Brenmor Properties, LLC v. Planning & Zoning Commission , 326 Conn. 55 ( 2017 )

 BRENMOR PROPERTIES, LLC v. PLANNING
AND ZONING COMMISSION OF
THE TOWN OF LISBON
(SC 19665)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Syllabus
The plaintiff developer appealed to the trial court from the decision of the
defendant planning and zoning commission denying its application for
an affordable housing subdivision pursuant to statute (§ 8-30g). The
commission had denied that application on the ground that the project,
as proposed, did not comply with a municipal ordinance governing the
construction of roads or the state fire safety code. The trial court ren-
dered judgment sustaining the plaintiff’s appeal, concluding that neither
noncompliance with the ordinance nor noncompliance with the fire
code constituted a valid ground on which to deny the application, and
remanded the matter to the commission with direction to grant the
application as presented. The commission appealed to the Appellate
Court, which concluded that the trial court properly sustained the plain-
tiff’s appeal and did not abuse its discretion by ordering the commission
to approve the application as is. The commission, on the granting of
certification, appealed to this court from the Appellate Court’s judgment.
Held that the Appellate Court properly affirmed the judgment of the
trial court, this court having concluded that, following consideration of
the arguments presented, the Appellate Court’s opinion should be
adopted as the proper statement of the issues and the applicable law
concerning those issues, and, in light of the commission’s concession
before both the Appellate Court and this court that the abuse of discre-
tion standard of review applied to the trial court’s decision to order the
commission to approve the plaintiff’s application as presented, this court
declined to consider the standard applicable to a trial court’s affordable
housing remedy under § 8-30g.
Argued January 20—officially released June 27, 2017
Procedural History
Appeal from the decision of the defendant denying
the plaintiff’s application for subdivision approval,
brought to the Superior Court in the judicial district of
New London and transferred to the judicial district of
Hartford, Land Use Litigation Docket; thereafter, the
matter was tried to the court, Shluger, J.; judgment
sustaining the appeal, from which the defendant, on
the granting of certification, appealed to the Appellate
Court, Gruendel, Mullins and Sullivan, Js., which
affirmed the judgment of the trial court, and the defen-
dant, on the granting of certification, appealed to this
court. Affirmed.
Michael A. Zizka, for the appellant (defendant).
Timothy S. Hollister, with whom were Beth Bryan
Critton and Andrea L. Gomes, for the appellee
(plaintiff).
Mark K. Branse and Caleb F. Hamel filed a brief for
the Garden Homes Management Corporation as ami-
cus curiae.
Opinion
PER CURIAM. This certified appeal requires us to
consider the relationship between a town’s roadway
construction standards and the more flexible treatment
given to development proposals made pursuant to the
Affordable Housing Appeals Act, General Statutes § 8-
30g. The defendant, the Planning and Zoning Commis-
sion of the Town of Lisbon (commission), appeals, upon
our grant of its petition for certification, from the judg-
ment of the Appellate Court affirming the judgment of
the trial court sustaining the administrative appeal of
the plaintiff, Brenmor Properties, LLC. Brenmor Prop-
erties, LLC v. Planning & Zoning Commission, 162
Conn. App. 678, 680, 136 A.3d 24 (2016); see footnote
4 of this opinion. On appeal, the commission claims
that the Appellate Court improperly concluded that (1)
the commission was required to grant the plaintiff’s
application for subdivision approval, despite the appli-
cation’s lack of compliance with a municipal road ordi-
nance (road ordinance),1 and (2) the trial court properly
ordered the commission to approve the plaintiff’s appli-
cation ‘‘as is,’’ rather than remand the case to the com-
mission for consideration of potential conditions of
approval. We disagree and, accordingly, we affirm the
judgment of the Appellate Court.
