Opinion
CV115015368S CV136023798S
10-27-2016
Christopher Stefanoni et al. v. Planning & Zoning Commission of the Town of Darien et al. Mark S. Gregory et al. v. Planning & Zoning Commission of the Town of Darien et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Henry S. Cohn, Judge
This affordable housing appeal under General Statutes § 8-30g(f) first came to this court in 2011 on an appeal by the plaintiffs, Christopher and Margaret Stefanoni. The plaintiffs had sought approval of a 16-unit apartment complex with 5 units of affordable housing. The defendant Planning and Zoning Commission of the town of Darien (the commission) approved a 4-unit complex and placed other restrictions. Subsequently the court granted the motion of Mark S. Gregory and Kathleen Gregory, abutting landowners, as intervenors. On December 19, 2012, the court remanded this original decision to allow the plaintiffs to modify their plans regarding a bypass lane and for the commission to review alternative plans proposed by the plaintiffs.
The Gregorys also filed their own appeal from the initial decision of the commission. It is unclear if they have also continued to oppose the commission's decisions after remand or are supportive of them. It is not necessary for the court to decide the extent of the Gregorys' opposition in light of the court's opinion herein.
On October 29, 2013, the commission rendered a new decision approving the plaintiffs' application with modifications, among them giving approval to an 8-unit complex. The plaintiffs again challenged this commission decision. On November 19, 2014, the court again remanded the commission's decision " for an amendment to its October 29, 2013 resolution (Exhibit #54) to specify an approved number of units, or a range of numbers of units, based on the record." The commission was to make use of the record to support its modifications to the plaintiffs' amended application.
The commission rendered its decision on the second remand on September 22, 2015. This decision granted the plaintiffs' application with permission to construct between 6 to 8 units and contained other restrictions as well. The plaintiffs filed their amended complaint challenging the commission's approval with modifications on October 22, 2015. After the filing of briefs by the commission and the intervenors and then by the plaintiffs, the court heard oral argument on June 21, 2016. The court ordered the commission to submit documents from the record supporting its position and the plaintiffs were also granted permission to do so. The court also granted the parties' motion for a view and this took place on September 8, 2016.
The " Second Remand Decision" of September 22, 2015 (Supplemental Return of Record, ROR, #24) may be summarized as follows:
Action: Grant the remand application with modifications with a range of six to eight (6-8) units approved. [The plaintiffs' application is for sixteen units of age-restricted housing with five proposed as affordable housing under General Statutes § 8-30g.] In light of the above-mentioned ongoing traffic and pedestrian safety issues . . . modifications required [in addition]:
1. Reduce the number of on-site parking units to two per unit.
2. Emergency ingress/egress for fire equipment shall be provided from/to Hoyt Street. It shall be composed of grass pavers.
3. Safely locate mailboxes in or near the proposed building.
4. Reduce the size of the building to address the need for space around the building, as needed for fire safety. Modify the building to have a 15-foot side setback for fire access along the south property line. Modify the building to have a 15-foot rear setback for fire access along the east property line. Install and maintain a stockade fence atop the proposed retaining wall along the south property line as identified by the fire marshal.
The plaintiffs have challenged the commission's approval with conditions, as summarized above, pursuant to § 8-30g(f): " [A]ny person whose affordable housing application is . . . approved with restrictions which have a substantial adverse impact on viability of the affordable housing development . . . may appeal such decision pursuant to the procedures of this section." In accordance with § 8-30g(g), the commission has the burden of sustaining these restrictions.
The issue of aggrievement was decided at a prior proceeding. Aggrievement is a jurisdictional question and is a prerequisite to maintaining a land use appeal. See Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). In affordable housing appeals, as in traditional zoning appeals, the plaintiff has the burden of establishing aggrievement. See Trimar Equities, LLC v. Planning & Zoning Board, 66 Conn.App. 631, 638-39, 785 A.2d 619 (2001). The proof of aggrievement requires that the plaintiff demonstrate that he or she has a specific, personal and legal interest, as opposed to a general interest, in the subject matter of the agency decision and further show that this interest has been injuriously affected by the decision. Aggrievement is established on a showing that there is a possibility, as opposed to a certainty, that the interest has been adversely affected. See Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 893 A.2d 389 (2006). The testimony of Margaret Stefanoni on December 19, 2012, has previously satisfied the court on this point.
