Oxford Decision

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cv 07 401s72?s

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CORTORATION,

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.ruDICIAL DISTRTCT OF NEWBRTTAIN

V.

AT NEW BRITAIN PLANNING AND ZONING COMMSSION OF THE TOWN OF OXFORD

L

Facts and procedural

NOVEMBER 3, 2OO9

llistory

The plaintiffs, Garden Home M.anagement coqporafion and Third Garden park Limited Partnership' appeal from decisions of the defenclant, pranning and Zoning commission of the Town of oxford ("commission") denying ap. plications for: l) a text amenclmcnt to the Zoning Regulations of the Town of oxford, 2) an amendment to the zoningmap to rezone the plaintiffs, properfy' and 3) an application for a zoning permit and for site plan approval for the development of i i3 mobile manu:facturecl dwellings. Garden Hornes Management corporation is the rnanaging partner of T,lr.ird Garden park Lirnited partnership. The parties filed rengthy briefs and engaged in oral argument. The court maclc a site 'isit with the artorneys on April 24, 2009.

provides access to the oxford Airport. There is a substantial inland-wetland the properry into two buildable sections. Oue section, lcnown as

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proposed to have 1^ 4 units, all of whibh

u,il have access to Donovan Road from

a singre inter:ior road' Another section' lctown as oxford commons west, is proposed to have g9 units, ail of which u'ill have access to Hurrey *o[a no* a singre intcrior road.

Article 9A of the zoning r.rJ,rr,on., and the zoning map rocare rhe property in the corporate Business Park Distri.r 440 acres from the existing

l"Jplo").

The cBpD was established

in 2000byremoving

2.400-r.f Industrial District. I\{ost of the site is old agricultural

;,;;,;;.;i:#,.

I

the south across Hurley Road. ana

thf ftgional airport to the east. The land remaining in the

Indushial Zone is largely

HoweveJ, there are singlo_family hornes scattercd along

virtually every roadway in fhe The applications for amondmJ,ot new residentiar disrri* and would

ortn. Regulations

*+".,r" ;r.;

and the zoning map would create a

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residential district' Tlie plaintiffs ntef their applications pursuant to c.G.s. g g-30g, fte A'fFordable Housing Appeals A.t. Th[plaintiffs proposed ro ser aside 30% (35 of the r 13) units

as'?ffordablc,, units as set forth in

j

S

,Or.

I

The commission held a publif hearing which extendcd over four evenings during tlre

summ., and fall of 2006' During rn.

f*'n

, the commission received verbal. written, arrd

documentary evidence from the ptaintfffs. the public, and from the commission itself, ln a 62page memorandum dated February

I

t,lool

the cornmission denied the applications. First. the

commission decicled that the IndustriJl use exception to the affordable housing statute applied to the applications' Accordingly, thc lo*rlrrion revierved the applications in conformance

2

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reviewed thc applications again as

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PAGE A3/24

if they were enfiilcd to bs treated

as affordabre housing

applications and concluded tbat the)'shoul
received' on september 20, 2007 thecommission again de'ied the applicarions, this time in a 63-page decision' The commission fbllowed the same fonnat used in the original clccision by first deciding that the applications failed to qualif,i for treatment under affordable housing standards' but then reviewing the applications undcr those standards as well as normal standards. This appeal followed' The plaintiffs appeal only the decision denying the resubmission applications, not the original deniai. The reasons fbr appeal are that the commission's decision does not satisfu its burden

proof under

c'G's' $ 8-30g(g) in that tbe reasons fbr denial,

of

a) are not supported by substantial

evidence in the record, b) are not based upon substantiar i"nterests in public health and safety or other matten that the commission may legally consider, c) do not clearly ouhveigh the need for afiflordable housing in

oxford; and d) could have been addressed by reasonable changes to the

Application. The CBpD permr^ts the following uses:

4.1 4.2

Busine.qs or corporate offices

Research and deveroprnent facilities, incruding laboratories

4.3

Data processing facihities

4.4

Manufacturers shoqrooms and salcs offices

4.5

Printing and publishing sewices

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Broadcast and media production facilities

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PAGE 84/24

ffiHffi:

witrrin

a

buirding

wholcsale and Disribution uses pr:ovided that thcy are a component of a corporate

or business oflics or manufacturing use-

5'2

warehouses, providin g that they area. component of a corporate or business office or manufbchrring use.

,

t.,

Restaurauts, cxcluding drive through facilities.

5.4

Hotels.

5.S

Child day care facilitics,

5.6

Health and fihess clubs,

5'7

schools- collegesn universities, technical, trade. vocational,

and. business.

The Regulations also permifs bed and breakfa.st accommodations by special exception in any

dishict provided they are located, in the horne of tlre owner/operator,

Article 9 of the Regulations croates the IndustrialDistrict frorn which the cBpD u,as removed in 1999_2000. The Indushial District permits:

2.1

2'2

Wholesale & Distribution.

