Opinion
HHDCV166073392S
08-15-2018
HOUSING AUTHORITY OF the TOWN OF NORTH HAVEN v. NORTH HAVEN PLANNING AND ZONING COMMISSION
UNPUBLISHED OPINION
OPINION
A. WILLIAM MOTTOLESE, JUDGE TRIAL REFEREE
On November 4, 2016 the North Haven Planning and Zoning Commission ("the commission") denied the application of the plaintiff, Housing Authority of the Town of North Haven ("the authority") for site plan approval filed pursuant to § 8-30g of the General Statutes for the construction of a fifty-unit addition to an existing thirty-unit residential apartment building. Since the commission has challenged the standing of the plaintiff to apply for the site plan under § 8-30g and standing implicates the court’s subject matter jurisdiction, the recitation of additional facts will be given as needed after resolution of the jurisdictional question.
The basis of the commission’s challenge to the jurisdiction of the court is that, § 8-30g does not apply to a housing authority because pursuant to G.S. § 8-51 "[E]ach housing project of an authority shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which such project is situated." The commission argues that because the commission had no jurisdiction to entertain the application this court has no jurisdiction over this appeal. On the other hand, the defendant argues that under Wisniowski v. Planning Commission, 37 Conn.App. 303 (1995) the authority, when applying for approval of an affordable housing development, need not tailor its proposal so that it complies with the North Haven zoning regulations. Wisniowski simply held that § 8-30g does not allow a zoning commission to use its traditional zoning regulations to justify a denial of an affordable housing application. The authority argues further that the dispute should be resolved by applying principles of statutory construction.
Section 8-39(i) defines "housing project" in pertinent part as (2) any work or undertaking to provide decent, safe and sanitary urban or rural dwellings, apartments or other living accommodations for families of low or moderate income, which work or undertaking may include buildings, land, equipment, facilities and other real or personal property for necessary, convenient or desirable appurtenances, streets, sewers, water service, parks, site preparation, gardening, administrative, community, recreational, commercial or welfare purposes and may include the acquisition and rehabilitation of existing dwelling units or structures to be used for moderate or low rental units.
Standing and Subject Matter Jurisdiction
Our courts have repeatedly held that "standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ... These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that] he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of controversy ... provides the requisite assurance of concrete adverseness and diligent advocacy." (Emphasis added; internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 153 (2004). "The standard for determining whether a party has standing to apply in a zoning matter is less stringent. A party need have only a sufficient interest in the property to have standing to apply in zoning matters ... [I]t is not possible to extract a precise comprehensive principle which adequately defines the necessary interest ... (Citations omitted; internal quotation marks omitted.) Id., 257." RYA Corp. v. Planning & Zoning Commission, 87 Conn.App. 658, 63-64 (citations omitted).
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction, ..." (Citations omitted; internal quotation marks omitted.) Lewis v. Gaming Policy Board, 224 Conn. 693, 698 (1993); id., 699. "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." Peters v. Dept. of Social Services, 273 Conn. 434, 441 (2005). (Alternate citation omitted.)
The court agrees with the commission that the issue of standing can be resolved on the basis of principles of statutory construction which of course involves the interplay of § 8-51 with § 8-30g. The court begins with the fundamental proposition that statutes "must be reviewed to form a cohesive body of law, and they must be construed as a whole in such a way as to reconcile all their provisions as far as possible." Bethelhem Christian Fellowship, Inc. v. Planning and Zoning Commission, 73 Conn.App. 442, 462 (2001), cert. den., 262 Conn. 428 (2002). Section 8-30g contains at least four provisions that are relevant to the court’s statutory construction analysis. The first is found in section 8-30g(2) which defines an "affordable housing application" as any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing" (emphasis added). The second, section 8-30g(b)(1), provides in pertinent part that "any person filing an affordable housing application with a commission shall, etc." (emphasis added). Third, section 8-30g(f), in creating a right of appeal for an applicant who is denied approval, states in pertinent part that "any person whose affordable housing application is denied may appeal, etc." (emphasis added). Finally, section 8-30g(a)(3) defines assisted housing as "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 319uu or Section 1437f of Title 42 of the United States Code." The court must now determine whether the word "person" was intended to including a housing authority. Relevant to this exercise is G.S. Section 1-1(k) entitled "Words and phrases. Construction of Statutes." This statute construes the word "person" so "that it may extend and be applied to communities, companies, corporations public or private, limited liability societies and associations." The determination of the inclusiveness of the word "person" has been held by our courts to be a proper subject for statutory interpretation. Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 691 (2008). Section 8-40 provides as follows: "In each municipality of the state there is created a public body corporate and politic to be known as the "housing authority" of the municipality." Ostensibly therefore, there can be no question that a housing authority in Connecticut is a "person" whenever the word is used in our statutes because it is a "public body corporate." So, but for § 8-51, the authority clearly would be a person who proposes to develop affordable housing. But if that person must first comply with the zoning regulations of the town in which the development is located then it cannot be such a person under § 8-30g and its rights become meaningless. Therefore, the court must determine whether the two statutes can be reconciled or whether they are in irreconcilable conflict. There are well recognized maxims which inform the task.
