Opinion
No. CV 05-4002278
February 2, 2008
MEMORANDUM OF DECISION
This affordable housing administrative appeal highlights the sometimes competing public policies of developing and maintaining affordable housing and preserving and protecting Connecticut's fragile natural resources. In this case, the public policy of encouraging the development of affordable housing must yield in light of the unique and important environmental setting of the property sought to be developed.
The appeal was brought by the plaintiffs, Landmark Development Group, LLC ("Landmark") and Jarvis of Cheshire, LLC ("Jarvis") (collectively, the "plaintiffs" or "applicants"), from a decision by the defendant, East Lyme Zoning Commission ("Commission"), denying their affordable housing application to construct 352 condominium units on a large tract of land in East Lyme that borders the Niantic River near Long Island Sound. Two hundred thirty-two of the proposed units would be market rate condominiums and 120 units would be designated affordable housing rental units. Two intervening parties, Save the River, Save the Hills, Inc. and Friends of Oswegatchie Hills Nature Preserve, Inc. (hereinafter the "intervenors") also participated in these proceedings.
For the reasons set forth below, the court dismisses the plaintiffs' appeal.
I. FACTS AND PROCEDURAL HISTORY
This case has a lengthy and complicated procedural history. The property involved in this appeal consists of approximately 236 acres of land in the Oswegatchie Hills area of East Lyme. The property is a steep, rocky and largely undeveloped expanse of land bordered by the Niantic River on the east; Interstate Route 95, Latimers Brook and residences on Calkins and River Roads to the north; residences and other large undeveloped tracts to the west; and Smith Cove, residences and other undeveloped portions of Oswegatchie Hills to the south. The property has scenic vistas of the Niantic River and of Long Island Sound. It is a rugged, hilly property with many mature trees and is one of the last undeveloped areas in the Town of East Lyme. A portion of the property is designated as "proposed open space" in the Town's Plan of Development. The property is located in a low-density, single-family residential zone, now requiring three-acre lots. Municipal water and sewer are not available to most of the site. There are no plans to extend such services to the property or surrounding area in the foreseeable future.
Some of the procedural history has been adopted from Landmark Development v. East Lyme Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 02 0520497 (Sep. 7, 2004, Quinn, J.).
In December 2001, Landmark simultaneously applied for a text amendment to the East Lyme zoning regulations to create a new Section 32 in the zoning regulations titled "Affordable Housing District" and for a zone change of the property to a new "Affordable Housing District" (hereinafter collectively referred to as "Application I"). The regulations proposed by the plaintiffs in Application I would have permitted a maximum density of 10 units per acre, 50 percent lot coverage with no setbacks from waterways nor provision for open space. Application I proposed that the site be served by municipal water and sewer. Thirty percent of the dwelling units would be required to be deed restricted to ensure affordability. In addition, the plaintiff included an affordability plan in Application I to govern the administration of its commitment, as required by statute, to provide affordable housing on the property.
Hearings on Application I were held in the Spring of 2002, during which the Commission considered testimony presented by the applicants and others including the town planner, planning consultants, state officials, the East Lyme Water and Sewer Commission, municipal officers, and concerned citizens and residents. It also considered reports and written statements.
On June 26, 2002, the Commission denied Application I. Notice of its decision was published in the New London Day on July 3, 2002. The Commission provided five principal reasons for its denial: (1) the proposal was not compatible with local and state plans of development for the area, which included protecting Oswegatchie Hills as open space; (2) the proposed dense development of the site was not feasible because of inadequate water and sewer capacity; (3) the development proposed could result in substantial damage to the ecosystem of Long Island Sound and the Niantic River; (4) similar damage could occur to Latimers Brook; and (5) traffic generated by the development could cause unsafe conditions for motorists and exceed current roadway capacity because of restricted access to the site.
Landmark did not appeal the Commission's June 26, 2002 decision. Instead, on July 17, 2002, Landmark amended its application to attempt to address the Commission's reasons for denying the initial application. The modified application, among other things, (1) reduced the maximum allowable density, (2) proposed onsite sewer and water (through community wells and septic systems) as an alternative to municipal water and sewer services, (3) added 100-foot setbacks from the potentially impacted waterways, (4) decreased the maximum lot coverage from 50 percent to 30 percent, and (5) set aside a minimum of 20 percent of the site as open space.
The Commission held additional public hearings of the revised application on September 19, 26 and 30, 2002. Additional evidence was presented by the applicant, the planning commission, intervenors and others.
On October 3, 2002, the Commission denied the revised application, concluding that the modifications did not satisfactorily resolve the fundamental, site-specific problems with the proposed development that it had previously found when it rejected the initial application. Notice of the Commission's decision was published on October 17, 2002.
On October 29, 2002, Landmark and Jarvis filed an appeal to the Superior Court from the Commission's decision denying the revised application for a proposed amendment to the East Lyme zoning regulations and a zone change.
While that appeal was pending in the Superior Court, the plaintiffs filed, on May 12, 2004, a second application with the Commission (hereinafter "Application II"). The precise nature of Application II has been a point of vigorous dispute by the parties from the outset. The new application, at least by its terms, does not seek a text amendment to East Lyme's zoning regulations or any zone changes. Instead, Application II seeks approval of a specific plan of development for the property. The plaintiffs characterize Application II as an affordable housing application brought pursuant General Statutes § 8-30g. Application II seeks approval to construct 352 units of housing on one portion of the property. Two hundred thirty-two of the units are proposed as market rate condominiums, while 120 units are proposed as affordable housing rental units. The proposed development in Application II differed in some respects to the project originally outlined in Application I (as revised), presumably because the plaintiffs had attempted to address some of the ongoing concerns about the project that were expressed in the Commission's rejection of Application I (as revised). These changes are discussed at greater length below.
Because Application II did not, in the Commission's view, contain a "site plan," the Commission decided to treat Application II as containing three parts: (1) an application for a text amendment to the zoning regulations; (2) an application for a zone change; and (3) an application for approval of an "Affordable Housing Development." Throughout this appeal, the plaintiffs dispute the Commission's characterization and treatment of Application II. The plaintiffs contend that Application II is best characterized as an application for a specific affordable housing plan and not necessarily as a resubmission of an application for a text amendment and zone change to the zoning regulations. As discussed later, the Court agrees with the plaintiffs that they were entitled to submit a stand-alone affordable housing application.
The Commission treated Application II, despite protestations by the plaintiffs, as an application for a text amendment and zone change. Hearings were held by the Commission on Application II on August 5, 2004, August 19, 2004, September 2, 2004, November 4, 2004 and November 8, 2004.
