Autumn View, LLC v. Planning & Zoning Commission ( 2019 )

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AUTUMN VIEW, LLC, ET AL. v. PLANNING AND
ZONING COMMISSION OF THE
TOWN OF EAST HAVEN
(AC 41220)
DiPentima, C. J., and Prescott and Moll, Js.
Syllabus
The plaintiffs appealed to the trial court from the decision of the defendant,
the Planning and Zoning Commission of the Town of East Haven, denying
their application for approval of an affordable housing development.
The plaintiffs, owners of undeveloped real property in East Haven,
submitted, pursuant to statute (§ 8-30g), an affordable housing applica-
tion that sought to amend the zoning regulations to create a new mixed
income housing zone and to construct 105 detached single-family homes.
The defendant initially denied the plaintiffs’ application on several
grounds, including, inter alia, that it had insufficient drainage, and the
plaintiffs subsequently revised their application to address those con-
cerns. At a hearing on the revised application, the defendant presented
the findings of an engineer, who had prepared a report on the plaintiffs’
revised application that had not been made available to the plaintiffs
until the day of the hearing and which raised concerns regarding the
revised application’s storm water drainage system. Despite the plaintiffs’
requests to continue the hearing so they could review the engineer’s
report, the defendant concluded the hearing that night and denied the
revised application on essentially the same grounds as the initial applica-
tion. Thereafter, the plaintiffs appealed to the Superior Court, which
sustained the appeal in part and remanded the case to the defendant
with respect to five issues related to storm water drainage. To comply
with the court’s remand order, the plaintiffs hired an engineer to assist
them in addressing the storm water drainage issues and resubmitted
their application to the defendant with a revised storm drainage plan.
Subsequently, the defendant denied the plaintiffs’ resubmitted applica-
tion on several grounds, including, inter alia, that the resubmission
failed to address the concerns of the defendant’s engineer and that the
resubmitted application varied so much from the revised application
that it was actually an entirely new application. Thereafter, the plaintiffs
appealed to the Superior Court, which rendered judgment sustaining
the appeal, from which the defendant, on the granting of certification,
appealed to this court. Held:
1. The Superior Court did not err in concluding that the affordable housing
application resubmitted in response to the court’s remand order was
not a new application; that court properly reviewed the differences
between the remand site plan and the modified site plan and determined
that the changes made to the remand application were done in order
to comply with concerns regarding storm drainage, as the layout of the
plan was fundamentally unchanged, changes were made in order to
address the storm water drainage issues raised by the report of the
defendant’s engineer, and, thus, because the site plan submitted with
the remand application was an updated plan consistent with the Superior
Court’s remand order, it did not constitute a new plan.
2. The defendant could not prevail on its claim that the plaintiffs’ remand
application, which included a new storm water drainage system, was
beyond the scope of the remand order; the essential purpose of the
remand order, which required the defendant to provide the plaintiffs with
an opportunity to respond to the concerns of the defendant’s engineer
regarding storm drainage issues, was fulfilled when the plaintiffs’ engi-
neer worked with the defendant’s engineer to resolve the storm water
management issues and reached a consensus on the technical elements
of the drainage system, the record demonstrated how the remand appli-
cation satisfied the reservations of the defendant’s engineer about the
storm water drainage and, therefore, the remand application was well
within the scope of the remand order.
3. The defendant could not prevail on its claim that the Superior Court
improperly concluded that evidence that the application failed to comply
with town zoning regulations and that the storm water drainage system
posed significant dangers to human health and safety did not support
the defendant’s denial of the applications: noncompliance with a zoning
regulation alone was not sufficient to support the defendant’s denial
under § 8-30g (g), as the principal aim of the statute is to prevent a
pretextual denial of an affordable housing application and § 8-30g (g)
required the defendant to affirmatively prove that its decision to deny
an affordable housing development was necessary to protect substantial
public interests in health, safety, or other matters, that such public
interests clearly outweighed the need for affordable housing, and that
such public interests could not be protected by reasonable changes to
the affordable housing development, and the defendant’s listing of rea-
sons why the affordable housing application was denied did not meet
the standard required by § 8-30g (g); moreover, the defendant, in denying
the different versions of the plaintiffs’ applications, failed to demonstrate
that there was any, much less sufficient, evidence in the record to
showed that denying the affordable housing development was necessary
to protect a substantial interest in health and safety, and the record
indicated that the plaintiffs satisfactorily complied with the concerns of
the defendant’s engineer regarding the storm water management system.
Argued April 11—officially released September 24, 2019
Procedural History
Appeal from the decision of the defendant denying
the plaintiffs’ application for approval of an affordable
housing development, brought to the Superior Court in
the judicial district of New Haven and transferred to
the judicial district of Hartford, Land Use Litigation
Docket, where the matter was tried to the court, Berger,
J.; judgment sustaining in part the plaintiffs’ appeal
and remanding the matter to the defendant for further
proceedings; thereafter, the court rendered judgment
sustaining the plaintiffs’ appeal, from which the defen-
dant, on the granting of certification, appealed to this
court. Affirmed.
Alfred J. Zullo, for the appellant (defendant).
Timothy S. Hollister, for the appellees (plaintiffs).
Opinion
DiPENTIMA, C. J. ‘‘[T]he key purpose of [General
Statutes] § 8-30g is to encourage and facilitate the much
needed development of affordable housing throughout
the state.’’ West Hartford Interfaith Coalition, Inc. v.
Town Council, 228 Conn. 498, 511, 636 A.3d 1342 (1994).
Accordingly, in passing the affordable housing statute,
the legislature eliminated the deference traditionally
given to commission judgments for affordable housing
applications. See Quarry Knoll II Corp. v. Planning &
Zoning Commission, 256 Conn. 674, 716, 780 A.2d 1
(2001). This case exemplifies the significance of this
aspect of the affordable housing statute enacted in 1989.
