BRENMOR PROPERTIES, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF LISBON
(AC 37293)
Connecticut Appellate Court
February 2, 2016
Gruendel, Mullins and Sullivan, Js.
Argued October 13, 2015
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(Appeal from Superior Court, judicial district of Hartford, Land Use Litigation Docket, Shluger, J.)
Michael A. Zizka, for the appellant (defendant).
Timothy S. Hollister, with whom was Andrea L. Gomes, for the appellee (plaintiff).
Opinion
GRUENDEL, J. The defendant, the Planning and Zoning Commission of the Town of Lisbon (commission), appeals from the judgment of the Superior Court sustaining the administrative appeal of the plaintiff, Brenmor Properties, LLC. The commission contends that the court improperly concluded that the plaintiff’s failures to comply with (1) the road construction standards established by town ordinance and (2) the Connecticut State Fire Prevention Code (fire code) were not valid grounds to deny its application for an affordable housing subdivision. The commission also challenges the propriety of the remand ordered by the court. We affirm the judgment of the Superior Court.1
The underlying facts are not in dispute. At all relevant times, the plaintiff
Four of the proposed lots were to be located on the westerly side of the property and would be accessed by driveways on Route 169. The remaining lots were to be located on the easterly side of the property adjacent to Ames Road and would be accessed by a private roadway, which the plaintiff describes as a common driveway7 and the commission characterizes as
The commission conducted a public hearing on the plaintiff’s original application that began on August 7, 2012, and was continued over four additional evenings on September 4, October 2, November 7, and November 13, 2012. In response to various comments raised during that hearing, the plaintiff submitted multiple revisions to its proposal, culminating with its November 13, 2012 final submission materials. Following the conclusion of the public hearing, the commission’s legal counsel, Attorney Michael Zizka, prepared a document dated January 8, 2013, and entitled Brenmor Subdivision Application Issues and Potential Conditions of Approval (document). That document delineated seven issues and provided analysis thereof. At the commission’s regular meeting on January 8, 2013, the commission reviewed those seven issues. The proposed roadway’s nonconformance with the Lisbon road ordinance (road ordinance)10 generated the most discussion, as the roadway violated its minimum width and maximum grade requirements.11 On that issue, Commissioners Robert Adams, Ronald Giroux, Kim Sperry, John Dempsey, Gary Ritacco, Sharon Gabiga and David Gagnon all concurred that the proposed roadway needed to comply with the road ordinance as a matter of public safety.12 When the deliberations concluded,
On January 30, 2013, the plaintiff filed with the commission a modified affordable housing proposal pursuant to
On March 5, 2013, the commission held a public hearing on the plaintiff’s modified application, as required by
Mark Vertucci, a traffic engineer retained by the plaintiff, then addressed the commission. Vertucci prepared a traffic impact study that was submitted with the plaintiff’s original application. That study utilized traffic rates provided by the Institute of Transportation Engineers Trip Generation Manual, an industry accepted resource. Vertucci’s analysis concluded that the proposed subdivision was going to be a very low traffic generator, given the . . . small number of units. Vertucci further concluded that the development will provide safe and efficient access, egress, and circulation for the residents and guests of the subdivision as well as the general public entering or passing the property. In addition, the [proposed roadway] interior to the site will sufficiently accommodate circulation by emergency vehicles. As part of the plaintiff’s modified application, Vertucci provided both a written traffic safety review and testimony before the commission, in which he opined that the plan set forth in the resubmission does provide for safe traffic operations and site circulation. It provides for safe ingress and egress for passenger cars and emergency vehicles [and] does not present any public health or safety concerns.
