Opinion
LNDCV156058868S
02-25-2016
North Haven Opportunity for Affordable Housing, Inc. et al. v. North Haven Planning and Zoning Commission
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
I
The plaintiffs, North Haven Opportunity for Affordable Housing, Inc. (NHOAH), as the property owner, and TO Design, LLC, as the applicant, appeal a decision of the defendant, the North Haven planning and zoning commission (commission), denying the plaintiffs' June 9, 2014 site plan application for an affordable housing development pursuant to General Statutes § 8-30g. (Return of Record [ROR], Item 1; Items 28-30.) The plaintiffs sought to construct eight rental townhouses in four duplexes on 1.58 acres in a R-40 zone at 518 Clintonville Road in North Haven. (ROR, Item 1; Item 7, p. 2; Item 8, p. 12.) According to the plaintiffs' counsel, all eight units of the proposed development would meet the statutory definition of affordable housing under General Statutes § 8-30g(a)(6) rather than the minimum one-third. (ROR, Item 8, pp. 6-7.)
NHOAH is a non-stock corporation of nine religious organizations.
Section 8-30g applies if less than 10 percent of the dwelling units in the municipality meet the statutory criteria for affordable housing under General Statutes § 8-30g(k). The plan of conservation and development indicates that in 2002 North Haven had 311 units or 3.54 percent of its housing stock that qualified as affordable. (ROR, Item 9, p. 38.) On November 30, 2015 before this court, both counsel stipulated that the figure is 4.8 percent as of 2014.
A public hearing commenced on August 4, 2014, continued on September 8, 2014, and concluded on October 6, 2014. (ROR, Item 8; Item 13; Item 26.) On December 1, 2014, the commission denied the application. (ROR, Items 28-30.) Notice was evidently published in the North Haven Courier on December 11, 2014.
The plaintiffs commenced this appeal on December 23, 2014. The commission filed its answer on October 29, 2015, the return of record on October 30, 2015, and its brief on November 13, 2015. The plaintiffs filed their brief on November 20, 2015, and this court heard the appeal on November 30, 2015, at which time the parties filed a stipulation supplementing the record with a section of the commission's regulations.
II
" Aggrievement is a threshold matter that implicates subject matter jurisdiction, and, therefore, whether raised by the parties or by the court sua sponte, it must be resolved before addressing claims raised on appeal . . . It is axiomatic that [t]here is no absolute right of appeal to the courts from a decision of a [planning and zoning commission] . . . Appeals to the court from [commissions] exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed." (Citation omitted; internal quotation marks omitted.) Eureka V, LLC v. Planning & Zoning Commission, 139 Conn.App. 256, 266-67, 57 A.3d 372 (2012).
General Statutes § 8-30g(f), in relevant part, provides: " Any person whose affordable housing application is denied . . . may appeal such decision pursuant to the procedures of this section . . ." In the commission's brief, it conceded that TO Design, LLC, as the applicant, is aggrieved. See General Statutes § 8-30g(f). On November 30, 2015, Marjorie Dawster, president of NHOAH, testified that NHOAH has owned the subject property since 2011, throughout the administrative process, and owns it presently. Accordingly, this court finds that NHOAH is aggrieved. See Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 527, 119 A.3d 541 (2015) (" [i]t is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner").
III
Review of an affordable housing appeal is governed by § 8-30g. General Statutes § 8-30g(g), in relevant part, provides: " 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]n conducting its review in an affordable housing appeal, the trial court must first determine whether the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record . . . Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted. If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission's decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development." (Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004). " The foregoing determinations present mixed factual and legal determinations, the legal components of which are subject to plenary review . . . [T]he planning and zoning commission remains the finder of fact and any facts found are subject to the 'sufficient evidence' standard of judicial review." (Internal quotation marks omitted.) Eureka V LLC v. Planning & Zoning Commission, supra, 139 Conn.App. 266.
