Summit Saugatuck, LLC v. Water Pollution Control Authority ( 2019 )

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SUMMIT SAUGATUCK, LLC v. WATER
POLLUTION CONTROL AUTHORITY
OF THE TOWN OF WESTPORT
(AC 41949)
Prescott, Bright and Bear, Js.
Syllabus
The plaintiff appealed to the trial court from the decision of the defendant
Water Pollution Control Authority of the Town of Westport denying the
plaintiff’s application for a sewer extension. After the matter was tried
to the court, the court remanded the application for a new hearing, at
which the plaintiff could produce new evidence germane to the equitable
disposition of its application. Following a new hearing, the defendant
again denied the plaintiff’s application, and the plaintiff appealed to
the trial court, which rendered judgment sustaining the second appeal,
reversing the defendant’s denial of the application, and remanding the
application for conditional approval subject to the completion of ongoing
improvements and upgrades to the sanitary sewer system. Thereafter,
the defendant, on the granting of certification, appealed to this court.
Held that the trial court improperly rendered judgment sustaining the
plaintiff’s appeal and remanding the matter to the defendant with direc-
tion to grant the sewer extension application, as the decision of whether
to grant a conditional approval of a sewer extension application was
properly left to the discretion of the defendant, and the court impermissi-
bly substituted its own discretion and judgment for that of the defendant
by overriding its decision and ordering a conditional approval of the
application: the fact that a conditional approval of an application would
be a viable option available to an agency in considering an application
does not mean that the agency must exercise that option whenever
possible and in all situations, the defendant here chose to reject the
rationale relied on by the trial court in favor of a more cautious approach
that required the plaintiff to file a new application once it could demon-
strate that sufficient sewer capacity existed for the planned develop-
ment, and the record did not support a conclusion that the defendant’s
decision was illegal, arbitrary or an abuse of discretion; moreover, the
defendant was entitled to a presumption of regularity in its decision-
making process, as it had provided the additional rationale that it was
a settled policy of the defendant not to grant conditional approval of
applications, there was unrebutted testimony that the defendant had
not granted a conditional approval in more than thirty years, which was
sufficient to demonstrate that the defendant had a practice to refrain
from granting conditional approvals, and, by choosing not to do so in
the present case, it was acting in accordance with its usual practices
and procedures.
Argued April 22—officially released October 29, 2019
Procedural History
Appeal from the decision of the defendant denying
plaintiff’s application for a sewer extension for an
affordable housing development, brought to the Supe-
rior Court in the judicial district of Stamford-Norwalk
and transferred to the judicial district of Hartford, Land
Use Litigation Docket, where the matter was tried to
the court, Shluger, J.; judgment sustaining the appeal
and remanding the application; thereafter, following a
hearing on remand, the defendant denied the plaintiff’s
application, and the plaintiff appealed to the Superior
Court from the denial of its application; subsequently,
the court, Shluger, J., rendered judgment sustaining the
appeal, from which the defendant, on the granting of
certification, appealed to this court. Reversed; judg-
ment directed.
Peter V. Gelderman, for the appellant (defendant).
Timothy S. Hollister, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The defendant, the Water Pollution
Control Authority for the Town of Westport, appeals
from the judgment of the trial court sustaining the
appeal of the plaintiff, Summit Saugatuck, LLC, from
the defendant’s decision to deny the plaintiff’s applica-
tion for a sewer extension to service a proposed
affordable housing development. The court remanded
the matter back to the defendant with direction to
approve conditionally the sewer extension application
subject to the completion of ongoing improvements and
upgrades of capacity to the sanitary sewer system in
the town of Westport (town). On appeal, the defendant
claims that the trial court, by sustaining the appeal
and ordering a conditional approval of the application,
improperly substituted its own judgment for the rea-
soned and lawful discretion exercised by the defendant.
We agree and, accordingly, reverse the judgment of the
trial court.1
The record reveals the following facts and procedural
history. The plaintiff owns property or options to pur-
chase property in an area of town that is zoned for high
density development to be served by the town’s sewer
system. The plaintiff seeks to develop its property for
multifamily residential use. A sewer extension from the
town’s system is needed to service the planned devel-
opment.
