Opinion
No. CV 02-0520497S
September 7, 2004
MEMORANDUM OF DECISION
The plaintiffs, Landmark Development Group, LLC (hereafter Landmark) and Jarvis of Cheshire, LLC, (hereafter Jarvis) appeal to this court from a decision by the defendant East Lyme denying their application for a change of zone for property to be located within an "affordable housing district" and amendments to the zoning regulations to establish such a district. For the reasons set forth in detail below the court concludes that defendant commission has demonstrated that there is substantial evidence in the record supporting its decision. Further the court finds, from its independent and detailed review of the record, that defendant commission's decision is based on the substantial public interests in preserving the Oswegatchie Hills area as open space, protection of the public's health due to the limited facilities for water and disposal of sewage, the adverse traffic conditions; to protection of area waters from the fallout of dense development on the slopes and thin top soil of the area as well as protection of the Oswegatchie Hills' fragile ecosystem. The commission properly concluded that these public interests clearly outweighed the need for affordable housing at this location. Because the reasons are site-specific, there were no reasonable changes that could have been made to accommodate the other adversely impacted public interests found. The court therefore dismisses this affordable housing appeal.
I FACTS A. Procedural History
This action was commenced by Landmark and Jarvis on October 29, 2002 as an appeal from the Town of East Lyme Zoning Commission which denied the plaintiffs' modified applications for a zone change and proposed amendment to the East Lyme zoning. regulations by notice in the East Lyme Tymes on October 17, 2002. The property involved in this appeal (hereafter the "property") consists of approximately two hundred and thirty-six (236) acres of land in the Oswegatchie Hills area of East Lyme. Generally speaking, the parcel of land in question is a steep, rocky and largely undeveloped expanse of land bordered by the Niantic River on the east; Interstate Route 95, Latimers Brook and residences on Calkins and River Roads to the north; residences and other large undeveloped tracts to the west; and Smith Cove, residences and other undeveloped portions of Oswegatchie Hills to the south. The tract has vistas of the Niantic River and of Long Island Sound. It is a rugged hilly wilderness and one of the last undeveloped areas in the Town of East Lyme. It consists of two larger tracts of land and several smaller parcels. A portion of the property is designated as "proposed open space" in the Town's Plan of Development, but some is not. The property is presently located in a low-density, single-family residential zone, now requiring three-acre lots. Neither municipal water nor a sewer system are available to the site nor are there any plans to extend such services to the Oswegatchie Hills area in the foreseeable future.
Return of Record, Exhibit 2.
Return of Record, Exhibit 61, Tab A.
In December 2001, Landmark simultaneously applied for an amendment to the East Lyme zoning regulations to create a new Section 32 in the zoning regulations titled "Affordable Housing District" and for a change of zone of the property to a new "Affordable Housing District." The regulations would permit a maximum density of 10 units per acre, 50% lot coverage with no setbacks from waterways nor provision for open space. The application proposed that the site be served by municipal water and sewer. 30% of the dwelling units would be required to be deed restricted to ensure affordability. In addition, the plaintiff included an affordability plan to govern the administration of its commitment, as required by statute, to provide affordable housing to the property.
Hearings were held on the initial applications on April 25, May 2 and May 9, 2002, during which the commission considered testimony presented by the applicant and others including the town planner, the senior coastal planner of the Department of Environmental Protection, who presented the reports of the East Lyme Planning Commission and the DEP, planning consultants, the East Lyme Water and Sewer Commission, municipal officers, concerned citizens and residents. It also considered reports and written statements. On June 26, 2002, the commission denied the application. Notice of its decision was published in the New London Day on July 3, 2002.
Return of Record VII.
Return of Record IX.
