that would be recommended." (Emphasis added.) Id. (Bates No. 0334). Garden Homes has now agreed to use concrete for the mountable curb, as had been recommended by O'Rourke at the September 2015 hearing; see " Revised Proposed Order, " attached to Plaintiffs' Objection dated February 2, 2017; and the conditions for approval so order.
Citing page two of that letter, the commission's February 1, 2017, resolution stated similarly that " the proposed bituminous curb will not be durable and as such will cause damage to the Oxford fire apparatus . . . [I]t is possible that a more durable material would eliminate this unsafe condition." Nothing in the Adler letter, however, supports the commission's assertion that a bituminous curb would damage a fire truck.
The site plan drawing submitted in December 2016 by Garden Homes also included striping on one side of interior roadways to provide a four-foot-wide pedestrian walking lane. The 2017 Adler letter asserted that such a painted pedestrian lane would mean that the site plan no longer complied with town regulations requiring 24-foot-wide roadways. See 2017 Adler Letter, p. 2. The commission's most recent resolution asserts that " [t]he commission does not believe that the pedestrian strip added in the Revised Plan dated December 27, 2016, is safe. A sidewalk for pedestrians adjacent to the roadways would be welcome and desirable, but pedestrians using the roadways to walk presents an unsafe condition and should not be added." Resolution of the Oxford Planning and Zoning Commission dated February 1, 2017, p. 4. There is no evidence in the record that pedestrians using roadways to walk would be unsafe. The court does not need to consider any issues regarding a painted pedestrian walkway, however, because Garden Homes has now abandoned that suggestion. See " Revised Proposed Order, " attached to Plaintiffs' Objection dated February 2, 2017. The interior roadways will thus continue to comply with Article 6A of the Oxford Zoning Regulations that " [a]ll manufactured home spaces shall abut an interior roadway with a paved travel way no less than 24 feet in width."
Article 6A of the Oxford Zoning Regulations, captioned " Mixed Income Housing District, " contains the regulations adopted by the commission in compliance with the court's decision in the 2009 decision. See ROR, Item 6. Section 6A.9 of that article, captioned " Interior Roadways, " provides, in pertinent part, as follows: " All manufactured home spaces shall abut an interior roadway with a paved travel way no less than 24 feet in width." Id.
Finally, the January 2017 Adler letter stated that the traffic signs shown on the revised plan did not conform to the standards of the Manual of Uniform Traffic Control Devices (MUTCD). It asserted that certain signs were not of proper size, wording, or placement--for example, it said that one sign for " Slow-Children at Play, " should be replaced with a " Playground" sign and " only in advance of a playground." 2017 Adler Letter, p. 3. The 2015 Decision ordered that all signs conforming to the MUTCD standards would be a condition for approval of the application, and Garden Homes now concurs that signs shall conform to MUTCD standards. See " Revised Proposed Order, " attached to Plaintiffs' Objection dated February 2, 2017.
IV
CONCLUSION
In an affordable housing appeal under § 8-30g, the scope of judicial review is very limited. The statute " requires the town, " not the applicant, to marshal the evidence supporting its decision and to persuade the court that there is sufficient evidence in the record to support the town's decision and the reasons given for that decision. By contrast, in a traditional zoning appeal, the scope of review requires the appealing aggrieved party to marshal the record, and to establish that the decision was not reasonably supported by the record." (Emphasis in original.) Christian Activities Council, Congregational v. Town Council of Town of Glastonbury, 249 Conn. 566, 576, 735 A.2d 231 (1999). Moreover, " if a town denies an affordable housing land use application, it must state its reasons on the record, and that statement must take the form of a formal, official, collective statement of reasons for its actions. By contrast, in a traditional zoning appeal, if a zoning agency has failed to give such reasons, the court is obligated to search the entire record to find a basis for the [agency's] decision." (Internal quotation marks omitted; quotations omitted.) Id.
