Landmark Development Group, LLC v. Water & Sewer Commission , 184 Conn. App. 303 ( 2018 )

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LANDMARK DEVELOPMENT GROUP, LLC, ET AL.
v. WATER AND SEWER COMMISSION OF THE
TOWN OF EAST LYME
(AC 39804)
(AC 39806)
DiPentima, C. J., and Alvord and Bear, Js.
Syllabus
The plaintiff developers appealed to the trial court from the decision of the
defendant Water and Sewer Commission of the Town of East Lyme
granting in part an application the plaintiffs had filed for a determination
of sewer capacity, in which they had requested that 118,000 gallons per
day of the town’s sewer treatment capacity be reserved for their pro-
posed housing development. After a prior appeal to the trial court had
twice been remanded for further proceedings before the commission,
the commission had allocated 14,434 of the requested sewer treatment
capacity to the plaintiffs, and the plaintiffs again appealed to the trial
court. The court granted the plaintiffs’ motion to supplement the record
and to conduct discovery regarding a decision by the commission’s
administrator to approve a sewer connection application by G, which
was developing a similarly situated apartment complex where over
160,000 gallons of sewer treatment capacity was contemplated. The
court also granted the petition to intervene filed by certain intervenors,
which had expressed environmental concerns about the plaintiffs’ devel-
opment. Thereafter, the matter was tried to the court, which concluded
that the commission abused its discretion in its assessment of the sewer
treatment capacity available for the plaintiffs’ development and rendered
judgment sustaining the plaintiffs’ appeal. The commission and the inter-
venors, on the granting of certification, filed separate appeals to this
court. Held:
1. The commission could not prevail on its claim that the trial court abused
its discretion by admitting the supplemental evidence concerning G:
the statute pertaining the record in an appeal from a decision by the
commission (§ 8-8 [k] [2]) allows any party to introduce evidence in
addition to the contents of the record if it appears to the court that
additional testimony is necessary for the equitable disposition of the
appeal, and here, the evidence concerning G established that, although
the commission concluded that it did not have sufficient capacity to
grant the plaintiffs’ application for up to 118,000 gallons per day, G had
effectively been granted an allocation of approximately 166,000 gallons
per day following the approval of its sewer connection permit, which
was relevant evidence for the court to be able to determine whether the
plaintiffs had been treated inequitably by the commission as compared
to G; moreover, the plaintiffs did not have the opportunity to present
the evidence concerning G to the commission during any of their prior
proceedings before the commission, and given when the plaintiffs’
learned of the evidence and that such evidence could have influenced
the commission’s decision regarding the plaintiffs’ application, their
motion to supplement the record was their first reasonable opportunity
to bring the that evidence to the attention of the court and the com-
mission.
2. The commission’s claim that the court improperly concluded that the
commission abused its discretion by allocating to the plaintiff 14,434
gallons per day of sewer treatment capacity was unavailing:
a. The trial court, in reaching its decision to sustain the plaintiff’s appeal,
did not abuse its discretion by disregarding certain factors outlined by
our Supreme Court in Forest Walk, LLC v. Water Pollution Control
Authority (291 Conn. 271) with regard to sewage capacity; although the
commission claimed that the law of the case doctrine required the
application of those factors by the trial court, which previously, in a
remand order, had indicated that with regard to capacity, under the
substantial evidence test the commission had to consider those factors,
at the time the trial court issued that remand order it was not aware
of the evidence relating to G, which established new and overriding
circumstances, and, thus, the court properly exercised its discretion in
disregarding those factors.
b. The trial court did not act unreasonably, illegally or in abuse of its
discretion when it sustained the plaintiffs’ appeal and remanded the
matter to the commission; that court having properly admitted the evi-
dence relating to G, in reaching its decision on the plaintiffs’ appeal it
was free to consider that evidence, which demonstrated that the record,
as supplemented, did not reasonably support the conclusion of the
commission to grant a 14,434 gallon daily allocation, that the commission
had an available capacity of 358,000 gallons per day, less the 166,000
gallons per day that was effectively allocated to G, and that an administra-
tor of the commission was aware of G’s capacity need and the existence
of the plaintiffs’ then pending application and nevertheless approved
G’s connection application without making a determination of the impact
of the grant to G on the plaintiffs’ application in light of the remaining
capacity available to the town and without applying the factors set forth
in Forest Walk, LLC, to G’s application, and, therefore, on the basis
of the record, the court reasonably could have determined that the
commission had treated the plaintiffs inequitably and that an injustice
had been done.