On September 7, 2004, while the hearings on Application II were ongoing, the Superior Court, Quinn, J., dismissed the plaintiffs' appeal from the Commission's decision on Application I, concluding that substantial evidence in the record supported the Commission's decision. Specifically, Judge Quinn held that the Commission's decision was "based on the substantial public interests in preserving the Oswegatchie Hills area as open space, protection of the public's health due to the limited facilities for water and disposal of sewage, the adverse traffic conditions, protection of area waters from the fallout of dense development on the slopes and thin top soil of the area as well as protection of the Oswegatchie Hills' fragile ecosystem. The commission properly concluded that these public interests clearly outweighed the need for affordable housing at this location. Because the reasons are site-specific, there were no reasonable changes that could have been made to accommodate the other adversely impacted public interests found." Landmark Development v. East Lyme Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 02 05204475 (Sept. 7, 2004, Quinn, J.). Accordingly, Judge Quinn dismissed the plaintiffs' appeal from the Commission's decision regarding Application I. The plaintiffs subsequently sought certification to appeal from the Appellate Court, which was denied on November 17, 2004.
On January 6, 2005, the Commission denied Application II. Because the Commission treated Application II as including an application for a text amendment and a zone change, the Commission's decision is divided into three parts. First, the Commission concluded that any text amendment would be inadequate to protect the substantial public interests in health and safety and inadequate to promote affordable housing. Among other things, the Commission determined that the type of high density development contemplated by the application could only be supported by public water and sewer.
Second, the Commission concluded that the application for any zone change contravenes substantial public interests in health and safety. The Commission's principal reasons for its conclusion can be summarized as follows: (1) the proposal is incompatible with the local and state plan of development and the preservation of Oswegatchie Hills as open space; (2) the site is unsuitable for high-density multi-family housing because it (a) lacks infrastructure and capacity to provide adequate water and sewer, (b) has poor soil characteristics and (c) no motor vehicle access; (3) the proposal would adversely impact Long Island Sound, the Niantic River and surrounding woodland habitats; and (5) the affordable housing units are not comparable to the market-rate units.
Finally, the Commission addressed the applicants' specific affordable housing plan. Recognizing that the proposed development need not be in strict compliance with East Lyme's existing zoning regulations, the Commission nevertheless concluded that the proposal must be denied for numerous reasons. These reasons included, by specific incorporation, each of the Commission's findings articulated in the portion of its decision denying a zone change. Additionally, the Commission concluded that the application does not comply with Section 32 of East Lyme's affordable housing regulations because it lacks necessary information required by the regulations. Accordingly, the Commission denied the applicants permission to proceed with its development plan. This appeal, brought pursuant to General Statutes § 8-30g, followed.
Further findings are set forth below as necessary to address the claims of the parties.
II LEGAL ANALYSIS A. Aggrievement and Jurisdiction 1. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003).
An appeal brought pursuant to § 8-30g, challenging the denial of an affordable housing application, requires proof of aggrievement. Trimar Equities, LLC v. Planning Zoning Board, 66 Conn.App. 631, 638-39, 785 A.2d 619 (2001). Under § 8-30g, only an affordable housing applicant may initiate an appeal from the decision of a commission. Ensign-Bickford Realty Corp. v. Zoning Commission of Simsbury, 245 Conn. 257, 267, 715 A.2d 701 (1998). It is well established that an owner of property that is the subject of the application is aggrieved. See, e.g., Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
In this case, the parties stipulated, and the court finds proven, that both Landmark and Jarvis are the applicants and currently own the property. Accordingly, the plaintiffs are aggrieved.
2. Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), (f), and (g), an appeal shall be commenced by service of process within fifteen days from the date that the commission's notice of decision is published. It shall be commenced by leaving two copies of the process with the clerk of the municipality. See General Statutes §§ 8-8(f) and 52-57(b)(5). Notice of the Commission's denial of Application II was originally published in the New London Day on January 13, 2005. The plaintiff served the Commission on January 27, by leaving two copies of the appeal papers with Karen M. Galbo, Assistant Town Clerk at the East Lyme Town Hall. (Sheriff's Return.) The appeal was filed with the clerk of the Superior Court at judicial district of New London on February 22, 2005. This appeal, therefore, is timely and the proper parties were served, pursuant to §§ 8-8(e) and 8-30(f).
3. Jurisdictional Challenges
Before turning to the merits of this appeal, it is necessary to address a few preliminary issues that, according to the Commission and the intervenors, implicate the court's subject matter jurisdiction over this appeal and the Commission's authority to consider the application in the first instance.
a. The court has jurisdiction over this affordable housing appeal
Both the Commission and the intervenors claim that this court lacks subject matter jurisdiction over this appeal because the Commission lacked jurisdiction over the application filed by the plaintiffs in this appeal. This assertion is without merit.
The fundamental problem with the claim is that it improperly confounds the issue of this court's jurisdiction with the issue of the Commission's jurisdiction. This court's jurisdiction is derived from the Affordable Housing Land Use Appeal Statute, General Statutes § 8-30g. Subsection (f) of § 8-30g grants the Superior Court jurisdiction to review decisions of municipal agencies regarding affordable housing applications. An affordable housing application is defined as "any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing." General Statutes § 8-30g(2).
In this case, the Commission plainly denied an application made to it to develop land in East Lyme as affordable housing. In fact, the decision issued by the Commission by its own terms recognizes that Landmark and Jarvis filed an affordable housing application for permission to develop affordable housing. Although the Commission and the intervenors may assert that the application filed by the plaintiffs did not comply with certain filing requirements, and thus did not properly invoke the jurisdiction of the Commission, the fundamental and undeniable fact is that Landmark and Jarvis filed an affordable housing application with the Commission. When the Commission denied that application, Landmark and Jarvis properly exercised their statutory right to seek judicial review from this court.
Accordingly, this court has subject matter jurisdiction to decide the issues in this appeal, including, but not limited to, whether the Commission had jurisdiction over the application filed by Landmark and Jarvis. As courts have often noted, an appellate tribunal has jurisdiction to decide whether the lower court or agency had jurisdiction to hear the case. See, e.g., Long v. Zoning Commission, 133 Conn. 248, 249, 50 A.2d 172 (1946); Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-36, n. 22, 911 A.2d 712 (2006).
b. The Commission had jurisdiction to consider the application filed by Landmark and Jarvis
The Commission and the intervenors assert that the Commission lacked jurisdiction to consider Application II because it was not accompanied by, or "tethered to," an application for a (1) site plan, (2) special permit, (3) change in zone, or (4) text amendment. The Commission contends that because its jurisdiction is limited to considering only those specific types of applications, it could not consider the stand-alone affordable housing application filed by the plaintiffs. This claim is without merit.
First, it is critical to recognize that affordable housing applications made pursuant to § 8-30g are not made under the traditional land use statutory scheme. Wisniowski v. Planning Commission, 37 Conn.App. 303, 317, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995). A commission cannot deny an affordable housing application simply because the application does not conform to zoning regulations or that the development proposed violates the existing zoning scheme within the municipality. Id., 314.
In Wisniowski, the Appellate Court recognized, in essence, that affordable housing applications are sui generis, and that whenever an affordable housing application seeks approval of a development that is not permitted by existing zoning regulations "a zone change will necessarily be embodied in the application, either as to use or as to bulk . . . If no zone change were involved, there would be no need for an application for affordable housing . . . No formal zone change application is needed because the act is designed to allow circumvention of the usual exhaustion of zoning remedies and to provide prompt judicial review of a denial for an application." (Citation omitted.) Id.
