Page 1 LEXSEE 2004 CONN. SUPER. LEXIS 123 Avalonbay Communities, - - PDF document

Page 1 LEXSEE 2004 CONN. SUPER. LEXIS 123 Avalonbay Communities, Inc. v. Milford Planning and Zoning Board CV020514399S SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW BRITAIN AT NEW BRITAIN 2004 Conn. Super. LEXIS 123 January 12, 2004, Decided January 14, 2004, Filed NOTICE: [*1] THIS DECISION IS UNRE- PORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE. DISPOSITION: Board's reliance on the Inland Wet- lands decision misplaced. As a result, this reason for denying the applications is invalid. CASE SUMMARY: PROCEDURAL POSTURE: Appellant developer brought an affordable housing land use appeal in the Superior Court, Judicial District of Ansonia/Milford (Connecticut), under Conn. Gen. Stat. § 8-30g, which was transferred to the trial court, tax and administrative appeals session, from appellee planning and zoning board's denial of four applications. OVERVIEW: The developer argued that its application was grandfathered under the affordable housing law as it existed prior to the effective date of 2000 Conn. Acts

• 206. The trial court applied 2000 Conn. Acts 206 pro-

spectively, and held that the applications met the defini- tion of "affordable housing" as it existed on the date they were filed. Thus, the applications were reviewed as af- fordable housing appeals. The town had a need for af- fordable housing. The board did not meet its burden to prove that the legitimate desire to encourage economic development and suitability for multi-family housing was based upon a substantial public interest or that it clearly outweighed the need for affordable housing. De- nial of the site plan was not necessary to protect the pub- lic interest in health and safety as it pertained to access for fire, police, and ambulance personnel. The board should have advanced its legitimate fire safety concerns by approving the site plan subject to reasonable condi-

• tions. Conditional approval of the project upon sewer

approval would not have harmed the public interest, and reliance on the inland wetlands decision was misplaced. OUTCOME: The appeal was sustained. The matter was remanded to the board and the board was ordered to ap- prove the zone change application and the special permit application, and to approve the site plan application sub- ject to reasonable and necessary conditions, not inconsis- tent with the decision. CORE TERMS: affordable housing, public interests, site plan, parking, space, boulevard, feet, Public Act, roadway, zoning, outweigh, front, zone, multi-family, parcel, garage, affordable, wetlands, neck, zone change, sufficient evidence, safety concerns, interchange, hous- ing, inlands, emergency, plenary, median, sewer, safe LexisNexis(R) Headnotes Real Property Law > Subdivisions > General Overview [HN1] 2000 Conn. Acts 206 modified the definition of "affordable housing" by increasing the percentage of affordable housing units required from 25 to 30 percent and increasing the period for which they must be desig- nated affordable from 30 years to 40 years.

Page 2 2004 Conn. Super. LEXIS 123, * Governments > Legislation > Effect & Operation > Prospective Operation Governments > Legislation > Effect & Operation > Retrospective Operation [HN2] The general rule in Connecticut is that a new stat- ute should not be applied retroactively unless the legisla- ture clearly expressed an intent that it should be so ap- plied. Governments > Legislation > Effect & Operation > Retrospective Operation Governments > Legislation > Interpretation Real Property Law > Subdivisions > General Overview [HN3] Nothing in the language of 2000 Conn. Acts 206 indicates that it should be applied retroactively to pend- ing land use applications. Nor is there anything in the legislative history of the act which would lead the trial court to find that the legislature intended such a result. On the contrary, the legislative history indicates that an amendment to make the legislation retroactive was made and then withdrawn in the Connecticut House of Repre- sentatives after opponents of the amendment expressed their concern that the act should not apply to pending

• applications. The bill was then adopted with an effective

date of October 1, 2000. For these reasons, 2000 Conn. Acts 206 will not be applied retroactively. Real Property Law > Zoning & Land Use > General Overview [HN4] Conn. Gen. Stat. § 8-30g(h) provides that a pro- posed modification shall be treated as an amendment to

• riginal application.

Real Property Law > Zoning & Land Use > General Overview [HN5] Pursuant to Conn. Gen. Stat. § 8-30g(g), the bur- den in an affordable housing appeal is 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 deci- sion are supported by sufficient evidence in the record. Real Property Law > Zoning & Land Use > General Overview [HN6] In an affordable housing appeal, the planning and zoning commission shall have the burden to prove, based upon the evidence in the record compiled before the commission, that: (1)(A) the decision is necessary to protect substantial public interests in health, safety or

• ther matters which the commission may legally con-

sider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the afford- able housing development. Real Property Law > Zoning & Land Use > Judicial Review [HN7] The Connecticut Supreme Court has interpreted

• Conn. Gen. Stat. § 8-30g(g) to mean the appellate court

must determine whether the commission has shown that its decision is supported by sufficient evidence in the

• record. Under subparagraphs (B), (C) and (D) (later sub-

paragraphs (A), (B) and (C)), however, the appellate court must review the commission's decision independ- ently, based upon its own scrupulous examination of the record. Civil Procedure > Appeals > Standards of Review > De Novo Review Real Property Law > Zoning & Land Use > Judicial Review [HN8] The proper scope of review regarding whether the zoning commission has sustained its burden of proof, namely that: its decision is based upon the protection of some substantial public interest; the public interest clearly outweighs the need for affordable housing; and there are no modifications that reasonably can be made to the application that would permit the application to be granted requires the appellate court, not to ascertain whether the commission's decision is supported by suffi- cient evidence, but to conduct a plenary review of the record in order to make an independent determination on the issue. Real Property Law > Zoning & Land Use > Judicial Review [HN9] The appellate court defines sufficient evidence in the context of an affordable housing appeal to mean less than a preponderance of the evidence, but more than a mere possibility. The zoning commission need not estab- lish 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. Real Property Law > Zoning & Land Use > Judicial Review [HN10] In an affordable housing appeal, the zoning commission is required to show a reasonable basis in the record for concluding as it did. The record must contain evidence concerning the potential harm that would result