All of the judicial proceedings since the commission's decision on May 6, 2014, to deny Garden Homes' 2014 application for approval of an affordable housing development have been dictated by this limited scope of judicial review. In reviewing the commission's 2014 decision, the court was restricted to determining whether there was sufficient evidence in the record to support the commission's decision and the three reasons given by the commission in its " formal, official, collective statement of reasons for its actions." The commission's ten-page resolution that it adopted in the remand resolution a year later contained numerous additional reasons for denying the application that were not contained in the commission's original decision. These included the location of the second access point into the development on Hurley Road, the width of the access roads and interior roadways, the lack of sidewalks, and the location of drainage bioswales rather than sidewalks adjacent to interior roadways. None of these issues had been identified as reasons by the commission for denying that application in its original decision on May 6, 2014.
For example, ever since the commission adopted its resolution in May 2014 denying the plaintiff's application for only three reasons, none referring to any of the above-stated issues, the commission has continuously and vigorously asserted to this court that locating a second access point into the development on Hurley Road contradicts the statement of Judge Pickard in the 2009 decision that Garden Homes should " provide a full second access point which is separated from the access on Hurley Road." As this court pointed out in the 2016 Decision, however, the commission knew that Garden Homes was proposing a second access point into the development from Hurley Road well before its original denial resolution in 2014. The original site plan drawings submitted to the commission with Garden Homes' 2014 application showed two roads entering the proposed development from Hurley Road. See ROR, Item 2, Maps and Plans for Oxford Commons Development dated February 7, 2014. Similarly, the commission knew about the width of the development's roads, the lack of sidewalks, and the placement of bios Wales adjacent to the interior roadways long before the 2014 resolution. These characteristics of the Garden Homes application had all been identified as issues in written and oral submissions to the commission from its consultants. Yet, the commission's resolution cited none of them as reasons for denying the application, and the court therefore could not consider them as bases for denying the plaintiffs' appeal.
" The commission's time and opportunity to deny the 2014 application for one of these reasons expired at the end of the sixty-five-day statutory period provided by the legislature for it to review and decide zoning site plan applications. And none were within the scope of the issues remanded to the commission by this court. Hence, none are valid reasons for denying the application on remand." 2016 Decision, p. 36.
The original commission resolution had, essentially, only identified " new information" that the commission had not yet had an opportunity to assess as a substantive reason for denying the application. The court's 2015 decision remanded back to the commission any " new issues" that had been presented to the commission at the last minute and involved matters of potential public interest or safety. The court's 2016 decision remanded proceedings to the commission for the limited purpose of determining " the actual dimensions and turning radii of the town's largest fire truck and the extent of any protrusion into areas beyond the edge of the road." 2016 Decision, p. 38. Even after now acknowledging that the vehicle dimensions and turning radii data it had used before were incorrect, however, the commission continues to maintain that the physical geometry of the access points and the centerline radii of the roads will not allow safe passage of the fire apparatus used by the Town of Oxford.
As discussed here and the court's earlier decisions, however, the commission has not sustained its burden of proof to show sufficient evidence in the record for commission's decision as to (i) any of reasons stated by the commission in its 2014 decision and (ii) any of the issues remanded to the commission in this court's 2015 and 2016 decisions for the revised site plan application. Based on the information provided by the parties and in the record now before the court, the actual dimensions of the Pierce Arrow XT Ladder Quint, the turning radii of that equipment, and its protrusions beyond its own traffic lane do not present " sufficient evidence" under § 8-30g to deny the application. The " risk of harm" is speculative, particularly (but not solely) in light of the duty imposed on other motorists by General Statutes § 14-283(e), and is completely outweighed by the need for affordable housing in the town of Oxford. (When Garden Homes submitted this application in 2014, less than one percent of Oxford housing qualified as affordable under the standard set forth in § 8-30g(a). See 2015 Decision, p. 3.) After having conducted its own plenary review of the record, the court has determined that the commission's decision is not necessary to protect substantial interests in health, safety or other matters that the commission may legally consider, that any risk of such harm to the public interest, in view of its speculative nature, is clearly outweighed by the need for affordable housing. The public interest can be protected by reasonable changes to the affordable housing development as set forth in the court's present and 2015 decisions.