In October, 2014, the plaintiff, pursuant to General
Statutes § 7-246a,2 applied to the defendant for approval
of a private sewer extension for a proposed 186 unit
affordable housing development.3 Because a proposed
sewer extension is deemed a municipal improvement,
the defendant referred the application to the town’s
planning and zoning commission (zoning commission)
for a report pursuant to General Statutes § 8-24. See
footnote 1 of this opinion.
On January 8, 2015, the zoning commission held a
hearing on the plaintiff’s application. Steven Edwards,
the town’s public works director at the time, testified
at the hearing that the town’s existing sewer system
required repairs and upgrades before it could handle
the additional sewage from the proposed development.
Specifically, Edwards explained that replacement of a
force main running under the Saugatuck River and one
of the pump stations could take up to five years.
Edwards thought a reasonable goal for the completion
of the upgrade/repairs would be the summer of 2017.
The zoning commission issued a negative report on
January 26, 2015. The plaintiff elected to withdraw its
application with the defendant at that time.
The plaintiff subsequently entered into an agreement
with an affiliate of the Westport Housing Authority
(affiliate) pursuant to which the plaintiff would develop
develop seventy adjacent affordable housing units. On
April 11, 2016, the plaintiff reapplied to the defendant
to construct a private sewer extension to service this
new planned development.
In June, 2016, the defendant referred the plaintiff’s
latest application to the zoning commission for a § 8-
24 report. Following a hearing on July 7, 2016, the zoning
commission again issued a negative report due to the
as yet incomplete upgrades to the sewer system, which
it concluded were not likely to be accomplished for
another two to four years.4 Despite the negative report,
the plaintiff chose not to withdraw its application from
consideration by the defendant. The defendant then
held a public hearing on the plaintiff’s sewer extension
application on July 21, 2016. At that hearing, the plaintiff
offered evidence about the projected timeline for the
completion of the sewer upgrades and proposed that
the defendant approve its application conditioned upon
the final completion of all necessary upgrades to the
sewer as well as the receipt of necessary wetlands and
site plan approvals.
The defendant denied the plaintiff’s application on
July 27, 2016. The defendant concluded, in relevant
part, that (1) the application violated a town policy that
purportedly required a positive § 8-24 report from the
zoning commission as a prerequisite to proceeding with
a sewer extension application; (2) regardless of that
policy, § 8-24 itself required a positive report from the
zoning commission before the defendant could approve
an application unless approval was obtained from the
representative town meeting,5 which had not occurred
here; and (3) given remaining uncertainties and risks
associated with the planned force main replacement
and pump station upgrade, it would be unwise for the
defendant to issue an approval conditioned upon the
plaintiff’s agreement to defer construction of the sewer
extension until repairs were completed rather than sim-
ply requiring the plaintiff to wait and reapply after all
necessary repairs and improvements were finished and
sufficient capacity existed.
The plaintiff filed an appeal from that ruling with the
Superior Court on August 31, 2016. In addition to its
supporting brief, the plaintiff filed a motion for permis-
sion to supplement the record. The defendant objected
to the motion to supplement and later filed its brief
opposing the plaintiff’s appeal. The plaintiff filed a reply
brief and a second motion for permission to supplement
the record. The matter was heard on April 26, 2017.
In a decision filed on August 1, 2017, the trial court
sustained the plaintiff’s appeal. The court determined
that the negative report issued by the zoning commis-
sion pursuant to § 8-24 was only advisory in nature and
in no way was binding on the defendant, and, thus, it
had been improper for the defendant to rely primarily
on the negative report of the zoning commission as
the basis for denying the plaintiff’s sewer application,
rather than considering the merits of the application.6
Accordingly, the court remanded the application to the
defendant ‘‘for a new hearing on the matter, at which
[the plaintiff] may produce new evidence germane to
the equitable disposition of its application.’’7
On September 27, 2017, the defendant held a hearing
in accordance with the court’s remand order, which
was continued to October 25, 2017. Because the plain-
tiff’s joint venture agreement with the affiliate had ter-
minated, the plaintiff informed the defendant on
remand that it was pursuing the application with respect
to a new affordable housing plan that consisted of 187
units for which the plaintiff would be the sole devel-
oper.8 The plaintiff presented evidence that the con-
struction of the force main replacement and the upgrade
to the pump station were scheduled to begin in Decem-
ber, 2017, and were to be completed in March, 2018.