The record and the Appellate Court’s opinion reveal
the following facts and procedural history.2 ‘‘At all rele-
vant times, the plaintiff owned a 12.92 acre parcel of
undeveloped land with frontage on Ames Road and
Route 169 in Lisbon (property). The property contains
a small pond and 1.9 acres of the property are desig-
nated as wetlands. In May, 2012, the plaintiff filed an
application with the commission pursuant to . . . § 8-
30g for approval of an affordable housing subdivision.
The proposed subdivision consisted of nineteen resi-
dential lots with an average size of 29,620 square feet.
On all but one lot, a single-family, three bedroom modu-
lar home would be erected. The proposal also included
a dedicated septic system and well for each home. With
respect to price restrictions, six of the eighteen pro-
posed homes would be deed-restricted for forty years
at prices within the economic reach of moderate income
households . . . .
‘‘Four of the proposed lots were to be located on the
westerly side of the property and would be accessed
by driveways on Route 169. The remaining lots were
to be located on the easterly side of the property adja-
cent to Ames Road and would be accessed by a private
roadway, which the plaintiff describes as a common
driveway and the commission characterizes as an inte-
rior road network. This appeal concerns that roadway.’’
(Footnotes omitted; internal quotation marks omitted.)
Brenmor Properties, LLC v. Planning & Zoning Com-
mission, supra, 162 Conn. App. 681–82.
The commission held a public hearing on the plain-
tiff’s application over the course of five evenings in
2012. See id., 682–83. ‘‘In response to various comments
raised during that hearing, the plaintiff submitted multi-
ple revisions to its proposal, culminating with its
November 13, 2012 ‘final submission materials.’ Follow-
ing the conclusion of the public hearing, the commis-
sion’s legal counsel . . . prepared a document dated
January 8, 2013, and entitled ‘Brenmor Subdivision
Application Issues and Potential Conditions of
Approval’ (document). That document delineated seven
issues and provided analysis thereof. At the commis-
sion’s regular meeting on January 8, 2013, the commis-
sion reviewed those seven issues. The proposed
roadway’s nonconformance with the . . . road ordi-
nance . . . generated the most discussion, as the road-
way violated its minimum width and maximum grade
requirements.’’ (Footnote omitted.) Id., 683. Following
deliberations at the commission’s regular meeting on
January 8, 2013, the commission voted unanimously to
deny the plaintiff’s application, with counsel for the
commission remarking for the record that the plaintiff
was ‘‘welcome’’ to return with a modified proposal
‘‘where the road meets town standards because . . .
that would solve most of . . . the [commission’s]
issues . . . .’’ Id., 684–85.
‘‘On January 30, 2013, the plaintiff filed with the com-
mission a modified affordable housing proposal pursu-
ant to § 8-30g (h).’’ Id., 685–86. Although the modified
application ‘‘contained certain modifications that the
plaintiff made ‘in direct response to the [commission’s]
January 8, 2013 denial.’ That revised plan nonetheless
did not modify the width or grade of the proposed
roadway . . . so as to fully comply with the require-
ments of the road ordinance. In its written response to
the commission’s January 8, 2013 denial of its subdivi-
sion application, the plaintiff acknowledged that the
commission at that time had proposed, as a potential
condition of approval, that the roadway ‘shall conform
to standards established’ in the road ordinance. The
plaintiff nonetheless submitted that such a condition
was unnecessary, as ‘[t]here is no expert or other testi-
mony in the record that the proposed [roadway is]
unsafe.’ The plaintiff thereafter further revised its pro-
posal, as reflected in its revised plan that was received
by the commission on March 5, 2013.’’ (Footnote omit-
ted.) Id., 686–87.
