JAG Capital Drive, LLC v. East Lyme Zoning Commission

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JAG CAPITAL DRIVE, LLC v. EAST
LYME ZONING COMMISSION
(AC 37924)
Sheldon, Mullins and Harper, Js.
Argued May 19—officially released October 4, 2016
(Appeal from Superior Court, judicial district of
Hartford, Land Use Litigation Docket, Cohn, J.)
Edward B. O’Connell, with whom, on the brief, was
Mark S. Zamarka, for the appellant (defendant).
Timothy S. Hollister, with whom was Andrea L.
Gomes, for the appellee (plaintiff).
Opinion
SHELDON, J. The defendant, the East Lyme Zoning
Commission (commission), appeals from the judgment
of the Superior Court sustaining the administrative
appeal of the plaintiff, JAG Capital Drive, LLC, from
the commission’s denial of the plaintiff’s application
for approval of a proposed affordable housing develop-
ment. The commission claims that the trial court erred
in concluding that it failed to meet its burden of proof
in denying the plaintiff’s application on the ground of
the industrial zone exemption—that the proposed
affordable housing development would be located in
an area which is zoned for industrial use and does not
permit residential uses—pursuant to General Statutes
§ 8-30g (g) (2) (A). More specifically, the commission
claims that the trial court erred in determining that the
area in which the proposed affordable housing project
would be located permits residential uses.1 We disagree
with the commission, and thus affirm the judgment of
the trial court sustaining the plaintiff’s appeal from the
commission’s denial of its affordable housing appli-
cation.
In its December 23, 2014 memorandum of decision,
sustaining the plaintiff’s administrative appeal, the trial
court set forth the following relevant factual and proce-
dural history. ‘‘The plaintiff’s land is located in East
Lyme. It consists of 24 acres, zoned LI, Light Industrial,
adjacent on the north side to a small commercial/light
industrial area served by a street called Capital Drive,
ending in a cul-de-sac north of [the plaintiff’s] 24 acres.
West of the plaintiff’s property are wetlands, a stream,
and the East Lyme/Old Lyme border. To the east are a
single-family residential neighborhood and Camp Nian-
tic, a seasonal campground. To the south is State Route
156, which in that location is called West Main Street.
The plaintiff’s property has frontage on Route 156/West
Main. . . .
‘‘The plaintiff filed its initial application for site plan
approval with the commission on August 7, 2012, con-
sisting of 69 units, a proportion of which were to be
affordable housing units under § 8-30g. . . . The units
were to form a residential development to be known
as ‘Rocky Neck Village,’ proposed as rental units with
possible future conversion to common interest owner-
ship. They were to be two bedroom townhome style
units. . . . The town’s wetlands commission had given
its approval to the development in March 2011. . . .
‘‘The commission held a public hearing on this appli-
cation on February 7, 2013. The plaintiff’s attorney and
his designees explained the proposed site plan demon-
strating that it would not cause any health or safety
concerns, submitted a traffic report that had no safety
concerns, entered favorable reports on stormwater and
other environmental topics, and explained the inappli-
cability of coastal management zoning. The attorney
also explained the difficulties that the plaintiff faced in
marketing the property for light industrial use. . . .
‘‘The commission staff gave a presentation and the
public spoke out, some favoring and others objecting
to the site plan. There was also testimony from three
business owners located in the LI zone of the applica-
tion. Norman Birk, president of Birk Manufacturing,
informed the commission that his company uses corro-
sive acids, liquid stainless steel and metal finishing tech-
niques in the manufacture of circuit boards. . . . It
has an approval from the Department of Energy and
Environmental Protection to treat wastewater on site.
. . . In 2011, Birk Manufacturing experienced an indus-
trial accident when bari-chloride and muriatic acid were
mixed, creating dangerous chlorine gas. Federal, state
and local agencies, including a hazardous materials
team were called to the scene, a large portion of the
industrial park was evacuated and two Birk employees
were hospitalized. . . .
‘‘Two other company executives also spoke at the
public hearing. The first was Susan Spellman, owner
of Salon Associates, also located on Capital Drive. Her
company receives, stores and ships chemicals used in
the salon industry, including bleach, aerosols and ace-
tones. In 2011 she was visited by an FBI agent to explain
that the type of chemicals at her site might make her
business a terrorist target, and to suggest means of safe
storage. . . . Richard Beck, owner of Embalmer’s Sup-
ply Company on Capital Drive, informed the commis-
sion that he stores embalming fluid and formaldehyde,
a carcinogen on site. Evidence was taken of industrial
sized truck traffic in the industrial park at all hours. . . .