The plaintiff also submitted evidence demonstrating
that all municipal, state, and federal permits for the
sewer construction had issued and that the project was
funded fully.
On October 25, 2017, the defendant nevertheless
again denied the plaintiff’s supplemented sewer exten-
sion application. It provided the following reasons for
its decision: (1) ‘‘[T]he estimated date of completion of
the replacement of the force main under the Saugatuck
River and the upgrades to Pump Station # 2 is likely to
be summer of 2018’’; (2) ‘‘currently there is not sufficient
capacity in the system to accommodate the proposed
sewer line extension’’; (3) the defendant agreed with
Edwards’ recommendation ‘‘against approving any proj-
ect, whether conditional or not, that required more
capacity than is available’’; (4) the defendant, as a mat-
ter of policy, had never granted a conditional approval
because ‘‘[e]vents could occur after a conditional
approval that, if known at the time of approval, would
have caused an application to be denied or modified,’’
and ‘‘[t]here is no reason to grant approvals to extend
a sewer prior to the time when the extension can physi-
cally be implemented’’; (5) ‘‘[a]llocation of capacity
prior to the completion of necessary work by the town
is unfair to other developers and potential users who
have been advised to wait until the work is complete
to file applications’’; (6) ‘‘although it is not the function
of the [defendant] to consider land use issues in making
its decisions (other than to the extent capacity may be
affected), the application submitted by the [plaintiff]
pursuant to the remand order was substantially differ-
ent from the application that is the subject of the
appeal’’; and (7) ‘‘[the plaintiff] failed to provide a com-
pelling reason to grant a conditional approval. The
[plaintiff’s] only stated reason was that it would benefit
its ability to plan its project. That reason does not out-
weigh the public policy reasons for not granting condi-
tional approvals (as set forth in item #4 . . .).’’
The plaintiff again appealed the denial of its applica-
tion to the Superior Court, arguing that its property
was located in the town’s sewer district and, thus, could
not be developed without sewer access. The plaintiff
further claimed that the record was clear that ample
sewer capacity exists or soon would exist for the pro-
posed use, there had been no showing of any engi-
neering impediments to tying into the sewer system,
and the sewer extension would be privately funded.
According to the plaintiff, on those facts, the defendant
had a nondiscretionary duty to grant the sewer exten-
sion application or, in the alternative, abused its discre-
tion by failing to do so.
Following briefing, the appeal was heard on April 3,
2018.9 The court again sustained the plaintiff’s appeal
and reversed the decision of the defendant. In a memo-
randum of decision filed on May 7, 2018, the court
rejected the plaintiff’s argument that the defendant had
a ministerial duty to grant its extension because the
plaintiff did not seek merely to connect to an existing
sewer system but to construct an extension to that
system, which required the defendant to exercise judg-
ment and discretion. See Dauti Construction, LLC v.
Water & Sewer Authority, 125 Conn. App. 652, 664, 10
A.3d 84 (2010) (noting that, in determining whether
water pollution control authority’s action was ministe-
rial or discretionary in nature, courts distinguish
between requests to connect to an existing sewer sys-
tem and those seeking to construct an extension to
sewer system), cert. denied, 300 Conn. 924, 15 A.3d 629
(2011). The court nevertheless agreed with the plaintiff
that the defendant’s denial of the sewer extension appli-
cation was arbitrary and an abuse of its discretion.
The court concluded that the defendant had based its
decision primarily on the fact that the sewer upgrades
and repairs necessary to provide the capacity for the
plaintiff’s proposed development had not been com-
pleted, rather than on any potential topographical or
engineering considerations. Rather than render a deci-
sion on the basis of the merits of the application, the
court determined that the defendant arbitrarily had
decided that the application was premature and that
issuing a conditional approval was against an estab-
lished policy.
The court remanded the application to the defendant
for a second time, now with direction that it condition-
ally approve the application for the project as amended,
subject to the following conditions: ‘‘(1) Construction
of the sewer extension may not begin until such time
as the force main replacement under the Saugatuck
River and the upgrade of the pump station number
two are complete and the town’s public works director
confirms that the public sewer system has the capacity
to receive, transport, and discharge to the treatment
plant the sewage to be discharged from the applicant’s
proposed multifamily residential development. Con-
struction of the sewer extension includes cutting of
trees and clearing of vegetation.