‘‘On March 5, 2013, the commission held a public
hearing on the plaintiff’s modified application, as
required by § 8-30g (h).’’ Id., 687. Admitting that the
‘‘ ‘internal roadway system’ ’’ did not satisfy the road
ordinance, the plaintiff presented the commission with
a traffic engineer’s study that ‘‘concluded that the pro-
posed subdivision was ‘going to be a very low traffic
generator, given the . . . small number of units,’ ’’ with
proposed roadways that ‘‘ ‘will provide safe and effi-
cient access, egress, and circulation for the residents
and guests of the subdivision as well as the general
public entering or passing the property. In addition, the
[proposed roadway] interior to the site will sufficiently
accommodate circulation by emergency vehicles.’ ’’ Id.,
687–88. As part of the plaintiff’s modified application,
the traffic engineer provided ‘‘both a written ‘traffic
safety review’ and testimony before the commission,
in which he opined that the plan set forth in the resub-
mission ‘does provide for safe traffic operations and
site circulation. It provides for safe ingress and egress
for passenger cars and emergency vehicles [and] does
not present any public health or safety concerns.’ ’’
Id., 688.
‘‘At that public hearing, the commission’s profes-
sional staff also commented on the modified proposal.’’
Id. Lisbon’s town planner and town engineer ‘‘disagreed
with the plaintiff’s assertion that the proposed roadway
qualified as a driveway, as it would provide ‘the only
access to fifteen single-family dwellings,’ ’’ and empha-
sized that the ‘‘the proposed roadway did not comply
with the minimum width or maximum grade require-
ments of the road ordinance.’’ Id. Lisbon’s fire marshal
also submitted a letter expressing his concern that the
proposed roadway did not conform to the State of Con-
necticut Fire Prevention Code (fire code). See id., 690,
708. Although the commission’s professional staff mem-
bers ‘‘repeatedly emphasized that the proposed road-
way did not comply with the requirements of the road
ordinance, [they did not indicate] that compliance was
necessary to protect a substantial public interest or that
the risk of harm thereto clearly outweighed the need
for affordable housing.’’ Id., 689.
‘‘The commission deliberated the merits of the plain-
tiff’s [modified] application at its April 2, 2013 meeting.’’
Id. The commission voted unanimously, with one com-
missioner abstaining, to deny the modified application
based on the recommendations of Lisbon’s engineer
and fire marshal given, inter alia, the failure of the
internal roadways to conform to the road ordinance
and fire code. Id., 690–91.
‘‘From that decision, the plaintiff appealed to the
Superior Court. On June 13, 2014, the court issued its
memorandum of decision. In sustaining the plaintiff’s
appeal, the court concluded that neither noncompliance
with the road ordinance nor noncompliance with the
fire code constituted a valid ground on which to deny
the plaintiff’s application.3 As a result, the court
reversed the ‘denial of the plaintiff’s resubmission and
remand[ed] the case to the [commission] with direction
to grant the plaintiff’s resubmission as is.’ ’’ (Footnote
altered.) Id., 691.
Following its grant of the commission’s petition for
certification to appeal pursuant to General Statutes § 8-
8 (o), the Appellate Court affirmed the judgment of the
trial court in a unanimous and comprehensive opinion.
See id., 680, 691. The Appellate Court upheld the trial
court’s determination that the plaintiff’s noncompliance
with the road ordinance did not constitute a valid
ground on which the commission could deny its modi-
fied affordable housing application under § 8-30g. See
id., 693. The Appellate Court first concluded that, ‘‘the
establishment of town-wide standards [by ordinance]
for road construction is [a] matter of public health and
safety that a commission may properly consider under
the [A]ffordable [H]ousing [A]ppeals [A]ct,’’ although
‘‘any deviation from those standards’’ does not consti-
tute ‘‘a per se ground for denial of an affordable housing
application.’’ (Internal quotation marks omitted.) Id.,
699–700. The Appellate Court then concluded that the
evidence in the record demonstrated that fire and traffic
safety were not adversely affected by the plaintiff’s
noncompliance with the road ordinance with respect
to the proposed subdivision’s internal roadways, which
were in essence low traffic driveways that served only
the homes in the subdivision. Id., 700–702. Turning to
the remedy ordered by the trial court, the Appellate
Court then held that the trial court did not abuse its
discretion in remanding the case to the commission
with direction to grant the plaintiff’s modified applica-
tion ‘‘as is,’’ rather than for consideration of conditions
of approval. Id., 714. This certified appeal followed.4
Our examination of the record and briefs and our
consideration of the arguments of the parties persuade
us that the judgment of the Appellate Court should be
affirmed. Because the Appellate Court’s well reasoned
opinion fully addresses the certified issues, it would
serve no purpose for us to repeat the discussion con-
tained therein. We therefore adopt the Appellate Court’s
opinion as the proper statement of the issues and the
applicable law concerning those issues. See, e.g., Recall
Total Information Management, Inc. v. Federal Ins.