Turning to the merits, the scope of judicial review under § 8-30g(g) requires the commission, not the plaintiff-applicant, " to marshal the evidence supporting its decision and to persuade the court that there is sufficient evidence in the record to support the [commission's] decision and the reasons given for that decision." (Emphasis in original.) Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 575, 735 A.2d 231 (1991).
In reviewing these claims, the court " must turn to the record created by the commission to resolve these issues. When a commission states its reasons in support of its decision on the record, the court goes no further." (Internal quotation marks omitted.) RYA Corp. v. Planning & Zoning Commission, 87 Conn.App. 658, 675, 867 A.2d 97 (2005).
" [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.) AvalonBay Communities, Inc. v. Zoning Commission, 130 Conn.App. 36, 48-49, 21 A.3d 926 (2011).
Section 8-30g(g) provides the court the following guidance on the standard of review: " Upon an appeal . . . 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, or (2)(A) the application which was the subject of a decision from which such appeal was taken would locate affordable housing in an area which is zoned for industrial use and which does not permit residential uses . . . If the commission does not satisfy its burden of proof . . . 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."
The Supreme Court emphasized the particular nature of affordable housing cases by stating the following: " [T]he requirements [under § 8-30g] strongly suggest that the town be obligated, when it renders its decision, to identify those specific public interests that it seeks to protect by that decision, so that the court in reviewing the decision will have a clear basis on which to do so . . . [R]equiring the town to state its reasons on the record when it denies an affordable housing land use application . . . will help guard against possibly pretextual denials of such applications." Quarry Knoll II Corp. v. Planning and Zoning Commission, supra, 256 Conn. 729, 780 A.2d 1.
" The statute eliminates the traditional judicial deference to commission judgments . . . 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 . . . Finally, 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) . . . It is incumbent upon the commission to first establish the correctness of its decision. If such a demonstration is made, it is then incumbent upon the court to conduct a plenary review." (Citations omitted; internal quotation marks omitted.) Hillcrest Orchards, LLC v. Conservation Commission, Superior Court, judicial district of New Britain, Docket No. CV08-4016248 (March 6, 2009), Prescott, J.).
Our Supreme Court has set forth the standard for judicial review of this issue. " [T]he trial court must first determine whether the decision . . . 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." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004). In addition, " [t]he burden of proof established in § 8-30g is a specific, narrow standard that a commission must satisfy on appeal." Wisniowski v. Planning Commission, 37 Conn.App. 303, 313, 233 Conn. 909, (1995) (holding that noncompliance with zoning could not be used as a per se reason to deny an application for affordable housing, but requiring the commission to look at the underlying rationale of the regulations to protect the public interest).
" 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. at 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)." (Citations omitted; internal quotation marks omitted.) Avalonbay Communities, Inc. v. Zoning Commission, 130 Conn.App. 36, 58, 21 A.3d 926 (2011).
The most recent case of JAG Capital Drive, LLC v. East Lyme Zoning Commission, 168 Conn.App. 655, 667-68 (2016), relies on the above-quoted precedent for the standard of review.
Turning to the merits of the appeal, the court indicated its concern in the second remand that the commission demonstrate a relationship in the record between the number of apartment units authorized and traffic conditions. Both the plaintiffs and the commission have submitted portions of the record to support their positions.
The plaintiffs rely on the statements of their expert Spear that there is a low rate of accidents on Hoyt Street. (ROR, original #27.) They further rely on the commission's expert Galante who testified that the accident rate is low on Hoyt Street. (ROR, first remand #73, 78.) With regard to sight lines, the plaintiffs point to the record where Spear, Galante, and engineer Barry Hammons stated that there was no problem in having a safe view on turning either left or right out of the proposed driveway. (ROR, original #73, first remand #48, first remand #73.) According to Galante, turning into the complex would normally not cause a backup on Hoyt Street with service at level A. (ROR, first remand #12.)
Both the plaintiffs and the commission, at the direction of the court, submitted materials from the record to support their contentions regarding the commission's order of September 22, 2015.
On the other hand, the commission had in the record several items that supported approval, as it did, of a lesser number of units (in the September 22, 2015 final decision on the second remand, 6-8). The lot planned for development is approximately one-half an acre. Hoyt Street, as Galante testified, has a constant stream of traffic. (ROR, original remand #73.) The addition of a 16-unit building will increase traffic at the driveway. (Id. ) There is no parking on the side of Hoyt Street adjacent to the project. There are signs posted prohibiting parking on Hoyt Street, but these signs are sometimes ignored.