‘‘(2) The applicant understands and accepts that it
may be assessed a cost of an upgrade to the capacity
of pump station number two.’’ This court subsequently
granted the defendant’s petition for certification to
appeal, and the defendant timely filed the present
appeal.10
The defendant claims that, by sustaining the plain-
tiff’s appeal and remanding the matter back to the defen-
dant with direction to grant the sewer extension appli-
cation, the trial court improperly substituted its own
judgment for the reasoned and lawful discretion exer-
cised by the defendant. The defendant advances several
arguments related to its claim. First, it argues that the
court failed to identify any specific statute or regulation
that the defendant violated by denying the sewer exten-
sion application, which had included a request to grant
conditional approval. Next, it argues that, although the
court concluded that the defendant did not have a minis-
terial duty to grant the application but, rather, was
entitled to exercise its discretion in determining
whether to approve the application, the court effec-
tively rendered the decision ministerial by concluding
that because the plaintiff’s application complied with
all of the defendant’s engineering and administrative
requirements, the failure to grant approval was arbi-
trary. The defendant further argues that, contrary to
the court’s decision, there was evidence in the record
demonstrating that the defendant had not granted a
conditional approval in the past thirty years, which
effectively constituted a policy to which the defendant
was entitled to adhere. Finally, the defendant contends
that the court used language that appeared to imply,
without any supporting evidence, that the defendant’s
denial of the application was motivated by a bias against
affordable housing.
The plaintiff counters that, on the basis of the record
presented, the court properly determined that the
defendant acted arbitrarily and abused its discretion in
failing to grant a conditional approval. In addition to
reasserting its argument that the defendant had a minis-
terial obligation to approve the sewer extension applica-
tion, the plaintiff contends that, even if the defendant’s
action was discretionary, it abused that discretion
because it used its limited authority over the sewer
system to make a land use decision and to improperly
thwart an unwanted multifamily residential develop-
ment. We agree with defendant that, under the circum-
stances, whether to grant a conditional approval of a
sewer extension application was a decision properly
left to the discretion of the defendant, and the court
impermissibly substituted its own discretion and judg-
ment for that of the defendant by overriding its decision
and ordering a conditional approval of the application.
We begin by setting forth applicable principles of law,
including our standard of review. ‘‘[W]ater pollution
control authorities are quasi-municipal corporations
created pursuant to statute that may exercise the power
to acquire, construct, maintain, supervise, manage and
operate a sewer system and perform any act pertinent
to the collection, transportation and disposal of sewage.
. . . In defining the powers and duties of such authori-
ties, [General Statutes] § 7-247 (a) provides, inter alia,
that they may establish and revise rules and regulations
for the supervision, management, control, operation
and use of a sewerage system, including rules and regu-
lations prohibiting or regulating the discharge into a
sewerage system of any sewage or any stormwater run-
off which in the opinion of the water pollution control
authority will adversely affect any part or any process of
the sewerage system . . . .’’ (Citation omitted; internal
quotation marks omitted.) Dauti Construction, LLC v.
Water & Sewer Authority, supra, 125 Conn. App. 661.
Accordingly, ‘‘[i]n considering an application for
sewer service, a water pollution control authority per-
forms an administrative function related to the exercise
of its powers. . . . When a water pollution control
authority performs its administrative functions, a
reviewing court’s standard of review of the [authority’s]
action is limited to whether it was illegal, arbitrary or
in abuse of [its] discretion . . . . Moreover, there is a
strong presumption of regularity in the proceedings
of a public agency, and we give such agencies broad
discretion in the performance of their administrative
duties, provided that no statute or regulation is vio-
lated. . . .
‘‘With respect to factual findings, a reviewing court
is bound by the substantial evidence rule, according to
which, [c]onclusions reached by [the authority] must
be upheld by the trial court if they are reasonably sup-
ported by the record. . . . The question is not whether
the trial court would have reached the same conclusion,
but whether the record before the [authority] supports
the decision reached. . . . If a trial court finds that
there is substantial evidence to support a [water pollu-
tion control authority’s] findings, it cannot substitute
its judgment as to the weight of the evidence for that
of the [authority]. . . . If there is conflicting evidence
in support of the [authority’s] stated rationale, the
reviewing court . . . cannot substitute its judgment for
that of the [authority]. . . . The [authority’s] decision
must be sustained if an examination of the record dis-
closes evidence that supports any one of the reasons
given. . . . Accordingly, we review the record to
ascertain whether it contains such substantial evidence
and whether the decision of the defendant was rendered
in an arbitrary or discriminatory fashion. . . . We
review the court’s decision to determine if, when
reviewing the decision of the administrative agency, it
acted unreasonably, illegally, or in abuse of its discre-
tion.’’ (Citation omitted; emphasis added; internal quo-
tation marks omitted.) Landmark Development Group,
LLC v. Water & Sewer Commission, 184 Conn. App.