Page 3 2004 Conn. Super. LEXIS 123, * if the zone were changed and concerning the probability that such harm would in fact occur. Real Property Law > Zoning & Land Use > General Overview [HN11] A safe harbor is established by Conn. Gen. Stat. § 30g(k) for towns having at least 10 percent of all their dwelling units qualify as affordable under the formula established by that section. Environmental Law > Zoning & Land Use > Judicial Review Governments > Local Governments > Administrative Boards Real Property Law > Zoning & Land Use > Adminis- trative Procedure [HN12] The zoning board has broad authority when it acts in a legislative capacity to amend its regulations. Civil Procedure > Appeals > Standards of Review > De Novo Review Real Property Law > Zoning & Land Use > Adminis- trative Procedure Real Property Law > Zoning & Land Use > Judicial Review [HN13] In an affordable housing appeal, the second step

• f the Quarry Knoll review process requires the appellate

court to make a plenary review of the record to make the determinations required by Conn. Gen. Stat. § 8- 30g(g)(1)(A), (B), and (C). Real Property Law > Subdivisions > General Overview Real Property Law > Zoning & Land Use > Building & Housing Codes [HN14] Fire safety is as important to an affordable hous- ing development as to any other. It is not the purpose of the affordable housing statutes to encourage the creation

• f developments which may be hard to protect against

fire. Real Property Law > Subdivisions > General Overview [HN15] There is no question that sufficient access for fire, police, and ambulance personnel is a substantial public interest. Real Property Law > Zoning & Land Use > Judicial Review [HN16] The appellate court has been instructed to review a zoning commission's decision independently, based on its own scrupulous examination of the record. To carry

• ut this responsibility the appellate court must conduct a

plenary review of the record. Thus, in asserting its scru- tinizing independence, the appellate court cannot be in- fluenced by the commission's judgment but must make its own judgment by weighing the evidence. Real Property Law > Subdivisions > General Overview [HN17] That the corners and turns throughout the project do not meet the minimum standard that the town fire apparatus require is a valid health and safety concern which would outweigh the need for affordable housing. Real Property Law > Zoning & Land Use > Special Permits & Variances [HN18] The zoning board is required to grant conditional approval of an affordable housing application where the facts indicate doing so protects the public interest while advancing the goal of affordable housing. JUDGES: Pickard J. OPINION BY: Pickard OPINION MEMORANDUM OF DECISION This is an affordable housing land use appeal brought under Section 8-30g of the General Statutes from the Milford Planning and Zoning Board's ("the Board") denial of four applications submitted by the plaintiff, Avalonbay Communities, Inc. ("Avalon").

• I. Procedural History

Avalon commenced this appeal on March 6, 2002 by service of process upon Milford's Town Clerk and upon the chairperson of the Board. The appeal was filed in the Superior Court, Judicial District of Ansonia/Milford at Milford and then transferred on to the Superior Court, Judicial District of New Britain, tax and administrative appeals session. On June 28, 2002 the Board filed its answer and return of record. On November 22, 2002 and January 9, 2003 the court (Levine, J.) granted motions of both parties to supplement the record. The Board [*2] filed its brief on February 20, 2003, and Avalon filed its brief on April 4, 2003. On June 9, 2003 the Board filed its reply brief. The court heard argument on the appeal

• n three days in October and November 2003.
• II. Facts

Avalon is the contract purchaser of a 42.128-acre parcel of land located on Wolf Harbor Road near the intersection of Wheeler's Farms Road in Milford. The

Page 4 2004 Conn. Super. LEXIS 123, * property is situated mostly in a DO-25, Design Office, zoning district and is presently vacant. It was once used for a restaurant, a motel, and a gasoline station and ga- rage. In June 2000 Avalon filed four applications with the Board proposing a multi-family residential development which would qualify as affordable housing. Avalon Bay sought a zone change from DO-25 to RMF-16 Medium Density Multiple Family Residential District, and a Spe- cial permit and site plan approval to develop a 370-unit rental apartment home community, known as "Avalon at Milford." Avalon also proposed an amendment to the Milford Zoning Regulations that would allow multi- family development with price-restricted affordable units at a higher density than permitted by existing regulations, and that would modify existing standards [*3] for park- ing, building height and length, and setbacks. Avalon also applied to the Milford Inland Wetlands Agency for a permit to construct regulated activities in connection with its development of the property. Subsequent to the filing of these applications, addi- tional wetlands were discovered on the property. Avalon withdrew its original applications and submitted revised plans and new applications to the Board on September 18, 2000. The revised plans reduced the number of pro- posed buildings from 19 to 14 and the number of apart- ments from 370 to 310. Of the 310 units proposed, 232 would consist of "market grade apartments" and 78 were described as "affordable apartments." The Board held eight nights of public hearings to consider these applica-

• tions. On June 12, 2001 the Board denied all four of the

pending applications pursuant to a 49-page resolution. Thereafter, on June 29, 2001, Avalon submitted to the board a modification of its plans for the property pur- suant to C.G.S. Section 8-30g(d). These modifications included reductions in the number of buildings from 14 to 11, and the number of rental units from 310 to 284, of which 71 (25%) would be intended [*4] to qualify as affordable housing. Avalon also submitted an application to the Milford Inland Wetlands Agency based on the revisions to its plans. With respect to the modified applications, the Board held five nights of additional public hearings. The parties agreed that all testimony and evidence submitted in the

• riginal eight nights of hearings would be deemed part of

a single Record before the Board. Based upon this single record, the Board denied Avalon's applications on Febru- ary 19, 2002 in a 30-page resolution. Avalon duly filed this appeal in a timely fashion.

• III. Aggrievement

Avalon is the contract purchaser of the land which is the subject of this appeal. The land is owned by the Es- tate of Patricia H. McGannon. As a contract purchaser and applicant to the defendant board, Avalon is ag- grieved by the denial of the application. See, Section 8- 30g(f); Winchester Woods Associates v. Planning & Zon- ing Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); Shapero v. Zoning Bd. of Stamford, 192 Conn. 367-77, 472 A.2d 345 (1984).