At that public hearing, the commission’s professional staff also commented on the modified proposal. James Rabbitt, the town planner, and Robert DeLuca, the town engineer, disagreed with the plaintiff’s assertion that the proposed roadway qualified as a driveway, as it would provide the only access to fifteen single-family dwellings. Rabbitt and DeLuca both noted that the proposed roadway did not comply with the minimum width or maximum grade requirements of the road ordinance. In his March 1, 2013 letter to Rabbitt, DeLuca had opined that the standards set forth in the road ordinance provide for an appropriate higher level of safety and reflected a typical policy within [Connecticut] municipalities for access roads to multiple residences as opposed to a shared driveway to 2–3 residences. At the public hearing, DeLuca stated, I do feel that the infrastructure needs to be built completely to service all these lots safely . . . so that it’ll be in place so that emergency vehicles can safely get around regardless of how
The commission deliberated the merits of the plaintiff’s application at its April 2, 2013 meeting. During those deliberations, commission members debated whether to defer their final vote, as Zizka was not present at that time but was available to attend a special meeting the following week. After one unidentified commissioner indicated his unavailability the following week, another stated: There’s gonna be quite a lot of information here between the three reports [submitted by Zizka, DeLuca and Rabbitt]. It’s kind of tough to make a decision just reading them now. When Chairman Adams inquired as to whether his colleagues had enough information to vote tonight, an unidentified commissioner responded: I feel that we have enough information to vote tonight. This has been going on for quite a while. We did get all this information. It has been basically the same information over and over and over. [The plaintiff] made a couple changes last month, ah. Their attorney basically said to us last month you can vote tonight because, you know, you know we’re gonna go to court. They’re gonna deny it. So vote tonight and get it over with. And, that’s it. And, ah, you know we’re going over the same stuff tonight we went over last month and it’s just saying how much stuff you gonna read on the same subject? You know. It’s the same thing over and over and over.
Shortly thereafter, Chairman Adams then asked, [a]ny further discussion? Hearing no reply, he continued: Okay. All in favor of having a motion tonight. Vote tonight. Who would like to make a motion? And, and be forewarned. When you make a motion, you have to be pretty specific. You can’t just say testimony or other information given by the planner and other staff. You have to be clear. As many of you know, that [the plaintiff is] already expecting us, expecting this [commission] to go to court so you have to be pretty specific and careful on what you’re making a motion and how you’re presenting it and the reasons you’re for your motion. At that point, Commissioner Sperry made a motion to deny the resubmitted application based on the testimony from the town engineer, fire marshal, and town [attorney]. The road does not meet code, doesn’t meet fire code, doesn’t meet town code. Um. Based upon the retraction of the commitment to build the entire infrastructure and we’re back to a piecemeal infrastructure as we go. Um, ah, and, um the elimination of, ah, the, ah, the right of way, um, that can potentially, ah, put the wells at risk and does not allow the town the flexibility it needs to, um, maintain or widen or do work, now or in the future, on Ames Road as well as I believe Lot 17 is still on the plan and that is not an approved lot. Chairman Adams then inquired, [a]m I to take that motion to mean, in addition to the other, ah, information on the record? Commissioner Sperry replied, in addition to the information on the record, the testimony submitted by [inaudible] engineers, that [of] the town of Lisbon fire marshal, [and Zizka and Rabbitt]. That motion to deny
From that decision, the plaintiff appealed to the Superior Court. On June 13, 2014, the court issued its memorandum of decision. In sustaining the plaintiff’s appeal, the court concluded that neither noncompliance with the road ordinance nor noncompliance with the fire code constituted a valid ground on which to deny the plaintiff’s application.17 As a result, the court reversed the denial of the plaintiff’s resubmission and remand[ed] the case to the [commission] with direction to grant the plaintiff’s resubmission as is. The commission thereafter filed a petition for certification to appeal pursuant to
I
As a preliminary matter, we first consider the plaintiff’s claim, raised as an alternative ground of affirmance, that the commission failed to state its reasons for denying the resubmitted application when it rendered its decision.