Co., 317 Conn. 46, 51, 115 A.3d 458 (2015); State v. Buie,
312 Conn. 574, 583–84, 94 A.3d 608 (2014).
We make one observation, however, with respect to
the Appellate Court’s analysis of the second certified
issue,5 which concerns the remedy ordered by the trial
court. Consistent with the commission’s concession
before that court, the Appellate Court determined that
the abuse of discretion standard of review applies to
the trial court’s decision to order the commission to
approve the plaintiff’s application ‘‘as is,’’ rather than
remand the case to the commission for consideration of
potential conditions of approval.6 Brenmor Properties,
LLC v. Planning & Zoning Commission, supra, 162
Conn. App. 711 and n.31. The commission has reiterated
that concession in its brief and at oral argument before
this court. Accordingly, we need not consider that issue
further, and apply the abuse of discretion standard of
review in this certified appeal with respect to the trial
court’s affordable housing remedy under § 8-30g as
upheld by the Appellate Court.7
The judgment of the Appellate Court is affirmed.
1
See Town of Lisbon, ‘‘An Ordinance Concerning the Construction and
Acceptance of Roads in the Town of Lisbon Connecticut’’ (June 29, 1995);
see also Brenmor Properties, LLC v. Planning & Zoning Commission,
supra, 162 Conn. App. 683 n.10.
2
We note that the Appellate Court’s opinion contains a more detailed
recitation of the facts and procedural history underlying this certified appeal.
See Brenmor Properties, LLC v. Planning & Zoning Commission, supra,
162 Conn. App. 681–91.
3
The trial court declined to consider the fire marshal’s letter expressing
concerns about noncompliance with the fire code because it was not based
on an analysis of the modified proposal that is the subject of this appeal.
See Brenmor Properties, LLC v. Planning & Zoning Commission, supra,
162 Conn. App. 707–708.
4
We granted the commission’s petition for certification for appeal limited
to the following issues: (1) ‘‘Did the Appellate Court properly conclude that
the trial court correctly determined that the plaintiff’s noncompliance with
the road ordinance did not constitute a valid ground on which to deny its
modified affordable housing application?’’; and (2) ‘‘Did the Appellate Court
correctly determine that the trial court properly ordered the commission
to approve the plaintiff’s subdivision application ‘as is’ rather than allowing
the commission, on remand, to consider appropriate conditions of
approval?’’ Brenmor Properties, LLC v. Planning & Zoning Commission,
320 Conn. 928, 133 A.3d 460 (2016).
5
Although we agree entirely with the Appellate Court’s resolution of the
first certified issue, we briefly address the commission’s argument that the
Appellate Court improperly failed to address two cases that it cited in
support of its authority to deny the plaintiff’s application on the basis of its
failure to comply with the roadway ordinance. Specifically, the commission
relies on Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 25–29, 523 A.2d
467 (1987), which rejected an equal protection challenge to an ordinance
prohibiting vending from motor vehicles on the town’s streets or public
property, and Cormier v. Commissioner of Motor Vehicles, 105 Conn. App.
