Mackowski v. Zoning Commission
Mackowski v. Zoning Commission
Opinion of the Court
Opinion
The plaintiffs, Edward F. Mackowski and Fairfield 2000 Homes Corporation,
The following facts are undisputed. Mackowski owned two parcels of property on Judson Place in Strat-ford and decided to develop affordable housing units on his parcels after reading a notice posted by the town of Stratford in a newspaper. Specifically, the notice stated that the town was seeking sites for housing for the elderly and specified that preference would be given to sites containing forty units or more.
On February 15, 1995, the plaintiffs submitted an application to the commission to construct an apartment building that would provide forty-three units of housing for senior citizens, with eleven of those designated as “affordable housing” pursuant to General Statutes § 8-39a.
The trial court concluded that there was sufficient evidence in the record to support the fifth reason stated by the commission for denying the plaintiffs’ application, namely, that “[t]he adverse impacts on the health, safety, and welfare of the community which would be created by the scale, density, [and] massiveness of this project and its impact on traffic patterns appear unnecessary in achieving affordability for [the plaintiffs’] development.” Specifically, the court found that there was sufficient evidence for the commission to have concluded that the proposed development could have an adverse impact on the sewer system, and that such an impact implicated a substantial interest in the public health. The court also found that traffic safety was a substantial public interest and that there was sufficient evidence to show that traffic congestion in the area
The plaintiffs claim that the commission failed to meet its burden by proving, by sufficient evidence, that a substantial public interest in health or safety clearly outweighed the need for the plaintiffs’ housing units for the elderly. We agree.
The following additional facts are necessary to the resolution of this appeal. At the public hearings, the plaintiffs submitted a “Traffic Impact Report” prepared by I.K. Chann Associates, Transportation Engineers (report). The report summarized data concerning existing traffic and parking conditions in the area surrounding the proposed housing. Using special traffic counts, the report included a calculation of the capacity of the intersection of Judson Place and Main Street, the intersection most likely to be affected by the development. The report, applying industry standards as defined in a 1985 highway capacity manual, stated that the existing capacity levels during the morning and evening rush hours were good to excellent and that considerable reserve capacity was available at the intersection that could accommodate any future traffic growth caused by the development.
A study of accident data on Judson Place and its two intersections was also conducted, the results of which were included in the report. It was found that seven minor accidents, with no injuries, had taken place on Judson Place and at its two intersections during the period of 1992 through 1994. Thus, the report stated that there were a small number accidents in the area.
The commission also compiled information concerning the impact on traffic from the plaintiffs’ proposed development, which essentially corroborated the report submitted by the plaintiffs. An employee of the town planning department prepared and submitted to the commission a document entitled “Traffic Impact Study Evaluation” (study) that verified the figures and rates in the report that had been submitted by the plaintiffs. The study also stated that additional traffic on Judson Place resulting from the proposed housing would total between 1.5 percent and 3.3 percent and that the volume of the average daily traffic on Main Street would increase by less than one percent, a rather insignificant amount. Furthermore, the town’s police department, fire department, engineering department, building department, public works department and health department were all given the opportunity to review the plaintiffs’ application and plans, none of which had unfavorable comments concerning the proposed housing plans.
The only individuals who expressed concern about the traffic density at the development site were some of the neighboring residents, who stated that the traffic
General Statutes § 8-30g (b) governs the plaintiffs’ appeal and provides in relevant part: “Any person whose affordable housing application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units . . . may appeal such decision pursuant to the procedures of this section. . . .”
In Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 735 A.2d 231 (1999), our Supreme Court identified the differences between an affordable housing land use appeal pursuant to § 8-30g, and a traditional zoning appeal. “First, an appeal under § 8-30g (b) may be filed only by an applicant for an affordable housing development whose application was denied or [was] approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units .... Thus, where the town has granted such an application, either outright or without imposing such restrictions, there is no appeal under § 8-30g (b).
“Second, the scope of judicial review under § 8-30g (c) requires the town, not the applicant, to marshal the evidence supporting its decision and to persuade the court that there is sufficient evidence in the record to support the town’s decision and the reasons given for
“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. Id., 544. 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 .... General Statutes § 8-30g (c) (1) (A). 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 statute requires that the town establish that: its decision [was] necessary to protect substantial public interests in health, safety, or other matters which the [agency] may legally consider; General Statutes § 8-30g (c) (1) (B); those interests clearly outweigh the need for affordable housing; General Statutes § 8-30g (c) (1) (C); and those public interests cannot be protected by reasonable changes to the plan. General Statutes § 8-30g (c) (1) (D). These
Here, the commission has failed to meet its burden of proving, by sufficient evidence, 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. The evidence adduced at the public hearings failed to specifically address the reasons why the public interests involved were substantial enough to outweigh the town’s undisputed need for affordable housing. At the hearings, a number of concerns and issues were raised about the proposed development, including its impact on density, the town plan of development for the area, traffic, parking, zoning regulations, the sewer system and housing affordability. The trial court found that the commission had failed to produce sufficient evidence to support its denial of the plaintiffs’ application as to most of these issues except for those relating to the adverse impact on traffic and the sewer system.