Manufacturing and Assembly when conducted entirely within a building.

2'3

warehousing and storage only in conjuncfion with manufacture and assembly or other perrnittsd use.

2.4

Broadcast and media production.

2.5

Banks aod financial institutions.

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2.6

Busines5, profbssional

2.7

Aviation Facilities.

2'E

Printing, publishing blueprinting & similar: rEproduction.

&

Coqporate Offices

2'll

remporary lodging when done in conjunction with corporate training as an accessory use to an industrial use' such temporary loclging sball be fbr a maximum of ten days within any calender montho as an accessory use.

The h:dustrial District creates the foilowing uses by Special exception:

3'l

Alr uses witrr a gross floor

3-2

Outdoor manufachrre or assembly.

3.3

Monument and stone cufing.

g.4

area of 50.000 square

Garden supply centers, and nurseries.

3.5

GovernmentBuildings.

3.6

(Deloed).

3.7

Lumber and Building suppll, srorage and sales.

3.8

Restaurants.

3.9

Sale of alcol:olic beverages.

3.i0

Veterinary hospitals.

3'

11

Undertaker estabrishments, crematories and funerar parrors.

3.1,2 Child day care ccnter.

3.l3 Carwashes 3.14 Medical of{ices, 3.

I5

ftet or greater.

CommerciaLRecreational Facilities.

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Garagcs and

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PAGE 86/24

Filling Stations.

3.17 lleavy Equipment sale5o storage

and rental.

3.l.8 public parking Lots. 3.19

Gas powered generating facilities,

3'20 Drive

through facilities of permitted uscs or u,ses pem:itted by speciat exception.

3'21 Retail uses when 3.22 Contractor's

IL

accessory to a manufacturing or other principal use.

yards.

Aggrjevement Aggrievernent is

a

jurisdictional question and is

a prerequisite to

maintaining an appeal.

winche'ster ll/oods Associales v. Planning and zoning comnzbsion,2rgconn. 1303,307 (1ggr). In affordable housing appcals, as in traditional zoning appeals, the plaintiffhas the burden of establishing aggrievem ent. Trimar Equ.ities, LLC v. planning & zoning Board,66 conn. App. 631' 638'3 9 (2001)' c'G's' $ s-loglq provides rhar any person whose affordable housing appeal is denied may appeal. In addition, o'owner.s ofproperty that is the s'bject of a.n application are aggrieved, and the plaintiffb may prove aggrievement by testimony at rhe tirne of trial'" winchester woods Associates v. Planning and zoning conmdssiorr, supra, 30g, The

plaintiffs are aggrieved as the owners of the properfy which is the subject of their applications denied by the Cornrnissjon.

III. Standard of Review Judicial review of a planning and zoning decision on an affordable housing application is governed by C.G.S^ 8-309 (g). That secrion providos: (g) Upon an appeal taken under subsection (f) of this section, rhe brrrden shat be on the comrnission to prt1e, based upon

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PAGE 87/24

the evidonce in the record. compired before such commission that the decision from wt:ich,,j;h;p;t is taker: and thc reasons cited for such. decjsion aie ,rpoo*ud by sufficient

il1ffi

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rhe conrmission, rhat (tXA) substantiar prrbric inter..sls in

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necessary to prorecr heartrr.-si*rr,or otrrer matters which the commission.may legally.oo.idur, @) such public inrerests crearry outweigh itt. ro.,noraaue housing; and (c) such public interests cannot bc protectJty,.rr"".ur" i.s

iui

the affordabre housingaerreropient, "i"il*_ subje* ofthe decision rrom'which;;;t;p;Hi'*", "ririrel the apprication which irt"" would locate affordable housing in un *iu" wliich is zoned for indushial use and wbich does not pcrmit iesidential uses, and (B) the developmcnt is not assisted housing, as defined in.subsectjon (a) of this.qection. If the commis.sion does not satisfy its burden orp.oor*luitni, subsection, ths tl{lwholly or partly t:evisc, *oiir", remand or reverse the decision from which the appeai consisteht with the evidence in tlie record before it.