Argued April 10—officially released August 21, 2018
Procedural History
Appeal from a decision by the defendant commission
granting in part the plaintiffs’ application for sewer
treatment capacity determination, brought to the Supe-
rior Court in the judicial district of New London and
transferred to the judicial district of Hartford, Land
Use Litigation Docket, where the court, Hon. Henry S.
Cohn, judge trial referee, granted the plaintiffs’ motion
to supplement the record; thereafter, the court granted
the petition to intervene filed by the Friends of the
Oswegatchie Hills Nature Preserve, Inc., et al.; subse-
quently, the matter was tried to the court; judgment
sustaining the plaintiffs’ appeal, from which the defen-
dant and the intervenors, on the granting of certifica-
tion, filed separate appeals to this court. Affirmed.
Mark S. Zamarka, with whom, on the brief, was
Edward B. O’Connell, for the appellant in AC 39804
(defendant).
Roger F. Reynolds, with whom were John M. Looney,
Jr., and, on the brief, Andrew W. Minikowski, for the
appellants in AC 39806 (intervenors).
Timothy S. Hollister, with whom was Beth Bryan
Critton, for the appellees in both appeals (plaintiffs).
Opinion
BEAR, J. This chapter of the protracted dispute
between the town of East Lyme (town), and the plain-
tiffs, Landmark Development Group, LLC, and Jarvis
of Cheshire, LLC, involves the plaintiffs’ application to
the defendant,1 the town’s Water and Sewer Commis-
sion (commission), for a determination of sewer treat-
ment capacity. The commission appeals from the
judgment of the Superior Court sustaining the plaintiffs’
appeal and ordering the commission to grant the plain-
tiffs’ application.2 On appeal, the commission argues
that the court (1) abused its discretion by allowing the
plaintiffs to submit supplemental evidence to the court,
and (2) improperly concluded that the commission
abused its discretion by allocating to the plaintiffs
14,434 gallons per day in sewer treatment capacity. We
affirm the judgment of the court.
The following facts and procedural history are rele-
vant to our disposition of this appeal.3 The plaintiffs
own a 236 acre parcel of land in the Oswegatchie Hills
area of the town, on which the plaintiffs sought to
construct an 840 unit housing development. Giving rise
to the present appeal is the plaintiffs’ application to the
commission for a determination of sewer treatment
capacity, which the plaintiffs filed on June 1, 2012. In
this application, the plaintiffs requested that 118,000
gallons per day of the town’s sewer treatment capacity
be reserved for its proposed housing development in
the Oswegatchie Hills. In a December, 2012 resolution,
the commission found that the plaintiffs had requested
a disproportionately large amount of the town’s
remaining sewer treatment capacity and, therefore,
denied the plaintiffs’ application. The plaintiffs
appealed the commission’s decision to the Superior
Court, which, on January 16, 2014, remanded the case to
the commission for a clarification of its 2012 resolution
(first remand). Specifically, the court sought clarifica-
tion as to the amount of capacity the commission was
willing to allocate to the plaintiffs and a justification
for that amount. The court also ordered that the parties
report back to court on March 17, 2014.
Pursuant to the court’s January, 2014 order, the com-
mission addressed the plaintiffs’ application at its Feb-
ruary, 2014 regular meeting. Following the meeting, the
commission allocated to the plaintiffs 13,000 gallons per
day in sewer treatment capacity. The parties appeared
before the court in May, 2014, to resolve, inter alia,
whether the commission’s allocation of 13,000 gallons
per day was an abuse of discretion. On June 23, 2014,
the court sustained the plaintiffs’ appeal and remanded
the matter to the commission (second remand). In
reaching this conclusion, the court relied on Forest
Walk, LLC v. Water Pollution Control Authority, 291
Conn. 271, 968 A.2d 345 (2009),4 and Dauti Construc-
tion, LLC v. Water & Sewer Authority, 125 Conn. App.
