DocketNumber: No. 95 0549155
Citation Numbers: 1996 Conn. Super. Ct. 5261-KK
Judges: KOLETSKY, J.
Filed Date: 8/12/1996
Status: Non-Precedential
Modified Date: 7/5/2016
MHA obtained the option to purchase the subject property with the hopes of building a mutual housing community with affordable housing for, among others, the less affluent elderly and young members of the community and town employees. ROR, Item 1, Exh. 5 (Section 1 of MHA's proposed regulation states the intent and purpose of MHA's proposed zone). MHA therefore filed an affordable housing application with the Commission on August 31, 1994, which, in effect, made a two-fold request: First, the application requested the Commission to amend the text of the Trumbull Zoning Regulations by adopting a proposed regulation in order to create a new "Housing Opportunity Development" (HOD) zone, a zone where the maximum housing density per gross acre would be 12 units, and, a zone where no less than 50 percent of the units would be permanently affordable to those earning 80 percent or less of the area median income. ROR, Item 1, Exhs. 2 and 5. Second, the application requested the Commission to rezone the subject property to the newly proposed HOD zone so that MHA could construct 66 multi-family housing units. ROR, Item 1, Exh. 2.
The Commission held public hearings on MHA's affordable housing application on November 9, 1994 and November 29, 1994. See ROR, Items 13 and 15 (hearing transcripts). To establish the need for affordable housing in Trumbull, MHA presented to the Commission the State of Connecticut 1993 Affordable Housing Appeals Procedure List, promulgated by the Department of Housing as required by §
In addition to the evidence relevant to the shortage of affordable housing in Trumbull, suffice it to say at this point that there was lengthy testimonial and sizeable documentary evidence submitted in support of and in opposition to MHA's application. See ROR. The court has reviewed the entire record and will discuss specific testimonial and/or documentary evidence as necessary in the body of this opinion.
On January 18, 1995, the Commission denied MHA's application. ROR, Item 19. Legal notice of the denial was published in the February 1, 1995 edition of The Connecticut Post. ROR, Item 20.
On February 15, 1995, as permitted by General Statutes §
1. The existing Town of Trumbull zoning regulations contain two separate affordable housing sections. The existing regulations should serve as the basis for any proposals for affordable housing developments in Trumbull. It is not acceptable to amend the zoning regulations by adding a third separate affordable housing regulation.
2. The proposed amendment does not require the submission of a site plan as part of the zoning amendment process. Such a plan is required to demonstrate the impact of the project on the resources of the town prior to approval of the zoning amendment. It is not possible to fully evaluate the impact of the amendment unless a plan which demonstrates impacts is presented by the applicant. CT Page 5261-OO
3. The proposed amendment does not require that all town engineering standards be included in roadway and utility design.
4. The proposed amendment does not include adequate parking areas for residents and visitors. Lack of adequate on-site parking will lead to parking along the roadways within the development, resulting in unsafe conditions.
5. The proposed amendment does not include adequate active recreational open space. This amenity is considered critical to maintain the quality of life for the residents of the development and to prevent overcrowding.
6. The proposed amendment does not require safe separating distances between buildings. The minimum acceptable separating distance is 50 feet unless residential sprinkler systems are required for all buildings.
7. The maximum height allowed for the buildings in the proposed amendment is in excess of the maximum allowed for all residential developments of a similar nature in the Town of Trumbull. The maximum height limitation of 35 feet must not be exceeded.
8. The modifications to the revised proposal do not address the reasons for disapproval presented when voting on the original version. Trumbull has existing zoning regulations for building affordable housing on a parcel of land of the size proposed in these applications. The existing regulation also applies to affordable housing adjacent to residential zones. If this parcel of land does not meet the requirements of the existing regulation and it can be demonstrated that it is suitable for a similar purpose, then the existing regulation should be revised. It is not prudent to approve a new regulation when existing regulations can be revised whenever it is justifiable. Although the idea of eliminating costs associated with detailed planning makes economic sense to developers, the Town of Trumbull is not permitted to avoid costs dependent on detailed planning when it comes to providing schools, police, fire safety, and general provisions related to health, safety, and welfare. The precedent of creating new regulations CT Page 5261-PP for individual applications undermines the intent of any zoning because the zoning regulation becomes a record of what already exists, and no longer regulates what will be developed in the future.
9. The need for an engineered and detailed site plan was evidenced by the applicant's own revised conceptual plan. For example, the separating distance between buildings is shown as 32' on the conceptual drawing, but the proposed regulation states a 30' minimum requirement. If the proposed regulation were adopted, there would be no requirement for 32' between buildings. Therefore, the site plan is misleading, and does not reflect what is stated in the proposed regulation.