In light of the Appellate Court's decision in Wisniowski and the fact that the applicants had proposed an affordable housing development that did not conform to East Lyme's existing zoning scheme, it is not surprising that the applicants chose not to file a site plan or special permit application. A site plan is a plan filed with a zoning commission to establish that the proposed use or development conforms to the municipality's zoning regulations. Connecticut Resources Recovery Authority v. Planning Zoning Commission, 46 Conn.App. 566, 570, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997). Simply put, the applicants' proposed development did not conform to existing zoning regulations. Therefore, a site plan application would not have been appropriate.
A site plan has been further described as "a physical plan showing the layout and design of a proposed use, including structures, parking areas and open space and their relation to adjacent uses and roads, and containing the information required by the zoning regulations for that use." Connecticut Resources Recovery Authority v. Planning Zoning Com'n, supra, 46 Conn.App. 566, 570.
Similarly, "the basic rationale for the special permit is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated . . ." Irwin v. Planning and Zoning Commission, 244 Conn. 619, 626, 711 A.2d 675 (1988). The activities and the uses proposed for the site were not among the special permit uses allowed by East Lyme's zoning regulations. Consequently, an application for a special permit would not have been appropriate.
In reality, the application filed by the plaintiffs was an affordable housing application permitted by § 8-30g. Moreover, as Wisniowski suggests, the affordable housing application also contained an implicit request for a zone change as to use. Indeed, the Commission's decision approached the application precisely that way by treating it as both a stand-alone affordable housing application and an implicit request for a zone change. Although the Commission cannot by its actions confer subject matter jurisdiction on itself, its own treatment of the application speaks volumes regarding the proper characterization of the application. Accordingly, the Court finds that the Commission had subject matter jurisdiction over the application.
c. The applicants' alleged failure to file a § 8-3(a) notice with the Town Clerk did not deprive the Commission of jurisdiction
The final attack on the Commission's jurisdiction is made by the intervenors alone. They contend that the applicants were obligated, pursuant to General Statutes § 8-3(a), to file with the Town Clerk a legal description of the land and related boundaries that is the subject of the application at least ten days prior to the commencement of the Commission's public hearing in this case. The applicant's failure to do so, the intervenors contend, deprived the Commission of jurisdiction to consider the application. The intervenors cannot prevail on this claim.
The Commission does not agree with the intervenors' claim.
The intervenors again improperly confound this court's subject matter jurisdiction with the subject matter jurisdiction of the Commission. The court, therefore, treats this claim solely as an attack on the Commission's jurisdiction.
The intervenors did not raise this issue before the Commission. Their failure to do so, however, by itself, is not fatal. City of Bridgeport v. Plan and Zoning Commission, 277 Conn. 268, 275, 890 A.2d 540 (2006).
Instead, the intervenors raise the claim for the first time in this court. The record did not contain any evidence of the applicants' compliance or lack of compliance with § 8-3(a). The intervenors therefore moved to present evidence to this court, pursuant to General Statutes § 4-183(i), regarding the issue of § 8-3(a) compliance. The court denied the motion. In addressing the intervenors' claim, however, the court will assume, without finding, that the applicants did not file a legal description of the land and related boundaries with the Town Clerk.
The record in this appeal does indicate that the application filed by Landmark and Jarvis was filed with the Town Clerk at least ten days before the public hearings commenced on the application. The application included an overall site plan (Drawing No. 0-1) as well as property boundary maps (B-1, B-2, and B-3). Although these plans and maps may or may not comply with the requirements of § 8-3(a); see City of Bridgeport v. Plan and Zoning Comm'n, supra, 277 Conn. 276-80; the public had actual notice of the property that is the subject of the application.
The flaw in the intervenors' claim is that § 8-3(a) applies to applications for zone change. See City of Bridgeport v. Plan and Zoning Commission, supra, 277 Conn. 276. The application here was an affordable housing application pursuant to § 8-30g. Although that application, if granted, may implicitly result in a zone change (at least as to use); see Wisniowski v. Planning Commission, supra, 37 Conn.App. 314; an affordable housing application may be a stand-alone application. "[N]o formal zone change application is needed because [§ 8-30g] is designed to allow circumvention of the usual exhaustion of zoning remedies." Id., 315. Because the application in this case was not, in a strict sense, a zone change application, the requirements of § 8-3(a) did not apply. Accordingly, any failure of the applicants to file a legal description of the property with the Town Clerk did not deprive the Commission of jurisdiction.
4. Res Judicata and Collateral Estoppel Do Not Bar Judicial Review of the Application
Having addressed the challenges to subject matter jurisdiction of the court and the Commission, the court next turns to a special defense raised by the Commission. The Commission contends that the doctrines of res judicata and collateral estoppel bar judicial review of the Commission's decision to deny the affordable housing application. Specifically, the Commission contends that all of the issues in this appeal were fairly and fully litigated before Judge Quinn. In the Commission's view, Judge Quinn's 2004 decision upholding the Commission's denial of the zone change and text amendment application (Application I) prevents further judicial review of the Commission's subsequent decision denying Application II. The Commission cannot prevail on this claim.
First, it is firmly established that the denial of one application by a zoning commission does not necessarily bar a party from filing a second, but related, application regarding the same property. See, e.g., Vine v. Zoning Board of Appeals, 102 Conn.App. 863, 869-70, 927 A.2d 958 (2007). "When a party files successive applications for the same property, a court makes two inquiries. The first is to determine whether the two applications seek the same relief. The zoning board determines that question in the first instance, and its decision may be overturned only if it has abused its discretion . . . If the applications are essentially the same, the second inquiry is whether there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided . . . For an appellate court, the only question is whether the trial court's finding as to the zoning board's decision is clearly erroneous." (Citations omitted; internal quotation marks omitted.) Id., 869-70.
In this case, the Commission appears to have concluded that the applicants were entitled to a second adjudication regarding the proposed development. Although the Commission took pains to characterize Application II as an application for a zone change and a text amendment (like Application I), it is clear that Application II sought explicit approval of a specific plan of development of affordable housing. Chairman Nickerson of the Commission recognized this reality in stating: "We have to look at this separately. It's a separate application. And this Commission members are different and all that." (Exhibit VIII, p. 46.)
Application I did not seek approval for a specific plan of development. Instead, it sought approval of a zone change and text amendment to the zoning regulations that, if granted, would alter the existing zoning scheme under which a specific affordable housing development could then be proposed. Indeed, if the Commission had granted Application I for a zone change, then Landmark and Jarvis would have been obligated to file a second application that included a site plan showing that the proposed development conformed to the existing regulation, which, at that point, would have included the zone change. Moreover, the Commission itself in its decision treated Application II as containing a request for relief that was not sought in Application I. See Decision of Commission, January 6, 2005, Part C (Exhibit XIV).
