Brenmor Properties, LLC v. Planning & Zoning Commission

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BRENMOR PROPERTIES, LLC v. PLANNING AND
ZONING COMMISSION OF THE
TOWN OF LISBON
(AC 37293)
Gruendel, Mullins and Sullivan, Js.
Argued October 13, 2015—officially released February 2, 2016
(Appeal from Superior Court, judicial district of
Hartford, Land Use Litigation Docket, Shluger, J.)
Michael A. Zizka, for the appellant (defendant).
Timothy S. Hollister, with whom was Andrea L.
Gomes, for the appellee (plaintiff).
Opinion
GRUENDEL, J. The defendant, the Planning and Zon-
ing Commission of the Town of Lisbon (commission),
appeals from the judgment of the Superior Court sus-
taining the administrative appeal of the plaintiff,
Brenmor Properties, LLC. The commission contends
that the court improperly concluded that the plaintiff’s
failures to comply with (1) the road construction stan-
dards established by town ordinance and (2) the Con-
necticut State Fire Prevention Code (fire code) were not
valid grounds to deny its application for an affordable
housing subdivision. The commission also challenges
the propriety of the remand ordered by the court. We
affirm the judgment of the Superior Court.1
The underlying facts are not in dispute. At all relevant
times, the plaintiff owned a 12.92 acre parcel of undevel-
oped land with frontage on Ames Road and Route 169
in Lisbon (property). The property contains a small
pond and 1.9 acres of the property are designated as
wetlands.2 In May, 2012, the plaintiff filed an application
with the commission pursuant to General Statutes § 8-
30g for approval of an affordable housing subdivision.3
The proposed subdivision consisted of nineteen resi-
dential lots with an average size of 29,620 square feet.
On all but one lot, a single-family, three bedroom modu-
lar home4 would be erected.5 The proposal also included
a dedicated septic system and well for each home. With
respect to price restrictions, six of the eighteen pro-
posed homes ‘‘would be deed-restricted for forty years
at prices within the economic reach of moderate income
households, such that, based on 2012 data, three homes
would be preserved for households earning $70,200 or
less and sold at a maximum of $247,000; and three
homes would be preserved for households earning
$52,600 or less and sold at a maximum of $174,000.
Other homes would be sold at market-rate prices in the
range of $275,000.’’6
Four of the proposed lots were to be located on the
westerly side of the property and would be accessed
by driveways on Route 169. The remaining lots were
to be located on the easterly side of the property adja-
cent to Ames Road and would be accessed by a private
roadway, which the plaintiff describes as a ‘‘common
driveway’’7 and the commission characterizes as an
‘‘interior road network.’’8 This appeal concerns that
roadway.9
The commission conducted a public hearing on the
plaintiff’s original application that began on August 7,
2012, and was continued over four additional evenings
on September 4, October 2, November 7, and November
13, 2012. In response to various comments raised during
that hearing, the plaintiff submitted multiple revisions
to its proposal, culminating with its November 13, 2012
‘‘final submission materials.’’ Following the conclusion
of the public hearing, the commission’s legal counsel,
Attorney Michael Zizka, prepared a document dated
January 8, 2013, and entitled ‘‘Brenmor Subdivision
Application Issues and Potential Conditions of
Approval’’ (document). That document delineated
seven issues and provided analysis thereof. At the com-
mission’s regular meeting on January 8, 2013, the com-
mission reviewed those seven issues. The proposed
roadway’s nonconformance with the Lisbon road ordi-
nance (road ordinance)10 generated the most discus-
sion, as the roadway violated its minimum width and
maximum grade requirements.11 On that issue, Commis-
sioners Robert Adams, Ronald Giroux, Kim Sperry,
John Dempsey, Gary Ritacco, Sharon Gabiga and David
Gagnon all concurred that the proposed roadway
needed to comply with the road ordinance as a matter
of public safety.12 When the deliberations concluded,
Zizka stated that, in light of the sentiments expressed
by commission members, his ‘‘recommendation would
be that the commission deny the application for the
reasons set forth in the [document] regarding issues
numbered 1, 2, 4 . . . .’’ Commissioner Giroux then
immediately made such a motion, stating: ‘‘I’d like to
make a motion to deny the application to the issues of
1, 2, 4 . . . .’’13 The motion was approved by a vote
of eight to zero, with one commissioner abstaining.
Following that vote, Zizka remarked for the record that
‘‘as [he] understood it, [the commission is] prepared to
entertain and . . . perhaps even welcome the [plain-
tiff] to come back with . . . a renewed proposal where
the road meets town standards because . . . the belief
is that that would solve most of . . . the issues that
the commission has the greatest concerns with.’’
On January 30, 2013, the plaintiff filed with the com-
mission a modified affordable housing proposal pursu-
ant to § 8-30g (h).14 Consistent with the strictures of
that statutory mechanism, the plaintiff emphasized that
‘‘this resubmission constitutes a continuation of the
application denied January 8; this is not a new applica-
tion.’’ The revised plan contained certain modifications
that the plaintiff made ‘‘in direct response to the [com-
mission’s] January 8, 2013 denial.’’15 That revised plan
nonetheless did not modify the width or grade of the
proposed roadway adjacent to Ames Road so as to fully
comply with the requirements of the road ordinance.
In its written response to the commission’s January 8,
2013 denial of its subdivision application, the plaintiff
acknowledged that the commission at that time had
proposed, as a potential condition of approval, that the
roadway ‘‘shall conform to standards established’’ in
the road ordinance. The plaintiff nonetheless submitted
that such a condition was unnecessary, as ‘‘[t]here is
no expert or other testimony in the record that the
proposed [roadway is] unsafe.’’ The plaintiff thereafter
further revised its proposal, as reflected in its revised
plan that was received by the commission on March
5, 2013.
On March 5, 2013, the commission held a public hear-
ing on the plaintiff’s modified application, as required by
§ 8-30g (h). At its outset, the plaintiff’s representative,
Attorney Timothy Hollister, provided an overview of
the changes to its proposal. On the issue of compliance
with the road ordinance, Hollister candidly acknowl-
edged that ‘‘[w]e just don’t think it’s necessary to build
these internal private roads including the town standard
in terms of widths and sidewalks and turn arounds and
so forth. It’s just not—these don’t serve enough lots that
that’s required to do.’’ Hollister concluded his prefatory
remarks by stating that ‘‘where we end up is really, I
think . . . one big issue . . . and that is . . .
whether this internal, what we call the private internal
roadway system, driveway is safe for the people who
want to live there . . . .’’
Mark Vertucci, a traffic engineer retained by the plain-
tiff, then addressed the commission. Vertucci prepared
a traffic impact study that was submitted with the plain-
tiff’s original application. That study utilized traffic
rates provided by the Institute of Transportation Engi-
neers Trip Generation Manual, an ‘‘industry accepted
resource.’’ Vertucci’s analysis concluded that the pro-
posed subdivision was ‘‘going to be a very low traffic
generator, given the . . . small number of units.’’ Ver-
tucci further concluded that ‘‘the development will pro-
vide safe and efficient access, egress, and circulation
for the residents and guests of the subdivision as well
as the general public entering or passing the property.
In addition, the [proposed roadway] interior to the site
will sufficiently accommodate circulation by emer-
gency vehicles.’’ As part of the plaintiff’s modified appli-
cation, Vertucci provided both a written ‘‘traffic safety
review’’ and testimony before the commission, in which
he opined that the plan set forth in the resubmission
‘‘does provide for safe traffic operations and site circula-
tion. It provides for safe ingress and egress for passen-
ger cars and emergency vehicles [and] does not present
any public health or safety concerns.’’
At that public hearing, the commission’s professional
staff also commented on the modified proposal. James
Rabbitt, the town planner, and Robert DeLuca, the town
engineer, disagreed with the plaintiff’s assertion that
the proposed roadway qualified as a driveway, as it
would provide ‘‘the only access to fifteen single-family
dwellings.’’ Rabbitt and DeLuca both noted that the
proposed roadway did not comply with the minimum
width or maximum grade requirements of the road ordi-
nance. In his March 1, 2013 letter to Rabbitt, DeLuca
had opined that the standards set forth in the road
ordinance ‘‘provide for an appropriate higher level of
safety’’ and reflected ‘‘a typical policy within [Connecti-
cut] municipalities for access roads to multiple resi-
dences as opposed to a shared driveway to 2–3
residences.’’ At the public hearing, DeLuca stated, ‘‘I
do feel that the infrastructure needs to be built com-
pletely to service all these lots safely . . . so that it’ll
be in place so that emergency vehicles can safely get
around regardless of how many houses they have
built.’’16 Although they repeatedly emphasized that the
proposed roadway did not comply with the require-
ments of the road ordinance, neither Rabbitt nor
DeLuca indicated that compliance was necessary to
protect a substantial public interest or that the risk of
harm thereto clearly outweighed the need for
affordable housing.
