LLC v. Fairfield Town Plan and Zoning Commission (2012)

MEMORANDUM OF DECISION

I. Facts and Procedural History

The plaintiffs, Landco Holdings LLC (“Landco”) and Dean James Capozziello (“Capozziello”), appeal from decisions of the defendant, Fairfield Town Plan and Zoning Commission (“Commission”) denying applications for:  1) an amendment to the Fairfield Zoning Regulations (“Regulations”) to add a new “Small Site Housing Opportunity Development District” (“HOD District”);  2) rezoning of the plaintiffs' site from R3 to HOD District;  and 3) approval of a site plan (Certificate of Zoning Compliance) for 12 condominium homes in two proposed multi-family buildings.¹  The plaintiffs proposed to set aside 4 of the 12 units as “affordable” ² as set forth in C.G.S. § 8–30g.

The proposed site for the development is a parcel of approximately .9 acres located at 50 Campbell Drive in Fairfield.   It is owned by Capozziello, who has granted to Landco the right to develop the property either through purchase or joint development.   The proposed site is currently in use as a single-family residence with one outbuilding.   The applications for development were made by Landco with the approval of the Capozziello.

The record contains a petition opposing the applications signed by twelve citizens who appear to own or occupy nine properties in the neighborhood.   Four of these citizens testified at the public hearing in opposition to the project.   Their concerns surround parking/traffic and flooding.   They described an existing problem with on-street parking which, at times, reduces the road to one lane, and which produces a dangerous situation when children are arriving home from school.   They fear that more on-street parking and additional traffic will result from the development and make the current situation worse.   With respect to flooding, they describe that the neighborhood has a high water table which results in flooded basements and that adding more buildings and pavement will make the situation worse.   These parking/traffic and flooding issues were given as reasons for denial.

The plaintiffs submitted evidence at the public hearing designed to address both parking/traffic and water issues.   Each unit will have a two-car garage with room for tandem parking in front of each garage.   In addition, there will be seven more on-site parking spaces for a total of 31 on-site parking spaces for an average of 2.5 spaces per unit.   The only expert testimony on this issue came from Michael Galante, a traffic engineer hired by the plaintiffs to conduct a traffic access and impact study and to make recommendations.   He presented material from the Institute of Transportation Engineers that the average peak parking demand for residential condominium/townhouse units ranged from 1.04 to 1.96 vehicles per dwelling unit.   He also testified to similar numbers for condominium projects he had studied in Connecticut.

With respect to the increase in traffic resulting from the project, Mr. Galante's report indicates that the development would generate 9 and 11 vehicle trip ends during the weekday morning and weekday afternoon peak hours, respectively, which should not result in an adverse impact on the overall operation and safety of the adjacent roads.

With respect to the flooding issue, the plaintiffs engaged a professional engineer, Robert Wheway, who prepared a stormwater management plan to deal with runoff problems.   In Mr. Wheway's opinion, if the project is constructed in accordance with that plan and properly maintained, there will not be any stormwater impact from this development.   The Town Engineering Department agrees that the stormwater plan, as revised to address some initial concerns, is acceptable.

The Commission published notice of a public hearing on November 9, 2010.   The public hearing began on that day and was continued for further hearing on December 14, 2010.   On January 25, 2011, the Commission unanimously voted to deny each of the development applications submitted by the plaintiffs.

II. Aggrievement

Aggrievement is a jurisdictional question and is a prerequisite to maintaining an appeal.  Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 307 (1991).   In affordable housing appeals, as in traditional zoning appeals, the plaintiff has the burden of establishing aggrievement.   Trimar Equities, LLC v. Planning & Zoning Board, 66 Conn.App. 631, 638–39 (2001).  C.G.S. § 8–30g(f) provides that any person whose affordable housing appeal is denied may appeal.   In addition, “owners of property that is the subject of an application are aggrieved, and the plaintiffs may prove aggrievement by testimony at the time of trial.”  Winchester Woods Associates v. Planning and Zoning Commission, supra, 308.   Capozzielo is aggrieved as the owner of the property which is the subject of the applications denied by the Commission, and Landco is aggrieved as the unsuccessful applicant.

