131 BEACH ROAD, LLC v. TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF FAIRFIELD
SC 20808, SC 20810, SC 20811
Supreme Court of Connecticut
July 11, 2024
Robinson, C. J., and McDonald, D‘Auria, Mullins, Ecker, Dannehy and Clark, Js.
ALDEN H. STEVENS ET AL. v. TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF FAIRFIELD
****************************************************************
The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
****************************************************************
Syllabus
Pursuant to statute (
Pursuant further to statute (
The plaintiff, which owned real property in the town of Fairfield, filed an application with the defendant town plan and zoning commission, seeking a text amendment to the town‘s zoning regulations, as well as the approval of a site plan and the issuance of a certificate of zoning compliance, in connection with the plaintiff‘s plan to build an affordable housing development on its property. The proposed development consisted of a forty unit, five story building that had a maximum height of sixty feet. The plaintiff‘s property, however, was located in the town‘s residence A zone district, wherein permissible uses were limited to single family dwellings that have a maximum height of two and one-half stories or thirty-two feet. Following a public hearing, the commission denied the plaintiff‘s request for a text amendment to the zoning regulations, which would have created a new permissible use for affordable housing within the residence A zone district, but conditionally approved the plaintiff‘s request for a site plan and certificate of zoning compliance, provided that the plaintiff, inter alia, reduced the height of the proposed building to no more than three stories, with a maximum height of forty feet. The commission explained that its reason for imposing the height condition was that the building, as proposed by the plaintiff, would be visible from one of the town‘s historic districts, that such visibility would vitiate the integrity of the historic district, and that preserving the historic district was a substantial public interest that the commission could legally consider under
- The trial court correctly concluded that the commission had improperly imposed a height condition on its approval of the plaintiff‘s site plan and certificate of zoning compliance:
The town and the intervenors claimed that the adverse visual impact of the proposed development in the residence A zone district on the neighboring historic district was sufficient to override the need for public housing in the town, and, although this court agreed that historic preservation is among the panoply of interests that a zoning commission properly may consider under
§ 8-30g (g) , under the circumstances of this case, the particular nature of the out-of-district impact failed to implicate a substantial interest in historic preservation, insofar as it was not clear that there was a public interest in the protection of viewsheds from historic districts, especially views extending into other zoning districts.It is a fundamental precept of zoning law that different zoning districts will permit different and sometimes incompatible uses subject to different regulations, historic districts by their very nature are particularly apt to encounter abrupt transitions at their boundaries, and, as the trial court observed, the plaintiff‘s proposed building was within 500 feet of more than 80 commercial businesses, including a gas station, a car dealership, a shopping center, and medical offices, such that the nature and extent of the commercial activity prevalent in the neighborhood undermined the commission‘s and the intervenors’ assertion that the height restriction on the proposed development in the residence A zone district was necessary to protect a substantial public interest in the historic preservation of buildings located in a different zoning district.
Moreover, it was also significant that the statute (
§ 7-147a (b) ) authorizing municipalities to create historic districts focuses on the distinctive characteristics of historic places and structures, and contained no indication that the public interest in historic preservation included consideration of the potential visibility from the historic district of a building or structure that would be located entirely in another zoning district.Furthermore, the scope of authority afforded to a historic district commission by statute (
§ 7-147s ) was limited to consideration of architectural features of historic buildings and structures within historic districts, and, thus, the imposition of limits on the construction of affordable housing outside of a historic district was not part of the statutory scheme.Even if this court assumed that the legislature had intended that a substantial public interest in historic preservation would extend to surrounding districts within view of the historic district, and that the commission‘s decision in the present case was necessary to protect a substantial public interest in historic preservation, the commission failed to demonstrate that the height restriction it imposed to protect that interest clearly outweighed the need for affordable housing in the town.
In addition, this court rejected the intervenors’ assertion that the trial court had improperly substituted its own judgment for that of the commission with respect to whether the height restriction the commission imposed was necessary to protect a substantial public interest that outweighed the need for affordable housing, especially given the manifest weight of the evidence in the record.