The commission deliberated the merits of the plain-
tiff’s application at its April 2, 2013 meeting. During
those deliberations, commission members debated
whether to defer their final vote, as Zizka was not pre-
sent at that time but was available to attend a special
meeting the following week. After one unidentified
commissioner indicated his unavailability the following
week, another stated: ‘‘There’s gonna be quite a lot of
information here between the three reports [submitted
by Zizka, DeLuca and Rabbitt]. It’s kind of tough to
make a decision just reading them now.’’ When Chair-
man Adams inquired as to whether his colleagues had
‘‘enough information to vote tonight,’’ an unidentified
commissioner responded: ‘‘I feel that we have enough
information to vote tonight. This has been going on for
quite a while. We did get all this information. It has
been basically the same information over and over and
over. [The plaintiff] made a couple changes last month,
ah. Their attorney basically said to us last month you
can vote tonight because, you know, you know we’re
gonna go to court. They’re gonna deny it. So vote tonight
and get it over with. And, that’s it. And, ah, you know
we’re going over the same stuff tonight we went over
last month and it’s just saying how much stuff you
gonna read on the same subject? You know. It’s the
same thing over and over and over.’’
Shortly thereafter, Chairman Adams then asked,
‘‘[a]ny further discussion?’’ Hearing no reply, he contin-
ued: ‘‘Okay. All in favor of having a motion tonight.
Vote tonight. Who would like to make a motion? And,
and be forewarned. When you make a motion, you have
to be pretty specific. You can’t just say testimony or
other information given by the planner and other staff.
You have to be clear. As many of you know, that [the
plaintiff is] already expecting us, expecting this [com-
mission] to go to court so you have to be pretty specific
and careful on what you’re making a motion and how
you’re presenting it and the reasons you’re for your
motion.’’ At that point, Commissioner Sperry made ‘‘a
motion to deny the resubmitted application based on
the testimony from the town engineer, fire marshal, and
town [attorney]. The road does not meet code, doesn’t
meet fire code, doesn’t meet town code. Um. Based
upon the retraction of the commitment to build the
entire infrastructure and we’re back to a piecemeal
infrastructure as we go. Um, ah, and, um the elimination
of, ah, the, ah, the right of way, um, that can potentially,
ah, put the wells at risk and does not allow the town
the flexibility it needs to, um, maintain or widen or do
work, now or in the future, on Ames Road as well as
I believe Lot 17 is still on the plan and that is not an
approved lot.’’ Chairman Adams then inquired, ‘‘[a]m I
to take that motion to mean, in addition to the other,
ah, information on the record?’’ Commissioner Sperry
replied, ‘‘in addition to the information on the record,
the testimony submitted by [inaudible] engineers, that
[of] the town of Lisbon fire marshal, [and Zizka and
Rabbitt].’’ That motion to deny was approved by a vote
of eight to zero, with one commissioner abstaining.
From that decision, the plaintiff appealed to the Supe-
rior Court. On June 13, 2014, the court issued its memo-
randum of decision. In sustaining the plaintiff’s appeal,
the court concluded that neither noncompliance with
the road ordinance nor noncompliance with the fire
code constituted a valid ground on which to deny the
plaintiff’s application.17 As a result, the court reversed
the ‘‘denial of the plaintiff’s resubmission and
remand[ed] the case to the [commission] with direction
to grant the plaintiff’s resubmission as is.’’ The commis-
sion thereafter filed a petition for certification to appeal
pursuant to General Statutes § 8-8 (o). We granted the
commission’s petition and this appeal followed.
I
As a preliminary matter, we first consider the plain-
tiff’s claim, raised as an alternative ground of
affirmance, that the commission failed to state its rea-
sons for denying the resubmitted application when it
rendered its decision. Section 8-30g obligates a land use
agency ‘‘to make a collective statement of its reasons
on the record when it denies an affordable housing
land use application.’’ JPI Partners, LLC v. Planning &
Zoning Board, 259 Conn. 675, 692, 791 A.2d 552 (2002).
That requirement serves to provide ‘‘a clear basis’’ for a
court to review that decision; (internal quotation marks
omitted) id., 689; as opposed to ‘‘reasons that later might
be culled from the record . . . .’’ (Internal quotation
marks omitted.) Id. ‘‘Requiring the [land use agency]
to state its reasons on the record when it denies an
affordable housing land use application will further that
purpose because it will help guard against possibly pre-
textual denials of such applications.’’ (Internal quota-
tion marks omitted.) Id., 689–90.
At the same time, our Supreme Court has cautioned
against exalting ‘‘form over substance’’ in contemplat-
ing the adequacy of such decisions. Quarry Knoll II
Corp. v. Planning & Zoning Commission, 256 Conn.
674, 730, 780 A.2d 1 (2001). Rather, ‘‘we must recognize
that the commission is composed of laymen whose
procedural expertise may not always comply with the
multitudinous statutory mandates under which they
operate. . . . We must be scrupulous not to hamper
the legitimate activities of civic administrative boards
by indulging in a microscopic search for technical infir-
mities in their actions . . . .’’18 (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Id., 730–31. Affording a degree of latitude is particularly
appropriate in the context of affordable housing
appeals, where—unlike traditional zoning appeals—the
reviewing court is not empowered to scour the record
in search of a proper basis for the agency’s decision.
Christian Activities Council, Congregational v. Town
Council, 249 Conn. 566, 575–76, 735 A.2d 231 (1999)
(outlining differences between affordable housing
appeal and traditional zoning appeal); cf. Verrillo v.
Zoning Board of Appeals, 155 Conn. App. 657, 673,
111 A.3d 473 (2015) (in traditional zoning appeal, when
zoning agency fails to provide collective statement for
its actions, reviewing court obligated to search entire
record to find basis for agency’s decision).
Admittedly, the motion to deny the plaintiff’s modi-
fied application was not a model of precision. It none-
theless set forth various grounds for denial in plain
fashion. In particular, the motion stated that the pro-
posed roadway did not comply with the town code or
the fire code. In that respect, the motion echoed the
commission’s January 8, 2013 denial of the plaintiff’s
original application, in which the formal motion incor-
porated by reference the document detailing the com-
mission’s concerns regarding noncompliance with both
the road ordinance and the fire code. As a result, we
conclude that the record contains a clear basis on which
to review the commission’s decision.19 We therefore
turn our attention to the distinct claims raised by the
commission in this appeal.
II
The commission’s principal claim is that the court
improperly concluded that the plaintiff’s noncompli-
ance with the road ordinance did not constitute a valid
ground on which to deny its affordable housing applica-
tion. The commission maintains that because the road
ordinance is a municipal legislative enactment aimed
at protecting public health and safety, ‘‘any deviation
from the ordinance’s standards should be deemed unac-
ceptable per se.’’
The parameters of our review of an affordable hous-
ing appeal are circumscribed by § 8-30g (g).20 Section
8-30g (g) provides: ‘‘Upon an appeal taken under subsec-
tion (f) of this section, the burden shall be on the com-
mission 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 bur-
den to prove, based upon the evidence in the record
compiled before such commission, that (1) (A) the deci-
sion is necessary to protect substantial public interests
in health, safety or other matters which the commission
may legally consider; (B) such public interests clearly
outweigh the need for affordable housing; and (C) such
public interests cannot be protected by reasonable
changes to the affordable housing development, or (2)
(A) the application which was the subject of the deci-
sion from which such appeal was taken would locate
affordable housing in an area which is zoned for indus-
trial use and which does not permit residential uses;
and (B) the development is not assisted housing, as
defined in subsection (a) of this section. If the commis-
sion does not satisfy its burden of proof under this
subsection, the court shall wholly or partly revise, mod-
ify, remand or reverse the decision from which the
appeal was taken in a manner consistent with the evi-
dence in the record before it.’’
The standard of review embodied in § 8-30g (g) is
twofold in nature. See JPI Partners, LLC v. Planning &
Zoning Board, supra, 259 Conn. 690. 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 establishes that there is more than
a mere theoretical possibility, but not necessarily a like-
lihood, of a specific harm to the public interest if the
application is granted.’’ (Citation omitted; internal quo-
tation marks omitted.) River Bend Associates, Inc. v.
Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973
(2004). If that standard is met, the reviewing court then
‘‘must conduct a plenary review of the record and deter-
mine . . . whether the commission’s decision was nec-
essary to protect substantial interests in health, safety
or other matters that the commission legally may con-
sider, whether the risk of such harm to such public
interests clearly outweighs the need for affordable
housing, and whether the public interest can be pro-
tected by reasonable changes to the affordable housing
development.’’ Id. That plenary review entails an inde-
pendent review of the land use agency’s decision ‘‘based
upon [the reviewing court’s] own scrupulous examina-
tion of the record.’’21 Quarry Knoll II Corp. v. Plan-
ning & Zoning Commission, supra, 256 Conn. 727.
A
We therefore begin with the question of whether the
commission’s decision to deny the modified application
due to the plaintiff’s noncompliance with the road ordi-
nance is supported by sufficient evidence in the record.
Our Supreme Court has ‘‘defined sufficient evidence in
this context to mean 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 denying 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 Council, Congregational v. Town
Council, supra, 249 Conn. 585. Notably, that court also
has indicated that the sufficient evidence standard
imposes a ‘‘lesser burden’’ than the substantial evidence
standard. Kaufman v. Zoning Commission, 232 Conn.
122, 149–50, 653 A.2d 798 (1995).
The substantial evidence standard has been
described as one that ‘‘is highly deferential and permits
less judicial scrutiny than a clearly erroneous or weight
of the evidence standard of review.’’ (Internal quotation
marks omitted.) New England Cable Television Assn.,
Inc. v. Dept. of Public Utility Control, 247 Conn. 95,
118, 717 A.2d 1276 (1998); accord Dickinson v. Zurko,
527 U.S. 150, 153, 119 S. Ct. 1816, 144 L. Ed. 2d 143
(1999) (clearly erroneous standard stricter than sub-
stantial evidence standard); Brunswick v. Statewide
Grievance Committee, 103 Conn. App. 601, 612, 931
A.2d 319 (‘‘[t]he substantial evidence standard is even
more deferential’’ than clearly erroneous standard),
cert. denied, 284 Conn. 929, 934 A.2d 244 (2007).
Because the sufficient evidence standard applicable to
affordable housing appeals imposes a lesser burden
than substantial evidence, that burden is minimal. A
land use agency simply must establish that something
‘‘more than a mere theoretical possibility’’ of harm to
the public interest exists. River Bend Associates, Inc.
v. Zoning Commission, supra, 271 Conn. 26.
As a municipal legislative enactment, the road ordi-
nance is entitled to a presumption that it is predicated
on a legitimate public policy. See Pollio v. Planning
Commission, 232 Conn. 44, 49, 652 A.2d 1026 (1995)
(‘‘a presumption of validity is accorded to municipal
ordinances’’); see also State v. Santiago, 318 Conn. 1,
72 n.62, 122 A.3d 1 (presumption that legislative body
acted for legitimate reasons), rehearing denied, 319
Conn. 912, A.3d (2015); Tine v. Zoning Board of
Appeals, 308 Conn. 300, 306, 63 A.3d 910 (2013) (pre-
sumption that legislative bodies do not intend to enact
meaningless provisions). The road ordinance at issue
here expressly indicates that its purpose is to ‘‘protect
the public health and safety.’’ See footnote 10 of this
opinion. In furtherance of that aim, the ordinance pre-
scribes, inter alia, minimum widths and maximum
grades for roads constructed in Lisbon. In light of the
foregoing, the commission reasonably could conclude
that noncompliance therewith creates more than a mere
theoretical possibility of harm to public health and
safety. We therefore agree with the commission that
noncompliance with a municipal legislative enactment
intended to protect the public health and safety consti-
tutes evidence sufficient to satisfy the minimal thresh-
old determination under § 8-30g (g).
B
We next consider whether the commission’s decision
to deny the plaintiff’s application due to noncompliance
with the road ordinance ‘‘was necessary to protect sub-
stantial interests in health, safety or other matters that
the commission legally may consider [and] whether the
risk of such harm to such public interests clearly out-
weighs the need for affordable housing . . . .’’
(Emphasis added.) River Bend Associates, Inc. v. Zon-
ing Commission, supra, 271 Conn. 26. On those ques-
tions, our review is plenary. Id., 22.
The commission claims that ‘‘any deviation’’ from the
requirements set forth in the road ordinance entitles it
to deny an affordable housing application. We disagree.
As our case law recognizes, § 8-30g is a remedial statute.
Kaufman v. Zoning Commission, supra, 232 Conn. 140.
A principal aim of § 8-30g is to prevent prextextual
denials. See, e.g., Quarry Knoll II Corp. v. Planning &
Zoning Commission, supra, 256 Conn. 729; Town Close
Associates v. Planning & Zoning Commission, 42
Conn. App. 94, 105, 679 A.2d 378, cert. denied, 239 Conn.
914, 682 A.2d 1014 (1996). That purpose easily would
be thwarted were we to adopt the ‘‘per se’’ rule proposed
by the commission regarding noncompliance with
municipal legislative enactments. It is axiomatic that
we must ‘‘construe a statute in a manner that will not
thwart its intended purpose . . . .’’ (Internal quotation
marks omitted.) Tayco Corp. v. Planning & Zoning
Commission, 294 Conn. 673, 686, 986 A.2d 290 (2010).
Furthermore, the commission’s contention also is
contrary to another purpose of that statute, which is
to eliminate the traditional deference to such municipal
legislative enactments. As our Supreme Court observed,
‘‘[b]ecause of the importance of developing affordable
housing, the normally applicable presumption of regu-
larity that applies to municipal enactments would not
apply in Affordable Housing Appeals.’’ (Internal quota-
tion marks omitted.) Quarry Knoll II Corp. v. Plan-
ning & Zoning Commission, supra, 256 Conn. 716,
quoting Blue Ribbon Commission on Housing, Report
and Recommendations to the Governor and General
Assembly (February 1, 1989) p. A-9. Consistent with
that purpose, our precedent instructs that noncompli-
ance with a municipal legislative enactment alone does
not furnish a proper basis for a land use agency to deny
an affordable housing application. Rather, the agency
also must determine whether, in light of the rationale
underlying the municipal legislative enactment, compli-
ance is necessary to protect a substantial public interest
and whether the risk of harm to that interest clearly
outweighs the need for affordable housing.
As this court has held, § 8-30g ‘‘does not allow a
commission to use its traditional zoning regulations to
justify a denial of an affordable housing application,
but rather forces the commission to satisfy the statutory
burden of proof.’’ Wisniowski v. Planning Commis-
sion, 37 Conn. App. 303, 317, 655 A.2d 1146, cert. denied,
233 Conn. 909, 658 A.2d 981 (1995). It is well established
that a zoning regulation, like a road ordinance, is a
municipal legislative enactment. See Spero v. Zoning
Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590
(1991); Harlow v. Planning & Zoning Commission,
194 Conn. 187, 193, 479 A.2d 808 (1984). ‘‘The zoning
commission, in the enactment of zoning regulations
[acts as] a municipal legislative body.’’ Lebanon v.
Woods, 153 Conn. 182, 190, 215 A.2d 112 (1965); see
also Dinan v. Board of Zoning Appeals, 220 Conn. 61,
74, 595 A.2d 864 (1991) (describing zoning commission
as ‘‘[t]he municipal legislative body empowered to
adopt zoning regulations’’); Planning & Zoning Com-
mission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823
(1988) (‘‘[p]romulgation of zoning regulations is a legis-
lative process, although local in scope’’); Parks v. Plan-
ning & Zoning Commission, 178 Conn. 657, 660, 425
A.2d 100 (1979) (‘‘a local zoning [agency], in enacting
or amending its regulations, acts in a legislative rather
than an administrative capacity’’ [emphasis in original]).
Accordingly, whether the issue is noncompliance with
a municipal zoning regulation or noncompliance with
a municipal road ordinance, the inquiry is the same.
Thus, ‘‘[i]nstead of simply questioning whether the
application complies with [the municipal legislative
enactment at issue] . . . under § 8-30g, the commis-
sion considers the rationale behind the [enactment] to
determine whether [compliance is] necessary to protect
substantial public interests in health, safety or other
matters. . . . The commission must look at the ratio-
nale behind [the enactment] to determine if there is a
substantial interest, outweighing the need for
affordable housing, that must be protected by the denial
of an application.’’ (Emphasis in original.) Wisniowski
v. Planning Commission, supra, 317–18.
