JAG CAPITAL DRIVE, LLC v. EAST LYME ZONING COMMISSION
(AC 37924)
Connecticut Appellate Court
Argued May 19—officially released October 4, 2016
Sheldon, Mullins and Harper, Js.
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Edward B. O‘Connell, with whom, on the brief, was Mark S. Zamarka, for the appellant (defendant).
Timothy S. Hollister, with whom was Andrea L. Gomes, for the appellee (plaintiff).
Opinion
SHELDON, J. The defendant, the East Lyme Zoning Commission (commission), appeals from the judgment of the Superior Court sustaining the administrative appeal of the plaintiff, JAG Capital Drive, LLC, from the commission‘s denial of the plaintiff‘s application for approval of a proposed affordable housing development. The commission claims that the trial court erred in concluding that it failed to meet its burden of proof in denying the plaintiff‘s application on the ground of the industrial zone exemption—that the proposed affordable housing development would be located in an area which is zoned for industrial use and does not permit residential uses—pursuant to
In its December 23, 2014 memorandum of decision, sustaining the plaintiff‘s administrative appeal, the trial court set forth the following relevant factual and procedural history. “The plaintiff‘s land is located in East Lyme. It consists of 24 acres, zoned LI, Light Industrial, adjacent on the north side to a small commercial/light industrial area served by a street called Capital Drive, ending in a cul-de-sac north of [the plaintiff‘s] 24 acres. West of the plaintiff‘s property are wetlands, a stream, and the East Lyme/Old Lyme border. To the east are a single-family residential neighborhood and Camp Niantic, a seasonal campground. To the south is State Route 156, which in that location is called West Main Street. The plaintiff‘s property has frontage on Route 156/West Main. . . .
“The plaintiff filed its initial application for site plan approval with the commission on August 7, 2012, consisting of 69 units, a proportion of which were to be affordable housing units under
“The commission held a public hearing on this application on February 7, 2013. The plaintiff‘s attorney and his designees explained the proposed site plan demonstrating that it would not cause any health or safety concerns, submitted a traffic report that had no safety concerns, entered favorable reports on stormwater and other environmental topics, and explained the inappli-cability of coastal management zoning. The attorney also explained the difficulties that the plaintiff faced in marketing the property for light industrial use. . . .
“The commission staff gave a presentation and the public spoke out, some favoring and others objecting to the site plan. There was also testimony from three business owners located in the LI zone of the application. Norman Birk, president of Birk Manufacturing, informed the commission that his company uses corrosive acids, liquid stainless steel and metal finishing techniques in the manufacture of circuit boards. . . . It has an approval from the Department of Energy and Environmental Protection to treat wastewater on site. . . . In 2011, Birk Manufacturing experienced an industrial accident when bari-chloride and muriatic acid were mixed, creating dangerous chlorine gas. Federal, state and local agencies, including a hazardous materials team were called to the scene, a large portion of the industrial park was evacuated and two Birk employees were hospitalized. . . .
“Two other company executives also spoke at the public hearing. The first was Susan Spellman, owner of Salon Associates, also located on Capital Drive. Her company receives, stores and ships chemicals used in the salon industry, including bleach, aerosols and acetones. In 2011 she was visited by an FBI agent to explain that the type of chemicals at her site might make her business a terrorist target, and to suggest means of safe storage. . . . Richard Beck, owner of Embalmer‘s Supply Company on Capital Drive, informed the commission that he stores embalming fluid and formaldehyde, a carcinogen on site. Evidence was taken of industrial sized truck traffic in the industrial park at all hours. . . .
“The plaintiff‘s attorney in reply stated to the commission that the project would be built in stages starting from Route 156. The only contact with Capital Drive would
“On February 21, 2013, the commission met after the close of the public hearing. It concluded that the application should be denied on the ground that it was proposed in a Light Industrial District, under § 11 of its zoning regulations.2 It was to be located in an area zoned for industrial use and in which residential uses were not permitted. The commission‘s resolution stated that it acted under the provisions of the affordable housing statutes that had an exemption for an ‘industrial zone.’ [
“Notice of the denial of the plaintiff‘s application was published on March 14, 2013. . . . On March 28, 2013, the plaintiff filed a resubmission pursuant to
“The plaintiff noted that Salon Enterprises, an operation discussed at the original public hearing, was a wholesale business, not a manufacturing facility; it conducts on-site classes for beauty parlor employees. As to Birk Manufacturing, the plaintiff showed that in the revised plan, Birk‘s building at its closest point is 360 feet from the corner of the nearest residential unit. The attorney for the plaintiff concluded that Birk did not expect future accidents. This was also confirmed by Mr. Birk. . . . Birk and Spellman from Salon did express concern that the approval of the plaintiff‘s application could cause them to have to consider moving out of East Lyme to another location. . . .