- This court concluded that
§ 8-30g (g) applied to the plaintiff‘s request for a text amendment to the extent that that request sought a change in the zoning regulations applicable to the plaintiff‘s specific property, on which the proposed affordable housing development was to be constructed, but that§ 8-30g (g) did not apply to the plaintiff‘s request for a text amendment to the extent that it sought to amend the zoning regulations by creating a new permissible use throughout the entire residence A zone district:Whether
§ 8-30g (g) applied to the plaintiff‘s request for a text amendment turned on whether it was submitted “in connection with” the plaintiff‘s affordable housing development for purposes of§ 8-30g (a) (2) , and a review of the relevant case law led this court to conclude that, because the plaintiff planned to construct an affordable housing development on a specific parcel of land, and its application for a text amendment was submitted as part of its application for a site plan approval to develop affordable housing units on the subject property, the plaintiff‘s application for a text amendment was filed “in connection with” the plaintiff‘s affordable housing development within the meaning of§ 8-30g (a) (2) , as the plaintiff‘s application sought to change the text of the zoning regulations governing the subject property.To the extent, however, that the plaintiff‘s proposed text amendment was not limited to the affordable housing development on its property but, rather, sought to change the regulations governing the entire residence A zone district, including parcels that were not to be a part of the planned affordable housing development, it was not submitted “in connection with” an affordable housing development, and construing the statute otherwise would be inconsistent with the statutory language, as well as the legislative intent and purpose of the statute, namely, to encourage and facilitate the much needed development of affordable housing.
Moreover, with respect to the concern that this court‘s construction of the term “affordable housing application” in
§ 8-30g (a) (2) could be understood as an endorsement of impermissible spot zoning, the legislature has determined that affordable housing developments that meet the statutory criteria set forth in§ 8-30g are in the best interests of the community, insofar as such developments provide fair access to housing and expand housing opportunities for the citizens of this state, and that granting an affordable housing application limited to a specific parcel of land does not constitute spot zoning.Accordingly, consistent with the positions taken by the parties, and pursuant to the broad remedial powers afforded by
§ 8-30g (g) , this court reversed in part the trial court‘s judgments and remanded the case with direction that the commission grant the plaintiff‘s application for a text amendment only as it effectuates a change in the zoning regulations that govern the plaintiff‘s property.
Argued December 15, 2023—officially released July 11, 2024*
Procedural History
Appeals from the decision of the defendant plan and zoning commission denying in part and conditionally approving in part the application for approval of an affordable housing development filed by the plaintiff 131 Beach Road, LLC, in the first case, brought to the Superior Court in the judicial district of Fairfield, where the court, Stevens, J., granted the motion to intervene1
as defendants in the first case filed by Alden H. Stevens et al.; thereafter, the cases were transferred to the judicial district of Hartford, Land Use Litigation Docket, and consolidated; subsequently, the plaintiff 131 Beach Road, LLC, intervened as a defendant in the second case; thereafter, the cases were tried to the court, Hon. Marshall K. Berger, Jr., judge trial referee, who, exercising the powers of the Superior Court, rendered judgments sustaining the appeal in the first case and dismissing the appeal in the second case, from which the defendant plan and zoning commission in the first case, the defendants Alden H. Stevens et al. in the first case, and the plaintiffs in the second case, on the granting of certification, filed separate appeals; subsequently, the appeals were consolidated. Reversed in part; judgments directed.
Barbara M. Schellenberg, for the appellant in SC 20808 and the appellee in SC 20810 and SC 20811 (defendant Town Plan and Zoning Commission of the Town of Fairfield in both cases).
Joel Z. Green, with whom was Linda Pesce Laske, for the appellants in SC 20810 and SC 20811 and the appellees in SC 20808 (defendants Alden H. Stevens et al. in the first case, plaintiffs in the second case).