B. Reasons for Denial
The Commission duly articulated the reasons for its denial of the applications. It cited a total of five reasons: (1) the proposal was incompatible with the local and state plans of development for the area, which sought to preserve and protect Oswegatchie Hills as open space; (2) the site was inadequate as to the available infrastructure for water and sewer at a capacity to make the proposed dense development feasible, (3) the development at the density proposed could result in substantial damage to the ecosystem of Long Island Sound and the Niantic River; (4) similar damage would occur to Latimers Brook in the North; and (5) the volume of traffic generated by development at the proposed density levels would cause unsafe conditions for motorists and exceed current roadway capacity because of restricted access to the site. The commission stated that denial was necessary for four related reasons: (1) to protect the public's substantial interest in the preservation of open space; (2) to protect the public's health due to the limited facilities for water and the disposal of sewage; (3) to protect public safety as to traffic conditions and; (4) to protect the area waters from the fallout of dense development on the steep slopes and thin top soil of the Oswegatchie Hills and generally to protect the Oswegatchie Hills' fragile ecosystem which could not be properly insulated from the effects of such dense development. Based on these reasons, the commission also denied the amendments to the zoning regulations. No appeal was taken from this decision.
Return of Record VII.
C. Modified Proposal
On July 17, 2002, Landmark submitted a modified proposal, which sought to address the reasons for denying the first application. The revised application reduced the maximum allowable density, proposed that onsite sewer and water by community systems could be used instead of municipal services, added 100-foot setbacks from several waterways, decreased the maximum lot coverage from 50% to 30% and added a requirement of a minimum of 20% open space and changed the name of the proposed "Affordable Housing District" to "Affordable Housing Conservation District."
Return of Record, Exhibit AA. The defendant correctly notes that because the application was filed within 15 days of the publication of the notice of denial, the application is treated as an amendment to the previous application. § 8-30(g)(h).
Return of Record 63 contains a full summary of the changes made.
Additional public hearings were held on September 19, 26 and 30, 2002. Evidence was again presented by the applicant, planning consultants, ecologists, traffic engineers and concerned citizens. Additional reports were submitted by the planning commission and the DEP. A total of 50 new exhibits was presented and accepted by the commission. On October 3, 2002, the commission determined that the modifications did not address the fundamental site-specific problems revealed by the initial application and denied the revised application. The commission again listed the five reasons previously given for denying the application, the commission stated the adoption of any affordable housing application would include that public water and sewer be available to the site, and it stated its intention to adopt such provisions. Notice of the commission's decision was duly published in the East Lyme Tymes on October 17, 2002 and on October 28, 2002, Landmark commenced the present appeal.
Return of Record XVII.
Return of Record XVI.
II. JURISDICTION A. Aggrievement and Jurisdiction
In order to have standing to bring an administrative appeal, a person must be aggrieved. New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals Health Care, 226 Conn. 105, 120, 627 A.2d 1257 (1993). Pleading and proof of facts that constitute aggrievement within the meaning of the statute are prerequisites to the trial court's subject matter jurisdiction over an administrative appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). Pursuant to Connecticut General Statutes § 8-30g(b), any person whose affordable housing application is denied may appeal such decision pursuant to the procedures of the section. Thus, "under § 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). In addition, the section states, "except as otherwise provided in this section, appeals involving an affordable housing application shall proceed in conformance with the provisions of said Section 8-8, 8-9, 8-28, 8-30 or 8-30a, as applicable." It follows, therefore, that aggrievement must be shown in an affordable housing appeal as the reference to § 8-8 indicates. Trimar Equities, LLC v. Planning Zoning Board, 66 Conn.App. 631, 785 A.2d 619 (2001).
"Aggrievement falls within two broad categories, classical and statutory." (Internal quotation marks omitted.) Cole v. Planning Zoning Commission, 30 Conn.App. 511, 514, 620 A.2d 1324 (1993). Each is an aspect of standing. "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 129, 836 A.2d 414 (2003). A plaintiff may prove aggrievement "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). The deeds and evidence introduced at the hearing established that the second named plaintiff, Jarvis of Cheshire, LLC has owned a portion of the property in question since October 2000, and is therefore statutorily aggrieved.
Plaintiff's Exhibit A, certified copy of a deed recorded in Volume 510 at page 289 of the Town of East Lyme Land records, dated October 2, 2000, was admitted at the court hearing.