“The commission voted at its June 6, 2013 meeting to deny the plaintiff‘s amended application. The commission adopted a resolution that states in part as follows: ‘Whereas, for the purposes of this Resolution, the Commission will address the Amended Application in two separate parts: (1) As an affordable housing application that would locate affordable housing in an area which is zoned for industrial use . . . and (2) As an application for approval of an affordable housing development pursuant to
“With regard to the ‘industrial use’ exception, the commission found that the proposed development ‘would be located entirely in an area that is presently zoned Light Industrial (LI) according to the East Lyme Zoning Map.’ It further found that the LI zone provided for industrial and commercial uses and did not permit residential uses in the zone. The commission had heard testimony from business owners in the zone on the industrial uses in the area, ‘including, but not limited to, manufacturing processes, heavy truck travel and chemical manufacturing, storage and transportation.’
“It was resolved that the commission denied the amended application ‘to be located on Capital Drive at or near its intersection with Route 156 in East Lyme, for the reason that the development is located entirely in an area which is zoned for industrial use and which does not permit residential uses, and that the Application does not seek approval for assisted housing as defined in
“With regard to the general approval of an affordable housing development, [the commission found that] there was both sufficient evidence and evidence of the need to protect the public health and safety to support the commission‘s denial. The development was inconsistent with the town‘s plan of conservation and development. It was to be located in an LI zone with industrial uses, as stated above. There was an industrial accident of concern in the last year requiring evacuation of the area, drawing responses from hazardous materials teams, the Department of Energy and Environmental Protection and the federal [Environmental Protection Agency]. There was a ‘quantifiable probability’ of specific harm raising interests in
“This appeal [from the commission‘s denial of the plaintiff‘s application] was subsequently filed. On July 15, 2014, the attorneys for the parties and the court conducted a view of the site. The group met at the cul-de-sac end of Capital Drive. Birk Manufacturing was to the left, as well as a parking lot and a small garden. Outside of Birk were two burning pots of some type. Salon Enterprises was to the right. There were a few other buildings in the cul-de-sac. There was no heavy truck traffic at the time of the viewing in midday. The court and the parties walked down a path into a wooded area. To the left along this path is Camp Niantic and to the right is an open space conservation area with the Four Mile River. The entryway to the proposed project is about 400 feet from the cul-de-sac in the midst of the woods. At this point, the plaintiff proposes to place a gate and additional plantings. The court viewed the general area where the development is to be built. There were people making use of the trail into the woods for recreational activities. This trail is to serve as an emergency entrance and exit to the development. The parties returned to the cul-de-sac and drove out of Capital Drive to Route 156. The court observed the premises along Route 156, commercial in nature, the main entrance to the proposed development, and also [Bride Brook]. Sea Spray was also viewable nearby.
“Along with the view that the court conducted, the court ordered that the commission hold a further factual hearing on the ‘day-to-day operation’ of Bride Brook. This order was based on exhibit M, which dated from 1989/1990, where a Bride Brook officer indicated that the center was functioning partly as a ‘rest home.’ The commission conducted a further hearing on September 18, 2014, at which an affidavit of Dianne Caristo-Gaynor, the administrator of Bride Brook, was introduced.
“The affidavit, dated August 9, 2014, declared in paragraph 9 that the ‘second and third floors are home to 87 Long Term Care Residents.’ These residents are ‘expected to live at Bride Brook for the remainder of their lives. Some have lived here more than 15 years.’ In paragraph 10, the administrator stated the following indicia of the residents’ residing in their ‘home.’ They have no other home; they are to live at Bride Brook indefinitely; they are registered to vote at Bride Brook; they receive mail at this address; they are considered in a residential community; they participate in the planning of their medical treatment; they are allowed to manage their personal financial affairs; they participate in social, religious, and community activities of choice; they have visits from family, friends and acquaintances; and they are treated with dignity and individuality, including privacy.