‘‘The plaintiff’s attorney in reply stated to the commis-
sion that the project would be built in stages starting
from Route 156. The only contact with Capital Drive
would be the opening of an access road for water and
other utilities. He also pointed out that the Birk Manu-
facturing incident had occurred inside the building, the
longstanding proximity of the three businesses to the
single-family residential neighborhood to the southeast,
and during five to six months of each year, to Camp
Niantic, a residential campground to the east and south
of the plaintiff’s parcel. He also noted the fact that the
commission had approved the 38 Hope Street residen-
tial development in the LI zone in 2006, with an adjacent
lumber yard with truck traffic and an active rail line.
. . .
‘‘On February 21, 2013, the commission met after
the close of the public hearing. It concluded that the
application should be denied on the ground that it was
proposed in a Light Industrial District, under § 11 of its
zoning regulations.2 It was to be located in an area
zoned for industrial use and in which residential uses
were not permitted. The commission’s resolution stated
that it acted under the provisions of the affordable
housing statutes that had an exemption for an ‘industrial
zone.’ [General Statutes} § 8-30g (g) (2) (A). . . .
‘‘Notice of the denial of the plaintiff’s application was
published on March 14, 2013. . . . On March 28, 2013,
the plaintiff filed a resubmission pursuant to § 8-30g
(h). . . . The revised site plan (1) eliminated nine units
closest to the existing uses in the LI zone as well as
one building, (2) increased landscaped buffer between
the industrial uses and the proposed homes to meet
the East Lyme multifamily/affordable housing regula-
tions, (3) reduced site coverage, (4) improved traffic
access, (5) increased open space, and (6) decreased
stormwater runoff. . . .
‘‘At a public hearing on May 16, 2013, a professional
engineer, retained by the commission, suggested minor
plan revisions that were accepted by the plaintiff. . . .
The plaintiff provided documentation that the LI zone
allowed for types of residential uses. . . . These docu-
ments included the commission’s 1990 resolution
approving Bride Brook [Nursing and Rehabilitation
Center (Bride Brook)] as a place where people would
‘reside’ within the LI zone, along with its approvals
of Sea Spray [Condominiums, an affordable housing
development] and 38 Hope Street as multifamily resi-
dential uses on parcels zoned LI.
‘‘The plaintiff noted that Salon Enterprises, an opera-
tion discussed at the original public hearing, was a
wholesale business, not a manufacturing facility; it con-
ducts on-site classes for beauty parlor employees. As
to Birk Manufacturing, the plaintiff showed that in the
revised plan, Birk’s building at its closest point is 360
feet from the corner of the nearest residential unit. The
attorney for the plaintiff concluded that Birk did not
expect future accidents. This was also confirmed by
Mr. Birk. . . . Birk and Spellman from Salon did
express concern that the approval of the plaintiff’s
application could cause them to have to consider mov-
ing out of East Lyme to another location. . . .
‘‘The commission voted at its June 6, 2013 meeting
to deny the plaintiff’s amended application. The com-
mission adopted a resolution that states in part as fol-
lows: ‘Whereas, for the purposes of this Resolution, the
Commission will address the Amended Application in
two separate parts: (1) As an affordable housing appli-
cation that would locate affordable housing in an area
which is zoned for industrial use . . . and (2) As an
application for approval of an affordable housing devel-
opment pursuant to General Statutes § 8-30g (g) (1).’
‘‘With regard to the ‘industrial use’ exception, the
commission found that the proposed development
‘would be located entirely in an area that is presently
zoned Light Industrial (LI) according to the East Lyme
Zoning Map.’ It further found that the LI zone provided
for industrial and commercial uses and did not permit
residential uses in the zone. The commission had heard
testimony from business owners in the zone on the
industrial uses in the area, ‘including, but not limited
to, manufacturing processes, heavy truck travel and
chemical manufacturing, storage and transportation.’
‘‘It was resolved that the commission denied the
amended application ‘to be located on Capital Drive at
or near its intersection with Route 156 in East Lyme,
for the reason that the development is located entirely
in an area which is zoned for industrial use and which
does not permit residential uses, and that the Applica-
tion does not seek approval for assisted housing as
defined in § 8-30g (a) of the General Statutes.’ . . .
