Avalonbay Communities v. Zoning Com'n

• Decision Date: 02 October 2007
• Docket Number: No. 17462.,17462.
• Citation: 284 Conn. 124,931 A.2d 879
• Court: Connecticut Supreme Court
• Parties: AVALONBAY COMMUNITIES, INC. v. ZONING COMMISSION OF the TOWN OF STRATFORD.

931 A.2d 879

284 Conn. 124

AVALONBAY COMMUNITIES, INC. v. ZONING COMMISSION OF the TOWN OF STRATFORD.

No. 17462.

Supreme Court of Connecticut.

Argued May 17, 2007.

Decided October 2, 2007.

Timothy D. Bates, New London, with whom were Linda L. Morkan, Hartford, and, on the brief, Maria T. Ackley, New London, for the appellant (defendant).

Timothy S. Hollister, with whom were Gian Matthew Ranelli, Hartford, and, on the brief, Meghan Freed Pelletier, for the appellee (plaintiff).

Kevin C. Kelly, with whom, on the brief, was Carmine Perri, for the appellee (intervenor Stratford town council).

BORDEN, NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.^*

NORCOTT, J.

This certified appeal arises out of the decision of the defendant, the zoning commission (commission) of the town of Stratford (town),¹ to deny three related applications of the plaintiff, AvalonBay Communities, Inc., for the construction in the town of an apartment complex that qualifies as an affordable housing development under General Statutes (Rev. to 1999) § 8-30g, as amended by Public Acts 1999, No. 99-261 (P.A. 99-261), and by the portions of Public Acts 2000, No. 00-206 (P.A. 00-206), that have been determined to be retroactive.² The plaintiff appealed from the commission's denial of its applications to the Superior Court pursuant to the procedure outlined in § 8-30g. The trial court rendered judgment sustaining the plaintiff's appeal and ordering the commission to "consider changes that can reasonably be made to protect the substantial public health and safety interests" implicated by the proposed development. The commission now appeals,³ claiming that the trial court improperly (1) ordered it to redesign the plaintiff's affordable housing project and (2) weighed the identified public health and safety reasons individually, rather than collectively, when considering the commission's reasons for denying the plaintiff's application. Because we conclude that the trial court's judgment remanding the matter to the commission was not an appealable final judgment under this court's decision in Kaufman v. Zoning Commission, 232 Conn. 122, 129-31, 653 A.2d 798 (1995), we dismiss the commission's appeal for lack of subject matter jurisdiction.

The record reveals the following relevant facts and procedural history. In May, 2000, the plaintiff, a developer of luxury residential apartment complexes, entered into a contract to purchase a 11.99 acre parcel of land located at 1600 Cutspring Road in Stratford (Cutspring property). The Cutspring property, which currently is zoned for residential use,⁴ is bounded by the Merritt Parkway to the south, Cutspring Road on the west, Circle Drive and several single-family homes to the north and Pumpkin Ground Brook on the east. The Cutspring property is located in a section of town that is accessible only via a section of Cutspring Road that runs underneath the Merritt Parkway (underpass).

In September, 2000, the plaintiff submitted to the commission three applications seeking approval to construct an affordable housing development on the Cutspring property. In accordance with § 8-30g, the plaintiff filed with the commission: (1) a proposal to amend the town's zoning regulations to create a "mixed income housing development" district zone for higher density residential use; (2) a proposal to change the town's zoning map to place the Cutspring property in the proposed new zone; and (3) a site plan for its project, to be known as "Avalon at Stratford." The plaintiff proposed to construct 160 residential rental units⁵ located in six buildings to be built on the Cutspring property, as well as a clubhouse, pool and recreation area, recycling center and parking for 320 vehicles. The affordability plan submitted by the plaintiff as part of its application to the commission demonstrated that the development met the criteria for an affordable housing development set forth in § 8-30g (a)(1)(B); see footnote 2 of this opinion; because 25 percent of the units would be affordable to low and moderate income households for thirty years. The plaintiff also submitted to the commission reports demonstrating that the commission's decision regarding the application would not be exempt from the appeal procedures provided by § 8-30g because, in 2000, only 8.22 percent of the town's housing units qualified as affordable. See General Statutes (Rev. to 1999) § 8-30g (f) (statutory appeal procedures not available if property located in municipality in which 10 percent of properties qualify as affordable). After a public hearing, the commission unanimously voted to deny all three of the plaintiff's applications, citing the following public health and safety concerns: (1) fire safety; (2) traffic; (3) internal circulation and site design; (4) density; and (5) wetlands.⁶

