+

tr
LLt Vl+,/ zaaS l4: lb '2b39',2538A3 lAlVtdT
PAGE 81./24
DE
iE"
I

DOci(Fr\e HlrB cv 07 401s72?s

SII?ERIOR cot
lL
rnr
glsPg HoMEs MAl.rAGErvrENr
CORTORATION, .ruDICIAL DISTRTCT
ET AL OF
NEWBRTTAIN
V.
AT NEW BRITAIN
PLANNING AND ZONING
COMMSSION
OF THE TOWN OF OXFORD NOVEMBER 3, 2OO9

L Facts and procedural llistory

The plaintiffs, Garden Home
M.anagement coqporafion and Third
Garden park Limited
Partnership' appeal from decisions
of the defenclant, pranning and Zoning
commission of the
Town of oxford ("commission")
denying ap. plications for: l) a text amenclmcnt
to the Zoning
Regulations of the Town of oxford, 2)
an amendment to the zoningmap to
rezone the plaintiffs,
properfy' and 3) an application
for a zoning permit and for site plan approval
for the
development of i i3 mobile manu:facturecl
dwellings. Garden Hornes Management
corporation
is the rnanaging partner of T,lr.ird
Garden park Lirnited partnership. The parties
filed rengthy
briefs and engaged in oral argument.
The court maclc a site
'isit with the artorneys on April 24,
2009.

provides access to the oxford Airport.

There is a substantial inland-wetland #.;n,.h."oiri#S
the properry into two buildable sections.
Oue section, lcnown as
Lrt .t+t .uua l-q: Ib 2a3J'153993 I/JVhJT
PAGE A2/24

j
proposed to have 1^ ---:--
4 units, all of whibh u,il have access to Donovan Road from
a singre inter:ior
road' Another section' lctown
as oxford commons west,
is proposed to have g9 units, ail
of
which u'ill have access to Hurrey
*o[a no* a singre intcrior road.
Article 9A of the zoning r.rJ,rr,on.,
and the zoning map rocare rhe property
in the
corporate Business Park Distri.r
l"Jplo"). The cBpD was established in 2000byremoving
440 acres from the existing 2.400-r.f Industrial District. I\{ost of the
site is old agricultural

the south across Hurley Road.

I
;,;;,;;.;i:#,.
ana thf ftgional airport to the east. The land
remaining in the
Indushial Zone is largely
HoweveJ, there are singlo_family hornes
scattercd along
virtually every roadway in fhe

The applications for amondmJ,ot

ortn. Regulations and the zoning map would create a
new residentiar disrri* and would ^
*+".,r" ;r.; ;:;;" ;;;;;"
residential district' Tlie plaintiffs ""_*
ntef their applications pursuant to c.G.s. g g-30g,
fte
A'fFordable Housing Appeals
A.t. Th[plaintiffs proposed ro ser aside 30% (35 of the
r 13) units
as'?ffordablc,, units as set forth in j
S ,Or.
I

The commission held a publif hearing

which extendcd over four evenings during
tlre
summ., and fall of 2006' During
rn. , the commission received verbal. written, arrd
f*'n
documentary evidence from the ptaintfffs.
the public, and from the commission
itself, ln a 62-
I

page memorandum dated

February t,lool the cornmission denied the applications. First.
the
commission decicled that the IndustriJl
use exception to the affordable housing
statute applied
to the applications' Accordingly,
thc lo*rlrrion revierved the applications
in conformance

2
LLt <l+t Loaa rq: Ib 24J3,253u43 l^IVWT
PAGE A3/24

reviewed thc applications again

as if they were enfiilcd to bs treated as affordabre housing
applications and concluded tbat
the)'shoul<l be denied under:
those standards as well. In
February 2007 theplainti,fft
filcd a "resubmission apprication, with the
commission. A public
hcarirrg lasting tfuee evenings
was held in May and June 2007.
Additional evidence was
received' on september 20, 2007
thecommission again de'ied the
applicarions, this time in a
63-page decision' The commission
fbllowed the same fonnat used in the original
clccision by
first deciding that the applications
failed to qualif,i for treatment under
affordable housing
standards' but then reviewing the
applications undcr those standards
as well as normal standards.
This appeal followed' The plaintiffs
appeal only the decision denying
the resubmission
applications, not the original deniai.

The reasons fbr appeal are that

the commission's decision does not
satisfu its burden of
proof under c'G's' $ 8-30g(g) in that tbe reasons fbr denial,
a) are not supported by substantial
evidence in the record, b) are
not based upon substantiar i"nterests in public
health and safety or
other matten that the commission
may legally consider, c) do not clearly
ouhveigh the need for
afiflordable housing in oxford; and d) could have been addressed by
reasonable changes to the
Application.