652, 10 A.3d 84 (2010), cert. denied, 300 Conn. 924, 15
A.3d 629 (2011). The court found that the commission’s
allocation of 13,000 gallons per day was ‘‘inappropri-
ately low’’ for the following reasons: (1) the record did
not indicate a specific amount of available capacity
before considering the plaintiffs’ application; (2) the
commission made no finding regarding the area of the
plaintiffs’ development versus the land area of the town;
(3) the commission based its decision on data that was
not current; (4) none of the commission’s capacity for
possible future development had been requested since
the reserve for future development was created in 2004;
and (5) the plaintiffs requested only a small amount of
the commission’s remaining capacity.
At its October 28, 2014 regular meeting, the commis-
sion again considered the plaintiffs’ application. On the
basis of the factors set out in Forest Walk, LLC v. Water
Pollution Control Authority, supra, 291 Conn. 295–96
(Forest Walk factors); see footnote 4 of this opinion;
the commission derived a formula to determine what
it considered to be an appropriate sewer capacity allo-
cation for the plaintiffs. The formula provided: 358,000
gallons per day of available capacity divided by 5853
total acres of the town, is equal to X divided by 236 acres
owned by the plaintiffs, where X equals the appropriate
capacity to allocate to the plaintiffs. Application of this
formula determined that 14,434 gallons per day of sewer
treatment capacity was an appropriate allocation. The
plaintiffs again appealed the commission’s decision to
the Superior Court.
On July 6, 2016, the court issued a memorandum of
decision again remanding the matter to the commission
(third remand). In its memorandum of decision, the
court noted the following relevant procedural history:
‘‘In the present action, which was commenced on
November 24, 2014, the plaintiffs . . . ask the court to
review a grant of capacity of 14,434 gallons per day to
the plaintiffs by the [commission]. On February 19,
2015, the plaintiffs filed their appeal brief. On March
16, 2015, the [commission] . . . filed its appeal brief.
On March 30, 2015, the plaintiffs filed a motion for
permission to supplement the record in an administra-
tive appeal. The court heard oral argument on April 2,
2015. On the same day, the court granted the plaintiffs’
request, but only as to exhibit C, a letter from Mark
S. Zamarka.
‘‘On July 23, 2015, the plaintiffs filed a motion to
conduct further discovery [including the taking of a]
deposition and to supplement the record. Specifically,
the plaintiffs asked the court for permission to take the
deposition of the [commission’s] administrator, Brad-
ford Kargl, regarding the approval of the connection
application by Gateway (a similarly-situated apartment
complex being developed) where over 160,000 gallons
per day capacity was contemplated. The motion was
granted by the court on September 8, 2015. The deposi-
tion revealed that although Kargl was aware of the
Gateway capacity need . . . and had a duty to monitor
this need . . . he approved the connection application
without making a capacity determination . . . and
without further reference to the [commission].’’
Thereafter, the court stated: ‘‘In light of the supple-
mental evidence, the court concludes that there is at
least 200,000 gallons per day capacity (358,000 gallons
per day less 160,000 gallons per day to Gateway) for
the entire sewer system. The [commission] had broad
discretion in determining capacity, but the [commis-
sion] was obligated to consider capacity when it
approved [Gateway’s] connection application . . . .
As to the plaintiffs, the court finds that with the large
amount of capacity remaining, the capacity figure of
14,434 gallons per day is excessively low. There is an
abuse of discretion that the [commission] must correct.
Although the [commission] is not required to grant the
plaintiffs their request for 118,000 gallons per day, the
capacity figure of 14,434 gallons per day is insufficient
in view of the present remaining capacity of at least
200,000 gallons per day, and in view of the 160,000
gallons per day that was approved for Gateway. In
reconsidering the allocation of the sewer capacity, the
[commission] must comply with applicable sewer stat-
utes, regulations and ordinances, and the [commission]
should take into account the demands of the plaintiffs’
sewer project and the effect on remaining capacity.
