37 Conn. App. 303 | Conn. App. Ct. | 1995
This appeal arises from the denial by the planning commission of the town of Berlin of the plaintiffs’ affordable housing subdivision application. The plaintiffs appealed that denial to the trial court, which sustained the appeal and ordered the commission to approve the plaintiffs’ application. We affirm the judgment of the trial court.
Certain facts are relevant to this appeal. The plaintiffs, Joseph Wisniowski and Stanley Wisniowski, filed, in accordance with General Statutes § 8-30g, an affordable housing development application
The property that the plaintiffs sought to subdivide was zoned R-43 by Berlin. This zoning designation requires that the minimum size of any lot be at least 43,000 square feet.
The commission held a public hearing on the subdivision application and then denied the plaintiffs’ appli
The trial court evaluated the reasons that the commission asserted for rejecting the application and found that these reasons were insufficient to satisfy the commission’s burden of proof under § 8-30g, the affordable housing land use appeals statute.
The commission then sought certification in this court, which we granted. On appeal, the commission claims that the trial court (1) improperly concluded that § 8-30g overrides both the requirement that an applicant seek a zone change prior to obtaining subdivision approval pursuant to General Statutes § 8-26, if the development proposed does not comply with municipal zoning regulations, and the uniformity requirement
I
The first question that we must address is whether this appeal is taken from a final judgment.
“A judgment by a trial court ordering further administrative proceedings cannot meet the first prong . . . because, whatever its merits, the trial court’s order has not terminate[d] a separate and distinct proceeding. The more difficult question is whether the trial court’s order so concludes the rights of the parties that further proceedings cannot affect them.” (Internal quotation marks omitted). Id., 409-10.
The distinction is premised on the reasoning that when a trial court concludes that an administrative ruling was in error and orders further administrative proceedings on that very issue, it is considered a final judgment “in order to avoid the possibility that further administrative proceedings would simply reinstate the administrative ruling, and thus would require a wasteful second administrative appeal to the Superior Court on that very issue. . . . A trial court may alternatively conclude that an administrative ruling is in some fashion incomplete and therefore not ripe for final judicial adjudication. Without dictating the outcome of the further administrative proceedings, the court may insist on further administrative evidentiary findings as a precondition to final judicial resolution of all the issues between the parties. . . . Such an order is not a final judgment.” (Citations omitted.) Schieffelin & Co. v. Dept. of Liquor Control, supra, 202 Conn. 410.
Kaufman v. Zoning Commission, supra, 232 Conn. 128, held that there was a final judgment where the
“Even more important, the trial court’s judgment required the commission to approve the plaintiffs application. With respect to this central issue, the trial court’s decision so concludes the rights of the parties that further proceedings cannot affect them. . . . After explicitly resolving all [of] the issues in favor of the plaintiff’ . . . the trial court remanded the case only for the limited purpose of allowing the commission to impose reasonable conditions on or make reasonable changes to the development, if it so chose. Because the proceedings on remand cannot deprive the plaintiff of the zone change that the trial court has ordered to be approved, the trial court has rendered a final judgment and this court has subject matter jurisdiction over the commission’s appeal.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 130-31.
We face a similar situation. Here, the trial court rendered a final decision on the affordable housing application, and held that the application should be granted. The proceedings on remand cannot affect the trial court’s decision because the two lots that are the sub
II
The commission’s first claim is that the trial court should have found that it was necessary for the plaintiffs to seek a zone change prior to submitting a § 8-30g subdivision proposal that does not comply with the underlying zoning of an area. The commission refers this court to General Statutes § 8-2,
The commission argues that the plain language of § 8-30g indicates that it is an appeals act only, and, therefore, the fact that an appeal is brought under § 8-30g should not affect the standards and law applicable at the administrative level of land use decisions regarding affordable housing. Further, the commission argues that the legislative history of § 8-30g recognizes the need for a developer to comply with existing zoning or to seek zoning amendments to obtain approval for proposed developments. Thus, the commission’s basic claim is that the trial court improperly concluded that § 8-30g overrides the requirements of §§ 8-26 and 8-2.
Our conclusion is that the plain and unambiguous language of § 8-30g does not contemplate a denial of an affordable housing subdivision application on the ground that it does not comply with the underlying zoning of an area.
“ Tn construing a statute, we seek to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation . . . .’ ” (Citations omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507-508, 636 A.2d 1342 (1994).
General Statutes § 8-30g (c) provides in pertinent part: “Upon an appeal ... the burden shall be on the commission to prove, based upon the evidence in the
The burden of proof established in § 8-30g is a specific, narrow standard that a commission must satisfy on appeal. The plain and unambiguous language does not list noncompliance with zoning regulations as a reason to affirm the denial of an affordable housing subdivision application. The commission argues, however, that even if § 8-30g does not, itself, contemplate the denial of an affordable housing subdivision application on the ground of zoning noncompliance, § 8-30g should not affect the traditional land use policy as found in §§ 8-2 and 8-26. Therefore, despite the burden of proof established in § 8-30g, according to the commission, it must nevertheless deny an affordable housing application that does not comply with the zoning regulations, and the trial court must affirm the denial on that ground.