• IV. Public Act 00-206

The first issue which must be addressed is whether Public Act 00-206, which became effective [*5] on Oc- tober 1, 2000, applies to this application. If Public Act 00-206 does not apply, Avalon's application is an afford- able housing application which is subject to the burden- shifting mechanism and standard of review established in C.G.S. Section 8-30g. If Public Act 00-206 does apply, Avalon's application is not an affordable housing appli- cation, and Avalon will have the burden of proving an abuse of discretion. This is because Public Act 00-206 [HN1] modified the definition of "affordable housing" by increasing the percentage of affordable housing units required from 25 to 30 percent and increasing the period for which they must be designated affordable from 30 years to 40 years. Avalon's application does not satisfy this amended definition because it designates only 25 percent of the units as affordable for a period of only 30 years. Avalon argues that its application is "grandfathered" under the law as it existed prior to October 1, 2000 when Public Act 00-206 became effective. Avalon argues that it filed its application prior to October 1, 2000 and that Public Act 00-206 should not be construed to apply ret- rospectively to a pending application. I agree. [HN2] The [*6] general rule in Connecticut is that a new statute should not be applied retroactively unless the legislature clearly expressed an intent that it should be so

• applied. McNally v. Zoning Commission, 225 Conn. 1, 9,

621 A.2d 279 (1993) (citations omitted). [HN3] Nothing in the language of Public Act 00-206 indicates that it should be applied retroactively to pending land use ap-

• plications. Nor is there anything in the legislative history
• f the act which would lead the court to find that the leg-

islature intended such a result. On the contrary, the legis- lative history indicates that an amendment to make the legislation retroactive was made and then withdrawn in the House of Representatives after opponents of the amendment expressed their concern that the act should not apply to pending applications. The bill was then adopted with an effective date of October 1, 2000. For these reasons, Public Act 00-206 will not be applied ret- roactively. In this case, Avalon filed its applications on Sep- tember 18, 2000, prior to the effective date of Public Act 00-206. The applications conformed to the definition of

Page 5 2004 Conn. Super. LEXIS 123, * "affordable housing" as it existed on the date they were

• filed. Although these [*7] applications were denied on

June 12, 2001, they were modified and submitted again

• n June 29, 2001 pursuant to the provisions of C.G.S.

Section 8-30g(h), [HN4] which provides that such a pro- posed modification shall be treated as an amendment to

• riginal application. The original applications in this case

were filed on September 18, 2000, before the effective date of Public Act 00-206. Therefore, these applications qualify to be reviewed as affordable housing appeals.

• V. Standard of Judicial Review

[HN5] Pursuant to Section 8-30g(g) the burden in an affordable housing appeal is "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 deci- sion are supported by sufficient evidence in the record. [HN6] The commission shall have the burden to prove, based upon the evidence in the record compiled before the commission, that (1)(A) the decision is necessary to protect substantial public interests in health, safety or

• ther matters which the commission may legally con-

sider; (B) such public interests clearly outweigh the need for affordable housing; and [*8] (C) such public inter- ests cannot be protected by reasonable changes to the affordable housing development . . ." [HN7] The Su- preme Court has interpreted the above language to mean the court must determine " . . . whether the commission has shown that its decision is supported by sufficient evidence in the record. Under subparagraphs (B), (C) and (D) [now subparagraphs (A), (B) and (C)] of the statute, however, the court must review the commission's deci- sion independently, based upon its own scrupulous ex- amination of the record. Therefore, [HN8] the proper scope of review regarding whether the commission has sustained its burden of proof, namely that: its decision is based upon the protection of some substantial public interest; the public interest clearly outweighs the need for affordable housing; and there are no modifications that reasonably can be made to the application that would permit the application to be granted requires the court, not to ascertain whether the commission's decision is supported by sufficient evidence, but to conduct a ple- nary review of the record in order to make an independ- ent determination on the issue." Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 727, 780 A.2d 1 (2001). [*9] [HN9] "We . . . defined suffi- cient evidence in this context to mean less than a pre- ponderance of the evidence, but more than a mere possi-

• bility. We stated that the zoning commission need not

establish that the effects it sought to avoid by denying the application are definite or more likely than not to

• ccur, but that such evidence must establish more than a

mere possibility of such occurrence. Thus, [HN10] the commission was required to show a reasonable basis in the record for concluding [as it did]. The record there- fore, must contain evidence concerning the potential harm that would result if the zone were changed . . . and concerning the probability that such harm would in fact

• ccur." Christian Activities Council, Congregational v.

Town Council, 249 Conn. 566, 585, 735 A.2d 231 (1998).

• VI. The Need for Affordable Housing

The record demonstrates that the Town of Milford has a need for affordable housing. Milford falls below the [HN11] "safe harbor" established by C.G.S. Section 30g(k) for towns having at least 10% of all their dwelling units qualify as affordable under the formula established by that section. In Milford the percentage of dwelling [*10] units qualifying as affordable is only 5.87%. However, the Board argues that this statistic is mislead-

• ing. The record contains substantial evidence that Mil-

ford has sincerely and effectively implemented programs and policies to increase the supply of affordable housing. The percentage of affordable housing units in Milford has been increasing slowly but steadily since 1995. Clearly, Milford is doing better than many other commu- nities in increasing the supply of affordable housing. The Board argues that the need in Milford relates primarily to families earning below 50% of median in- come, and that the Avalon project will not fill that need. It is true that the units designated affordable housing in the Avalon project are aimed at families earning between 60% and 80% of statewide median annual household

• income. Median annual income in Connecticut is $

67,700. It is estimated that the units will rent for $ 633 to $ 1251 per month depending on the size of the unit. The Board argues that there is no need for housing for fami- lies at this income level. But, the record establishes that there is also a need for housing for those families earning between 50% and 80% of median income. In spite [*11]

• f the laudable progress made by the City within the past

several years, there remains a substantial need for afford- able housing in Milford as defined by Section 30g(k).

