Brenmor Props., LLC v. Planning & Zoning Comm'n of Lisbon

Decision Date02 February 2016
Docket NumberNo. 37293.,37293.
Citation136 A.3d 24,162 Conn.App. 678
CourtConnecticut Court of Appeals
PartiesBRENMOR PROPERTIES, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF LISBON.

Michael A. Zizka, Hartford, for the appellant (defendant).

Timothy S. Hollister, with whom was Andrea L. Gomes, Hartford, for the appellee (plaintiff).

GRUENDEL, MULLINS and SULLIVAN, Js.

GRUENDEL

, J.

The defendant, the Planning and Zoning Commission of the Town of Lisbon (commission), appeals from the judgment of the Superior Court sustaining the administrative appeal of the plaintiff, Brenmor Properties, LLC. The commission contends that the court improperly concluded that the plaintiff's failures to comply with (1) the road construction standards established by town ordinance and (2) the Connecticut State Fire Prevention Code (fire code) were not valid grounds to deny its application for an affordable housing subdivision. The commission also challenges the propriety of the remand ordered by the court. We affirm the judgment of the Superior Court.1

The underlying facts are not in dispute. At all relevant times, the plaintiff owned a 12.92 acre parcel of undeveloped land with frontage on Ames Road and Route 169 in Lisbon (property). The property contains a small pond and 1.9 acres of the property are designated as wetlands.2 In May, 2012, the plaintiff filed an application with the commission pursuant to General Statutes § 8–30g

for approval of an affordable housing subdivision.3 The proposed subdivision consisted of nineteen residential lots with an average size of 29,620 square feet. On all but one lot, a single-family, three bedroom modular home4 would be erected.5 The proposal also included a dedicated septic system and well for each home. With respect to price restrictions, six of the eighteen proposed homes “would be deed-restricted for forty years at prices within the economic reach of moderate income households, such that, based on 2012 data, three homes would be preserved for households earning $70,200 or less and sold at a maximum of $247,000; and three homes would be preserved for households earning $52,600 or less and sold at a maximum of $174,000. Other homes would be sold at market-rate prices in the range of $275,000.”6

Four of the proposed lots were to be located on the westerly side of the property and would be accessed by driveways on Route 169. The remaining lots were to be located on the easterly side of the property adjacent to Ames Road and would be accessed by a private roadway, which the plaintiff describes as a “common driveway”7 and the commission characterizes as an “interior road network.”8 This appeal concerns that roadway.9

The commission conducted a public hearing on the plaintiff's original application that began on August 7, 2012, and was continued over four additional evenings on September 4, October 2, November 7, and November 13, 2012. In response to various comments raised during that hearing, the plaintiff submitted multiple revisions to its proposal, culminating with its November 13, 2012 “final submission materials.” Following the conclusion of the public hearing, the commission's legal counsel, Attorney Michael Zizka, prepared a document dated January 8, 2013, and entitled “Brenmor Subdivision Application Issues and Potential Conditions of Approval” (document). That document delineated seven issues and provided analysis thereof. At the commission's regular meeting on January 8, 2013, the commission reviewed those seven issues. The proposed roadway's nonconformance with the Lisbon road ordinance (road ordinance)10 generated the most discussion, as the roadway violated its minimum width and maximum grade requirements.11 On that issue, Commissioners Robert Adams, Ronald Giroux, Kim Sperry, John Dempsey, Gary Ritacco, Sharon Gabiga and David Gagnon all concurred that the proposed roadway needed to comply with the road ordinance as a matter of public safety.12 When the deliberations concluded, Zizka stated that, in light of the sentiments expressed by commission members, his “recommendation would be that the commission deny the application for the reasons set forth in the [document] regarding issues numbered 1, 2, 4....” Commissioner Giroux then immediately made such a motion, stating: “I'd like to make a motion to deny the application to the issues of 1, 2, 4....”13 The motion was approved by a vote of eight to zero, with one commissioner abstaining. Following that vote, Zizka remarked for the record that “as [he] understood it, [the commission is] prepared to entertain and ... perhaps even welcome the [plaintiff] to come back with ... a renewed proposal where the road meets town standards because ... the belief is that that would solve most of ... the issues that the commission has the greatest concerns with.”

