Garden Homes Management Corp. v. Town Plan & Zoning Commission ( 2019 )

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GARDEN HOMES MANAGEMENT
CORPORATION ET AL. v.
TOWN PLAN AND ZONING
COMMISSION OF THE
TOWN OF FAIRFIELD
(AC 40519)
Keller, Moll and Lavery, Js.
Syllabus
The defendant Town Plan and Zoning Commission of the Town of Fairfield
appealed to this court from the judgment of the trial court sustaining
the appeal of the plaintiffs, G Co. and R Co., from the decision of
the commission denying G Co.’s application to construct an affordable
housing development. The commission denied G Co.’s application on
several grounds, including that the record indicated that the proposed
single entry, twenty foot access way width was insufficient and that it
would not provide fire trucks sufficient space to turn around on-site.
The plaintiffs appealed from that decision to the trial court, which
reviewed the record as to each of the commission’s grounds for denial
to determine whether the commission had satisfied its burden under
the applicable statute (§ 8-30g). The court recognized that although a
twenty-four foot wide access way and a secondary point of entrance
would be desirable, they were not necessary or required. The court
concluded that the commission’s concerns as to the twenty foot access
way width did not outweigh the town’s need for affordable housing,
but, in the absence of a secondary access way, it was concerned that
the site contained no area with adequate turnaround space for large
vehicles, including fire trucks, and that such vehicles could exit only
by backing up the full length of the access way. The court acknowledged
that G Co. had attempted to assuage the commission’s concerns regard-
ing that issue by offering a sketch that proposed an expanded turnaround
area, and it remanded the issue of G Co.’s most recent redesign of
the access way and apartment building for due consideration by the
commission. The commission accepted new evidence during the public
hearing, and it denied G Co.’s revised site plans. Subsequently, the trial
court rendered judgment sustaining the plaintiffs’ appeal, from which
the commission, on the granting of certification, appealed to this court.
The commission claimed that it had satisfied its burden pursuant to § 8-
30g on the basis of concerns as to fire, pedestrian and traffic safety,
that G Co.’s revised site plans, viewed in their entirety, did not sufficiently
address the commission’s prior concerns and raised new concerns as
to fire safety and pedestrian and traffic safety that outweighed the town’s
need for affordable housing and, thus, that its denial was necessary to
protect public safety. Held that the trial court properly sustained the
plaintiffs’ appeal: the record was replete with evidence of the need for
affordable housing in the town, which had persisted for decades, the
trial court, in addressing G Co.’s initial application, properly concluded
that concern as to the inability for large vehicles to turn around upon
exiting the site was the only concern that potentially could have out-
weighed the town’s need for affordable housing and that the remaining
concerns did not outweigh the town’s need for affordable housing, as the
record reflected that an access way width of twenty feet was adequate
to comply with national fire safety standards, the commission did not
prove that its denial of G Co.’s application was necessary to protect
substantial public interests, the commission’s concern regarding the
lack of sidewalks was merely theoretical, the commission’s concern as
to the ratio of parking spaces per dwelling unit was merely a concern
as to the convenience of parking, and a secondary access way was not
necessary to adhere to national fire safety standards; moreover, the trial
court properly declined to review certain evidence that it determined
exceeded the scope of its remand order, as the court had issued a limited
remand order directing the commission to consider potential redesigns
to the turnaround area and the commission had jurisdiction on remand
only over that issue, and the commission’s claim that it had satisfied
its burden under § 8-30g to show that its concerns on remand as to G
Co.’s revised application outweighed the town’s need for affordable
housing was unavailing, as the court, which, upon review of G Co.’s
revised site plans, had characterized the commission’s concerns as to
emergency vehicle maneuverability within the turnaround area as mere
concern that some maneuvering would be required before such vehicles
can turn around, was not convinced by the commission’s concern that
an emergency vehicle might not be able to turn around successfully,
was persuaded that the revised turnaround area constituted a health
and safety improvement to the plan and, thus, concluded that the com-
mission’s concerns as to maneuverability within the turnaround area
did not outweigh the need for affordable housing, and this court would
not disturb the trial court’s determination as to the adequacy of the
revised turnaround area.
Argued December 5, 2018—officially released August 13, 2019
Procedural History
Appeal from the decision of the defendant denying
the named plaintiff’s application for approval of an
affordable housing development, brought to the Supe-
rior Court in the judicial district of Fairfield and trans-
ferred to the judicial district of Hartford, Land Use
Litigation Docket, where the matter was tried to the
court, Bates, J., which issued a memorandum of deci-
sion reversing the decision of the defendant and
remanding the matter to the defendant for further pro-
ceedings; thereafter, Garden Homes Residential, L.P.,
was substituted as a plaintiff; subsequently, the court
rendered judgment sustaining the plaintiffs’ appeal,
from which the defendant, on the granting of certifica-
tion, appealed to this court. Affirmed.
Melinda A. Powell, with whom were Sarah L. Wilber
and, on the brief, Cindy M. Cieslak, for the appellant
(defendant).
Daniel J. Krisch, with whom were Mark K. Branse
and, on the brief, Kenneth R. Slater, Jr., for the appel-
lees (plaintiffs).
Opinion
LAVERY, J. The defendant, the Town Plan and Zoning
Commission of the Town of Fairfield (commission),
appeals from the judgment of the Superior Court sus-
taining the appeal of the plaintiffs Garden Homes Man-
agement Corporation (Garden Homes) and Garden
Homes Residential, L.P.,1 from the decision of the com-
mission denying Garden Homes’ application to con-
struct an affordable housing development. On appeal,
the commission claims that (1) reversing the court’s
decision will serve the public interest; (2) the court
improperly declined to review certain evidence pre-
sented to the commission on remand; (3) the commis-
sion has satisfied its burden under General Statutes § 8-
30g on the basis of fire safety deficiencies in Garden
Homes’ site plans; and (4) the commission has satisfied
its burden under § 8-30g on the basis of pedestrian and
traffic safety concerns. We affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to this appeal. Pursuant to the Connecticut
Affordable Housing Land Use Appeals Act, General Stat-
utes § 8-30g et seq., Garden Homes applied for permis-
sion to build a ninety-five unit apartment building that
would accommodate affordable housing units.2 The pro-
posed development would be situated on a combined
2.9 acres of abutting lots located at 92 and 140 Bronson
Road in the Southport section of Fairfield. This site is
bounded to the north by Interstate 95, to the east by
the Mill River, to the south by Metro-North Railroad
tracks, and to the west by a private residence. Conse-
quently, the buildable area is constrained by the nearby
highway and by wetlands restrictions that prohibit
encroaching upon the river.
Cognizant of these limitations, Garden Homes con-
sulted Fairfield’s fire marshal, William Kessler, early in
the design process for direction as to compliance with
safety standards. Kessler confirmed that Garden
Homes’ projected twenty foot wide access way would
be the ‘‘minimally acceptable parameter’’ to provide for
fire truck safety and functionality. Garden Homes, thus,
submitted to the commission initial site plans that pro-
posed a single entry, twenty foot wide access way,
among other features that would make the development
suitable to accommodate all ninety-five units within the
buildable area.