• VII. The Zone Change Application

Avalon's zone change application proposes to have the Board change a significant portion of its DO-25 zone to a newly created RMF-16 zone tailored to accommo- date the Avalon project. The property sought to be de- veloped generally occupies one of the four corners of the intersection of the Wilbur Cross Parkway and Wheelers Farm Road. The City Plan of Development of 1972 calls for encouragement of new office development around this interchange area. The DO-25 zoning designation was first applied to this site in 1991 after the restaurant and gasoline station closed and there was an application for an office complex. This complex was never built. There

Page 6 2004 Conn. Super. LEXIS 123, * are now substantial office developments in three of the four quadrants of the intersection with this quadrant re- maining vacant. The DO-25 zone permits single-family residences as of right and office building by special per- mit.

• A. Economic Development

The Board's written denials of all four applications state that the principal [*12] reason for denial is to pro- tect against the destruction of the DO-25 zone. The Board argues that retaining this property for office de- velopment is vital to the economic development of the

• City. The board argues that there are limited sites for
• ffice development in the City or in the entire area. The

board points out that [HN12] it has broad authority when it acts in a legislative capacity to amend its regulations. Harris v. Zoning Commission, 259, 415-16 (2002). In applying step one of the Quarry Knoll review process the court finds that the Board has shown that this principal reason for denying the zone change is supported by suf- ficient evidence in the record. The record supports the Board's claim that retention of the DO-25 zoning was motivated, in part, by a desire to encourage economic development through the building of office projects in this interchange area. But, [HN13] in an affordable hous- ing appeal, the second step of the Quarry Knoll review process requires the court to make a plenary review of the record to make the determinations required by Sec- tion 8-30g(g)(1)(A), (B), and (C). Having made that re- view, the court finds that the Board has not met its bur- den to prove that [*13] this legitimate desire to encour- age economic development is based upon some substan- tial public interest or that it clearly outweighs the need for affordable housing. In support of its position that office development on the land in question is a substantial public interest, the Board points to evidence in the record that failure to de- velop this land for offices will cost the City $ 400,000 in lost revenues per year, and that it will become virtually impossible to develop for office use an adjoining parcel

• wned by the City. The court's own plenary review of the

record reveals that these arguments are overblown. The Board's position that maintenance of the DO-25 zone for

• ffice construction is a substantial public interest is un-

dercut significantly by the fact that the DO-25 zone pres- ently permits, as of right, single-family homes, family day care homes, and community residences. It is illogical that Board has zoned this property to permit single- family development if office development is as vital to the economic development of the City as the Board ar-

• gues. Can office development be a substantial public

interest if the Board has written the regulations so that this goal can be defeated [*14] as of right by a subdivi- sion plan for residential development in the form of sin- gle-family homes? Although the City has some interest in the development of this land for offices, the Board has not sustained its burden of proof that it rises to the level

• f a substantial public interest.

Casting further doubt upon the Board's finding of a substantial public interest is the undisputed fact that there is still significant unbuilt office capacity in the inter- change area. Prior to 1990 there were 1,352,00 square feet of office space approved in the three other quadrants

• f this interchange. Only 721,000 have been built. There-

fore, there remain 631,000 square feet of unbuilt office

• space. There is some dispute about whether permits for

this space remain in effect. There is also dispute about the present occupancy rate in the existing buildings. But, the record is clear that the existing office buildings in the interchange area are not fully occupied and there is a large area of unbuilt space which remains to be devel-

• ped in the existing office parks. Considering that there

has been no new office construction in this area since 1990 and that present economic conditions do not indi- cate an [*15] immediate need for more space, the Board is overstating the interest of the City in protecting office development on the Avalon parcel. The adjoining parcel now owned by the City was purchased while Avalon's applications were pending. A portion of this parcel is to be devoted to recreation and

• pen space. But, the Board claimed that the Avalon pro-

ject will destroy a ". . . means of direct access off the Parkway interchange for employees and patrons of an

• ffice development to access those offices without trav-

ersing a circuitous route through narrow and winding residential streets. As set forth in Decision I, office de- velopment of the Solomon (now City) property would be rendered highly unlikely with the construction of Appli- cant's proposed housing units in accordance with its Site Plan." Although it is possible that the City might eventu- ally wish to have office development on this adjoining parcel, it seems highly unlikely in light of the single- family residential development in the area which would undoubtedly make such development by the City ex- tremely unpopular in the neighborhood. But, even if such development is eventually attainable politically, there is no reason why it would [*16] be precluded. There are several places from which access can be obtained. Fur- ther, there was no credible evidence that there was a fea- sible means of access through the Avalon parcel no mat- ter what use is made of it. If there had been, the Board could have protected this access by conditioning the ap- proval upon a provision for access to the adjoining par- cel. My own review of the record reveals that the eco- nomic arguments made by the Board are not substantial. The potential loss of $ 400,000 in tax revenue was not supported by credible evidence. The Avalon project will produce substantial taxes immediately, certainly far in

Page 7 2004 Conn. Super. LEXIS 123, * excess of the taxes on the vacant land. The potential taxes produced by office development may be several years or decades away. It is impossible to know whether, in the long run, the City will be better off economically with the Avalon project or with the potential for office

• development. In short, this entire economic argument is

an unknown. It does not rise to the level of a substantial public interest. Further, whatever public interest there may be in having office development in this zone does not clearly

• utweigh the need for affordable housing. Having made

[*17] my own plenary review of the record, I find that the Board has not sustained its burden of proof that the City's interest in seeing this property developed for office space clearly outweighs the need for affordable housing.