In sum, we agree with the commission that ‘‘the estab-
lishment of town-wide standards for road construction
is matter of public health and safety that a commission
may properly consider under the affordable housing
appeals act.’’ We disagree with the commission’s con-
tention that any deviation from those standards consti-
tutes a ‘‘per se’’ ground for denial of an affordable
housing application. As Wisniowski plainly indicates,
the commission must further demonstrate, as part of
its burden in an affordable housing appeal, that compli-
ance with such standards is necessary to protect the
public interest, that the risk of harm thereto clearly
outweighs the need for affordable housing, and that
the public interest cannot be protected by reasonable
changes to the affordable housing development. See
General Statutes § 8-30g (g) (1).
We conclude that the commission has not met that
burden. As an initial matter, we note that the minimum
road width and maximum grade requirements set forth
in §§ 4.3 and 4.4 of the road ordinance are not absolutes.
To the contrary, § 2.2.3 of the road ordinance provides
that ‘‘[t]he Board of Selectman may approve alternate
design and construction standards when (a) such stan-
dards are prepared by a licensed professional engineer
and (b) the board determines that such standards will
be in accord with the purpose and intent of the road
ordinance.’’22 The road ordinance thus contemplates the
construction of roads in Lisbon that depart from the
standards specified therein.
Second, it is undisputed that the proposed roadway
would remain a private road, rather than a public road,
and would serve only fifteen homes. As part of its modi-
fied application, the plaintiff provided the commission
with a ‘‘Homeowner’s Agreement for Lots 1-15’’ that
provides in relevant part that the proposed roadway ‘‘is
a private driveway and [the] Town of Lisbon shall have
no obligation for any costs associated with the mainte-
nance, repair or replacement thereof or for resolving
any disputes among [the] [p]arties relating to the use,
maintenance, repair or replacement or costs associated
with’’ the roadway. See also footnote 7 of this opinion.
For that reason, the town planner remarked during the
commission’s deliberations on the modified proposal
that ‘‘the road system is not proposed as public . . . .’’
The document prepared by the commission’s legal
counsel, which the commission incorporated by refer-
ence into its January 8, 2013 denial of the original appli-
cation, likewise acknowledged that ‘‘the roads would
be privately owned . . . .’’ The fact that the proposed
roadway would not be a public road further informs
our consideration of whether the rationale underlying
the requirements of the road ordinance compels strict
compliance in this case.23
Third, the record is replete with expert testimonial
and documentary evidence from Vertucci, a senior
transportation engineer with Fuss & O’Neill, Inc., who
also is certified by the Institute of Transportation Engi-
neers as a professional traffic operations engineer. In
both his January 30, 2013 ‘‘traffic safety review’’ letter24
and his testimony during the public hearing on the plain-
tiff’s modified application, Vertucci provided his expert
opinion that the plaintiff’s modified proposal ‘‘does pro-
vide for safe traffic operations and site circulation. It
provides for safe ingress and egress for passenger cars
and emergency vehicles [and] does not present any
public health or safety concerns.’’ In particular, Vertucci
noted that the proposed twenty foot width of the road-
way was ‘‘adequate for two vehicles to pass each other
at one time.’’ He also emphasized that the modified plan
included no parking zones and that ‘‘[e]ven if there were
a vehicle parked along a driveway anywhere in the site,
we’d still have the width for a fire truck to get by. Fire
trucks are at a maximum ten feet wide even with the
mirrors extended. That means another ten feet for the
cars that are parked there. A typical passenger car is,
at most—or [a sports utility vehicle] is at most eight
feet wide. So, even if they were not obeying these no
parking restrictions and their car was parked there, the
fire truck could still get by.’’25 Vertucci thus offered his
expert opinion that ‘‘[a]s far as the town road standards
. . . there is nothing from a traffic safety perspective
that would require any of these internal roadways to
be constructed to the [road ordinance] standards. These
drives are extremely low volume roadways. . . .
They’re not functioning as public roadways and [their]
stated width [will] accommodate size for electrical or
emergency vehicle traffic as they’re designed today. In
fact . . . Ames Road, [a public road] which borders
the site, is twenty-two feet wide. So, we’re designing a
road nearly the width of the town roadway that abuts
the site . . . .’’
Vertucci was the only expert who testified at the
public hearing on the risk of harm to public health and
safety posed by the proposed roadway. Although the
commission’s professional staff repeatedly noted that
the proposed roadway did not comply with the mini-
mum width and maximum grade requirements of the
road ordinance, they did not submit any evidence of
specific harm that likely would result therefrom, nor
did they opine that the proposed roadway was unsafe.
As this court has noted, ‘‘[t]he narrow rigorous standard
of § 8-30g dictates that the commission cannot deny an
application on broad grounds such as noncompliance’’
with a municipal legislative enactment. Wisniowski v.
Planning Commission, supra, 37 Conn. App. 314.
Although the commission’s professional staff opined
that the standards set forth in the road ordinance pro-
vide for ‘‘generally safer access’’ and ‘‘an appropriate
higher level of safety,’’ the statutory imperative of § 8-
30g (g) (1) (A) involves a question of necessity, not
reasonableness. See Eureka V, LLC v. Planning & Zon-
ing Commission, 139 Conn. App. 256, 275, 57 A.3d
372 (2012).
The burden placed on the commission in an
affordable housing appeal requires it to prove, inter
alia, that its denial of an affordable housing application
was ‘‘necessary to protect substantial public interests’’
and that ‘‘such public interests clearly outweigh the
need for affordable housing . . . .’’ (Emphasis added.)
General Statutes § 8-30g (g) (1) (A) and (B); see also
Wisniowski v. Planning Commission, supra, 37 Conn.
App. 306–307. The administrative record before us lacks
evidence indicating that strict compliance with the mini-
mum road width and maximum grade requirements of
the road ordinance was necessary to protect the public
health and safety on the proposed roadway or that the
need for such compliance clearly outweighed the need
for affordable housing in Lisbon.26
Furthermore, we note that, in discussing the commis-
sion’s burden to demonstrate such necessity under § 8-
30g, our Supreme Court has held that the administrative
record must contain evidence in the record ‘‘concerning
the probability that such harm in fact would occur.’’
Kaufman v. Zoning Commission, supra, 232 Conn. 156;
see also AvalonBay Communities, Inc. v. Zoning Com-
mission, 130 Conn. App. 36, 58, 21 A.3d 926 (record
must contain evidence as to quantifiable probability
that specific harm will result if application is granted),
cert. denied, 303 Conn. 909, 32 A.3d 962 (2011). The
commission has identified no such evidence regarding
the probability of harm to the public health and safety
in the record here.27
Mackowski v. Zoning Commission, 59 Conn. App.
608, 757 A.2d 1162, cert. granted, 254 Conn. 949, 762 A.2d
902 (2000) (appeal withdrawn September 21, 2001), is
instructive in this regard. In Mackowski, this court con-
cluded that the defendant commission had ‘‘failed to
meet its burden of proving . . . that its denial of the
plaintiffs’ application was necessary to protect substan-
tial public interests in health, safety or other matters
that the commission may legally consider.’’ Id., 616. We
reasoned that ‘‘[t]he commission never addressed the
traffic and sewage concerns in detail; rather, it made
generalized statements concerning the adverse impacts
on the health, safety and welfare of the community that
would be created by the project and remarked that
those adverse impacts appeared to be unnecessary in
achieving affordability for this development. The evi-
dence before the commission . . . established that
there would be no significant problems with traffic or
the sewer system as a result of the proposed develop-
ment. Neighbors of the proposed development did
express concern with the impact on traffic from the
development. While they claimed that at times traffic
could be dense at the intersection of the proposed devel-
opment, there was no record of any specific findings
of fact, such as the frequency of the traffic, to support
this allegation. Furthermore, while the town engineer
expressed concerns regarding the effect that the contin-
ued development of the area would have . . . there
was no showing that a possibility of substantial harm
could ever result.’’ Id., 617.
In the present case, the document prepared by the
commission’s legal counsel, on which the commission
relied in denying the plaintiff’s original application, suf-
fers a similar infirmity. It states in relevant part that
‘‘no town residents should be obligated to accept roads
of lesser quality and safety than anticipated by the . . .
road ordinance,’’ but it provides no specific findings of
fact as to the harm that would result if the proposed
roadway was constructed. The document contains gen-
eralized statements that ‘‘lesser quality roads would
have a tendency to create a variety of problems . . .
including: lack of adequate space for parking; difficult
or impossible turning movements for emergency vehi-
cles, such as fire apparatus; and extremely steep
grades.’’ Yet neither that document nor the commis-
sion’s decision cite to any evidence as to the severity
and probability of such harm. Such generalized con-
cerns cannot support a determination that the commis-
sion’s decision was necessary to protect the public
interest or that the harm outweighed the town’s docu-
mented need for affordable housing. See Eureka V, LLC
v. Planning & Zoning Commission, supra, 139 Conn.