At the same time, our Supreme Court has cautioned against exalting form over substance in contemplating the adequacy of such decisions. Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 730, 780 A.2d 1 (2001). Rather, we must recognize that the commission is composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate. . . . We must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions . . . .18 (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 730–31. Affording a degree of latitude is particularly appropriate in the context of affordable housing appeals, where—unlike traditional zoning appeals—the reviewing court is not empowered to scour the record in search of a proper basis for the agency’s decision. Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 575–76, 735 A.2d 231 (1999) (outlining differences between affordable housing appeal and traditional zoning appeal); cf. Verrillo v. Zoning Board of Appeals, 155 Conn. App. 657, 673, 111 A.3d 473 (2015) (in traditional zoning appeal, when zoning agency fails to provide collective statement for its actions,
Admittedly, the motion to deny the plaintiff’s modified application was not a model of precision. It nonetheless set forth various grounds for denial in plain fashion. In particular, the motion stated that the proposed roadway did not comply with the town code or the fire code. In that respect, the motion echoed the commission’s January 8, 2013 denial of the plaintiff’s original application, in which the formal motion incorporated by reference the document detailing the commission’s concerns regarding noncompliance with both the road ordinance and the fire code. As a result, we conclude that the record contains a clear basis on which to review the commission’s decision.19 We therefore turn our attention to the distinct claims raised by the commission in this appeal.
II
The commission’s principal claim is that the court improperly concluded that the plaintiff’s noncompliance with the road ordinance did not constitute a valid ground on which to deny its affordable housing application. The commission maintains that because the road ordinance is a municipal legislative enactment aimed at protecting public health and safety, any deviation from the ordinance’s standards should be deemed unacceptable per se.
The parameters of our review of an affordable housing appeal are circumscribed by
The standard of review embodied in
A
We therefore begin with the question of whether the commission’s decision to deny the modified application due to the plaintiff’s noncompliance with the road ordinance is supported by sufficient evidence in the record. Our Supreme Court has defined sufficient evidence in this context to mean less than a preponderance of the evidence, but more than a mere possibility. . . . [T]he zoning commission need not establish that the effects it sought to avoid by denying the application are definite or more likely than not to occur, but that such evidence must establish more than a mere possibility of such occurrence. (Internal quotation marks omitted.) Christian Activities Council, Congregational v. Town Council, 249 Conn. at 585. Notably, that court also has indicated that the sufficient evidence standard imposes a lesser burden than the substantial evidence standard. Kaufman v. Zoning Commission, 232 Conn. 122, 149–50, 653 A.2d 798 (1995).
The substantial evidence standard has been described as one that is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. (Internal quotation marks omitted.) New England Cable Television Assn., Inc. v. Dept. of Public Utility Control, 247 Conn. 95, 118, 717 A.2d 1276 (1998); accord Dickinson v. Zurko, 527 U.S. 150, 153, 119 S. Ct. 1816, 144 L. Ed. 2d 143 (1999) (clearly erroneous standard stricter than substantial evidence standard); Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 612, 931 A.2d 319 ([t]he substantial evidence standard is even more deferential than clearly erroneous standard), cert. denied, 284 Conn. 929, 934 A.2d 244 (2007). Because the sufficient evidence standard applicable to affordable housing appeals imposes a lesser burden than substantial evidence, that burden is minimal. A land use agency simply must establish that something more than a mere theoretical possibility of harm to the public interest exists. River Bend Associates, Inc. v. Zoning Commission, 271 Conn. at 26.
As a municipal legislative enactment, the road ordinance is entitled to a presumption that it is predicated on a legitimate public policy. See Pollio v. Planning Commission, 232 Conn. 44, 49, 652 A.2d 1026 (1995) (a presumption of validity is accorded to municipal ordinances); see also State v. Santiago, 318 Conn. 1, 72 n.62, 122 A.3d 1 (presumption that legislative body acted for legitimate reasons), rehearing denied, 319 Conn. 912, A.3d (2015); Tine v. Zoning Board of Appeals, 308 Conn. 300, 306, 63 A.3d 910 (2013) (presumption that legislative bodies do not intend to enact meaningless provisions). The road ordinance at issue here expressly indicates that its purpose is to protect the public health and safety. See footnote 10 of this opinion. In furtherance of that aim, the ordinance prescribes, inter alia, minimum widths and maximum grades for roads constructed in Lisbon. In light of the foregoing, the commission reasonably could conclude that noncompliance therewith creates more than a mere theoretical possibility of harm to public health and safety. We therefore agree with the commission that noncompliance with a municipal legislative enactment intended to protect the public health and safety constitutes evidence sufficient to satisfy the minimal threshold determination under
B
We next consider whether the commission’s decision to deny the plaintiff’s application due to noncompliance with the road ordinance was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider [and] whether the risk of such harm to such public interests clearly outweighs the need for affordable housing . . . . (Emphasis added.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. at 26. On those questions, our review is plenary. Id., 22.