Not raised by either party is whether Jarvis is an applicant who may appeal pursuant to 8-30(f). The court, having found from the evidence that Landmark had permission to act in Jarvis's stead, will treat each as an applicant for these purposes.
Landmark's status is, however, different and does require the court to consider the issues of classical aggrievement.
The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . .
(Citations omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003).
From the evidence, the court concludes that Sargent's Head Realty Corporation owns the balance of the parcel comprising approximately 200 acres. It is uncontested that Landmark had the agreement of both Sargent's and Jarvis to act on their behalf in filing the application. Landmark owns none of the land in question, but has a signed purchase and sales agreement with Sargent's Head Realty. The court finds that the parties to the agreement believe it to be in effect and binding. Each acknowledges that the effective existence of the contract is at the sole discretion of the plaintiff. The court concludes, despite the discretionary aspects of the contract, that it need not determine the contract is fully legally enforceable. "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights." Bethlehem Christian Fellowship v. Planning Zoning Commission, 58 Conn.App. 441, 443, 755 A.2d 249 (2000). See also DiBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 588 A.2d 244 (1991). The court finds that Landmark's interest in this contract satisfies the first prong of classical aggrievement, that it has a specific interest in the subject mater before the court.
Defendant's Exhibit A, the purchase and sales contract with significant provisions (not relevant to the court's consideration) redacted, but including an amendment, providing that proceeding to an affordable housing application and acquisition and development of the land for such purpose are in the purchaser's sole discretion. See also language regarding inverse condemnation on the fourth from the last page of the exhibit. This exhibit was admitted at the court hearing.
The court also concludes that the second prong of classical aggrievement has been met by Landmark. Nonetheless, defendant urges the court to conclude that the second prong of classical aggrievement has not and cannot be established by Landmark. Landmark has not yet been harmed by the Commission's actions, it claims. In Wisniowski v. Planning Commission, 37 Conn.App. 303, 312, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995), the court specifically held that the affordable housing statute "does not contemplate the denial of an affordable housing subdivision application on the ground that it does not comply with the underlying zoning of an area." As noted in the Commission's brief, stated another way, if the plaintiff Landmark returned with another site plan and a specific application, the Commission would not be able to deny the application because of incongruence with the underlying zone.
The fundamental difficulty with this analysis is that it would require each affordable housing applicant to file a specific affordable housing application, which the statute itself does not contemplate. In its definitional sections, § 8-30g(a)(2), the statute states "`Affordable housing application' means any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing." In § 8-30g(f) it grants to any person whose affordable housing application is denied, the right of appeal pursuant to § 8-8. Interpreting the statue to permit appeals only for actual specific site plan applications would be to effectively delete these more generous provisions of the statute.
In Kaufman v. Zoning Commission, 232 Conn. 122, 140, 653 A.2d 798 (1995), where the commission asked the court to interpret the statute to include such a requirement the court declined. The court, after reviewing the statute, the legislative history and the remedial policies of the affordable housing statute, concluded: "[W]e can discern no policy reason why site plans must be submitted to the commission as part of the zone change process . . ." While Kaufman did not concern itself with aggrievement, the reasons for its holding are equally relevant in the aggrievement context.
In further support of its claims that the plaintiff cannot meet the second prong for demonstrating classical aggrievement, defendant cites the case of Jordan Properties, LLC v. Old Saybrook Zoning Commission, Superior Court, Docket No. CV 01-0508892S, judicial district of New Britain at New Britain, (November 10, 2003, Tanzer, J.), for the proposition that "[m]ere denial of an application does not constitute aggrievement." While it is correct that the case does so state, it quotes this language from the case of Fletcher v. Planning and Zoning Commission, 158 Conn. 497, 502, 264 A.2d 566 (1969), a case not involving the affordable housing statute. In addition, a careful reading of Fletcher reveals that there, the court concluded that the subordinate acts found by the trial court did not support the trial court's conclusion of specific financial harm. The law regarding classical aggrievement has continued to evolve since 1969 and no longer requires a showing of specific financial harm, but merely the "possibility" of such harm. See Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. at 539. This court concludes from the evidence and due to its contractual interest in the property, Landmark has demonstrated the "possibility" of specific and unique harm by denial of its application. It is classically aggrieved by the action of the Commission. Further, because the court has concluded both applicants are aggrieved, this court has jurisdiction to hear this appeal.