App. 276–77; Mackowski v. Zoning Commission, supra,
59 Conn. App. 617. In addition, the plaintiff’s modified
application made several changes in response to those
generalized concerns. See footnote 15 of this opinion.
The commission’s decision to deny the modified appli-
cation did not include any findings regarding those
concerns.
In an affordable housing appeal pursuant to § 8-30g,
the commission bears the burden of demonstrating that
its denial was necessary to protect a substantial public
interest that clearly outweighs the need for affordable
housing. When a municipal legislative enactment is
involved, the commission—as well as a reviewing
court—must look to the rationale behind that enact-
ment to determine whether that standard is satisfied.
Wisniowski v. Planning Commission, supra, 37 Conn.
App. 317–18. The explicit purpose of the road ordinance
is to protect the public health and safety on roads in
Lisbon. The plaintiff’s modified application included
expert evidence indicating that the proposed roadway
did not present any public health or safety concerns.
As in AvalonBay Communities, Inc. v. Zoning Com-
mission, supra, 130 Conn. App. 54, the record in the
present case is devoid of specific evidence undermining
the expert evidence furnished by the plaintiff.28 We
therefore conclude that the court properly determined
that the plaintiff’s noncompliance with the road ordi-
nance did not constitute a valid ground on which to
deny its modified affordable housing application.
III
The commission also challenges the court’s conclu-
sion that the plaintiff’s alleged noncompliance with the
fire code did not constitute a valid ground on which to
deny its affordable housing application. The administra-
tive record before us does not substantiate that claim.
The issue of compliance with the fire code was raised
by Rick Hamel, the town’s fire marshal. Although Hamel
did not testify at the March 5, 2013 public hearing on
the plaintiff’s modified application, he did provide a
letter to the commission dated April 1, 2013, which
detailed three manners in which the proposed subdivi-
sion allegedly did not comply with the fire code. That
letter expressly indicates that Hamel had not reviewed
the plaintiff’s March 5, 2013 revised plan in reaching
those conclusions. In its memorandum of decision, the
Superior Court noted that ‘‘[t]he parties . . . stipulated
at the argument that [Hamel’s] letter was based on the
original submission and not the resubmission, which
incorporated changes to correct the deficiencies.
Because both parties acknowledged [Hamel’s] failure
to analyze the resubmission with its changes and modifi-
cations, the court will not consider the [April 1, 2013]
letter . . . .’’ We see no reason to depart from that
sound determination. Hamel concededly had not
reviewed the plaintiff’s modified application, and there-
fore could not offer any perspective on whether it com-
plied with the fire code.
The commission also briefly argues that the risk of
inadequate snow removal and illegal on street parking
could result in ‘‘a too narrow road for emergency vehi-
cles.’’ That contention amounts to little more than spec-
ulation and conjecture, which ‘‘have no place in
appellate review.’’29 (Internal quotation marks omitted.)
New Hartford v. Connecticut Resources Recovery
Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009). The
plaintiff’s modified proposal included a ‘‘snow storage
plan,’’ with which the revised homeowner’s agreement
required compliance. The modified proposal also
included a condition prohibiting on street parking; that
prohibition was memorialized in the homeowner’s
agreement. See footnote 15 of this opinion. Further-
more, in his expert testimony at the public hearing,
Vertucci opined that ‘‘[e]ven if there [was] a vehicle
parked along a driveway anywhere in the [subdivision,
the proposed roadway would] still have the width for
a fire truck to get by. Fire trucks are at a maximum
ten feet wide even with the mirrors extended. That
means another ten feet for the cars that are [illegally]
parked there. A typical passenger car is, at most—or
even a [sports utility vehicle] is at the most eight feet
wide. So, even if they were not obeying these no parking
restrictions and their car was parked there, [emergency
vehicles] could still get by.’’ The commission has not
identified any evidence in the record of a quantifiable
probability of specific harm stemming from what, at its
essence, is its presumption that citizens will not comply
with the various no parking and fire lane designations
throughout the subdivision, the requirements set forth
in the homeowner’s agreement, and the conditions of
approval for the subdivision proposed by the plaintiff.
Accordingly, it has not satisfied its burden under § 8-
30g (g).
IV
As a final matter, the commission contends that the
court improperly remanded the matter to it ‘‘with direc-
tion to grant the plaintiff’s resubmission as is.’’ That
claim requires us to consider the statutory basis for,
and the propriety of, that determination.
Generally, the court’s remedial authority is limited
in appeals from the decisions of municipal land use
agencies. As the Supreme Court recently explained,
‘‘[t]he statutes create a limited role for a trial court
hearing an administrative or zoning appeal. . . .
Courts hearing such appeals do not sit as courts of
equity, but as appellate tribunals. . . . Their power to
find facts and grant relief is narrow and generally con-
fined to reviewing the validity of the agency decision.
. . . Specifically, in zoning appeals, the trial court’s
reviewing authority is strictly constrained by § 8-8 (l)
and the substantial evidence rule . . . .’’ (Citations
omitted; emphasis added.) Hunter Ridge, LLC v. Plan-
ning & Zoning Commission, 318 Conn. 431, 445, 122
A.3d 533 (2015); see also Wood v. Zoning Board of
Appeals, 258 Conn. 691, 708–709, 784 A.2d 354 (2001).
In affordable housing appeals, the court’s authority
derives not from § 8-8, but from § 8-30g. Section 8-30g
(g) provides in relevant part 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.’’ Our Supreme Court has recog-
nized that § 8-30g (g) authorizes a reviewing court ‘‘to
employ much more expansive remedies than are avail-
able to courts in traditional zoning appeals.’’30 Ava-
lonBay Communities, Inc. v. Zoning Commission, 284
Conn. 124, 140 n.15, 931 A.2d 879 (2007); accord Wisni-
owski v. Planning Commission, supra, 37 Conn. App.
320 (§ 8-30g ‘‘takes away some of the discretion that
local commissions have under traditional land use law
and allows the reviewing trial court to effect a zone
change if the local commission cannot satisfy the statu-
tory requirements for its denial of an application’’); R.
Fuller, 9B Connecticut Practice Series: Land Use Law
and Practice (3d Ed. 2007) § 51.5, p. 175 (§ 8-30g confers
‘‘more authority than provided for in other administra-
tive appeals, and the court can direct the agency to
approve the project as is or with suggested modifica-
tions’’); M. Westbrook, ‘‘Connecticut’s New Affordable
Housing Appeals Procedure: Assaulting the Presump-
tive Validity of Land Use Decisions,’’ 66 Conn. B. J. 169,
194 (1992) (noting that remand provision of § 8-30g
‘‘gives the court great latitude’’ and ‘‘several options for
providing relief to the developer’’). Because the plain
language of § 8-30g (g) permits a reviewing court to
‘‘wholly or partly revise, modify, remand or reverse the
decision’’ of a commission ‘‘in a manner consistent with
the evidence in the record,’’ it necessarily confers on
the court a degree of discretion. Imparting such discre-
tion on a reviewing court is consonant with the remedial
nature of § 8-30g. See Kaufman v. Zoning Commission,
supra, 232 Conn. 140.
Accordingly, our review of the court’s exercise of its
remand authority under § 8-30g (g) is governed by the
abuse of discretion standard.31 Under that standard, ‘‘the
unquestioned rule is that great weight is due to the
action of the trial court and every reasonable presump-
tion should be given in favor of its correctness. . . .
We will reverse the trial court’s ruling only if it could
not reasonably conclude as it did.’’ (Citation omitted;
internal quotation marks omitted.) Parslow v. Zoning
Board of Appeals, 110 Conn. App. 349, 354, 954 A.2d
275 (2008).
In the present case, the court’s decision to remand
the matter with direction to ‘‘grant the plaintiff’s resub-
mission as is’’ is one consistent with the evidence in
the record. The court had before it transcripts of two
public hearings that transpired over the course of six
days and countless documents regarding the proposed
subdivision and revisions thereto. The court also had
before it expert testimony from a professional engineer,
a transportation engineer, and a land surveyor. The
record also encompasses the commission’s decision to
deny the plaintiff’s original application, the plaintiff’s
modified application and accompanying materials, the
materials submitted by the commission’s professional
staff, and the commission’s deliberations and ultimate
decision on the modified application. Significantly, that
modified application contained numerous conditions of
approval proposed in response to concerns raised by
the commission and its professional staff.32 Because the
court’s remand ordered the commission to grant the
modified application ‘‘as is,’’ those detailed conditions
necessarily are part of that approval, and are binding
on the plaintiff. In addition, although the commission
in this appeal suggests that the court impaired its ability
to attach appropriate conditions to such an approval,
it does not specify any additional conditions that it
believes are necessary.33
In an affordable housing appeal, the authority of the
Superior Court to fashion appropriate relief derives
from the General Statutes. The court’s authority under
§ 8-30g (g) includes ‘‘the power’’ to order a commission
to grant an affordable housing application on remand.