III. Standard of Review

A preliminary issue—but one which will have a major impact on the result—is whether this case must be reviewed as an affordable housing appeal.   The Commission argues that the affordability plan submitted by Landco is “fatally deficient” in two respects which prevent this case from being considered as an affordable housing appeal.   First, the Commission argues that the affordability plan contained in the applications does not include a description of the general locations of the affordable housing units within the proposed development, in violation of C.G.S. § 8–30g(b)(1)(D).³  Second, the Commission argues that the affordability plan does not include a narrative and schematic plan describing the location of price-restricted and market-rate dwelling units within the construction sequence of the proposed development, in violation of Department of Community and Development regulation § 8–30g–7(a)(6).⁴  Finally, the Commission argues that these alleged defects in the affordability plan prevent the court from applying the rigorous, burden-shifting standard of review required for decisions under § 8–30g.

The plaintiffs do not concede that there are any deficiencies in the affordability plan.⁵  But, their principal response to the Commission's argument is that the claim of statutory and regulatory noncompliance with the § 8–30g affordability plan requirements was not timely made and cannot serve as a basis to change the applicable standard of review or to deny this appeal.

The Commission's claims concerning the alleged deficiencies in the affordability plan were not raised by the Commission's staff prior to the public hearing, were never raised by anyone at the public hearing, and were not raised by the Commission as reasons for denial of the applications.⁶  The advertising for the public hearing clearly identified the application of Landco as being to construct “a twelve (12) unit residential development with affordable housing pursuant to Section 8–30g” of the statutes.   The transcript of the public hearing shows that the Chairman of the Commission announced the Landco proposal as an affordable housing application under § 8–30g.   The plaintiffs' attorney laid out in great detail that these were applications to build affordable housing under § 8–30g.   He explained the standard of proof that exists in an affordable housing application.   The Chairman of the Commission stated in response:  “Just going back to this standard, I understand your articulation of the burden that we have in order to carry a denial.”   No one on the Commission or in the public raised the issue that the affordability plan was inadequate to actually present a valid affordable housing plan.

These claims of deficiencies in the Affordability plan were first made by the Commission's attorney in his appeal brief in this court.   The Supreme Court has made clear that if a town denies an affordable housing land use application it must state its reasons on the record and that statement must take the form of a formal, official, collective statement of the reasons for its actions.   Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 576–78 (1999).   Unlike a normal zoning appeal, the court is not permitted to search the record to find a basis for the agency's decision if the agency fails to give reasons.   Here, the Commission gave many different reasons for the denial of each of the plaintiffs' applications.   The Commission never gave as a reason that the affordability plan was defective and that, therefore, these were not affordable housing applications governed by § 8–30g.   On the contrary, the Commission published notice of its denial in the Fairfield Citizen which describes that Landco application for site plan approval as “Compliance application to construct a twelve (12) unit residential unit residential development with affordable housing pursuant to Section 8–30g of the CT General Statutes.”

The Supreme Court has decided a similar case in which a commission attempted to raise for the first time on appeal an issue affecting the scope of judicial review in an affordable housing matter.  JPI Partners, LLC v. Milford Planning & Zoning Board, 259 Conn. 675 (2002).   The zoning board had argued for the first time on appeal that the industrial zone exemption in § 8–30g(c) applied to the plaintiff's application.   The trial court found in favor of the zoning board on this issue but was reversed by the Supreme Court which concluded that to allow a reason that should have been raised at the time of denial to be raised for the first time on appeal deprived the plaintiffs of the opportunity to submit a modified proposal pursuant to § 8–30g(d).  “The resubmittal procedure, unique to affordable housing applications, both supports the purpose of the statute to encourage and facilitate the development of much needed affordable housing and eliminates wasteful litigation and delay of such development by permitting an applicant effectively to address reasons for a denial at the administrative level.”  Id., 692.