The defendant, the Planning and Zoning Commission
of the Town of East Haven, appeals from the decision
of the Superior Court, sustaining the appeal of the plain-
tiffs, Autumn View, LLC (Autumn View), Statewide Con-
struction Corporation, and Vicki Imperato. On appeal,
the defendant claims that the court improperly con-
cluded that (1) the September 27, 2016 affordable hous-
ing application filed by the plaintiffs pursuant to § 8-
30g was not a new application, (2) the September 27,
2016 application complied with a remand order issued
by the Superior Court, (3) evidence regarding the failure
to comply with town regulations did not support the
defendant’s denial of the application, and (4) evidence
of how the storm water drainage aspects of the applica-
tion posed significant dangers to human health and
safety did not support the defendant’s denial of the
application.1 We disagree and, accordingly, affirm the
judgment of the Superior Court.
The record reveals the following facts and procedural
history. The plaintiffs are the owners of 17.09 acres of
undeveloped real property that includes frontage on
Strong Street and South Strong Street and abuts the
New Haven Municipal Golf Course. The property con-
tains several abandoned structures but is otherwise
undeveloped and contains no wetlands.
Pursuant to § 8-30g (b) (1), the plaintiffs submitted
an affordable housing application on December 20,
2012, that sought to amend the East Haven zoning regu-
lations to create a new ‘‘mixed income housing’’ zone,
to rezone the property to the newly created zone and
to approve a site plan to construct 105 detached single-
family homes in common interest ownership with thirty-
two homes deed restricted for forty years. To comply
with the requirement of § 8-30g (a) (6) that at least
thirty percent of the houses be price restricted, the plan
set aside thirty-two homes to be offered at a reduced
price. Sixteen homes were to be sold at sixty percent
of the median price in East Haven, and the other sixteen
would be sold at eighty percent of the median. Based
on 2012 data, the reduced price homes would be offered
at $155,175 and $222,084, respectively. The defendant
held a public hearing on the plaintiffs’ application on
February 6 and 20, 2013. In response to concerns raised
during the hearings, the plaintiffs submitted revisions
to the application that included changes to the detention
basins, sidewalks and lighting plan. Despite these revi-
sions, the defendant denied the application at a hearing
held on March 6, 2013.2 The defendant also suggested
that the plaintiffs make a number of changes to the site
plan and zone change request in their application.3
In accordance with § 8-30g (h),4 the plaintiffs submit-
ted a modified application to the defendant on March
27, 2013. The modified application responded to the
defendant’s reasons for denial5 of the revised applica-
tion and addressed the suggestions set forth by the
defendant.6
On May 29, 2013, the defendant held a public hearing
on the modified application. In preparation for this hear-
ing, the defendant retained an engineer, Geoffrey Jacob-
sen, to review, criticize, and comment on the site plan
submitted by the plaintiffs as part of the modified appli-
cation. He prepared a report regarding the plaintiffs’
plan submitted with their modified application, which
was not made available to the plaintiffs until the public
hearing on May 29, 2013. As a result, the plaintiffs were
unable to review and respond to Jacobsen’s criticisms.
Despite repeated requests by the plaintiffs for a continu-
ance in order to respond to the Jacobsen report, the
hearing concluded that same night.
On June 5, 2013, the defendant denied the modified
application for essentially the same reasons it had
denied the plaintiffs’ previous application.7 On June 24,
2013, the plaintiffs appealed from the denial of the modi-
fied application to the Superior Court as provided in
§ 8-30g (h). On December 23, 2014, the Superior Court
sustained the plaintiffs’ appeal in part and remanded
the case to the defendant for further proceedings. Spe-
cifically, the Superior Court remanded the modified
application site plan and the corresponding proposed
zone change to the defendant only with respect to five
issues related to storm water management.8 The court
required the defendant to ‘‘schedule, as soon as reason-
ably possible, a meeting at which it will allow the plain-
tiffs to respond, comment and discuss with the [defen-
dant] Jacobsen’s analysis with particular attention to
storm water management . . . and storm water qual-
ity . . . .’’
In order to effectuate the court’s remand order, the
plaintiffs submitted another application to the defen-
dant on September 27, 2016 (remand application).9 The
defendant held hearings on November 30 and December
8, 2016. At the outset, the plaintiffs’ counsel provided
an overview of the procedural history involving the
application and the changes that had been made in
response to the Superior Court’s remand order. He
emphasized how the purpose of the hearing was to
discuss the storm water issues on which the Superior
Court’s remand order had focused and to reach agree-
ment about the technical comments on the storm water
revisions in the remand application.
To prepare the site plan for the remand application,
the plaintiffs retained an engineering firm, Milone and
MacBroom, to develop the site plan and conduct storm
water calculations. Ted Hart, an engineer from Milone
and MacBroom, addressed the defendant and described
how, in preparing the design work for the remand appli-
cation, he and his team reviewed the 2013 site plan, the
report by Jacobsen dated May 28, 2013, and the 2014
Superior Court’s remand order. He explained in detail
the new storm water system in the site plan for the
remand application, emphasizing how this site plan
addressed each of the five issues set forth in the remand
order. Hart concluded by saying that ‘‘the plans and the
storm water management design meets the comments
in the 2013 review letter by Jacobsen Associates and
. . . we have been back and forth with Jacobsen Asso-
ciates and I believe we have addressed the comments.
I met with [Jacobsen] this morning quickly and went
through our last comments and responses and he is
going to be going through our responses probably one
more time.’’