AvalonBay Communities, Inc. v. Zoning Commission,
supra, 284 Conn. 140–41 n.15; see also West Hartford
Interfaith Coalition, Inc. v. Town Council, 228 Conn.
498, 527, 636 A.2d 1342 (1994) (reviewing court’s ‘‘rem-
edy granting the [affordable housing] application [is]
specifically authorized by the plain language of § 8-
30g’’). Accordingly, the court here was authorized to
remand the matter to the commission with direction to
grant the modified application ‘‘as is.’’ On our review
of the evidence in the administrative record, we cannot
say that the court could not reasonably reach that deter-
mination. See Parslow v. Zoning Board of Appeals,
supra, 110 Conn. App. 354. The court, therefore, did
not abuse its discretion in remanding the matter to
the commission with direction to grant the plaintiff’s
modified affordable housing application as is.
The judgment is affirmed.
In this opinion the other judges concurred.
APPENDIX
1
‘‘In hearing appeals from decisions of a planning and zoning commission,
the Superior Court acts as an appellate body.’’ MacKenzie v. Planning &
Zoning Commission, 146 Conn. App. 406, 409 n.3, 77 A.3d 904 (2013).
2
In connection with the proposed development, the plaintiff obtained a
permit from the Conservation Commission of the Town of Lisbon to conduct
minor regulated activity within the 100 foot upland review area.
3
It is undisputed that the affordability plan submitted by the plaintiff as
part of its application demonstrated that the proposed subdivision satisfied
the statutory criteria for an affordable housing development.
4
‘‘[A] modular home is largely manufactured somewhere away from the
eventual home site and brought to the local home site for installation.’’
Bennett v. CMH Homes, Inc., 770 F.3d 511, 518 (6th Cir. 2014); see also
Lauderbaugh v. Hopewell Township, 319 F.3d 568, 571 n.2 (3rd Cir. 2003)
(modular home ‘‘is built off-site in modular components that are transported
to a residential site and erected on a permanent foundation’’); Woodstock
v. Williams, 1 Conn. App. 505, 506, 473 A.2d 330 (describing modular home
as one that is ‘‘prefabricated’’), cert. denied, 193 Conn. 804, 475 A.2d 1104
(1984). ‘‘Unlike a mobile home or house trailer, a modular home is not built
on a permanent chassis, and for that reason, it is not able to be readily
moved to another location once installed or erected.’’ Williams v. Fox, 219
S.W.3d 319, 323 (Tenn. 2007).
5
One lot, shown as ‘‘Lot 17’’ on the plans and surveys submitted to the
commission, was designated as ‘‘not a proposed building lot.’’ At the time
that the plaintiff’s application was before the commission, this lot did not
meet the minimum requirements of the Connecticut Public Health Code for
sewage disposal ‘‘due to high seasonal water levels.’’ The plaintiff neverthe-
less envisioned an additional single-family home on that lot, pending further
groundwater testing and approval by the town sanitarian. The plaintiff’s
original application proposed, as a condition of approval, that should subse-
quent testing conducted in the spring of 2013 fail to garner the approval of
the town sanitarian, the plaintiff ‘‘will file on the land records documentation
showing the merging of Lot 17 into an adjacent lot and will notify the
[c]ommission.’’ In its modified application, the plaintiff stated that ‘‘the
[s]anitarian directed the test to be done in spring 2013, and the applicant
has agreed. Lot 17 is not proposed as a building lot at this time.’’ Lot 17
thus is not at issue in this appeal.
6
As the plaintiff notes in its appellate brief, the median home price in
Lisbon in 2012 was $179,000.
7
During the public hearings on the plaintiff’s original application and
its modified application, the plaintiff’s representatives also referred to the
proposed roadway as an ‘‘internal roadway’’ system.
8
Under the plaintiff’s proposal, the roadway would remain private and
would be maintained by an association comprised of homeowners. Specifics
regarding the formation of that association and its corresponding obligations
were set forth in the conditions of approval proposed by the plaintiff, as
well as the ‘‘Homeowner’s Agreement for Lots 1-15’’ drafted by the plaintiff
and included in its submissions to the commission.
9
For purposes of clarity, appended to this opinion is a copy of the roadway
proposed by the plaintiff’s modified affordable housing application, as
depicted on the plan prepared by land surveyor Dieter & Gardner, Inc., and
submitted to the commission on March 5, 2013.
10
The road ordinance officially is known as ‘‘An Ordinance Concerning
the Construction and Acceptance of Roads in the Town of Lisbon Connecti-
cut.’’ It was adopted by a town meeting convened on June 29, 1995, and
became effective on July 19, 1995. Its stated purpose is as follows: ‘‘In order
to protect the public health and safety, to promote the general welfare, to
preserve property values and to assure the orderly growth and development
of the Town, the following standards and procedures for the construction
of all roads, drainage structures and appurtenances thereto have been
adopted by a Town meeting . . . .’’
11
Pursuant to §§ 4.3.1 and 4.4.1 of the road ordinance, the minimum width
of a local residential road without curbs is twenty-six feet, and the maximum
grade for such a road shall not exceed 10 percent. The roadway originally
proposed by the plaintiff was less than twenty feet wide and, at certain
locations, contained a grade of 16 percent. Following the denial of its original
application, the plaintiff modified its application to provide a twenty foot
wide roadway to address various concerns raised by the commission and
its staff regarding emergency vehicle access and on street parking on the
roadway.
12
The transcript of the commission’s January 8, 2013 deliberations on the
plaintiff’s application indicates that Zizka began the discussion by reviewing
the portion of his document that addressed noncompliance with the road
ordinance. When he concluded, the following colloquy transpired:
‘‘[Chairman] Adams: I think we’re in pretty much agreement. I’m not sure
but we can find out right now. Uh, if there’s a problem with the, the width
is 16’ and 20’. Uh, it should be between 26’ and 28’. Movement on the roads
pose[s] a problem. Uh my feeling is it should be a town road. It should be
accepted as a town road and town road standards. How do you feel about it?
‘‘[Commissioner] Giroux: Ron Giroux. Um, I agree. I think the roads need
to be the width of all the other Town roads. I don’t think [there are] a lot
of houses in there but, you know, we don’t even, like, we don’t even allow
the shared driveway for a simple reason because of egress in and out of
those areas.
‘‘[Chairman Adams]: Um, yeah, I have a problem with the, the grades too.
I mean, the slopes aren’t, um, safety-wise, I think we should adhere to the
[road] [o]rdinance.
‘‘[Commissioner] Sperry: Oh, I agree and coming up to the Town road
standards would ensure, um, that public safety has adequate access, um,
to service the future residents of, you know, to this development and I think
that was, um, the fact that emergency vehicles and first responders were
able to, um, respond or turn safety concern but not only for the people who
live there and would require services but responders as well.
‘‘[Commissioner] Dempsey: Uh, John Dempsey. I feel the same way, espe-
cially with the grades. Um, if it was a single house going up into the woods,
that’s, that’s your prerogative to do that but when you have this many houses
with those kind of grades, you’re asking the Town of Lisbon’s . . . emer-
gency personnel to do something that’s pretty risky, not to mention there’s,
nobody’s going to want to plow those roads up or down at those grades,
so I feel the same.
‘‘[Commissioner] Ritacco: Gary Ritacco. I feel the same as everybody else
here on the maintenance of the Town road.
‘‘[Commissioner] Gabiga: Um, I agree also. I think that, uh, we should
adhere to the Town road standards, this development, and then I also feel
the, the safety of not only the people who would live there but along the
road and also the, um, uh, in the development itself that, uh, the emergency
vehicles and, uh, do not have enough turn around and that was the problem
[inaudible] and, and enforcing of the parking bans and things like that too.
‘‘[Commissioner] Gagnon: Dave Gagnon. I agree with everything that’s
been said. You know, the emergency vehicles, the width, urn, and then the
fact that the homeowner’s association could come back to the town later
with that action of making the town do something, so I think, I don’t know,
that the width is definitely too small and with, you know, the problems that
we did, especially the parking too, that we discussed.
‘‘[Zizka]: Okay.
