Opinion
No. CV-01-0510200-S
July 28, 2004
STATEMENT OF APPEAL
The plaintiff, Phoenix Housing of Shelton, LLC, appeals from the decision of the defendant, the planning and zoning commission of the city of Shelton denying the plaintiff's application for a single-family affordable housing zone.
BACKGROUND
On June 5, 2000, the plaintiff submitted an application for a single-family affordable housing zone on Wintergreen Lane, Shelton, Connecticut. At the time the application was submitted, the plaintiff was the applicant/developer, and the property was owned by the Shelton Yacht and Cabana Club, Inc. Subsequent to the filing of the application, the plaintiff became the owner of the subject property. The parcel conveyed to the plaintiff had been a portion of a larger parcel of land owned by Shelton Yacht Cabana Club consisting of approximately 39 acres.
The subject property consists of 48,000 square feet and is in an R-1 residence zone and abuts an R-3 zone. An R-1 zone requires a minimum lot size of 40,090 square feet. The plaintiff's proposed zone change would allow it to create four (4) 12,000-square-foot lots to accommodate four single-family residences, one of which would be an affordable housing unit.
The Shelton Yacht and Cabana Club, Inc. had previously applied for a zone change as to the subject property. On December 9, 1999, the inland wetlands commission approved the Shelton Yacht and Cabana Club's development plan. Subsequent to the inland wetlands commission's approval, the Shelton Yacht and Cabana Club submitted an application to the PZ requesting to change the R-1 residence zone to an R-3 residence zone. On May 23, 2000, the PZ denied the application. The requested zone change was similar to the application at issue in this present appeal, except that the previous application did not include a request for an affordable housing zone change.
On October 10, 2000, a public hearing was held regarding the plaintiff's present application. On January 5, 2001, the plaintiff's application and this appeal followed.
JURISDICTION Aggrievement
General Statutes § 8-30g(f) provides that "[a]ny person whose affordable housing application is denied . . . may appeal such decision pursuant to the procedures of this section . . . 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."
"A person does not become aggrieved until the zoning authority has acted, and the question of aggrievement is a jurisdictional one for the court . . . To be entitled to an appeal, the plaintiffs were required to allege and prove that they were aggrieved by the decision of the commission . . . The fundamental test by which the status of aggrievement . . . is determined 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 members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this 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." Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 702, 780 A.2d 1 (2001).
In the present appeal the plaintiff has met the jurisdictional requirement of pleading and proving aggrievement.
Timeliness and Service of Process CT Page 11548
This appeal was commenced in a timely manner by service of process upon the proper parties.
Citation
The file contains a proper citation.
SCOPE OF REVIEW
"[T]he scope of judicial review under § 8-30g . . . requires the town, not the applicant, to marshal the evidence supporting its decision and to persuade the court that there is sufficient evidence in the record to support the town's decision and the reasons given for that decision.
By contrast, in a traditional zoning appeal, the scope of review requires the appealing aggrieved party to marshal the evidence in the record, and to establish that the decision was not reasonably supported by the record . . ." JPI Partners, LLC v. Planning Zoning Board, 259 Conn. 675, 688, 791 A.2d 552 (2002).
"Under [§ 8-30g(g)], the court must determine . . . whether the commission has shown that its decision is supported by `sufficient evidence' in the record. "Under subparagraphs (B) and (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." Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 674, 727.
DISCUSSION
"[T]he key purpose of § 8-30g is to encourage and facilitate the much needed development of affordable housing throughout the state . . . Requiring the town to state its reasons on the record when it denies an affordable housing land use application will further that purpose because it will help guard against possibly pretextual denials of such applications." JPI Partners, LLC v. Planning Zoning Board, 259 Conn. 675, 689-90 (2002).
The PZ has stated several reasons for its denial of the plaintiff's application to amend the Shelton zoning regulations to provide for a single family affordable housing zone. Those reasons are as follows:
Reason 1(a) — Prior noise complaints
The planning and zoning commission has stated that "[t]he adjacent established residential neighborhood is already impacted negatively by noise and other effects from the existing activities." In response, the plaintiff argues that there is not sufficient evidence in the record to show that such a negative impact would occur from the approval of the plaintiff's application. Furthermore, the plaintiff asserts that there are sufficient buffers to protect from the noise.