The hearing was continued to December 8, 2016,
when Hart testified that Jacobsen had reviewed the
storm water plans prepared by Hart and his firm for
the remand application. He further described his com-
munications with Jacobsen regarding the remand appli-
cation site plan. Jacobsen also addressed the defendant
at that hearing and described his communications with
Hart’s office since the November 30, 2016 hearing.
Jacobsen noted that the plaintiffs had agreed to accept
any additional comments or conditions that he may
have on any of the outstanding aspects of the site plan.
During the December 8, 2016 hearing, members of
the defendant questioned the plaintiffs’ counsel about
the scope of the remand application. Some commission-
ers thought these revisions had changed the site plan
so substantially that it could not be considered a new
iteration but, instead, required a new application. The
plaintiffs’ counsel disagreed and described the minor
changes that had been made to the modified applica-
tion, most of which were made in order for the site
plan submitted with the remand application to meet
Jacobsen’s concerns regarding the 2013 application.
The defendant provided the following reasons for its
decision to deny the remand application: (1) ‘‘The
[plaintiffs] failed to respond to the remand order of the
court as they failed to address Jacobsen’s analysis as to
the resubmission dated March 27, 2013, with particular
attention to storm water management . . . and storm
water quality. . . as contained in his report dated May
28, 2013’’; (2) ‘‘[t]he submission to the [defendant] con-
stitutes an entirely new plan, which is not contemplated
or allowed under . . . [§] 8-30g (h) or any other statute
regulating affordable housing applications’’; (3) ‘‘[t]he
[plaintiffs] failed to prepare and resubmit hydrology
reports, runoff calculations, and storm water impact
analyses in response to Jacobsen’s requests as to the
resubmission dated March 27, 2013, and instead pre-
pared an entirely new plan for a new development with a
new drainage system thus supporting the [defendant’s]
original decision that the drainage system proposed in
the March 27, 2013 plan could not be built as designed
and would not function as designed’’; (4) ‘‘[t]he new
plan did not comply with . . . § 8-30g and is not a valid
. . . § 8-30g [application] insofar as it carelessly fails
to meet the 30 [percent] affordable housing ‘set aside’
requirement specified in . . . § 8-30g [and] [t]he plan
further violates the [plaintiffs’] own regulations as con-
tained in the definition of its [mixed income housing
district] as well as [their] own affordability plan by
failing to provide for 30 [percent] of the units to be set
aside for affordable housing’’; (5) ‘‘[t]he plan violates
[their] own [mixed income housing district] setback
provisions as to the location of the culverts and [fifteen]
of the units’’; (6) ‘‘[t]he plan failed to address the ade-
quacy and effectiveness of the natural mechanical filtra-
tion mechanisms intended to treat runoff and the pre-
vention of a discharge of solids into nearby water
sources’’; (7) ‘‘[t]he new plan contemplates a huge infra-
structure project to connect to the storm water system
with a new sewer hookup being built on Strong Street
and down onto Robby Lane [and] [t]here was no evi-
dence before the [defendant] as to the true scope of that
project and its impact on the adjoining neighborhoods’’;
and (8) ‘‘[t]he new plan did not comply in several
respects with the provisions relative to affordable hous-
ing development and the [defendant] did not have suffi-
cient information to develop the appropriate conditions
that would be necessary to approve it.’’
The plaintiffs appealed from the denial of their
remand application to the Superior Court. The court
heard argument on April 10, 2017, and issued its memo-
randum of decision on July 24, 2017. In sustaining the
plaintiffs’ appeal, the court concluded that the ‘‘record
indicates that [the plaintiffs] satisfactorily complied
with Jacobsen’s concerns regarding the substantive
water management modifications. Additionally, the
[defendant] failed to comply with the mandatory review
process of § 8-30g (g) and has not sustained its burden
of proof under the statute.’’ The defendant thereafter
filed a petition for certification to appeal pursuant to
General Statutes § 8-8a (o). We granted the defendant’s
petition, and this appeal followed.
We begin our analysis by setting forth the legal princi-
ples that guide our review. Section 8-30g is a remedial
statute that exists outside of the traditional land use
statutory scheme. See Wisniowski v. Planning Com-
mission, 37 Conn. App. 303, 317–18, 655 A.2d 1146,
cert. denied, 233 Conn. 909, 658 A.2d 981 (1995). The
legislature enacted the statute to address what the tradi-
tional land use scheme had failed to do, namely, to
confront the affordable housing crisis in Connecticut.
See id., 316–17.
Section 8-30g (g) provides in relevant part: ‘‘Upon
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 on 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.’’
Consistent with the remedial goals of this statute,
§ 8-30g (g) further provides that ‘‘[i]f the commission
does not satisfy its burden of proof under this subsec-
tion, 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.’’ Accordingly, the statute autho-
rizes the reviewing court ‘‘to employ much more expan-
sive remedies than are available to courts in traditional
zoning appeals.’’ (Internal quotation marks omitted.)
Brenmor Properties, LLC v. Planning & Zoning Com-
mission, 162 Conn. App. 678, 710–11, 136 A.3d 24
(2016), aff’d, 326 Conn. 55, 161 A.3d 545 (2017); see
also Wisniowski v. Planning Commission, supra, 37
Conn. App. 320 (‘‘§ 8-30g (c) takes away some of the
discretion that local commissions have under tradi-
tional land use law and allows the reviewing trial court
to effect a zone change if the local commission cannot
satisfy the statutory requirements for its denial of an
application’’); R. Fuller, 9B Connecticut Practice Series:
Land Use Law and Practice (4th Ed. 2015) § 51.5, p. 192
(§ 8-30g grants ‘‘more authority than provided for in
other administrative appeals, and court can direct
agency to approve project as is or with suggested modi-
fications’’); M. Westbrook, ‘‘Connecticut’s New
Affordable Housing Appeals Procedure: Assaulting the
Presumptive Validity of Land Use Decisions,’’ 66 Conn.