The judgment is reversed and the case is remanded with direction to sustain the plaintiffs’ appeal.
In this opinion SPEAR, J., concurred.
Fairfield 2000 Homes Corporation is a regional nonprofit development corporation that has developed more than 200 affordable housing units in 1he cities and towns of Stamford, Bridgeport, Westport, Darien, Danbury and Wilton.
The commission claims that the public interest in health and safety could not be protected by reasonable changes to the plaintiffs’ proposed development. Because we agree with the plaintiffs that the commission failed to meet its burden of proving, by sufficient evidence, that a substantial public interest in health or safety clearly outweighed the need for the plaintiffs’ housing units for the elderly, we do not address this issue.
General Statutes § 8-39a defines “affordable housing” as “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 site, which is located near the center of the town and surrounded by several asphalt parking lots, is a combination of three separate parcels of land containing approximately 67,686 square feet.
The commission ciled six specific reasons as to why the plaintiffs’ application was being denied: (1) “There are technical zoning deficiencies regarding the lot lines for this development”; (2) “This petition is in violation of two sections of the existing Zoning Regulations—Section 5.3 under which the petitioner has filed this application and Section 12 (parking)”; (3) “There are several major inconsistencies with goals, policies and recommendations of the Town’s current Plan of Development”; (4) “The proposal lacks sensitivity to the existing character of the surrounding neighborhood which has unique historic value, evidenced by its being listed in the National Register of Historic Places"; (5) “The adverse impacts on the health, safety, and welfare of the community which would be created by the scale, density, [and] massiveness of this project, and its impact on traffic patterns appear unnecessary in achieving affordability for this development”; and (6) “Since this petition has been submitted with reference to Section 8-30g of the Connecticut, General St atufes, the Zoning Commission recognizes its responsibility to weigh the merits of this proposal in view of the community’s need for affordable housing. After careful consideration of evidence in the record, the Commission believes that the anticipated adverse impact of this development on the neighborhood and the community as a whole far outweigh the need for the eleven affordable units that would be created by this development.”
Dissenting Opinion
dissenting. I respectfully dissent from the majority’s conclusion that the commission failed to meet its burden of proving, by sufficient evidence, that a substantial public interest in health or safety clearly outweighed the need for the plaintiffs’ housing units for senior citizens. Accordingly, I would affirm the judgment of the trial court dismissing the plaintiffs’ appeal from the decision of the commission denying their application to construct housing units for elderly residents.
As noted by our Supreme Court in Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 585, 735 A.2d 231 (1999), sufficient evidence in this context means “less than a preponderance of the evidence, but more than a mere possibility. We stated that the 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. . . . Thus, the commission was required to show a reasonable basis in the record for concluding [as it did]. The record, therefore, must contain evidence concerning the potential harm that would result if the zone were changed . . . and concerning the probability that such harm in fact would occur.” (Citation omitted; internal quotation marks omitted.) In an affordable housing land use appeal, as in a traditional zoning appeal, “[t]he zone change must be sustained if even one of the stated reasons is sufficient to support it.” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994).
One of the reasons stated by the commission in its memorandum of decision for denying the plaintiffs’ application was that the proposed development would have a negative impact on traffic in the area. The commission reached that conclusion not on the basis of speculation, but with support from specific testimony
Accordingly, I respectfully dissent.
The traffic report, submitted by the plaintiffs and noted by the majority, which tends to support the conclusion that the proposed development would not significantly increase area traffic, states that traffic generated by elderly housing of this type is minimal and that the planned parking will not be fully occupied because the housing would consist of an elderly population. The trial court questioned the reliability of such a statement given that the term “elderly housing” might not adequately describe the development. The trial court stated: “There was much dispute about what the actual makeup of the residents of the project would be. Even if restricted as ‘elderly housing,’ only one resident must be 62 or older, meaning the resulting mix could need more or less parking than the ‘average’ elderly housing project. Therefore, any conclusions based on the elderly designation of the project are suspect.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.