To the extent possible, statutes should be reconciled. Spring v. Constantino, 168 Conn. 563, 572, 362 A.2d 871 (1975). When two statutes conflict, however, as in the present case, the more specific legislation governs over the general legislation; McKinley v. Musshorn, 185
The commission contends that according to the plain language of the statute, § 8-30g applies only to appeals. This argument, however, assumes that administrative proceedings exist in a vacuum. The burden of proof in § 8-30g dictates the only effective reasons for a commission to deny an affordable housing application. That burden necessarily establishes the standards of the underlying proceeding. Section 8-30g, therefore, affects the administrative proceedings concerning affordable housing subdivision applications, as well as the appeal proceedings. The narrow rigorous standard of § 8-30g dictates that the commission cannot deny an application on broad grounds such as noncompliance with zoning. Section 8-30g anticipates that there will be many different types of applications that may be brought to many different types of agencies. Kaufman v. Zoning Commission, supra, 232 Conn. 137; West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 510-11. For example, in Kaufman, the application was made to the zoning commission, in West Hartford, to the town council, and in the present case, to the planning commission. Whichever zoning authority is asked to deal with the application, a zone change will necessarily be embodied in the application, either as to use, or as to bulk, as is the case here. If no zone change were
The requirement of uniformity of § 8-2 “does not militate against the grant of a specific exception to a general zoning requirement so long as the exception is reasonable and for the general community benefit rather than for the benefit of a single landowner.” Lavitt v. Pierre, 152 Conn. 66, 75, 203 A.2d 289 (1964). Clearly, affordable housing legislation is for the benefit of the entire community, as well as for that of the state. West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 511.
The conclusion that zone conformity is not a mandatory prerequisite to approval of a subdivision application is consistent with the intent of the legislature as reflected by the legislative history of the affordable housing law. During the house debate, when asked by Representative Robert Farr if the fact that a proposed plan called for a multifamily dwelling in a single-family zone would in and of itself be a basis for denial of an application, Representative William J. Cibes, Jr., responded: “[T]he answer is no, not per se. The municipality might have very good grounds for not having multifamily dwellings in the particular area. The soil
The commission refers to this passage and two others to support the position that the legislative history infers that the legislature clearly intended that zoning conformity be required. First, the commission cites Senator Richard Blumenthal as stating that “it is important to understand that these decisions involve specific projects on particular pieces of land and do not provide for any kind of general zoning override.” 32 S. Proc., Pt. 12, 1989 Sess., p. 4048. Next, the commission cites another passage from the floor debate in which Representative Cibes commented that “no one is suggesting that we’re going to build a 20-story high rise on two acres of land out in Roxbury. . . . This [statute] is a step forward. It provides some meaningful standards. It is within the constraints of the existing zoning statute. It is a narrow procedure which is available only to a few kinds of developers, developers who propose to build affordable housing and I think that it is important that we recognize this and recognize the limited nature of this action.” 32 H.R. Proc., Pt. 30, 1989 Sess., pp. 10662-64. The commission claims that these passages evidence the intent of the legislature to require zoning conformity.
The “key purpose of § 8-3 Og is to encourage and facilitate the much needed development of affordable housing throughout the state.” West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 511. The legislative history indicates that the legislature intended to accomplish this goal by creating spe
The commission claims that if we affirm the trial court’s decision, we will render affordable housing applications unworkable by local land use commissions acting in their administrative capacity because land use commissions would be forced to guess which regulatory standards should apply to proposals that do not comply with local zoning. We disagree.
Section 8-30g is not part of the traditional land use statutory scheme. Traditional land use policies did not solve Connecticut’s affordable housing problem, and the legislature passed § 8-30g to effect a change. The commission makes the mistake of looking at § 8-30g applications as though they were traditional zoning applications.
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.
The commission asserts that it will not have any guidance in making its decisions, and, therefore, that there will be no conformity in the decisions. Conformity is provided by § 8-30g because each decision must be justified in terms of the factors enumerated in the statute. Essentially, every subdivision application must be approved unless there is a justifiable reason to deny the application. The commission must look at the rationale behind its regulations to determine if there is a substantial interest, outweighing the need for affordable housing, that must be protected by the denial of an application.
We conclude that § 8-30g was correctly interpreted by the trial court to allow the plaintiffs to seek subdivision approval for affordable housing without first seeking a zone change.
The commission argues that the trial court improperly usurped the discretion of the Berlin zoning and planning commissions, first, by ordering approval of the plaintiffs’ development, despite the proposal’s noncompliance with the established zoning, and, second, by undertaking its own evaluation of whether the subdivision proposal was consistent with other zones within the town.
Certain facts are relevant to this claim. After the trial court determined that zoning compliance was not a mandatory prerequisite to subdivision approval under § 8-30g, the court addressed the issue of the denial based on noncompliance under traditional land use law. The court noted that the proposal presented a situation in which the variation was not a use variation, but rather a bulk and lot variation. Because this type of variation is not totally inimical to the underlying zoning scheme, the court concluded that the commission had a basis, in town wide bulk and lot requirements, for evaluating the application.