The facts in this case are unlike those in Cash v. Westport Planning Comm'n, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. 064007845 (Nov. 3, 2006).   In that case, it appears that the plaintiff submitted an application to change the zoning designation of its property from “residential” to “affordable housing zone,” both of which are existing zoning designations in the town.   There was no affordability plan submitted with it.   It is unclear whether the application was ever advertised or handled as an affordable housing application.   The defendant commission denied the application for unknown reasons.   The plaintiff did not move to transfer the case to the administrative appeals section in New Britain as required by standing orders of the chief court administrator.   In her brief, apparently for the first time, the plaintiff contended that this was an affordable housing appeal which entitled it to the benefits of burden shifting.   Judge Tobin disagreed and stated:  “The absence of an affordability plan in the plaintiff's application to the Commission removed any possibility that the plaintiff might, on appeal, qualify for the burden shifting benefits of General Statutes § 8–30g(g).”  Id.

The facts in this case are different from those in Cash. Here, the plaintiffs' applications were supported by a twenty-page affordability plan.   The applications were handled by the staff and Commission as affordable housing applications.   The appeals were transferred to administrative appeals section in New Britain.   If there were alleged defects in the affordability plan, the Commission should have flagged them before raising this issue in its brief for the first time.

It is much too late in the process for the Commission to argue to this court for the first time that the application is not an affordable housing application because of alleged defects in the affordability plan which were never raised so that the plaintiffs would have had an opportunity to respond.   (Emphasis added.)   Therefore, because this issue was never raised or made a reason for denial, the court need not review the affordability plan to determine whether the Commission's claims of inadequacy have any merit.

Judicial review of a planning and zoning decision on an affordable housing application is governed by C.G.S. 8–30g(g).  That section provides:

(g) 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 have the burden to prove, based upon the evidence in the record compiled before the 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 the 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, and (B) the development is not assisted housing, as defined in subsection (a) of this section.   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.’  General Statutes § 8–30g(g).  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.)  Carr v. Planning & Zoning Commission, 273 Conn. 573, 596–97 (2005).

IV. The Need for Affordable Housing

The record demonstrates that the Town of Fairfield has a substantial need for affordable housing.   Fairfield falls below the “safe harbor” established by C.G.S. § 30g(k) for towns having at least 10% of all their dwelling units qualify as affordable under the formula established by that section.   In Fairfield, the percentage of dwelling units qualifying as affordable is only 2.21 percent.

V. Discussion

The first step in deciding this case is to determine whether the Commission has proven that 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.   Based upon the evidence in this record, there is more than a theoretical possibility of a specific harm to the public's interest in public safety if the application is granted.   Specifically, the traffic concerns raised by the Commission as a reason for denial are substantial public interests in public safety in the neighborhood of the project.⁷  There is evidence in the record concerning the congestion in the streets in the area of the proposed development which will be increased with additional traffic to and from the site and which will be magnified by additional off-site parking which narrows the traveled portion of the road.   Given the presence of children coming and going to school, there is a substantial public interest at stake which is more than a mere theoretical possibility, but not necessarily a likelihood.

The court does not find that Commission has proven that the concern about flooding rises to the level of a substantial public interest.   Storm water runoff and flooding is a highly technical subject.   The only expert evidence in the record supports the plaintiffs' contention that there will be no increase in runoff volume if the project is built and maintained in accordance with the stormwater management plan proposed by the plaintiffs.   The Town Engineer agrees with this contention.   There is no expert testimony to the contrary in the record.   The concerns of the neighbors are insufficient to raise a public safety concern which is more than a mere theoretical possibility.

The next step in the court's analysis is to determine, from its own plenary review of the record, if the Commission has proven that the risk of harm to the public interest in traffic safety clearly outweighs the need for affordable housing development.   The court has made its own plenary review of the record.   Based upon that review, the court finds that the Commission has not proven that the traffic safety risk clearly outweighs the need for affordable housing.

