Opinion
No. CV 02 0518845S
March 8, 2004
MEMORANDUM OF DECISION
I. PROCEDURAL HISTORY
This action was commenced by former plaintiff Pasquale DiNatale on October 30, 2002 as an appeal from a decision of the Wallingford Planning and Zoning Commission which denied the plaintiff's application for a zone change and proposed amendment to the Wallingford zoning regulations. The property involved in this appeal (the "Property") consists of six acres on South Turnpike Road in Wallingford. The rear portion of the Property contains wetland soils and also has areas of steeper slopes. The property is currently zoned Design District (a commercial/office zone) and is undeveloped. The property fronts on South Turnpike, which is classified as a thoroughfare type road by the Town. The property is abutted by parking lots for the Oakdale Theater on its northern and western boundaries. Along the southern boundary is Olde Oak Village, an 82-home, single-family detached/common interest ownership development with 24 (30 per cent) affordable/price-restricted units. Adjacent to Oakdale Theater and Olde Oak Village is a large multi-family condominium development known as Brentwood Village. On the opposite side of South Turnpike is a multi-building office park known as Halcyon Park.
In 2001, The Commission adopted, in order to facilitate the development of Olde Oak Village as a mixed income residential development, what is now Section 4.19 of the Wallingford Zoning Regulations, entitled "Housing Opportunity District," or "HOD." This regulation allows for single-family detached homes to be built at a density of three homes per acre, but in clusters in order to preserve surrounding open space and natural features. The regulation, in compliance with C.G.S. Section 8-30g, requires a set-aside or price-restricted units for moderate- and low-income households.
In July 2002, DiNatale simultaneously applied for an amendment to the Wallingford zoning regulations to create a new Housing Opportunity District-Multi-Family ("HOD-MF") zone, and for a zone change for the Property to the proposed HOD-MF zone. The purpose of the amendment was to create an affordable housing district that permitted multi-family housing, with price-restricted units, for sale in a common interest ownership community. The HOD regulation drafted and adopted for the Olde Oak Village project only permits single-family detached housing.
In accordance with C.G.S. Section 8-30g(b)(1) and Wallingford Zoning Regulations, Section 10.4C, R20, DiNatale submitted a conceptual site plan and preliminary cost plan in support of his application. The two-bedroom units were proposed to be sold at $97,500 and $143,750 respectively for the 60 percent and 80 percent income levels.
On August 12, 2002 the first public hearing was held with regard to the DiNatale application. The Commission raised several questions about the layout of the conceptual site plan, and the height of the buildings.
In response to the Commission's concerns, DiNatale made several changes in the proposal. He removed all of the units from the flood plain, lowered the building height, and inserted six three-bedroom units, including two that would be deed restricted at affordable rates and sell for $106,250 and $168,750 at the 60 and 80 per cent median income levels respectively.
The second public hearing was held on September 9, 2002 and then continued to October 16, 2002. The commissioners questioned how a prospective purchaser could afford the proposed twenty per cent down payment. At the public hearing on October 16, 2002, the Commission closed the public hearing and voted to deny both the zone change and the amendment to the regulations. For the amendment to the zoning regulation, the Commission offered the following seven reasons for denial: a) inconsistency with the neighboring HOD development; b) increased density above the existing HOD zone; c) inadequate parking detail; d) no need to change the existing HOD regulation; e) difficulty with "judging" the cost plan; f) the "design aspect" of the plan, including orientation of the units; and g) all information discussed and distributed at the meetings. With respect to the zone change application, the Commission based the denial on all of the same reasons as the denial of the regulation amendment as well as the fact the "the Commission denied the creation of the regulation as submitted."
Notice of the Commission's denial was published in the Meriden Record-Journal on October 21, 2002. On October 30, 2002 DiNatale commenced the instant appeal which was served upon the Chairman of the Wallingford Planning and Zoning Commission and Town Clerk for the Town of Wallingford on October 31, 2002 and filed with the Superior Court for the District of New Britain on November 13, 2002. On February 27, 2004 the parties appeared before this Court for oral argument. The plaintiff filed a motion to substitute the name of the plaintiff from Pasquale DiNatale, who was the contract purchaser of the property at the time of the application and when the appeal was filed, to Juniper Ridge Associates L.L.C., which is a Connecticut Limited Liability Corporation, of which DiNatale is the sole member, and which subsequently took title to the property in question. The Court, absent objection, granted the plaintiff's motion, so that the correct caption of the case should now read Juniper Ridge Associates, L.L.C. v. Wallingford Planning and Zoning Commission.
