Christian Activities Council, Congregational v. Town Council

• Decision Date: 20 July 1999
• Docket Number: (SC 15669)
• Citation: 735 A.2d 231,249 Conn. 566
• Court: Connecticut Supreme Court
• Parties: CHRISTIAN ACTIVITIES COUNCIL, CONGREGATIONAL v. TOWN COUNCIL OF THE TOWN OF GLASTONBURY ET AL.

249 Conn. 566

735 A.2d 231

CHRISTIAN ACTIVITIES COUNCIL, CONGREGATIONAL v. TOWN COUNCIL OF THE TOWN OF GLASTONBURY ET AL.

(SC 15669)

Supreme Court of Connecticut.

Argued October 30, 1997.

Officially released July 20, 1999.

Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.¹ David F. Sherwood, with whom was Wesley W. Horton, for the appellant (plaintiff).

William S. Rogers, with whom was Kevin S. Murphy, for the appellee (named defendant).

Timothy D. Bates, for the appellee (defendant Land Heritage Coalition of Glastonbury, Inc.).

Terry J. Tondro, Philip D. Tegeler and John Brittain filed a brief for the Connecticut Civil Liberties Union Foundation et al. as amici curiae.

Opinion

BORDEN, J.

The principal issue in this appeal involves the scope of judicial review in an affordable housing land use appeal pursuant to General Statutes § 8-30g.² The plaintiff, Christian Activities Council, Congregational, gregational, appeals³ from the judgment of the trial court. By that judgment, the trial court dismissed the plaintiffs appeal from the action of the named defendant, the town council of the town of Glastonbury (defendant),⁴ which had denied the plaintiffs application for a change of zone for the purpose of developing a parcel of land in Glastonbury as an affordable housing development. The plaintiff claims that: (1) the trial court applied an improper scope of review under § 8-30g (c) (1) (B), (C) and (D); (2) the trial court improperly failed to consider whether all four of the criteria established by § 8-30g (c) (1) had been met; (3) the trial court improperly failed to consider all of the defendant's reasons for denying the plaintiffs application; and (4) the defendant did not meet its burdens of proof under § 8-30g (c) (1). We affirm the judgment of the trial court.

Certain facts and the procedural history are undisputed. The parcel of land in question consists of 33.42 acres located on the northerly side of Hebron Avenue and the westerly side of Keeney Street in Glastonbury. The land currently is owned by the Metropolitan District Commission (Metropolitan), a public water company, from whom the plaintiff has contracted to purchase it conditioned upon, among other things, the ability of the plaintiff to secure zoning approval from the town for construction of at least twenty-six single family affordable dwellings on the parcel. Metropolitan also owns a tract of approximately 546 acres located directly across Keeney Street, and stretching to the north, from the parcel in question. The parcel at issue in this case, along with the rest of Metropolitan's property, is currently zoned "reserved land" on the Glastonbury zoning map, a classification that places lands owned by, inter alia, public service water companies "in a special zone to ensure the proper, orderly and planned growth of such land in accordance with surrounding development and the Glastonbury Plan of Development." Glastonbury Zoning Regs., § 4.10.1. No residential development is permitted in a "reserved land" zone. That classification permits residential development at a density of one unit per acre. On the town's plan of development, however, the parcel is designated as "fringe suburban." That designation identifies land as suitable for residential development at a density of one dwelling unit per acre. The parcel sought to be developed is bordered on the east by Keeney Street, and on the south, west and north by other parcels that are zoned as "rural residence."

Under the Glastonbury charter, the defendant has the power to rezone property. Accordingly, pursuant to § 8-30g, the plaintiff filed an affordable housing development application with the defendant to rezone the parcel from "reserved land" to "rural residence." The proposed development was to be comprised of detached affordable housing to be offered to low and moderate income minority families. In connection with the application, the plaintiff submitted a preliminary subdivision plan for an open space subdivision of twenty-eight units, along with house plans illustrative of the type of housing to be constructed. The subdivision plan showed the parcel to be divided into twenty-eight lots averaging one-half acre in size, bisected by approximately thirteen acres of open space encompassing a six acre inland wetlands area. This preliminary subdivision plan contained two access roads to be constructed: one leading from Hebron Avenue, serving the eleven lots south of the open space; and the other leading from Keeney Street, serving fourteen of the lots north of the open space. The three remaining lots, north of the open space, would have direct access to Keeney Street.