Finally, the Connecticut Supreme Court has held that a zoning board "may grant a second application which has been substantially changed in such a manner as to obviate the objections raised against the original application . . ." Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 111, 248 A.2d 922 (1968). It is important to note that Application II included specific proposals that were not contained in Application I. For example, Application II included more detailed proposals for a community-based septic and on-site water system rather than reliance on the extension of Town water and sewers to serve the housing development. Application II provided increased erosion and sedimentation controls. In addition, Application II proposed fewer condominium units than would have been permitted if the Application I for a zone change had been granted. Finally, Application II sought to phase in development of the property at a different rate than was contemplated by Application I. (Exhibit 105.) These changes to the proposed development were at least sufficiently material for the Commission to decide, as it did, that the applicants were entitled to proceed to a public hearing and decision on Application II.
It is true, as discussed later, that the differences in the proposal were not so substantial that the Commission was obligated to grant Application II. Nevertheless, it appears that the Commission viewed the changes as sufficiently material to warrant a second look.
If the Commission believed that the applicants were not entitled to a "second bite at the apple" with respect to the project, the appropriate time to have made such a determination was when it was considering Application II, not on appeal to this court. If that had happened, this court would review that determination under an abuse of discretion standard. Because the Commission did not take that position but instead rendered a decision on an application that seeks different relief and contains material differences from a prior application, Judge Quinn's decision reviewing Application I, does not bar this court from reviewing the Commission's decision regarding Application II. Accordingly, the court concludes that this appeal is not barred by the doctrines of res judicata or collateral estoppel.
On the other hand, it is also true that Judge Quinn's decision's need not be totally disregarded by this court. In reaching her decision, Judge Quinn analyzed a proposal that is quite similar to the present one. For example, Judge Quinn reached certain conclusions regarding the historical efforts to preserve the property as open space. That history has not changed from the time Application I was filed to time Application II was filed. Consequently, although the issues are not necessarily identical for collateral estoppel purposes, much of Judge Quinn's decision remains quite relevant.
B. Discussion 1. Preliminary Considerations a. East Lyme is subject to the provisions of § 8-30g
The affordable housing procedures established by § 8-30g apply only if the property that is the subject of the application is located in a municipality in which less than 10 percent of dwelling units in the municipality meet the statutory criteria as affordable housing. General Statutes § 8-30g(k). The record is clear in this case that East Lyme has an undeniable need for additional affordable housing. Only 4.8 percent of East Lyme's housing stock qualifies as affordable and most of that serves as elderly housing. Accordingly, East Lyme is subject to the procedures of § 8-30g.
2. Standard of Review
Section 8-30g(g) and River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 856 A.2d 973 (2004), set forth the standard for judicial review of an agency's decision regarding an affordable housing application. "The trial court must first determine whether the decision . . . and the reasons cited for such decision are supported by sufficient evidence in the record. General Statutes § 8-30g(g). Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of specific harm to the public interest if the application is granted. If the [c]ourt finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the Commission's decision was necessary to protect substantial interests in health, safety or other matters that the commission may legally consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26. The Commission bears the burden of persuading the trial court to uphold its decision. General Statutes § 8-30g.
The cases make clear that the statute is remedial, and its purpose is to assist property owners in overcoming local zoning regulations that are exclusionary or provide no real opportunity to overcome arbitrary or local limits, and to eliminate unsupported reasons for denial. See West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, CT Page 2040 508-12, 636 A.2d 1342 (1994).
The statute requires the Commission to state its reasons and analysis in a written decision. Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 576, 735 A.2d 231 (1999). The Commission, in its denial resolution and its brief, must discuss, with references to the record, how each of its reasons for denial satisfies the criteria stated in the statute. See Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 729-31.
The statute eliminates the traditional judicial deference to commission factual findings. Regarding the statutory criterion of a "substantial public interest in health or safety," the Commission must identify the type of harm that allegedly will result from approval of the application and the probability of that harm. See Kaufman v. Zoning Commission, 232 Conn. 122, 156, 653 A.2d 798 (1995).
Finally, the statute requires the court to conduct an independent examination of the record and to make its own determination with respect to the second, third, and fourth criteria of subsection (g). See Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 727. It is incumbent upon the Commission to first establish the correctness of its decision. If such a demonstration is made, it is then incumbent upon the court to conduct a plenary review pursuant to the last three prongs of the statute.
3. Review of Commission's Denial of Application II
In this case, the Commission made a number of detailed findings regarding the proposed development that can be summarized as follows: (1) the proposal is incompatible with the local and state plan of development and the preservation of Oswegatchie Hills as open space; (2) the site is unsuitable for high-density multi-family housing because it (a) lacks infrastructure and capacity to provide adequate water and sewer, (b) has poor soil characteristics and (c) no motor vehicle access; (3) the proposal would adversely impact Long Island Sound, the Niantic River and surrounding woodland habitats; (4) the affordable housing units are not comparable to the market-rate units; and (5) the application does not comply with Section 32 of East Lyme's affordable housing regulations because it lacks necessary information required by the regulations.
a. The record establishes that there is more than a mere theoretical possibility of a specific harm to the public interest if the application is granted CT Page 2041 The court first examines "whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of specific harm to the public interest if the application is granted." River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26. In this case, the record establishes beyond reasonable dispute that the plaintiffs seek to develop a piece of property that includes and borders upon natural resources of significant value to both the residents of East Lyme and the State as a whole. The proposed development contemplates the construction of scores of condominium units that are within several hundred feet of the Niantic River. The Niantic River itself is part of the coastal resources of Long Island Sound, which "form an integrated natural estuarine ecosystem which is both unique and fragile." See General Statutes § 22a-91(1). The proposed development also contemplates significant development activity both within and adjacent to a coastal boundary, as defined in General Statutes § 22a-94. In addition, the property borders on Latimers Brook and contains significant areas of wetlands. There is also a long-standing public interest in preserving the Oswegatchie Hills area as open space.There is substantial and significant evidence in the record regarding more than a mere theoretical possibility of specific harm to these interests posed by the proposed development. For example, the record contains evidence that the development, even phased in as proposed in Application II, would cause increased nitrogen loading to the Niantic River thereby adversely and significantly impacting eel grass growth, as well as shellfish and fish habitats. (Exhibit 24.) The record contains substantial evidence that the alterations to the site — including the construction of building structures, access roads, and septic systems — would significantly impact coastal resources, as well as water quality in both the Niantic River and Latimer Brook. The court cannot ignore this evidence or conclude that it raises only a theoretical possibility of harm. Finally, it is clear that the proposed development would severely impact the public interest in preserving this unique and important property as open space. Accordingly, the court concludes that the record establishes more than a theoretical possibility, but not necessarily a likelihood, of specific harm to the public interest if Application II is granted.
b. The reasons set forth by the Commission in denying Application II are legally and factually adequate
The court now must fully review the record and determine independently whether the Commission's decision was necessary to protect substantial interests in health, safety or other matters that the Commission legally may consider. Accordingly, the court turns to the specific reasons given by the Commission in its denial of Application II.