303, 316–17, 194 A.3d 1241, cert. denied, 330 Conn. 937,
195 A.3d 385, cert. denied, 330 Conn. 937, 195 A.3d
386 (2018).
As our Supreme Court has emphasized, ‘‘water pollu-
tion control authorities are afforded broad discretion in
deciding whether to provide sewer service to property
owners, but cannot exercise that discretion in an arbi-
trary or discriminatory manner . . . .’’ Forest Walk,
LLC v. Water Pollution Control Authority, 291 Conn.
271, 279, 968 A.2d 345 (2009). Only if it appears that a
public agency reasonably could have reached only one
conclusion is it proper for a court to ‘‘direct that agency
to do that which the conclusion requires.’’ Dauti Con-
struction, LLC v. Water & Sewer Authority, supra, 125
Conn. App. 664.
Turning to the present case, one of the reasons stated
by the defendant for denying the supplemented applica-
tion was that there currently was insufficient capacity in
the sewer system to service the proposed development.
Although it was anticipated that the system would have
the necessary capacity once the ongoing repairs and
upgrades to it were completed, the defendant also con-
cluded that granting an approval conditioned on the
future completion of such work was unwarranted. In
accordance with applicable standards of review, unless
that rationale was illegal, arbitrary, or constituted an
abuse of discretion, it was entitled to deference from
the court. See Landmark Development Group, LLC v.
Water & Sewer Commission, supra, 184 Conn. App.
316.
A municipal land use or related administrative agency
generally may conditionally approve an application sub-
mitted for its consideration provided that the conditions
imposed ‘‘are within the scope of the agency’s statutory
authority and are an attempt to implement its existing
regulations for a specific project on which the agency
acts in an administrative capacity.’’ R. Fuller, 9 Connect-
icut Practice Series: Land Use Law and Practice (4th
Ed. 2015) § 22:16, p. 721. Our appellate courts have
upheld the use of conditional approvals with respect
to land use related applications noting that, even in
cases in which the application is conditioned on events
outside the control of the granting authority, such as
obtaining approval from another agency, a conditional
approval can ‘‘achieve greater flexibility in zoning
administration by avoiding stalemates between a zoning
authority and other municipal agencies over which it
has no control.’’ Blaker v. Planning & Zoning Commis-
sion, 212 Conn. 471, 482, 562 A.2d 1093 (1989). The
mere fact, however, that a conditional approval of an
application would be a viable option available to an
agency in considering an application does not mean
that the agency must exercise that option whenever
possible and in all situations.
In CMB Capital Appreciation, LLC v. Planning &
Zoning Commission, 124 Conn. App. 379, 4 A.3d 1256
(2010), cert. granted, 299 Conn. 925, 11 A.3d 150 (2011)
(appeal withdrawn September 15, 2011), this court was
asked to decide whether it was proper for the trial court
to order the planning and zoning commission to approve
conditionally an affordable housing site plan applica-
tion that was filed pursuant to General Statutes § 8-30g
and which the commission had denied on the ground
that a necessary sewer connection application, most
likely, would be denied. This court affirmed the decision
of the trial court, concluding that, rather than denying
the application, the commission was required to grant
the affordable housing application on the condition that
the plaintiff obtain approval from the sewer authority.
Id., 394, 399. In reaching this conclusion, this court
provided an overview of our case law regarding condi-
tional approvals. See id., 386–90.
Of particular relevance to the present appeal, is this
court’s discussion in CMB Capital Appreciation, LLC,
of Kaufman v. Zoning Commission, 232 Conn. 122,
653 A.2d 798 (1995), in which our Supreme Court held
that, unless a zoning commission could demonstrate
that its refusal to grant the conditional approval of an
affordable housing application was necessary to protect
substantial public interests, ‘‘the conditional granting of
[the application] was not only authorized but required.’’