B. Timeliness and Service of Process
Pursuant to Connecticut General Statutes § 8-8(b), 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 § 8-8(f). Notice of the commission's denials of the zone change and of the proposed amendments were originally published in the East Lyme Tymes on July 3, 2002 and after modified applications were filed, on October 17, 2002. The plaintiff served the commission on October 29, 2002, by leaving copies of the appeal papers with Lesley A. Bliss, Assistant Town Clerk at the East Lyme Town Hall and with Mark Nickerson, Chairman of the East Lyme Zoning Commission on the same date. (Sheriff's Return.) The appeal was filed with the clerk of the superior court for the New London judicial district at New London on November 5, 2002. This appeal, therefore, is timely and the proper parties were served, pursuant to Connecticut General Statutes §§ 8-8(e) and 8-30(g).
III DISCUSSION A. Preliminary Considerations (1) Landmark's application is related to an "affordable housing development"
Before commencing a review pursuant to the standards articulated by statute and case law, the defendant commission has raised a preliminary issue, and that is whether or not the applications filed by Landmark are affordable housing applications. For the reasons detailed below the court concludes that they are such applications, given the statute's expansive use of the term "application" and its remedial effect. The commission correctly states that the proposed regulations to create the "affordable housing district" are site specific, that is to say the creation of the district cannot be severed from the site chosen by the applicant. Because all other land in East Lyme other than the approximately 236 acres in question are excluded from these proposed regulations, the commission maintains that the applicant was required to submit a site plan to actually develop the parcels of land in Oswegatchie Hills under consideration. The defendant commission argues that pursuant to § 8-30g, as amended, Landmark's application does not qualify as such an application. The argument in outline form is asserted as a special defense in their answer and special defense to the complaint, dated June 2, 2003. It asserts that even Landmark admitted its procedure was highly unusual in the context of affordable housing applications as approval of the amendments and the zone would not result in any housing development, a crucial requirement of the statute.
Landmark claims that it was attempting to work with the commission to establish certain ground rules before investing in detailed site development investigations. Its goal was to submit a specific site development plan after the change of zone and regulations were approved and that such plan would be based on the resources and limitations determined through detailed site investigation. It further asserts that the issues now raised were previously raised in a motion to strike the complaint, which motion was denied on July 17, 2003 (Levine, J.). In addition, Landmark asserts that since the commission treated the application as an affordable housing application throughout the administrative process, it should, as a matter of equity, be estopped from now asserting that the application cannot be treated as such. It points out that the commission for the first time in its denial raised the issue, after all opportunity for the plaintiff to respond had passed.
Return of Record, Exhibit VI at pages 224-25.
Return of Record Exhibits II, V at page 3, and VI.
Turning now to the statute, it defines an "affordable housing application" as any application in connection with an affordable housing development. An affordable housing development is further defined as "a proposed housing development." It is the case that no specific proposed site plan was submitted by Landmark other than a schematic site plan, about which Landmark stated that "the final site plan could be radically different." In Kaufman v. Zoning Commission, 232 Conn. 122, 131-48, 653 A.2d 798 (1995), the court concluded that an actual site plan was not required to be filed pursuant to the statute. The changes and amendments to the statute since Kaufman was decided permit, but do not require, a commission, by regulation to require the filing of a conceptual site plan. East Lyme had no such regulatory requirement. Given the expansive nature of the affordable housing statute's definition of the word "application" as well as its remedial propose, the court concludes that in this instance, no site specific plan was required and Landmark's application is an "affordable housing application in connection with an affordable housing development."
See Paragraph 15 of the complaint.
See 8-30(g)(c) which states that "Any commission, by regulation, may require that an affordable housing application seeking a change of zone shall include the submission of conceptual site plan describing the proposed development's total number of residential units and their arrangement on the property and the proposed development's roads and traffic circulation, sewage disposal and water supply."