"In Connecticut the process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply ...
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ... In seeking to determine that meaning, General Statutes § 1-2z direct us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Weems v. Citigroup, Inc., 289 Conn. At 778-79.
Words in a statute shall be construed according to the commonly approved usage of the language. Martone v. Lensink, 207 Conn. 296, 302 (1998). When the language used by the legislature is plain and unambiguous there is no room for statutory construction by the courts and the statute will be applied as its words direct. Verrastro v. Siverstein, 188 Conn. 213, 220 (1982); Kelemen v. Rim Rock Corporation, 207 Conn. 599, 606 (1988). "In construing a statute common sense must be used and the courts will assume that the legislature intended to accomplish a reasonable and rational result." King v. Board of Education, 203 Conn. 324, 332-33 (1987). To ascertain commonly approved usage when a term is not defined, resort may be had to a dictionary definition of the term. Stone-Krete Construction, Inc. v. Eder, 289 Conn. 672, 678 (2006). Related statutory provisions or statutes in pari materia "often illuminate the task." Hatt v. Burlington Coat Factory, 263 Conn. 279, 312 (2003).
Section 8-51 was first enacted by the legislature in 1936 as Section 149d of the 1936 Special Session of the General Assembly: § 8-30g was enacted in 1988 and has been amended several times since then. "The General Assembly is always presumed to know all the existing statutes and effect that its action or non-action will have upon any one of them. And it is always presumed to have intended that effect which its action or non-action produces." Beccia v. Waterbury, 185 Conn. 445, 458-59 (1981). It is a well recognized principle that "if expressions of legislative intent are irreconcilable, the latest prevails, State ex. rel. Sloane v. Reidy, 152 Conn. 419, 425 (1965). "Absent manifest intent to repeal an earlier statute, when general and specific statutes conflict, they should be harmoniously construed so that the more specific statute controls." McInley v. Musshorn, 185 Conn. 616, 624 (1981). Notably, these principles have been applied in zoning matters. Pizzola v. Planning and Zoning Commission, 167 Conn. 202, 206 (1974) (where two conflicting statutes created different appeal periods, the latter statute was held to govern). Finally, as a remedial statute section 8-30g "must be liberally construed in favor of those for whom the legislature intended to benefit." Kaufman v. Zoning Commission, 232 Conn. 122, 140 (1995). Taken together, these principles militate strongly in support of an interpretation which would embrace an application made by a housing authority under § 8-30g.
This conclusion is buttressed by the fact that Section 8-30g(a)(3) specifically includes in the definition of affordable housing, "assisted housing" which "is receiving or will receive financial assistance under any governmental program." An examination of chapter 128 of the General Statutes which contains provisions concerning the powers of a housing authority reveals that at least two statutes contemplate receipt of housing assistance from a governmental source. Section 8-48 regulates the amount of rent which a housing authority may charge those who receive one hundred percent of their income from the state Department of Social Services. Likewise, § 8-68e authorizes the state to contract with a housing authority for the purpose of providing financial assistance. Finally, § 8-56 confers broad powers on a housing authority to "borrow money, accept grants or other financial assistance from the state or federal government." Thus, it is unquestionable that a housing authority is an entity which develops assisted housing and therefore develops affordable housing as defined in section 8-30g. Additional support for this expansive interpretation of the eligibility requirement for an § 8-30g applicant is found in our case law. In West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, 509 (1994) our Supreme Court construed the word "any" as used before the word "application" to apply to "every type of application filed with a zoning commission in connection with an affordable housing proposal." (emphasis added.) This inclusive language leaves no room for an exception. Indeed, it would make no sense to make "any" in subsection (a)(2) all-inclusive and yet make "any" in subsection (b)(1) when used before "person" have a different, more exclusionary meaning. "In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." King v. Board of Education, 203 Conn. 324, 332-33 (1987). "A statute should not be interpreted to thwart its purpose." Kron v. Thelan, 178 Conn. 189, 192 (1979).
The closest our courts have come to addressing this specific issue is in Quarry Knoll II Corporation v. Planning and Zoning Commission, 256 Conn. 674 (2001) where the applicant-plaintiff was a nonprofit entity controlled by the Greenwich Housing Authority. In that case the court rejected a challenge to subject matter jurisdiction based on the exhaustion doctrine. While that doctrine is not involved in the present case it is significant that neither the parties nor the court challenged the applicant’s right to apply for an 8-30g housing development. Because even the court can raise the absence of subject matter jurisdiction, sua sponte, Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 161 (2014), it can be inferred that both the trial court and the Supreme Court enjoyed subject matter jurisdiction in that case. Logically then, if an entity controlled by a housing authority is a person who may file an 8-30g application, there is no reason why a housing authority itself cannot do so.