The PZ relies on a police report dated May 26, 1997, to support its argument that the neighborhood already has problems with noise from the country club. In addition, the record contains the testimony of several neighbors concerning noise from the nearby county club. The neighbors testified that they are concerned that the development on the subject property will further contribute to the noise problems in their neighborhood.
A review of the record indicates that most of the concerns with respect to noise center around a nearby country club. While the commission is correct to take into account the concerns with increased noise problems in a neighborhood, the record is devoid of any evidence which would support the claim that the residential properties would add in any substantial or meaningful way to the noise of a neighborhood. Accordingly, the court concludes that this reason is not a valid reason for rejection of the application pursuant to the standard set forth above.
Reason 1(b); Reason 2 — Reduction of vegetated buffers
The "physical reduction of protective, vegetated buffers" is one of the reasons cited in the denial of the plaintiff's application. This reason is related to the alleged negative environmental impact also cited. The two reasons will be addressed together.
With regard to the removal of the vegetated buffer, the commission is concerned with the loss of the wildlife habitat and that the removal of trees "will reduce the protection of the adjacent neighborhood from the adverse effects of pool noise and activity."
The PZ also raises as one of its concerns that the outdoor pool area "generates noise and the topography combined with the natural, vegetated buffer provides a degree of protection for the adjacent residential neighborhood."
This reason given by the commission is similar to the first reason in that they are both related to the country club located adjacent to this property. The concerns expressed about environmental impact are not supported by any evidence. The concern expressed about vegetative buffer is not supported by evidence in the record and does not suffice as a reason for denial of the applications in accordance with the standards set forth above.
Reason 1(c) — Negative experiences elsewhere
The commission cites as a reason for denying the application the "negative experiences elsewhere from non-residential activity adjacent to residential areas." This reason is vague but apparently a reference to the prior relationship between the residents of this area and the country club. There is no evidence in the record to support this reason.
Reason 1(d) — Previous denial of a zone change
In its denial of the application, the PZ states as a reason the fact that there was a "previous denial of a zone change request that would have produced the same physical development and destruction of buffers." The PZ has provided no authority to support the proposition that a previous denial of a zone change is a valid reason for the denial of a subsequent application for an affordable housing zone.
Reason 3 — Density
In its denial of the plaintiff's application, the PZ also states as one of its reasons the issue of density. Specifically, the PZ refers to the "[e]xcessive intensity of development as a result of environmental constraints that result in minimal usable area per lot, approaching an equivalent density of approximately six (6) houses per acre, considerably higher than the represented 3.6 homes per acre."
"In order to qualify as a legitimate basis for denial of an affordable housing application, density must represent a substantial public interest in health, safety or other matters which the commission may legally consider." Thompson v. Zoning Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0494184 (January 11, 2000, Mottolese, J.) ( 26 Conn. L. Rptr. 318). In Thompson, the court found that "there [was] nothing in the record to show that the 25 units proposed would overcrowd the land or otherwise jeopardize the public interest." Id.
Applying the same analysis to the facts and record of this case, the same conclusion is properly reached, that is that there is no evidence to support the claim the density as proposed in this development would have any negative effect as to the public interest.
Reason 4 — Utility services and public transportation
The PZ also states the following reason: "Existing utility services in the area are marginal. Area residents are currently experiencing difficulties with water supply, electricity and telephone services. No regularly scheduled public transit service is available to area residents."
The PZ has failed to provide evidence that the denial on these grounds of the affordable housing application was necessary to protect a public interest. Specifically, the record lacks any evidence (other than a claim of low water pressure) demonstrating the specific problem as it relates to the water, electricity or telephone lines. There is no evidence from any public utility. Further, the record does not allow the court to draw the conclusion that this proposal would do anything to exacerbate an existing problem or to prevent a public utility from supplying services to these homes.
With regard to the lack of public transportation, the record does not contain sufficient evidence demonstrating that access to public transportation is necessary to protect the public health and safety or that it is a necessary component of an affordable housing application.