The commission held an initial public hearing on
Garden Homes’ application on July 8, 9, 15, and 16,
2014. Joseph Versteeg, Garden Homes’ fire code expert,
testified at the public hearing that the twenty foot wide
access way was adequate for fire safety purposes. He
stated in relevant part: ‘‘[According to] the Technical
Committee of [National Fire Protection Association,
Standard 1 (NFPA 1)] and [National Fire Protection
Association (NFPA)] Technical Committee members,
as well as the NFPA staff, the reason for the twenty
foot road width is that it facilitates two-way traffic, it
also will facilitate one fire truck to pass another fire
truck that has stopped either to connect with a hydrant
or for whatever reason.’’
Laura Pulie, Fairfield’s senior civil engineer, cau-
tioned that the proposed twenty foot wide access way
could be ‘‘too narrow for an emergency vehicle to pass
into the site/building location, should a vehicle park
along the driveway despite ‘No Parking or Fire Lane’
signs.’’ Accordingly, Pulie recommended increasing the
proposed access way width by four feet.
An additional concern addressed at the public hearing
pertained to the adequacy of the proposed fire truck
turnaround area. The site plans proposed that the 300
foot long, twenty foot wide access way would be the
only route to enter and exit the property, which dead-
ended at the apartment building. The concern, there-
fore, was that fire trucks would be able to exit the site
only by backing up the full length of the access way.
David Spear, a traffic engineer retained by Joel Green,
attorney for the Lower Bronson Neighborhood Alliance
in opposition to Garden Homes’ proposal, opined: ‘‘The
turnaround right here is the weak link . . . once [a fire
truck] get[s] in here, they’re stuck. They have to back
out and back all the way out of the site.’’ Additionally,
Richard Felner, Fairfield’s former fire chief, testified:
‘‘[I]f other emergency vehicles get [to the proposed
access way] first, for example, an ambulance should
get there first, our rescue truck comes in second, to
get the ambulance back out, we have to back a truck
out, and we’d have to back the ambulance out. . . .
To make that swing with our ladder truck is almost, as
I see it in looking at the plan, [i]s almost impossible
. . . .’’
During its rebuttal on the final night of the public
hearing, Garden Homes submitted a revised sketch that
eliminated four parking spaces and three units to afford
larger vehicles sufficient space to turn around at the
end of the access way. The commission did not consider
this submission in reaching its decision.
After the close of the public hearing, the commission
voted to deny Garden Homes’ application and unani-
mously granted a motion to adopt, as its collective
grounds for denial, the recommendations set forth in
a staff report presented to the commission, with the
addition of a statement that Garden Homes had not
demonstrated that its application reflected adequate
sewage capacity. Subsequently, on July 24, 2014, a clerk
for the commission sent Garden Homes’ counsel a letter
that memorialized the commission’s statement. The let-
ter noted, inter alia, that ‘‘the record indicates that the
[twenty] foot paved [access way] width is insufficient
for the number of dwelling units proposed and for the
length of the singular access point to the proposed
development.’’ The letter also indicated that the twenty
foot width of the access way would not provide fire
trucks sufficient space to turn around on-site. The
clerk’s letter stated that the commission expressly made
the following three findings: ‘‘1. There is sufficient evi-
dence in the record to support a finding that the pro-
posed development would pose substantial risks to pub-
lic interests in health and safety. 2. Those public
interests clearly outweigh the need for affordable hous-
ing. 3. There are no reasonable conditions of approval
that can be made to protect those public interests.
Therefore the application is denied.’’3
The original plaintiffs, Garden Homes, Sandra Con-
ner, and Richard Irwin; see footnote 1 of this opinion;
timely appealed from that decision to the Superior
Court. In its September 10, 2015 memorandum of deci-
sion, the court reviewed the record as to each of the
commission’s grounds for denial to determine whether
the commission had satisfied its burden under § 8-30g.
The court began by noting that each of the concerns
set forth in the commission’s letter pertained to ‘‘ ‘sub-
stantial public interests in health, safety, or other mat-
ters’ that are generally ‘supported by sufficient evidence
in the record.’ ’’
The court then reviewed the commission’s concerns
as to several specific features of Garden Homes’ site
plans to determine whether that given feature would
pose such a health or safety hazard as to outweigh the
need for affordable housing. The court first reviewed
the adequacy of the proposed twenty foot wide access
way. Recognizing that a twenty-four foot wide access
way would be desirable, the court nonetheless con-
cluded that such an access way was not required. It
reasoned that under applicable fire codes twenty feet
was ‘‘the minimum acceptable width . . . and that
level of compliance should generally be sufficient for
an affordable housing project.’’4 It further reasoned that
even if twenty feet deviated from applicable standards,
such deviation would not ‘‘create a public health or
safety concern that outweighs the need for affordable
housing in the community.’’ On balance, the court,
therefore, concluded that the commission’s concerns
as to the twenty foot access way width did not outweigh
Fairfield’s need for affordable housing.
The court also assessed the commission’s concerns
as to the proposed single entrance drive onto the site.
As in its assessment of the access way width, the court
acknowledged that a secondary point of entrance would
be desirable but concluded that it would not be neces-
sary. It noted that neither the NFPA nor the American
Association of State Highway and Transportation Offi-
cials (AASHTO) codes would require multiple means
of access to accommodate Garden Homes’ proposed
site plans.5 Thus, on balance, the court concluded that
‘‘the single access [way] . . . should be sufficient for
an affordable housing project.’’ Although the court
determined that a secondary access way was not neces-
sary, it nonetheless was concerned that the site other-
wise contained no area with adequate turnaround space
for fire trucks, among other large vehicles. Such vehi-
cles, therefore, could exit only by backing up the full
length of the access way.
At the same time, the court acknowledged that Gar-
den Homes had attempted to assuage the commission’s
concerns on this issue by offering a sketch that pro-
posed an expanded turnaround area, as well as a
decrease in the total number of units. The court opined
that this concern adequately could be resolved with site
plan revisions and, therefore, ‘‘remand[ed] the issue of
the [plaintiffs’] most recent redesign of the access way
and apartment building . . . for due consideration by
the commission.’’ The court additionally noted that Gar-
den Homes ‘‘should submit to the commission a fully
engineered site plan, indicating the provision of the
turning radii necessary to allow these and other large
vehicles to turn around and exit the site with minimal
reverse travel, both via the elimination of four parking
spaces and three units, as [Garden Homes had] pro-
posed [during rebuttal before the commission], and by
alternative means.’’6
On remand, Garden Homes submitted revised site
plans to the commission, in which it proposed (1) reduc-
ing the number of housing units from ninety-five to
ninety-one, and (2) replacing four parking spaces with
a fire lane that would serve as a turnaround area for
fire trucks and other large vehicles. The revised site
plans also contained engineered turning movement
counts, indicating that the largest fire truck of the Fair-
field Fire Department (department) could turn around
in this area by making a four count W shaped turning
movement.