The commission claims that any deviation from the requirements set forth in the road ordinance entitles it to deny an affordable housing application. We disagree. As our case law recognizes,
As this court has held,
In sum, we agree with the commission that the establishment of town-wide standards for road construction is matter of public health and safety that a commission may properly consider under the affordable housing appeals act. We disagree with the commission’s contention that any deviation from those standards constitutes a per se ground for denial of
We conclude that the commission has not met that burden. As an initial matter, we note that the minimum road width and maximum grade requirements set forth in §§ 4.3 and 4.4 of the road ordinance are not absolutes. To the contrary, § 2.2.3 of the road ordinance provides that [t]he Board of Selectman may approve alternate design and construction standards when (a) such standards are prepared by a licensed professional engineer and (b) the board determines that such standards will be in accord with the purpose and intent of the road ordinance.22 The road ordinance thus contemplates the construction of roads in Lisbon that depart from the standards specified therein.
Second, it is undisputed that the proposed roadway would remain a private road, rather than a public road, and would serve only fifteen homes. As part of its modified application, the plaintiff provided the commission with a Homeowner’s Agreement for Lots 1-15 that provides in relevant part that the proposed roadway is a private driveway and [the] Town of Lisbon shall have no obligation for any costs associated with the maintenance, repair or replacement thereof or for resolving any disputes among [the] [p]arties relating to the use, maintenance, repair or replacement or costs associated with the roadway. See also footnote 7 of this opinion. For that reason, the town planner remarked during the commission’s deliberations on the modified proposal that the road system is not proposed as public . . . . The document prepared by the commission’s legal counsel, which the commission incorporated by reference into its January 8, 2013 denial of the original application, likewise acknowledged that the roads would be privately owned . . . . The fact that the proposed roadway would not be a public road further informs our consideration of whether the rationale underlying the requirements of the road ordinance compels strict compliance in this case.23
Third, the record is replete with expert testimonial and documentary evidence from Vertucci, a senior transportation engineer with Fuss & O’Neill, Inc., who also is certified by the Institute of Transportation Engineers as a professional traffic operations engineer. In both his January 30, 2013 traffic safety review letter24
Vertucci was the only expert who testified at the public hearing on the risk of harm to public health and safety posed by the proposed roadway. Although the commission’s professional staff repeatedly noted that the proposed roadway did not comply with the minimum width and maximum grade requirements of the road ordinance, they did not submit any evidence of specific harm that likely would result therefrom, nor did they opine that the proposed roadway was unsafe. As this court has noted, [t]he narrow rigorous standard of
The burden placed on the commission in an affordable housing appeal requires it to prove, inter alia, that its denial of an affordable housing application was necessary to protect substantial public interests and that such public interests
Furthermore, we note that, in discussing the commis- sion’s burden to demonstrate such necessity under
Mackowski v. Zoning Commission, 59 Conn. App. 608, 757 A.2d 1162, cert. granted, 254 Conn. 949, 762 A.2d 902 (2000) (appeal withdrawn September 21, 2001), is instructive in this regard. In Mackowski, this court concluded that the defendant commission had failed to meet its burden of proving . . . that its denial of the plaintiffs’ application was necessary to protect substantial public interests in health, safety or other matters that the commission may legally consider. Id., 616. We reasoned that [t]he commission never addressed the traffic and sewage concerns in detail; rather, it made generalized statements concerning the adverse impacts on the health, safety and welfare of the community that would be created by the project and remarked that those adverse impacts appeared to be unnecessary in achieving affordability for this development. The evidence before the commission . . . established that there would be no significant problems with traffic or the sewer system as a result of the proposed development. Neighbors of the