Nevertheless, the [commission] must provide the plain-
tiffs with sufficient capacity to further the development
of their project, and, as such, the [commission] may
not settle on a figure for capacity that would completely
foreclose the development of the plaintiffs’ project.’’
(Footnotes omitted.) This appeal followed.
I
The first issue that we must resolve is whether the
court abused its discretion by allowing the plaintiffs
to submit supplemental evidence (Gateway evidence)
pursuant to General Statutes § 8-8 (k) (2). The commis-
sion argues that the Gateway evidence concerned a
sewer connection permit, which does not require a
determination of sewer treatment capacity and is a mat-
ter that the commission does not handle, rendering the
evidence irrelevant and unnecessary for the equitable
disposition of the appeal.
The abuse of discretion standard governs our review
of a trial court’s decision to admit supplemental evi-
dence under § 8-8 (k). See Parslow v. Zoning Board of
Appeals, 110 Conn. App. 349, 353–54, 954 A.2d 275
(2008). ‘‘When reviewing claims under an abuse of dis-
cretion standard, the unquestioned rule is that great
weight is due to the action of the trial court and every
reasonable presumption should be given in favor of its
correctness. . . . We will reverse the trial court’s rul-
ing only if it could not reasonably conclude as it did.
. . . Reversal is required only where an abuse of discre-
tion is manifest or where injustice appears to have been
done. . . . We do not . . . determine whether a con-
clusion different from the one reached could have been
reached.’’ (Citations omitted; internal quotation marks
omitted.) Id., 354.
Section 8-8 (k) provides in relevant part: ‘‘The court
shall review the proceedings of the board and shall
allow any party to introduce evidence in addition to
the contents of the record if . . . (2) it appears to the
court that additional testimony is necessary for the
equitable disposition of the appeal.’’ See also Clifford
v. Planning & Zoning Commission, 280 Conn. 434,
447, 908 A.2d 1049 (2006) (‘‘[a]n appeal from an adminis-
trative tribunal should ordinarily be determined upon
the record of that tribunal, and only when that record
fails to present the hearing in a manner sufficient for
the determination of the merits of the appeal, or when
some extraordinary reason requires it, should the court
hear evidence’’ [internal quotation marks omitted]).
‘‘ ‘[A]llowance at trial of additional evidence under the
concept of evidence ‘‘necessary for the equitable dispo-
sition of the appeal,’’ under [§] 8-8 (k) [(2)], has generally
received a restrictive interpretation to avoid review of
the agency’s decision based in part on evidence not
presented to the agency initially.’ ’’ Gevers v. Plan-
ning & Zoning Commission, 94 Conn. App. 478, 489,
892 A.2d 979 (2006).
Here, the Gateway evidence was necessary for the
equitable disposition of the appeal. The Gateway evi-
dence established that, even though the commission
concluded, after it applied the Forest Walk factors, that
it did not have sufficient capacity to grant the plaintiffs’
application for up to 118,000 gallons per day, Gateway
had, in effect, been granted, without application of the
Forest Walk factors,5 an allocation of approximately
166,000 gallons per day following the approval of its
connection permit. The Gateway evidence, therefore,
was relevant for the court to be able to determine that
the plaintiffs, when compared to Gateway, had been
treated inequitably by the commission. Unlike Gateway,
which had been able to build its development, the plain-
tiffs, because of the commission’s 14,434 gallon per day
allocation, did not have sufficient capacity to satisfy
the estimated sewage requirements of their projected
840 unit development, despite the existence of adequate
available capacity to grant the plaintiffs’ request of up
to 118,000 gallons per day.6
Moreover, the plaintiffs did not have the opportunity
to present the Gateway evidence to the commission
during the initial hearing, the first remand, or the second
remand. Our review of the record shows that the events
concerning Gateway occurred in 2014 and 2015, and
that the plaintiffs became aware of the Gateway evi-
dence in 2015. Therefore, when the plaintiffs filed their
motion under § 8-8 (k) (2) in March, 2015, it was their
first reasonable opportunity to bring the Gateway evi-
dence to the court’s and the commission’s attention.
