National Associated Properties v. Planning and Zoning Com'n of Town of North Branford, 13367

• Decision Date: 26 June 1995
• Docket Number: No. 13367,13367
• Citation: 658 A.2d 114,37 Conn.App. 788
• Court: Connecticut Court of Appeals
• Parties: NATIONAL ASSOCIATED PROPERTIES v. PLANNING AND ZONING COMMISSION OF the TOWN OF NORTH BRANFORD.

Page 114

658 A.2d 114

37 Conn.App. 788

NATIONAL ASSOCIATED PROPERTIES v. PLANNING AND ZONING COMMISSION OF the TOWN OF NORTH BRANFORD.

No. 13367.

Appellate Court of Connecticut.

Argued Feb. 7, 1995.

Decided May 9, 1995.

Certification Denied June 26, 1995.

John M. Gesmonde, Town Atty., for appellant (defendant).

Roy H. Scharf, Branford, for appellee (plaintiff).

Before DUPONT, C.J., and SPEAR and FRANCIS X. HENNESSY, JJ.

DUPONT, Chief Judge.

This appeal arises from the defendant's denial of the plaintiff's affordable housing application. The plaintiff appealed that denial to the trial court, which sustained the appeal and ordered the defendant to grant the plaintiff's application. We affirm the judgment of the trial court.

Certain facts are relevant to this appeal. The plaintiff partnership, National Associated Properties, filed an application with the defendant partnership North Branford planning and zoning commission to create a new zoning designation in North Branford entitled "affordable housing district" and, further, to change the town's zoning map by applying the newly created zoning designation to 12.4 acres of land owned by the plaintiff.

The property owned by the plaintiff is zoned, in part, B-2 (central business) and, in part, RG-A (residence garden apartment). The site contains fifty-four ¹ rental units and is served by public water and sewer. The proposed changes would allow the plaintiff to add forty new units to the property, for a total of ninety-four units, 20 percent of which would be rented at or below affordable levels.

The defendant held a public hearing on the application and denied the plaintiff's application. The defendant sent the plaintiff a letter stating that "[a]t its Regular Meeting of November 5, 1992, the North Branford Planning and Zoning Commission voted to deny [the plaintiff's application] ... for reasons stated in the adopted resolution dated November 5, 1992 enclosed herewith."

The resolution, attached to the letter, listed ten findings and concerns of the defendant, including the following: "2. The proposed amendment, which is formulated for a specific site, contains language which is inconsistent with the intended goals of the affordable housing strategy for the Town of North Branford. Specifically, the proposed text amendment would permit the following: (A) Ability to construct an additional 40 dwelling units for a combined total of 95 dwelling units on the site. (B) A minimum of ten (10) percent of the total site acreage to be preserved as open space (as opposed to thirty (30) percent under existing affordable regulations). (C) A minimum of twenty (20) percent of the dwelling units to be restricted as affordable dwelling units (as opposed to twenty-five (25) percent under existing affordable regulations.) (D) A minimum length of twenty years as the set aside period for the affordable dwelling units (as opposed to perpetuity under existing affordable regulations).

"The introduction of new regulations and the elimination of the noted preferred language has a detrimental impact on the intended objectives of affordable housing regulations. Accordingly, the Commission is concerned with a proposed regulation that does not adequately protect the public health, safety, and welfare." ²

The resolution also stated: "After thorough review and discussion of each of the findings and concerns noted above [the commission denies the application]."

The plaintiff then appealed pursuant to General Statutes § 8-30g, ³ the affordable housing land use appeals procedure statute. After hearings and the submission of briefs, the trial court informed the parties of its intention personally to view the land at issue. Neither counsel objected to the trial court's intentions and both counsel were present at the time of the viewing.

The trial court then rendered judgment reversing the decision of the defendant. The court found that the reasons the defendant asserted for denying the plaintiff's application were not supported by sufficient evidence in the record. Further, the court found that the defendant had failed to sustain its burden of proof as to any of the considerations that would support a denial of the plaintiff's application under § 8-30g.