Fairfield's need for affordable housing is substantial and clear.   Only 2.12% of Fairfield's housing qualifies as affordable.   This places it with many other suburban towns which are nowhere near the State's safe harbor of 10%.   This cannot be refuted.   On the other hand the court's plenary review of the traffic evidence is that the risk to public safety is more than a mere theoretical possibility, but not much more.   Certainly there will be some additional on-street parking at night and certainly there will be more traffic in the morning and evening near the site.   The plaintiffs' traffic expert does not deny that there will be some increase.   But, his opinion is that it will not be substantial.   The evidence to the contrary is not anything more than the common sense belief that there has to be an increase in traffic from twelve new housing units.   But, the Commission cannot point to any evidence in the record which quantifies this increase.   Therefore, the Commission cannot demonstrate from the record that the increase clearly outweighs the need for affordable housing.

VI. Remedy

For the reasons given, the court sustains the appeal and orders that the applications of the plaintiffs be approved.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The briefs of both parties refer to a fourth application to amend the Fairfield Plan of Conservation and Development.   The record does not reveal that this was ever advertised to the public or acted upon by the Commission as a separate application..  FN1. The briefs of both parties refer to a fourth application to amend the Fairfield Plan of Conservation and Development.   The record does not reveal that this was ever advertised to the public or acted upon by the Commission as a separate application.

FN2. Two of the units will be offered for sale to families whose income is less than or equal to 60% of the area or statewide median income, whichever is less.   This results in an estimated sales price of $142,212.   Two of the units will be offered for sale to families whose income is greater than 60% but less than 80% of the area or statewide median income, whichever is less.   This results in an estimated sales price of $202,586..  FN2. Two of the units will be offered for sale to families whose income is less than or equal to 60% of the area or statewide median income, whichever is less.   This results in an estimated sales price of $142,212.   Two of the units will be offered for sale to families whose income is greater than 60% but less than 80% of the area or statewide median income, whichever is less.   This results in an estimated sales price of $202,586.

FN3. C.G.S. Sec. 8–30g(b)(1)(D) provides:  Any person filing an affordable housing applications with a commission shall submit, as part of the application, an affordability plan which shall include at least the following:  ․ (D) a description of the projected sequence in which, within a set-aside development, the affordable dwelling units will be built and offered for occupancy and the general location of such units within the proposed development..  FN3. C.G.S. Sec. 8–30g(b)(1)(D) provides:  Any person filing an affordable housing applications with a commission shall submit, as part of the application, an affordability plan which shall include at least the following:  ․ (D) a description of the projected sequence in which, within a set-aside development, the affordable dwelling units will be built and offered for occupancy and the general location of such units within the proposed development.

FN4. DECD Reg. 8–30g–7(a)(6) provides:  “(6) In an affordability plan for a set-aside development, a description of the projected sequence in which price-restricted dwelling units will be built and offered for occupancy shall consist of a narrative and schematic plan describing the construction sequence of the proposed site development plan, the location of price-restricted and market-rate dwelling units within that sequence, and a demonstration that such sequence will result in compliance with the set-aside requirements of section 8–30g of the Connecticut General Statutes and sections 8–30g–1 through 8–30g–11, inclusive, of the Regulations of Connecticut State Agencies.”.  FN4. DECD Reg. 8–30g–7(a)(6) provides:  “(6) In an affordability plan for a set-aside development, a description of the projected sequence in which price-restricted dwelling units will be built and offered for occupancy shall consist of a narrative and schematic plan describing the construction sequence of the proposed site development plan, the location of price-restricted and market-rate dwelling units within that sequence, and a demonstration that such sequence will result in compliance with the set-aside requirements of section 8–30g of the Connecticut General Statutes and sections 8–30g–1 through 8–30g–11, inclusive, of the Regulations of Connecticut State Agencies.”