The CBpD permr^ts the following uses:

4.1 Busine.qs or corporate offices

4.2 Research and deveroprnent facilities, incruding

laboratories
4.3 Data processing facihities

4.4 Manufacturers shoqrooms and salcs offices

4.5 Printing and publishing sewices

LLt ti-. LUU3 l-r+: Lb .las3253g6J
t4Vt^lT PAGE 84/24

4.6 Broadcast and media production

facilities

witrrin a buirding
rh" cB; .,il":;,T"*;ffi,: ffiHffi:
5'l wholcsale and Disribution uses pr:ovided
that thcy are a component of a
corporate
or business oflics or manufacturing
use-

5'2 warehouses, providin g that

they area. component of a corporate
or business office
or manufbchrring use.

t., Restaurauts, cxcluding drive through

, facilities.
5.4 Hotels.

5.S Child day care facilitics,

5.6 Health and fihess clubs,

5'7 schools- collegesn universities, technical,

trade. vocational, and. business.
The Regulations also permifs
bed and breakfa.st accommodations
by special exception in any
dishict provided they are located, in the
horne of tlre owner/operator,

Article 9 of the Regulations croates the

IndustrialDistrict frorn which the cBpD u,as
removed in 1999_2000. The Indushial
District permits:
2.1 Wholesale & Distribution.

2'2 Manufacturing and Assembly when conducted

entirely within a building.
2'3warehousing and storage only in conjuncfion
with manufacture and assembly or
other perrnittsd use.

2.4 Broadcast and media production.

2.5 Banks aod financial institutions.

, L't e1/ zuu) I.{: Ib 2a33,253ALJ3 l^rVt4T
P4rcE 85/24

2.6 Busines5, profbssional & Coqporate Offices

2.7 Aviation Facilities.

2'E Printing, publishing blueprinting

& similar: rEproduction.
2'll
remporary lodging when done
in conjunction with corporate training
as an
accessory use to an industrial
use' such temporary loclging sball be
fbr a maximum of ten days
within any calender montho
as an accessory use.

The h:dustrial District creates

the foilowing uses by Special exception:

3'l Alr uses witrr a gross floor area of 50.000 square ftet or greater.
3-2 Outdoor manufachrre or assembly.

3.3 Monument and stone cufing.

g.4 Garden supply centers, and

nurseries.

3.5 GovernmentBuildings.

3.6 (Deloed).

3.7 Lumber and Building suppll, srorage

and sales.

3.8 Restaurants.

3.9 Sale of alcol:olic beverages.

3.i0 Veterinary hospitals.

3' 11 Undertaker estabrishments, crematories

and funerar parrors.
3.1,2 Child day care ccnter.

3.l3 Carwashes
3.14 Medical of{ices,

3. I5 CommerciaLRecreational Facilities.
ra, L1_/ 4uuJ r.,+, ro zvsa.zJJw3 l^rVhJT
PAGE 86/24

3.16 Garagcs and Filling Stations.

3.17 lleavy Equipment sale5o storage

and rental.

3.l.8 public parking Lots.

3.19 Gas powered generating

facilities,

3'20 Drive through facilities of permitted uscs

or u,ses pem:itted by speciat exception.
3'21 Retail uses when accessory to a manufacturing or other
principal use.
3.22 Contractor's yards.

IL Aggrjevement

Aggrievernent is a jurisdictional question and

is a prerequisite to maintaining an appeal.
winche'ster ll/oods Associales v.
Planning and zoning comnzbsion,2rgconn. 1303,307
(1ggr).
In affordable housing appcals, as
in traditional zoning appeals, the plaintiffhas
the burden of
establishing aggrievem ent.
Trimar Equ.ities, LLC v. planning
& zoning Board,66 conn. App.
631' 638'3 9 (2001)' c'G's'
$ s-loglq provides rhar any person whose affordable
housing
appeal is denied may appeal.
In addition, o'owner.s ofproperty that
is the s'bject of a.n
application are aggrieved, and
the plaintiffb may prove aggrievement
by testimony at rhe tirne of
trial'" winchester woods Associates v. Planning
and zoning conmdssiorr, supra, 30g, The
plaintiffs are aggrieved as the
owners of the properfy which is the
subject of their applications
denied by the Cornrnissjon.

III. Standard of Review

Judicial review of a planning and zoning
decision on an affordable housing application
is
governed by C.G.S^ 8-309 (g).
That secrion providos:

(g) Upon an appeal taken under

subsection (f) of this section,
rhe brrrden shat be on the comrnission
to prt1e, based upon
,L. w,_t LuuJ r.$; Lb .l6J3.253ggJ
l^lVt4T
PAGE 87/24

the evidonce in the record. compired

before such commission
that the decision from wt:ich,,j;h;p;t
is taker: and thc
reasons cited for such. decjsion
aie ,rpoo*ud by sufficient

il1ffi ;:i3; t;,Tl;,li ;Hil ilI*x':J#fr:,

rhe conrmission, rhat (tXA)
ril;;;il; ":T:tr .
necessary to prorecr
i.s
substantiar prrbric inter..sls in
heartrr.-si*rr,or otrrer matters
which the commission.may legally.oo.idur,
@) such public
inrerests crearry outweigh itt.
iui
ro.,noraaue housing; and (c)
such public interests cannot bc protectJty,.rr"".ur"
the affordabre housingaerreropient,
"i"il*_ "
was the "ririrel the apprication which
subje* ofthe decision rrom'which;;;t;p;Hi'*",
would locate affordable housing irt""
in un *iu" wliich is zoned for indushial
use and wbich does not pcrmit
iesidential uses, and (B) the developmcnt
is not assisted housing, as defined
in.subsectjon (a) of this.qection.
If the commis.sion does not satisfy its
burden orp.oor*luitni, subsection,
t1* tl{lwholly or partly t:evisc, *oiir", remand
or reverse the decision
ths
from which the appeai *"i t"t* ri;;;*., consisteht with
the evidence in tlie record before
it.