(Emphasis added.) Id., 164. In discussing conditional
approvals in general, our Supreme Court in Kaufman
noted, however, that even though a commission is
empowered to grant conditional approval of an applica-
tion, the mere existence of such authority does not
‘‘demonstrate that the commission was . . . required
to do so. In our past cases approving conditional zoning,
we have described conditional zoning not as an obliga-
tion, but as a means of achieving greater flexibility in
zoning administration . . . .’’ (Emphasis added; inter-
nal quotation marks omitted.) Id., 165. Although the
court in Kaufman proceeded to hold that conditional
zoning was an obligation in the context of an affordable
housing application because imposing such a require-
ment would help to advance an expressed legislative
goal of encouraging the construction of affordable hous-
ing; id., 164; the court’s language strongly suggests that,
outside of that specific context, whether to grant condi-
tional approval of an application remains a matter of
agency discretion. Moreover, in AvalonBay Communi-
ties, Inc. v. Sewer Commission, 270 Conn. 409, 431–433,
853 A.2d 497 (2004), our Supreme Court made clear
that the rules governing zoning approval of affordable
housing applications did not extend to the decisions of
a water pollution control authority, and ‘‘the legislature
has not required water pollution control authorities to
treat applications related to developments with
affordable housing components differently from appli-
cations for other types of developments, as it has with
other municipal bodies.’’ Id., 432–33.
Unlike in Kaufman and CMB Capital Appreciation,
LLC, the application at issue in the present appeal was
not for zoning approval of an affordable housing appli-
cation filed pursuant to § 8-30g, but an application for
a sewer extension filed pursuant to § 7-246a.11 Neverthe-
less, the court concluded that granting conditional
approval of the sewer extension application was
required to afford the plaintiff the opportunity to con-
tinue to make progress on its affordable housing project
while at the same time protecting against any risk of
harm to the public’s interest in proper waste water
management. By stating that a ‘‘conditional approval in
the present case would protect against the risk of harm
to the public [interest],’’ the court substituted its own
decision-making calculus for that of the municipal
agency entrusted with discretionary authority over such
matters. The court also mistakenly cited to CMB Capi-
tal Appreciation, LLC v. Planning & Zoning Commis-
sion, supra, 124 Conn. App. 391, for the proposition
that a conditional approval of the application would
advance ‘‘the legislative purpose of encouraging the
construction of affordable housing’’ (internal quotation
marks omitted); even though such consideration should
be limited to affordable housing zoning applications
and not to applications before a water pollution control
authority. See AvalonBay Communities, Inc. v. Sewer
Commission, supra, 270 Conn. 431–33.
In exercising its discretion, the defendant chose to
reject the rationale relied on by the trial court in favor
of a more cautious approach that required the plaintiff
to file a new application once it could demonstrate
that sufficient sewer capacity existed for the planned
development. Although the defendant’s decision is con-
trary to the approach the trial court favored, the record
does not support a conclusion that the defendant’s deci-
sion was illegal, arbitrary, or an abuse of discretion.
Accordingly, the defendant was entitled to a presump-
tion of regularity in its decision-making process. See
Landmark Development Group, LLC v. Water & Sewer
Commission, supra, 184 Conn. App. 316 (‘‘question is
not whether the trial court would have reached the
same conclusion, but whether the record before the
[authority] supports the decision reached’’ [internal
quotation marks omitted]). In exercising its discretion
not to grant a conditional approval in this case, the
defendant explained that unknown and unforeseen
problems potentially could arise between the time of
approval and the completion of the sewer upgrades that
could adversely impact the town. Although the plaintiff
attempts to make much of the fact that the defendant
did not provide specific examples of the types of prob-
lems it foresaw, we are unconvinced that the lack of
detailed explication so undermined the defendant’s rea-
soning as to permit the trial court to disregard it and
substitute what the court clearly believed was a more
equitable outcome.
Finally, the defendant provided the additional ratio-
nale that it was a settled policy of the defendant not
to grant conditional approval of applications. The court
found that there was no evidence that any such policy
existed. The existence of an officially promulgated pol-
icy, however, was not essential in order to justify the
position taken by the defendant. There was unrebutted
testimony by Edwards that the defendant had not
granted a conditional approval in more than thirty years.