Finally, the body of law which has developed since the enactment of § 8-30g places it beyond dispute that zoning compliance is not mandatory prior to approval of an affordable housing development. Wisniowski v. Planning Commission, 37 Conn. 303 (1985); J.A.C. Capital Drive, LLC v East Lyme Zoning Commission, 168 Conn.App. 655 (2016). Accordingly, the court concludes that the plaintiff had standing to apply to the commission for approval for its assisted housing development and the commission enjoyed subject matter jurisdiction over the application.
Draft Zoning Regulations
For a second ground for dismissing this appeal the commission argues that § 8-30g(b)(1)(E) requires that an affordable housing application be accompanied by draft zoning regulations and the failure to do so prevented the commission from approving the application. On the other hand, the commission makes no claim that the requirement is subject matter jurisdictional or that the failure to satisfy the requirement rendered the application fatally defective. Therefore a fair interpretation of the commission’s argument is that at some point before the commission acts on the application the draft zoning regulations must be submitted, but because the plaintiff never submitted the regulations the commission was without authority to approve the application. This argument is based not on the application of well-established rules of statutory construction but rather on Footnote 2 in Riverbend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 6 (2004), which reads as follows: "When the plaintiffs submitted their application, there was no requirement that the plaintiffs obtain a zone change in order to obtain approval of their site plan. See Wisniowski v. Planning Commission, 37 Conn.App. 303, 317, 1146 (1995) (site plan for affordable housing development may not be denied because it does not comply with existing zoning regulations), cert. denied, 233 Conn. 909 (1995). In 2000, however, the legislature amended the statute to require an affordable zoning applicant to submit draft zoning regulations in support of its application. See P.A. 00206, § 1(b)(1)(E), now codified at § 8-30g(b)(1)(E). The zoning commission makes no claim that the provision is retroactive. Although the plaintiffs were not required to do so, the commission makes no claim that the plaintiffs were not entitled to seek a zone change and to have the application considered by the commission under the standards set forth in § 8-30g(g)." (Alternate citation omitted.)
§ 8-30g(b)(1)(E) requires an applicant to submit "draft zoning regulations, conditions of approvals, deeds, restrictive covenants or lease provisions that will govern the affordable dwelling units."
The court notes that the transcript of the hearing before the commission contains no discussion whatsoever of the plaintiff’s failure to satisfy this requirement and the commission’s decision on the application makes no mention of the requirement.
The commission contends that this footnote makes it mandatory for an affordable housing applicant to submit draft zoning regulations whenever an application is filed. In Carr v. Planning and Zoning Commission, 273 Conn. 573, 595 (2005), the court determined that the portion of Public Act 00-206 (now section 8-30g(b)(1)(E) ) that requires submission of an affordability plan does not apply retroactively. Thus, the court considered this requirement to be substantive and not procedural. Assuming arguendo, that the draft regulations requirement is substantive like the affordability plan and therefore mandatory, the failure to timely file draft regulations is not fatal to the plaintiff’s case. Such an interpretation is consistent with the remedial nature of section 8-30g, avoids defeat of the application on a technical imperfection and allows for the filing of the draft regulations at any time prior to the commission’s final action. On the other hand, it is obvious that at times, failure to accompany an application with draft zoning regulations, will delay processing of the application to its final conclusion, contrary to the purpose which the statute seeks to accomplish. While not fatal, it is nevertheless integral to the process that they be included at the time of filing. So, neither the failure to comply with the North Haven zoning regulations nor the absence of draft regulations doomed the application to failure before the commission considered it on its merits.
The substance of this footnote in reference to an affordability plan was repeated by the court at page 33, note 23.
The Merits
The Commission denied the application for the following reasons:
1. The application was denied for the health, safety and welfare of the public, specifically citing traffic concerns raised by the neighbors; pedestrian safety concerns resulting from inadequate parking and a lack of street sidewalks leading to needed services; and safety concerns resulting from an inadequate snow removal plan.
2. The proposed building is too large for this size property in this location.
3. The substantial opposition of the neighbors to this project.
"The standard of review embodied in § 8-30g(g) is twofold in nature. See JPI Partners, LLC v. Planning & Zoning Board, supra, 259 Conn. 690. First, a reviewing court must ‘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 ... 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.’ (Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856. If that standard is met, the reviewing court then ‘must conduct a plenary review of the record and determine ... 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.’ " Id. That plenary review entails an independent review of the land use agency’s decision "based upon [the reviewing court’s] own scrupulous examination of the record." Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. at 727, supra. (Alternate citations omitted.)