The parties also filed motions for the Court to view the premises, although at oral argument both parties indicated that they filed the motions only in the event that the Court felt that a site visit was necessary. The Court, upon review of the record, court file, and the parties' briefs, does not find that a site visit is necessary and therefore, denies both motions to view the property.
II. JURISDICTION A. Aggrievement
Connecticut General Statutes Section 8-8 governs appeals taken from a Planning and Zoning Commission to the Superior Court. A statutory right to appeal may be used only in strict compliance with the statutory provisions by which it is created. Testa v. Waterbury, 55 Conn. App. 264, 268, 738 A.2d 740 (1999). "Pleading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a Plaintiff's appeal." Jolly v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). "In the case of a decision by a zoning commission an aggrieved person includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." General Statutes Section 8-8(a)(1). Pursuant to Connecticut General Statutes Section 8-30g(b) any person whose affordable housing application is denied may appeal such decision pursuant to the procedures of the aforementioned section. Thus, "under Section 8-30g(b) only an affordable housing applicant may initiate an appeal from a decision of a commission." Ensign Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 267, 715 A.2d 701 (1998). Said section further provides that, except as otherwise provided in this section, appeals involving an affordable housing application shall proceed in conformance with the provisions of said Sections 8-8, 8-9, 8-28, 8-30 or 8-30a, as applicable. Thus, it is clear that aggrievement must be shown in an affordable housing appeal as the reference to Section 8-8 would indicate. TN Associates v. Town of New Milford Planning and Zoning Commission, Superior Court, Judicial District of New Britain, Docket #492236 (November 10, 1999) (Holzberg, J.).
Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected. We traditionally have applied the following two-part test to determine whether aggievement exists: (1) does the allegedly aggrieved party have a specific, personal and legal interest in the subject matter of a decision and; (2) had this interest been specially and injuriously affected by the decision. Gladysz v. Planning and Zoning Commission, 256 Conn. 249, 255-56 (2001). The plaintiff has met the burden of pleading and proving aggrievement. McNally v. Zoning Commission, 255 Conn. 1, 6, 621 A.2d 279 (1993).
There is no question that Juniper Ridge Associates L.L.C., as the owner of the property, is an aggrieved party. Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308 (1999). Further, Mr. DiNatale, as the contract purchaser of land, had sufficient standing to commence the appeal. RR Pool and Home v. Zoning Board of Appeals, 43 Conn. App. 563, 570 (1996).
B. Timeliness and Service of Process
Pursuant to Connecticut General Statutes Section 8-8(b) as amended by Public Act No. 01-47, an appeal shall be commenced by service of process within fifteen days from the date that the Commission's Notice of Decision is published. Further, it shall be commenced by leaving the process with, or at the abode of the Clerk or Chairman of the Commission, and with the Clerk of the municipality. See General Statutes Section 8-8(f), as amended by Public Act No. 01-47. The plaintiff served process on October 31, 2002 on the Town Clerk for the Town of Wallingford and on the Chairman of the Planning and Zoning Commission for the Town of Wallingford. The legal notice of the denial was published on October 21, 2002. This appeal, therefore, is timely and the proper parties were served, pursuant to Connecticut General Statutes Sec. 8-8(e), and 8-30(g). For Appeals brought pursuant to Connecticut General Statutes Section 8-8 and hence, Section 8-30g, the citation is analogous to the writ used to commence a civil action and directs a proper officer to summon the agency whose decision is being appealed. Tolly v. Department of Human Resources, 225 Conn. 13, 18-19, 621 A.2d 719 (1993). The file contains a proper citation.