Christopher J. Smith, with whom was Russell D. Liskov, for the appellee in SC 20808, SC 20810 and SC 20811 (plaintiff in the first case, defendant 131 Beach Road, LLC, in the second case).
Opinion
The plaintiff is the owner of 131 Beach Road in Fairfield (subject property), which consists of 0.65 acres and is located within 600 feet of the Fairfield town hall and within 500 feet of the historic district. The subject property is within the residence A zone district, as defined by Fairfield‘s zoning regulations, which provide
that the permissible uses therein are limited to “[a] single detached dwelling for one family” with a maximum height of “[t]wo and [one-half] stories or thirty-two feet, whichever is less ....”
The plaintiff submitted a two part application to the commission. One part of the application requested a zone text amendment that would permit multifamily, residential dwellings for rent or sale within the residence A zone district, provided that at least 30 percent of the dwelling units constructed therein are “rented or sold at, or below, prices which will preserve the dwelling units as housing for families, as provided by [the affordable housing statute, §] 8-30g ....” The proposed text amendment also required, among other things, that the buildings have a minimum lot area of 0.5 acres, a location within 600 feet of the Fairfield town hall, a maximum building height of 60 feet or 5 stories, and a minimum of 1.25 parking spaces per unit.
The second part of the plaintiff‘s application sought approval of a site plan and issuance of a certificate of zoning compliance to permit a multifamily residential community on the subject property. The plaintiff proposed the construction of a five story building, containing forty residential units, that would qualify as affordable housing under
In its application for a site plan approval and a certificate of zoning compliance, the plaintiff listed the height of the proposed building as “53.1 [feet] +/-.” At the public hearing on the applications, the plaintiff described the building as having a peak height of sixty feet. Citizens addressed the proposal, and some expressed concern that the development would adversely impact the nearby historic district or “[encroach] on their neighborhood.”2
a negative visual impact because of the development.” She also criticized the proposed building design, stating, “I looked at what was being proposed design wise for this new building, this
The plaintiff, meanwhile, emphasized that the subject property is not located in, and does not even abut, the historic district. The plaintiff also demonstrated that more than 80 commercial businesses are within a 500 foot radius of the subject property, including the Fairfield Shopping Center, a car dealership, a gas station, a funeral home, and various medical buildings. The plaintiff further observed that 10 residences are within a 500 foot radius of the subject property, only 8 of which are in the historic district. The plaintiff additionally noted that the subject property is surrounded by
existing mature trees, some of which are more than 100 feet tall, which would shield the visual impact of the development to some extent.4
The commission sought to portray the situation differently. It requested Mark Barnhart, Fairfield‘s director of community and economic development, “to put in the record where [Fairfield] stand[s] ... on affordable housing.” Barnhart explained that Fairfield has established a trust fund that has raised approximately $800,000 to convert former military housing into affordable housing. He also discussed projects that are “in the pipeline,” as well as “a great number of projects that are approved” but “haven‘t yet started construction,” asserting that Fairfield is “making progress.” However, he also acknowledged that, to qualify as affordable housing under
Following a public hearing, the commission voted to deny the text amendment for the following reasons: (1) “[t]he proposed amendment is inconsistent with the [p]lan of [c]onservation and [d]evelopment,” (2) “[t]ime, experience and responsible planning for contemporary or future conditions [do] not reasonably indicate the need for the proposed amendment,” (3) “[i]t has not been demonstrated that the proposal is warranted and would serve the general health, welfare and safety of [Fairfield],” (4) “[t]he proposed amendment would provide a level of development that would not serve to protect property values in the community,” and (5) “[t]he amendment would provide a level of development that would not increase undue traffic congestion.”
The commission approved the site plan and certificate of zoning compliance but
report to create [a] safe [line of sight],” and (2) “return to the [c]ommission with a revised plan for the building to be no more than three stories total [rather than five] and [for its] height not to exceed [forty] feet [rather than sixty feet], with adequate parking.” The commission stated that it imposed the condition limiting the building‘s height because the “building [as proposed would] be visible in the historic district,” and “[t]his visibility would vitiate the integrity of the historic district.” The commission explained that the height restriction was based on its conclusion that “preserving Fairfield‘s [h]istoric [d]istrict is a ‘substantial public interest that this [c]ommission may legally consider‘” and on its decision to accept “testimony from experts and laypeople [asserting] that this building would irreparably impair the historic district ....”