That testimony was evidence upon which the defendant
was entitled to rely, and it was sufficient to demonstrate
that the defendant had a practice to refrain from grant-
ing conditional approvals and, by choosing not to do
so in the present case, it was not acting arbitrarily
but, rather, in accordance with its usual practices and
procedures. Having reviewed the record and the argu-
ments of the parties, we conclude that the court improp-
erly substituted its own discretion and judgment for
that of the defendant.
The judgment is reversed and the case is remanded
with direction to render judgment denying the plain-
tiff’s appeal.
In this opinion the other judges concurred.
1
The defendant also claims that the trial court improperly determined
that the defendant had the authority to grant the application despite a
negative report from the town’s planning and zoning commission that was
issued pursuant to General Statutes § 8-24. That provision provides in rele-
vant part that ‘‘[n]o municipal agency or legislative body shall . . . extend
public utilities . . . until the proposal to take such action has been referred
to the [municipal planning and zoning] commission for a report. . . .’’
Because we reverse the judgment of the trial court on the basis of the
defendant’s claim that the court improperly substituted its judgment for
that of the defendant, it is unnecessary to decide whether the court correctly
determined that a negative § 8-24 report by the town’s zoning commission
did not preclude, as a matter of law, the granting of the sewer extension
application by the defendant. We conclude that this issue is not likely to
recur on remand because our disposition requires no further action on the
present application and, thus, we do not exercise our discretion to review
it. See, e.g., Sullivan v. Metro-North Commuter Railroad Co., 292 Conn.
150, 164, 971 A.2d 676 (2009) (addressing claim likely to arise during proceed-
ing on remand); Barlow v. Commissioner of Correction, 166 Conn. App.
408, 427, 142 A.3d 290 (2016) (same), appeal dismissed, 328 Conn. 610, 182
A.3d 78 (2018). Furthermore, it is entirely speculative on the present record
whether this precise issue, which raises complicated questions of statutory
construction, is likely to arise again in the present case even if the plaintiff
renews or files a revised sewer extension application and that application
is referred for a new § 8-24 report. The primary reason for the prior negative
report was the unfinished sewer repairs and upgrades, which may no longer
be an issue. Given our reversal of the judgment on other grounds, any further
discussion of the issue would be tantamount to an advisory opinion, which
we cannot render. See Tyler E. Lyman, Inc. v. Lodrini, 78 Conn. App. 582,
589–90 n.5, 828 A.2d 676 (2003).
2
General Statutes § 7-246a provides: ‘‘(a) Whenever an application or
request is made to a water pollution control authority or sewer district for
(1) a determination of the adequacy of sewer capacity related to a proposed
use of land, (2) approval to hook up to a sewer system at the expense of
the applicant, or (3) approval of any other proposal for wastewater treatment
or disposal at the expense of the applicant, the water pollution control
authority or sewer district shall make a decision on such application or
request within sixty-five days from the date of receipt, as defined in subsec-
tion (c) of section 8-7d, of such application or request. The applicant may
consent to one or more extensions of such period, provided the total of
such extensions shall not exceed sixty-five days.
‘‘(b) Notwithstanding any other provision of the general statutes, an appeal
may be taken from an action of a water pollution control agency or sewer
district pursuant to subsection (a) of this section in accordance with section
8-8.’’
3
In addition to the sewer extension, the application also sought a sewer
capacity allocation and conditional approval to connect to the sewer system.
4
The town had appropriated money needed to upgrade the sewer system
in 2015 and had contracted out the design work.
5
The representative town meeting is the legislative body of the town.
General Statutes § 8-24 provides in relevant part that ‘‘[a] proposal disap-
proved by the commission shall be adopted by the municipality . . . only
after the subsequent approval of the proposal by (A) a two-thirds vote of
the town council where one exists, or a majority vote of those present and
voting in an annual or special town meeting, or (B) a two-thirds vote of the
representative town meeting or city council or the warden and burgesses,
as the case may be. . . .’’
6
The trial court found that the zoning commission’s negative report was
not based on any identified concern regarding the plan of development or
existing zoning regulations but solely on the basis of sewer capacity, which
was an issue for the defendant and outside the authority of the zoning
commission to consider. This observation caused the court to question the
motive behind the zoning commission’s decision to issue a negative report.