III. STANDARD OF REVIEW
In Christian Activities Council v. Town Council, 249 Conn. 566 (1999), The Connecticut Supreme Court altered several years of case law that had developed under Section 8-30g holding that the words "sufficient evidence" contained in the first prong of the burden of proof criteria were also applicable to the second, third, and fourth prongs. Thus, the Supreme Court effectively held that a commission was able to satisfy its burden of proof under Conn. Gen. Stat. Section 8-30g(c) merely by pointing out evidence in the record that was "less than a preponderance of the evidence, but more than a mere possibility." The Legislature responded to the decision by inserting a period after the first prong of the statute, this severing the connection between the words, "sufficient evidence" and the second, third, and fourth prongs of the burden of proof
In its Quarry Knoll II Corp. v. Planning and Zoning Commission of Greenwich, 256 Conn. 674 (2001), decision, the Supreme Court overruled Christian Activities Council and accepted the legislature's clarification of the burden of proof. The Court noted that the original intent of Public Act 89-311 was that "the normally applicable presumption of regularity that applies to municipal enactments would not apply in Affordable Housing Appeals . . ." and thus a fundamental purpose of the affordable housing statute was to eliminate this deference to commission judgments. Quarry Knoll, 256 Conn. at 716.
The Court summarized the court's duty on appeal in the following manner:
Under Section 8-30g(c)(1)(A), the court must determine . . . whether the commission has shown "that its decision is supported by sufficient evidence in the record." Under subparagraphs (B), (C), and (D) of the statute, however, the court must review the Commission's decision independently based upon its own scrupulous examination of the record. Therefore, the proper scope of review regarding whether the commission has sustained its burden of proof, namely that its decision is based upon some substantial public interest; the public interest clearly outweighs the need for affordable housing; and there are no modifications that reasonably can be made to the application that would permit the application to be granted requires the court, not to ascertain whether the Commission's decision is supported by sufficient evidence but to conduct a plenary review of record, in order to make an independent determination of this issue.
As a result of this development of the statute, the current rules for analyzing a commission's burden of proof pursuant to C.G.S. Section 8-30g are as follows:
1. The statute is remedial, and its purpose is to assist property owners in overcoming local zoning regulations that are exclusionary or provide no real opportunity to overcome arbitrary or local limits, and to eliminate unsupported reasons for denial. See West Hartford Interfaith, 228 Conn. At 508-12.
2. The statute requires the Commission to state its reasons and analysis in writing. Christian Activities Council, 249 Conn. At 576.
3. The Commission, in its denial resolution and its brief, must discuss, with references to the record, how each of its reasons for denial satisfies the criteria stated in the statute. See Quarry Knoll, 256 Conn. At 729-31. CT Page 3213
4. The statute eliminates the traditional judicial deference to commission factual findings and regulatory interpretations for all types of zoning or planning applications, including zone changes. See West Hartford Interfaith, 228 Conn. At 509 ("we construe the language of Section 8-30g to apply to every type of application filed with a commission in connection with an affordable housing proposal").
5. Regarding the statutory criterion of a "substantial public interest in health or safety," the commission must identify the type of harm that allegedly will result from approval of the application and the probability of that harm. See Kaufman v. Zoning Comm'n, 232, 122, 156 (1995).
6. The statute requires the Court to conduct an independent examination of the record and to make its own determination with respect to the second, third, and fourth criteria of subsection (g). See Quarry Knoll, 256 Conn. At 727. It is incumbent upon the Commission to first establish the correctness of its decision. If demonstrated it is then incumbent upon the Court to conduct a plenary review pursuant to the last three prongs of the statute.
IV. DISCUSSION
There is a need for affordable housing in Wallingford. Only 5.65 percent of the Town's 17,306 housing units are governmentally-assisted or subject to binding long-term price restrictions. Moreover, the vast majority of Wallingford's governmentally-assisted units are either reserved for the elderly or are single-family detached homes. The affordable housing statute suggests a target of ten percent of a town's housing units that should be classified as affordable housing. Considering this background, the Court will now consider the Commission's decision with regard to each explanation given. Each explanation will be examined in light of the scope of review discussed in the prior heading.
A. Inconsistency with Neighboring HOD Development
The Commission argues that the denial should be upheld because C.G.S. 8-2 allows it to consider the "character of the neighborhood." On the contrary, the record in this case demonstrates that a multi-family development would be compatible with the surrounding development. The property is already bordered by several different uses. The Oakdale Theater, to the north, is a large entertainment complex. To the east, there is a large area for office space. Further, the Olde Oak Village development, which contains single-family houses, is in a cluster residential zone which would be compatible with a small multi-family use. There is insufficient evidence to justify the commission's decision that multi-family usage would have a detrimental impact on the area.