"[In conducting its review in an affordable

housing appeal, the trial court must first
determine whether'the decision
from which such appeal is taken and the reasons cited
for such
decision are supported by sufficient
evidcnce in the record., ceneral
statutes $ g-30g (g).
speoifically' the court must detcrmine
whether the record establishes that
there is more rhan a
mere theoretical possibility, but
not necessarily a Iikelihood, of a specific
harm to thc public
interest it tbe application is gantcd.
If the courr finds that such suffi,cient evidence eri.sts,
then it
must conduct a plenary review
of the rccord and determine inclependently
wliether thc
commission's decision was recessary
to protect substantial interests in
health, saftty or ot'er
matters that the commission legally
ffdy consider, whether the risk of such harm to such public
interests clearly outweighs the need
for affordable housing, and whether thc public
interest oan
be protected by rcasonable changes
to the affordable hou.si.ng development,,
(Inremal quotation
marks omittea') carr v' Planning & zoning contmission, 273conn, sT3,sg6-g7 (2005),
or
rrl ur,. 4uuJ rq. rt) l4JSzaJavS t,lVt^lT
PAGE 88/24

u'hether the application would

locate affordable housing in an area
*,hich is zoned for industrial
use and which does not permit
residcntial uses, and the development
is not assisted housing.
c'G's' $ 30s (g) "reveals two different burdens
of proof for appeals brought pursuant
thereto. Subpart (l) applies to traditional affordable
housing appeals and subparr (2) applies
to
affordablc housing appeals that
seek to locate housing in an area zoned,for
industrial use. Under
both altel:natives' the burden is on the corrmissiorr
first to cite the reasons for thcir decision and

' to demonstrate lfiat the reasons cited fbr such decision are.supported by
sufficient evidence in the
record' second' the commission shall
also have the burden fo prove ono
oftwo things: if it is a
traditional affordable housing appcal,
the commission must satis$r the three_pronged
test set
forth in part's (l') (A) (B) and (c)' If the application seeks to place housing i' an arca zoned for
indusHal use, the commission must
only satisfy the two^pronged test set forth in
parts (2) (A)
(B)." (Intemal quotation marks and citations
and
omitted) Jordan v. OId Say hrook Zoni.ng
commitsion, superior: court, Judioial
District of New Britain at New Britain, Dockct
No.
0110508891 (October 3i, 2003).

"In the present case, if the commission establishes

thc applicability of the industrial zone
oxemption' it raust only show that the
reasons it cited are sup?orted by sufficieart record

evidence' I{ however, the industrial

zone exemption does not apply, tbe commission
must
satisfy the heightened burdelr of proof
set fbrttr in pa.rt (l) of the statute. As the industrial zone
exemption is determinative of the commission's
burden of proof and rhe scope of this court,s
r€view" its applicability must be
determined at the outsct. c.G.s. g g-30e (s) (2).
rhe in6.ustrial
zone exemption, scts forth a less stringent
burden of proof than that set forth in $ g-30g (g) (l).,,
id' The language ofthe stahtte. and
the Superior court cases which have considered
it, indicate
rr/w4/'zqai 14:l_E 2g392S3AAj htvt4T PAGE 89/24

that the appmpriate standard ofrevicw

for whether the commission las met its
second burdon ol,
proof is plenary review' Baker Residential
L;mited partnership v. Berlin .pl.an.ning
and zoning
commission, superior court, Judicial
District of New Britain at New Britain, Docket
No. 06
401 2368 (September 10. 200g).

IV. The Need for Affordable Housing

The rccord demonstrates that the Town of

oxford has a.substantial need for aff,ordable
housing' oxford falls below the "safe
harbor" established by c.G.s. (k) for towns having
$ 30g
at least l0% of all their: dweling units
quarifo as affordabrc *nder the formura established
by that
section' In oxford, the percentage of dwelling
units qualifuing as affordable is only l.ryo,
ranking oxford uear the bottorn of
connecticut's I 6g municiparitie.s.

The record reveals that oxford ha.s done

little or nothing to address the need for
affordable housing' since 1991, c'G's. $ s-2 has required all municipalities to adopt zoning
regulations that'?romote housing clioice
and economic diversity in housing, including
housing
for both low and moderate incomc households."
The oxford regulations do not contain any
provisions which seriously address
this requirement,

V. Discussion

A, The Reasons for Denial

The Cornmission cited several reasons :{br
denying the plaintiffs, applications, In

accordance with the standard of review sct lbrth

above, the court must first determine whether

ttie recor'd contains sufficient evidence to support

the reasons cited by the cornmission for its

decision.

l. Set Aside Development

LL/ acl taal 14:16 2A39253893 IAIVWT
PAGE 1A/24

Thc first issue which must be addressed

is the commission,s argument that
thc
application does not come within
the definition of a "set aside developmenr,,
in c,G.s- g-30g
$
(a). and thus is not an ,,af..fbrdable
trousing application.,, That section
defines an affor,dable
housing development as assisted bousing
or a set-aside development. This project
is not assistcd
hor_rsi"ug.