‘‘With regard to the general approval of an affordable
housing development, [the commission found that]
there was both sufficient evidence and evidence of the
need to protect the public health and safety to support
the commission’s denial. The development was incon-
sistent with the town’s plan of conservation and devel-
opment. It was to be located in an LI zone with industrial
uses, as stated above. There was an industrial accident
of concern in the last year requiring evacuation of the
area, drawing responses from hazardous materials
teams, the Department of Energy and Environmental
Protection and the federal [Environmental Protection
Agency]. There was a ‘quantifiable probability’ of spe-
cific harm raising interests in public health and safety.
‘There is a necessity to protect the public that cannot
be remedied by changes to the application and the risk
of such harm to the public interest outweighs the need
for affordable housing.’ . . .
‘‘This appeal [from the commission’s denial of the
plaintiff’s application] was subsequently filed. On July
15, 2014, the attorneys for the parties and the court
conducted a view of the site. The group met at the cul-
de-sac end of Capital Drive. Birk Manufacturing was to
the left, as well as a parking lot and a small garden.
Outside of Birk were two burning pots of some type.
Salon Enterprises was to the right. There were a few
other buildings in the cul-de-sac. There was no heavy
truck traffic at the time of the viewing in midday. The
court and the parties walked down a path into a wooded
area. To the left along this path is Camp Niantic and
to the right is an open space conservation area with
the Four Mile River. The entryway to the proposed
project is about 400 feet from the cul-de-sac in the midst
of the woods. At this point, the plaintiff proposes to
place a gate and additional plantings. The court viewed
the general area where the development is to be built.
There were people making use of the trail into the
woods for recreational activities. This trail is to serve
as an emergency entrance and exit to the development.
The parties returned to the cul-de-sac and drove out of
Capital Drive to Route 156. The court observed the
premises along Route 156, commercial in nature, the
main entrance to the proposed development, and also
[Bride Brook]. Sea Spray was also viewable nearby.
‘‘Along with the view that the court conducted, the
court ordered that the commission hold a further factual
hearing on the ‘day-to-day operation’ of Bride Brook.
This order was based on exhibit M, which dated from
1989/1990, where a Bride Brook officer indicated that
the center was functioning partly as a ‘rest home.’ The
commission conducted a further hearing on September
18, 2014, at which an affidavit of Dianne Caristo-Gaynor,
the administrator of Bride Brook, was introduced.
‘‘The affidavit, dated August 9, 2014, declared in para-
graph 9 that the ‘second and third floors are home
to 87 Long Term Care Residents.’ These residents are
‘expected to live at Bride Brook for the remainder of
their lives. Some have lived here more than 15 years.’
In paragraph 10, the administrator stated the following
indicia of the residents’ residing in their ‘home.’ They
have no other home; they are to live at Bride Brook
indefinitely; they are registered to vote at Bride Brook;
they receive mail at this address; they are considered
in a residential community; they participate in the plan-
ning of their medical treatment; they are allowed to
manage their personal financial affairs; they participate
in social, religious, and community activities of choice;
they have visits from family, friends and acquaintances;
and they are treated with dignity and individuality,
including privacy.
‘‘During the hearing, the zoning officer obtained testi-
mony from the administrator of Bride Brook that the
residents were closely supervised by nursing staff and
a doctor on call. . . . There were no kitchens in the
individual units. . . . The residents may leave the
premises at will, but usually leave with relatives or in
a Bride Brook van. . . . The residents must be admit-
ted to Bride Brook on medical orders, not just on their
own application.’’ (Citations omitted; footnotes
altered.)
With that as background, the court undertook a ple-
nary review of the record to consider whether the com-
mission had satisfied its burden under the industrial
zone exception3 pursuant to § 8-30g (g) (2) (A)—of prov-
ing that the proposed affordable housing development
would be located in an area which is zoned for industrial
use and does not permit residential uses.4 The court
explained: ‘‘The issue in this case is only whether the
zoned area permits usages consistent with a residential
use. That is why the court was particularly interested
in the hearing conducted on remand concerning the
Bride Brook facility. Bride Brook was approved in 1990
in the LI zone under a special permit for convalescent
homes, as allowed by [§ 11.2.7 of the East Lyme Zon-
ing Regulations].’’