“During the hearing, the zoning officer obtained testimony from the administrator of Bride Brook that the residents were closely supervised by nursing staff and a doctor on call. . . . There were no kitchens in the individual units. . . . The residents may leave the premises at will, but usually leave with relatives or in a Bride Brook van. . . . The residents must be admitted to Bride Brook on medical orders, not just on their own application.” (Citations omitted; footnotes altered.)
With that as background, the court undertook a plenary review of the record to consider whether the commission had satisfied its burden under the industrial zone
The court found: “Here . . . there is a factual record showing that there are 87 people who live, have individual and community activities and vote at Bride Brook. They consider it to be their legal residence. These are permanent residents in the zone in question, living a short distance from the proposed 60 unit residential development plan of the plaintiff.” The court analogized the circumstances presented in this case to those in Glastonbury Affordable Housing Development, Inc. v. Town Council, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 94-0543581 (September 4, 1996), in which the court directed the defendant to approve an affordable housing development where the zoning regulations permitted a “range of population-intensive uses,” including “a convalescent, nursing or rest home.” The court in the present case found: “This is also the situation here, based on the situation of the Bride Brook residents.”
The court therefore concluded that the industrial zone exception did not apply here, and thus that the commission‘s denial of the affordable housing application could not be sustained on that basis. The court remanded the matter to the commission with direction to approve the plaintiff‘s application, subject to reasonable conditions not inconsistent with approval. The commission thereafter filed a petition for certification to appeal pursuant to
The parameters of our review of an affordable housing appeal are circumscribed by
The standard of review embodied in
It is undisputed that the affordable housing development for which the plaintiff sought approval in this case represents a residential use. The only issue before us is whether the proposed affordable housing development would be located in an area that is zoned for industrial use and does not permit residential uses.
Resolution of this issue requires us to review the statutory language of
“Second, the scope of judicial review under
“Third, if a town denies an affordable housing land use application, it must state its reasons on the record, and that statement must take the form of a formal, official, collective statement of reasons for its actions. . . . By contrast, in a traditional zoning appeal, if a zoning agency has failed to give such reasons, the court is obligated to search the entire record to find a basis for the [agency‘s] decision. . . .
“We reach this conclusion based on the text and the purpose of the statute. The text requires that the town establish that sufficient record evidence supports the decision from which such appeal is taken and the reasons cited for such decision . . . . Thus, textually the statute contemplates reasons that are cited by the town. This strongly suggests that such reasons be cited by the zoning agency at the time it took its formal vote on the application, rather than reasons that later might be culled from the record, which would include, as in a traditional zoning appeal, the record of the entire span of hearings that preceded the vote. . . . Furthermore, the key purpose of
“The legislative history indicates that the legislature intended to accomplish th[e] goal [of encouraging and facilitating affordable housing throughout the state] by creating specific legislation that affects only affordable housing applications, not the overall zoning scheme. Therefore, applications that do not fit into the definition of an affordable housing application are not affected by
“Section 8-30g is not part of the traditional land use statutory scheme. Traditional
“Section 8-30g does not allow a commission to use its traditional zoning regulations to justify a denial of an affordable housing application, but rather forces the commission to satisfy the statutory burden of proof. The factors that the commission considers when reviewing affordable housing subdivision applications are the same as those considered when it passes subdivision regulations. Instead of simply questioning whether the application complies with those regulations, however, under
“Conformity [in decisions] is provided by
In sum, “zoning compliance is not mandatory prior to approval of an affordable housing subdivision application. . . . The burden of proof in
Here, neither party disputes that the proposed devel-opment would be located in an area which is zoned for industrial use. The only issue in dispute is whether that area does not permit residential uses. The commission claims that the trial court “drew conclusions of law unsupported by the record when it determined that Bride Brook Nursing and Rehabilitation Center is a residential use and the LI zone permits residential uses,” and that the “trial court‘s conclusion that Bride Brook is a residential use is clearly erroneous and is contrary to the sufficient evidence in the record showing otherwise.” (Internal quotation marks omitted.) The commission‘s arguments, however, demonstrate a misunderstanding of its burden in affordable housing appeals. As noted herein, the commission bears the burden of proving that the proposed affordable housing development would be located in an area which is zoned for industrial use and does not permit residential uses. We conclude that the commission failed to satisfy that burden.