( i) Preservation of the property as open space
The first reason provided by the Commission was the significant public interest in preserving the property as open space. Judge Quinn addressed this issue at some length in her decision upholding the denial of Application I: "The [C]ommission concluded that the proposal was incompatible with the local and state plans of development for the area, which all sought to preserve and protect Oswegatchie Hills as open space. The record reflects a long history of efforts to preserve this area for such purposes beginning with the preparation of the comprehensive plan for the town in 1967. Some years later, in 1974, the Conservation Commission along with the Southeastern Connecticut Regional Planning Agency developed an open space acquisition plan including this area. In a 1977 report by the town's Land Use and Natural Resources Subcommittee of the Planning Commission, the committee recommended that this area should be purchased outright by the Town or protected by easement against development. In 1987, the first selectman sought assistance from local state representatives to secure legislation and/or appropriations to preserve the areas. East Lyme's 1987 revision to its plan of development again lists the area as a target for preservation. The State legislature in 1987 designated the area as a `Conservation Zone' and established the Niantic River Gateway Commission, which has as its purpose development of minimum standards to preserve the character of the area.
"In 1990, the area was rezoned for lower density as a rural residential (RU-120) zone, requiring a three-acre minimum lot size. As true today as it was at that time, the first selectman wrote: `If ever there was a place that nature never intended to be developed, the east slope of the Oswegatchie Hills is that place. Nowhere else is the land less suitable for construction, the natural resources on and adjacent to the land more susceptible to damage, and the public benefits to be gained from preservation greater.' Efforts to later change the zoning to require five-acre building lots failed, after a court determination that there was improper publication of the effective date of the zone change. Wilson v. Zoning Commission, 77 Conn.App 525, 823 A.2d 405 (2003).
"In addition to local preservation efforts, there was also substantial evidence that the application was inconsistent with state and regional plans of development. The [Department of Environmental Protection] reported that the application was inconsistent with the Coastal Management Act, the Municipal Coastal Program and the Harbor Management Plan as well as with the Town of East Lyme Plan of Development. The Southeastern Connecticut Council of Governments stated that the zone change was inconsistent with the regional plan of conservation and development of 1997, which had classified the areas for low-density development and conservation. Area residents were opposed, with over 1700 signatures collected on various petitions to preserve the Oswegatchie Hills area." Landmark Development v. East Lyme Zoning Commission, supra, Superior Court, Docket No. CV 02 0520497.
In addition to the facts marshaled by Judge Quinn, the record in the present appeal contains evidence that demonstrates ongoing preservation efforts. For example, at the municipal level, the August 5, 2004, Planning Commission Report concluded that the proposed development continued to be inconsistent with the Plan of Conservation and Development. (R105 and Exhibit 21.) At the State level, the 2004-2009 Recommended Conservation and Development Plan issued by the Intergovernmental Policy Division of the Office of Policy and Management concluded that the Oswegatchie Hill's area should be redesignated as a Conservation Area that would correspond and supplement the Niantic River Gateway Commission's Conservation Area (in which a large portion of the applicants' property already falls). (R31.)
The applicants contend, as they did in the prior appeal, that despite the availability of a one million dollar grant in state aid in 1987, the Town has never seen fit to acquire the land for preservation. In the applicants' view, the Town has instead attempted to so heavily regulate the property that it can achieve preservation of the land as open space without having to incur the costs to acquire it.
The court does not share the applicants' view for several reasons. First, there is no evidence in the record that this state financial assistance alone would have been sufficient to purchase the property, which undoubtedly remains highly valuable even if it can only be developed at a lower density than that proposed by the applicants here. Second, the applicants are, in essence, trying to morph a regulatory takings claim into an assertion that they are entitled, as a matter of law, to approval of this specific project.
Moreover, as Judge Quinn concluded, the "lengthy history of preservation efforts alone make it apparent that the area has been under consideration for conservation due to its unique features for a long time. In addition, it is precisely some of the site's unique features, its fragile soils and rocky slopes as well as any development's impact upon the water resources which make it physically less suitable for dense development than other areas of the town." Landmark Development v. East Lyme Zoning Commission, supra, Superior Court, Docket No. CV 02 0520497. Although the Town may not have been able to muster the financial resources to acquire the property itself either through purchase or condemnation, that fact alone does not convert this unique and fragile property into an appropriate location for the type of high density development proposed by the applicants.
In Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 597, 735 A.2d 231 (1999), the Connecticut Supreme Court found that preservation of open space can, in the appropriate circumstance, constitute a substantial public interest that may outweigh the public interest in the creation of public housing. As with the conclusion in Christian Activities Council with respect to the property in that case, the court here concludes that State and Town interests in preserving Oswegatchie Hill, or significant portions thereof, has been more than an idle or passing thought.
Finally, the applicants claim that its proposal to set aside approximately 20 percent of the property as open space would be a site-specific modification that is adequate to address and protect the public interests in open space. The court concludes, and the record supports, that this modification, which lacks any specifics in the record, is far from adequate to accommodate the very compelling public interest in preserving the property as open space. A 20 percent set-aside does not ameliorate the high density development of 80 percent of the property, nor adequately ensure the benefits from preservation and recreational that flow to the public if the property, or large portions thereof, are maintained as open space.
See, e.g., ROR 104.
At oral argument, counsel for the applicants could not specify the manner in which 20 percent of the property would be preserved or how the public might have access to those portions of the property.
As a result, the court finds that the Commission has sustained its burden of proof that there are no modifications to this site-specific application (with the general density of development it proposes), that could accommodate the public interest in open space. The record supports the Commission's finding that the public interest in preserving the area as potential future open space outweighs the public interest in affordable housing, given the unique nature of the site.
( ii) The development is inconsistent with the policies and criteria of the Coastal Management Act
There is no dispute by the parties in this case, and the record is clear, that a significant portion of the property the applicants seek to develop lies within a coastal boundary. See General Statutes § 22a-94(b). In fact, the coastal boundary extends far beyond the 100-foot setbacks proposed by the applicants. Consequently, this appeal raises an important question regarding the applicability of the Coastal Management Act (the "CMA"), General Statutes §§ 22a-90 through 22a-212, and its relationship to the affordable housing statute. The court is not aware of any decisions addressing the interplay between the affordable housing statute and the CMA. In fact, the attorney for the applicants, who has extensive experience in zoning cases, stated at oral argument that he is unaware of any instance in which an affordable housing application has been filed regarding property that falls, at least in part, within a coastal boundary.
In enacting the CMA, the General Assembly made a series of legislative findings that indicate a significant public policy in preserving and protecting the waters of Long Island Sound and its coastal resources. General Statutes § 22a-91. These finding include:
(1) The waters of Long Island Sound and its coastal resources, including tidal rivers, streams and creeks, wetland and marshes, intertidal mudflats, beaches and dunes, bluffs and headlands, islands, rocky shorefronts and adjacent shorelands form an integrated natural estuarine ecosystem which is both unique and fragile.
(2) Development of Connecticut's coastal area has been extensive and has had a significant impact on Long Island Sound and its coastal resources.