The speed on Hoyt Street is posted at 25 miles per hour, but the Adler study found that the average speed was 40 miles per hour. (ROR, original #42.) In the summer, there is additional traffic from the swim club on Echo Road. (Id. ) There is pedestrian traffic related to the school a block away.
The commission at its meetings of October 15, October 22, and October 29, 2013 indicated the reasons for changing the number of units from the plaintiffs' application (16) to a lesser number (8). The reduction in the number of units was correlated to the concerns in the record over traffic, road and pedestrian conditions; this reduction will reduce safety concerns. (ROR, original remand #76, pp. 17, 30, 36, #77, pp. 7-8, 20, #78, p. 7.)
As indicated in the discussion of precedent above, the commission must first satisfy the court that its position is satisfied by sufficient evidence in the record. The court has reviewed the lengthy record in this case and finds that the commission has met this burden. The commission then may set forth its issues of public safety and meet the burden of establishing these concerns. The court then has the duty to review independently the reasons set forth by the commission.
The safety concerns of the commission for its decision to approve eight units include the flow of traffic on Hoyt Street, the lack of parking on Hoyt Street, the lack of sidewalks and nature of the two-lane road in general, the intensity of the lot in question, and pedestrian traffic on Hoyt Street. The court agrees that the commission's concerns have properly led to the reduction in the amount of units by the commission. The court has had the opportunity to view the site and its inspection supports the commission's position.
There are two other conditions that were imposed in the September 22, 2015 commission decision and challenged by the plaintiffs. The first is that their plan be modified to require 2 parking spaces for each unit, instead of the 1.5 spaces in the plan. The overwhelming evidence in the record is that the industry requirements and the commission's regulations support the 1.5 parking space requirement. Therefore the court finds that this requirement in the September 22, 2015 decision was improperly ordered.
While the plaintiffs at page 26 of their March 28, 2016 brief set forth other outstanding objections to the commission's September 22, 2015 decision, the court concludes that these issues have not been adequately raised in either the plaintiffs' brief or in the reply of the commission.
The second is the fire safety requirements that the commission imposed in keeping with the fire marshal's memoranda. (ROR, Original #76; First Remand #40.) While the plaintiffs have setbacks of 10.3' to the south and 5.3' to the east in their plans, the fire marshal in memoranda dated January 14, 2011 and July 16, 2013 recommended to the commission that the setbacks be 15' in the rear and side yards. The plaintiffs argued that these setbacks were drastic and unnecessary. The commission was, however, permitted to defer to the judgment of the fire marshal who found that the setbacks were necessary " in order to have access for the use of ladders for firefighting." (ROR, First Remand #40.) The fire marshal was also taking into account the fact that the owner of 53 Hoyt Street intends to build a fence along the property line. This would create access problems without the increased setback.
The other buildings that the plaintiffs point to as not having these setbacks were not similarly situated. See page 29, commission brief dated March 28, 2014: " [T]he fire marshal appeared before the commission and explained that the plaintiffs' proposal could not be compared to or treated as similar to the two other developments. He explained that he approved lesser setbacks for a building at 745 Post Road as it allowed for the fire truck access on all four sides of the building, while the plaintiffs' proposal only allowed such access on two sides . . . The evidence also shows that the other building was pre-existing so that its setbacks could not be changed . . . He also noted that one is staffed with care personnel twenty-four hours a day, while the plaintiffs' proposal would have no staff . . . He also explained that both are also closer to firehouses, shortening response times, whereas a fire at a location not as close is more likely to have intensified by the time responders get there."
The court has also considered the position of the intervenors. Whether in their own suit or in the plaintiffs' suit against the commission, the intervenors raise issues of traditional zoning and restrictive covenants. Their contentions are rejected in several cases, including Wisniowski v. Planning Commission, 37 Conn.App. 303, 314, 655 A.2d 1146 (1995). In Wisniowski, the Appellate Court held that § 8-30g allowed the plaintiffs to seek subdivision approval for affordable housing without first seeking a zone change. Id. at 318. In reaching this decision, the court ruled that nonconformity to zoning is not per se a reason to deny an affordable housing application. Id. Rather, " [i]nstead of simply questioning whether the application complies with [the zoning] regulations . . . under § 8-30g, the commission considers the rationale behind the regulations to determine whether the regulations are necessary to protect substantial public interests in health, safety or other matters." Id. at 317-18. The court relies on the balancing engaged by the commission in lieu of the approach adopted by the intervenors.
For the above-stated reasons, except for the plaintiffs' objection to the parking spaces restriction, the appeal is dismissed.