General Statutes § 8-30g provides, in pertinent part, as follows: (a) As used in this section: (1) " Affordable housing development" means a proposed housing development which is (A) assisted housing, or (B) a set-aside development; . . . (3) 'Assisted housing' means housing which is receiving, or will receive, financial assistance under any governmental program for the construction or substantial. rehabilitation of low and moderate income housing, and any housing occupied by persons receiving rental assistance under chapter 319uu1 or Section 1437f of Title 42 of the United States Code; . . . (6) 'Set-aside development' means a development in which not less than thirty per cent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that, for at least forty years after the initial occupation of the proposed development, such dwelling units shall be sold or rented at, or below, prices which will preserve the units as housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to eighty per cent of the median income. In a set-aside development, of the dwelling units conveyed by deeds containing covenants or restrictions, a number of dwelling units equal to not less than fifteen per cent of all dwelling units in the development shall be sold or rented to persons and families whose income is less than or equal to sixty per cent of the median income and the remainder of the dwelling units conveyed by deeds containing covenants or restrictions shall be sold or rented to persons and families whose income is less than or equal to eighty per cent of the median income; . . ."
V
ORDERS
Pursuant to General Statutes § 8-30g, the plaintiffs' appeal is sustained, their motion for judgment is granted, the decisions of the commission denying the site application are reversed, and the application for affordable housing at issue in this matter is hereby granted; see General Statutes § 8-30g(g); and approved, with a site plan consistent with the December 27, 2016, revision of Sheet 15 of 18 (" Revised Site Plan), subject to the conditions and modifications set forth in the court's 2015 decision and below:
General Statutes § 8-30g provides, in relevant part, as follows:
(1) In order to prohibit on-street parking and enforce that prohibition, Garden Homes Management Corporation (" Garden Homes") will include the provisions contained at Bates No. 0153 of the record on remand in each lease agreement, subject to the following conditions:
(a) Prior to the issuance of the final certificate of occupancy, Garden Homes shall record the parking enforcement policy on the land records as an encumbrance against the property and as a covenant running with the land in favor of the town, which shall automatically expire if the use of the property as a mobile manufactured home community ceases;
(b) The parking enforcement rules and policy shall run with the land if ownership of the development or individual units is transferred;
(c) Prior to the issuance of the first certificate of occupancy, Garden Homes shall contract with a towing company to provide twenty-four-hour towing, upon notice from Garden Homes, the town, or an agent of the town of a car parked in violation of the no-parking signs and lease restriction; and
(d) Garden Homes shall provide twice-yearly reports to the commission on compliance with the parking ban and any enforcement actions.
(2) With regard to the limited line of sight on Emily Drive toward the west on Hurley Road, as condition of approval of the application, Garden Homes shall:
a. Increase the curb radii to 35 feet;
b. Add appropriate signage prohibiting left turns [into the eastbound lane of Hurley Road coming from the west] out of Emily Drive onto Hurley Road; and
c. Install an island with a mountable concrete curb directing traffic on Emily Drive to make only right turns onto Hurley Road.
(3) In order to assist the Town of Oxford in ensuring the development is constructed in compliance with this approval, a final plan set (" Final Plan Set") shall be submitted to the Planning and Zoning Department of the Town of Oxford prior to the start of construction, such Final Plan Set to be revised to eliminate the depicted pedestrian lane, to add appropriate notation clarifying that MUTCD standards shall govern conflicts between such standards and the proposed signage, and to indicate that concrete curbing rather than bituminous curbing will be used in the traffic island. The Final Plan Set shall otherwise be consistent with the Revised Site plan.