The court found: ‘‘Here . . . there is a factual record
showing that there are 87 people who live, have individ-
ual and community activities and vote at Bride Brook.
They consider it to be their legal residence. These are
permanent residents in the zone in question, living a
short distance from the proposed 60 unit residential
development plan of the plaintiff.’’ The court analogized
the circumstances presented in this case to those in
Glastonbury Affordable Housing Development, Inc. v.
Town Council, Superior Court, judicial district of Hart-
ford-New Britain, Docket No. CV XX-XXXXXXX (Septem-
ber 4, 1996), in which the court directed the defendant
to approve an affordable housing development where
the zoning regulations permitted a ‘‘range of population-
intensive uses,’’ including ‘‘a convalescent, nursing or
rest home.’’ The court in the present case found: ‘‘This
is also the situation here, based on the situation of the
Bride Brook residents.’’
The court therefore concluded that the industrial
zone exception did not apply here, and thus that the
commission’s denial of the affordable housing applica-
tion could not be sustained on that basis. The court
remanded the matter to the commission with direction
to approve the plaintiff’s application, subject to reason-
able conditions not inconsistent with approval. The
commission 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.
The parameters of our review of an affordable hous-
ing appeal are circumscribed by § 8-30g (g), which pro-
vides: ‘‘Upon an appeal taken under subsection (f) of
this section, the burden shall be on the commission to
prove, based upon the evidence in the record compiled
before such commission, that the decision from which
such appeal is taken and the reasons cited for such
decision are supported by sufficient evidence in the
record. The commission shall also have the burden to
prove, based upon the evidence in the record compiled
before such commission, that (1) (A) the decision is
necessary to protect substantial public interests in
health, safety or other matters which the commission
may legally consider; (B) such public interests clearly
outweigh the need for affordable housing; and (C) such
public interests cannot be protected by reasonable
changes to the affordable housing development, or (2)
(A) the application which was the subject of 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. ‘‘Under [the first sentence of § 8-
30g (g)], the court must determine . . . whether the
commission has shown that its decision is supported by
sufficient evidence in the record. Under subparagraphs
[(1) (A), (B) and (C)] of the statute, however, the court
must review the commission’s decision independently,
based upon its own scrupulous examination of the
record. Therefore, the proper scope of review regarding
whether the commission has sustained its burden of
proof, namely that: its decision is based upon the protec-
tion of some substantial public interest; the public inter-
est clearly outweighs the need for affordable housing;
and there are no modifications that reasonably can be
made to the application that would permit the applica-
tion to be granted—requires the court, not to ascertain
whether the commission’s decision is supported by suf-
ficient evidence, but to conduct a plenary review of the
record in order to make an independent determination
on this issue.’’ (Internal quotation marks omitted.) River
Bend Associates, Inc. v. Zoning Commission, 271
Conn. 1, 22, 856 A.2d 973 (2004). ‘‘[Although the] com-
mission remains the finder of fact and any facts found
are subject to the ‘sufficient evidence’ standard of judi-
cial review . . . th[e] application of the legal standards
set forth in § 8-30g (g) (1) (A), (B) and (C) to those
facts is a mixed question of law and fact subject to
plenary review.’’ (Citation omitted.) Id., 24–25.
‘‘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 [commission’s] decision and the scope of
our review of that decision are the same.’’ (Internal
quotation marks omitted.) Id., 26–27 n.15. Because we
find no principled reason for distinguishing between
subdivisions (1) and (2) of § 8-30g (g) with regard to
the commission’s obligation; see JPI Partners, LLC v.
Planning & Zoning Board, 259 Conn. 675, 691, 791 A.2d
552 (2002); the issue of whether it met its statutory
burden to prove that the industrial use exemption
applies presents a mixed question of law and fact over
which our review is plenary.
It is undisputed that the affordable housing develop-
ment for which the plaintiff sought approval in this case
represents a residential use. The only issue before us is
whether the proposed affordable housing development
would be located in an area that is zoned for industrial
use and does not permit residential uses.
Resolution of this issue requires us to review the
statutory language of § 8-30g (g) and the town of East
Lyme’s municipal zoning regulations, the interpretation
of which presents a question of law over which our
review is plenary. Alvord Investment, LLC v. Zoning
Board of Appeals, 282 Conn. 393, 416, 920 A.2d 1000
(2007). The following principles regarding the interplay
between the affordable housing statute and municipal
zoning regulations are instructive. Our Supreme Court
has ‘‘outlined the differences that [it] had identified
previously between an affordable housing land use
appeal brought pursuant to § 8-30g and a traditional
zoning appeal. First, an appeal under § 8-30g [f] may
be filed only by an applicant for an affordable housing
development whose application was denied or [was]
approved 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 . . . .