"

was the

t1*

*"i t"t* ri;;;*.,

"[In 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 evidcnce in the record., ceneral statutes $ g-30g (g). speoifically' the court must detcrmine whether the record establishes that there is more rhan a mere theoretical possibility, but not necessarily a Iikelihood, of a specific harm to thc public interest it tbe application is gantcd. If the courr finds that such suffi,cient evidence eri.sts, then must conduct a plenary review of the rccord and determine inclependently wliether thc commission's decision was recessary to protect substantial interests in health, saftty or ot'er matters that the commission legally ffdy consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether thc public interest oan be protected by rcasonable changes to the affordable hou.si.ng development,, (Inremal quotation marks omittea')

carr

v' Planning

& zoning contmission, 273conn, sT3,sg6-g7 (2005), or

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PAGE 88/24

u'hether the application would locate affordable housing in an area *,hich is zoned for industrial use and which does not permit residcntial uses, and the development is not assisted housing.

c'G's'

$

thereto. Subpart

30s (g) "reveals two different burdens of proof for appeals brought pursuant

(l)

applies to traditional affordable housing appeals and subparr (2) applies to

affordablc housing appeals that seek to locate housing in an area zoned,for industrial use. Under both altel:natives' the burden is on the corrmissiorr first to cite the reasons for thcir decision and ' to demonstrate lfiat the reasons cited fbr such decision are.supported by sufficient evidence in the record' second' the commission shall also have the burden fo prove ono oftwo things: if it is a traditional affordable housing appcal, the commission must satis$r the three_pronged test set forth in part's (l') (A) (B) and

(c)' If the application

seeks to place housing

i'

an arca zoned for

indusHal use, the commission must only satisfy the two^pronged test set forth in parts (2) (A)

(B)." (Intemal quotation marks and citations omitted) Jordan v. OId Say hrook Zoni.ng commitsion, superior: court, Judioial District of New Britain at New Britain, Dockct No. and

0110508891 (October

3i, 2003).

"In the present case, if the commission establishes thc applicability of the industrial zone oxemption' it raust only show that the reasons it cited are sup?orted by sufficieart record evidence' I{ however, the industrial zone exemption does not apply, tbe commission must satisfy the heightened burdelr of proof set fbrttr in pa.rt

(l)

of the statute. As the industrial zone

exemption is determinative of the commission's burden of proof and rhe scope of this court,s

r€view" its applicability must be determined at the outsct. c.G.s. g g-30e (s) (2). rhe in6.ustrial zone exemption, scts forth a less stringent burden of proof than that set forth

id'

in $ g-30g (g) (l).,,

The language ofthe stahtte. and the Superior court cases which have considered it, indicate

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that the appmpriate standard ofrevicw for whether the commission las met its second burdon ol, proof is plenary review' Baker Residential L;mited partnership v. Berlin .pl.an.ning and zoning

commission, superior court, Judicial District of New Britain at New Britain, Docket No. 06 401 2368 (September 10. 200g).

IV. The Need for Affordable

Housing

The rccord demonstrates that the Town of oxford has a.substantial need for aff,ordable

housing' oxford falls below the "safe harbor" established by c.G.s.

$ 30g

(k) for towns having

at least l0% of all their: dweling units quarifo as affordabrc *nder the formura established by that

section' In oxford, the percentage of dwelling units qualifuing

as

affordable is only l.ryo,

ranking oxford uear the bottorn of connecticut's I 6g municiparitie.s. The record reveals that oxford ha.s done little or nothing to address the need for affordable housing' since 1991,

c'G's. $ s-2 has required all municipalities to adopt zoning

regulations that'?romote housing clioice and economic diversity in housing, including housing

for both low and moderate incomc households." The oxford regulations do not contain any provisions which seriously address this requirement,

V.

Discussion

A, The Reasons for Denial The Cornmission cited several reasons :{br denying the plaintiffs, applications, In accordance with the standard of review sct lbrth above, the court must first determine whether

ttie recor'd contains sufficient evidence to support the reasons cited by the cornmission for its decision.

l.

Set Aside Development

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Thc first issue which must be addressed is the commission,s argument that thc application does not come within the definition of a "set aside developmenr,, in c,G.s-

$

g-30g

(a). and thus is not an ,,af..fbrdable trousing application.,, That section defines an affor,dable

housing development as assisted bousing or a set-aside development. This project is not assistcd hor_rsi"ug.

A set-aside development is defined

as "a development

in which not less than

thirf

per

cent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that, for at least forty years after the inihlal occupation of the proposed dcvelopment, such dwelling units shali be sold or rented at, or below, prices which will preserve the units as housing fbr which P€r"lons and families pay thirty per cent or less of tbeir annual income . . .,, Tbe commission argues that there must eitber be a sale or a rental--but not.a combination of the

two--in order to qualifu. Heren the applicant proposed to sell the dwellings and rent the land where the

building is

Iocated' The commission claims that the cornbinatiou of sale and rental does not qualify. This arEument must be rejected because

I

it is not

based upon a fair reading of the language

of g30g(a).

can see nothing in the Ianguage of the definition of a set aside development which would

disqualifu the sale and rental scheme proposed by the plaintiffs, provided that the Afford abiliry Plan accounts fbr the sales price and the rent so that

it

qualifies as affordable under the stafute

and the regulations of the Department of Economic and community Developmcnt. r'lre Afford

abiliw Plan properly treats the manufachrred homes

as sale

units with the pad rent included in

monthly expenses' The plaintiff s explanation of the calculations employed in the plan convinces the court that the Plan conrplies with the statute and the regulations. For this reasou,

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the commission's decision that the plaindffs' applications do not constitute a set-aside developrtient is not supported by sufEcient evidence in the record.