Accordingly, because the Gateway evidence could have
influenced the commission’s decision regarding the
plaintiffs’ application, and the plaintiffs sought to intro-
duce this evidence at the earliest opportunity, the court
did not abuse its discretion by granting the plaintiffs’
motion to supplement the record. See Clifford v. Plan-
ning & Zoning Commission, supra, 280 Conn. 449
(‘‘[t]o penalize the plaintiff for the absence in the record
of documents that could have affected the commission’s
decision on the site plan application, when the plaintiff
had no reasonable opportunity to bring such documents
to the attention of the commission, would be simply
unfair and not in accordance with basic principles of
equity’’).7
II
The commission’s second claim on appeal is that the
court improperly concluded that it abused its discretion
by allocating to the plaintiffs 14,434 gallons per day of
sewer treatment capacity. Specifically, the commission
argues that the court erred because it disregarded its
ruling from a prior remand concerning the application
of the Forest Walk factors. See footnote 4 of this opin-
ion. The commission also argues that the court erred by
basing its decision, at least in part, on the supplemental
evidence admitted pursuant to § 8-8 (k) (2) and by hold-
ing that the commission was obligated to consider the
Gateway evidence in reaching its decision on the plain-
tiffs’ application. We address those arguments in turn.
A
The commission argues that the trial court’s ruling
regarding application of the Forest Walk factors ‘‘consti-
tutes an interlocutory ruling that should have been
treated as the law of the case in subsequent proceed-
ings.’’ We disagree.
‘‘We consider whether a court correctly applied the
law of the case doctrine under an abuse of discretion
standard. The law of the case doctrine provides that
[w]here a matter has previously been ruled upon inter-
locutorily, the court in a subsequent proceeding in the
case may treat that decision as the law of the case, if
it is of the opinion that the issue was correctly decided,
in the absence of some new or overriding circum-
stance.’’ (Emphasis added; internal quotation marks
omitted.) Perugini v. Giuliano, 148 Conn. App. 861,
879–80, 89 A.3d 358 (2014).
Here, the court did not abuse its discretion by disre-
garding the Forest Walk factors in reaching its decision
to sustain the plaintiffs’ second appeal and remand the
matter, for the third time, to the commission. In the
court’s June 23, 2014 remand order, it acknowledged
that Forest Walk, LLC, ‘‘indicate[s]’’ that, ‘‘with regard
to capacity, under the substantial evidence test, the
commission must consider’’ the four factors. At the time
the court issued its June, 2014 remand order, however,
it was not aware of the Gateway evidence. In light
of the Gateway evidence—which established new or
overriding circumstances—the court properly exer-
cised its discretion in disregarding the Forest Walk fac-
tors, sustaining the plaintiffs’ appeal, and remanding
the matter to the commission.8
B
The commission next argues that the court improp-
erly concluded that it abused its discretion by allocating
to the plaintiffs 14,434 gallons per day of sewer capacity.
Specifically, the commission argues that the court
improperly (1) concluded that it was obligated to con-
sider the Gateway evidence in deciding the plaintiffs’
application, and (2) based its decision, at least in part,
on the Gateway evidence.
‘‘In considering an application for sewer service, a
water pollution control authority performs an adminis-
trative function related to the exercise of its powers.
. . . When a water pollution control authority performs
its administrative functions, a reviewing court’s stan-
dard of review of the [authority’s] action is limited to
whether it was illegal, arbitrary or in abuse of [its]
discretion . . . . Moreover, there is a strong presump-
tion of regularity in the proceedings of a public agency,
and we give such agencies broad discretion in the per-
formance of their administrative duties, provided that
no statute or regulation is violated. . . .
‘‘With respect to factual findings, a reviewing court
is bound by the substantial evidence rule, according to
which, [c]onclusions reached by [the authority] must
be upheld by the trial court if they are reasonably sup-
ported by the record. The credibility of the witnesses
and the determination of issues of fact are matters
solely within the province of the [authority]. . . . The
question is not whether the trial court would have
reached the same conclusion, but whether the record
before the [authority] supports the decision reached.