A set-aside development is defined as "a development in which not less than thirf per
cent of the dwelling units will
be conveyed by deeds containing covenants
or restrictions which
shall require that, for at least forty years
after the inihlal occupation of the proposed
dcvelopment,
such dwelling units shali be sold or rented
at, or below, prices which will preserve the units
as
housing fbr which
P€r"lons and families pay thirty per cent or less of tbeir annual
income . . .,,
Tbe commission argues that there must
eitber be a sale or a rental--but not.a combination
of the
two--in order to qualifu.

Heren the applicant proposed to sell

the dwellings and rent the land where the building is
Iocated' The commission claims that the
cornbinatiou of sale and rental does not qualify.
This
arEument must be rejected because
it is not based upon a fair reading of the language
of g30g(a).
I can see nothing in the Ianguage of
the definition of a set aside development which
would
disqualifu the sale and rental scheme proposed
by the plaintiffs, provided that the Afford abiliry
Plan accounts fbr the sales price and the
rent so that it qualifies as affordable under the stafute
and the regulations of the Department
of Economic and community Developmcnt. r'lre
Afford
abiliw Plan properly treats the manufachrred
homes as sale units with the pad rent included in
monthly expenses' The plaintiff s explanation
of the calculations employed in the plan
convinces the court that the Plan conrplies
with the statute and the regulations. For this reasou,

10
'L'I/w4/'29ag 14: i.E 2A392SZAA3 l^lVl^lT
PAGE T1./24

the commission's decision that

the plaindffs' applications do not
constitute a set-aside
developrtient is not supported
by sufEcient evidence in the record.

2, Industriat Use Excmption

Next' the commission argues tbat because

of the industrial use provision in c.G.S. g-
$
30g(gX2XA), the proper standard of review
is as a tr:aditional application rather than as
an
affordable housing application- That
sub-section provides an exception to the burde'-shifting

requircd for affordable housing applications generally:

burden-shifting does not apply to land.
that is "located in an area which is zoncd
for industrfal use and rvhich does not permit
residential
uses'" Therefore, in order to apply the ilrdustrial
use exception, the commission was
required to
prove (l ) that tle area is zoned for
ind,ustrial use, an.d (Z)tbe area does not permit
residential use.
The plaintiffs contend that tlie commission
has not proven either element, The par.ties
agree that
the court's review of this issue musf
be plonary.

In its decision, the commission determined that

tle cBpD was zoned for industrial use
by finding that son:e of the uses permitted in
the district are indusrrial uses. The Commission

relied upon evidence from the commission's professional

planner, Br:ian Miller, that tbe cBpD

includes industrial uses and does not permit residential

uses. Mr. Miller pointecl to
"manufactuling and assernbly, if conducted
entirely within the building,,, research and

development facilities, dataprocessing facilities,

manufhcfurers, showroom.s and sales offices.
printing and publishing services, and
broadcasf and media production facilities as uses permitted

as of right' which are industial in nature. l\4r. Miller referred

to the history of the cBpD which
was cteated out of the tndustrjal Zone for the
purpose of implementing higher qualitl, design

standards but was not a signifrcant d.eparnrre

ftom the plannecl uses of tlrat zone. He also

11
L7/w4/2q89 14:18 2639253AA3 r^rvhtT
PAGE 1.2/24

reftrenced t.he 1900 update

of the Plan of conservadon and
Developnrent which .specifically
recomrnended the creation
of a corporate Business parkDistrict
to implement the goal of
corporate office' research and development
and high quarity light manufacturing
uses for the
area west of the airyort' Mr' N'filler
stated that; "contemporary z,oningpr:actice
recognizes that a
range of complimentary uses are needed
in industrial zoning districts. Most communities
have
more tltan one industrial zoning districf
u,ith a 'light in.dustrial district, having higher
clesign
standards and more limited uses'
The corpor:ate Business park Dis&ict essentially
serves as
Oxford's light industrial district.,,

The plaintiffs argue that tbe CBPD is

not iclentified in the regulations as an ipdustrial
zone; it is identified as a business park
zone. oxford has an lndustrial Zonc ftom which the
CBPD was removed in 2000. The plaintiffs
argue that the uses permitted in the cBpD are

business uses' not industrial uses- They sec no

overlap with the uses permitted in the Indushial

zone' They contend that the indusfiial use exemption must bc narowly constmed because it is a
an exemption from a remedial statute, that
the Com.rnission's interpretation of its own
regulations is not entitled to defer:ence, and every
inference must bo madc in favor of applying s

8-309 and against the exemprion.