(2) East Lyme is subject to the provisions of the Act
A further preliminary issue concerns affordable housing in East Lyme. The court concludes, from the record, that East Lyme has an undeniable need for additional affordable housing. Only 4.8% of East Lyme's housing stock qualifies as affordable and most of it serves as elderly housing. In addition, housing pressures in the area are such that there is a decreasing housing vacancy rate. The affordable housing statute together with its appeal procedure applies to all municipalities where affordable housing stock is less than 10% of the total. See Connecticut General Statutes § 8-30g(k).
Return of Record Exhibit 4, Exhibit II at page 11.
B. Standard of Review
In Quarry Knoll II Corp. v. Planning and Zoning Commission of Greenwich, 256 Conn. 674, 780 A.2d 1 (2001), the Supreme Court has articulated the current standard of review applicable to affordable housing matters and overruled that portion of Christian Activities Council v. Town Council, 249 Conn. 566 (1999), which dealt with the standard of review. In Quarry Knoll the court relied on the legislature's recent clarification of the burden of proof through adopted statutory changes. 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 deference to commission judgments. Quarry Knoll, 256 Conn. at 716. The Court summarized the court's duty on appeal in the following manner:
[T]he court's function in an appeal under Section 8-30g is to review the record made in the zoning proceeding. Under 8-309(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 the protection of 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 the record, in order to make an independent determination on this issue. At page 729.
As noted in the case of Juniper Ridge Association v. Wallingford Planning and Zoning Commission, Superior Court, Docket number, CV 02-0518845S, judicial district of New Britain at New Britain, (March 8, 2004, Eveleigh, J.):
the current rules for analyzing a commission's burden of proof pursuant to § 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 Coalition, Inc. v. Town Council, 228 Conn. 498, 508-12, 636 A.A.2d 1342 (1994).
2. The statute requires the Commission to state its reasons and analysis in writing. Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 576, 735 A.2d 231 (1999).
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.
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"). CT Page 13248
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 ham. See Kaufman v. Zoning Comm'n, 232 Conn. 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.
C. Review of the Decision of the Commission (1) Preservation of Open Space
The first of the five reasons the commission stated for denial of the application was the preservation of the area as open space. The commission concluded that the proposal was incompatible with the local and state plans of development for the area, which all sought to preserve and protect Oswegatchie Hills as open space. The record reflects a long history of efforts to preserve this area for such purposes beginning with the preparation of the comprehensive plan for the town in 1967. Some years later, in 1974, the Conservation Commission along with the Southeastern Connecticut Regional Planning Agency developed an open space acquisition plan including this area. In a 1977 report by the town's Land Use and Natural Resources Subcommittee of the Planning Commission, the committee recommended that this area should be purchased outright by the Town or protected by easement against development. In 1987, the first selectman sought assistance from local state representatives to secure legislation and/or appropriations to preserve the areas. East Lyme's 1987 revision to its plan of development again lists the area as a target for preservation. The State legislature in 1987 designated the area as a "Conservation Zone" and established the Niantic River Gateway Commission, which has as its purpose development of minimum standards to preserve the character of the area.
Return of Record 6. The plan specifically states that "[t]he Oswegatchie Hills area represents a scenic hilltop with vistas of the ocean and the Niantic River worthy of protection. The area from the Connecticut Turnpike south to Pennsylvania Avenue and from the banks of the Niantic river to the crest of Oswegatchie Hills should be maintained as open space to provide a space for passive recreation consisting of hiking trails, picnic areas, nature paths and camping areas."
Return of record 6, 16, and 17.
In 1990, the area was rezoned for lower density as a rural residential (RU-120) zone, requiring a three-acre minimum lot size. As true today as it was at that time, the first selectman wrote: "If ever there was a place that nature never intended to be developed, the east slope of the Oswegatchie Hills is that place. Nowhere else is the land less suitable for construction, the natural resources on and adjacent to the land more susceptible to damage, and the public benefits to be gained from preservation greater." Efforts to later change the zoning to require five-acre building lots failed, after a court determination that there was improper publication of the effective date of the zone change. Wilson v. Zoning Commission, 77 Conn.App 525, 823 A.2d 405 (2003).