" The record must establish more than a mere possibility of harm to a substantial public interest . . . The record must contain 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)." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 130 Conn.App. 36, 58, 21 A.3d 926, cert. denied, 303 Conn. 909, 32 A.3d 962 (2011).
IV
Based on evidence in the record, the commission has the burden to prove " that the decision . . . and the reasons cited for such decision are supported by sufficient evidence in the record." General Statutes § 8-30g(g). The commission's sole stated reason for denial was, " According to the applicant's own traffic study, 1800 vehicles per day travel well in excess of the speed limit in the area of the proposed development." (ROR, Item 30.) On November 30, 2015 before this court, the commission acknowledged that this traffic concern is the only issue in the case. " [W]here a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision." (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994).
" Section 8-30g obligates a land use agency to make a collective statement of its reasons on the record when it denies an affordable housing land use application . . . That requirement serves to provide 'a clear basis' for a court to review that decision . . . as opposed to reasons that later might be culled from the record." (Citations omitted; internal quotation marks omitted.) Brenmor Properties, LLC v. Planning & Zoning Commission, 162 Conn.App. 678, 691, ___ A.3d ___ (February 2, 2016).
According to the state department of transportation, the design speed on Clintonville Road is 85 percent. It is assumed that 1800 or 15 percent of the vehicles will exceed the forty miles per hour speed limit. (ROR, Item 2, p. 2; Item 26, p. 24.)
The issue of sight line distance was raised by the chief of police. (ROR, Item 3; Item 5; Item 8, pp. 7-9.) In response, the plaintiffs moved the driveway to comply with state department of transportation guidelines. While discussed at the last public hearing, the commission appeared satisfied with the resolution as it was not stated as a specific reason for denial. (ROR, Item 13, pp. 9-11; Item 15; Item 26, pp. 29-31.)
" [T]he consideration that applies to zoning applications is not the overall volume of traffic, but whether the increase in traffic will cause congestion." Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 73 Conn.App. 442, 470, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002); see also CMB Capital Appreciation, LLC v. Planning & Zoning Commission, 124 Conn.App. 379, 399, 4 A.3d 1256 (2010) (" while traffic problems and related safety concerns can be a valid reason for a denial . . . there must be more than a traffic increase, and either traffic congestion or an unsafe road design at or near the entrances and exits from the site" [internal quotation marks omitted]). " Moreover, the significance of the impact should not be measured merely by the number of additional vehicles but by the effect that the increase in vehicles will have on the existing use of the roads. An increase of 100 vehicles per hour may have a negligible impact at one time or location and a ruinous impact another time or location." Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 434, 941 A.2d 868 (2008).
In the present case, it is estimated that 1, 800 cars exceed the forty mile per hour speed limit based upon approximately 12, 000 cars using Clintonville Road each day. The proposed development's contribution of less than ten trips in a peak hour (ROR, Item 2, p. 4) is very small. Indeed, the plaintiffs' expert, David L. Spear, stated that the development would generate a total of seventy daily trips, thirty-five entering and exiting with seven in the morning peak and eight in the afternoon peak. (ROR, Item 2, p. 4.) He concluded that the development would have no impact on safety. (ROR, Item 2, p. 6; Item 13, pp. 14-15; Item 26, p. 20.)
Spear counted 1030 vehicles during the morning peak with 391 eastbound and 639 westbound. The afternoon peak had a total of 1136 vehicles with 676 eastbound and 460 westbound. (ROR, Item 13, p. 8.)
In an affordable housing appeal involving a traffic issue in Terrar, LLC v. Town of Ridgefield Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-05-4004079-S, (March 29, 2006, Pickard, J.), the court stated, " The present application illustrates in sharp contrast the difference between a conventional application and an affordable housing application. Here . . . there is sufficient evidence in the Record supporting the Commission's denial on the basis of traffic safety. But, because this is an affordable housing appeal, the court has made its own plenary review of the Record . . .