In the present case, the document prepared by the commission’s legal counsel, on which the commission relied in denying the plaintiff’s original application, suffers a similar infirmity. It states in relevant part that no town residents should be obligated to accept roads of lesser quality and safety than anticipated by the . . . road ordinance, but it provides no specific findings of fact as to the harm that would result if the proposed roadway was constructed. The document contains generalized statements that lesser quality roads would have a tendency to create a variety of problems . . . including: lack of adequate space for parking; difficult or impossible turning movements for emergency vehi- cles, such as fire apparatus; and extremely steep grades. Yet neither that document nor the commission’s decision cite to any evidence as to the severity and probability of such harm. Such generalized concerns cannot support a determination that the commission’s decision was necessary to protect the public interest or that the harm outweighed the town’s documented need for affordable housing. See Eureka V, LLC v. Planning & Zoning Commission, 139 Conn. App. 276–77; Mackowski v. Zoning Commission, 59 Conn. App. 617. In addition, the plaintiff’s modified application made several changes in response to those generalized concerns. See footnote 15 of this opinion. The commission’s decision to deny the modified application did not include any findings regarding those concerns.
In an affordable housing appeal pursuant to
III
The commission also challenges the court’s conclusion that the plaintiff’s alleged noncompliance with the fire code did not constitute a valid ground on which to deny its affordable housing application. The administrative record before us does not substantiate that claim.
The issue of compliance with the fire code was raised by Rick Hamel, the town’s fire marshal. Although Hamel did not testify at the March 5, 2013 public hearing on the plaintiff’s modified application, he did provide a letter to the commission dated April 1, 2013, which detailed three manners in which the proposed subdivision allegedly did not comply with the fire code. That letter expressly indicates that Hamel had not reviewed the plaintiff’s March 5, 2013 revised plan in reaching those conclusions. In its memorandum of decision, the Superior Court noted that [t]he parties . . . stipulated at the argument that [Hamel’s] letter was based on the original submission and not the resubmission, which incorporated changes to correct the deficiencies. Because both parties acknowledged [Hamel’s] failure to analyze the resubmission with its changes and modifications, the court will not consider the [April 1, 2013] letter . . . . We see no reason to depart from that sound determination. Hamel concededly had not reviewed the plaintiff’s modified application, and therefore could not offer any perspective on whether it complied with the fire code.
The commission also briefly argues that the risk of inadequate snow removal and illegal on street parking could result in a too narrow road for emergency vehicles. That contention amounts to little more than speculation and conjecture, which have no place in appellate review.29 (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009). The plaintiff’s
IV
As a final matter, the commission contends that the court improperly remanded the matter to it with direction to grant the plaintiff’s resubmission as is. That claim requires us to consider the statutory basis for, and the propriety of, that determination.
Generally, the court’s remedial authority is limited in appeals from the decisions of municipal land use agencies. As the Supreme Court recently explained, [t]he statutes create a limited role for a trial court hearing an administrative or zoning appeal. . . . Courts hearing such appeals do not sit as courts of equity, but as appellate tribunals. . . . Their power to find facts and grant relief is narrow and generally confined to reviewing the validity of the agency decision. . . . Specifically, in zoning appeals, the trial court’s reviewing authority is strictly constrained by
In affordable housing appeals, the court’s authority derives not from
Accordingly, our review of the court’s exercise of its remand authority under
In the present case, the court’s decision to remand the matter with direction to grant the plaintiff’s resubmission as is is one consistent with the evidence in the record. The court had before it transcripts of two public hearings that transpired over the course of six days and countless documents regarding the proposed subdivision and revisions thereto. The court also had before it expert testimony from a professional engineer, a transportation engineer, and a land surveyor. The record also encompasses the commission’s decision to deny the plaintiff’s original application, the plaintiff’s modified application and accompanying materials, the materials submitted by the commission’s professional staff, and the commission’s deliberations and ultimate decision on the modified application. Significantly, that modified application contained numerous conditions of approval proposed in response to concerns raised by the commission and its professional staff.32
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
[Chairman] Adams: I think we’re in pretty much agreement. I’m not sure but we can find out right now. Uh, if there’s a problem with the, the width is 16’ and 20’. Uh, it should be between 26’ and 28’. Movement on the roads pose[s] a problem. Uh my feeling is it should be a town road. It should be accepted as a town road and town road standards. How do you feel about it?