2, Industriat Use Excmption Next' the commission argues tbat because of the industrial use provision in c.G.S. g$ 30g(gX2XA), the proper standard of review is as a tr:aditional application rather than as an affordable housing application- That sub-section provides an exception to the burde'-shifting requircd for affordable housing applications generally: burden-shifting does not apply to land. that is "located in an area which is zoncd for industrfal use and rvhich does not permit residential

uses'" Therefore, in order to apply the ilrdustrial use exception, the commission was required to prove (l ) that tle area is zoned for ind,ustrial use, an.d (Z)tbe area does not permit residential use. The plaintiffs contend that tlie commission has not proven either element, The par.ties agree that

the court's review of this issue musf be plonary.

In its decision, the commission determined that tle cBpD was zoned for industrial use by finding that son:e of the uses permitted in the district are indusrrial uses. The Commission relied upon evidence from the commission's professional planner, Br:ian Miller, that tbe cBpD includes industrial uses and does not permit residential uses. Mr. Miller pointecl to

"manufactuling and assernbly, if conducted entirely within the building,,, research and development facilities, dataprocessing facilities, manufhcfurers, showroom.s and sales offices.

printing and publishing services, and broadcasf and media production facilities as uses permitted as

of right' which are industial in nature. l\4r. Miller referred to the history of the cBpD which

was cteated out of the tndustrjal Zone for the purpose of implementing higher qualitl, design standards but was not a signifrcant d.eparnrre ftom the plannecl uses of tlrat zone. He also

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reftrenced t.he 1900 update of the Plan of conservadon and Developnrent which .specifically recomrnended the creation of a corporate Business parkDistrict to implement the goal of corporate office' research and development and high quarity light manufacturing uses for the area west of the airyort' Mr' N'filler stated that; "contemporary z,oningpr:actice recognizes that a range of complimentary uses are needed in industrial zoning districts. Most communities have more tltan one industrial zoning districf u,ith a 'light in.dustrial district, having higher clesign standards and more limited uses' The corpor:ate Business park Dis&ict essentially serves as

Oxford's light industrial district.,, The plaintiffs argue that tbe CBPD is not iclentified in the regulations as an ipdustrial zone; it is identified as a business park zone. oxford has an lndustrial Zonc ftom which the

CBPD was removed in 2000. The plaintiffs argue that the uses permitted in the cBpD are business uses' not industrial uses- They sec no overlap with the uses permitted in the Indushial

zone' They contend

that the indusfiial use exemption must bc

narowly constmed

an exemption from a remedial statute, that the Com.rnission's interpretation

because

it

is a

of its own

regulations is not entitled to defer:ence, and every inference must bo madc in favor of applying

s

8-309 and against the exemprion. There is no specific appcllate authority to guide the court in applying the industn'al use

exemption' Howevcr, there are two super:ior Court cases which havc been cited by the parties, ln Jardan v' old

Say brook

Zoning Camm.ission. Supen'or Court, Judicial District of New Britain

at New Britain, Docket No. 010508891,, (october 31, 2003) Judgc Tanker refused to apply the

industrial use exemption to proper$ located in a B-2 shopping center Business Distrjct despite the commission's ar,guments which are similar to tbe arguments made by the Commission in this

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case' Although the court agrecd with the commission that some of the usos permitted in the B-2 zone overlapped with some of the uses permitted in old say brook,s two industrial districts, it detennined that the f,rct that two dil'lbrent zones perrnit some of the same uses does not mean that the two zones are interchangeable.

It is the differences in the permitted uses. not

the

similarities, that are important. In support of this proposition, Judge Tankerpointed out several uses

which wer'€ permitted in the industrial zones but not in t):e business zone. shc

al.so stated

that: 'iln as'sessing whether thc B-2 zone falls within the indushr'al zone exemption, this court is

mindful of the legislative purpose behind the affordable housing land use appeals stahrre which is to encouragc and frcilitate the much needed deveiopment of alrordable housing througbout the state, and that, as a remedial statute, 8-309 must be liberaliy construed $ the legislahre intended to benefit.

in favor of those whom

If this courl wer,e to acl.opt the bmad interpretation of g-30g $

@)(z) advanced by the comrnission and expand the exemption to include not only areas zoned

for industr:ial use but also areas in whioll permitted uses overlap with areas zoned for industrial use, it would thwart the important purposes of the statute to prornote the development

of

affbrdable housing. It is an established ancl long-held rule drat statutory exceptions are to be strictly construed." (Inter:nal quotation marks omitted; citations omitted.) Id. Therelbre, the court concluded that the B-2 Shopping Center Business District was not an area zoned for industrial usc and that the industrialzono exemption was not applicable to the plaintif:f's applications.