• B. Suitability for Multifamily Affordable Housing

The second reason given by the Board for its denial

• f the zone change application is that the property in

question is not suitable for multi-family housing in gen- eral and affordable housing in particular. Based upon the reports and testimony of Professor Alan Plattus and Planner Philip Michalowski the Board concluded that multi-family housing should be located on an in-fill basis

• n parcels near the Downtown, Harbor, Devon, and Cor-

ridor areas of Milford where transportation, stores, and public services are available. There is, of course, con- trary expert opinion. Based upon this evidence in the record the court finds that this reason for denial is supported by sufficient evidence in the record. But, based upon the court's own plenary review of the record the Board has failed to sus- tain its burden to prove that the decision is necessary to protect substantial public interests in health, safety and

• ther [*18] matters which the Board may legally con-

sider, or that such interests clearly outweigh the need for affordable housing. This is because 1) the City Plan of Development identifies this general vicinity for use as multi-family housing and states that once the "new Wilbur Cross Parkway interchange with a new access road extending to Wheelers Farms Road" is complete the area would be appropriate for "new multiple-family and

• ffice use in this general vicinity . . ."; 2) the Board, in

1998, approved a zone change from DO-25 to R-A and a site plan for an abutting property, Southwick at Milford, for a 170-unit multi-family senior living community; and 3) all the other abutting properties that are developed are residential uses. This evidence undercuts the Board's argument that this property is not suitable for affordable multi-family use. It certainly does not amount to a sub- stantial public interest to prevent multi-family use on this site.

• VIII. The Parking Space Amendment

Avalon proposed an amendment to the zoning regu- lations which would require two parking spaces per unit; the existing regulation requires two spaces for a one- bedroom unit and two and one-half spaces for two- or [*19] three-bedroom units. Based upon the mix of pro- posed units, the development would need to have 663 parking spaces if the current regulation is applied, an average of 2.3 spaces per unit. If the regulation were amended as proposed, there would be 2 parking spaces per unit, a total of 568 spaces. The Milford Police De- partment opposed the amendment. The Board relied upon "our observations within this community and oth- ers, including information obtained with respect to other Avalon projects . . ." There is personal observation evi- dence in the record that other Avalon projects experience parking overflow on the weekends. The Board was also concerned that events held in the club house would produce parking problems if the requirements of the current regulation were relaxed. The provision for safe and adequate parking for all tenants and guests is a substantial public interest. If parking is insufficient it will lead to unauthorized parking in areas which will endanger health and safety, especially in a fire or police emergency. Avalon relies upon a parking utilization study which indicates that the actual utilization rate at comparable rental communities averages less than two cars per [*20]

• unit. This study is suspect because the observations were

done late at night rather than at times when there might have been significant guest activity. There is evidence in the record that there is room to build all of the spaces required by the current regulation but that Avalon wants to preserve green space. The Board has shown that its concern about the parking amendment is supported by sufficient evidence in the record. My own review of the record reveals that maintenance of the current parking regulation is neces- sary for protection of a substantial public interest which

• utweighs the need for affordable housing but that the

Board should have advanced this interest by denying the amendment and conditioning the site plan approval upon changes to show compliance with the current parking regulation.

• XI. The Site Plan and Special Permit Applications

The reasons given by the board for denial of the site plan application and the special permit application relate to emergency access, fire safety and engineering details. These reasons will be discussed below.

• A. Emergency Access

The property has somewhat of an hourglass shape. The site plan calls for the top and bottom [*21] sections to be serviced by loop roads. Avalon's site plan calls for

Page 8 2004 Conn. Super. LEXIS 123, * the neck section of the hourglass to be crossed by a sin- gle road which will unite the two loop sections. The Board argues that there must be a second means of ac- cess in order to provide emergency access to the top loop if the road through the narrow neck becomes blocked. The original site plan was more vulnerable to this argu- ment than the revised plan. Avalon revised its site plan to provide for the single road through the narrow section to be replaced with a four-lane 50-foot-wide boulevard which addresses the Board's rightful concern about a single access to a project of this size. Most of the argu- ments made by the Board in its briefs and at oral argu- ment seem to be addressed to the prior proposal before Avalon amended it to incorporate the boulevard concept. The boulevard will have a lighted 10-foot-wide cen- ter median with a mountable curb. It will be planted with low shrubs. The boulevard section is only about 265 feet in length through the neck plus another section of roughly 250 feet in front of Building 11. It would be dif- ficult for a single accident to block both sides of the boulevard median. Utilities will [*22] be underground so that poles will be eliminated. There will be no large trees which could fall and block both sides of the road. The expert testimony in support of the safety of this boulevard was extensive and credible. The experts in opposition to the site plan acknowl- edge that the boulevard concept has improved emergency access over the original design. However, both Fire Chief LaVecchia and Mr. Kaliski of Resource Systems Group now advise against it, although the Fire Depart- ment had twice approved the original design without the

• boulevard. This is odd in that the Milford Fire Depart-

ment had approved the original design. Now, Chief LaVecchia and Mr. Kaliski point to National Fire Protec- tion Association Standard number 1141 Section 4-1.2 for

• guidance. While they acknowledge that this code has not

been adopted in Connecticut, they feel that it provides a common sense standard for safe practice. I agree. How- ever it not clear from the record why this site plan vio- lates this code. Section 4-1.2 provides: "Access to the property of the planned building group shall be provided by a minimum of two distinctly separate routes of ingress and egress, each located as remotely from the other [*23] as possible." (Emphasis added.) There are two distinctly separate routes of ingress and egress as access to the

• property. Access to the property is gained through two

separate driveways from Wolf Harbor Road. These driveways are approximately 200 feet apart. The boule- vard through the neck of the property does not violate Section 4-1.2 because it does not provide access to the

• property. This is not simply splitting hairs. This code

clearly contemplates situations in which access to build- ing clusters within the project will be by one means of access only. Section 4-2.1 provides: "Every dead-end roadway more than 300 ft (92 m) in length shall be pro- vided at the closed end with a turnaround having not less than a 120-ft (37 in) outside diameter of traveled way." Therefore, dead-end roadways are contemplated. Here, the boulevard section through the neck of the property is similar in function to a dead-end roadway. It is certainly easy to see why the Fire Department would prefer to have every portion of the development serviced by two distinctly separate road systems. Pre- sumably three separate means of access would be more