At the outset of the public hearing that was held on
May 24, 2016, before the commission on Garden Homes’
revised application, Garden Homes contended that the
court’s remand limited the commission’s review to the
issue of the revised turnaround area. The commission,
however, noted that the court determined that the com-
mission’s concerns as to Garden Homes’ initial site
plans pertained to substantial interests in public health
and safety. The commission, therefore, interpreted the
court’s remand order more broadly as direction to eval-
uate Garden Homes’ revised plans for new health and
safety concerns pertaining to the department’s ability
to access the proposed building and to enter and exit
the site. Accordingly, the commission accepted new
evidence during the public hearing on the basis of
that interpretation.
Such new evidence included a report prepared by
Scott Bisson (Bisson report), the department’s assistant
chief, on Garden Homes’ revised site plans, which reiter-
ated and elaborated on the department’s prior concerns
as to the access way width and lack of a secondary
entrance to the development, matters upon which the
court already had ruled. The Bisson report also consid-
ered several matters beyond the turnaround area.7 Fire
Chief Denis McCarthy spoke at the public hearing and
elaborated on the opinions set forth in the Bisson
report. In light of that evidence, the commission consid-
ered whether ‘‘there is support to make findings differ-
ent from those made in the initial application and, if
there is not, are there reasonable changes that could
be made to protect public interests in health and safety.’’
A clerk for the commission sent Garden Homes’ coun-
sel a letter memorializing the commission’s grounds
for denial.8 The commission listed several points from
McCarthy’s testimony arguing that Garden Homes’
revised plans posed fire safety concerns, namely: the
department must be able to access the building; lack
of secondary access way; no area of refuge during an
emergency; residents will flee the property during an
emergency; up to ninety-five cars could be leaving at
the same time; based on McCarthy’s experience, he
expects to respond to an emergency approximately
twenty-four times annually, or about twice per month,
and all five of Fairfield’s fire stations would send
responders; the department will be on-site for hours;
the ladder truck will not be able to access the roof; the
turnaround area will not help the department access the
building; despite the revised turnaround area, McCarthy
opined that the plans were not safe; and McCarthy did
not believe there was any alternative way to address
the department’s concerns.9 The commission, therefore,
concluded that Garden Homes’ revised plans would
pose substantial risks to public interests in health and
safety, which outweighed the need for affordable hous-
ing, and that no reasonable conditions of approval could
protect those interests.10 Accordingly, the commission
denied Garden Homes’ revised site plans.
The trial court addressed that denial in a memoran-
dum of decision dated March 3, 2017, concluding that
the commission’s stated concerns pertained to matters
upon which the court previously had ruled and did not
pertain to the subject of the court’s limited remand.
Additionally, the court determined that none of those
concerns outweighed the need for affordable housing.
Accordingly, the court sustained the plaintiffs’ appeal
and ordered the commission to approve Garden Homes’
revised application and issue the requested permit. The
commission then filed a petition for certification to
appeal pursuant to General Statutes § 8-8 (o), which
this court granted. Additional facts and procedural his-
tory will be set forth as needed.
I
We begin by setting forth guiding principles of law
as to our jurisdiction over the present appeal. ‘‘Because
our jurisdiction over appeals . . . is prescribed by stat-
ute, we must always determine the threshold question
of whether the appeal is taken from a final judgment
before considering the merits of the claim. . . . Thus,
unless the remand order of the trial court in [a] zoning
appeal constitutes a final judgment, we are required to
dismiss the commission’s appeal to this court for lack
of subject matter jurisdiction. . . . [I]t is the scope of
the remand order in [a] particular case that determines
the finality of the trial court’s judgment.’’ (Citations
omitted; internal quotation marks omitted.) Barry v.
Historic District Commission, 108 Conn. App. 682,
688, 950 A.2d 1, cert. denied, 289 Conn. 942, 959 A.2d
1008, and cert. denied, 289 Conn. 943, 959 A.2d 1008
(2008). ‘‘Determining the scope of a remand is a matter
of law . . . [over which] our review is plenary.’’ (Inter-
nal quotation marks omitted.) State v. Tabone, 301
Conn. 708, 713–14, 23 A.3d 689 (2011).
When the court’s remand order dictates the outcome
of the case, the court’s decision ‘‘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.’’ (Cita-
tions omitted; internal quotation marks omitted.) Kauf-
man v. Zoning Commission, 232 Conn. 122, 130, 653
A.2d 798 (1995). When the court’s remand order does
not decide the outcome of the case and allows the
commission to retain discretion to deny the application,
a reviewing court does not have subject matter jurisdic-
tion. AvalonBay Communities, Inc. v. Zoning Com-
mission, 284 Conn. 124, 139–40, 931 A.2d 879 (2007)
(because court remanded case to commission with
instruction to consider certain factors and, therefore,
implicitly required commission to conduct further evi-
dentiary hearings, court order did not decide outcome
of case, and commission retained discretion to grant
or deny application and, therefore, initial memorandum
of decision was not final judgment).
In the present case, the court, in its initial decision,
expressly concluded that the twenty foot access way
width and the single entrance complied with national
fire safety standards and that neither of those two fea-
tures posed concerns that outweighed the need for
affordable housing. Additionally, the court expressly
concluded that neither the lack of sidewalks nor the
commission’s concerns as to the ratio of parking spaces
per unit outweighed Fairfield’s need for affordable
housing. As to the proposed turnaround area, however,
the court determined that ‘‘[t]he ability of [fire trucks]
to enter and turn around in the parking lot is an issue
of health and safety. The ability of moving and large
delivery trucks to do the same is an issue of health and
safety to a lesser degree but should also be reviewed.’’
The court, accordingly, issued a remand order that was
limited in scope. It remanded the matter to the commis-
sion with direction to consider potential redesigns to
the turnaround area that would ‘‘allow . . . large vehi-
cles to turn around and exit the site with minimal
reverse travel . . . .’’ At that point, the court had not
issued a final judgment, as the commission was required
to make evidentiary determinations as to the adequacy
of potential redesigns to the turnaround area. See Kauf-
man v. Zoning Commission, supra, 232 Conn. 130 (‘‘[a]
judgment of remand is not final, however, if it requires
[the agency to make] further evidentiary determinations
that are not merely ministerial’’ [internal quotation
marks omitted]); Barry v. Historic District Commis-
sion, supra, 108 Conn. App. 690 (no final judgment
when trial court remands for additional administrative
evidentiary findings as precondition to final judicial
resolution). Given the court’s limited remand order, the
only remaining matter for the commission to consider
was the adequacy of the turnaround area at the end of
the access way. See West Haven Sound Development
Corp. v. West Haven, 207 Conn. 308, 312, 541 A.2d 858
(1988) (lower court should only review matters within
scope of remand order).