B.J. 169, 194 (1992) (describing how appeal procedure
of § 8-30g provides the reviewing ‘‘court great latitude’’
and ‘‘several options for providing relief to the
developer’’).
The standard of review embodied in § 8-30g (g)
requires the court to engage in a two part analysis. See
JPI Partners, LLC. v. Planning & Zoning Board, 259
Conn. 675, 690, 791 A.2d 552 (2002), citing Quarry Knoll
II Corp. v. Planning & Zoning Commission, supra, 256
Conn. 726–27. First, a reviewing court must ‘‘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 estab-
lishes that there is more than a mere theoretical possi-
bility, but not necessarily a likelihood, of a specific
harm to the public interest if the application is granted.’’
(Citation omitted; internal quotation marks omitted.)
River Bend Associates, Inc. v. Zoning Commission,
271 Conn. 1, 26, 856 A.2d 973 (2004). If the record
demonstrates that this standard is met, the reviewing
court ‘‘must conduct a plenary review of the record and
determine . . . 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
interest clearly outweighs the need for affordable hous-
ing, and whether the public interest can be protected
by reasonable changes to the affordable housing devel-
opment.’’ Id. ‘‘Because the plaintiff[s’] appeal to the trial
court is based solely on the record, the scope of the
trial court’s review of the [defendant’s] decision and
the scope of [an appellate court’s] review of that deci-
sion are the same.’’ (Internal quotation marks omitted).
Id., 26–27, n.15.
I
The defendant first claims that the Superior Court
erred by concluding that the affordable housing applica-
tion filed by the plaintiffs pursuant to § 8-30g on Septem-
ber 27, 2016, was not a new application. The plaintiffs
counter that the court properly determined that the
remand application submitted on September 27, 2016,
did not constitute a new site plan but, rather, was an
updated plan submitted in accordance with its remand
order pursuant to § 8-30g (g). We agree with the
plaintiffs.
‘‘Determining the scope of a remand [order] is a mat-
ter of law . . . [over which] our review is plenary.’’
(Citations omitted.) State v. Tabone, 301 Conn. 708,
713–14, 23 A.3d 689 (2011). Accordingly, we review
whether the Superior Court properly determined that
the remand application was within the scope of the
remand order under this standard.
The following additional facts are necessary for our
discussion of this claim. At the December 8, 2016 hear-
ing, defendant’s chairman asked the plaintiffs’ counsel:
‘‘After reading [this] . . . why wouldn’t you with these
major changes just supply us with a new application?
. . . [T]here have been so many numerous changes,
am I correct to state that, a modified site plan of this
magnitude would have to come for a new hearing?’’ The
plaintiffs’ counsel responded: ‘‘[W]e actually considered
that and the answer and the conclusion that we came
to is . . . it’s basically the same plan. The streets are
in the same place; they are in the same location. We
have reduced the number [of units] down twice . . .
[t]he question that would cause you to think about a
new application would be if there was some substantial
off site impact that was not part of the first application,
the previous application. And we have reduced the
impacts. We have responded to . . . Jacobsen’s con-
cerns, but it’s basically the same plan.’’ The defendant,
however, concluded that the remand application was
an ‘‘entirely new’’ application. For that reason, among
others, the defendant denied this application.
The Superior Court reviewed the differences between
the remand site plan and the modified site plan and
determined that the changes that were made to the
remand application were done in order to comply with
Jacobsen’s concerns. Specifically, the court noted that
while there are four fewer units in the remand plan,
the layout of the plan is fundamentally unchanged. The
road widths, curbs, sidewalks, utilities, open space,
parking, setbacks, landscaping and architecture are
essentially the same as the March, 2013 modified appli-
cation. The Superior Court further noted that the
changes were made in order to address the storm water
drainage issues raised by Jacobsen’s report. These
changes included modifications to detention ponds one
and two and the addition of detention pond three in
place of the club house and detention pond four in
place of five units. We agree with the Superior Court’s
determination that these changes were made in
response to Jacobsen’s report. Thus, because the site
plan submitted with the remand application was an
updated plan consistent with the Superior Court’s
remand order; see General Statutes § 8-30g (g); it did
not constitute a new plan. Further, on appeal to this
court, the defendant provided limited analysis in sup-
port of its assertion that the remand application was
truly a new application. Accordingly, we find no reason
to reverse the Superior Court’s determination that the
remand application was not a new application.10
II
The defendant next claims that the Superior Court
erred by concluding that the September 27, 2016 appli-
cation submitted by the plaintiffs complied with the
court’s remand order. The defendant claims that the
Superior Court’s language was ‘‘clear and unequivocal’’
in that it directed the plaintiffs to present additional
evidence to the defendant about the modified applica-
tion’s storm water drainage system that had been sub-
mitted on March 27, 2013, before the remand order. Put
another way, the defendant contends that the remand
order allowed the plaintiffs to present additional infor-
mation only about the storm water drainage plan as it
was designed in the March, 2013 plan. Accordingly, the
defendant claims that the remand application, which
included the new storm water drainage system, is
beyond the scope of the remand order. This is an incor-
rect interpretation of the Superior Court’s remand
order.
‘‘When a case is remanded for a rehearing, the trial
court’s jurisdiction and duties are limited to the scope
of the order.’’ Leabo v. Leninski, 9 Conn. App. 299, 301,
518 A.2d 667 (1986), cert. denied, 202 Conn. 806, 520
A.2d 1286 (1987); see also Tomasso Brothers, Inc. v.