Since the proposed regulation was not adopted, the zone change [of the subject property] to a Housing Opportunity Development Zone could not be approved.
ROR, Item 26. Legal notice of the Commission's decision was published in the March 30, 1995 edition of The Connecticut Post. Plaintiff's Amended Appeal ¶ 20; Defendant's Answer to Amended Appeal, ¶ 20; ROR, Item 27.
On April 17, 1996, the court held a hearing on MHA's Amended Complaint, at which time both parties were fully heard. At the conclusion of the hearing, counsel for the Commission made a request that the court view the subject property before reaching a decision on the merits, to which request MHA did not object. CT Page 5261-QQ The court therefore viewed the subject property on April 18, 1996.
Pursuant to General Statutes §
Section
Accordingly, pursuant to §
In the present case, MHA filed a modified affordable housing application with the Commission on February 15, 1995, within fifteen days from February 1, 1995, the date the Commission published its decision denying MHA's original affordable housing application. ROR, Items 20-23. Therefore, the time period to file an appeal of the decision was stayed. General Statutes §
The Commission subsequently denied MHA's modified application and published notice of its decision on March 30, 1995. See Plaintiff's Amended Appeal, ¶ 20; Defendant's Answer to Amended Appeal, ¶ 20; ROR, Item 27. MHA herein appeals the Commission's decision denying the modified application. The court CT Page 5261-SS finds that MHA, as the holder of an option to purchase the subject property,7 is aggrieved by the Commission's decision.Goldfield v. Planning Zoning Commission, 3 Conn. App: 172, 176-77,
Section
"The burden of proof established in §
In addition to the burden of proof set forth in §
In the present case, the Commission was acting in its legislative capacity when it denied MHA's modified application. The modified application requested the Commission to amend the Trumbull Zoning Regulations and to rezone the subject property to a HOD zone. Amending zoning regulations, creating new zones, and CT Page 5261-UU rezoning property are legislative acts. Morningside Associationv. Planning and Zoning Board,
The standard of review of a decision of a zoning authority acting in its legislative capacity is well established: "`[I]t is not the function of the court to retry the case. Conclusions reached by a zoning commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the commission. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the commission supports the decision reached." (Internal brackets omitted.) WestHartford Interfaith Coalition, Inc. v. Town Council, supra,
It is within this framework, statutorily and traditionally defined, that the court reviews the record of this case.
The "apparent" rationale for the Commission's insistence that developers use Trumbull's existing affordable housing regulations is to promote the development of affordable housing throughout town.8 See i.e., ROR, Item 13, pp. 40-42 (statements of CT Page 5261-WW Commissioners Halaby and Chory); pp. 66-71 (testimony of Attorney Robert Lesser). The Commission claims that its existing affordable housing regulations ensure that no two affordable housing developments will be constructed within one mile from one another. The Commission argues that avoiding the social evils associated with grouped "project" housing is a substantial public interest that the Commission is entitled to consider. Presumably, the Commission also argues that this substantial public interest outweighs the need for affordable housing in Trumbull.
There is authority that supports the Commission's claim that scattered affordable housing is in theory a proper and salutary goal because it avoids the project-like environment where large concentrations of economically deprived citizens tend to gravitate. See National Associated Properties v. Planning Zoning Commission, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 518954 (Nov. 17, 1993, Mottolese, J.), aff'd on other grounds,
Trumbull's two existing affordable housing regulations are Article XIII — the Planned Affordable Housing Zone (PAHZ) — and Article XIV — the Affordable Housing Development (AHD) zone. ROR, Item 31, pp. 90-101. Article XIII indeed expressly prohibits the establishment of a PAHZ within one mile from any other PAHZ; id., p. 90 (Section 3). Likewise, the location and size requirements of the AHD regulation effectively preclude the development of one AHD next to another AHD. Id., p. 97 (Section 5). There is no regulation, however, that restricts the establishment of a PAHZ next to a AHD. Id. Thus, conceivably, two affordable housing developments, consisting of a maximum of 50 acres, could be developed adjacent to one another. See id., p. 90 (Section 3 — PAHZ permitted in residential zones) and p. 97 (Section 5 — AHD permitted in or within 200 feet of Industrial zones); see also id. (zoning map indicates location of residential and industrial zones).