The plaintiff appealed from the commission‘s decision to the Superior Court pursuant to
Four intervenors filed their own zoning appeal and also intervened in the plaintiff‘s appeal, claiming in both cases that the commission‘s approval of the site plan and certificate of zoning compliance, even with the
imposed conditions, was illegal, unlawful, arbitrary and capricious. See footnote 1 of this opinion. The trial court, Hon. Marshall K. Berger, judge trial referee, consolidated the intervenors’ appeal with the plaintiff‘s appeal.
The trial court sustained the plaintiff‘s zoning appeal with respect to the zone text amendment on the ground that the commission improperly had failed to “[con-sider] the text amendment in light of
I
SITE PLAN AND CERTIFICATE OF ZONING COMPLIANCE
The defendants claim that the trial court erroneously concluded that the commission had not met its burden under
The plaintiff argues in response that the testimony of the experts and laypeople “involves speculative and conclusory statements” and that “[n]o one identifies or explains how the proposal will actually harm the nearby historic district.” The plaintiff adds that “viewsheds from the nearby historic district [do not] regulate or control development outside of the historic district” and that “one [cannot] extend the jurisdiction of the historic district to properties outside of the district based on how far one can visually see from the district ....” In summary, the plaintiff contends that “[t]he commission failed to identify and quantify a harm to the nearby historic district associated with the height of [the] proposed building, whereby the [height] restric-
§ 65-1. Although the commission‘s appeal was not consolidated with the intervenors’ appeals, for purposes of judicial economy, we address the claims raised in all three appeals in this opinion.
tion ... is necessary and clearly outweighs the need for affordable housing in Fairfield.” We agree.
Section 8-30g (g) provides in relevant part: “Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission, that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1) (A) the decision is necessary to protect substantial public interests in health, safety or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development .... If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify,
We previously have described in some detail the analysis that the trial court should conduct to implement the statutory scheme. “[I]n conducting its review in an affordable housing appeal, the trial court must first determine whether ‘the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record.’ ... Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted. If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the com-
mission‘s decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may 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.” (Citation omitted.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004); see, e.g., Brenmor Properties, LLC v. Planning & Zoning Commission, 326 Conn. 55, 63 n.6, 161 A.3d 545 (2017); Carr v. Planning & Zoning Commission, 273 Conn. 573, 596–97, 872 A.2d 385 (2005). “[Although the] commission remains the finder of fact and any facts found are subject to the sufficient evidence standard of judicial review ... [the] application of the legal standards set forth in
We have no disagreement with the general proposition that, unless the law at issue indicates otherwise, historic preservation is among the panoply of interests that a zoning commission may properly consider when determining whether considerations of public health or safety militate against approval of the particular proposal under consideration. See Smith v. Zoning Board of Appeals, 227 Conn. 71, 86, 629 A.2d 1089 (1993) (holding that legal authority to enact zoning regulations for protection of “public health and safety” includes consideration of environmental factors, which, in turn, includes historical factors), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994). Thus, although the statutory scheme governing affordable housing does not expressly require consideration of historic preservation as a public interest that must be taken into account
in the specific context of affordable housing applications, it is enough that the public interest in health and safety must be considered because our holding in Smith teaches that historic preservation is a component part of that factor. This conclusion is buttressed by the fact that the general enabling act authorizing municipalities to enact zoning regulations requires, among other things, that such regulations “[b]e made with reasonable consideration for the protection of historic factors“;
But, of course, the mere fact that historic preservation can constitute a substantial public interest appropriate for consideration in connection with an affordable housing application does not establish anything more than a theoretical possibility of harm to that interest
or indicate that the record in this particular case establishes that (1) the proposed development implicates a substantial interest in historic preservation, (2) the commission‘s decision is “necessary” to protect that interest, (3) the interest is “clearly outweigh[ed] [by] the need for affordable housing,” and (4) the interest “cannot be protected by reasonable changes to the affordable housing development ....”