October Twenty-Four, Inc., 230 Conn. 641, 643 n.3, 646
A.2d 133 (1994) (discussing how claim exceeding scope
of remand to trial court is not properly part of current
appeal). Remands to an administrative agency are sub-
ject to the same limitations. Garden Homes Manage-
ment Corp. v. Planning & Zoning Commission, 191
Conn. App. 736, 764–65, A.3d (2019). In
reviewing remand applications, there must be some
‘‘give and take’’ between local planning and zoning
boards and the applicants before them. See Frito-Lay,
Inc. v. Planning & Zoning Commission, 206 Conn.
554, 567, 538 A.2d 1039 (1988) (‘‘[T]he very purpose of
[a] hearing [is] to afford an opportunity to interested
parties to make known their views and to enable the
board to be guided by them. It is implicit in such a
procedure that changes in the original proposal may
ensue as a result of the views expressed at the hearing.’’
[Internal quotation marks omitted.]).
The remand order from the Superior Court required
the defendant to provide the plaintiffs with an opportu-
nity to respond to Jacobsen’s comments about the
storm water drainage system. The exchanges between
the defendant’s and plaintiffs’ experts over the course
of a year exemplify the Superior Court’s subsequent
observation that ‘‘the lengthy administrative review pro-
cess worked as intended; changes were made to an
application as part of the review process with com-
ments and further responses.’’ As a result of this com-
munication between Jacobsen and the plaintiffs’
experts, the remand application contained a revised
storm water drainage system that addressed the con-
cerns contained in Jacobsen’s report.
The record demonstrates how the remand application
satisfied Jacobsen’s reservations about the storm water
drainage. At the November 30, 2016 hearing, Jacobsen
discussed his communications with Hart, the plaintiffs’
engineer, about the remand application site plan. He
stated: ‘‘[T]here have been . . . some substantial
improvements in the overall plan since 2013 . . . .
[T]here has been a fair amount of back and forth
between our office and . . . Hart’s office in terms of
addressing not only the 2013 comments, but the follow
up comments that we had on November 11, [2016] and
then an e-mail exchange with even additional follow
up comments that we had over the course on December
2, [2016] and December 5, [2016]. Today we received I
think probably . . . the third . . . revision of the
storm water management report which we did look at
today. We spent the better part of the day looking at
[it]. We did not until this evening receive the actual
plans. So, I haven’t really looked at the plans. There
were a number of, I would say, relatively minor com-
ments that would have to be preferably looking at the
plans and we haven’t done that. The storm water man-
agement report addresses the three key criteria that
are in the East Haven regulations and it has been
designed in accordance with the guidelines established
in the 2004 storm water quality manual. Now the basins
that have [been] designed will retain the runoff.’’
Jacobsen continued: ‘‘So there’s a substantial volume
that’s retained in these [storm water] basins before it
ever overflows into the storm drainage system in Strong
Street and then into Grannis Lake. So they have
addressed the volume aspect that [is] in the regulations.
They have addressed the peak discharge requirement
in the regulations. And by virtue of the fact that there’s
no discharge from the basin until a 50 year . . . storm,
they have addressed the suspended solids aspect
because there will be no discharge. Now the state guide-
lines require what they called the water quality volume
to be retained with the basin without overflowing it
and that’s the first inch . . . of runoff. And that’s really
to address what they call the first flush phenomenon
which is the initial runoff on the site that falls on land,
that falls on pavement and washes away that stuff off
fairly quickly and if that deposits in the basin at the
very beginning of the storm. And they have addressed
that aspect.’’ Jacobsen concluded his comments by say-
ing that the plaintiffs had agreed to accept any new
comments or conditions that Jacobsen may have going
forward about the application.
Thus, the court correctly found that the plaintiffs had
addressed and resolved Jacobsen’s concerns regarding
the drainage issues. This was in accordance with the
remand order, which provided the plaintiffs with the
opportunity to address Jacobsen’s concerns. Thus, the
essential purpose of the remand order was fulfilled
when Hart, the plaintiffs’ engineer, worked with Jacob-
sen to resolve the storm water management issues and
the two parties reached a consensus on the technical
elements of the storm water drainage system. Indeed, at
oral argument before this court, the defendant’s counsel
stated that the remand application site plan, which
includes the new drainage system, is ‘‘a better plan’’
than the site plan proposed in the 2013 applications.
Jacobsen’s concerns about the storm water drainage
system were remedied in the remand application, which
was well within the scope of the Superior Court’s
remand order.
Accordingly, we agree with the Superior Court’s
determination that the remand application submitted
by the plaintiffs on September 27, 2016, complied with
the remand order.11
III
The defendant next claims that the Superior Court
erred by improperly concluding that (1) evidence
regarding the application’s failure to comply with town
regulations did not support the defendant’s denial of
the revised and remand applications and (2) evidence
of how the storm water drainage system described in
the application submitted with the remand application
posed significant dangers to human health and safety
did not support the defendant’s denial of the applica-
tions. Because the defendant failed to meet its burden
to show that sufficient evidence existed in the record
to support its denial of the revised and remand applica-
tions as necessary to protect health and safety, it cannot
prevail on these claims.
The core requirement of § 8-30g requires a planning
and zoning commission to prove that its decision to
deny an affordable housing development is necessary
to protect substantial public interests in health, safety,
or other matters that the commission may legally con-
sider; such public interests clearly outweigh the need
for affordable housing; and such public interests cannot
be protected by reasonable changes to the affordable
housing development. General Statutes § 8-30g (g).
There must be sufficient evidence in the record to sup-
port the commission’s denial. General Statutes § 8-30g
(g); see, e.g., Brenmor Properties, LLC v. Planning &
Zoning Commission, supra, 162 Conn. App. 698–700.