Return of Record 6.
In addition to local preservation efforts, there was also substantial evidence that the application was inconsistent with state and regional plans of development. The DEP reported that the application was inconsistent with the Coastal Management Act, the Municipal Coastal Program and the Harbor Management Plan as well as with the Town of East Lyme Plan of Development. The Southeastern Connecticut Council of Governments stated that the zone change was inconsistent with the regional plan of conservation and development of 1997, which had classified the areas for low-density development and conservation. Area residents were opposed, with over 1700 signatures collected on various petitions to preserve the Oswegatchie Hills area.
Return of Record 10.
The plaintiff argues that despite the availability of a grant of $1 million dollars of state aid in 1987, the Town has never seen fit to acquire the land for preservation. This plus the Commission's other actions, it claims, demonstrate that reference to the plan to maintain this area as open space is but a sham. The court does not agree. The lengthy history of preservation efforts alone make it apparent that the area has been under consideration for conservation due to its unique features for a long time. In addition, it is precisely some of the site's unique features, its fragile soils and rocky slopes as well as any development's impact upon the water resources which make it physically less suitable for dense development than other areas of the town.
In Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 597, 735 A.2d 231 (1999), the Supreme Court found that preservation of open space can, in the appropriate circumstance, constitute a substantial public interest that may supercede the public interest in the creation of public housing. It held that the town agency must establish that "it reasonably could have concluded, based on the record evidence that (1) that there was some quantifiable probability — more than a mere possibility but not necessarily amounting to a preponderance of the evidence — that the legitimate preservation of open space could have been harmed by the zone change, and (2) that the preservation of open space would not be protected if the zone change were granted." At page 597.
Plaintiff seeks to distinguish Christian Activities from the facts before the court by noting that in that case, there was a large tract of land owned by a public water company that had always been marked as open space and which would not have been at risk for development while so owned. It notes that the town could not have condemned such public land for open space use, whereas the Town of East Lyme could condemn that portion of the Oswegatchie Hills that it sought to preserve. But condemnation as a potential remedy is not relevant to the inquiry before the court. In the record before the court, there is substantial evidence that the Oswegatchie Hills area, which local, regional and state authorities had designated as worthy of preservation, would be harmed by the zone change and that the resource could not be protected if this zone change, tied as it is to the tract of land in question, were granted. The court further finds, pursuant to Connecticut General Statutes § 8-30g that the Commission has sustained its burden of proof that there are no modifications to this site-specific application with the general density of development it proposes, which could accommodate the public interest in open space. Further, the record supports the commission's finding that the public interest in preserving this area as potential future open space outweighs the public interest in affordable housing, given the nature of this site.
(2) Municipal Water and Sewer
The second reason given for the denial of the application was the site's inadequacy as to the available infrastructure for water and sewer at a capacity to make the proposed dense development feasible. The first application filed by Landmark proposed that the development would be served by municipal sewer and water. The Commission found that the site lacked the infrastructure to provide such water supply and sewer capacity. The director of Public Works reported that the availability of such services was restricted. First, the town system did not extend to the site. Second, the town is under a consent order issued by the State Department of Environmental Protection that prevents extension of the water service area. While the town may submit a written request for extension, it must await the Commissioner's written decision prior to enacting any additional ordinances. In addition, when the town identified what areas of the town were to be sewered in 1985, this area was not in the sewer-shed boundary. In 1998, when the town prepared a capacity analysis of its system, it determined that all capacity was accounted for and any expansion would require no services to areas to which sewers were now committed. And although Landmark stated it could connect to the Boston Post Road extension, the Chairman of the Water and Sewer Commission testified that this was not correct. There is substantial evidence in the record that municipal water and sewer service will not be extended to the property.
This reason is intertwined with reasons 1, 3 and 4, which are all tied to the severe development constraints to which the tract is subject, due to its physical characteristics and the bodies of water on which it borders.
Return of Record 6.
Return of Record, IV, and Transcript, pp. 172-74.