Despite the court’s limited remand order, the com-
mission reevaluated Garden Homes’ revised application
for any potential health and safety risk that the turn-
around area could pose. The commission also accepted
evidence that raised issues beyond the turnaround area
itself and then incorporated this new evidence into its
collective statement of denial.
When the trial court addressed the decision of the
commission on remand, it concluded that the commis-
sion exceeded the bounds of the limited remand and
that none of these concerns outweighed Fairfield’s need
for affordable housing. The court stated: ‘‘To the extent
the [c]ommission has raised any new health and safety
concerns, the court finds those concerns do not out-
weigh [Fairfield’s] need for affordable housing.’’ The
court, accordingly, remanded the case with instruction
to grant Garden Homes’ requested permit. Conse-
quently, the court issued an appealable final judgment.
See Kaufman v. Zoning Commission, supra, 232 Conn.
131 (court’s judgment requiring commission to approve
plaintiff’s application was final judgment).
The commission now appeals from this final judg-
ment, which encompasses both of the court’s memo-
randa of decision. In reviewing the court’s rulings pursu-
ant to § 8-30g, we, therefore, will consider the evidence
before the commission during both the initial and
remand hearings.
II
The commission claims that it has satisfied its burden
pursuant to § 8-30g on the basis of concerns as to fire
safety and pedestrian and traffic safety. It contends
that Garden Homes’ revised site plans, viewed in their
entirety, did not sufficiently address the commission’s
prior concerns and raised new concerns as to fire safety
and pedestrian and traffic safety that outweigh Fair-
field’s need for affordable housing. The commission,
thus, contends that its denial was necessary to protect
public safety. We disagree.
‘‘[Although the] commission remains the finder of
fact and any facts found are subject to the sufficient
evidence standard of judicial review . . . th[e] applica-
tion of the legal standards set forth in § 8-30g (g) . . .
to those facts is a mixed question of law and fact subject
to plenary review.’’ (Internal quotation marks omitted.)
JAG Capital Drive, LLC v. Zoning Commission, 168
Conn. App. 655, 668, 147 A.3d 177 (2016). ‘‘The parame-
ters of our review of an affordable housing appeal are
circumscribed by § 8-30g (g).’’ Brenmor Properties,
LLC v. Planning & Zoning Commission, 162 Conn.
App. 678, 693, 136 A.3d 24 (2016), aff’d, 326 Conn. 55,
161 A.3d 545 (2017). Section 8-30g (g)11 provides: ‘‘Upon
an appeal taken under subsection (f) of this section,
the burden shall be on the commission to prove, based
upon the evidence in the record compiled before such
commission, that the decision from which such appeal
is taken and the reasons cited for such decision are
supported by sufficient evidence in the record. The
commission shall also have the burden to prove, based
upon the evidence in the record compiled before such
commission, that (1) (A) the decision is necessary to
protect substantial public interests in health, safety or
other matters which the commission may legally con-
sider; (B) such public interests clearly outweigh the
need for affordable housing; and (C) such public inter-
ests cannot be protected by reasonable changes to the
affordable housing development, or (2) (A) the applica-
tion which was the subject of the decision from which
such appeal was taken would locate affordable housing
in an area which is zoned for industrial use and which
does not permit residential uses; and (B) the develop-
ment is not assisted housing. If the commission does
not satisfy its burden of proof under this subsection,
the court shall wholly or partly revise, modify, remand
or reverse the decision from which the appeal was taken
in a manner consistent with the evidence in the record
before it.’’
As the commission acknowledges in its brief, Garden
Homes’ application required the commission to weigh
its concerns as to fire safety and pedestrian traffic
against the need for affordable housing. The parties
agree that both interests constitute matters of public
concern. The central issue in this case, therefore, is
whether Fairfield’s need for affordable housing out-
weighs the health and safety concerns presented to
the commission.
Section 8-30g (g) ‘‘requires the town, not the appli-
cant, to marshal the evidence supporting its decision
and to persuade the court that there is sufficient evi-
dence in the record to support the town’s decision and
the reasons given for that decision.’’ JPI Partners, LLC
v. Planning & Zoning Board, 259 Conn. 675, 688, 791
A.2d 552 (2002). The commission maintains that it has
satisfied its burden. The court was not convinced.
The commission’s decision is subject to the twofold
standard of review embodied in § 8-30g (g). JAG Capital
Drive, LLC v. Zoning Commission, supra, 168 Conn.
App. 667. ‘‘First, a reviewing court must determine
whether the decision from which such appeal is taken
and the reasons cited for such decision are supported
by sufficient evidence in the record. . . . Specifically,
the court must determine whether the record estab-
lishes that there is more than a mere theoretical possi-
bility, but not necessarily a likelihood, of a specific
harm to the public interest if the application is granted.
. . . Because the sufficient evidence standard applica-
ble to affordable housing appeals imposes a lesser bur-
den than substantial evidence, that burden is minimal.
A land use agency simply must establish that something
more than a mere theoretical possibility of harm to
the public interest exists.’’ (Citations omitted; emphasis
omitted; footnote omitted; internal quotation marks
omitted.) Brenmor Properties, LLC v. Planning & Zon-
ing Commission, supra, 162 Conn. App. 694–96.
‘‘If that standard is met, the reviewing court then
must conduct a plenary review of the record and deter-
mine . . . whether the commission’s decision was nec-
essary to protect substantial interests in health, safety
or other matters that the commission legally may con-
sider, whether the risk of such harm to such public
interests clearly outweighs the need for affordable
housing, and whether the public interest can be pro-
tected by reasonable changes to the affordable housing
development.’’ (Internal quotation marks omitted.) Id.,
695. This presents a high bar for the commission, as
‘‘the test we must apply under § 8-30g is not whether
the [commission’s] decision was reasonable, but
whether the decision was necessary.’’ Eureka V, LLC
v. Planning & Zoning Commission, 139 Conn. App.
256, 275, 57 A.3d 372 (2012).
To establish that its denial is necessary, the commis-
sion’s decision must be predicated on evidence in the
record of both the existence of a potential harm and
the probability that such harm, in fact, would occur.
See Kaufman v. Zoning Commission, supra, 232 Conn.
154–62. Essentially, the commission’s decision must be
supported by sufficient evidence, which is more than
a mere possibility but not necessarily a preponderance
of the evidence, that the public interest at stake will
be harmed if the commission does not deny the applica-
tion. Christian Activities Council, Congregational v.
Town Council, 249 Conn. 566, 597, 735 A.2d 231 (1999).