(3) The coastal area represents an asset of great present and potential value to the economic well-being of the state, and there is a state interest in the effective management, beneficial use, protection and development of the coastal area . . .
(5) The coastal area is rich in a variety of natural, economic, recreational, cultural and aesthetic resources, but the full realization of their value can be achieved only by encouraging further development in suitable areas and by protecting those areas unsuited to development.
CT Page 2046
(6) The key to improved public management of Connecticut's coastal area is coordination at all levels of government and consideration by municipalities of the impact of development on coastal resources . . . when preparing plans and regulations and reviewing municipal and private development proposals.
(7) Unplanned population growth and economic development in the coastal area have caused the loss of living marine resources, wildlife and nutrient-rich areas, have endangered other vital ecological systems and scarce resources.
(Emphasis added.) General Statutes § 22a-91.
In light of these findings, it is a stated public policy:
"(1) To insure that the development, preservation or use of the land and water resources of the coastal area proceeds in a manner consistent with the capability of the land and water resources to support development, preservation or use without significantly disrupting the natural environment or sound economic growth.
(2) To preserve and enhance coastal resources . . .
(3) To coordinate the activities of public agencies to insure that state expenditures enhance development while affording maximum protection to natural coastal resources and processes in a manner consistent with the state plan for conservation and development adopted pursuant to part I of chapter 297.
General Statutes § 22a-92.
The CMA expresses a strong preference for enhancing economic development and activities that are dependent upon proximity to the water and/or shorelands that are immediately adjacent to marine and tidal waters, while prohibiting or minimizing activities that are not marine dependent, particularly those that will adversely impact these fragile natural resources.
Against the backdrop of these legislative findings, goals and policies, the General Assembly has mandated that municipalities specifically review zoning regulations, and changes thereto, that affect areas within the coastal boundary; see General Statutes § 22a-104(e); as well as site plans, plans and applications for activities and projects to be located fully or partially within the coastal boundary; see General Statutes § 22a-105; for compliance and consistency with certain provisions of the CMA. As a preliminary matter, the Commission and the intervenors appear to argue that the applicants were obligated to file a separate coastal site plan application along with their affordable housing application. The applicants argue that no separate coastal site plan application was necessary, but concede that the Commission was obligated to review their application for compliance with the CMA, at least for those portions of the property that fall within the coastal boundary. Specifically, the applicants contend that a separate coastal site plan application was not required because an affordable housing application is not within the enumerated list of proceedings in § 22a-105(b) that trigger coastal site plan review.
Section § 22a-105(b) provides in relevant part: "The following site plans and applications for activity or projects to be located fully or partially within the coastal boundary . . . shall be defined as `coastal site plans' and shall be subject to the requirements of this chapter: (1) site plans submitted to a zoning commission in accordance with section 22a-109; (2) plans submitted to a planning commission for subdivision or resubdivision in accordance with section 8-25 or with any special act; (3) applications for a special exception or special permit submitted to a planning commission, zoning commission or zoning board of appeals in accordance with section 8-2 or with any special act; (4) applications for a variance submitted to a zoning board of appeals in accordance with subdivision (3) of section 8-6 or with any special act, and (5) a referral of a proposed municipal project to a planning commission in accordance with section 8-24 or with any special act."
This court concludes that the applicants were not obligated to file a separate coastal site plan application in addition to the affordable housing application, but that the affordable housing application must contain sufficient information for the zoning authority to evaluate the development's compliance with the CMA. In Fort Trumbull Conservancy v. Planning and Zoning Commission, 266 Conn. 338, 348-60, 832 A.2d 611 (2003), the Connecticut Supreme Court addressed a similar question in deciding whether an application pursuant to General Statutes § 8-24 for approval of certain municipal improvements required a separate coastal site plan application if the property falls within a costal boundary. The Supreme Court concluded that no separate site plan application was required. "[A] coastal site plan review under the act is to be conducted as part of the planning and zoning applications . . . and not as a separate application or proceeding . . . The act envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management." (Internal quotation marks omitted.) Fort Trumbull Conservancy v. Planning and Zoning Commission, 266 Conn. 538-39.
It is true that affordable housing applications are not among the zoning commission proceedings that are explicitly denominated in § 22a-105(b) as requiring coastal site plan approval. As discussed at length above, an affordable housing application seeking approval of a specific plan of development may not fall squarely within the traditional proceedings that are conducted by zoning commissions, particularly if the proposal does not conform to existing zoning regulations. See Wisniowski v. Planning Commission, supra, 37 Conn.App. 317. On the other hand, an affordable housing application will usually contain an implicit request for a zone change as to use, thereby implicating § 22a-104(e), which requires that the zoning agency consider the criteria and policies of the CMA in its decision. In any event, given the critical public policies outlined by the CMA, it is inconceivable that the legislature would have intended that affordable housing projects be exempt from coastal site plan review, particularly since such affordable housing projects typically propose high-density development with the attendant environmental risks that such development entails.
In its brief, the Commission contends that the applicants did not submit sufficient information to decide whether the project was consistent with the policies and criteria of the CMA. See General Statutes §§ 22a-92 and 22a-102. Nevertheless, the Commission, as required by statute, notified the Department of Environmental Protection (the "DEP"), which made comments critical of the application. Despite the Commission's concern about the lack of information submitted by the applicants, the Commission ultimately concluded that the proposed development was inconsistent with the CMA. Accordingly, the court finds that the Commission had sufficient information to conduct the review required by the CMA.
The Commission also contends that the more deferential standard of review that applies in affordable housing appeals should not apply when reviewing the Commission's determinations regarding whether the proposed development is consistent with the criteria and policies of the CMA. The court concludes that it is not necessary to reach this issue because even under the more rigorous standard of review required by § 8-30g the Commission's CMA analysis must be upheld.
The Commission made specific findings, with citations to the record, regarding the manner in which the proposed development was inconsistent with the policies and criteria of the CMA. First, the Commission noted that many of the development's physical characteristics would adversely impact coastal resources if the property was developed at the high-density rate proposed by the applicants. These characteristics included the site's steep slopes and bedrock soils in close proximity to the Niantic River; the necessity for clear cutting and blasting on the site; erosion and groundwater run-off into the Niantic River; and the fragile nature of many of the coastal resources and habitats within the coastal boundary. In addition, the Commission found that the proposed development did not adequately provide for future water-dependent uses and access for the public to future water dependent uses. Finally, it is obvious that a condominium development is not itself a water dependent use and is therefore not the type of development activity encouraged by the CMA.
These conclusions find substantial support in the record. The Commission considered extensive evidence from a variety of sources that support its findings regarding the steep topography of the land, the extensive bedrock at the site, the poor soil conditions, the likelihood of increased nitrogen loading to the Niantic River, the detrimental effect of high density development to shellfish habitats, and other adverse effects to coastal resources. The sources of this information included the Town's Planning Commission, a marine scientist, the Waterford\East Lyme Shellfish Commission, a biology professor from Connecticut College, and interested citizens.