The court made no express finding, however, that the defendant’s decision
was similarly the result of an improper motive or bias.
7
The plaintiff’s motions to supplement the record sought to offer evidence
demonstrating that the sewer upgrades and repairs were on track to be
completed by the summer of 2017, which contradicted the testimony of the
public works director that the repairs could take as long as four years to
complete. The defendant argued that the evidence the plaintiff sought to
admit postdated its decision to deny the sewer extension application and,
thus, was not relevant to the issues raised in the appeal. The court determined
that the additional evidence was ‘‘necessary for the equitable disposition of
the appeal’’ and granted the motions to supplement the record. The defendant
has not challenged the court’s decision to grant those motions as part of
its appeal to this court. Furthermore, the supplemental information at issue
was presented to and considered by the defendant on remand.
8
Although the defendant later argued to the trial court that this change
in development plans exceeded the scope of the court’s remand order, the
court rejected that argument indicating that, although the plaintiff revised
the number of units from 155 to 187, that change had no meaningful effect
on the issue of available capacity and, therefore, was inconsequential in
nature. In the present appeal, the defendant has not challenged this aspect
of the court’s decision.
9
In its brief to this court, the plaintiff claims that, at the April 3, 2018
hearing, the parties stipulated that the new force main had been installed
under the Saugatuck River but was not yet connected to the town’s sewer
system, although this would be accomplished within forty-five to sixty days.
The parties also allegedly stipulated that the upgrade to the pump station
would occur no later than August, 2018 and that, once these steps were
completed, the town’s sewer system would have sufficient capacity for the
plaintiff’s proposed residential development. If such a written stipulation
or motion was filed, it does not appear in the record. Furthermore, neither
of the parties included a copy of any written stipulation in its appendix,
and, if oral, neither party ordered a transcript of the hearing before the trial
court. Accordingly, we have no way of verifying what facts, if any, were
stipulated to before the trial court. This lacuna in the record hampers our
consideration of whether and to what degree the alleged stipulated facts
may have influenced the court’s decision to sustain the appeal and to order
the conditional approval of the plaintiff’s application.
10
The trial court’s judgment remanding the case to the defendant raises
the issue of whether the trial court’s ruling constitutes an appealable final
judgment. Appeals from the decisions of water pollution control authorities
are not governed by the Uniform Administrative Procedure Act, General
Statutes § 4-183 (j), which expressly provides that ‘‘a remand is a final
judgment.’’ Rather, such appeals are governed by § 7-246a (b), which pro-
vides in relevant part that ‘‘an appeal may be taken from an action of a
water pollution control agency . . . in accordance with [General Statutes
§] 8-8,’’ the statute governing appeals from zoning boards and commissions.
Thus, as with a zoning appeal, ‘‘it is the scope of the remand order in [a]
particular case that determines the finality of [a] trial court’s judgment.’’
(Internal quotation marks omitted.) Barry v. Historic District Commission,
108 Conn. App. 682, 688, 950 A.2d 1, cert. denied, 289 Conn. 942, 959 A.2d
1008, cert. denied, 289 Conn. 943, 959 A.2d 1008 (2008). ‘‘A judgment of
remand is final if it so concludes the rights of the parties that further
proceedings cannot affect them. . . . A judgment of remand is not final,
however, if it requires [the agency to make] further evidentiary determina-
tions that are not merely ministerial.’’ (Citations omitted; internal quotation
marks omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 130, 653
A.2d 798 (1995). In the present case, the trial court’s remand order directed
the agency to approve the plaintiff’s sewer extension application and did
not require it to make further evidentiary determinations before doing so.
Consequently, the trial court’s decision so concluded the rights of the parties
that further proceedings could not affect them, and, thus, the trial court’s
remand order constitutes an appealable final judgment. See id., 131; see
also Children’s School, Inc. v. Zoning Board of Appeals, 66 Conn. App. 615,
617–19, 785 A.2d 607 (final judgment because remand ordered approval of
special exception application subject to conditions and zoning board not
required to make further evidentiary determinations), cert. denied, 259 Conn.
903, 789 A.2d 990 (2001).
11
The court indicated in its memorandum of decision that the parties
conceded at argument that § 8-30g does not apply to this case.