In May, 2000, pursuant to § 8-30g (d), the plaintiff submitted revised applications to the commission. The modifications to the site plan included, inter alia: (1) reducing the number of residential units from 160 to 146; (2) reducing the number of residential buildings from six to five; (3) moving one building further away from the wetlands surrounding Pumpkin Ground Brook; (4) improving access to the rear of the buildings; (5) increasing the width of the driveway; (6) increasing the number of parking spaces; and (6) purchasing an abutting parcel north of the Cutspring property, located at 140 Circle Drive, for use as a secondary emergency access to the site. On July 12, 2000, the commission held a public hearing on the plaintiff's resubmission.⁷ Experts for the plaintiff and the town's various governmental departments offered testimony about the changes made to the application as they related to the public health and safety concerns identified by the commission in its denial of the plaintiff's original application, but most of the discussion focused on the commission's concerns about fire safety.

As a result of this discussion during the hearing, the plaintiff agreed to several additional changes to its amended site plan, including: (1) widening the secondary emergency access driveway by four feet to twenty feet; (2) widening the entrance to the development from Cutspring Road by five feet to forty feet; (3) installing sprinklers on all decks and patios; and (4) striping portions of the driveway as fire lanes to prevent parallel parking. Thereafter, the commission again unanimously denied the revised applications, citing in its denial of the site plan application largely the same reasons that had caused it to deny the original application, all grouped under concerns about fire safety, traffic safety, internal circulation and site design, density and wetlands.

The plaintiff appealed to the trial court, challenging the denial on the ground that the commission had failed to show that its reasons for denying the applications were supported by sufficient evidence in the record and clearly outweighed the need for affordable housing in the town. The commission argued in response that its reasons for denial were based on public health and safety concerns that sufficiently were supported by the record, that the concerns outweighed the need for affordable housing, and that the concerns could not be addressed through reasonable changes to the plaintiff's application. After two days of hearings, the trial court, Bryant, J., issued a memorandum of decision concluding that, of the commission's five reasons for denying the revised applications, fire safety was the only public health and safety concern that was supported by sufficient evidence in the record and outweighed the need for affordable housing.⁸ Specifically, the trial court found that the commission had shown that there was sufficient evidence in the record to support its claim that the underpass, "the height of the individual apartment buildings in the proposed site, the inadequacy of Circle Drive to handle emergency vehicles and equipment and the internal turning radii of the driveways pose health and safety concerns," and that the public interest in health and safety clearly outweighs the need for affordable housing, because "the impediments to emergency vehicle and equipment access to the site and to the rear and upper floors of certain buildings proposed to be constructed on the site pose grave risks to the health and safety of prospective residents."⁹ The trial court, however, then stated that the commission had failed to carry its final burden under § 8-30g (g), because it had "failed to prove that the denial was necessary as there is insufficient evidence to prove that the public interest could not be [protected] by reasonable changes to the affordable housing development plan."

The trial court continued: "If the roads are too narrow, the buildings too high and the buildings too close to the slopes, it stands to reason that widening or relocating roads and shortening and relocating buildings would eliminate or sufficiently reduce health and safety concerns so that the public interest can be served and the affordable housing can be built. The record does not contain sufficient evidence of those parameters. The ... commission is in the best position to identify the structural, environmental, equipment and technical context into which the development must be designed to fit .... The ... commission bears the burden of proving that the public interest cannot be protected by reasonable changes to the applicant's proposed development." (Citation omitted.) Accordingly, the trial court remanded the case to the commission "with an order that it specify categorically the changes reasonably necessary to protect the substantial health and safety concerns cited as reasons for its denial." This certified appeal followed. See footnote 3 of this opinion.

Before considering the merits of this case, we note that the trial court's order remanding the case to the commission requires that we determine, sua sponte, whether we have...