The commission determined that since such services were not available, this militated against the proposed zone change and the density of development the application envisioned. Indeed, in the town plan of conservation and development of 1999, a stated objective is that the town "should continue to provide for multi-family housing . . . to meet a portion of the regional need for a variety of housing types available at affordable cost." It recommends that housing sites to be considered should generally be "free of major site development constraints such as wetlands, bedrock, steep slopes and primary aquifers and within the boundaries of or readily connected to the municipal water and sewer service area." Such site development constraints, the court concludes, with the exception of primary aquifers, are all present in the land that is the subject of this affordable housing application. Such development would be contrary to the town plan, as noted by the supervisory sanitary engineer for the water management bureau of the Department of Environmental Protection.
Return of Record 6.
Return of Record 10.
In its modified application, Landmark in the alternative, proposed on-site water supply wells and sewer. The commission found that such systems are rarely allowed by the State Health Department or the Department of Environmental Protection, and only when there is clear evidence that such systems can be supported by the site and function properly.
There is substantial evidence in the record from which the Commission could properly conclude that the site's topography and soil conditions made a community septic system not feasible. The director of the Office of Long Island Sound Programs reported that the modified application was "inconsistent with the policies and standards of the Connecticut Coastal Management Act based on the severe development constraints, the potential for adversely impacted resources and water quality, inconsistent with water dependent use policies, the Towns' Plan of Development, the Municipal Coastal Program and the Harbor Management Plan." In addition, a soil survey of New London County shows severe constraints to such a system in that "[o]ver 60% of the site is encumbered by wetlands and/or steep slopes."
See DEP report of April 24, 2003, Return of Record 10.
Return of Record 62, September 18, 2002, Department of Environmental Protection Report.
Return of Record 6.
Landmark maintains that it is physically possible to connect the property to the public water and sewer and that the Town has excess capacity. Furthermore, it maintains that the nearby Deerfield development was connected to the public sewer in 1992, demonstrating that where the Commission wishes to take such action, it will find the means to do so. It also challenges that there is evidence of fragile soil conditions. It states that it presented evidence that soil conditions on the property were actually favorable for the development of community septic systems. In addition, Landmark claims that there is water available from New London, which could supply this area.
While this court agrees that Landmark presented some evidence of the matters it argues, the question is whether or not there is substantial evidence in the record supporting the commission's decision. As noted in Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993): "the possibility of deriving two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." The court concludes that there is substantial evidence in the record to support the commission's decision.
As to the court's own independent review, there are a number of Superior Court decisions which, in the context of affordable housing appeals, have found limited water and sewer resources to represent "a substantial interest in health safety or other matters which the Commission may legally consider." Greene v. Ridgefield Planning and Zoning Commission, Superior Court judicial district of New Britain at New Britain, Docket No. CV 90-0442131S (January 6, 1993, Berger, J.) ( 8 Conn. L. Rptr. 137), re sewers, see D'Amato v. Orange Planning and Zoning Commission, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 92-0506426S (February 5, 1993, Berger, J.) ( 10 Conn. L. Rptr. 444). Having determined that the Commission has adequately demonstrated that there are limited sewer and water resources for this site and that community systems are not feasible, the court concludes the public's interest in the adequate provision of such services in this instance clearly outweighs the need for affordable housing. Again, because of the site-specific nature of this application, there were no specific modifications that could be made to accommodate these public interests and provide affordable housing at this site.
The court has carefully scrutinized the record concerning the remaining reasons for the denial stated by the commission. The court concludes that the commission has sustained its burden of proof with respect to the remaining reasons articulated. Nonetheless, the court will not discuss these issues in detail, having already determined that two of the reasons cited are clearly and adequately supported by the evidence in the record. As noted in Mackowski v. Planning Zoning Commission, 59 Conn.App 608, 757 A.2d 1162 (2000), citing West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994), "an affordable housing land use appeal, as in a traditional zoning appeal . . . must be sustained if even one of the stated reasons is sufficient to support it."
For all of the foregoing reasons, the appeal is dismissed.
BY THE COURT
BARBARA M. QUINN, Judge