Moreover, even if the court looked beyond this loophole in the regulations and assumed that the existing regulations ensure the distribution of affordable housing developments throughout town, the Commission has failed to carry its burden of proving that this arguably substantial public interest of scattered CT Page 5261-XX affordable housing clearly outweighs the need for affordable housing in the town of Trumbull. The record before the Commission revealed that only 2.03 percent of Trumbull's 11,266 housing units qualify as affordable housing under §
Yet, even if the demonstrated need of affordable housing in Trumbull for individuals other than the elderly did not itself outweigh the "public interest" of scattering affordable housing developments throughout town, there are additional facts that would tip the scale in any event. The record reveals that there is a shortage of buildable land in Trumbull. The 1984 Trumbull Plan of Development indicates that as of 1983, Trumbull was over 90 percent developed and development in Trumbull was "approaching the point of `saturation' where most easily buildable land has been developed. . . . It is at the point where the `finishing touches' of services and facilities must be added or left out for good. . . . The main point now is that relatively little land is left." ROR, Item 30, p. 23.
This scarcity of land along with the fact that the existing affordable housing regulations contain minimum/maximum site acreage requirements of 3 to 10 acres and 30 to 40 acres, leads the court to the conclusion that Trumbull's existing affordable housing regulations accomplish more than scattering affordable housing throughout town: The regulations have the effect of discouraging the development of affordable housing because of the minimum/maximum acreage and location requirements. The court asked the Commission's counsel during the hearing how many undeveloped sites in Trumbull could meet the acreage and location requirements of the existing affordable housing regulations. No answer was provided. A town cannot remove itself entirely from §
As a final point, there is no evidence in the record that the construction of MHA's proposed affordable housing development CT Page 5261-YY would turn this section of town into the "affordable housing section." The existing Avalon affordable housing development in Trumbull consists of 340 units on 34 acres. MHA's proposed affordable housing development would be 59 units on 5.9 acres. On the adjacent lot, the Stonebridge Estates affordable housing development is 21 units on approximately 6.77 acres. ROR, Item 1, Exh. 15. If the 340 unit, 34 acre Avalon development does not create an affordable housing section within Trumbull, it is difficult to see how a combined 80 unit, 13 acre development would constitute an affordable housing section of town.
Accordingly, the court concludes that the Commission has failed to prove that the public interest of scattered affordable housing clearly outweighs the need for affordable housing.
There is, however, insufficient evidence in the record to support the Commission's claim that a site plan is needed to analyze the effect the proposed development will have on the town's fiscal budget. Section 8, subsection (C) of the modified proposed regulation states that "[t]he maximum number of dwelling units permitted in the HOD shall be determined by multiplying the total number of gross acres in the HOD by 10." ROR, Item 23. Moreover, Section 11 of the proposed regulations sets forth unit mix permitted in a HOD. Id. Therefore, the proposed regulations themselves provide the necessary information for the town to estimate the total number of units and residents at MHA's affordable housing development. The Commission has failed to explain, in the record, or in its brief, how a fully engineered site plan would assist the Commission assess the impact on the town's fiscal budget.
Furthermore, in Kaufman v. Zoning Commission, supra,
Moreover, the lack of a fully engineered site plan will not preclude the town from subsequently reviewing the proposed development to ensure that it complies with the town's engineering and design regulations. At the evidentiary hearing the Commission conceded that even if the zone change application was granted MHA would still be required to submit fully engineered site plans to the appropriate agencies prior to beginning construction. See id., n. 13. Thus, the town can refuse to grant a building permit if the site plan fails to meet town regulations.
Therefore, the Commission has failed to prove that there is sufficient evidence in the record to support the second reason for denying the modified application.
There is nothing in the public record or in the Commission's brief that illustrates how these provisions enable MHA to avoid meeting the town's engineering standards for utility design. Section 2, in fact, explicitly requires compliance with all applicable town ordinances. Thus, the court concludes that there is insufficient evidence in the public record to support the finding that the modified proposed regulation fails to require conformance with the town's engineering standards for utility design.
Also, there is insufficient evidence in the record to support a finding that the modified proposed regulation does not require conformance with the town's engineering standards for roadway design. Again, Section 2 of the modified proposed regulation states that "[a]ny Housing Opportunity Development (HOD) constructed within the town shall be in full compliance with all of the requirements of this regulation as well as all other applicable town ordinances and regulations." Id. Furthermore, in the public record, the town's own consultant recognized that MHA made changes to the original proposed HOD regulation to correct identified safety concerns. ROR, Item 26. The only objection the town consultant raised was that "[t]he fire department stated that the roadway [on the proposed site] still will create problems if there are cars parked in the roadways. There was still a question about the navigability of the Trumbull Center's largest fire truck. This also relates to the point that there is insufficient parking with this proposal, with no allowance for visitor parking. There is not enough room, and if anyone parks on the roadway, it will be unsafe for emergency vehicle access." ROR, Item 26.