‘‘Second, the scope of judicial review under § 8-30g
[g] requires the town, not the applicant, to marshal the
evidence supporting its decision and to persuade the
court that there is sufficient evidence in the record to
support the town’s decision and the reasons given for
that decision. By contrast, in a traditional zoning appeal,
the scope of review requires the appealing aggrieved
party to marshal the evidence in the record, and to
establish that the decision was not reasonably sup-
ported by the record. . . .
‘‘Third, if a town denies an affordable housing land
use application, it must state its reasons on the record,
and that statement must take the form of a formal,
official, collective statement of reasons for its actions.
. . . By contrast, in a traditional zoning appeal, if a
zoning agency has failed to give such reasons, the court
is obligated to search the entire record to find a basis
for the [agency’s] decision. . . .
‘‘We reach this conclusion based on the text and the
purpose of the statute. The text requires that the town
establish that sufficient record evidence supports the
decision from which such appeal is taken and the rea-
sons cited for such decision . . . . Thus, textually the
statute contemplates reasons that are cited by the town.
This strongly suggests that such reasons be cited by
the zoning agency at the time it took its formal vote on
the application, rather than reasons that later might be
culled from the record, which would include, as in a
traditional zoning appeal, the record of the entire span
of hearings that preceded the vote. . . . Furthermore,
the key purpose of § 8-30g is to encourage and facilitate
the much needed development of affordable housing
throughout the state. . . . Requiring the town 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 pretextual
denials of such applications. We therefore read the stat-
ute, consistent with its text and purpose, to require the
town to do so.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) JPI Partners, LLC
v. Planning & Zoning Board, supra, 259 Conn. 688–90.
‘‘The legislative history indicates that the legislature
intended to accomplish th[e] goal [of encouraging and
facilitating affordable housing throughout the state] by
creating specific legislation that affects only affordable
housing applications, not the overall zoning scheme.
Therefore, applications that do not fit into the definition
of an affordable housing application are not affected
by § 8-30g. If an application does satisfy the definition
of an affordable housing application, however, then the
commission must satisfy the increased burden of proof
in order to deny the application effectively. Under these
circumstances, nonconformity of zoning is not, per se,
a reason to deny the application. The legislature did
not intend zoning nonconformity to block an affordable
housing subdivision application. . . .
‘‘Section 8-30g is not part of the traditional land use
statutory scheme. Traditional land use policies did not
solve Connecticut’s affordable housing problem, and
the legislature passed § 8-30g to effect a change. . . .
‘‘Section 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. The
factors that the commission considers when reviewing
affordable housing subdivision applications are the
same as those considered when it passes subdivision
regulations. Instead of simply questioning whether the
application complies with those regulations, however,
under § 8-30g, the commission considers the rationale
behind the regulations to determine whether the regula-
tions are necessary to protect substantial public inter-
ests in health, safety or other matters. . . .
‘‘Conformity [in decisions] is provided by § 8-30g
because each decision must be justified in terms of
the factors enumerated in the statute.’’ (Emphasis in
original; footnote omitted.) Wisniowski v. Planning
Commission, 37 Conn. App. 303, 316–18, 655 A.2d 1146,
cert. denied, 233 Conn. 909, 658 A.2d 981 (1995).
In sum, ‘‘zoning compliance is not mandatory prior
to approval of an affordable housing subdivision appli-
cation. . . . The burden of proof in § 8-30g [g] 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 statutory requirements
for its denial of an application. Section 8-30g [g] pro-
vides that if the commission fails to satisfy its burden
of proof, the trial 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.’ ’’ (Citation omitted;
emphasis omitted.) Id., 319–20. With the foregoing prin-
ciples in mind, we turn to the commission’s claim on
appeal.