A commission is not entitled to reject an application on
the basis of the mere possibility of harm or generalized
concerns. Carr v. Planning & Zoning Commission,
273 Conn. 573, 608–609, 872 A.2d 385 (2005) (report
suggesting possibility that no method of treating radio-
nuclides would be feasible was not valid reason to deny
plaintiff’s application); Kaufman v. Zoning Commis-
sion, supra, 156 (denial not necessary on basis of mere
possibility of harm to watershed without evidence quan-
tifying probability of such harm); Brenmor Properties,
LLC v. Planning & Zoning Commission, supra, 162
Conn. App. 703–704 (evidence of noncompliance with
ordinance did not obviate need for commission to iden-
tify evidence of quantifiable probability of specific
harm, without which evidence commission did not dem-
onstrate that denial was necessary); Eureka V, LLC v.
Planning & Zoning Commission, supra, 139 Conn.
App. 276–77 (without evidence of likelihood that harm
would occur, commission could not as matter of law
determine that decision was necessary to protect inter-
est); Mackowski v. Zoning Commission, 59 Conn. App.
608, 617, 757 A.2d 1162 (denial not necessary to prevent
adverse traffic and sewer impact when record lacked
specific supporting factual findings), cert. granted, 254
Conn. 949, 762 A.2d 902 (2000) (appeal withdrawn Sep-
tember 21, 2001). Accordingly, in determining whether
the commission has met its burden under § 8-30g, our
courts review the record for specific factual findings
and evidence quantifying the probability that harm will
result. Kaufman v. Zoning Commission, supra, 156.
A
We begin our analysis by noting that the record is
replete with evidence of the need for affordable housing
in Fairfield. This need has persisted for decades. In
1989, the original Affordable Housing Plan for Fairfield
acknowledged that ‘‘Fairfield’s single population of
unwed, divorced or widowed residents have extreme
difficulties in securing affordable housing within the
limits of their single income capacities.’’ Yet, within the
last ten years, Fairfield has seen little to no improve-
ment in addressing its dire need for affordable housing.
In 2011, the town’s Affordable Housing Committee
reported that since 1989, the town listed forty-seven
affordable ownership units; 266 elderly/disabled units;
nineteen permanent supportive units; and twenty-one
multifamily rental units, only one of which was a one
bedroom apartment. Altogether, in 2011, only 2.69 per-
cent of the town’s housing consisted of affordable hous-
ing units, down from 2.71 percent since 2000.
The record further reflects that, as of 2011, there are
no affordable housing units in the Southport section of
the town. As mentioned in Garden Homes’ initial project
description, ‘‘[a] multitude of town-produced docu-
ments over many years attests to the need for affordable
housing in Fairfield,’’ including indications that the
community has been reluctant to accept ‘‘the [t]own’s
role in providing or supporting the development of
rental or for sale housing at below market rate’’ and
the need to provide affordable housing for young and
single people. Other town documents indicated that the
town ‘‘does not have a large supply of rental housing,
affordable or otherwise,’’ and that the town particularly
lacked affordable housing for persons with disabilities.
Based in part on such representations, Fairfield
received a $383,457 block grant from the United States
Department of Housing and Urban Development in
2012. Of the Connecticut municipalities receiving Com-
munity Development Block Grants, Fairfield has the
lowest percentage of affordable housing. In 2013, the
town sought public input in updating its Affordable
Housing Plan. In its request, the town outlined its
affordable housing situation and needs, stating: ‘‘The
lack of affordable housing is a significant issue that
many communities face. This is especially true in Fair-
field, where the average cost of a single family home
in 2012 topped $521,000. Rising housing costs and the
lack of inventory among more modestly sized starter
homes have meant that many young professionals and
working class families are increasingly squeezed out of
the local housing market. Additionally, many elderly
homeowners that wish to [downsize] cannot find hous-
ing to suit their needs. Eighty-four percent of the
[t]own’s housing stock is comprised of single-family
homes. . . . All communities thrive on diverse popula-
tion; therefore the housing stock should reflect those
different needs.’’
Garden Homes initially proposed ‘‘setting aside 30
[percent] of the [proposed] units as affordable for a
period of [forty] years.’’ It would offer ‘‘[f]ifteen . . .
[units] to families whose income is less than or equal
to 60 percent of the area or statewide median income,
whichever is less . . . [and] [f]ourteen . . . [units] to
families whose income is greater than 60 percent but
less than or equal to 80 percent of the area or statewide
median income, whichever is less.’’ The proposal, there-
fore, would help ameliorate Fairfield’s dire need for
affordable housing. The commission, in its letter deny-
ing Garden Homes’ revised application, acknowledged
that ‘‘we all share the view that we need more affordable
housing . . . .’’
The court acknowledged that the proposal qualified
as an affordable housing plan under § 8-30g. Accord-
ingly, in reviewing both Garden Homes’ initial and
revised application and site plans, the court considered
the evidence as to the state of affordable housing in
Fairfield and weighed such need against the commis-
sion’s concerns. The court ultimately determined that
the commission’s concerns did not outweigh Fairfield’s
need for affordable housing. We will review both of the
court’s decisions, in turn.
B
We now consider whether the commission’s concerns
as to Garden Homes’ initial application and site plans
outweighed the need for affordable housing. The court
concluded that concern as to the inability for large
vehicles to turn around upon exiting the site was the
only concern that potentially could have outweighed
Fairfield’s need for affordable housing. The court ruled
that the remaining concerns did not outweigh Fairfield’s
need for affordable housing. We conclude that the
court’s decision was proper.
In reviewing the propriety of the court’s determina-
tions, we are cognizant that the commission bore the
burden of proving that its denial was necessary to pro-
tect its interests. Speculative concerns do not suffice.
See Brenmor Properties, LLC v. Planning & Zoning
Commission, supra, 162 Conn. App. 708 (‘‘speculation
. . . ha[s] no place in appellate review’’ [internal quota-
tion marks omitted]). Moreover, the commission’s
denial must be based on a quantifiable probability that
such harm will occur. See, e.g., Eureka V, LLC v. Plan-
ning & Zoning Commission, supra, 139 Conn. App.
276–77 (without evidence of likelihood that harm would
occur, commission could not as matter of law determine
that decision was necessary to protect interest). With
these principles in mind, we conclude that the court
properly determined that the commission’s concerns
regarding the twenty foot access way width, lack of
sidewalks, proposed number of parking spaces, and
lack of a secondary access way do not outweigh Fair-
field’s need for affordable housing.
As to the access way width, the record reflects that
twenty feet is adequate to comply with national fire
safety standards. Although town staff have recom-
mended adding four feet to the access way width, in
light of evidence that a width of twenty feet is adequate
to accommodate fire truck passage, any inability to
expand the access way beyond this width does not
necessitate the commission’s denial. Moreover, even if
twenty feet was not the minimally acceptable access
way width, the commission still would be required to
prove that its denial was necessary to protect substan-
tial public interests. See Brenmor Properties, LLC v.
Planning & Zoning Commission, supra, 162 Conn.