. . . If a trial court finds that there is substantial evi-
dence to support a [water pollution control authority’s]
findings, it cannot substitute its judgment as to the
weight of the evidence for that of the [authority]. . . .
If there is conflicting evidence in support of the [author-
ity’s] stated rationale, the reviewing court . . . cannot
substitute its judgment for that of the [authority]. . . .
The [authority’s] decision must be sustained if an exami-
nation of the record discloses evidence that supports
any one of the reasons given. . . . Accordingly, we
review the record to ascertain whether it contains such
substantial evidence and whether the decision of the
defendant was rendered in an arbitrary or discrimina-
tory fashion.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Forest Walk, LLC v.
Water Pollution Control Authority, supra, 291 Conn.
285–87. We review the court’s decision to determine
if, when reviewing the decision of the administrative
agency, it acted unreasonably, illegally, or in abuse of
its discretion. See Wasfi v. Dept. of Public Health, 60
Conn. App. 775, 781, 761 A.2d 257 (2000), cert. denied,
255 Conn. 932, 767 A.2d 106 (2001).
On the basis of our previous conclusions in this opin-
ion—i.e., that the court did not abuse its discretion by
(1) supplementing the record with the Gateway evi-
dence and (2) disregarding the Forest Walk factors—
we conclude that the court did not act unreasonably,
illegally, or in abuse of its discretion when it sustained
the plaintiffs’ appeal and remanded the matter to the
commission. Because the court properly admitted the
Gateway evidence, it was free to consider that evidence
in reaching its decision on the plaintiffs’ appeal. That
evidence demonstrated that the record, as supple-
mented, did not reasonably support the conclusion of
the commission to grant a 14,434 gallon daily allocation.
The evidence in the record as supplemented established
that the commission had an available capacity of
358,000 gallons per day, less the 166,000 gallons per
day that was effectively allocated to Gateway. There
also was evidence that an administrator of the commis-
sion, Kargl, was aware of Gateway’s capacity need and
the existence of the plaintiffs’ then pending application.
Kargl, however, approved Gateway’s application with-
out making a determination of the impact of the grant
to Gateway on the plaintiffs’ application in light of the
remaining capacity available to the town. On the basis
of this evidence, the court properly determined that the
commission abused its discretion when it granted to
the plaintiffs only 14,434 gallons per day of its 118,000
gallons per day request, despite allowing, without
applying the Forest Walk factors, Gateway’s 166,000
gallons per day connection permit application. On the
basis of the record as supplemented, the court, in the
exercise of its discretion, could reasonably conclude
that the commission treated the plaintiffs inequitably
and that an injustice had been done. See Parslow v.
Zoning Board of Appeals, supra, 110 Conn. App. 354.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On February 20, 2015, two entities, Friends of the Oswegatchie Hills
Nature Preserve, Inc., and Save the River-Save the Hills, Inc., submitted a
verified petition to intervene, pursuant to General Statutes § 22a-19, in the
appeal between the plaintiffs and the commission. In the petition, the entities
argued, inter alia, that the plaintiffs’ ‘‘application involves conduct which
is reasonably likely to have the effect of unreasonably polluting, impairing,
or destroying the public trust in the air, water and other natural resources
of the State of Connecticut.’’ The petition highlighted several environmental
considerations and noted that the Superior Court had found previously
that the plaintiffs’ development posed a risk of considerable harm to the
Oswegatchie Hills. On March 18, 2015, the court granted the petition to
intervene. Both the commission and the intervenors have appealed from
the court’s judgment sustaining the plaintiffs’ appeal. The commission’s
appeal is assigned docket number AC 39804. The intervenors’ appeal is
assigned docket number AC 39806. The intervenors did not appear in the
proceedings before the commission to determine the sewer treatment capac-
ity available for the use of the plaintiffs, and did not submit any evidence
in support of their claims. Because the intervenors’ claims on appeal essen-
tially are the same as the claims raised by the commission, and rely on the
record of the proceedings before the commission made by the plaintiffs and
the commission witnesses, we address both appeals in a single opinion.