The commission first argues that when the trial court ordered approval of the plaintiffs’ application it essentially rezoned part of Berlin without the zoning commission’s approval. We have already concluded that zoning compliance is not mandatory prior to approval of an affordable housing subdivision application. Land use commissions derive all of their power from the General Statutes. Capalbo v. Planning & Zoning Board of
Here, the trial court found that the commission had failed to satisfy its burden of proof under the statute and accordingly reversed the decision of the commission. Although the effect of that action was to approve a subdivision application that did not comply with the existing zoning of the area, the decision did not usurp the authority of Berlin’s zoning commission.
Second, the commission claims that the trial court usurped the commission’s authority when the court conducted its own policy review of the application based on standards it gleaned by reviewing regulations applicable to other properties and uses in Berlin.
“[WJhere a zoning commission has formally stated the reasons for its decision the court should not go behind that official collective statement of the commission. It should not attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission’s final collective decision.” DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970).
Here, the commission asserted noncompliance with existing zoning as one reason for denying the plaintiffs’
Because the trial court was concerned with the issue of standards by which a commission could judge an application, the trial court examined the town wide zoning plan to determine whether the bulk and lot sizes of the proposed development complied with Berlin’s regulations. This review may have been superfluous, but it was not a usurpation of the commission’s authority. A determination of whether a plan is in violation of public health and safety regulations is an appropriate exercise of authority under § 8-30g.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 8-30g provides in relevant part: ‘ ‘affordable housing land use appeals procedure, (a) As used in this section:
“[General Statutes] Sec. 8-39a. ‘affordable housing’ defined. As used in this title, ‘affordable housing means housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to the area median income for the municipality in which such housing is located, as determined by the United States Department of Housing and Urban Development.”
The original application of the plaintiffs provided for the property to be divided into thirty-two lots. The application was subsequently modified to provide for a division into thirty lots.
This is approximately one acre in size.
The six remaining reasons are as follows: “(2) There was insufficient demonstration that there would be no adverse impact on the adjacent neighborhood. (3) It was not demonstrated that affordable housing units will be of comparable size and workmanship as intended by the legislature in its affordable housing legislation including Section 8-2g. (4) There was no information given on housing prices nor any financial justification given for the proposed density bonus. ... (6) There is insufficient usable area on-site for recreational purposes to support the increased density. ... (8) The property is within a watershed and recharge area for potential wells and future water supply. No evidence has been presented to indicate that the development will not be detrimental to future water supply development. (9) Approval of this application would subvert the planning process for affordable housing as outlined in the Plan of Development.”
Some of these issues were resolved on a prior remand by the trial court to the commission.
General Statutes § 8-30g (c) provides: “Upon an appeal taken under subsection (b) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that (1) the decision from which such appeal is taken and the reasons cited
Subsection (b) provides in pertinent part: “Any person whose affordable housing application is denied . . . may appeal such decision pursuant to the procedures of this section. ...”
Although this issue was not briefed by the parties, they were asked by this court to address the issue of whether there was a final judgment at the time of their oral argument because of our concern that our subject matter jurisdiction was implicated.
Schieffelin & Co. v. Dept. of Liquor Control, supra, 202 Conn. 405, discusses administrative appeals under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. After this case was written, however, effective July 1, 1989, the UAPA was amended. “For appeals governed by the Uniform Administrative Procedure Act, General Statutes § 4-183 (j) provides in relevant part: ‘For purposes of this section, a remand is a final judgment.’ ” Kaufman v. Zoning Commission, 232 Conn. 122, 129 n.6, 653 A.2d 798 (1995). The reasoning of Schieffelin, however, remains applicable to cases not falling under the UAPA.
General Statutes § 8-2 provides in relevant part: “regulations. . . . Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district . . . .’’See Veseskis v. Bristol Zoning Commission, 168 Conn. 358, 360, 362 A.2d 538 (1975).
General Statutes § 8-26 provides in relevant part: “approval of subdivision AND RESUBDIVISION PLANS. WAIVER OF CERTAIN REGULATION REQUIREMENTS. APPLICATIONS INVOLVING INLAND WETLANDS AND WATERCOURSES. . . . The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision under the provisions of this chapter, provided nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. . . .”
General Statutes § 8-25 (a) provides in relevant part: “Such regulations shall provide that the land to be subdivided shall be of such character that
General Statutes § 8-25 (c) provides: “The regulations adopted under subsection (a) of this section, may, to the extent consistent with soil types, terrain, infrastructure capacity and the plan of development for the community, provide for cluster development, and may provide for incentives for cluster development such as density bonuses, or may require cluster development.”
The commission argues, in a footnote in its brief, that the trial court’s analysis calls into question the constitutionality of one acre zoning in Connecticut. The commission, however, did not analyze this issue. “Both this court and our Supreme Court have declined to review constitutional claims, deeming them to have been abandoned, when the defendant has not briefed and analyzed the claim.” State v. Harrison, 30 Conn. App. 108, 122-23, 618 A.2d 1381 (1993). We choose not to review this claim.