(4) No part of this order shall be construed to prohibit Garden Homes or its heirs, successors, assigns, or designees from seeking site plan modifications in accordance with the Oxford Zoning Regulations, Conn. Gen Stat. § 8-30g; or any other applicable law.
(5) This Court shall retain continuing jurisdiction to effectuate this Order, which may be exercised by the filing of an appropriate motion for clarification, contempt, or otherwise with the Court by any party.
IT IS HEREBY SO ORDERED.
Garden Homes' proposal to install a sign prohibiting left turns out of Emily Drive, one of two access roads for the development, onto Hurley Road, a public roadway, to address an inadequate line of sight westward; Garden Homes' proposal to place stop signs and stop bars at certain interior intersections to address concerns expressed by the commission's engineering consultant regarding " side friction factors" (which that consultant had described as " the ability of tires to maintain traction around a curve at a given speed" on certain curves on interior roadways); Garden Homes' proposal to provide a fifty-foot tangent with a grade not to exceed five percent prior to starting vertical curves where it was " possible without loss of lots" to address the engineering consultant's concerns about cross-slopes; and Garden Homes' proposal to install no-parking signs on the interior roadways.See 2015 Decision, Id. p. 23-24.
Id. p. 32-33.
Id .p. 36; see, generally, Id. p. 32-36.
As reasons supporting these conclusion, the resolution referred to statements in a letter from Adler to the commission stating that the curb radii currently proposed for Oxford Commons would require that the Ladder Quint Arrow XT overrun sidewalks at most of the internal roadway intersections. When the Oxford Fire Department attempts to enter Oxford Commons West from Hurley Road using the Ladder Quint XT in an emergency situation, the vehicle would overrun curbs and parcels at both intersections and along Oxford Commons West and Emily Lane . . . [W]hen the Ladder Quint Arrow XT leaves Oxford Commons to turn onto Hurley Road, the fire truck would cross the south side of Hurley Road onto the shoulder and may actually leave the public ROW due to the required turning radius." (Emphasis in original.) Id., p. 2 (Bates No. 0443); and A left turning fire truck would overrun the far curb of the roadway while entering the site. Id., p. 5 (Bates No. 0446).
The turning illustrations at Oxford Commons West and Jessica Lane overlap in opposite traveling directions clearly showing an obvious head on collision condition. The turning movement in front of Unit 89 on Emily Lane shows the vehicle turning entirely into the oncoming traffic. Which is an obvious head on collision condition. The vehicle turning movement indicated at the entrance to Emily Drive shows that the proposed vehicle will travel into the oncoming traffic lane showing and [sic] obvious collision condition.Id.
This court's 2016 Memorandum of Decision discusses the historical context of this section of the regulations dealing with roadway width in more detail. See 2016 Decision, p. 33-36, particularly footnotes 20-24 therein. The requirement in the Mixed Income Housing District regulation that interior roadways be at least 24 feet wide complies with the commission's recommendation in February 2007 for Garden Homes' then-pending affordable housing application that safety concerns regarding " [i]nadequate road width . . . could be addressed by widening the internal roadways to comply with the roadway width standards of the subdivision regulations." See ROR in 2007 appeal, Item 100, Commission's resolution on February 20, 2007, denying Garden Homes' 2006 application, p. 59. The town's subdivision regulations require that " [a]ll private roads shall be constructed in accordance with the standards and requirements of the Town Road Ordinance." Oxford Subdivision Regulations, Article 6, captioned " Design and Construction Standards, " section 6, captioned " Private Roads in Place of Public Highways, " subsection 6.5, captioned " Design and Construction Standards." The town road ordinance is contained in the Oxford Code of Ordinances, in which § 98.001, captioned " Street, Roadway and Sidewalk Widths, " provides that roadways will have " a minimum width between curbs of . . . 24 feet for local streets."
" (g) . . . If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it."