Reason 5 — Non-compliance with statute
The PZ also denied the plaintiff's application because "[t]he applicant has provided no specific proposal for the on-going monitoring and enforcement of the affordable limitations. It will be difficult if not impossible to enforce such restrictions on a single, owner-occupied housing unit. In order to afford the home, the buyer must of necessity be at the upper income limits initially and any slight increase in income will void on-going eligibility. To facilitate on-going monitoring, it may be desirable for a buyer of an affordable unit to be required to submit an income certification annually."
In opposition, the plaintiff argues that § 8-30g(j) "gives the commission itself or [its] designee, the power to enforce compliance with the affordable housing provisions of the statute."
General Statutes § 8-30g(j) provides that "[a] commission or its designated authority shall have, with respect to compliance of an affordable housing development with the provisions of this chapter, the same powers and remedies provided to commissions by section 8-12."
The current version of § 8-30g provides that "[a]ny person filing an affordable housing application with a commission shall submit, as part of the application, an affordability plan which shall include at least the following: (A) Designation of the person, entity or agency that will be responsible for the duration of any affordability restrictions, for the administration of the affordability plan and its compliance with the income limits and sale price or rental restrictions of this chapter; (B) an affirmative fair housing marketing plan governing the sale or rental of all dwelling units; (C) a sample calculation of the maximum sales prices or rents of the intended affordable dwelling units . . ." General Statutes § 8-30g(b)(1).
The record contains a letter from the plaintiff to the Shelton Housing Authority indicating that "the commission has inquired as to the person or entity that will monitor the property to insure compliance with the affordable housing restrictions" and requesting that the Housing Authority be the designated authority. The Housing Authority, however, has declined.
The statutory provision requiring an applicant to designate the entity to be responsible for the enforcement of the affordability restrictions was not in effect at the time the plaintiff filed its application. Furthermore, in order for the PZ to have a valid reason for denying the plaintiff's application, the PZ must demonstrate that "there are no modifications that reasonably can be made to the application that would permit the application to be granted . . ." Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 674, 723. The court finds that such modification could be made to this application and thus the alleged noncompliance with the statute is not a valid basis for denying the plaintiff's application.
Reason 6 — Probable negative impact
Finally, the PZ has cited as one of its reasons that "[t]he creation of only one (1) affordable housing unit does not justify the probable negative impacts on the general public interest." The PZ reasons that the negative impacts will result from the elimination of the open space buffer; noise impacts; aesthetic intrusion due to tree removal; environmental impact, including the elimination of wildlife habitat; and the deterioration of utility services. The PZ argues that "the public interest in maintaining the tranquility of the neighborhood is greater than the public benefit to be obtained from one affordable housing unit."
The legislative history indicates that there was a concern that developers would use the statute in order to build developments that would otherwise not be allowed under the zoning regulations. Specifically, Representative Farr was concerned "that if the developer is turned down for 100 units of housing because it's not appropriate to that community, if he comes in and asks for . . . 200 units and puts in 20 of them as subsidized units, he now puts the burden on the community, I don't think that's the appropriate way to go." 32 H.R. Proc., Pt 30, 1989 Sess., p. 10611. That outlook was not reflected in the statute which was enacted.
As a result, courts have reached a different conclusion in interpreting the affordable housing statute. "Generalized fears about the impacts of affordable housing cannot outweigh the strong public interest expressed by the legislature in § 8-30g." Vineyard Construction Management Corp. v. Trumbull, Superior Court, judicial district of New Britain, Docket No. 0492251 (July 23, 1999, Koletsky, J.). See also Nichols v. Killingly Planning and Zoning Commission, CV 94-0540477 Superior Court, Hartford/New Britain J.D. at Hartford (June 5, 1995), and Pratz Corner Limited Partnership v. Southington Planning and Zoning Commission, 9 Conn. L. Rptr. 121 (1993). Those citations stand generally for the proposition that the "quality of life" issues are vague and do not lend themselves to objective measurement, and as such are not appropriate considerations for purposes of the court's review of an application of this nature.
The court has considered the specific issues raised on appeal as well as the application as presented and the reasons for its rejection by the planning and zoning commission. The court concludes that there is no evidence of harm to the public interest as required under the law.
The court finds that the commission has not satisfied its burden of proof and accordingly the decision of the commission is hereby reversed and the appeal is sustained.
The court extends its apology to the parties and counsel for the delay in rendering decision in this case.
Robaina, J.