Sufficient evidence in the context of § 8-30g (g) is ‘‘less
than a preponderance of the evidence, but more than
a mere possibility. . . . [T]he zoning commission need
not establish that the effects it sought to avoid by deny-
ing the application are definite or more likely than not
to occur, but that such evidence must establish more
than a mere possibility of such occurrence.’’ (Internal
quotation marks omitted.) Christian Activities Coun-
cil, Congregational v. Town Council, 249 Conn. 566,
585, 735 A.2d 231 (1999). The defendant did not need
to prove that there is a definite likelihood of a certain
type of harm due to the development, but it did have to
demonstrate that there is more than a mere theoretical
possibility. See River Bend Associates, Inc. v. Zoning
Commission, supra, 271 Conn. 26.
First, the defendant argues that the Superior Court
should have considered the fact that the plaintiffs’ appli-
cations did not comply with a particular East Haven
zoning regulation12 regarding the submission of a storm
water management plan, including calculations of
storm water runoff rates and inclusion of a hydrology
report, with the modified plan on March 27, 2013, as
support for the denial of the remand application submit-
ted on September 27, 2013. At the January 11, 2017
hearing, Demayo, one of the defendant’s members,
argued that ‘‘the [plaintiffs’] decision not to prepare and
submit hydrology reports, runoff calculations and storm
water impact analysis in response to Jacobsen’s analy-
sis as to the resubmission dated March 27, 2013, and
rather to prepare an entirely new plan for a new devel-
opment with a new drainage system supports the
[defendant’s] original decision that the drainage system
contemplated in the March 27, 2013 plan could not be
built as designed and would not function as designed.’’
As noted by the Superior Court, by submitting the
remand application with a revised storm water drainage
system, however, the previous forms of the plaintiffs’
application and any accompanying noncompliance with
East Haven zoning regulations had been superseded. It
may well be that the 2013 versions of the application
did include an inadequate storm water drainage system,
but with the submission of the remand application, any
such deficiency had been remedied. The application
submitted on September 27, 2016, replaced the 2013
applications, and accordingly, any zoning noncompli-
ance issues with those applications were not pertinent
to the consideration of the 2016 application. Hart also
testified during the hearing on the remand application
that relevant East Haven zoning regulations and DEEP
water quality standards had been met.
Failing to comply with a zoning regulation that is
directed to protect public health and safety may satisfy
the sufficient evidence requirement under § 8-30g (g).
Brenmor Properties, LLC v. Planning & Zoning Com-
mission, supra, 162 Conn. App. 698. The commission,
however, must still demonstrate that denying an appli-
cation on the basis of a failure to comply with a certain
zoning ordinance is necessary under § 8-30g (g). Id.
Noncompliance with a zoning regulation alone is not
enough to support a commission’s denial of an
affordable housing development application under § 8-
30g (g). See id., 698–99. The principal aim of § 8-30g
(g) is to prevent pretextual denial of affordable housing
applications. See id., 697. Section 8-30g (g) ‘‘does not
allow a commission to use its traditional zoning regula-
tions to justify a denial of an affordable housing applica-
tion, but rather forces the commission to satisfy the
statutory burden of proof.’’ Wisniowski v. Planning
Commission, supra, 37 Conn. App. 317; see also Quarry
Knoll II Corp. v. Planning & Zoning Commission,
supra, 294 Conn. 716. In order for noncompliance of a
zoning regulation to support a commission’s denial of
an affordable housing application filed pursuant to § 8-
30g, the commission must further demonstrate, as part
of its burden in an affordable housing application
appeal, that compliance with such standards is neces-
sary to protect the public interest, that the risk of harm
clearly outweighs the need for affordable housing, and
that there is no reasonable change to the affordable
housing development that could be made to protect the
public interest. Brenmor Properties, LLC v. Planning &
Zoning Commission, supra, 699–700. Here, the defen-
dant failed to demonstrate how the plaintiffs’ purported
lack of compliance with a zoning regulation would meet
this burden required under § 8-30 (g). Thus, even if
any noncompliance of the 2013 plans with East Haven
zoning regulations was pertinent to the court’s review
of the defendant’s denial of the September 27, 2016
remand application, the defendant failed to carry its
burden under § 8-30g (g).
In addition, the defendant argues that the court failed
to consider evidence in the record about the risks to
health and safety posed by both the March 27, 2013
modified application and the September 27, 2016
remand application. Here, too, the defendant failed to
meet its burden under § 8-30g (g). The defendant argues
that because it provided reasons why the plaintiffs’
applications were denied, the defendant met its burden
under § 8-30g (g). This is an inaccurate characterization
of the defendant’s statutory duties under § 8-30g (g).
As noted by the Superior Court and discussed pre-
viously, § 8-30g (g) places an affirmative duty on a
commission to demonstrate that its denial of an applica-
tion is necessary to protect the public interest, that the
risk of harm clearly outweighs the need for affordable
housing, and that there is no reasonable change to the
affordable housing development that could be made to
protect the public interest. Here, in denying the different
versions of the plaintiffs’ applications, the defendant
failed to demonstrate that there is any, much less suffi-
cient, evidence in the record that shows that denying
the affordable housing development was necessary to
protect a substantial interest in health and safety. Sim-
ply listing reasons why an affordable housing applica-
tion was denied does not meet the standard of § 8-30g
(g). Thus, the Superior Court correctly determined that
the defendant failed to carry its burden pursuant to
§ 8-30g.
In conclusion, we agree with Superior Court’s apt
summary sustaining the plaintiffs’ appeal: ‘‘The record
indicates that [the plaintiffs] satisfactorily complied
with Jacobsen’s concerns regarding the substantive
water management modifications. Additionally, the
[defendant] failed to comply with the mandatory review
process of § 8-30g (g) and has not sustained its burden
of proof under the statute. Specifically, the [defen-
dant’s] decision on remand is not supported by suffi-
cient evidence in the record. There is not even a theoret-
ical possibility of harm articulated by the [defendant].
