Kellogg v. Middlesex Mutual Assurance Company - Trial court vacated an unrestricted arbitration award because…
Affordable Housing Trumps Local Law
Affordable housing trumps local law, according to the Connecticut Appellate Court’s decision in Brenmor Properties, LLC v. Planning and Zoning Commission, to be officially released on February 2, 2016.
The main issue in this relatively long opinion surrounded an interior road in a proposed affordable housing development. The commission maintained that the interior road did not comply with the town’s road ordinance, which specified things like minimum width and maximum grade. Since the town’s road ordinance was enacted to protect the public health and safety, any deviation from it is per se unacceptable and requires denial of the application.
The developer countered that the interior road did not present any safety risk, notwithstanding its noncompliance with the road ordinance. The developer’s traffic expert submitted a report and testified to that effect.
The commission denied the application. The developer appealed to the Superior Court, who reversed and remanded to the commission with an instruction to grant the application “as is.”
The commission appealed to the Appellate Court, who affirmed the trial court.
Arguments on Appeal
The commission’s principal argument essentially was that it didn’t really have to consider anything beyond the road’s noncompliance with the road ordinance because the road ordinance represented what was necessary for public health and safety.
The commission also argued that the proposed development did not comply with the fire code based on the fire marshal’s report. I’m not going to address this claim because it doesn’t warrant any discussion. The court noted that the argument was not well-made because everyone conceded that the fire marshal’s report was based on an earlier version of the application, not the final, revised application.
The commission’s final argument was that Superior Court did not have the authority to remand with an instruction to grant the application “as is.”
The developer offered an alternative ground for affirmance, namely that the commission failed to state its reasons for denying the application.
Appellate Court’s Conclusions
The Appellate Court agreed that the road ordinance protects public health and safety. The court disagreed that the affordable housing statutes allowed the commission to end the inquiry there. Rather, the court concluded:
“In an affordable housing appeal pursuant to § 8-30g, the commission bears the burden of demonstrating that its denial was necessary to protect a substantial public interest that clearly outweighs the need for affordable housing. When a municipal legislative enactment is involved, the commission—as well as a reviewing court—must look to the rationale behind that enactment to determine whether that standard is satisfied.”
The evidence showed that the road ordinance’s restrictions were not necessary to protect a substantial public interest. The developer’s traffic engineer explained that the proposed interior road could safely accomplish all of the things that a road needed to accomplish. In contrast, there was no evidence, other than speculation, from anyone that the proposed interior road posed any risk for anyone.
As to the commission’s argument that the Superior Court could not direct the commission to accept the application “as is”, the Appellate Court concluded that “[t]he court’s authority under § 8-30g (g) includes ‘the power’ to order a commission to grant an affordable housing application on remand.” The trial court did not abuse its discretion with its remand order.
The Appellate Court rejected the developer’s alternate ground for affirmance, as follows: “Admittedly, the motion to deny the plaintiff’s modified application was not a model of precision. It nonetheless set forth various grounds for denial in plain fashion…. As a result, we conclude that the record contains a clear basis on which to review the commission’s decision.”
Impact
The notion that noncompliance with a town ordinance is not a per se ground to deny an affordable housing application appears to me to be an extension of existing law. The Appellate Court explained that one of the reasons we have the affordable housing statutes is to prevent commissions from pre-textual denials based on noncomformance with planning and zoning regulations. For that reason, it is established law that a commission cannot deny an affordable housing application based on mere nonconformance with planning and zoning regulations. The Appellate Court seems to have extended that reasoning to all town regulations and ordinances.
About the Photo
A road like the one in the photo probably would have supported denial of the application.