[Commissioner] Giroux: Ron Giroux. Um, I agree. I think the roads need to be the width of all the other Town roads. I don’t think [there are] a lot of houses in there but, you know, we don’t even, like, we don’t even allow the shared driveway for a simple reason because of egress in and out of those areas.
[Chairman Adams]: Um, yeah, I have a problem with the, the grades too. I mean, the slopes aren’t, um, safety-wise, I think we should adhere to the [road] [o]rdinance.
[Commissioner] Sperry: Oh, I agree and coming up to the Town road standards would ensure, um, that public safety has adequate access, um, to service the future residents of, you know, to this development and I think that was, um, the fact that emergency vehicles and first responders were able to, um, respond or turn safety concern but not only for the people who live there and would require services but responders as well.
[Commissioner] Dempsey: Uh, John Dempsey. I feel the same way, especially with the grades. Um, if it was a single house going up into the woods, that’s, that’s your prerogative to do that but when you have this many houses with those kind of grades, you’re asking the Town of Lisbon’s . . . emergency personnel to do something that’s pretty risky, not to mention there’s, nobody’s going to want to plow those roads up or down at those grades, so I feel the same.
[Commissioner] Ritacco: Gary Ritacco. I feel the same as everybody else here on the maintenance of the Town road.
[Commissioner] Gabiga: Um, I agree also. I think that, uh, we should adhere to the Town road standards, this development, and then I also feel the, the safety of not only the people who would live there but along the road and also the, um, uh, in the development itself that, uh, the emergency vehicles and, uh, do not have enough turn around and that was the problem [inaudible] and, and enforcing of the parking bans and things like that too.
[Commissioner] Gagnon: Dave Gagnon. I agree with everything that’s been said. You know, the emergency vehicles, the width, urn, and then the fact that the homeowner’s association could come back to the town later with that action of making the town do something, so I think, I don’t know, that the width is definitely too small and with, you know, the problems that we did, especially the parking too, that we discussed.
[Zizka]: Okay.
[Commissioner] Giroux: Yeah, the parking and the, uh, the width of the roads, I definitely agree with and I think it’s been presented very well. I just want to make, can I just say one thing, though? Um, a 10 [percent] slope, I mean, we’re not all people who know every little detail but a 10 [percent] slope is less than a handicap ramp, okay? I just, you know, because I noticed it was said earlier but a 30 [percent] slope going down a very steep hill grade on the, um, the next thing we’re going to talk about in your report and even that is like walking on a 3 1/2 pitch roof. To me, that is not very steep, okay? The way it’s presented, okay? Just so because not everybody knows and I look at 10 [percent] slope, what does that mean? Does that mean, you know, I’m going off a cliff? No. It’s almost nothing. Just, I just wanted to say that. Thank you.
[Chairman Adams]: So it sounds like you’re in agreement as far as there’s a problem with the road, uh, uh, situation. Um, and as written here, to redesign it isn’t really our, our job to redesign the way the road’s going to look and to try to approve something that we don’t know what it’s going to look like, it’s very difficult to do. Uh, if anybody has any suggestions as to a possible solution besides bringing up the road standards, I’d like to hear it now. Okay, we’ll go on to the next one. . . .
In the present case, the plaintiff provided expert evidence indicating that the proposed roadway did not present any public health or safety concerns. Moreover, the plaintiff’s modified application specifically alerted the commission to the fact that, in its view, there was no expert or other testimony in the record that the proposed driveways are unsafe. Accordingly, to properly deny the plaintiff’s modified application, the burden properly was on the commission to establish a quantifiable probability of harm to the public health or safety that outweighed the need for affordable housing and that could not be protected by reasonable changes to the proposed development.