2
Initially, the plaintiffs contended that the judgment of the trial court was
not an appealable final judgment, while the commission argued that it was.
At oral argument before this court, the plaintiffs’ counsel conceded that the
court’s July, 2016 decision was an appealable final judgment. We agree and
note that ‘‘[a] judgment of remand is final if it so concludes the rights of
the parties that further proceedings cannot affect them. . . . A judgment
of remand is not final, however, if it requires [the agency to make] further
evidentiary determinations that are not merely ministerial.’’ (Citations omit-
ted; internal quotation marks omitted.) Kaufman v. Zoning Commission,
232 Conn. 122, 130, 653 A.2d 798 (1995). Here, the court’s judgment so
concluded the rights of the parties because it ordered that the commission
must grant the plaintiffs’ application.
3
The dispute between the plaintiffs and the town has been ongoing for
approximately eighteen years. Most of the facts and procedural history
related to the protracted dispute are not relevant to the issues in this appeal.
4
In its memorandum of decision, the court noted that Forest Walk, LLC,
‘‘indicate[s] the following to the court with regard to this appeal . . . . With
regard to capacity, under the substantial evidence test, the commission must
consider [1] the remaining capacity for the entire town, [2] the land area
represented by the property versus the available land area in the town, [3] the
safe design standards for public sewers, and [4] the percentage of allocation
versus the total remaining capacity.’’ We refer to these as the Forest
Walk factors.
5
Gateway, unlike the plaintiffs, did not make an allocation application
prior to constructing its development.
6
The court found ‘‘that with the large amount of capacity remaining, the
capacity figure of 14,434 gallons per day is excessively low. There is an
abuse of discretion that the [commission] must correct. Although the [com-
mission] is not required to grant the plaintiffs their request for 118,000
gallons per day, the capacity figure of 14,434 gallons per day is insufficient
in view of the present remaining capacity of at least 200,000 gallons per
day, and in view of the 160,000 gallons per day that was approved for
Gateway. . . . Nevertheless, the [commission] must provide the plaintiffs
with sufficient capacity to further the development of their project, and, as
such, the [commission] may not settle on a figure for capacity that would
completely foreclose the development of the plaintiffs’ project.’’ From this
finding, we can infer that the court also found that the grant of 14,434 gallons
per day foreclosed the plaintiffs from moving forward with their devel-
opment.
7
Our Supreme Court’s decision in Clifford v. Planning & Zoning Commis-
sion, supra, 280 Conn. 434, informs our resolution of this issue. In Clifford,
the defendant commission (defendant) approved the proposal of the defen-
dant construction company (company) to store dynamite on the company’s
property. Id., 437. The plaintiff, Thomas Clifford, appealed to the trial court,
and moved under § 8-8 (k) (2) to introduce supplemental evidence. Id.,
437–38. Specifically, Clifford sought to introduce prior site plan approvals
for the property at issue, which established, inter alia, that the storage of
hazardous and demolition materials on the property was expressly prohib-
ited and that before any further development could take place on the prop-
erty, the company would need the approval of the inlands wetlands
commission. Id., 445–46. The trial court denied the motion. Id., 438.
On appeal, our Supreme Court concluded that the trial court’s denial of
Clifford’s motion under § 8-8 (k) (2) was an abuse of discretion. Id., 445.
The court held that the additional evidence was necessary for the equitable
disposition of the appeal for two reasons. Id., 448. First, ‘‘the evidence that
[Clifford] sought to introduce consisted of information that, viewed on
its face, could well have affected the [defendant’s] consideration of [the
company’s] site plan application if it had been brought to the [defendant’s]
attention, because the [evidence] revealed conditions that the [defendant]
itself previously had imposed upon [the company] . . . .’’ Id. Second, the
motion under § 8-8 (k) (2) was Clifford’s ‘‘first reasonable opportunity to
bring to the court’s attention the limitations on the use of [the company’s]
property that may well have affected the approval of the site plan applica-
tion.’’ Id., 448–49.
8
The court expressly stated that part of the Gateway evidence, specifically,
the deposition of Kargl, established facts that made this case distinguishable
from Forest Walk, LLC.