The defendant then petitioned this court for certification, which we granted. The defendant argues on appeal that (1) the plaintiff's application does not qualify as an affordable housing application because it contains no provision concerning the sale of the affordable housing units, (2) the trial court should have denied the application because the plaintiff did not have approval from the water pollution control authority for the proposed development, and (3) the trial court improperly viewed the property.

I

The defendant first argues that the plaintiff's application is not an "affordable housing application" as defined by General Statutes § 8-30g because the application does not indicate that the plaintiff intended to restrict, by deed, the sale of the housing units.

Section 8-30g(a)(2) defines an affordable housing application as "any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing." An affordable housing development is defined by § 8-30g(a)(1) as "a proposed housing development (A) which is assisted housing or (B) in which not less than twenty per cent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that such dwelling units be sold or rented at, or below, prices which will preserve the units as affordable housing, as defined in section 8-39a, for persons and families whose income is less than or equal to eighty per cent of the area median income, for at least twenty years after the initial occupation of the proposed development...."

The defendant argues that the plaintiff's application should not be considered an affordable housing application, under the definition provided in § 8-30g, because the narrow language the plaintiff used to describe the restrictions to be placed in the deed did not include a restriction for the sale of the units.

The following language was included by the plaintiff in its proposed zoning amendment. "Promptly upon adoption of [the article] by The Planning & Zoning Commission there shall be recorded in the North Branford land records a document entitled 'Affordable Housing Development Restrictions,' executed by the owner of the AHD, ⁴ dated, witnessed and acknowledged in the manner required for deeds, containing a real estate description of the AHD substantially in accordance with Schedule A attached hereto, and containing substantially the following language:

" 'Not less than twenty percent of the dwelling units in the Affordable Housing District herein described shall be rented at, or below, rents which will preserve units as affordable housing, as hereinafter defined, for persons and families whose income is less than or equal to eighty percent of the area median income for North Branford, as determined by the United States Department of Housing and Urban Development, for twenty years after adoption by the North Branford Planning & Zoning Commission of Article 36 of the Zoning Regulations, or as to any building within said zone the building permit for which is issued after such adoption of Article 36, twenty years from the initial occupation thereof.

'The owner of the land and buildings within the affordable housing district may, during such twenty year period, change the designation of which units within the affordable housing district shall be maintained as affordable, provided that the minimum twenty percent set aside shall be maintained and the affordable housing district as a whole shall continue to comply with the provisions of these restrictions.

'Affordable housing means housing for which persons and families pay thirty percent or less of their annual income where such income is less than or equal to the area median income for North Branford as determined by the United States Department of Housing and Urban Development.

'These restrictions may be enforced by the Housing Authority of the Town of North Branford.' "

The defendant argues that there is nothing in these restrictions, or anywhere else in the proposed zoning regulation, that would preclude the plaintiff from converting the units into individual condominium units, which could be sold without restriction as to affordability. The defendant argues that in order to prevent the plaintiff from garnering a windfall through the sale of the units, we should interpret that part of § 8-30g(a)(1)(B) reading "sold or rented" as automatically requiring provisions in the deed for both the sale and rental of units. We need not decide this issue, however, because the language of the proposed deed, here, already restricts both the rental and the sale of the housing units.

"[I]n determining the effects of a deed or a written contract where the language is fairly susceptible of but one interpretation, the inquiry is not what the parties impliedly intended but what is the intent which is expressed, and that intent must be given effect.... The intention of the parties, gathered from their words, is gathered not by reading a single clause of the covenant but ... by reading its entire context.... It is only where more than one interpretation is permissible that it is necessary for this court to seek the intent of the doubtful language in the light of surrounding circumstances presumably considered by the parties." (Citations omitted.) Moore v. Serafin, 163 Conn. 1, 10-11, 301 A.2d 238 (1972).

The unambiguous language of the proposed deed here states: "Not less than twenty percent of the dwelling units in the Affordable Housing District herein described shall be rented at, or below, rents which will preserve units as affordable housing ... for ... twenty years...." This explicitly...