The defendant referred the plaintiff's application to the Glastonbury plan and zoning commission (plan and zoning commission) for a recommendation, as required by the zoning regulations. After a public hearing, the plan and zoning commission recommended that the application be granted. In doing so, however, the plan and zoning commission made certain comments regarding the parcel. The Glastonbury conservation commission (conservation commission) also considered the plaintiff's application and, although not formally making a recommendation on the proposal, submitted to the plan and zoning commission a resolution expressing a number of "concern[s]" regarding the proposal "for inclusion into the [plan and zoning commission] public hearing record on this matter." We discuss later in this opinion the relevant comments of the plan and zoning commission and the relevant expressed concerns of the conservation commission.

The defendant, after a public hearing in June, July and August, 1994, denied the plaintiffs application. In doing so, the defendant gave the following reasons that are pertinent to this appeal: "1. The proposed development would create a new road exiting onto an already acknowledged dangerous curve on Hebron Avenue just west of its intersection with Keeney Street in an area of high risk, serious traffic accidents and high volume. The proposed development would increase existing traffic hazards and would expose residents of the proposed development and others who travel in that intersection to unreasonable risks. 2. It is in the best interest of the Town to provide open space in order to meet local and regional needs. Further, the 1994 Plan of Development recommends that [Metropolitan] lands in the Keeney Street area be considered for Town purchase and preservation as open space....⁵ 4. The proposed development could endanger a potential future water supply source as identified by Environmental Planning Services Report dated April 17, 1991 prepared for [Metropolitan] at Page 9. 5. These considerations outweigh the need for affordable housing at this site, especially because of the availability of other parcels in town suitable for affordable housing."⁶ The plaintiff appealed to the trial court pursuant to § 8-30g (c). The trial court, relying on our statement that, in an affordable housing land use appeal, as in a traditional zoning appeal, "[t]he zone change must be sustained if even one of the stated reasons is sufficient to support it"; (internal quotation marks omitted) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994); concluded that there was sufficient evidence in the record to support the defendant's fourth stated reason, namely, that the proposed development may destroy a potential future source of public water. Accordingly, the trial court discussed the evidence in the record only with regard to that stated reason, and did not discuss the evidence underlying any of the other stated reasons. The court also determined that the defendant's decision otherwise complied with § 8-30g (c). It, therefore, dismissed the plaintiff's appeal. This appeal followed.

I

A

We begin by outlining the differences that we have identified thus far between an affordable housing land use appeal pursuant to § 8-30g, and a traditional zoning appeal.⁷ First, an appeal under § 8-30g (b) may be filed only by an applicant for an affordable housing development whose application was "denied or [was] approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units...." Thus, where the town has granted such an application, either outright or without imposing such restrictions, there is no appeal under § 8-30g (b).⁸

Second, the scope of judicial review under § 8-30g (c) requires the town, not the applicant, to marshal the evidence supporting its decision and to persuade the court that there is sufficient evidence in the record to support the town's decision and the reasons given for that decision. By contrast, in a traditional zoning appeal, the scope of review requires the appealing aggrieved party to marshal the evidence in the record, and to establish that the decision was not reasonably supported by the record. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 542-43, 600 A.2d 757 (1991).⁹

Third, if a town denies an affordable housing land use application, it must state its reasons on the record, and that statement must take the form of "a formal, official, collective statement of reasons for its actions." Id., 544.¹⁰ By contrast, in a traditional zoning appeal, if a zoning agency has failed to give such reasons, the court is obligated "to search the entire record to find a basis for the [agency's] decision." (Internal quotation marks omitted.) Id. We reach this conclusion based on the text and the purpose of the statute.¹¹ The text requires that the town establish that sufficient record evidence supports "the decision from which such appeal is taken and the reasons cited for such decision...." (Emphasis added.) General Statutes § 8-30g (c) (1) (A). Thus,...