Even if there were and assuming arguendo that storm
water management is a substantial public interest, a
review of the record does not indicate how the [defen-
dant’s] denial on remand is necessary to protect the
public interest, how the public interest outweighed the
need for affordable housing, or that the public interest
could not be protected by changes to the plan.’’
The judgment is affirmed.
In this opinion, the other judges concurred.
1
We address the defendant’s third and fourth claims together as the issues
are intertwined.
2
The defendant provided the following reasons for denying the applica-
tion: (1) ‘‘[T]he project is simply too dense and almost quadruples the
allowable development in [the] zone’’; (2) ‘‘[t]he application is not consistent
with the neighborhoods’’; (3) ‘‘[t]he application fails to comply with [East
Haven’s] standard relative to roads and sidewalks,’’ which require thirty foot
roads and four and one-half feet sidewalks, (4) ‘‘[t]he plan has insufficient
drainage’’; (5) ‘‘[t]he application, because of its density, would put a severe
strain on public services including, but not limited to, education’’; (6) ‘‘[t]here
are other larger sites in [East Haven] that would more readily accommodate
the development with this number of units’’; (7) ‘‘[t]he proposed application,
as [a] § 8-30g proposal, fails to provide an adequate affordability plan in
that [the plaintiffs] failed [to] present an accurate calculation of sales price[s]
for both 60 [percent] and 80 [percent] median income units an[d] they
have failed to designate an affordable manager that would manage the plan
throughout the [forty] years of its life’’; (8) the plan fails to comply with
frontage guidelines and there should be at least 30 percent open space; and
(9) ‘‘[t]he allowable zone definition gives rise to abuse as other large parcels
in other parts of [East Haven] can be converted to a . . . mixed income
housing development in contravention of [East Haven’s] [p]lan of [d]evel-
opment.’’
3
These suggested changes were as follows: (1) The project consist of no
more than sixty units, (2) have thirty foot roadways and four and one-
half foot sidewalks, (3) minimum road frontage of sixty feet, (4) minimum
sidelines of fifteen feet, (5) minimum front yard setbacks of twenty-five
feet, (6) minimum rear yard setbacks of thirty feet from the retention basin
and twenty five feet otherwise, (7) retention basins in the middle of the
development, (8) correct pricing calculations regarding the median price of
the affordable homes, (9) amended dimensional standards, (10) sufficient
off street overflow and visitor parking and (11) an agreement with an admin-
istrator that would be available after completion of the project to administer
the program for the forty years of its term.
4
General Statutes § 8-30g (h) provides, in relevant part, that an applicant
whose affordable application is denied can ‘‘submit to the commission a
proposed modification of its proposal responding to some or all of the
objections or restrictions articulated by the commission, which shall be
treated as an amendment to the original proposal. . . .’’
5
The modified application stated: (1) ‘‘Density, variation from an existing
approval, and allegations regarding lack of consistency with the [p]lan of
[c]onservation and [d]evelopment are not valid reasons for denial of an
application pursuant to § 8-30g’’; (2) ‘‘[t]he homes proposed are comparable
in size and quality to many of those in the surrounding residential neighbor-
hood’’; (3) ‘‘[t]he application and related [mixed income housing] [d]istrict
regulation have been revised to require and provide for roads [thirty] feet
wide and sidewalks [four and one-half] feet wide’’; (4) ‘‘[t]he development
discharges to the public storm system, with no increase in the rate of runoff,
and with appropriate storm water renovation’’; (5) ‘‘[f]iscal zoning and, in
particular, a desire to exclude school children, is not a valid reason to deny
any application pursuant to § 8-30g’’; (6) ‘‘[n]one of the owners of [other
large parcels in East Haven] have proposed to develop them for affordable
housing’’; and (7) ‘‘[t]he affordability plan has been revised’’ to correct the
sales prices and provides for an administrator.
6
The plan submitted with the modified application also addressed the
suggestions provided by the defendant in the following ways: (1) ‘‘Limiting
the maximum number of units to [sixty] is not necessary to protect public
health and safety’’; (2) ‘‘[t]he plan has been revised to include [thirty] foot
wide roadways and [four and one-half] foot wide sidewalks’’; (3) ‘‘[m]inimum
road frontage of [sixty] feet is not necessary to protect public health and
safety’’; (4) ‘‘[m]inimum sidelines of [fifteen] feet are not necessary to protect
public health and safety’’; (5) ‘‘[m]inimum front yard setbacks of [twenty-
five] feet are not necessary to protect public health and safety’’; (6) ‘‘[m]ini-
mum rear yard setbacks of [thirty] feet from the detention basins and [twenty-
five] feet otherwise are not necessary to protect public health and safety’’
but ‘‘[t]he minimum rear yard setback has been increased to [twenty] feet’’;
(7) ‘‘[r]elocation of the detention basins to the middle of the property is not
necessary to protect public health and safety’’; (8) ‘‘[r]evised calculations
are provided’’; and (9) ‘‘[t]he revised affordability plan provides for the
designation of an [a]dministrator.’’