[1]. Prior to the sale of any of Lots 1 through 15, [the plaintiff] will install the common driveway and sightline improvements, drainage, utilities, and signage necessary for access to, construction on, and use of that individual lot as shown on the approved plans, and will provide to the [commission] an as-built plan demonstrating compliance.
[2]. In accordance with [General Statutes] § 8-25 as amended, [the plaintiff] will post a financial guarantee, in an amount to be determined with the Town Engineer, for erosion and sedimentation controls and the drainage from the Ames Road culvert to the outlet at the northwest corner of Lot 2.
[3]. Each of Lots 1 to 15 will be conveyed in deeds that will include, and will be subject to, cross-easements as follows:
a. Lots 1, 2, 11, and 15 will be conveyed together with the non-exclusive perpetual easements for access, maintenance, and utilities as more particularly shown and depicted on Sheets 2 and 3 of the ‘Plan Showing The Residences At Lisbon Property Of Brenmor Properties LLC, Connecticut State Route 169 A.K.A. South Burnham Highway And Ames Road, Lisbon, Connecticut. Scales As Shown May 2012’ comprised of Sheets 1 through 9A last revised 1/21/13 (hereinafter the ‘Plan’).
b. Lots 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, and 14 will be conveyed subject to and together with the non-exclusive perpetual easements for access, maintenance, and utilities as more particularly shown and depicted on Sheets 2 and 3 of the Plan.
c. Lots 1 through 15 shall be conveyed with the prohibition from parking motor vehicles of any type in the areas more particularly shown and depicted as No Parking Anytime areas on Sheets 2 and 3 of the Plan.
d. Lots 1, 2, 4, 7, and 15 shall be conveyed subject to a Drainage Easement (including access and maintenance) in favor of the Town of Lisbon as more particularly shown and depicted on Sheets 1, 2, and 3 of the Plan.
e. Lots 3, 5, and 14 shall be conveyed subject to emergency ingress and egress easement rights as more particularly shown and depicted on Sheets 2 and 3 of the Plan.
f. Lot 10 shall be conveyed subject to an easement for common driveway for ingress and egress to the site as more particularly shown and depicted on Sheet 2 of the Plan.
g. Lot 10 shall be conveyed subject to a temporary construction entrance easement as more particularly shown and depicted on Sheet 2 of the Plan.
[4]. A condition of subdivision approval and the eventual sale of each Lot 1 to Lot 15 will be formation by [the plaintiff] of a Homeowners Association, using the form of Agreement submitted to the [c]ommission. The purchaser of each Lot 1 to 15 will agree to the Homeowners Association Agreement as a condition of purchase. Upon sale of the first lot of Lots 1 to 15, [the plaintiff] will provide initial funding of the Homeowners Association in the amount of $2,500, for the purpose of funding for one season snow plowing and driveway clearance (estimated at $200 per plow, 12 snow events). Thereafter, each owner of a lot that is not subject to § 8-30g income and sale / resale price restrictions, will pay a minimum of $40 per month to the Association, and the owners of those lots that are subject to § 8-30g will pay a minimum of $25 per month, but a maximum only as allowed by §§ 8-30g-1 et seq. of Connecticut State Agency Regulations. Funds collected by the Homeowners Association in excess of snow removal and regular maintenance shall be deposited in a capital reserve fund for the purpose of periodic repair of the driveway, common utilities, or drainage.
[5]. Well locations shown on the approved plan are schematic. Wells may be located where allowed by the Health Code, and will be approved on a lot-by-lot basis by the Sanitarian. Each proposed well will need to demonstrate sufficient yield before a Certificate of Occupancy is issued. Wells will be located so as to not be subject to damage by vehicles, including emergency and service vehicles, traveling on the internal driveways.
[6]. School bus pick-ups for Lots 1–15 will occur at a location along Ames Road to be determined in conjunction with the Board of Education staff.