Tbe second Superior CourJ case to have considered the indusHal zone exemption is Baker Residential Limited Partnership v. Berlin Planning and Zoning Commission, Superior Court, Judicial Disb:ict of New Britain at New Britain, Docket No. 06401236g, (September 10, 2008) decided by Judge Cohn. In that case the plaintiff sought to develop an affordable housing

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project in the office Technology

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PAGE

zone which was listed in the

Berlin

zoningRegulations

under the industrial zonecategoryThe commission found that the area of the application was zoned for indusfrial use ancl applied the industrial usc exemption. Judge cohn agreed with Judge Tanker that the court must conduct a plenary review of the record to determine whether the

industrial zone exemption applies. Judge cohn also agreed with Judge Tanker that the town,s own decision regarding the designation of fhe zone in question is "persuasive, if not dispositive.,, In the Jordan'case. the old Say brook ZoningCommission had not cafegorized tlre B-2 Shopping Center zon,e as an indusnial zone. In the Bakercase, the Berlin planning and Zoning Commission had categorized the O.T. zone as an inclustrial zone. Judge cohn stated, ..The zoning regulations establish ttre O.T. zone is zrcned industrial." I{e also agreed urith the plaintiff that the O'T' zons permits both modern and traditional industrial uses. Therefore, he found that the area is zonod for industrial use. The facts in the present case are distinguishablc frorn those

in that case.

In this case, the Commission does not categorize the CBPD

as an

industrial use. It acted

to create the GBPD in 2000 and to r€move the from the Industrial District in 2000. It could have established the CBPD as a second industrial zone but it decided not to do eo. Although ttre Comrnission is correct that labels are not detorminative. they are importaut, particularly where they were u'ritten by

tle Commission. Fufther, altlough the CBpD permits somo uses.which

might be considered modern industrial uses, they are the exception to the business

'ses

whiclr

predorninate' In contrast, the Indrctrial Zone permits uses which are predominantly-although not exclusively- industrjal in nature. I agrce with Judge Tanker that it would thwart the important puPoses of the affordable housing statute to promote the development of aflfbrdable horising

l4

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the commission were pennitted to consider the CBPD as zonod for industrial uses despite

removing it from the industrial zone and categori zing itas a business zone which pennits only a few uses which might be considered industrial.

Although I generally agrec with .Iudge Tanz€r's analysis, I also agree with Judge cohn,s position that $E-30g

(d@

is not an exception to a remedial stahrte but is r:eally an alternative to

the three-part analysis under

c,G.s. g s-30g (gxt). Therefbre, thc language of g 8-309 (gx2)

and does not need to be given a narrow constn:ction. do not find that the language of 8-309 $

Buf

even without a narrow construction,

(gxz) applics ro the f.acts of this

ca*se. Tbe

CBpD is

simply not an industrial zone; it is a business park zan.e. Iagree with the plaintiffs that if the Commission's reasoning were aclopted. every zoning commission could und,ermine $ g-30g mer:ely

by inserting a few potential industrial uses into evory non-residential zone. For the

reasons given above, the court finds that the applications would not locate affordablc housing an

arc

zoned,

for industrial

in

use.

llJre second prong of the industrial use exemption test requires a finding that tbe aroa

of

the proposed development does not permit residential uses. But, because of the court,s finding that the area is not zoned for industrial use, tlre court does not need to consider the issue

of

w'hether the CBPD permits residential uses.

In summary, the Contmission's decision that the industrial use exception applies to the plaintiffs' applications is not supported by sufficient evidence in the record. Consequently,

if

sufflcient evidence exists for auy of the other reasons for denial, the court will conduct a plenary review of the record and determine indepcndently whether the Commission's decision was necessary to protect substantial intcrcsts in health, safety or other matters that the commi.qsion

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Iegally may consider, and whether the risk of such harn to suoh public interest clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the a.ffordable housing development.

3' oxford

PIan of Developrnent, Regional Plan of Development and policy of

American planning Associafion. The next reason for denial given by the cornmission is that the proposed rezoning is inconsistent with tlre goals in the cornprehensive plan of Developmont, tlre Regional plan

of

Development and the policy advocated by the American Planning Associarion. The lggg upd,ate

for the Plan of conservation and Development recommend"s that flre area of the project sewe as a site for "modem, growing businesses and industries." It encourages "the development ofAirport Access Road as a 'high tech'boulevarcl, in line with aflractive, contemporary buildings housing

emergirg, growing busincsses." The 1998 Central Naugatuok Valley Regional plan for tle towns in that area, including oxford, identificd ttre Industrial/cBpD area as a major economic area and r€conrnends guiding economic clevelopment activities in this area. The poticy Guide on Manufacfured

llousing published by the American planning Association r.eco'lmends that

manufacturecl be allowed in residential zoning districts. Thc Commission claims that the

location of manufactur,ed homes in the CBPD is inconsistent with each of these. This argument mtrst fhil because even if these recommendations and policies amormt to sufficient evidence, and even if they rise to the level of a substantial public interest in health and safety, the Commission has failed to sustain its burden ollshowing that they outweigh the need

for affordable housing. The

neecl

for affordable housing is clear and powerful; the

recornmendations of the Comprehensive Plan of Developm.ent, the regional plan of development