App. 703–704 (mere noncompliance with municipal
ordinance did not relieve commission of need to satisfy
its burden under § 8-30g). Accordingly, we agree with
the court’s conclusion that, on balance, any concern as
to the adequacy of the twenty foot wide access way,
or the desirability of increasing the width by four feet,
did not outweigh the need for affordable housing.
We additionally agree with the court’s determination
that concern as to the lack of sidewalks did not out-
weigh Fairfield’s need for affordable housing. The com-
mission cited concerns that during an emergency,
pedestrians might attempt to flee in the twenty foot
wide right of way, which would thereby endanger the
pedestrians and impede emergency vehicles entering
the property. The court was not persuaded. It deter-
mined that the entrance way would be located in close
proximity to the Interstate 95 on-ramp and that there
would be no sidewalks on the east side of Bronson
Road, as there would be no particular place for pedestri-
ans to walk. Accordingly, the court opined that pedestri-
ans would not necessarily crowd the entrance way dur-
ing an emergency. Moreover, the court concluded that
such concern was merely theoretical. We agree that the
commission’s concerns were merely theoretical, and,
therefore, the court properly concluded that those con-
cerns did not outweigh Fairfield’s need for affordable
housing. See id., 694–96.
We also agree with the court’s determination that
concern as to the ratio of parking spaces to dwelling
units did not outweigh Fairfield’s need for affordable
housing. The court considered differing testimony as
to the ratio of parking space per unit. Spear recom-
mended 1.5 parking spaces per unit because it would
reduce the need to search for parking spaces during
peak hours. Kermit Hua, Garden Homes’ traffic engi-
neer, advised that 1.2 parking spaces per unit would
be consistent with national standards set forth in the
Institute of Transportation Engineers, Parking Genera-
tion (4th Ed. 2010). The court determined that the con-
cerns as to the ratio of parking spaces per unit were
merely concerns as to the convenience of parking. The
commission bears the burden of proving that its denial
was necessary, in that it must be predicated upon evi-
dence in the record as to a quantifiable probability that
harm would occur. See Kaufman v. Zoning Commis-
sion, supra, 232 Conn. 154–62. We, therefore, conclude
that the court properly determined that concern as to
the ratio of parking spaces per unit did not outweigh
Fairfield’s need for affordable housing.
We also agree with the court’s determination that
concern as to the lack of a second access way did not
outweigh Fairfield’s need for affordable housing. The
court determined that a secondary access way was not
necessary to adhere to national fire safety standards.
It, therefore, concluded that the lack of a secondary
access way did not necessarily warrant the commis-
sion’s denial. On our review of the record, we conclude
that the court’s determination was sound, and concerns
as to the lack of a secondary access way did not necessi-
tate the commission’s denial.
On this point, however, the court acknowledged the
need to afford fire trucks the ability to turn around on-
site so that they could leave the site without backing
up the full length of the access way. It noted, however,
in light of Garden Homes’ proposed redesign to the
turnaround area, that it might be possible to accommo-
date this concern via alternative plans. The court,
accordingly, remanded the case for consideration of
the revised turnaround area. Neither party challenges
the propriety of the court’s decision to remand the case
for this purpose. We will not review the propriety of
the court’s remand order.
We conclude that the court’s determinations as to
Garden Homes’ initial application were proper.
C
We now consider whether the commission’s concerns
as to Garden Homes’ revised application and site plans
outweighed the need for affordable housing. After
reviewing the commission’s decision to deny Garden
Homes’ revised application, the court declined to con-
sider certain evidence that it determined exceeded the
scope of its remand order. It additionally concluded
that the commission, nonetheless, raised no new con-
cerns on remand that outweighed Fairfield’s need for
affordable housing. On appeal to this court, the commis-
sion claims that the court improperly declined to review
certain evidence and further claims that it nonetheless
satisfied its burden under § 8-30g. We disagree with the
commission on both matters.
On remand, the commission ‘‘should examine the
mandate and the opinion of the reviewing court and
proceed in conformity with the views expressed
therein.’’ (Emphasis omitted; internal quotation marks
omitted.) West Haven Sound Development Corp. v. West
Haven, supra, 207 Conn. 312. A court or administrative
body may consider matters that are ‘‘relevant to the
issues upon which further proceedings are ordered,’’
provided such matters are not ‘‘extraneous to the issues
and purposes of the remand . . . .’’12 Cioffoletti v.
Planning & Zoning Commission, 220 Conn. 362, 369,
599 A.2d 9 (1991) (concluding court did not exceed
scope of remand by resolving issue on grounds not
mentioned in previous decision); cf. Bauer v. Waste
Management of Connecticut, Inc., 239 Conn. 515, 524–
25, 686 A.2d 481 (1996) (revised pleadings permitted to
consider new facts that occurred since original trial
that relate to matter relevant to remand). Nonetheless,
the burden rests with the commission in an affordable
housing appeal to demonstrate that its decision is sup-
ported by sufficient evidence in the record. General
Statutes § 8-30g. To this end, ‘‘[i]t is well established
that in administrative . . . cases, when the party
charged with the burden of proof fails to satisfy that
burden, it is not entitled to a second bite at the apple on
remand.’’ (Internal quotation marks omitted.) Shelton
v. Statewide Grievance Committee, 277 Conn. 99, 111,
890 A.2d 104 (2006).
In the present case, the court had issued a limited
remand order directing the commission to consider
potential redesigns to the turnaround area. The purpose
of the court’s order, essentially, was to ensure that fire
trucks could exit the site without needing to back up
the entire length of the access way. If Garden Homes
could propose site plan revisions that allowed for this,
then a secondary access way would not be necessary.
The commission, however, mistakenly interpreted
the court’s order in light of the court’s determination
that concern as to the inability of fire trucks to turn
around on-site posed a considerable concern as to pub-
lic health and safety. The commission, therefore, evalu-
ated Garden Homes’ revised site plans more broadly
for any new concerns pertaining to the department’s
ability to access the building and enter and exit the
site. In doing so, the commission, in effect, rehashed
matters on which the court previously had ruled.
Significantly, a key submission to the commission
was the Bisson report, in which the assistant fire chief
essentially reiterated the department’s prior concerns
as to certain features in Garden Homes’ proposed plans,
including the twenty foot wide access way and the lack
of a secondary entrance, and took issue with matters
that did not pertain to the turnaround area. By incorpo-
rating the Bisson report and other recommendations
from the department into its collective statement of
denial, the commission evaluated matters well beyond
the ability of fire trucks to turn around on-site.
For that reason, the court concluded that the commis-
sion went well outside the bounds of the limited
remand. As it stated in its memorandum of decision:
‘‘The court is surprised by the [commission’s] response
to the limited remand. The court ordered the remand
for consideration of the proposed redesign of the build-
ing and parking area to allow a ladder truck to leave
the site without having to back up the full length of the
access road. The [c]ommission had not considered this
proposal due to its late introduction into the hearing
process and the absence of the engineered plan. How-
ever, the [commission], instead of focusing on the issue
that was remanded, used the remand to bolster its previ-
ous objections, which had been ruled on and rejected,
adding considerable time and expense to the affordable
housing application and project.’’