The applicants attack some of these evidentiary foundations by arguing that it presented contrary or better evidence. For example, the applicants contend that the only evidentiary basis for the conclusion regarding inadequate soils at the site is a county soil survey, which is not reliable evidence upon which the Commission could reasonably rely. This assertion is incorrect both legally and factually. First, evidence regarding the types of soils at the site came from a variety of sources, not just the county soil survey itself. The record is replete with information referring to the extensive presence of bedrock over significant portions of the site. This information was submitted by individuals, including those with expertise, who had performed field visits and actually walked the site. By way of example only, the DEP performed a field visit that revealed that throughout the property there was "till soils . . . with very shallow depth to bedrock and exposed bedrock." In addition, a hydrogeologist hired by the Commission to review the proposal walked the site and noted that exposed bedrock was much more prevalent at the site than was reflected in the applicants' conceptual site plan. Although the applicants may have submitted evidence that it believes would support a contrary conclusion, the Commission can consider all of the reliable evidence in the record regarding the topography and soil types at the site. The issue for this court is whether there is substantial evidence in the record to support the conclusion that the Commission reached, not whether the applicants submitted any evidence to the contrary.
Engaging in the coordination between public agencies required by the CMA, the DEP extensively reviewed the proposal and its submissions to the Commission are of particular note. In a letter to the Commission, dated August 24, 2004, the DEP concluded that the proposed development is "inconsistent with the policies and standards of the [CMA] based upon severe development constraints at the site, the proposal's unacceptable adverse impacts to water quality and coastal resources, as well as inconsistency with . . . the Town's Plan of Development, Municipal Coastal Program and Harbor Management Plan." The DEP also found that any reduction in "overall potential density" that had been proposed in Application II "will not significantly alleviate any of the potential adverse impacts to coastal resources, water quality, submerged aquatic vegetation, finfish, shellfish and wildlife on the Oswegatchie Hills site . . . and in the Niantic River and Latimer Brook."
The DEP concluded that there would be "significant environmental consequences." The shallow depth to bedrock and steep slopes "would mandate significant alterations of the site to provide suitable land for road access, septic systems or water and sewer service and inhabited structures. Such alteration of this natural area and associated runoff would significantly impact coastal resources and water quality along the river . . . [and] cause sedimentation and erosion, nitrogen loading and impacts on submerged aquatic vegetation, finfish, shellfish and wildlife on the site and in the Niantic River and Latimer Brook."
The DEP also noted that the 100-foot set back proposed in Application II would not ameliorate the significant environmental consequences of the development, in part because the setback applies only to residential units and does not include restrictions on clear cutting or other ground disturbances.
At the conclusion of its analysis, the DEP indicated that the information submitted by the applicants was incomplete at best. The DEP, however, provided an opportunity for the applicants to provide additional information about the proposal and to address its stated concerns. The DEP then met with the applicants and received additional information for its consideration.
The applicants, however, were unable to change the DEP's position regarding the proposal and its inconsistency with the policies and criteria of the CMA. In a letter to the Commission dated September 29, 2004, the DEP indicated that the additional submissions were both incomplete and inadequate, and had done little to change the DEP's strongly held view that Application II is inconsistent with the CMA.
Stymied by the strength of this evidence and the DEP's strong opposition to the proposed development, the applicants argue that the DEP's submission is unreliable because the author of these letters did not personally appear at the public hearings. The applicants, however, did not take any steps to compel any DEP representative to appear at the hearing despite knowing that the letters had been admitted into the record and were quite damaging to its chances of receiving approval. See Timber Trails v. Planning and Zoning Commission, 99 Conn.App. 768, 780-81, 916 A.2d 99 (2007).
The applicants conceded at oral argument to this court that the Commission could properly rely on this evidence, yet argue that the evidence should be entitled to little weight in this court's plenary review of the record. The court disagrees. If the applicants had wished to undermine the credentials of DEP employees, or the strength of the DEP's technical analysis of the proposal, they could have compelled DEP representatives to attend in order to cross-examine them on the relevant issues. This court can only infer that such testimony would not have been significantly helpful — and might even have been damaging — to the applicants' chances of success.
The court therefore concludes that there is substantial evidence in the record that the proposal is inconsistent with the criteria and policies of the CMA. The court also concludes that the applicants have received numerous opportunities to make site-specific modifications to the proposed development to address its lack of compliance with the CMA. It is clear to this court that such modifications are not possible in light of the specific nature of the site and the high-density development which is at the heart of the application. Finally, the court concludes, and the record supports, that the public interest in protecting the unique nature of the site, including, but not limited to, those portions within the coastal boundary, outweighs the public interest in affordable housing.
( iii) The unavailability of water and sewer at the site
The court next reviews the Commission's conclusion that denial of the application was warranted in light of the unavailability of water and sewer to service to the development at the high-density rates proposed by the plaintiffs. The court finds that the application was properly denied on this basis. The applicants do not appear to dispute that a commission may properly reject an affordable housing application if the development proposed will have inadequate water and sewer facilities to serve the development. Obviously, there is a substantial and compelling public health and environmental interest in ensuring that a large, high-density development such as the one proposed here has adequate water and sewer services. Courts that have addressed this issue are in agreement with this fundamental fact. See, e.g., Greene v. Ridgefield Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 90 0442131 (Jan. 6, 1993, Berger, J.) [8 Conn. L. Rptr. 137]; D'Amato v. Orange Planning and Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 92 0506426 S (Feb. 5, 1993, Berger, J.) [10 Conn. L. Rptr. 444]; Halter Estates Senior Community, LLC v. Bethany Planning and Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 06 4010191S (May 3, 2007, Schuman, J.).
At the outset, it is important to note that Judge Quinn thoroughly reviewed the adequacy of the sewer and water services in upholding the denial of Application I. Judge Quinn's thorough analysis of the issue bears repeating: "The first application filed by Landmark proposed that the development would be served by municipal sewer and water. The Commission found that the site lacked the infrastructure to provide such water supply and sewer capacity. The director of Public Works reported that the availability of such services was restricted. First, the town system did not extend to the site. Second, the town is under a consent order issued by the State Department of Environmental Protection that prevents extension of the water service area. While the town may submit a written request for extension, it must await the Commissioner's written decision prior to enacting any additional ordinances. In addition, when the town identified what areas of the town were to be sewered in 1985, this area was not in the sewer-shed boundary. In 1998, when the town prepared a capacity analysis of its system, it determined that all capacity was accounted for and any expansion would require no services to areas to which sewers were now committed. And although Landmark stated it could connect to the Boston Post Road extension, the Chairman of the Water and Sewer Commission testified that this was not correct. There is substantial evidence in the record that municipal water and sewer service will not be extended to the property.