A lengthy analysis of these issues is unnecessary because the trial court‘s cogent analysis leaves little more for us to say. The defendants’ claim is not that the proposed development will adversely impact the public interest within the district in which the development will be located; that claim cannot credibly be made because the development itself will not be located within (or even abut) the historic district. Instead, the substantial public interest that the defendants claim overrides the need for public housing is a visual impact that will be felt in a different zoning district—or, more accurately, in a part of that neighboring district. None of the cases cited by the defendants involves adverse impacts, much less solely visual impacts, that are felt only outside of the zoning district in which the proposed development will be built. Although we do not rule out the potential viability of such a claim under different circumstances, the particular nature of the out-of-dis-
trict impact at issue in the present case fails to implicate a substantial interest in historic preservation. The public interest in the preservation of historic sites is clear, but we cannot say the same about the interest in protecting the viewsheds from those sites, especially the views extending into other districts, and especially as a consideration that may be invoked to thwart “the legislative purpose of [§ 8-30g of] encouraging the construction of affordable housing.” Kaufman v. Zoning Commission, 232 Conn. 122, 164, 653 A.2d 798 (1995).
A fundamental precept of zoning law, after all, is that different zoning districts will permit different and sometimes incompatible uses subject to different regulations with respect to everything from “the height, size, and location of buildings and structures, [to] the percentage of the area of the lot that can be occupied, the size of lots, setbacks, and ... the use of land, buildings, and structures.” D. Merriam, 9 Connecticut Practice Series: Land Use Law and Practice (2024 Ed.) § 3.5, p. 38; see also
restriction is necessary to protect a substantial public interest in the historic preservation of buildings located in a different district.
Indirect but significant support for our conclusion can be found in the statutory scheme authorizing municipalities to create historic districts.
In this regard, we also find it noteworthy that the scope of the authority of Fairfield‘s historic district commission is limited to determining the appropriateness of (1) any proposal to build or alter any “architectural feature” of a new or existing building or structure within the historic district, and (2) any area within the district for industrial, commercial, business, home industry or occupational parking. See
Even if we were to assume, for the sake of argument, that the legislature intended a substantial public interest in historic preservation to extend to surrounding districts within view of the historic district, and that the commission‘s decision in the present case was necessary to protect a substantial public interest in historic preservation, we nonetheless agree with the trial court that the commission failed to prove that the restriction it had imposed to protect that interest clearly outweighed the need for affordable housing in Fairfield. On this point, the commission asserted that “Fairfield (and this [c]ommission in particular) has amply demonstrated a serious commitment to affordable housing and increasing its affordable housing units,” and cited the testimony of Barnhart in support of that conclusion. Without doubting Fairfield‘s laudable commitment to change, however, the fact remains that its housing stock qualifying as either government assisted or deed restricted in compliance with
The intervenors contend that the trial court improperly substituted its judgment for that of the commission in eliminating the height restriction and in finding that the need for affordable housing outweighed the need to protect the character of the historic district. Citing No. 21-29, § 4, of the 2021 Public Acts, which amended
We reject any suggestion that the trial court substituted its judgment for that of the commission by concluding that the commission had not met its burden of
In sum, the trial court applied the correct legal standards set forth in
II
ZONE TEXT AMENDMENT
We next address whether the trial court properly concluded that the plaintiff‘s application for a zone text amendment was part of an “affordable housing application,” as defined by
Whether
It is undisputed that the plaintiff is “a person who proposes to develop” an “affordable housing development” as defined by
We previously have considered the meaning of the phrase “in connection with,” as used in
In West Hartford Interfaith Coalition, Inc., the statutory criteria in