On January 30, 2013, the plaintiff filed with the commission a modified affordable housing proposal pursuant to § 8–30g (h)

.14 Consistent with the strictures of that statutory mechanism, the plaintiff emphasized that “this resubmission constitutes a continuation of the application denied January 8; this is not a new application.” The revised plan contained certain modifications that the plaintiff made “in direct response to the [commission's] January 8, 2013 denial.”15 That revised plan nonetheless did not modify the width or grade of the proposed roadway adjacent to Ames Road so as to fully comply with the requirements of the road ordinance. In its written response to the commission's January 8, 2013 denial of its subdivision application, the plaintiff acknowledged that the commission at that time had proposed, as a potential condition of approval, that the roadway “shall conform to standards established” in the road ordinance. The plaintiff nonetheless submitted that such a condition was unnecessary, as [t]here is no expert or other testimony in the record that the proposed [roadway is] unsafe.” The plaintiff thereafter further revised its proposal, as reflected in its revised plan that was received by the commission on March 5, 2013.

On March 5, 2013, the commission held a public hearing on the plaintiff's modified application, as required by § 8–30g (h)

. At its outset, the plaintiff's representative, Attorney Timothy Hollister, provided an overview of the changes to its proposal. On the issue of compliance with the road ordinance, Hollister candidly acknowledged that [w]e just don't think it's necessary to build these internal private roads including the town standard in terms of widths and sidewalks and turn arounds and so forth. It's just not—these don't serve enough lots that that's required to do.” Hollister concluded his prefatory remarks by stating that “where we end up is really, I think ... one big issue ... and that is ... whether this internal, what we call the private internal roadway system, driveway is safe for the people who want to live there....”

Mark Vertucci, a traffic engineer retained by the plaintiff, then addressed the commission. Vertucci prepared a traffic impact study that was submitted with the plaintiff's original application. That study utilized traffic rates provided by the Institute of Transportation Engineers Trip Generation Manual, an “industry accepted resource.” Vertucci's analysis concluded that the proposed subdivision was “going to be a very low traffic generator, given the ... small number of units.” Vertucci further concluded that “the development will provide safe and efficient access, egress, and circulation for the residents and guests of the subdivision as well as the general public entering or passing the property. In addition, the [proposed roadway] interior to the site will sufficiently accommodate circulation by emergency vehicles.” As part of the plaintiff's modified application, Vertucci provided both a written “traffic safety review” and testimony before the commission, in which he opined that the plan set forth in the resubmission “does provide for safe traffic operations and site circulation. It provides for safe ingress and egress for passenger cars and emergency vehicles [and] does not present any public health or safety concerns.”

At that public hearing, the commission's professional staff also commented on the modified proposal. James Rabbitt, the town planner, and Robert DeLuca, the town engineer, disagreed with the plaintiff's assertion that the proposed roadway qualified as a driveway, as it would provide “the only access to fifteen single-family dwellings.” Rabbitt and DeLuca both noted that the proposed roadway did not comply with the minimum width or maximum grade requirements of the road ordinance. In his March 1, 2013 letter to Rabbitt, DeLuca had opined that the standards set forth in the road ordinance “provide for an appropriate higher level of safety” and reflected “a typical policy within [Connecticut] municipalities for access roads to multiple residences as opposed to a shared driveway to 2–3 residences.” At the public hearing, DeLuca stated, “I do feel that the infrastructure needs to be built completely to service all these lots safely ... so that it'll be in place so that emergency vehicles can safely get around regardless of how many houses they have built.”16 Although they repeatedly emphasized that the proposed roadway did not comply with the requirements of the road ordinance, neither Rabbitt nor DeLuca indicated that compliance was necessary to protect a substantial public interest or that the risk of harm thereto clearly outweighed the need for affordable housing.

The commission deliberated the merits of the plaintiff's application at its April 2, 2013 meeting. During those deliberations, commission members debated whether to defer their final vote, as Zizka was not present at that time but was available to attend a special meeting the following week. After one unidentified commissioner indicated his unavailability the following week, another stated: “There's gonna be quite a lot...

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