7
Specifically, the defendant stated: (1) ‘‘The project remains too dense
and is inconsistent with surrounding neighborhoods’’; (2) ‘‘[t]he project fails
to abide by [the plaintiffs’] own development standards as to setbacks and
building location’’; (3) ‘‘[t]he project fails to comply with [East Haven’s]
standards relative to [four and one-half] foot sidewalks on both sides of the
street and street lights to ensure health and safety of the homeowners’’; (4)
‘‘[t]he plan has insufficient off-street parking for residents and visitors to
ensure health and safety in the event of fire or police emergency’’; (5) ‘‘[t]he
plan has insufficient drainage’’ and lacked an agreement to drain into Grannis
Lake; (6) the application was conclusory and devoid of data concerning
run-off; (7) ‘‘[t]he application, because of its density, would put a severe
strain on public services including but not limited to education’’; (8) ‘‘[t]he
retention basin [number one] . . . is inappropriate and inconsistent with
[East Haven’s] zoning regulations and . . . [s]tate [g]uidelines for soil ero-
sion’’ and is unsafe; (9) the dam is ‘‘a structure [that] cannot be located in
a setback area’’; and (10) ‘‘[t]he proposed application . . . fails to provide
an adequate affordability plan . . . and fails to designate an affordable
manager . . . .’’
8
The five issues involving storm water drainage were: (1) ‘‘[T]he plan has
insufficient drainage’’; (2) ‘‘the application is conclusory and devoid of data
concerning runoff’’; (3) ‘‘retention basin number one is inappropriate and
fails to meet both the zoning regulations and the state guidelines for soil
erosion’’; (4) ‘‘the dam is unsafe’’; and (5) ‘‘the dam is a structure that cannot
be located in a setback area.’’
9
Prior to the plaintiffs’ submission of the remand application, the defen-
dant had filed with this court a petition for certification to appeal the decision
of the Superior Court from December 23, 2014. The defendant also sought
a stay from any action until this court rendered a decision on the petition
on April 17, 2015. Both were denied on April 22, 2015.
10
The defendant also argued sparingly in its brief and at oral argument
that the remand application failed as an affordable housing application under
§ 8-30g because the site plan indicated that less than thirty percent of the
units was set aside as affordable housing. The plaintiffs demonstrated that
the number of units on the site plan was incorrectly marked due to a
typographical error. The Superior Court agreed with the plaintiffs’ explana-
tion and also determined that the defendant could have approved the applica-
tion on the condition that the development contain the statutorily required
thirty percent affordable units. Here, the defendant has not demonstrated
that there is any reason for us to overturn the Superior Court’s determination
that the error in the number of units marked on the remand site plan was
no more than a typographical error.
11
This court recently decided Garden Homes Management Corp. v. Plan-
ning & Zoning Commission, 191 Conn. App. 736, A.3d (2019).
That case also involved a denial of a § 8-30g application. Following the
appeal by the plaintiffs to the Superior Court, the court issued a remand
order for the ‘‘issue of the [plaintiffs’] most recent redesign of the access
way and apartment building . . . for due consideration by the commission.
Id., 744. The Superior Court also ordered that the plaintiffs ‘‘should submit
to the commission a fully engineered site plan indicating the provision of
the turning radii necessary to allow [firetrucks] and other large vehicles to
turn around and exit the site with minimal reverse travel, both via elimination
of four parking spaces and three units . . . and by other means.’’ Id., 744–45.
On remand, the plaintiffs submitted a revised site plan that proposed reduc-
ing the number or units and replacing four parking spaces with a fire lane
that would serve as a turnaround for firetrucks. Id., 745. During the hearing
before the defendant regarding the revised plan, the defendant reviewed a
new report that repeated and expanded on concerns regarding the access
way and lack of a secondary entrance, matters on which the Superior Court
ruled, as well as additional information that had not been before the defen-
dant previously. Id., 763. The defendant again denied the application. The
plaintiffs subsequently appealed to the Superior Court, which sustained the
plaintiffs’ appeal. The Superior Court found that the defendant had gone
outside the scope of the limited remand by ‘‘instead of focusing on the issue
that was remanded, using the remand to bolster its previous objections,
which had been ruled on and rejected.’’ Id. This court agreed with the
Superior Court and rejected the defendant’s appeal. This court concluded
that the ‘‘commission had its chance, and was not entitled to treat the court’s
limited remand as a second bite at the apple.’’ Id., 765.
In Garden Homes, the defendant exceeded the scope of the remand order
by reviewing additional information on issues that either the court previously
had ruled on or had not been reviewed by the commission earlier, though
they had the opportunity to do so. The commission did not find that there
were new health and safety risks posed by the revised site plan. Rather,
the defendant used the remand order as an opportunity to rehash past
arguments that had been reviewed and rejected. Id., 763.
Here, the plaintiffs did not exceed the scope of the remand because the
changes made to the remand site plan were done in furtherance of the court’s
remand and to address Jacobsen’s concerns about storm water drainage.
Our conclusion that these revisions do not constitute a new plan does not
foreclose the opportunity for planning and zoning commissions to challenge
revisions in remand plans that pose substantial risks to health and safety.
See § 8-30g (g). Just as the defendant in Garden Homes was unable to
consider new information that was beyond the scope of the remand order,
the plaintiffs here similarly would be barred from making significant changes
to the site plan that were unrelated to the purpose of the remand order. An
example of an unrelated change would be if the plaintiffs added four units
to the site plan to increase the number of units, as opposed to removing
four units in order to add another detention pond. In such an instance, the
additional units had not been added in order to satisfy the remand order’s
focus on storm water drainage and the plaintiffs would have improperly
gone beyond the scope of order. In addition, the defendant would have been
able to apply the mandatory review of § 8-30g to see if the additional units
pose a risk to the health and safety of the community.
12
Section 48.5.7 of the East Haven Zoning Regulations requires ‘‘calcula-
tions of storm water runoff rates, suspended solids removal rates, and soil
infiltration rates before and after completion of the activity being proposed
in the application.’’ Section 48.5.8 requires ‘‘a hydrology study of predevelop-
ment site conditions. Said study shall be conducted at the level of detail
commensurate with the probable impact of the proposed activity and should
extend downstream to the point where the proposed activity causes less
than a five (5) percent change in the peak flow rates.’’