" Terrar presented testimony from a traffic expert, Michael Galante, who submitted a detailed report and documentation in support of the site plan. There was no contradictory expert testimony . . . The Commission's own knowledge of the traffic situation must be considered . . . But, the court's own review of the Record reveals that the Commission's knowledge does not outweigh the unequivocal, uncontradicted testimony of Mr. Galante that traffic safety does not dictate a denial of the application for site plan." (Citation omitted.)
In an affordable housing appeal thirteen years before Terrar, LLC, another court, Mottolese, J., noted that " [t]raffic impact is an area of concern that usually involves neighborhood opposition" and, citing Manor Development Corp. v. Conservation Commission, 180 Conn. 692, 433 A.2d 999 (1980), that the commission was not required to accept the contents of the traffic engineer's report.
On the other hand, the plaintiff's evidence was uncontroverted by any other expert. Feinson v. Conservation Commission, 180 Conn. 421[, 429 A.2d 910] (1980), would seem to require that if the commission relied on traffic data, experience or projections in reaching these conclusions it must disclose it and give an opportunity for rebuttal in order to avoid acting arbitrarily." Kaufman v. City of Danbury Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV-92-0507929-S (August 13, 1993, Mottolese, J.) . On appeal, the Supreme Court held that " [a]lthough the commission would have been entitled to deny an application because it did not believe the expert testimony, however, the commission had the burden of showing evidence in the record to support its decision not to believe the experts--i.e., evidence which undermined either the experts' credibility or their ultimate conclusions." (Emphasis in original.) Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995).
In the present case, the plaintiffs submitted a detailed traffic report and there was no contradictory expert testimony. The record contains, however, the concerns of the board members and the residents' statements. The real issue here is not the affordable housing development with its eight units, but rather the traffic on Clintonville Road and the " failure" of the 1, 200 drivers to comply with the speed limit. This record lacks sufficient evidence to justify rejecting the expert's opinion and the commission made no findings regarding the proposed development or congestion. More to the point, the commission has provided no evidence as to how the proposed development of eight units would cause a danger to public safety or create an unsafe condition on Clintonville Road. Therefore, the board has not satisfied its initial burden to prove that its denial or the reason for its denial is supported by sufficient evidence in the record.
The record contains a petition containing fifty-five signatures opposing the application. (ROR, Item 10.) The commission also received a number of letters and heard testimony at the public hearings from residents both supporting and opposing the application. (ROR, Item 11; Item 16; Item 18; Item 20.) " In exercising their zoning powers, the local authorities must act for the benefit of the community as a whole following a calm and deliberate consideration of the alternatives, and not because of the whims of either an articulate minority or even majority of the community." Udell v. Haas, 21 N.Y.2d 463, 469, 235 N.E.2d 897, 288 N.Y.S.2d 888 (1968).
Because of its concern about the plaintiffs' traffic study, the commission did not close the August 4, 2014 public hearing, but rather continued it to September 8, 2014, to allow the police department to review the study. The police department was however, unable to conduct its own review. (ROR, Item 13, pp. 2-3, 41-43; Item 19; Items 23-24; Item 26, pp. 18-19.)
Assuming arguendo that the commission sustained this threshold burden, traffic safety is generally considered to be a substantial public interest. See, e.g., Landworks Development, LLC v. Town of Farmington Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-00-0505525-S, (February 14, 2002, Eveleigh, J.). Nevertheless, " [t]he record must establish more than a mere possibility of harm to a substantial public interest. The record must contain 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)." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, supra, 130 Conn.App. 58.
In the present case, the record contains no evidence of a quantifiable probability of specific harm. Additionally, the record does not reveal that the public interest of traffic safety under these circumstances clearly outweighs the need for affordable housing or that it could not be protected by reasonable changes to the affordable housing development. See River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26.
Accordingly, the decision of the commission is reversed. See General Statutes § 8-30g(g).