Kaufman v. Zoning Com'n of City of Danbury

• Decision Date: 07 February 1995
• Docket Number: No. 15021,15021
• Citation: 653 A.2d 798,232 Conn. 122
• Court: Connecticut Supreme Court
• Parties: Robert J. KAUFMAN v. ZONING COMMISSION OF the CITY OF DANBURY.

Page 798

653 A.2d 798

232 Conn. 122

Robert J. KAUFMAN v. ZONING COMMISSION OF the CITY OF DANBURY.

No. 15021.

Supreme Court of Connecticut.

Argued Oct. 28, 1994.

Decided Feb. 7, 1995.

Daniel E. Casagrande, Danbury, for appellant (defendant).

Thomas W. VanLenten, with whom, on the brief, was Melinda S. Monson, Danbury, for appellee (plaintiff).

Mary-Michelle U. Hirschoff, Bethany, filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and PALMER, JJ.

PETERS, Chief Justice.

This appeal concerns the effect of the affordable housing land use appeals act; General Statutes § 8-30g; ¹ on an application for a zone change. The defendant, the zoning commission of the city of Danbury (commission), denied the application of the plaintiff, Robert J. Kaufman, to amend the zoning map of the city of Danbury to change the classification of the plaintiff's property from RA-40 (1 single-family dwelling per acre) to RA-8 (5 single-family dwellings per acre). The plaintiff appealed from the commission's decision to the Superior Court, which rendered judgment reversing that decision and remanded the case to the commission with direction that the application be approved. After the commission successfully petitioned the Appellate Court for certification to appeal from the judgment of the trial court; see General Statutes §§ 8-8, 8-9 ² and 8-30g; we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The underlying facts are undisputed. In his modified application for a zone change, the plaintiff, a developer, sought to change the zoning of 27.4 acres of his Danbury property to an "RA-8" classification, which, if granted, would permit him to build 102 houses. ³ At the time the plaintiff purchased the land, the entire parcel was zoned "RA-40," a zoning classification that allowed construction of twenty-seven houses.

The plaintiff filed his application for a zone change on a form provided by the defendant. In response to an inquiry on the form asking the applicant to "[s]tate briefly why this petition should be granted," the plaintiff wrote, "[t]he property is to be developed as an affordable housing project in conformance and pursuant to the Connecticut General Statutes relating to affordable housing projects."

After several public hearings on the plaintiff's original and modified applications, the commission voted by a margin of five to three to deny the modified application. In its letter, dated February 10, 1992, notifying the plaintiff of the denial, the commission stated the following four reasons for its decision: " The proposed density is too high for the proposed area, it was in the Plan of Development as an RA-40 zone and it should remain that way. The increase in traffic and the detrimental effect on fire safety would make an adverse situation. The environmental issue that there could be considerable impact on the Lake Kenosia watershed. The need for affordable housing does not clearly outweigh the need to preserve the neighborhood as it presently exists."

The trial court sustained the plaintiff's timely appeal from the decision of the commission. After making a finding that the plaintiff's zone change application had been made "in connection with an affordable housing development"; General Statutes § 8-30g; and that the plaintiff's appeal therefore would be governed by the substantive and procedural standards set out in § 8-30g, the trial court concluded that the commission had failed to sustain the burden of proof imposed upon the commission by § 8-30g. The trial court concluded that the commission was required to approve the plaintiff's application, but ordered a remand to give the commission the opportunity to impose reasonable conditions and changes with respect thereto. ⁴

On appeal from the judgment of the trial court, the commission makes three claims. The commission argues that: (1) the trial court improperly held § 8-30g to be applicable, because the plaintiff's application for a zone change was not an "affordable housing application"; (2) even if § 8-30g is applicable, the trial court improperly determined that there was insufficient evidence in the record to support the commission's conclusion that the zone change would threaten the Lake Kenosia watershed; and (3) even if § 8-30g is applicable, the trial court improperly rejected the commission's conclusion that it was necessary to deny the zone change to prevent increased traffic. ⁵ Prior to oral argument, this court sua sponte raised a fourth issue, whether the trial court's judgment ordering a remand was a final judgment that would sustain an immediate appeal.