Here, neither party disputes that the proposed devel-
opment would be located in an area which is zoned for
industrial use. The only issue in dispute is whether that
area does not permit residential uses. The commission
claims that the trial court ‘‘drew conclusions of law
unsupported by the record when it determined that
Bride Brook Nursing and Rehabilitation Center is a
residential use and the LI zone permits residential
uses,’’ and that the ‘‘trial court’s conclusion that Bride
Brook is a residential use is clearly erroneous and is
contrary to the sufficient evidence in the record show-
ing otherwise.’’ (Internal quotation marks omitted.) The
commission’s arguments, however, demonstrate a mis-
understanding of its burden in affordable housing
appeals. As noted herein, the commission bears the
burden of proving that the proposed affordable housing
development would be located in an area which is zoned
for industrial use and does not permit residential uses.
We conclude that the commission failed to satisfy
that burden.
As to the industrial use exemption, the commission
declared, in response to both the plaintiff’s initial appli-
cation and its modified application for approval of the
affordable housing development, that the area did not
permit residential uses. More specifically, the commis-
sion stated, on both occasions, that ‘‘residential uses
are not permitted in the LI zoning district.’’ Those decla-
rations, particularly in the absence of any reference to
any evidence in the record, appear to be based solely
upon the municipal regulatory definition of the zone in
which the proposed development would be located.
The commission looked no further than its own zoning
regulations in determining the applicability of the indus-
trial use exemption. As noted herein, zoning designa-
tions may not be the sole basis for the denial of an
affordable housing regulation.
Although the commission did not point to any evi-
dence in the record that the area in question did not
permit residential uses, the court, in making its plenary
determination as to whether the industrial exemption
applies in this case, focused on the existing uses in LI
zones in East Lyme, particularly the use of Bride Brook,
which had been granted a special permit as a convales-
cent home in 1990. On September 18, 2014, the commis-
sion held a public hearing pursuant to the court’s
remand order to develop additional information con-
cerning the day-to-day activities of Bride Brook. Follow-
ing the presentation of evidence and public
commenting, the public hearing was closed and the
commission transitioned to a regular meeting, during
which it briefly discussed the issue presented during
the earlier public hearing, and then summarily con-
cluded that ‘‘Bride Book Nursing Home and Rehabilita-
tion Center is not a residential use pursuant to § 8-
30g (2) (A) of the General Statutes, based on evidence
presented pursuant to the court’s remand order dated
June 26, 2014.’’5 As noted herein, the court disagreed
with the commission and determined that Bride Brook
is a residential use and thus that the commission
improperly relied upon the industrial use exemption as
a basis to deny the plaintiff’s application.
The East Lyme Zoning Regulations allow, by special
permit, convalescent homes. Those regulations define
a convalescent home as a facility that provides for those
with chronic health issues,6 which necessarily contem-
plates more than a transient use.7 Indeed, as the trial
court noted, the 1990 resolution of the commission
described Bride Brook as a place where people would
‘‘reside’’ within the LI zone. Specifically, in a document
that was submitted in connection with the application
for the development of Bride Brook in 1990, as part of
the ‘‘Description of Daily Activities,’’ it was noted that:
‘‘There will be an average of 118 persons residing at
Bride Brook at any one time.’’ Thus, not only has Bride
Brook functioned in fact as a residential use, as its
administrator testified, that use was specifically con-
templated ab initio and approved by the commission.
We thus reject the commission’s claims that the trial
court improperly determined that Bride Brook is a resi-
dential use.
Although nonconformity with zoning designations
may not, in itself, be sufficient grounds for the denial
of an affordable housing application, conformity with
those designations undoubtedly mandates the granting
of such an application. Because the East Lyme Zoning
Regulations permit convalescent homes in an LI zone,
and convalescent homes, by their nature and borne out
by the example of Bride Brook, potentially involve at
least some degree of residential use, we conclude that
the East Lyme Zoning Regulations cannot be construed
‘‘not [to] permit’’ residential uses in an area that has
been zoned LI. We thus conclude that the trial court
properly determined that the commission improperly
denied the plaintiff’s affordable housing application
without proving that the proposed development would
be located in an area that is zoned for industrial uses
and does not permit residential uses.8
The judgment is affirmed.
In this opinion the other judges concurred.
1
The commission also claims that the trial court erred in deviating from
the law of the case doctrine and in basing its rejection of the industrial
use exemption on a determination that the area in which the proposed
development would be located permitted uses ‘‘consistent with a residential
use’’ rather than the precise statutory language ‘‘residential use.’’ We reject
both of those claims and conclude that neither of them deserves detailed
analysis.