‘‘[Commissioner Giroux]: Yeah, the parking and the, uh, the width of the
roads, I definitely agree with and I think it’s been presented very well. I
just want to make, can I just say one thing, though? Um, a 10 [percent]
slope, I mean, we’re not all people who know every little detail but a 10
[percent] slope is less than a handicap ramp, okay? I just, you know, because
I noticed it was said earlier but a 30 [percent] slope going down a very
steep hill grade on the, um, the next thing we’re going to talk about in your
report and even that is like walking on a 3 1/2 pitch roof. To me, that is not
very steep, okay? The way it’s presented, okay? Just so because not every-
body knows and I look at 10 [percent] slope, what does that mean? Does
that mean, you know, I’m going off a cliff? No. It’s almost nothing. Just, I
just wanted to say that. Thank you.
‘‘[Chairman Adams]: So it sounds like you’re in agreement as far as there’s
a problem with the road, uh, uh, situation. Um, and as written here, to
redesign it isn’t really our, our job to redesign the way the road’s going to
look and to try to approve something that we don’t know what it’s going
to look like, it’s very difficult to do. Uh, if anybody has any suggestions as
to a possible solution besides bringing up the road standards, I’d like to
hear it now. Okay, we’ll go on to the next one. . . .’’
13
The first issue pertained to the ‘‘lack of conformance with town road
standards’’; the second noted that ‘‘[t]he outlet pipe location at Lot 1 does
not comply with section 5.1.6 of the town road ordinance’’; and the fourth
issue was that ‘‘the proposed road layout fails to comply with pertinent
sections of the [fire code] and . . . the plans do not provide adequate
emergency access.’’
14
General Statutes § 8-30g (h) provides in relevant part: ‘‘Following a
decision by a commission to reject an affordable housing application or to
approve an application with restrictions which have a substantial adverse
impact on the viability of the affordable housing development or the degree
of affordability of the affordable dwelling units, the applicant may, within
the period for filing an appeal of such decision, 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. . . . The filing of such
a proposed modification shall stay the period for filing an appeal from the
decision of the commission on the original application. The commission
shall hold a public hearing on the proposed modification if it held a public
hearing on the original application and may hold a public hearing on the
proposed modification if it did not hold a public hearing on the original
application. The commission shall render a decision on the proposed modifi-
cation not later than sixty-five days after the receipt of such proposed
modification . . . . The commission shall issue notice of its decision as
provided by law. Failure of the commission to render a decision within said
sixty-five days or subsequent extension period permitted by this subsection
shall constitute a rejection of the proposed modification. Within the time
period for filing an appeal on the proposed modification as set forth in
section 8-8, 8-9, 8-28 or 8-30a, as applicable, the applicant may appeal the
commission’s decision on the original application and the proposed modifi-
cation in the manner set forth in this section. Nothing in this subsection
shall be construed to limit the right of an applicant to appeal the original
decision of the commission in the manner set forth in this section without
submitting a proposed modification or to limit the issues which may be
raised in any appeal under this section.’’
15
Among other things, the modified application (1) redesigned the pro-
posed roadway ‘‘[t]o address the [commission’s] claimed concern about fire
truck, utility truck, and delivery truck access and turnarounds’’ by creating
an internal loop within the subdivision that was twenty feet wide; (2) revised
the ‘‘pavement and turning radii for Lots 10 and 14 . . . as requested to
eliminate stated concerns about emergency vehicle turning’’; (3) reduced
certain grades at the behest of the commission’s professional staff; (4)
revised the placement of wells on the proposed lots ‘‘far enough from the
common driveway to meet the five foot minimum distance specified by the
commission in its denial’’; (5) added ‘‘a snow storage plan’’ to the proposal
and revised the homeowner’s agreement ‘‘to require conformance to it’’;
and (6) ‘‘accepted the [commission’s] demand to relocate’’ a storm drainage
outlet. In addition, the plaintiff’s modified application proposed, as a condi-
tion of approval, that ‘‘Lots 1 through 15 shall be conveyed with the prohibi-
tion from parking motor vehicles of any type in the areas more particularly
shown and depicted as ‘No Parking Anytime’ ’’ on the modified plan. The
modified application also contained a revised homeowner’s agreement that
repeated that language and then stated in relevant part that owners of those
lots ‘‘hereby grant to the [homeowner’s association] a right to enforce any
and all parking / no parking / fire lane signage, striping, and restrictions,
through the issuance of written notices of violation. The [owners] agree
that no structure, landscaping, or impediment will be maintained that will
block emergency or service vehicle use of the internal shared [roadway]
and individual driveways. . . .’’
16
The record reflects that although the commission received a number
of comments from members of the public during the March 5, 2013 public
hearing, little discussion pertained to the adequacy of the proposed roadway.
17
The court also concluded that the commission’s claim regarding the
proposed road drainage system was without merit. The commission does
not challenge that determination in this appeal.
18
The record indicates that the commission was without the assistance
of its legal counsel when it rendered its decision on the plaintiff’s resubmitted
application on April 2, 2013.
19
Without question, the better practice is for the land use agency, following
its vote on a motion on an affordable housing application, to issue a separate,
‘‘formal, official, collective statement of the reasons for its actions.’’ (Internal
quotation marks omitted.) Christian Activities Council, Congregational v.
Town Council, supra, 249 Conn. 576. On the facts of this case, which involved
a modified affordable housing application that constituted ‘‘an amendment
to the original proposal’’; General Statutes § 8-30g (h); and on which the
commission rendered a decision largely identical to its denial of the original
application, we conclude that a clear basis for that decision emanates from
the motion to deny that was approved by a vote of eight to zero.
20
As our Supreme Court has noted while discussing the standard embodied
in § 8-30g, ‘‘[t]he function of the scope of judicial review is to express the
policy choice, ordinarily drawn from the governing statutes, regarding the
allocation of decision-making authority as between the administrative
agency and the reviewing courts, and, more specifically, to articulate the
degree of constraint that the statutes place upon the courts in reviewing
the administrative decision in question.’’ Christian Activities Council, Con-
gregational v. Town Council, supra, 249 Conn. 580–81.
21
‘‘Because the plaintiffs’ appeal to the [Superior Court] is based solely on
the record, the scope of the [Superior Court’s] review of the [commission’s]
decision and the scope of our review of that decision are the same.’’ (Internal
quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commis-
sion, supra, 271 Conn. 26–27 n.15.
22
Under the road ordinance, the Board of Selectmen is responsible for
issuing road construction permits in Lisbon, including ‘‘roads in a subdivision
approved by the [commission] . . . after the effective date of the road
ordinance.’’ Lisbon Road Ordinance § 2.1 (b). The road ordinance defines
a ‘‘road’’ as follows: ‘‘Road means and includes streets, highways, avenues,
lanes laid out and intended as vehicular access way.’’ Lisbon Road Ordi-
nance § 1.3.
23
At no time during the application process did the plaintiff propose a
public road within the affordable housing subdivision adjacent to Ames
Road. Rather, the proposed roadway was to be a private one governed by
a homeowner’s agreement. See footnote 8 of this opinion. Whether such a
private roadway ultimately could obtain approval from the Board of Select-
men; see footnote 22 of this opinion; is an issue beyond the purview of this
administrative appeal.
24
Vertucci’s January 30, 2013 ‘‘traffic safety review’’ letter indicates that
‘‘[t]raffic circulation of passenger vehicles, emergency vehicles, and service/
delivery vehicles was reviewed, as well as the provisions for vehicle turn-
arounds, adequate site roadway width, and snow storage areas on the plan.’’
That analysis ‘‘concludes that the [plaintiff’s] revised site layout plans will
provide for safe traffic operations and do not present any public health or
safety concerns.’’
25
Among the materials Vertucci submitted to the commission is a depiction
of the ‘‘Smeal Aerial RM’’ fire truck, which contains an 80 foot ladder track
and measures 38.17 feet long by 8.33 feet wide. Vertucci also provided a
detailed ‘‘truck turning analysis’’ predicated on that vehicle’s turning radius,
given its forty-five degree ‘‘steering lock angle.’’ Vertucci submitted those
materials at the behest of the commission’s professional staff, as that fire
truck is the ‘‘longest truck’’ that responds to an emergency in the town.
26
At oral argument before this court, the commission’s counsel was asked
if the administrative record in this case contains evidence as to whether a
twenty foot wide road presented greater danger to public health and safety
than a twenty-six foot wide road. Counsel conceded that it does not.