We conclude, as both parties have argued in their supplemental briefs on the jurisdictional issue, that this court has subject matter jurisdiction over the appeal. On the merits, we affirm the judgment of the trial court.

I

The first issue before us is whether the judgment of the trial court, remanding the case to the commission, was an appealable final judgment. Because the provisions of the Uniform Administrative Procedure Act ⁶ do not govern a zoning appeal; see General Statutes §§ 8-8(o), 8-9 and 8-30g(b); it is the scope of the remand order in this particular case that determines the finality of the trial court's judgment. Eastern Connecticut Cable Television, Inc. v. Dept. of Public Utility Control, 214 Conn. 609, 613, 573 A.2d 311 (1990). A judgment of remand is final if it " 'so concludes the rights of the parties that further proceedings cannot affect them.' " Id., at 613, 573 A.2d 311, quoting State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); see also Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 409-11, 521 A.2d 566 (1987). A judgment of remand is not final, however, if it "requires [the agency to make] further evidentiary determinations that are not merely ministerial." Eastern Connecticut Cable Television, Inc. v. Dept. of Public Utility Control, supra, 214 Conn. at 614, 573 A.2d 311. In light of the terms of the trial court's remand order, as explained in the court's response to the commission's motion for articulation, we are persuaded that the trial court's judgment meets the test for finality. ⁷

We attach significance to the fact that the trial court's judgment did not order further evidentiary determinations on remand. Although the trial court's remand may have allowed the commission to hear additional evidence in order to determine whether to impose "reasonable conditions" on or to make "reasonable changes" in the application, the remand in no way required the commission to conduct such an inquiry.

Even more important, the trial court's judgment required the commission to approve the plaintiff's application. With respect to this central issue, the trial court's decision " 'so concludes the rights of the parties that further proceedings cannot affect them.' " Eastern Connecticut Cable Television, Inc. v. Dept. of Public Utility Control, supra, 214 Conn. at 613, 573 A.2d 311, quoting State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566. After explicitly resolving "all [of] the issues in favor of the plaintiff" (emphasis added), the trial court remanded the case only for the limited purpose of allowing the commission to impose reasonable conditions on or make reasonable changes to the development, if it so chose. Because the proceedings on remand cannot deprive the plaintiff of the zone change that the trial court has ordered to be approved, the trial court has rendered a final judgment and this court has subject matter jurisdiction over the commission's appeal. See generally Schieffelin & Co. v. Dept. of Liquor Control, supra, 202 Conn. at 409-11, 521 A.2d 566.

II

We turn now to the merits of the commission's claims. The commission first argues that the trial court improperly determined that the plaintiff's application for a zone change had been an "affordable housing application," such that § 8-30g applied to the plaintiff's appeal. The commission's argument is in two parts. First, the commission contends that the plaintiff's application was not an "affordable housing application" because the application failed to include specific development plans. Second, the commission contends that the plaintiff failed to provide adequate evidence that, if the zone change were granted, he would build affordable housing. We are not persuaded by either argument.

A

The commission first argues that § 8-30g governs a zoning appeal only if, at the time of an application for a zone change, the applicant submitted specific affordable housing plans. This contention must be placed in context.

Apart from § 8-30g, local zoning commissions have discretion to prescribe the materials that must be submitted in connection with a zone change application. See General Statutes § 8-3. ⁸ Although zoning commissions may require the submission of site plans for all zone change applications, Danbury's zoning regulations contain no such requirements. The commission therefore conceded at oral argument that the plaintiff's zone change application contained all the information that Danbury regulations normally require. Compare Danbury Zoning Regs. §§ 9.C, 10.A (Rev. to June 24, 1991) (governing applications for amendments to zoning map; not requiring submission of site plans), with Danbury Zoning Reg. § 3.P (Rev. to June 24, 1991) (governing applications for special permits and special exceptions; requiring submission of site plans).

Without regard to § 8-30g, zoning commissions, before acting on a zone change application, may also ask an applicant to submit additional information during the course of hearings on the application. Concededly, the commission in this case never asked the plaintiff to submit site plans during the course of the hearings. It is undisputed, furthermore, that whenever the...