2
Section 11 of the East Lyme Zoning Regulations provides in relevant part:
‘‘LI LIGHT INDUSTRIAL DISTRICTS
‘‘GENERAL DESCRIPTION AND PURPOSE—A district suitable for heavy
commercial and light manufacturing, oriented essentially to major transpor-
tation facilities. The purpose of this district is to provide areas for industrial
and commercial uses in an open setting that will not have objectionable
influences on adjacent residential and commercial districts.
‘‘11.1 PERMITTED USES—The following uses of buildings and/or land
and no others are permitted subject to site plan approval in accordance
with Section 24.
‘‘11.1.1 Light industrial or manufacturing uses which are not dangerous
by reason of fire or explosion, nor injurious or detrimental to the neighbor-
hood by reason of dust, odor, fumes, wastes, smoke, glare, noise, vibration
or other noxious or objectionable feature as measured at the nearest prop-
erty line.
‘‘11.1.2 Trucking Terminal.
‘‘11.1.3 Printing or publishing.
‘‘11.1.4 Warehouse and wholesale storage; self-storage warehouses.
‘‘11.1.5 Commercial nurseries, greenhouses and garden centers.
‘‘11.1.6 Office complex.
‘‘11.1.7 All related accessory uses customarily incidental to the above
permitted uses . . .
‘‘11.2 SPECIAL PERMIT USES—The following uses may be permitted
when granted a Special Permit by the Zoning Commission subject to the
Special Permit Requirements of Section 25.
‘‘11.2.1 Deli, coffee shop or cafeteria.
‘‘11.2.2 Private training facilities, trade and technical schools and facilities
of higher learning.
‘‘11.2.3 Research, design and development facilities.
‘‘11.2.4 Health spas and gymnasiums, sports facilities and other commer-
cial indoor recreations.
‘‘11.2.5 Hotels.
‘‘11.2.6 Contractor or trade services.
‘‘11.2.7 Convalescent homes.
‘‘11.2.8 Motor Vehicle and heavy equipment Repairers Station.
‘‘11.2.9 Office and retail sales of industrial services . . .
‘‘11.2.10 Adult Use Establishments . . . .’’
3
The court ‘‘assum[ed] that the commission satisfied the [threshold] ‘suffi-
ciency test’ ’’ set forth in § 8-30g (g) and conducted its own independent
review as to whether the commission met its burden of proof under § 8-
30g (g) (1). The plaintiff has not challenged the court’s determination that
the commission met the sufficiency of the evidence standard and we thus
need not address it.
The court also found that the commission failed either to show that its
decision was necessary to protect substantial public interest in health, safety
or other matters pursuant to § 8-30g (g) (1), or that the subject of the decision
from which this appeal is taken would locate affordable housing in an area
zoned for industrial use and which does not permit residential use pursuant
to § 8-30g (g) (2). Because the commission has not challenged the trial
court’s determination that it failed to meet its burden under subdivision (1),
that determination stands, and, therefore, the commission may only prevail
on appeal if it can show that the trial court erred in concluding that the
commission failed to meet its burden under subdivision (2).
4
It is undisputed that the proposed development was not assisted housing.
5
Although the individual members posited various reasons for determining
whether Bride Brook was a residential use, those opinions are not those of
the commission and thus may not form the basis for the denial of an applica-
tion. See Verrillo v. Zoning Board of Appeals, 155 Conn. App. 657, 673–74,
111 A.3d 473 (2015) (individual reasons given by certain members of zoning
agency do not amount to formal, collective, official statement of agency,
are not available to show reasons for, or grounds of, zoning agency’s decision
and it is not appropriate for reviewing court to attempt to glean such formal,
collective statement from minutes of discussion by members prior to zoning
agency’s vote).
6
Section 1.50 of the December, 2012 revision of the East Lyme Zoning
Regulations defines a convalescent home, which is interchangeable with a
rest home, as: ‘‘An establishment which provides full convalescent or chronic
care or both for three or more individuals who are not related by blood or
marriage to the operator and who, by reason of chronic illness or infirmity,
are unable to care for themselves. A hospital or sanitarium shall not be
construed to be included in this definition.’’
7
For example, § 1.24 of the December, 2012 revision of the East Lyme
Zoning Regulations defines a hotel as providing ‘‘service for the use of
transient guests.’’
8
This conclusion is further supported by the commission’s previous
approval of affordable housing applications in areas zoned for light indus-
trial use.