Connecticut Courts have long held that consistency with surrounding zoning does not rise to the level of a substantial public interest in health or safety. "A general concern about the character of the proposed neighborhoods pursuant to a proposed zoning amendment, without specific evidence of the impact of those characteristics on a particular and substantial public interest, is not sufficient to deny an affordable housing application." Avalonbay Communities, Inc. v. Wilton Planning and Zoning Comm'n, No. CV00 0500917, 2001 WL 1178638 at 9 Conn.Super. (Sept. 6, 2001) (Munro, J.). There is no evidence in the record that would support a finding that a substantial public interest would be affected by the approval of this application.
B. Increased Density Above the Existing HOD Zone
The Commission offered no evidentiary basis for its concern about a "higher" density. In addition, density alone, without a showing of the resulting impact of that density, does not constitute a substantial public interest that outweighs the need for affordable housing. See West Hartford Interfaith Coalition, 228 Conn. at 516-17. Without sufficient evidence to support its concern about increased density and an inability to show that the proposed density itself constitutes a substantial public interest, this reason for denial cannot be sustained.
C. Inadequate Parking Detail
The proposed HOD-MF amendment satisfied the Town's existing regulations for parking. The Town did not dispute the adequacy of the amount of the parking. Instead, it disliked the location of the parking. This parking issue is a site plan issue. It fails to constitute a substantial public interest in health and safety. There is no sufficient evidence in the record to support this reason. See also AvalonBay Communities, Inc. v. Town Planning and Zoning Commission of Orange, CV 98 0492246, WL 1289060, at 12-13 (Conn.Sup. August 12, 1999). The Commission has not met its burden of proof with respect to this denial.
D. No Need to Change Existing HOD regulation
The town does not have a zone that permits affordable multi-family housing, because the current regulation only permits single-family uses. C.G.S. Section 8-2 mandates that municipalities develop regulations that "promote housing choice and economic diversity, including housing for both low and moderate income households." The Commission has not met its burden of showing why the proposed regulation would adversely impact some substantial public interest that outweighed affordable housing needs. The preference of a Town does not relieve the Court of weighing the town's justification against the adverse impact that the plaintiff would suffer by the denial. See Nichols, 1995 WL 356759, at 4. This reason for denial is rejected in light of the Commission's obligation under the statute.
E. Difficulty Judging the Cost of the Affordable Housing Plan
The Commission cannot point to sufficient evidence in the record that demonstrates why the difficulty in judging the cost of the plan justified the denial, nor can it show that its policy preference constitutes a substantial public interest that outweighed the need for affordable housing. The 20 per cent down payment in the application complied with existing state regulations established in Conn. Agencies Regs. Section 8-30-8(c). The reason for denial evinced an expression of opinion by the Commission without sufficient evidence. Such an expression of opinion does not rise to the level of sufficient evidence to sustain its burden of proof. River Bend, 2002 Conn.Super.Lexis 4212, at 36. In addition this concern does not rise to the level of substantial public interest. West Hartford Interfaith, 228 Conn. At 520;
F. Design Aspect of Plan
The reason for this denial is not supported in the record. The revisions reflected reasonable responses to the Commission's concerns. The Commission has not articulated what public interest it is seeking to protect by expressing its general disagreement with the "design aspect" of the community. The courts have noted that such a site-specific concern is "not valid as a basis for denying the zone amendment application." River Bend, 2002 Conn.Super.Lexis 4212, at 28. Thus, this reason for denial must be rejected.
G. All information Discussed and Distributed at the Meetings
There is insufficient evidence to support this conclusion. The basis for denial is far too general to be sustained.
H. Zone Change Denial
The Commission stated all of the prior reasons for the zone change denial, and then added that the zone change must be denied because the Commission denied the creation of the regulation as submitted. Afortori, if the reasons for denial were not sufficient, the regulations must be approved and the zone change must also be approved.
V. CONCLUSION
The record does not support any of the Commission's reasons for its denial. Most, if not all, of the Commission's reasons have already been rejected by Connecticut Courts. This Court finds that the Commission has not met its burden of proof. Accordingly, the appeal is sustained. The Wallingford Planning and Zoning Commission is hereby ordered to approve the application for an amendment to the zoning regulations and to re-zone the subject property to HOD-MF.
The Court
Dennis Eveleigh, Judge