There is no specific appcllate authority to guide

the court in applying the industn'al use

exemption' Howevcr, there are two super:ior Court cases

which havc been cited by the parties,
ln Jardan v' old Say brook Zoning Camm.ission. Supen'or Court, Judicial District of New Britain

at New Britain, Docket No. 010508891,, (october

31, 2003) Judgc Tanker refused to apply the

industrial use exemption to proper$ located in a

B-2 shopping center Business Distrjct despite
the commission's ar,guments which are similar to tbe
arguments made by the Commission in this

T2
LL/44/2889 14:18 ZZ39ZE3AA3 r^rvt T PAGE 13/24

case' Although the court agrecd

with the commission that some of the usos permitted
in the B-2
zone overlapped with some
of the uses permitted in old say brook,s
two industrial districts, it
detennined that the f,rct that two
dil'lbrent zones perrnit some of the same uses
does not mean
that the two zones are interchangeable.
It is the differences in the permitted uses. not the
similarities, that are important. In support
of this proposition, Judge Tankerpointed out several

uses which wer'€ permitted in the industrial zones but

not in t):e business zone. shc al.so stated

that: 'iln as'sessing whether thc B-2 zone falls

within the indushr'al zone exemption, this court is

mindful of the legislative purpose behind the affordable

housing land use appeals stahrre which

is to encouragc and frcilitate the much needed deveiopment

of alrordable housing througbout the
state, and that, as a remedial statute, 8-309 must
$ be liberaliy construed in favor of those whom
the legislahre intended to benefit. If this courl wer,e to acl.opt the bmad interpretation of g-30g
$

@)(z) advanced by the comrnission and expand the exemption to include not only areas zoned

for industr:ial use but also areas in whioll permitted uses

overlap with areas zoned for industrial

use, it would thwart the important purposes of the statute

to prornote the development of
affbrdable housing. It is an established ancl long-held rule
drat statutory exceptions are to be

strictly construed." (Inter:nal quotation marks omitted; citations omitted.)

Id. Therelbre, the court
concluded that the B-2 Shopping Center Business District was
not an area zoned for industrial

usc and that the industrialzono exemption was not applicable

to the plaintif:f's applications.

Tbe second Superior CourJ case to have considered the indusHal zone exemption is

Baker Residential Limited Partnership v. Berlin Planning and Zoning

Commission, Superior

Court, Judicial Disb:ict of New Britain at New Britain, Docket No.

06401236g, (September 10,

2008) decided by Judge Cohn. In that case the plaintiff sought to develop an affordable
housing

13
1L/OA/2489 l"4:L6 ZA39ZE3AA3 IJVWT PAGE 1.4/ 24

project in the office Technology (o.T) zone which was listed in the Berlin zoningRegulations
under the industrial zonecategory-
The commission found that the area of the application
was
zoned for indusfrial use ancl applied
the industrial usc exemption. Judge cohn
agreed with Judge
Tanker that the court must conduct a plenary
review of the record to determine whether
the
industrial zone exemption applies. Judge cohn
also agreed with Judge Tanker that the town,s

own decision regarding the designation of fhe

zone in question is "persuasive, if not dispositive.,,

In the Jordan'case. the old Say brook ZoningCommission

had not cafegorized tlre B-2

Shopping Center zon,e as an indusnial zone.

In the Bakercase, the Berlin planning and Zoning

Commission had categorized the O.T. zone as an inclustrial

zone. Judge cohn stated, ..The
zoning regulations establish ttre O.T. zone is zrcned industrial."
I{e also agreed urith the plaintiff
that the O'T' zons permits both modern and traditional
industrial uses. Therefore, he found that

the area is zonod for industrial use. The facts in the present
case are distinguishablc frorn those

in that case.

In this case, the Commission does not categorize the CBPD as an industrial use. It acted

to create the GBPD in 2000 and to r€move the from the Industrial
District in 2000. It could have
established the CBPD as a second industrial zone but it decided
not to do eo. Although ttre

Comrnission is correct that labels are not detorminative. they are importaut, particularly
where

they were u'ritten by tle Commission. Fufther, altlough the CBpD permits somo uses.which

might be considered modern industrial uses, they are the exception to the business
whiclr
'ses
predorninate' In contrast, the Indrctrial Zone permits uses which
are predominantly-although not

exclusively- industrjal in nature. I agrce with Judge Tanker that it would thwart the
important
puPoses of the affordable housing statute to promote the
development of aflfbrdable horising if

l4
Lt/aA/2489 14:1,5 2Ag92S3Ag3 t4Vlr,T PAGE T5/24

the commission were pennitted

to consider the CBPD as zonod for industrial
uses despite
removing it from the industrial zone
and categori zing itas a business zone which pennits
only a
few uses which might be considered
industrial.

Although I generally agrec with .Iudge Tanz€r's

analysis, I also agree with Judge cohn,s

position that $E-30g (d@ is not an exception to a remedial stahrte but is r:eally
an alternative to

the three-part analysis under c,G.s. g s-30g (gxt). Therefbre, thc language of g 8-309 (gx2)

and does not need to be given a narrow constn:ction.