"The commission determined that since such services were not available, this militated against the proposed zone change and the density of development the application envisioned. Indeed, in the town plan of conservation and development of 1999, a stated objective is that the town `should continue to provide for multi-family housing . . . to meet a portion of the regional need for a variety of housing types available at affordable cost.' It recommends that housing sites to be considered should generally be `free of major site development constraints such as wetlands, bedrock, steep slopes and primary aquifers and within the boundaries of or readily connected to the municipal water and sewer service area.' Such site development constraints, the court concludes, with the exception of primary aquifers, are all present in the land that is the subject of this affordable housing application. Such development would be contrary to the town plan, as noted by the supervisory sanitary engineer for the water management bureau of the Department of Environmental Protection.
"In its modified application, Landmark in the alternative, proposed on-site water supply wells and sewer. The commission found that such systems are rarely allowed by the State Health Department or the Department of Environmental Protection, and only when there is clear evidence that such systems can be supported by the site and function properly . . ." Landmark Development v. East Lyme Zoning Commission, supra, Superior Court, Docket No. CV 02 0520497.
With a few minor exceptions, the applicants have not modified the proposal that Judge Quinn reviewed, as it relates to the provision of water and sewer services. Instead, the applicants argue that Judge Quinn's conclusions regarding this issue are fatally flawed because she relied upon two incorrect premises: (1) that the Town's sewer shed does not extend to the property; and (2) the DEP rarely gives out permits for community septic systems. The applicants contend that the record with regard to Application II establishes that both of these facts are not true and, therefore, the Commission's decision to deny the application on the basis of the unavailability of water and sewer at the site must be overturned.
Although the court agrees that the record here demonstrates that a portion of the property may be within the sewer shed, that fact alone does not undermine either Judge Quinn's decision or the Commission's decision regarding Application II. The Commission thoroughly re-reviewed the question of the availability of municipal water and sewer at the site, including a consideration that a portion of the property falls within the sewer shed.
With respect to the issue of water service, the Commission considered the conclusions from the Director of Public Works that "[w]ater from the East Lyme system is not available to serve the site as proposed." (Exhibit 59, 114.) The Commission also considered information that any additional purchases of water from New London were already allocated to an existing neighborhood not far from the applicants' property. (Exhibit 59, 114.) The site also did not front on any existing water main and there is no existing infrastructure available to supply the site. Thus, the Commission properly concluded that the development would still lack appropriate access to available municipal water services.
The Commission considered similar evidence regarding the availability of municipal sewer services at the site. First, the Commission heard evidence that while a portion of the property may be within the sewer shed, the majority of the property is not. Even with respect to the portion of the property that falls within the sewer shed, the provision of municipal sewer was problematic because the Town's Facilities Plan designated that any sewerage from this area flow eastward to Waterford. The amount of sewerage that Waterford would accept is limited and already allocated to existing homes. Moreover, there was no sewer infrastructure available to the portion of the property within the sewer shed and the Town was not legally obligated to extend the sewer and necessary infrastructure to the applicants' property. See Avalon Bay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 43-32, 853 A.2d 497 (2004).
Importantly, the DEP was of the view that "the extension of sewers into [areas of the applicants' property not within the sewer shed] to foster new development would likely be disapproved by [the] DEP, because such an extension would conflict with the state's Plan of Conservation and Development . . ." These facts, along with the fundamental reality that the majority of the property is not within the sewer shed, makes it significantly unlikely that municipal sewer services could ever adequately serve the property, particularly at the density proposed by the applicants.
The court now turns to the applicants' claim that on-site wells and a community septic system would be adequate to serve the site. Specifically, the applicants contend that Judge Quinn's decision is incorrect because she was under the misapprehension that the DEP rarely issues permits for community septic systems. Instead, the applicants argue, onsite wells and a community septic system are feasible and that the Commission should grant the application and condition the grant on obtaining the necessary regulatory approvals for on-site wells and a community septic system. The applicants cannot prevail on this claim.
There is substantial evidence in the record demonstrating that it is highly unlikely that the applicants could obtain appropriate regulatory approvals for a community septic system. In addition, to the evidence discussed above regarding the soil types and steep slopes on the site, the Commission heard testimony specifically describing how these site characteristics would negatively affect and limit the potential for on-site waste water disposal. Installation of a community septic system would require blasting of bedrock that would in turn result in groundwater contamination. Groundwater contamination in turn would increase the potential for cross-contamination of on-site wells. A hydrogeologist explained that fractures in the bedrock, and the directions in which they run on the site, "could result in partially treated effluent with pathogenic bacteria getting into the fractures and contaminating either the on-site wells or offsite wells to the north." (Exhibit X, p. 136.)
Approval by both the DEP and the Department of Public Health is necessary for a community septic system. In this case, there is substantial evidence that the DEP was highly unlikely to give the necessary approval. The DEP, in repeated correspondence with both the Commission and the applicants, expressed its concerns that major site development constraints exist at the site. Although the DEP repeatedly asked the applicants for additional information on this issue, there is nothing in the record to indicate that anything submitted by the applicants was sufficient to change the DEP's views on this subject, particularly in light of the fact that a portion of the property was within the coastal management zone. In fact, the DEP informed the applicant that it still had not provided the additional information sought, and that, in any event, the DEP did not "anticipate our overall comments and recommendations to the Commission to change given the overall site plan remains the same."
The applicants rely heavily on a statement in the record made by a DEP representative that "it is most likely that the proposed community system will require a lateral sand filter and a wastewater treatment plant to meet the Department's criteria for large scale on-site waste water systems." The applicants in their brief contend that this statement "can be reasonably regarded only as indication that on-site water disposal was possible, not impossible."
The court does not agree with the applicants' characterization of this statement. Taken in context, it is clear that DEP was trying to communicate to the applicant that the site plans it had reviewed depict only a more conventional septic system, which obviously was not adequate in light of the site's characteristics. Although the DEP did not and could not take the position that it would refuse to consider a significantly redesigned proposal, there is nothing in these statements that undermined the Commission's conclusion, based upon the extensive evidence in the record, that an on-site community septic system was extremely problematic, at best. (Exhibit 119.)
It is true that while the applicants have presented some evidence to dispute the conclusions of the Commission regarding Application II, as Judge Quinn correctly noted in reviewing Application I, the key question is whether there is substantial evidence in the record supporting the Commission's decision. As noted in Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993), "the possibility of deriving two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Just as Judge Quinn concluded that there was substantial evidence in the record to support the Commission's decision regarding Application I, this court concludes that the record regarding Application II supports the Commission's conclusion. The court also concludes that the public's interest in ensuring the adequate provision of water and sewer services in this instance clearly outweighs the need for affordable housing. Again, because of the site-specific nature of the application, there were no specific modifications that could be made to accommodate these public interests and provide affordable housing at this site.
III. CONCLUSION
In Mackowski v. Planning Zoning Commission, 59 Conn.App 608, 757 A.2d 1162 (2000), citing West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 513, the Appellate Court stated that an agency's decision in "an affordable housing land use appeal, as in a traditional zoning appeal . . . must be sustained if even one of the stated reasons is sufficient to support it." (Emphasis added.) As discussed above, the Commission properly denied Application II with respect to at least three reasons. It is therefore unnecessary to reach the remaining issue. The plaintiffs' appeal is therefore dismissed.
Judgment shall enter accordingly.