Specifically, the court determined that the following
considerations, on which the commission had based its
denial, pertained to matters beyond the adequacy of
the revised turnaround area: lack of secondary access
way; lack of area of refuge during an emergency; possi-
bility that residents will flee the site during an emer-
gency; prospective ninety-five cars leaving the site dur-
ing an emergency against a half dozen emergency
vehicles arriving; McCarthy’s predicted twenty-four
annual emergency responses to the site; prediction that
the department would be on-site for hours; ladder
truck’s ability to access the roof; turnaround area’s suit-
ability to accommodate incoming emergency vehicles;
and McCarthy’s opinion as to alternative site plans to
address the department’s concerns. The court declined
to review this evidence.
‘‘In carrying out a mandate of [the higher court], the
[lower] court is limited to the specific direction of the
mandate as interpreted in light of the opinion. . . . The
[lower] court cannot adjudicate rights and duties not
within the scope of the remand.’’ (Citations omitted;
internal quotation marks omitted.) State v. Tabone,
supra, 301 Conn. 714–15; Nowell v. Nowell, 163 Conn.
116, 121, 302 A.2d 260 (1972). ’’When a case is remanded
for a rehearing, the trial court’s jurisdiction and duties
are limited to the scope of the order. . . . The trial
court should not deviate from the directive of the
remand.’’ (Citations omitted.) Leabo v. Leninski, 9
Conn. App. 299, 301, 518 A.2d 667 (1986), cert. denied,
202 Conn. 806, 520 A.2d 1286 (1987); see also State Bar
Assn. v. Connecticut Bank & Trust Co., 146 Conn. 556,
561, 153 A.2d 453 (1959) (lower court on remand is
limited to specific direction of higher court mandate);
Manchester Modes, Inc. v. Ellis, 2 Conn. App. 261, 262,
477 A.2d 164 (1984) (same). The same rules apply to a
trial court’s remand order to an administrative commit-
tee or board. See Shelton v. Statewide Grievance Com-
mittee, supra, 277 Conn. 111.
Accordingly, the court concluded that the commis-
sion ‘‘had no jurisdiction over those issues not specifi-
cally remanded to it.’’ We agree with the court’s determi-
nation that, on remand, the commission had jurisdiction
only over those issues specifically remanded to it. The
court correctly concluded that the commission was not
entitled to treat the court’s limited remand order as
a second bite at the apple. See Shelton v. Statewide
Grievance Committee, supra, 277 Conn. 111. Accord-
ingly, the court properly declined to review evidence
that exceeded the scope of its remand.
Turning now to the matter that properly was before
the commission on remand, we agree with the court’s
conclusion as to the revised turnaround area. The com-
mission remained concerned that the revised turn-
around area would assist the department only upon
exiting the development and would not improve access
to the building in the event of an emergency. Addition-
ally, the commission noted that in the revised turn-
around area, an emergency vehicle would need to make,
at a minimum, a W shaped turning movement, and not
a hammerhead, Y, or K turn, as demonstrated in the
Occupational Safety and Health Administration’s 2006
Fire Service Features of Buildings and Fire Protection
Systems manual. It, therefore, was concerned that an
emergency vehicle might have difficulty making the
required turning movements in that area.
The court, upon its review of Garden Homes’ revised
site plans, characterized the commission’s concerns as
to emergency vehicle maneuverability within the turn-
around area as mere concern that ‘‘some maneuvering
will be required’’ before such vehicle can turn around.
It, therefore, was not convinced by the commission’s
concern that an emergency vehicle might not be able
to turn around successfully, or otherwise might require
a number of different turning movements, in the revised
turnaround area. The court was persuaded that the
revised turnaround area satisfactorily addressed its pre-
vious concerns, such that the revision constituted ‘‘a
health and safety improvement’’ to the plan. Accord-
ingly, the court concluded that the commission’s con-
cerns as to maneuverability within the turnaround area
did not outweigh the need for affordable housing.
We see no reason to disturb the court’s determination
as to the adequacy of the revised turnaround area. Gar-
den Homes provided the commission with evidence
of turning movement counts, which Garden Homes’
engineer calculated using radius measurement provided
by the manufacturer of the department’s largest fire
truck. According to those plans, the department’s
largest fire truck could turn around by making a four
count W shaped turning movement in the proposed
turnaround area. The possibility that this maneuver
could be difficult or that a reverse in direction could
require additional turning movements is just that, a
possibility. The record does not contain evidence as to
the probability that such a scenario will result in harm
to health and safety. See Eureka V, LLC v. Planning &
Zoning Commission, supra, 139 Conn. App. 276–77
(commission required to provide evidence as to likeli-
hood that harm would occur).
We also agree with the trial court’s conclusion that
‘‘[t]o the extent the [c]ommission has raised any new
health and safety concerns . . . those concerns do not
outweigh [Fairfield’s] need for affordable housing.’’
Fairfield remains in dire need of affordable housing, yet
largely has ignored this need. Although the commission
had before it reasonable public health and safety con-
cerns, the commission nonetheless bore the burden of
demonstrating that its denial was necessary so as to
outweigh the need for affordable housing. JAG Capital
Drive, LLC v. Zoning Commission, supra, 168 Conn.
App. 667–68. On the basis of our review of the record,
we conclude that the commission has failed to satisfy
its burden and that any concerns the commission raised
do not outweigh Fairfield’s long time and admitted need
for affordable housing. We, therefore, conclude that the
court properly sustained the plaintiffs’ appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The original plaintiffs were Garden Homes, which filed an application
for the approval of an affordable housing development that would be situated
on two abutting parcels of land located at 92 and 140 Bronson Road in
Fairfield, Sandra Conner, who owned the parcel of land located at 140
Bronson Road, and Richard Irwin, acting by and through his conservator,
Robert Russo, who owned the parcel of land located at 92 Bronson Road.
Subsequently, on June 2, 2016, the court granted the original plaintiffs’
motion to substitute Garden Homes Residential, L.P., as a plaintiff for Conner
and Irwin on the ground that Conner and Irwin conveyed title of their
properties to Garden Homes Residential, L.P., in December, 2015. For conve-
nience, unless otherwise indicated, all references to the plaintiffs in this
opinion are to Garden Homes and Garden Homes Residential, L.P.
2
Fifteen units would accommodate families with income ‘‘less than or
equal to 60 percent of the area or statewide median income, whichever is
less,’’ and fourteen units would accommodate families ‘‘whose income is
greater than 60 percent but less than or equal to 80 percent of the area or
statewide median income, whichever is less.’’