FN5. The affordability plan is twenty pages in length.   It provides, in relevant part:  “The affordable units shall be built and offered for sale on a pro rata basis at the same pace as the market-rate homes in the community.   The affordable housing units shall be comparable in construction quality and standard amenities to the market-rate homes.”   Landco's attorney stated at the public hearing that the affordable units have to be spread throughout the two buildings and that they cannot be segregated in one building..  FN5. The affordability plan is twenty pages in length.   It provides, in relevant part:  “The affordable units shall be built and offered for sale on a pro rata basis at the same pace as the market-rate homes in the community.   The affordable housing units shall be comparable in construction quality and standard amenities to the market-rate homes.”   Landco's attorney stated at the public hearing that the affordable units have to be spread throughout the two buildings and that they cannot be segregated in one building.

FN6. The reasons given for denial of the amendment to the Regulations and for denial of the application for rezoning of the site were:  “Time, experience and responsible planning for contemporary or future conditions do not reasonably indicate the need for the proposed change.   The proposed regulation is inconsistent with the Plan of Conservation and Development.   It has not been demonstrated that the proposed regulation amendment is warranted and would serve to protect the general health, welfare and safety of the Town of Fairfield.   The proposed regulation promotes a level of development that would not serve to protect property values in the neighborhood and enhance the community.   The proposed regulation would permit a level of development that would create undue traffic congestion and create hazards to public safety.The reasons given for denial of site plan approval were:  “The applicant has not demonstrated that this small site can adequately handle increased storm runoff as a result of the proposal and prevent conditions of flooding in the neighborhood.   The on-site parking for the proposed development is not adequate and will lead to on-street parking.   The likelihood of on-street parking is demonstrated by the recommendation of the applicant's traffic engineer to establish a 25–foot parking area on either side of the proposed site driveway in order to maintain adequate sight lines.   The burden of increased on-site parking is a burden to the quality of life of the neighborhood which is a substantial public interest.   The impact of additional onstreet parking combined with the increase in the number of vehicles for this development on the existing narrow road create a hazard to public safety which is a substantial public interest.   Denial of the application is necessary to protest the public interest in health and safety.   The site limitations and existing street conditions limit the ability of the applicant to amend the application to address the concerns articulated by the Commission.”.  FN6. The reasons given for denial of the amendment to the Regulations and for denial of the application for rezoning of the site were:  “Time, experience and responsible planning for contemporary or future conditions do not reasonably indicate the need for the proposed change.   The proposed regulation is inconsistent with the Plan of Conservation and Development.   It has not been demonstrated that the proposed regulation amendment is warranted and would serve to protect the general health, welfare and safety of the Town of Fairfield.   The proposed regulation promotes a level of development that would not serve to protect property values in the neighborhood and enhance the community.   The proposed regulation would permit a level of development that would create undue traffic congestion and create hazards to public safety.The reasons given for denial of site plan approval were:  “The applicant has not demonstrated that this small site can adequately handle increased storm runoff as a result of the proposal and prevent conditions of flooding in the neighborhood.   The on-site parking for the proposed development is not adequate and will lead to on-street parking.   The likelihood of on-street parking is demonstrated by the recommendation of the applicant's traffic engineer to establish a 25–foot parking area on either side of the proposed site driveway in order to maintain adequate sight lines.   The burden of increased on-site parking is a burden to the quality of life of the neighborhood which is a substantial public interest.   The impact of additional onstreet parking combined with the increase in the number of vehicles for this development on the existing narrow road create a hazard to public safety which is a substantial public interest.   Denial of the application is necessary to protest the public interest in health and safety.   The site limitations and existing street conditions limit the ability of the applicant to amend the application to address the concerns articulated by the Commission.”

FN7. The only public safety reasons for denial discussed by the Commission in its brief are traffic safety and flooding.   The other reasons for denial are deemed abandoned..  FN7. The only public safety reasons for denial discussed by the Commission in its brief are traffic safety and flooding.   The other reasons for denial are deemed abandoned.

Pickard, John W., J.