• preferable. But, the site plan is not necessarily unsafe

[*24] because it uses this single boulevard to cross the neck of the property. Mr. Kaliski referred to the Institute

• f Transportation Engineer's "Recommended Guidelines

for Subdivision Streets" which provides: "A high-density cluster development may involve several apartment buildings with hundreds of total dwelling units. Use of

• nly a single roadway to provide access to such sites

should be allowed only after careful consideration of alternative treatments, and with full regard for the poten- tial problems. As the number of persons exclusively served by a given roadway increases, the potential hazard

• f temporary roadway blockage also increases. Block-

ages can result from numerous causes such as vehicular accident utility break, fall tree or pole, and pavement

• repairs. While such occurrences are exceptional, they

must still be regarded in terms of their effect on access to the development by emergency police, fire, or ambulance equipment." This code, like the NFPA, is not binding in Connecticut but can be consulted as an example of good

• practice. It contemplates that single roadway access to

portions of a high-density development can be permitted after careful consideration of "alternative [*25] treat- ments." The record is clear that Avalon has carefully considered all "alternative treatments" and that the boulevard concept is a reasonable one. It takes into con- sideration the possibility of vehicle accidents, utility breaks, tree or pole falls, and pavement repairs. There is no other apparent way of providing safer access to the rear of the property. The Board cites as authority for its decision the Su- perior Court case of Fromson v. Weston, 2002 Conn.

• Super. LEXIS 2215, 2002 WL 1816064 (Conn.Super.

2002) (Pickard). In that case the court found that health and safety concerns regarding a 3,300-foot long dead- end street in a subdivision clearly outweighed for afford- able housing. The court stated: [HN14] "Fire safety is as important to an affordable housing development as to any other. It is not the purpose of the affordable housing statutes to encourage the creation of developments which may be hard to protect against fire. The Commission was rightly concerned about this single entry road of' such an extreme length. There are no changes which the Com- mission could have ordered which reasonably could be

Page 9 2004 Conn. Super. LEXIS 123, * determined to protect the public interest in having a safe access road." The facts in the present [*26] case are dis-

• tinguishable. The section of roadway through the neck of

the property and in front of building 11 is less than 500 feet in length rather than 3,300 feet. The roadway in this case continues in the form of two separate loops which allow for vehicles to reverse direction. In Fromson, the road ended at an inadequate turnaround. In the present case the road through the neck of the property is a boule- vard with all of the safety features previously described. In Fromson the access was a two-lane undivided road. The safety of the access in this case is far superior. [HN15] There is no question that sufficient access for fire, police, and ambulance personnel is a substantial public interest. The question for the court is whether de- nial of the site plan for lack of a second access to the rear

• f the property was necessary to protect that interest. "On

this point [HN16] the court is instructed by Quarry Knoll II, supra at 727 to review the defendant's decision inde- pendently, based on its own scrupulous examination of the record. To carry out this responsibility the court must conduct a plenary review of the record. Thus, in asserting its scrutinizing independence, the court cannot [*27] be influenced by the defendant's judgment but must make its own judgment by weighing the evidence." Carr v. Bridgewater Planning and Zoning Commission, 2003

• Conn. Super. LEXIS 2271 (Mottolese, J.). Having per-

formed this heavy duty of weighing the record evidence in this case, it is my conclusion that denial of the site plan was not necessary to protect the public interest in health and safety.

• B. Fire Safety

The other fire safety issues are technical in nature. For some reason there seems to have been a breakdown in communications between Avalon and the Milford Fire

• Chief. As a result, the record is not as clear as it should

be on these issues. The Board identifies several ways in which the design of the roads and location of buildings raise fire safety concerns. These concerns are based upon the recommendations of Milford Fire Chief LaVecchia. It appears that Avalon sincerely wanted to resolve these

• issues. But, for unknown reasons this never happened.

This leaves the court in the position of trying to resolve these important technical health and safety issues which would have been better resolved by the experts. First the Board argues [HN17] that the corners and [*28] turns throughout the project do not meet the minimum standard that the Milford fire apparatus re-

• quire. This is, of course, a valid health and safety con-

cern which would outweigh the need for affordable hous-

• ing. Avalon adamantly disputes that its plan is unsafe.

The evidence in the record goes both ways. Based pri- marily upon the opinions expressed by Chief LaVecchia, my review of the record leads me to find that the present design of some of the corners is not sufficient for safe navigation of the largest fire equipment. But, there is no reason why the entire project needed to be denied in or- der to have significant public interest advanced. It would have been possible to condition the site plan acceptance upon road widths sufficient to accommodate Fire De- partment trucks and equipment. I make the same finding regarding the Board's denial which states that although some roadways have been increased to 30 feet in width, the fact that there are no garage driveways will reduce the width by as much as 10 feet when persons "inevitably" park cars in front of the

• garages. The Fire Chief feels that this will give his fire

fighters insufficient room to set up their equipment. Ava- lon argues that [*29] there will be signs prohibiting parking in front of garages and that this prohibition will be enforced so that it is not inevitable that improper parking will occur. The Board's concerns are valid. It is reasonable to conclude that tenants will try to park in front of their garages. It is also reasonable to plan for fire safety with this as a potential hazard for the fire fighters. In the event of a fire, it is essential that the Fire Depart- ment have at least 30 feet of unobstructed area in front of the buildings for their trucks and equipment. The site plan should provide this space even if cars are illegally parked in the 10 feet in front of the garages. But, this legitimate safety concern should have been handled with conditional approval. Third, the Board's denial states that parking will have to be eliminated to secure the required distances needed to set up Tower 1 truck and provide unobstructed access to fire hydrants and sprinkler connections. Obvi-

• usly, fire trucks will need access to fire hydrants and

sprinkler connections. But, the record was unclear as to how the site plan should be changed. If there is a legiti- mate safety concern in this regard it should have been handled [*30] by conditional approval. Fourth, the Board's denial states that the slopes be- tween the buildings are too steep for firefighters to safely

• perate. This is a legitimate fire safety concern but

should have been a condition rather than a reason for denial. To summarize these fire safety issues, it was not suf- ficient for the Board to simply deem the site plan unsafe in certain respects and then deny the application. The Board should have advanced its legitimate fire safety concerns by approving the site plan subject to reasonable conditions which would enable Avalon to change the plan to make it safe.