The defendants’ reliance on Stefanoni is misplaced. Stefanoni is readily distinguishable from the present case because it involved an application by the plaintiffs, Christopher and Margaret Stefanoni, to amend the zoning regulations to create an affordable housing floating zone that “would be applied to all properties in Darien including the [Stefanonis‘] property at 149 Nearwater Lane.” (Internal quotation marks omitted.) Id., 305. The application was denied, and the Appellate Court determined that
Unlike the plaintiffs in Stefanoni, the plaintiff in the present case plans to construct an affordable housing development on a specific parcel of land, and its application for a zone text amendment was submitted as part of its application to the commission for site plan approval to develop affordable housing units on the subject property. Insofar as the plaintiff‘s application sought to change the text of the zoning regulations governing the subject property, we conclude that it was filed “in connection with” the plaintiff‘s affordable housing development within the meaning of
Our conclusion finds support in the text of subsection (b) (1) of
The foregoing analysis does not fully resolve the present case, however, because the plaintiff‘s proposed zone text amendment was not limited to the affordable housing development on the subject property—it sought to change the regulations governing the entire residence A zone district, including parcels that were not part of the proposed development. Insofar as the proposed text amendment would apply outside of “an affordable housing development by a person who proposes to develop such affordable housing,” we conclude that it was not submitted “in connection with” an affordable housing development, as contemplated by
intended to effectuate “any kind of general zoning override.” Id., 138, quoting 32 S. Proc., Pt. 12, 1989 Sess., p. 4048, remarks of Senator Richard Blumenthal. Instead, the statute applies to “‘an actual developer who wants to build something, who has plans to build it . . . and has been turned down.‘” Kaufman v. Zoning Commission, supra, 138, quoting Conn. Joint Standing Committee Hearings, Planning and Development, Pt. 1, 1989 Sess., p. 304, remarks of Attorney Raphael Podolsky. The statute does not apply to “‘theoretical zoning‘“; it applies only to “‘specific projects on particular
A concern was raised at oral argument that limiting the definition of an “affordable housing application” in
By enacting
Having determined that the plaintiff‘s application for a zone text amendment was governed by
zoning appeals.” AvalonBay Communities, Inc. v. Zoning Commission, 284 Conn. 124, 140 n.15, 931 A.2d 879 (2007). Subsection (g) of
The judgments are reversed with respect to the trial court‘s determination concerning the commission‘s denial of a zone text amendment applicable to the residence A zone district and the cases are remanded to the trial court with direction to remand to the commission and to order the commission to grant the plaintiff‘s application for a zone text amendment limited solely to the subject property; the judgments are affirmed in all other respects.
In this opinion the other justices concurred.
Notes
Others registered their support for the proposal. For example, Reverend David W. Spollett of First Church Congregational, which is located on Beach Road just across from the subject property, wrote: “Yes, 131 Beach [Road] ‘is across from the historical First Church Congregation[al] that dates its founding back to 1640.’ However, the church does not feel [that] its ‘historical significance will be irreparably damaged’ [or] that this ‘project is inconsistent and is potentially very damaging to the historical nature of that neighborhood and of the town.’ Indeed the commitment and legacy of First Church since the [seventeenth] century has been to provide help, housing and hope for the least among us. I disagree that the ‘legacy of those properties ... the[ir] historical significance is more important.’ Indeed, it is self-evident that the provision of affordable [housing] in the proposal for 131 Beach Road is a fulfillment of the legacy of First Church and the history of the town.”
Klyver and state Senator Tony Hwang also echoed Reyman-Lock‘s observation that Beach Road serves as a transition into the historic district.
In its formal decision, the commission found that “[t]here are nearby trees on adjacent properties that provide some screening, but those trees would not completely screen the proposed building, nor would some trees provide year-round screening. The trees are also not the [plaintiff‘s] responsibility, so if they fell or were cut down, there would be no mechanism to force a replacement, ignoring the fact that the replacement would need to be [full-grown] to provide the same level of screening.”