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and the rocomrnendations of the American Planning Association are advisory only, see, e.g. Dutlco v' Planning and zotzing Bd- of city of Milford,l 10 conn. App. 22g, (200g) There are

superior court cases cited by the plaintiffs wbich hold that a town plan cannot serve as the basis fbr the denialof an affordable housing application. see, e.g. TCR New canaan, 1nc, v. planning and zoning Comm'is,rion, Stperior court. Judicial District ofHartford-New Britain, at Hartfor,cl, Docker No^ 94050477 (Juneg, lgg5).

4, Impact Upon the Overall Economic Development Next, the Commission argues that the proposed rezoning would have a detrimental impact upon the overall economic development within the Industrial/cpBD area. The Commission phrases it this way: "The approval of this application would remo'e a large patcel

of land directly from any potential for economic developrnent. It would also have an adverse impact upon potential CBP use of other properties within the District by undermining dernancl

for adjacent Indusfi:ial/CBP properties, thercby reducing job growtb and growth in the Town,s Grand

List." There

was testimony from experts and lay witnesses about these adverse impacts as

well as an adverse impact upon oxford's pending application for foreign trado zone clesignation in its CBPD and Industrial Districts. The Commission's planner, Brian Miller, testified about the detrimental impact of locating a residential development in the midst of tlre CBpD. Donaid

Kleppor-Smith, an ecouomist, testified that oxford would surffer a pemument loss to job growth and to the town's grand list

ifthe property were to be rezoned to residential.

Tlte plaintiffs argue, in opposition, that the considerations raised by the Commission amount to fiscal zoning which is illegal in Connecticut, even in tradifional zoning ca.ces^ The

plaintif'fs have cited scveral Superior Court cases in .support of this proposition. The

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commission has cited united Progrert, Inc. v. Borough of stoningtort planning and zoning commission, superior courf Judicial District of Hartfbrd-New Britain, at Hartford, Docket No. 920513392 (Marclr

4,

1gg4)

for the proposition that the protecrion of industrial land

can.

rjse to

the level of a substantial public interest in health and safbty which can outweigh the need for

affordable housing. That case, decided by Judge Berger, rests upon ibcts which are much different from those here. The Borough of stonington is a very small historic area on a

peninsula' Situated among the rnany historic homcs is one small parcel of industrial land which was the fbrmer site of a Mon.santo factory. The applicant in that case sought to convert the

property to residential use with an affordable housing project, The court found that the need to preserve this one industrial parcel was a substantial public interest which outweigbed the need

for affordable housing. The Borough had

onlTr

3.9y of thc total trousing units qualiff

af;Fordablc housing but Judge Berger noted that there were 352

as

multi-farnily units, 193 of which

were rented for less than $750 per month, within ttre upper limit ofthe affordable housing

definition.

So, the borough had a need for affordable bousing but not nearly as dire as Oxford,s

need' More importanlly, Oxford. unlike the borough, has significant other land zoned for industriial use' There are still neady 2000 acres remaining in the industrial zone ancl nearly 400 more acres in the CBPD. Finally, the parcel had for many years been the site of a factory. The site in this case had been a farrrn. Therefore, the thired Progre,ss case decision is factually distinguishable and cannot be used as persuasive precedent. The court finds that even if the financial considerations raised by the Commission amount to suflicient evi.dence, and even if they rise to the level of a substantial public interest in health and safety, the Commission has failed to sustain its burden of showing that thcy outrveigh

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the need for affordable housing. My plenary review of the commission's evidence reveals that is based upon speculative assumptions about tbo probability of indusrial

growth. Tbe ovidence,

particularly from Mr' Klepper-smith, is entitled to sonle weight. but not nearly as mucS as the commission gave

it' on fhe other hand, the need for affordable housing is not speculative at

all.

rt clearly outweighs the economic concerns of the commission. 5. rnconsistency

with \vaterbury-oxford Airport

prans

The commission found that concerns about noise from the ailport werc suflicient to deny. the

plaintiffs' applications. The court

has reviewecl the evidence on this poirrt and finds that the

Commission's concems are overblown. Tbe evidence is tbat the plane.s taking off from and approaching the airport do not fly over the subject property. The noise sfudy commissioned by the Connectrlcut Department of Transportation indicates that the subject propefty lies outside the area which would receive dangerous leveLs of noise. Further, the Commission has approved

other residential developments in recent years which rcceive at least as much noisc from the

airport' Finally, the fact that child day care facilities and schools

are pcrmitted in the CBpD

special exception runs counter to the Commission's claim that residential uses and safety concems. rises to the levcl

My plenary review

will

by

cause health

o:0the record does not reveal that the concern for noise

of a substantial interest in bealth or saf,ety.