Buf even without a narrow construction, I
do not find that the language of 8-309 (gxz) applics ro the f.acts of this
$ ca*se. Tbe CBpD is
simply not an industrial zone; it is a business park zan.e.
Iagree with the plaintiffs that if the

Commission's reasoning were aclopted. every zoning commission

could und,ermine $ g-30g

mer:ely by inserting a few potential industrial uses into evory non-residential

zone. For the
reasons given above, the court finds that the applications
would not locate affordablc housing in
an arc zoned, for industrial use.

llJre second prong of the industrial use exemption test requires a finding that
tbe aroa of
the proposed development does not permit residential uses. But,
because of the court,s finding

that the area is not zoned for industrial use, tlre court does not need
to consider the issue of
w'hether the CBPD permits residential uses.

In summary, the Contmission's decision that the industrial use exception applies to the

plaintiffs' applications is not supported by sufficient evidence in the record. Consequently, if

sufflcient evidence exists for auy of the other reasons for denial, the court will conduct a plenary

review of the record and determine indepcndently whether the Commission's decision was

necessary to protect substantial intcrcsts in health, safety or other matters that the commi.qsion

l5
LL/1t4/'2899 L4:1G 2ZASZSZAA3 KIVWT PAGE 1.6/24

Iegally may consider, and whether

the risk of such harn to suoh public
interest clearly outweighs
the need for affordable housing,
and whether the public interest can
be protected by reasonable
changes to the a.ffordable housing
development.

3' oxford PIan of Developrnent, Regional Plan

of Development and policy of
American planning Associafion.

The next reason for denial given by

the cornmission is that the proposed rezoning is

inconsistent with tlre goals in the cornprehensive plan

of Developmont, tlre Regional plan of
Development and the policy advocated
by the American Planning Associarion. The lggg
upd,ate
for the Plan of conservation and Development
recommend"s that flre area of the project sewe as
a
site for "modem, growing businesses and industries."
It encourages "the development ofAirport
Access Road as a 'high tech'boulevarcl, in line with
aflractive, contemporary buildings housing
emergirg, growing busincsses." The 1998
Central Naugatuok Valley Regional plan for tle

towns in that area, including oxford, identificd

ttre Industrial/cBpD area as a major economic

area and r€conrnends guiding economic clevelopment

activities in this area. The poticy Guide
on Manufacfured llousing published by the American planning Association
r.eco'lmends that
manufacturecl be allowed in residential zoning districts.
Thc Commission claims that the
location of manufactur,ed homes in the CBPD is inconsistent
with each of these.
This argument mtrst fhil because even if these recommendations
and policies amormt to

sufficient evidence, and even if they rise to the level of a

substantial public interest in health and

safety, the Commission has failed to sustain its burden

ollshowing that they outweigh the need
for affordable housing. The neecl for affordable housing is clear and powerful; the

recornmendations of the Comprehensive Plan of Developm.ent,

the regional plan of development

15
LI/84/2689 L4:15 ZA31ZSSBA3 hVIdT PAGE 1-7 / 24

and the rocomrnendations of the

American Planning Association are advisory
only, see, e.g.
Dutlco v' Planning and zotzing
Bd- of city of Milford,l 10 conn. App.
22g, (200g) There are
superior court cases cited by the plaintiffs
wbich hold that a town plan cannot serve as
the basis
fbr the denialof an affordable housing application.
see, e.g. TCR New canaan, 1nc, v. planning

and zoning Comm'is,rion, Stperior court.

Judicial District ofHartford-New Britain, at Hartfor,cl,

Docker No^ 94050477 (Juneg, lgg5).

4, Impact Upon the Overall Economic Development

Next, the Commission argues that the proposed

rezoning would have a detrimental
impact upon the overall economic development
within the Industrial/cpBD area. The
Commission phrases it this way: "The approval of
this application would remo'e a large patcel

of land directly from any potential for economic developrnent.

It would also have an adverse
impact upon potential CBP use of other properties
within the District by undermining dernancl
for adjacent Indusfi:ial/CBP properties, thercby reducing job
growtb and growth in the Town,s

Grand List." There was testimony from experts and lay witnesses about
these adverse impacts as

well as an adverse impact upon oxford's pending application

for foreign trado zone clesignation
in its CBPD and Industrial Districts. The Commission's planner,
Brian Miller, testified about
the detrimental impact of locating a residential development
in the midst of tlre CBpD. Donaid

Kleppor-Smith, an ecouomist, testified that oxford would surffer a pemument

loss to job growth

and to the town's grand list ifthe property were to be rezoned to residential.