558, 566–68, 938 A.2d 1258 (2008), which rejected an equal protection chal-
lenge to the distinction between vehicles weighing less than 26,001 pounds
for purposes of lifetime commercial driver’s license disqualification under
General Statutes § 14-44k (h). The commission argues that Blue Sky Bar,
Inc., and Cormier stand for the propositions that ‘‘safety standards in general
are not susceptible to bright line analysis,’’ and the ‘‘town’s legislative judg-
ment must prevail,’’ notwithstanding its failure to provide ‘‘analytical data’’
to support its decision. Having reviewed these cases, we believe that the
Appellate Court reasonably may have deemed them to be so inapposite as not
to warrant mention, because they concern facial constitutional challenges to
municipal ordinances calling for rational basis review. Blue Sky Bar, Inc.
v. Stratford, supra, 28–29; Cormier v. Commissioner of Motor Vehicles,
supra, 566–67. In contrast, the present case requires the court to apply a
nuanced balancing test in determining whether an individual affordable
housing application should be granted relief from a particular municipal
ordinance pursuant to § 8-30g. See, e.g., River Bend Associates, Inc. v.
Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004).
6
We note that appellate review of the trial court’s other decisions under
§ 8-30g (g) is plenary. Thus, we first engage in plenary review of ‘‘whether
the decision from which such appeal is taken and the reasons cited for such
decision are supported by sufficient evidence in the record. . . . Specifi-
cally, the court must determine whether the record establishes that there
is more than a mere theoretical possibility, but not necessarily a likelihood,
of a specific harm to the public interest if the application is granted.’’
(Citation omitted; internal quotation marks omitted.) River Bend Associates,
Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004). ‘‘If the
court finds that such sufficient evidence exists, then it must conduct a
plenary review of the record and determine independently whether the
commission’s decision was [1] necessary to protect substantial interests in
health, safety or other matters that the commission legally may consider,
[2] whether the risk of such harm to such public interests clearly outweighs
the need for affordable housing, and [3] whether the public interest can be
protected by reasonable changes to the affordable housing development.’’ Id.
7
Further, query the applicability of the well established principle that a
directed grant of an application is an appropriate remedy only when it
appears that the relevant municipal land use authority could reasonably
reach only one conclusion on remand. See, e.g., Bogue v. Zoning Board of
Appeals, 165 Conn. 749, 753–54, 345 A.2d 9 (1974) (‘‘It is true that when on
a zoning appeal it appears that as a matter of law there was but a single
conclusion which the zoning authority could reasonably reach, the court
may direct the administrative agency to do or to refrain from doing what
the conclusion legally requires. . . . In the absence of such circumstances,
however, the court upon concluding that the action taken by the administra-
tive agency was illegal, arbitrary or in abuse of its discretion should go no
further than to sustain the appeal taken from its action. For the court to
go further and direct what action should be taken by the zoning authority
would be an impermissible judicial usurpation of the administrative func-
tions of the authority.’’ [Citations omitted.]). Although the plaintiff seems
to agree that this general principle applies in the affordable housing context,
the Appellate Court held that it does not, relying on our decision in Ava-
lonBay Communities, Inc. v. Zoning Commission, 284 Conn. 124, 140 n.15,
931 A.2d 879 (2007), and its decision in Wisniowski v. Planning Commis-
sion, 37 Conn. App. 303, 320–21, 655 A.2d 1146, cert. denied, 233 Conn. 909,
658 A.2d 981 (1995), for the proposition that judicial remedies are more
‘‘expansive’’ in affordable housing appeals under § 8-30g (g) than regular land
use appeals. Brenmor Properties, LLC v. Planning & Zoning Commission,
supra, 162 Conn. App. 710 and n.30. As a general matter, application of this
general principle in the affordable housing context seems inconsistent with
the abuse of discretion standard of review. Nevertheless, given the commis-
sion’s concessions, and the fact that the trial court did not abuse its discretion
in determining that a directed grant was appropriate even under the usurpa-
tion rule, we apply the abuse of discretion standard of review for purposes
of this certified appeal.