6. Site PIan fssues The Commission articulated eleven "concerns" with the site plan wh.ich were raised by the expert testimony from the toum engineer, traffrc consuttant, fire

chief, and/orplanning

ptofessionals' The plaintifk argue that th.e court shoulcl disregard these concems in its revieu, because they do not believe that the Commission has

19

it

properly briefed these concerns by citing or

Lt/44/2889

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I

I

reviewing the record evidcnce, explaining the harm o,.

fn."r"

condition which may resurt frorn

each concem' or explaining why tbese conce*s .t.urtv]outweigh the need for affordablc

housing' Therefure, the plaintiffs argue that the con',mlrsion has abandoned these conce,.rs as denial reasons' In answer to this argument, the commi{sion ,"rs, l) it agrees that these concern$ could be addressed by reasonable changes; and that2)irlaia "aaress

by incorporatin$ thc commission's lengthy dccision

"n{r..ora

tbese issues in its brief and

refbrences

a.s

arl appcndix to its

brief It is true that the Comrnission's use of the page

an

limit on the initial brief. The commission

could be viewed ss a way arso

which could have been made in the initial brief. The pl

of the Commission's arguments madc in this fushion ha

concerns

iffs urge the court to consider that all been abaudoned. Although tlre court

on's '"concern.$" about the sitc to be considered by this court. These

will be addressed in order.

The Commission found that the developmont wo

condition

exceod

its reply brjefto ampiify arguments

is tempted to folloq'the plaintifflr' advise, somc of the plan raise important health and safety issues u,hich

to

on.

Bristoi-Town Road by increasing two-way

thc stopping distance is limited, tliereby increasing the li

safety. The 99 units in Oxford Commons West will

exacerbate an unsafe traffic

in

a

narrow 16'wide road where

of accidents and reducing their sole access and egres.s on Hurley

Road. To the west, Hurly Road soon crosses into

where it is known as Bristol-Town

Road, The Torvn of Southbury and the Commjssion's

consultant both opined that the

present road is narrow, presentrs safbty issues, and that

traffrc will exaggerate the safety

pmblems. The plaintiffs argue that tt:is issue has becn

by an amendment to the site

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PAGE 21./24

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traffic exiting the site by Hurley Road to rurn left, fbllowing Hurley Road

to Donovan Road to oxford Airport Road. This refinement prevents outgoing traffic from using Br:istol-Tor'r'n Road. Also, the Hurley-Donovan-Airyort Roads route

will

be widencd and

repaved' The commission expressod coflcenr tbat this refinement may not prove to be effective in prevcnting lcfl furns onto Flurley Road and would only address cxiting traffic, rot trafyic entering the site, especialry during the afternoon commuting time.

My ourr review of tho recorcl

does not lead nre to conclurde that the Commis.sion,s safet5r

concerns amount to a substantial public interest which clearly outweighs the need lbr affordable

housing' Even if they did' these concerns can be handled by reasonable conditjons which addrcss the Commissions' concerns. After all, the Cornmission desires to reserve this Iand business uses which could present even more diffrcult

for

haffic issues, especially with large trucks.

The Commission should impose reasonable conditions, just as it would have done

if

the

plaintiffi

had proposed a bu,siness use.

The second health and.safety concem also involves access to the site. The Commission found that the portion of the project containing 99 units known as Oxfbrd Commons west

wiil

liave oniy one entrance and that there should be two distinctly separate routes, each located as

remotely from the other as possible, The cxpert eviclence on t'his point is conflicting. 1he

plaintiffs rely upon their expert u,ho testified that the plan.s vvere safe and in accordancc with national standar.ds, provided that there were

an,

emergency access which could be used by

emergency vehicles. The site plan shows an emergency shlpr from Oxfor.d Aocess Road to the

rThe

final revision of the site plan calls for this strip to 16 feet wide. af a maximum grade pavers with topsoilind grass."

of 12% and to have a.surface of "pvd

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corner of thc closest dead-end road witl:in the developrnent. The testinrony at the hearing was that this strip would gated to prevent nonnal access and egress but could be opened by cmergency personnel' The site plan review of thc plaintiffs' fire safety expert, Joseph Versteeg, dated

April 18,2007 specifically states: "The provision of a remotely located

secondar), access

roadway ensures access to the site in the unlikcly evenf the primary entra.nce route is biocked. The altemative plan depicting an emergency access roadway likervise ensures acccss to ttre sitc

in the unlikely event of a blocka8e." Tbe commission's own experts opined that a second access road' not just an unpaved emergency entrance, is critical for safe and efiFrcient access and egress.