At page 18 of its brief in chief and repeated at oral argument the commission concedes that it cannot satisfy this burden of proof based on the current record. The court has made its own independent review of the record and concurs with this assessment. However, instead of an outright reversal of the commission’s decision, the commission asks this court to remand the matter to the commission in order to allow it to impose reasonable conditions on the application including but not limited to location and massing of the building on the site, the landscaping, trespass lighting, parking, traffic circulation, location of dumpsters and snow storage.
"In affordable housing appeals, the court’s authority derives not from § 8-8, but from § 8-30g(g). Section 8-30g(g) provides in relevant part that "[i]f 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." Our Supreme Court has recognized that § 8-30g(g) authorizes a reviewing court "to employ much more expansive remedies than are available to courts in traditional zoning appeals." AvalonBay Communities, Inc. v. Zoning Commission, 284 Conn. 124, 140 n.15 (2007); accord Wisniowski v. Planning Commission, supra, 37 Conn.App. 320 (§ 8-30g ‘takes away some of the discretion that local commissions have under traditional land use law and allows the reviewing trial court to effect a zone change if the local commission cannot satisfy the statutory requirements for its denial of an application’); R.Fuller, 9B Connecticut Practice Series: Land. Use Law and Practice (3d Ed. 2007) § 51.5, p. 175 (§ 8-30g confers ‘more authority than provided for in other administrative appeals, and the court can direct the agency to approve the project as is or with suggested modifications’); M. Westbrook, ‘Connecticut’s New Affordable Housing Appeals Procedure: Assaulting the Presumptive Validity of Land Use Decisions,’ 66 Conn. B.J. 169, 194 (1992) (noting that remand provision of § 8-30g ‘gives the court great latitude’ and ‘several options for providing relief to the developer’). Because the plain language of § 8-30g(g) permits a reviewing court to wholly or partly revise, modify, remand or reverse the decision of a commission in a manner consistent with the evidence in the record, it necessarily confers on the court a degree of discretion. Imparting such discretion on a reviewing court is consonant with the remedial nature of § 8-30g. See Kaufman v. Zoning Commission, supra, 232 Conn. 140." Brenmor Properties, LLC v. Planning & Zoning Commission, 162 Conn.App. 678, 710-11 (2016). (Alternate citations omitted.)
The authority resists remand because it argues that based on the commission’s history of never having approved an affordable housing application the commission cannot be trusted to approve this project without imposing inappropriate conditions. The scope of a remand for the purpose of reconsidering grounds for denial should be limited by the reasons articulated by the commission as the basis for its denial of the application for the simple reason that it can be presumed that they reflect the only public interests which the commission deemed worthy of protection. Accordingly, the court declines the commission’s invitation to permit it to reconsider such conditions as onsite traffic circulation, parking, landscaping or to impose reasonable conditions deemed necessary. The commission’s decision expresses traffic and pedestrian safety concerns as well as concerns resulting from an inadequate snow removal plan. Our case law makes it clear that broad, generalized concerns expressed without identifying the specific harm that likely would result are legally insufficient to satisfy the commission’s burden under section 8-30g. Brenmor Properties, LLC v. Planning & Zoning Commission, 162 Conn.App. 678, supra. Similiarly, reason number 2 that "the building is too large for this size property" fails to identify the specific harm that our case law requires. Nevertheless, the record is replete with opposition from neighbors who live adjacent to this site who perceive harm to their well-being and property values from both the location and size of this addition. While there is nothing in the record which demonstrates that the public interest in avoiding such harm outweighs the need for affordable housing, nevertheless, to the extent that the neighbors’ needs might be accommodated by the commission without denying the application, the court remands the case to the commission for the following purpose.
Within thirty days the authority shall submit to the commission draft zoning regulations which will apply to the site. The commission itself or through its staff shall solicit from the authority its position on whether, without reducing the number of residential units, it can feasibly relocate the addition on the site in a good faith effort to reduce the impact of the building on adjacent neighbors, facilitate pedestrian safety and create space for snow storage. Because this development will be classified as assisted housing the authority obviously obtains funds from governmental sources and therefore may deem it appropriate to include in its funding application the estimated cost of these changes and any additional cost which might be incurred as a result of relocation of the building. If on the other hand this cost is not reimbursable and the cost thereof will have a substantial adverse impact on the viability of the development then the current site plan will remain in place and the commission shall promptly approve it. If the authority determines that relocation of the building is unfeasible from a land planning standpoint or for any reason any change sought by the commission will have a substantial adverse financial impact on viability the authority shall, under the hand of its chairperson, file with the commission an affidavit attesting to such fact or facts. In such event the court will revoke the remand and sustain the appeal in all respects, promptly upon receipt of notice from the authority.
SO ORDERED.