• C. Sound Zoning Principles

Page 10 2004 Conn. Super. LEXIS 123, * The Board raises concerns in the areas of building length, building height, side and rear yard setbacks, and the project's visual high-density image being inconsistent with the surrounding neighborhood and even multi- family projects in other zones. The best that can be said about these concerns are that they are speculative. My

• wn review of the record reveals that there is insubstan-

tial evidence to support a finding that they raise substan- tial public interests in health or safety or sound zoning principles which clearly outweigh the need for affordable [*31] housing.

• D. School Bus Shelters, Traffic Left Turn Lane and

Other Engineering Details These first two items should be handled with condi- tions that there be sufficient school bus shelters to ac- commodate the number of students projected by the Mil- ford Public Schools, and that the left turn lane markings be consistent with the Manual of Uniform Traffic Con- trol Devices standards. The engineering details should be handled in the same way. The approval of the site plan should be conditioned on 1) protected pedestrian cross- ings for both Wolf Harbor Road and Wheelers Farm Road, at the intersection of these streets, as approved by the City Engineer; 2) raised curbs on islands adjacent to proposed garages as approved by the City Engineer; 3) an amendment to a detail on Plan Sheet 14 to verify reso- lution of the "Riprap Emergency Spillway" issue; 4) re- design of the precast galleries as approved by the City Engineer.

• E. Sewer Approval and Inland Wetlands Approval

The project does not have Sewer Commission ap-

• proval. It has Inland Wetlands approval, but subject to a

condition that two buildings be eliminated. The applica- tion in this case has not been modified to show the elimi- nation [*32] of those buildings. The Board gave the ab- sence of sewer and inlands wetlands approval as reasons for denial of the applications in this case. In this situation [HN18] the Board is required to grant conditional approval of an affordable housing ap- plication where the facts indicate doing so protects the public interest while advancing the goal of affordable

• housing. Kaufman v. Zoning Commission of the City of

Danbury, 232 Conn. 122, 164, 653 A.2d 798 (1995). There is no reason why the public interest would be harmed by approval of the project conditioned upon sewer approval by the Sewer Commission. With respect to Inland Wetlands approval, in a com- panion case involving an appeal of the conditioned ap- proval the court sustained Avalon's appeal thereby re- moving the condition that two buildings be eliminated. Accordingly, the Board's reliance on the Inland Wetlands decision is misplaced. As a result, this reason for denying the applications is invalid.

• X. Remedy

The court sustains the appeal and remands this mat- ter to the Board and orders it to approve the zone change application and the special permit application, and to approve the site plan application subject to reasonable and [*33] necessary conditions, not inconsistent with this decision, for: 1) Sewer Commission approval, 2) to ensure that the roads are built to accommodate all fire trucks, 3) that the width of the roads in front of the ga- rages is sufficient for fire apparatus even if cars are ille- gally parked in the 10 feet in front of the garages, 4) rea- sonable revisions to the site plan to ensure that fire fight- ers will have access to all fire hydrants and sprinkler connections, 5) reasonable revisions to the slopes be- tween the buildings, 6) compliance with the current park- ing regulation, and 7) reasonable conditions regarding the school bus shelters, left turn lane, and other engineer- ing details consistent with this opinion. BY THE COURT, Pickard J.

Page 1 LEXSEE 2004 CONN. SUPER. LEXIS 140 AvalonBay Communities, Inc. v. Milford Inland Wetlands Agency CV020514398S SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW BRITAIN AT NEW BRITAIN 2004 Conn. Super. LEXIS 140 January 12, 2004, Decided January 14, 2004, Filed NOTICE: [*1] THIS DECISION IS UNRE- PORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE. DISPOSITION: Appeal sustained and Agency or- dered to remove from approval conditions set forth. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff land purchaser appealed a decision of defendant, the Milford Inland Wetlands Agency (Connecticut), which approved, with

• ver 52 conditions, an application filed by the purchaser

to conduct regulated activities within the city. OVERVIEW: The purchaser bought a parcel of land with the intent of constructing a 284-unit residential

• community. The Agency approved the application, but

imposed over 52 conditions on the approval. All of the challenged conditions imposed by the Agency were based upon a finding by the Agency that the eastern box turtle was a wetland dependant species and, as such, was among the resources that the Agency had authority to protect under its statutory and regulatory authority. The court held that, because of the broad language used in a recent decision by the Supreme Court of Connecticut, the entire basis for the Agency's conditions had been swept

• away. The conditions were all based upon potential loss
• f eastern box turtle habitat in upland areas of the site.

The eastern box turtle was a wetland dependant creature which had its habitat in upland areas, not in wetlands. The Inland Wetland and Watercourses Act, Conn. Gen.

• Stat. §§ 22a-28 through 22a-45, protected the physical

characteristics of wetlands and watercourses and not the wildlife, including wetland obligate species, or biodiver-

• sity. There was no record evidence that the regulated

activities would have harmed the wetlands in any way. OUTCOME: The court sustained the purchaser's appeal and ordered the Agency to remove from the approval the conditions at issue. CORE TERMS: wetland, box turtle, habitat, species, site, agency decisions, conditions imposed, regulated, dependant, inland, upland, mitigation, staff, basin, com- mission's decision, substantial evidence, physical charac- teristics, watercourse, aggrieved, modified, wildlife, phase, enhancement LexisNexis(R) Headnotes Administrative Law > Judicial Review > Reviewability > Standing Environmental Law > Litigation & Administrative Pro- ceedings > Judicial Review Environmental Law > Natural Resources & Public Lands > Wetlands Management [HN1] In appeals of inland wetlands agency decisions the agency's decision must be sustained if there is sub- stantial evidence in the record that supports any one of the reasons given by the agency of its decision. A re- viewing court must not substitute its judgment for that of the administrative agency. In addition, determining the credibility of witnesses and determining factual issues are within the agency's province. Those who challenge

Page 2 2004 Conn. Super. LEXIS 140, * an inland wetlands agency's decision carry the burden of demonstrating that there is no substantial evidence in the record to support the agency's action. Environmental Law > Natural Resources & Public Lands > Wetlands Management [HN2] The Inland Wetland and Watercourses Act, Conn.