As to the industrial use exemption, the commission declared, in response to both the plaintiff‘s initial application and its modified application for approval of the affordable housing development, that the area did not permit residential uses. More specifically, the commission stated, on both occasions, that “residential uses are not permitted in the LI zoning district.” Those declarations, particularly in the absence of any reference to any evidence in the record, appear to be based solely upon the municipal regulatory definition of the zone in which the proposed development would be located. The commission looked no further than its own zoning regulations in determining the applicability of the industrial
Although the commission did not point to any evidence in the record that the area in which it did not permit residential uses, the court, in making its plenary determination as to whether the industrial exemption applies in this case, focused on the existing uses in LI zones in East Lyme, particularly the use of Bride Brook, which had been granted a special permit as a convalescent home in 1990. On September 18, 2014, the commission held a public hearing pursuant to the court‘s remand order to develop additional information concerning the day-to-day activities of Bride Brook. Following the presentation of evidence and public commenting, the public hearing was closed and the commission transitioned to a regular meeting, during which it briefly discussed the issue presented during the earlier public hearing, and then summarily concluded that “Bride Book Nursing Home and Rehabilitation Center is not a residential use pursuant to
The East Lyme Zoning Regulations allow, by special permit, convalescent homes. Those regulations define a convalescent home as a facility that provides for those with chronic health issues,6 which necessarily contemplates more than a transient use.7 Indeed, as the trial court noted, the 1990 resolution of the commission described Bride Brook as a place where people would “reside” within the LI zone. Specifically, in a document that was submitted in connection with the application for the development of Bride Brook in 1990, as part of the “Description of Daily Activities,” it was noted that: “There will be an average of 118 persons residing at Bride Brook at any one time.” Thus, not only has Bride Brook functioned in fact as a residential use, as its administrator testified, that use was specifically contemplated ab initio and approved by the commission. We thus reject the commission‘s claims that the trial court improperly determined that Bride Brook is a residential use.
Although nonconformity with zoning designations may not, in itself, be sufficient
The judgment is affirmed.
In this opinion the other judges concurred.
SHELDON, J.
Notes
“LI LIGHT INDUSTRIAL DISTRICTS
“GENERAL DESCRIPTION AND PURPOSE—A district suitable for heavy commercial and light manufacturing, oriented essentially to major transportation facilities. The purpose of this district is to provide areas for industrial and commercial uses in an open setting that will not have objectionable influences on adjacent residential and commercial districts.
“11.1 PERMITTED USES—The following uses of buildings and/or land and no others are permitted subject to site plan approval in accordance with Section 24.
“11.1.1 Light industrial or manufacturing uses which are not dangerous by reason of fire or explosion, nor injurious or detrimental to the neighborhood by reason of dust, odor, fumes, wastes, smoke, glare, noise, vibration or other noxious or objectionable feature as measured at the nearest property line.
“11.1.2 Trucking Terminal.
“11.1.3 Printing or publishing.
“11.1.4 Warehouse and wholesale storage; self-storage warehouses.
“11.1.5 Commercial nurseries, greenhouses and garden centers.
“11.1.6 Office complex.
“11.1.7 All related accessory uses customarily incidental to the above permitted uses . . .
“11.2 SPECIAL PERMIT USES—The following uses may be permitted when granted a Special Permit by the Zoning Commission subject to the Special Permit Requirements of Section 25.
“11.2.1 Deli, coffee shop or cafeteria.
“11.2.2 Private training facilities, trade and technical schools and facilities of higher learning.
“11.2.3 Research, design and development facilities.
“11.2.4 Health spas and gymnasiums, sports facilities and other commercial indoor recreations.
“11.2.5 Hotels.
“11.2.6 Contractor or trade services.
“11.2.7 Convalescent homes.
“11.2.8 Motor Vehicle and heavy equipment Repairers Station.
“11.2.9 Office and retail sales of industrial services . . .
“11.2.10 Adult Use Establishments . . . .”
The court also found that the commission failed either to show that its decision was necessary to protect substantial public interest in health, safety or other matters pursuant to