3
Similarly, in a recent decision also involving the commission, ‘‘a clerk
for the commission . . . wrote the plaintiff’s counsel a letter providing the
. . . purported reasons for the commission’s denial . . . . Although our
case law directs that we not rely on a letter that was not adopted by the
commission to evince the commission’s collective decision; see Smith-Groh,
Inc. v. Planning & Zoning Commission, [78 Conn. App. 216, 224–26, 826
A.2d 249 (2003)] (concluding that letter to applicant’s attorney [received]
from town planner, purporting to state reasons for commission’s denial of
application for site plan approval and special permit, was not collective
statement of commission’s decision, given that commission had not adopted
letter, and stating that ‘[a]lthough the reasons outlined in the letter were
discussed by the commission during either the public hearing or the special
meeting, the planner could not speak for the commission’); because the
parties . . . agree[d] that the letter properly [set] forth the reasons for the
commission’s decision and [did] not claim that the . . . letter should not
be considered, we . . . for purposes of [that] case, consider[ed] the reasons
set forth in the letter.’’ (Footnote omitted.) American Institute for Neuro-
Integrative Development, Inc. v. Town Plan & Zoning Commission, 189
Conn. App. 332, 337–38, 207 A.3d 1053 (2019).
Although we will take the same approach in the present case and consider
the reasons set forth in the letter from the clerk, we strongly urge the
commission to be mindful that it ordinarily should not rely on a letter from
a representative of the commission to represent the commission’s collective
statement in the absence of the commission adopting such statement.
4
The record indicates that Connecticut adopted the 2003 edition of NFPA
1 as the 2010 Connecticut State Fire Prevention Code. NFPA 1 fire safety
standards provides: ‘‘Fire department access roads shall have an unob-
structed width of not less than 20 ft (6.1 m) and an unobstructed vertical
clearance of not less than 13 ft 6 in. (4.1 m).’’ NFPA 1, Uniform Fire Code
(2003 Ed.) § 18.2.2.5.1.1, p. 1-113.
5
The NFPA standards provide that one access route is adequate for devel-
opments containing one to 100 ‘‘households.’’ NFPA 1141, Standard for Fire
Protection Infrastructure for Land Development in Wildland, Rural, and
Suburban Areas (2012 Ed.) § 5.1.4.1, Table 5.1.4.1 (a), p. 1141-7.
6
The court also ordered that the commission make it a condition of
approval that Garden Homes receive final approval from Fairfield’s Water
Pollution Control Authority (WPCA). As part of its revised site plans, Garden
Homes proposed installing a two foot reinforced grass shoulder along a
portion of the access way that would run against the Mill River. Garden
Homes represented to the commission that the WPCA had unanimously
approved this feature.
After reviewing the commission’s denial of Garden Homes’ revised applica-
tion, the court noted: ‘‘At the same time that [Garden Homes] proposed the
[turnaround] for the fire truck, it also proposed placing concrete pavers on
the sides of the [entryway], allowing some additional maneuvering area for
the ladder trucks entering and exiting the site. The [commission] did not
act on that proposal . . . . However, as the court found in [its] first [deci-
sion] that the twenty foot width was adequate for ingress and egress, there
is no legal requirement for the pavers and, therefore, there is no need to
mandate their installation. Further, it now appears that any such installation
of pavers might require wetlands review. Given that the pavers and the
increase of the width of the road are not necessary for the approved access
way, there is no reason to revisit the offer of installing them.’’
Because the commission did not approve Garden Homes’ revised applica-
tion and site plans, it did not assign conditions for approval. Thus, this
matter is not dispositive in the present appeal, and we will not consider
it further.
7
As the plaintiffs note in their brief, new matters addressed in the Bisson
report included (1) roof and attic safety; (2) space to deploy ladders on the
rear side of the building; (3) proximity of ladders to nearby high voltage
power lines; (4) concerns as to construction style; (5) lack of fire lanes; (6)
no ‘‘exterior defensive firefighting positions’’; (7) pedestrian traffic exiting
during an emergency; and (8) the possibility of a gas leak, transportation
incident, or chemical release. (Internal quotation marks omitted.)
8
We reiterate that although we will, for the purposes of this case, consider
the reasons set forth in the clerk’s letter, parties should not rely on a letter
from a representative of the commission to represent the commission’s
collective statement in the absence of the commission adopting such state-
ment. See footnote 3 of this opinion.
9
The letter provided: ‘‘At the May [24, 2016] hearing the [c]ommission
heard from . . . McCarthy. [McCarthy] urged the [c]ommission to deny the
revised plan and offered his testimony:
‘‘The size, type of construction and configuration of the project requires
the [department] to be able to access the building.
‘‘A lack of secondary access and the revised plan significantly impair the
[department’s] ability to access the property and its operations.
‘‘The [department] is responsible for all the occupants of the building
during an emergency and there is no place for the residents to go or assemble
during an emergency response.
‘‘[I]n an emergency, residents will attempt to flee in their cars because
they want to protect their investment and avoid being trapped [on-site] for
extended time.
‘‘Up to [ninety-five] cars will be attempting to leave at the same time that
a half dozen emergency apparatus would be arriving.
‘‘The [U]niform [F]ire [C]ode and the NFPA standards require a secondary
access when in the opinion of the Authority Having Jurisdiction (AHJ) a
single access road could be impaired or other factors necessitate it.
‘‘The [department] has responded fourteen times since June 2014 to the
Garden Homes development on Fairchild Avenue including a structure fire.
That building has [fifty-four] units. For this building, the [department]
expects to respond about twenty-four times annually or twice per month.
All five stations would respond to this site due to its size. Due to the limited
access and space for maneuvering, all of the required equipment could not
be deployed properly. This opinion is based on [McCarthy’s] experience
and is not imagined or theoretical. He indicated there is ‘no doubt’ they
would be there repeatedly.
‘‘When the [d]epartment responds, it will be there for hours.
‘‘The ladder truck cannot access the roof.
‘‘The turnaround [area] does not help [department] operations nor improve
access to the building and is only useful when it is time to leave.
‘‘There was further testimony from others that it is questionable that
the fire trucks could even make the required multiple maneuvers in the
space provided.
‘‘[McCarthy] was asked if he thought the revised plan was safe and his
response was ‘no.’
‘‘In addition, the [c]ommission asked [McCarthy] if there was any alterna-
tive available to address the concerns of the department and his response
was ‘no.’ ’’
10
The commission concluded: ‘‘1. There is sufficient evidence in the record
to support a finding that the proposed development would pose substantial
risks to public interests in health and safety.
‘‘2. Those public interests clearly outweigh the need for affordable housing.
‘‘3. There are no reasonable conditions of approval that can be made to
protect those public interests.’’
11
Although § 8-30g (g) was the subject of technical amendments in 2017;
see Public Acts 2017, No. 17-170, § 1; those amendments have no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.
12
The commission indicates that our precedent does not fully address the
scope of remand in the context of a land use administrative appeal. We see
no reason to consider the scope of the commission’s review on the Superior
Court’s remand of the commission’s administrative decision differently than
we would the scope of the Superior Court’s review on remand from the
Appellate Court.