The Commission, however, has also failed to prove that there is sufficient evidence in the public record to support these findings. The Commission has also failed to prove that these findings are necessary to support a substantial public interest. Section 15 of the modified proposed regulation states that "[i]nterior roadways shall be at least twenty-four (24) feet wide and shall have turning radii suitable for emergency vehicles." ROR, Item 23. Thus, the modified proposed regulation requires roadways to have sufficient turning radii for emergency vehicles. If the fully engineered site plan does not provide sufficient turning radii for all emergency vehicle, then the town would be justified in denying a building permit.
Likewise, the Commission has failed to demonstrate how MHA's CT Page 5261-BBB proposed regulation fails to provide for enough parking, except by simply stating that there is not enough parking. Section 12 of the modified proposed regulation provides for two parking spaces per unit. This is the same ratio required by Trumbull's existing Planned Affordable Housing Zone (PAHZ) regulation. Cf. ROR, Item 23 (Section 12 Parking) and ROR, Item 31 (Article XIII — Planned Affordable Housing Zone Section 10 Parking). Furthermore, if one takes the parking ratio for the existing Affordable Housing Development (AHD) regulation, which has the same maximum density as MHA's proposed regulation, and apply that ratio to the unit mix MHA proposed in its modified conceptual site plan, the AHD regulation would require 128 parking spots. See ROR, Item 31, p. 99 (AHD Section 10 — Parking); ROR, Item 23a (modified conceptual site plan). MHA's regulation requires 118 parking spaces. ROR, Item 23. The Commission has offered no evidence or argument to explain why 10 less parking spots in this development creates a hazard rising to the level of a substantial public interest.
Therefore, MHA's parking ratio is the same as the parking ratio of the PAHZ, and causes nearly the same result as the AHD zone regulations. The record and the Commission's brief are silent as to why MHA should be subjected to a different parking ratio than the PAHZ or the AHD zone. The court therefore concludes that the Commission has failed to prove that there is sufficient evidence in the record to support its finding that the modified proposed regulation fails to require compliance with town engineering standards for roadway design.
The proposed HOD regulation, however, guarantees the same open space and recreational area that the existing AHD regulation provides. Section 7 of AHD regulation provides: "Maximum Coverage. The aggregate area of the various improvements in any AHD shall not exceed the following designated percentages of the total area of the property being developed as an AHD: . . . C. Areas which shall be designated as open space which shall include areas which are unimproved or which shall contain improved landscaping or which shall be used for recreational areas, shall, in the aggregate, contain not less than fifty percent of the total area." Section 8 of the proposed modified HOD regulation provides: "Maximum Density and Lot Coverage. The aggregate area of the various improvements in any HOD shall not exceed the following designated percentages of the total area of the property being developed as an HOD: . . . B. Areas which shall be unimproved or which shall contain improved landscaping or which shall be used for recreation, shall, in the aggregate, contain not less than fifty percent (50%) of the total area." This is the evidence on the record. The Commission has failed to explain why MHA should be required to set aside more than fifty percent of the total area for open space and recreation when the existing AHD regulation, a regulation the Commission argued that developers should use, provides for the same ratio as the proposed HOD regulation. Therefore, the court concludes that the Commission has failed to prove that a substantial public interest is jeopardized by a requirement in the proposed HOD regulation that at least fifty percent of the total area of the site be set aside as open space recreational area.
Section 9(B) of the original proposed HOD regulation provided for twenty-five feet between buildings. Section 10(E) of MHA's proposed HOD regulation provides that "[t]he minimum separation distance between any two residential buildings shall be thirty feet." The Commission has failed to prove that there is sufficient evidence in the record to support a finding that thirty feet between buildings is unsafe. Thirty feet is enough CT Page 5261-DDD distance to extend the stabilizing pads from the fire trucks. It provides enough room for the fire trucks to get between the buildings. Thirty feet also exceeds the State Building Code's requirements for separation distances for buildings of this nature. Unsupported statements that a minimum of fifty feet is required will not be considered by this court as sufficient evidence to support this otherwise unsupported conclusion.
The court is unable to follow the Commission's reasoning. The CT Page 5261-EEE issue is whether a minimum distance of 30 feet between buildings is sufficient. If the conceptual plan shows 32 feet, it is not misleading. It falls within the proposed regulations. If the final site plan depicts 30 feet, it would also meet the proposed regulations. The question is not whether the conceptual plan meets the regulations exactly. The question the Commission needed to address was whether a 30 feet minimum separation requirement was sufficient. There is nothing in the record to indicate that it is not sufficient. There is a statement from the Chief of Trumbull's Volunteer Fire Department that he would like 50 feet, ROR, Item 13, pp. 77-79, but there is not sufficient evidence in the record indicating that 30 feet is not sufficient.
Koletsky, J.