In opposition to the Commission's oxperts, the pla,intiffs argue that the entrance on Hurley Road will be divided by islands which will separate the entering and existing haffic, making it more difficult to block. Howevor, thc Conrmission's expert opines that this layout does not provide sufilcient geometry to be considered anything other than a single acoess.

My

own review of the record leads me to conclurde that a single acces.s poi.nt for thc 99 units in Oxford Comrnons West presents a serious heal.th and saftty issue which clearly outweighs the need for affordable housing. Affordable housing units should be just as safe as any other form

of

housing' The emergency access proposed l:y the plaintilTs is inadequate to safeguard the residents from the danger of one entrance being blocked, The reliance upon the proposcd em.ergency entrance is

insufficicnt. The uso of this access wouJd be subject to conftision and to

human en:or in the event of a real emergency. Ttris issue could be resolved with a condition that requir,es the plaintiffs to provide a

full second

access point which is separated

22

fiom the access on

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H,urley Road.2

The next health and safety condern of the commission involves inadequate internal !

haffic circulation and inadequate hu:nilrg radii to permit fire trucks to tum

in. the hammerheads

i

on tbe dead end roads' There are 9 dcdd-end roads with harnmerhead turnarounds at thc end

each' Although the plaintiffs revised

of

i

tl,heir

plan to increase tire size of tbe hammerheads. rhe

I

commission's expert as well as the oxFord Fire Depanmcnt opined that they were still too i

cramped to permit large fire

tucks to elrecute efficient 3-point i

turn,s, eyen assur1ing that there

are no cars parked in the hammerheadsiand that ther.e are no snow plies which infringe.on the ;

paved roadway' Thc commission's eniineering expert, David Nafis, is also of t3.e opinion that i

despite the inuease in size

ofthe

hamnrlerheads, they are

still not large enough fbr

th.e

su-30 fire

i

truck to turn around. This concern ties ln with the next concern expressed by ttre Commission i

which deals with inadequate parking3. fhe Commission's expert believes t6at the lack

of

I

parking at the units may lead people to fark in the hammerheads- Since the interjor roads ancl :

hamrnerheads

will

bc private, the town *iuill lra"u no authority to enforce parking restrictions. ;

Although the plaintiffs dispute the Corn{nission's findings, my own review of the record is in

t'

rThe

record-refle-cts that the plaiJtiffs'position at the June 7, 2007 hearing was that they belicved it was preferable to have a secdpd and had rppii"a to the Connecticut Depailmont of Tran.lportation for permidsion"...ss-*uy to provide a full acieis-way onto Oxford Airport Road, or, in the alternative, an emergend of access. There is a letter of denial in ft; record from DOT, both for full access qlo rot emergency access, bascd upon reasons which are not analyzed in this appeal. In any uuunf, the r:ecorcl rcflLcts that the plaintiffs claim to have withdrawn_their application to DOT bcfdre action was to bc taken by DOT. Therefore, the plaintiffs claim that the lctter of deni.d dom DoT "must be regarded as an ad,visory statement as to what would have happened had the ap$lication been pursue-d" ,atn", tt a.oial per se,,,

*.*i

*.

rThe

site plan calls for one or twd-car gaf,ages for parking plus spaces fbr two cars in the

drivewa;'s.

I

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accord with that of ttre commission' The design of the dead-end streets and the lack of space to park at the units will undoubtedly lead to impr:opcr parking in places which will makc it very

difficult for fire kucks to mancuver. I agree with the commission,s rriew that these

ar.e health and safety deficits in the site plan which clearly outweigh the neod for affordable housing.

However' tbese concerns can be handled rvith reasonable conditions which would. require tbe arnendment ofthc site plan to eliminate thesc intemal traffic deficiencies. The commissions had other health and safefy concerns as well, including inadequate provision for snow removal and unacceptable erosion and drainage on the r,r,est side of the

propetty' My own review of the record reveals that these conoerns rise to tlie Ievel of healtb and safety risks u'hich clearly outweigh thc need for affordable housing, but that each coulcl be easily addressed wi th r.easonable conditions.

V'I. Remedy The court sustains the appeal and remands tl:is matter to the commission and orders it to approve the text ameodment to the zonngRegulations and the amondrnent to the zoning map, and to approvo the site pian and zoningpernrit applications subject to reasonable and necessary conditions, n'ot inconsistent with this decision, for: t) a full second access road which is .separated from the access on Hur:ley Road; 2) aclditional parking; 3) redesign of the

hammerheads at the ends of the interjor sheets to pennit fire trucks to nrake eflicient turns; 4) snow removal in the hammerJteads; and 5) erosion and drainage on the west side of the property.

BY THE COI'RT,

24