Page 1 LEXSEE 2004 CONN. SUPER. LEXIS 123 Avalonbay Communities, Inc. v. Milford Planning and Zoning Board CV020514399S SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW BRITAIN AT NEW BRITAIN 2004 Conn. Super. LEXIS 123 January 12, 2004, Decided January 14, 2004, Filed NOTICE: [*1] THIS DECISION IS UNRE- lic interest in health and safety as it pertained to access PORTED AND MAY BE SUBJECT TO FURTHER for fire, police, and ambulance personnel. The board APPELLATE REVIEW. COUNSEL IS CAUTIONED should have advanced its legitimate fire safety concerns TO MAKE AN INDEPENDENT DETERMINATION by approving the site plan subject to reasonable condi- OF THE STATUS OF THIS CASE. tions. Conditional approval of the project upon sewer approval would not have harmed the public interest, and DISPOSITION: Board's reliance on the Inland Wet- reliance on the inland wetlands decision was misplaced. lands decision misplaced. As a result, this reason for denying the applications is invalid. OUTCOME: The appeal was sustained. The matter was remanded to the board and the board was ordered to ap- CASE SUMMARY: prove the zone change application and the special permit application, and to approve the site plan application sub- ject to reasonable and necessary conditions, not inconsis- PROCEDURAL POSTURE: Appellant developer tent with the decision. brought an affordable housing land use appeal in the Superior Court, Judicial District of Ansonia/Milford CORE TERMS: affordable housing, public interests, (Connecticut), under Conn. Gen. Stat. § 8-30g, which site plan, parking, space, boulevard, feet, Public Act, was transferred to the trial court, tax and administrative roadway, zoning, outweigh, front, zone, multi-family, appeals session, from appellee planning and zoning parcel, garage, affordable, wetlands, neck, zone change, board's denial of four applications. sufficient evidence, safety concerns, interchange, hous- ing, inlands, emergency, plenary, median, sewer, safe OVERVIEW: The developer argued that its application was grandfathered under the affordable housing law as it LexisNexis(R) Headnotes existed prior to the effective date of 2000 Conn. Acts 206. The trial court applied 2000 Conn. Acts 206 pro- spectively, and held that the applications met the defini- tion of "affordable housing" as it existed on the date they Real Property Law > Subdivisions > General Overview were filed. Thus, the applications were reviewed as af- [HN1] 2000 Conn. Acts 206 modified the definition of fordable housing appeals. The town had a need for af- "affordable housing" by increasing the percentage of fordable housing. The board did not meet its burden to affordable housing units required from 25 to 30 percent prove that the legitimate desire to encourage economic and increasing the period for which they must be desig- development and suitability for multi-family housing nated affordable from 30 years to 40 years. was based upon a substantial public interest or that it clearly outweighed the need for affordable housing. De- nial of the site plan was not necessary to protect the pub-
Page 2 2004 Conn. Super. LEXIS 123, * Governments > Legislation > Effect & Operation > for affordable housing; and (C) such public interests Prospective Operation cannot be protected by reasonable changes to the afford- Governments > Legislation > Effect & Operation > able housing development. Retrospective Operation [HN2] The general rule in Connecticut is that a new stat- ute should not be applied retroactively unless the legisla- Real Property Law > Zoning & Land Use > Judicial ture clearly expressed an intent that it should be so ap- Review plied. [HN7] The Connecticut Supreme Court has interpreted Conn. Gen. Stat. § 8-30g(g) to mean the appellate court must determine whether the commission has shown that Governments > Legislation > Effect & Operation > its decision is supported by sufficient evidence in the Retrospective Operation record. Under subparagraphs (B), (C) and (D) (later sub- Governments > Legislation > Interpretation paragraphs (A), (B) and (C)), however, the appellate Real Property Law > Subdivisions > General Overview court must review the commission's decision independ- [HN3] Nothing in the language of 2000 Conn. Acts 206 ently, based upon its own scrupulous examination of the indicates that it should be applied retroactively to pend- record. ing land use applications. Nor is there anything in the legislative history of the act which would lead the trial court to find that the legislature intended such a result. Civil Procedure > Appeals > Standards of Review > De On the contrary, the legislative history indicates that an Novo Review amendment to make the legislation retroactive was made Real Property Law > Zoning & Land Use > Judicial and then withdrawn in the Connecticut House of Repre- Review sentatives after opponents of the amendment expressed [HN8] The proper scope of review regarding whether the their concern that the act should not apply to pending zoning commission has sustained its burden of proof, applications. The bill was then adopted with an effective namely that: its decision is based upon the protection of date of October 1, 2000. For these reasons, 2000 Conn. some substantial public interest; the public interest Acts 206 will not be applied retroactively. clearly outweighs the need for affordable housing; and there are no modifications that reasonably can be made to the application that would permit the application to be granted requires the appellate court, not to ascertain Real Property Law > Zoning & Land Use > General Overview whether the commission's decision is supported by suffi- [HN4] Conn. Gen. Stat. § 8-30g(h) provides that a pro- cient evidence, but to conduct a plenary review of the posed modification shall be treated as an amendment to record in order to make an independent determination on original application. the issue. Real Property Law > Zoning & Land Use > General Real Property Law > Zoning & Land Use > Judicial Overview Review [HN5] Pursuant to Conn. Gen. Stat. § 8-30g(g), the bur- [HN9] The appellate court defines sufficient evidence in den in an affordable housing appeal is on the commission the context of an affordable housing appeal to mean less to prove, based upon the evidence in the record compiled than a preponderance of the evidence, but more than a before such commission that the decision from which mere possibility. The zoning commission need not estab- such appeal is taken and the reasons cited for such deci- lish that the effects it sought to avoid by denying the sion are supported by sufficient evidence in the record. application are definite or more likely than not to occur, but that such evidence must establish more than a mere possibility of such occurrence. Real Property Law > Zoning & Land Use > General Overview [HN6] In an affordable housing appeal, the planning and Real Property Law > Zoning & Land Use > Judicial zoning commission shall have the burden to prove, based Review upon the evidence in the record compiled before the [HN10] In an affordable housing appeal, the zoning commission, that: (1)(A) the decision is necessary to commission is required to show a reasonable basis in the protect substantial public interests in health, safety or record for concluding as it did. The record must contain other matters which the commission may legally con- evidence concerning the potential harm that would result sider; (B) such public interests clearly outweigh the need
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