27
The commission argues that the plaintiff’s noncompliance with the road
ordinance obviates the need for the commission, on appeal, to identify
evidence in the record as to a quantifiable probability that specific harm
will result if the modified application was granted. As it states in its principal
appellate brief: ‘‘[T]he ‘specific harm to the public interest’ is the elevated
level of risk the proposed development would cause if [the plaintiff’s] new
road system is allowed to have lower standards than those established by
the [road] ordinance. The ‘quantifiable probability’ that such ‘specific harm’
would be caused by the approval of such a road is 100 percent; i.e., there
is no question that the level of risk will be greater . . . . It should not have
been necessary for the [c]ommission to receive evidence about how many
additional accidents a narrower road or steeper grades might cause because
Lisbon’s legislative body had already determined . . . that the additional
risk was unacceptable regardless of what fractional amount it might involve.’’
(Emphasis in original.) The commission has provided no authority for that
assertion. Contra Kaufman v. Zoning Commission, supra, 232 Conn. 156;
AvalonBay Communities, Inc. v. Zoning Commission, supra, 130 Conn.
App. 58.
28
The commission argues that the court improperly imposed on it the
burden to provide expert evidence that the proposed roadway was unsafe.
We disagree. In Carr v. Planning & Zoning Commission, 273 Conn. 573,
605, 872 A.2d 385 (2005), the defendant commission similarly claimed that
‘‘the court improperly held that, in order to justify its denial of the modified
application, the burden was on the zoning commission to perform studies
to determine the extent to which the development would adversely affect
the public interest in a safe water supply.’’ Our Supreme Court rejected that
claim, stating that the court ‘‘did not impose any such burden on the zoning
commission.’’ Id. The court reasoned that ‘‘the trial court took as its starting
point information provided by the plaintiff that the likelihood of [well]
interference was extremely remote or nonexistent. Thus, the court did not
place the initial burden of establishing that there would be no such interfer-
ence on the zoning commission. Rather, the trial court determined that, in
light of the information provided by the plaintiff, the zoning commission
could not deny the modified application unless it established that there was
a quantifiable probability of such interference and that reasonable changes
to the modified application would not adequately address the problem. . . .
[T]his determination was consistent with the requirements of [§ 8-30g] and
did not impose any unwarranted burden on the zoning commission.’’ (Cita-
tion omitted.) Id., 606. Accordingly, that precedent instructs that once an
affordable housing applicant submits evidence indicating that harm to a
substantial public interest is unlikely, the commission cannot deny such an
application absent specific evidence in the record indicating otherwise.
Id., 606–610.
In the present case, the plaintiff provided expert evidence indicating that
the proposed roadway did not present any public health or safety concerns.
Moreover, the plaintiff’s modified application specifically alerted the com-
mission to the fact that, in its view, there was ‘‘no expert or other testimony
in the record that the proposed driveways are unsafe.’’ Accordingly, to
properly deny the plaintiff’s modified application, the burden properly was
on the commission to establish a quantifiable probability of harm to the
public health or safety that outweighed the need for affordable housing and
that could not be protected by reasonable changes to the proposed devel-
opment.
29
The commission’s exhortation aside, we decline to take judicial notice
‘‘that ‘no parking’ signs are often disregarded.’’
30
For that reason, the commission’s reliance on cases such as Finley v.
Inland Wetlands Commission, 289 Conn. 12, 959 A.2d 569 (2008), Thorne
v. Zoning Commission, 178 Conn. 198, 423 A.2d 861 (1979), Bogue v. Zoning
Board of Appeals, 165 Conn. 749, 345 A.2d 9 (1974), Jersey v. Zoning Board of
Appeals, 101 Conn. App. 350, 921 A.2d 683 (2007), and Samperi v. Planning &
Zoning Commission, 40 Conn. App. 840, 674 A.2d 432 (1996), is misplaced,
as none involved a reviewing court’s authority under § 8-30g. Indeed, this
court has rejected a claim that a reviewing court ‘‘illegally usurped’’ the
administrative authority of a planning and zoning commission in fashioning
relief pursuant to § 8-30g. Wisniowski v. Planning Commission, supra, 37
Conn. App. 308, 319–21.
31
In its principal appellate brief, the commission agrees that our review
of the court’s remand order is pursuant to the abuse of discretion standard.
32
The plaintiff’s modified application proposed the following conditions
of approval:
‘‘[1]. Prior to the sale of any of Lots 1 through 15, [the plaintiff] will install
the common driveway and sightline improvements, drainage, utilities, and
signage necessary for access to, construction on, and use of that individual
lot as shown on the approved plans, and will provide to the [commission]
an as-built plan demonstrating compliance.
‘‘[2]. In accordance with [General Statutes] § 8-25 as amended, [the plain-
tiff] will post a financial guarantee, in an amount to be determined with the
Town Engineer, for erosion and sedimentation controls and the drainage
from the Ames Road culvert to the outlet at the northwest corner of Lot 2.
‘‘[3]. Each of Lots 1 to 15 will be conveyed in deeds that will include, and
will be subject to, cross-easements as follows:
‘‘a. Lots 1, 2, 11, and 15 will be conveyed together with the non-exclusive
perpetual easements for access, maintenance, and utilities as more particu-
larly shown and depicted on Sheets 2 and 3 of the ‘Plan Showing The
Residences At Lisbon Property Of Brenmor Properties LLC, Connecticut
State Route 169 A.K.A. South Burnham Highway And Ames Road, Lisbon,
Connecticut. Scales As Shown May 2012’ comprised of Sheets 1 through 9A
last revised 1/21/13 (hereinafter the ‘Plan’).
‘‘b. Lots 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, and 14 will be conveyed subject
to and together with the non-exclusive perpetual easements for access,
maintenance, and utilities as more particularly shown and depicted on Sheets
2 and 3 of the Plan.
‘‘c. Lots 1 through 15 shall be conveyed with the prohibition from parking
motor vehicles of any type in the areas more particularly shown and depicted
as ‘‘No Parking Anytime’’ areas on Sheets 2 and 3 of the Plan.
‘‘d. Lots 1, 2, 4, 7, and 15 shall be conveyed subject to a Drainage Easement
(including access and maintenance) in favor of the Town of Lisbon as more
particularly shownand depicted on Sheets 1, 2, and 3 of the Plan.
‘‘e. Lots 3, 5, and 14 shall be conveyed subject to emergency ingress and
egress easement rights as more particularly shown and depicted on Sheets
2 and 3 of the Plan.
‘‘f. Lot 10 shall be conveyed subject to an easement for common drive-
way for
ingress and egress to the site as more particularly shown and depicted
on Sheet 2 of the Plan.
‘‘g. Lot 10 shall be conveyed subject to a temporary construction entrance
easement as more particularly shown and depicted on Sheet 2 of the Plan.
‘‘[4]. A condition of subdivision approval and the eventual sale of each
Lot 1 to Lot 15 will be formation by [the plaintiff] of a Homeowners Associa-
tion, using the form of Agreement submitted to the [c]ommission. The
purchaser of each Lot 1 to 15 will agree to the Homeowners Association
Agreement as a condition of purchase. Upon sale of the first lot of Lots 1
to 15, [the plaintiff] will provide initial funding of the Homeowners Associa-
tion in the amount of $2,500, for the purpose of funding for one season
snow plowing and driveway clearance (estimated at $200 per plow, 12 snow
events). Thereafter, each owner of a lot that is not subject to § 8-30g income
and sale / resale price restrictions, will pay a minimum of $40 per month
to the Association, and the owners of those lots that are subject to § 8-30g
will pay a minimum of $25 per month, but a maximum only as allowed by
§§ 8-30g-1 et seq. of Connecticut State Agency Regulations. Funds collected
by the Homeowners Association in excess of snow removal and regular
maintenance shall be deposited in a capital reserve fund for the purpose
of periodic repair of the driveway, common utilities, or drainage.
‘‘[5]. Well locations shown on the approved plan are schematic. Wells
may be located where allowed by the Health Code, and will be approved
on a lot-by-lot basis by the Sanitarian. Each proposed well will need to
demonstrate sufficient yield before a Certificate of Occupancy is issued.
Wells will be located so as to not be subject to damage by vehicles, including
emergency and service vehicles, traveling on the internal driveways.
‘‘[6]. School bus pick-ups for Lots 1–15 will occur at a location along Ames
Road to be determined in conjunction with the Board of Education staff.’’
33
We note that a reviewing court may—but is not obligated to—remand
an affordable housing application to a land use commission with direction
that the application ‘‘be approved under such terms and conditions as the
commission might reasonably prescribe within the parameters of’’ the
reviewing court’s ruling. (Internal quotation marks omitted.) Kaufman v.
Zoning Commission, supra, 232 Conn. 167.