Tlte plaintiffs argue, in opposition, that the considerations raised

by the Commission
amount to fiscal zoning which is illegal in Connecticut, even
in tradifional zoning ca.ces^ The
plaintif'fs have cited scveral Superior Court cases in
.support of this proposition. The

17
\T/AA/2889 14:15 2A99233A62 t^JVt^lT PAGE T8/24

commission has cited united Progrert,

Inc. v. Borough of stoningtort planning and zoning
commission, superior courf Judicial
District of Hartfbrd-New Britain, at Hartford, Docket
No.
920513392 (Marclr 4, 1gg4) for the proposition that the protecrion of industrial
land can. rjse to
the level of a substantial public interest in
health and safbty which can outweigh the need
for
affordable housing. That case, decided by Judge
Berger, rests upon ibcts which are much

different from those here. The Borough of stonington

is a very small historic area on a
peninsula' Situated among the rnany historic
homcs is one small parcel of industrial land which

was the fbrmer site of a Mon.santo factory. The applicant

in that case sought to convert the
property to residential use with an affordable
housing project, The court found that the need to

preserve this one industrial parcel was a substantial public

interest which outweigbed the need

for affordable housing. The Borough had onlTr 3.9y of thc total trousing units qualiff as

af;Fordablc housing but Judge Berger noted that there were

352 multi-farnily units, 193 of which
were rented for less than $750 per month, within ttre upper
limit ofthe affordable housing
definition. So, the borough had a need for affordable bousing but not nearly as
dire as Oxford,s
need' More importanlly, Oxford. unlike the borough, has significant
other land zoned for

industriial use' There are still neady 2000 acres remaining in the industrial
zone ancl nearly 400

more acres in the CBPD. Finally, the parcel had for many years been
the site of a factory. The

site in this case had been a farrrn. Therefore, the thired Progre,ss case
decision is factually

distinguishable and cannot be used as persuasive precedent.

The court finds that even if the financial considerations raised by the Commission

amount to suflicient evi.dence, and even if they rise to the level of a substantial public
interest in

health and safety, the Commission has failed to sustain its burden of showing that thcy outrveigh

18
LI/44/26O9 L4: L5 2AZ92E3AA3 l^IVWT PAGE L9/24

the need for affordable housing. My plenary

review of the commission's evidence reveals
that it
is based upon speculative assumptions
about tbo probability of indusrial growth. Tbe ovidence,
particularly from Mr' Klepper-smith,
is entitled to sonle weight. but not nearly as mucS
as the
commission gave it' on fhe other hand, the need for affordable housing is not speculative
at all.
rt clearly outweighs the economic concerns of
the commission.

5. rnconsistency with \vaterbury-oxford Airport prans

The commission found that concerns about noise

from the ailport werc suflicient to deny.
the plaintiffs' applications. The court has reviewecl the evidence on this poirrt and finds that
the
Commission's concems are overblown. Tbe evidence is tbat
the plane.s taking off from and

approaching the airport do not fly over the subject property.

The noise sfudy commissioned by

the Connectrlcut Department of Transportation indicates that

the subject propefty lies outside the

area which would receive dangerous leveLs of noise.

Further, the Commission has approved

other residential developments in recent years which rcceive at

least as much noisc from the

airport' Finally, the fact that child day care facilities and schools are pcrmitted in the CBpD by
special exception runs counter to the Commission's claim
that residential uses will cause health

and safety concems. My plenary review o:0the record does not reveal that the concern for noise

rises to the levcl of a substantial interest in bealth or saf,ety.

6. Site PIan fssues

The Commission articulated eleven "concerns" with the site plan wh.ich were
raised by

the expert testimony from the toum engineer, traffrc consuttant,

fire chief, and/orplanning
ptofessionals' The plaintifk argue that th.e court shoulcl disregard
these concems in its revieu,

because they do not believe that the Commission has properly briefed these concerns by citing or

19
Lt/44/2889 14: L5 zgzg2\zaaz u,rvu,T pAcE 20/24

reviewing the record evidcnce,

explaining the harm o,.
condition which may resurt frorn
fn."r"
each concem' or explaining
why tbese conce*s .t.urtv]outweigh
the need for affordablc
housing' Therefure, the plaintiffs
argue that the con',mlrsion has abandoned
these conce,.rs as
denial reasons' In answer to this
argument, the commi{sion ,"rs, l) it agrees
that these concern$
could be addressed by reasonable changes;
and that2)irlaia tbese issues in its brief and
"aaress
by incorporatin$ thc commission's lengthy
dccision refbrences a.s arl appcndix to its
"n{r..ora
brief

It is true that the Comrnission's use of an could be viewed ss a way to exceod

the page limit on the initial brief. The commission arso its reply brjefto ampiify arguments

which could have been made in the initial brief. The pl

iffs urge the court to consider that all

of the Commission's arguments madc in this fushion ha

been abaudoned. Although tlre court

is tempted to folloq'the plaintifflr' advise, somc of the

on's '"concern.$" about the sitc
plan raise important health and safety issues u,hich
to be considered by this court. These

concerns will be addressed in order.

The Commission found that the developmont wo exacerbate an unsafe traffic

condition on. Bristoi-Town Road by increasing two-way in a narrow 16'wide road where
thc stopping distance is limited, tliereby increasing the li of accidents and reducing

safety. The 99 units in Oxford Commons West will their sole access and egres.s on Hurley

Road. To the west, Hurly Road soon crosses into where it is known as Bristol-Town

Road, The Torvn of Southbury and the Commjssion's consultant both opined that the

present road is narrow, presentrs safbty issues, and that traffrc will exaggerate the safety

pmblems. The plaintiffs argue that tt:is issue has becn by an amendment to the site

20
LI/44/2AgS 1"4:L5 2Z19Z53AA3 IAIVWT
PAGE 21./24

plaD to require that all traffic exiting the site by Hurley Road to rurn
left, fbllowing Hurley Road
to Donovan Road to oxford Airport
Road. This refinement prevents outgoing traffic
from using
Br:istol-Tor'r'n Road. Also, the Hurley-Donovan-Airyort
Roads route will be widencd and
repaved' The commission expressod coflcenr
tbat this refinement may not prove to be effective

in prevcnting lcfl furns onto Flurley Road and

would only address cxiting traffic, rot trafyic

entering the site, especialry during the afternoon

commuting time.