• Gen. Stat. §§ 22a-28 through 22a-45, protects the physi-

cal characteristics of wetlands and watercourses and not the wildlife, including wetland obligate species, or biodi- versity. JUDGES: Pickard, J. OPINION BY: Pickard OPINION MEMORANDUM OF DECISION This is an appeal from a decision by the Milford Inland Wetlands Agency (Agency) approving, with con- ditions, an application filed by AvalonBay Communities,

• Inc. (Avalon) to conduct regulated activities within the

City of Milford. For the reasons set forth below, this ap- peal must be sustained.

• I. Aggrievement

Avalon is the contract purchaser of a 42.128-acre parcel of land located on Wolf Harbor Road near the intersection of Wheeler's Farms Road in Milford. The land is owned by the Estate of Patricia H. McGannon. The fact that the commission's decision resulted in the denial to the plaintiff of the ability to use the property as proposed establishes that the plaintiff is aggrieved by the commission's decision. Huck v. Inland Wetlands & Wa- tercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987); Bethlehem Christian Fellowship, Inc. v. Planning and Zoning Commission, 58 Conn.App. 441, 755 A.2d 249 (2000). [*2] Moreover, as an applicant whose site plan was significantly modified and reduced by the Agency, Avalon is aggrieved because the imposed condi- tions will have an impact on the development of the site. See, Blakeman Construction, LLC v. Conservation Commission, 1999 WL 1241950 (Conn. Superior Ct., December 7, 1999) (Radcliffe, J.).

• II. Standard of Judicial Review

[HN1] In appeals of inland wetlands agency decisions the agency's decision must be sustained if there is sub- stantial evidence in the record that supports any one of the reasons given by the agency of its decision. Samperi

• v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628

A.2d 1286 (1993). A reviewing court must not substitute its judgment for that of the administrative agency. Strong

• v. Conservation Commission, 28 Conn.App. 435, 440,

611 A.2d 427 (1992). In addition, determining the credi- bility of witnesses and determining factual issues are within the agency's province. Feinson v. Conservation Commission, 180 Conn. 421, 425-26, 429 A.2d 910 (1980). Those who challenge an inland wetlands agency's decision carry the burden of demonstrating that there is [*3] no substantial evidence in the record to support the agency's action. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989).

• III. Facts

Avalon sought approval of activities for construction

• f a 284-unit residential community on 42.1 acres. The

Agency approved the application, but imposed over 52 conditions of approval. Avalon appeals from the follow- ing conditions imposed:

• 1. Buildings 9 and 10 and associated parking must

be removed, thereby reducing the total number of apart- ments from 284 to 228;

• 2. Several aspects of construction and post-

construction operation and maintenance must be super- vised by a "qualified herpetologist" whose qualifications must be approved by MIWA staff, including box turtle searches and relocations maintenance of detention ba- sins, and application of herbicides and pesticides;

• 3. Heavy equipment is excluded beyond the "turtle

habitat barrier";

• 4. A minimum of four "photo stations" must be in-

stalled, maintained indefinitely and used twice a year in the box turtle enhancement area and at each wetland and mitigation basin;

• 5. A bond must be submitted covering the cost of

monitoring all environmental [*4] aspects of each phase

• f the development, including the box turtle enhance-

ment area and wetland and mitigation basins;

• 6. Knowledgeable botanists approved by MIWA

staff must train all landscapers working on the property;

• 7. Sewer lines adjacent to wetland areas must be

constructed of ductile iron pipe or PVC encased in con- crete;

• 8. Bird and bat houses are required in the creation

and mitigation areas after receiving approval from MIWA staff and/or consultants;

• 9. A minimum of 25 percent extra soil and sedimen-

tation control supplies must be maintained on site at all times during construction.

Page 3 2004 Conn. Super. LEXIS 140, * At the hearing before the court the parties agreed that two other conditions could be modified. First, the expiration date of the permit should be January 16, 2007. Second, Avalon shall have one year from the com- mencement of each phase to complete regulated activity.

• IV. Discussion

All of the challenged conditions imposed by the Agency are based upon a finding by the Agency that: "The Agency finds that the Eastern Box Turtle is a wetland dependant species and, as such, is among the resources that the Agency has authority to protect under its statu- tory and regulatory authority." But, [*5] this case was decided by the Agency and then briefed extensively in this court by the parties before the Supreme Court's re- cent decision in AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 832 A.2d 1 (2003). Because of the broad language used in that deci- sion, there is no doubt that the entire basis for the Agency's conditions has been swept away. The condi- tions are all based upon potential loss of eastern box tur- tle habitat in upland areas of the site. The eastern box turtle is a wetland dependant creature which has its habi- tat in upland areas, not in wetlands. As the Supreme Court has now made clear, ". . . [HN2] the act protects the physical characteristics of wetlands and watercourses and not the wildlife, including wetland obligate species,

• r biodiversity." Id., 163. There is no evidence in the

record that the regulated activities will harm the wetlands in any way. The Agency does not claim, nor is there any evidence in the record, that this is one of those extreme cases ". . . where a loss of or negative impact on a wild- life species might have a negative consequential effect

• n the physical characteristics of a wetland or [*6] wa-

tercourse . . ." Id. footnote 19. Because the protection of the upland habitat of wet- land dependant species is not a valid concern of the Agency, the challenged conditions imposed by the Agency to protect the eastern box turtle are not valid. The appeal is sustained and the Agency is ordered to remove from the approval the conditions set forth above. BY THE COURT, Pickard, J.