My ourr review of tho recorcl does not lead nre to conclurde that the Commis.sion,s
safet5r

concerns amount to a substantial public interest

which clearly outweighs the need lbr affordable

housing' Even if they did' these concerns can be handled

by reasonable conditjons which

addrcss the Commissions' concerns. After all, the

Cornmission desires to reserve this Iand for
business uses which could present even more diffrcult
haffic issues, especially with large trucks.
The Commission should impose reasonable conditions, just
as it would have done if the plaintiffi
had proposed a bu,siness use.

The second health and.safety concem also involves access

to the site. The Commission
found that the portion of the project containing 99 units known
as Oxfbrd Commons west wiil
liave oniy one entrance and that there should be two distinctly
separate routes, each located as

remotely from the other as possible, The cxpert eviclence on t'his point
is conflicting. 1he

plaintiffs rely upon their expert u,ho testified that the plan.s vvere
safe and in accordancc with

national standar.ds, provided that there were an, emergency access which could be used by

emergency vehicles. The site plan shows an emergency

shlpr from Oxfor.d Aocess Road to the

rThe
final revision of the site plan calls for this strip to 16 feet wide. af a maximum grade
of 12% and to have a.surface of "pvd pavers with topsoilind grass."

2t
1.1./8,1/2289 14:16 2g392536A2 t^lVt^lT PAGE 22/24

corner of thc closest dead-end

road witl:in the developrnent. The testinrony
at the hearing was
that this strip would gated to prevent
nonnal access and egress but could be opened by

cmergency personnel' The site plan

review of thc plaintiffs' fire safety expert, Joseph Versteeg,

dated April 18,2007 specifically states: "The provision

of a remotely located secondar), access
roadway ensures access to the site in the unlikcly
evenf the primary entra.nce route is biocked.

The altemative plan depicting an emergency

access roadway likervise ensures acccss to ttre sitc

in the unlikely event of a blocka8e." Tbe commission's

own experts opined that a second access

road' not just an unpaved emergency entrance, is critical

for safe and efiFrcient access and egress.

In opposition to the Commission's oxperts, the pla,intiffs argue

that the entrance on
Hurley Road will be divided by islands which will separate
the entering and existing haffic,

making it more difficult to block. Howevor, thc Conrmission's expert

opines that this layout

does not provide sufilcient geometry to be considered anything

other than a single acoess. My
own review of the record leads me to conclurde that a single acces.s poi.nt
for thc 99 units in

Oxford Comrnons West presents a serious heal.th and saftty issue which clearly
outweighs the

need for affordable housing. Affordable housing units should be just

as safe as any other form of
housing' The emergency access proposed l:y the plaintilTs is inadequate
to safeguard the

residents from the danger of one entrance being blocked, The reliance upon
the proposcd

em.ergency entrance is insufficicnt. The uso of this access wouJd be subject to conftision and to

human en:or in the event of a real emergency. Ttris issue could be resolved with
a condition that

requir,es the plaintiffs to provide a full second access point which is separated fiom the access on

22
LMA/2489 14: L5 ZAA1ZESAA1 KIVLJT PAGE 23/24

H,urley Road.2

The next health and safety condern

of the commission involves inadequate internal
!

haffic circulation and inadequate hu:nilrg radii

to permit fire trucks to tum in. the hammerheads
i

on tbe dead end roads' There are 9 dcdd-end

roads with harnmerhead turnarounds at thc end
of
i
each' Although the plaintiffs revised tl,heir plan to increase tire size of tbe hammerheads. rhe
I

commission's expert as well as the oxFord Fire Depanmcnt

opined that they were still too
i

cramped to permit large fire tucks to elrecute efficient 3-point turn,s, eyen assur1ing that there
i

are no cars parked in the hammerheadsiand that ther.e

are no snow plies which infringe.on the
;

paved roadway' Thc commission's eniineering expert,

David Nafis, is also of t3.e opinion that
i

despite the inuease in size ofthe hamnrlerheads, they are still not large enough fbr th.e su-30 fire
i

truck to turn around. This concern ties ln with the next concern
expressed by ttre Commission
i
which deals with inadequate parking3. fhe Commission's
expert believes t6at the lack of
I

parking at the units may lead people to

fark in the hammerheads- Since the interjor roads ancl
:

hamrnerheads will bc private, the town *iuill lra"u no authority to enforce parking restrictions.
;

Although the plaintiffs dispute the Corn{nission's findings,

my own review of the record is in
t'

rThe
record-refle-cts that the plaiJtiffs'position at the June 7, 2007 hearing was that they
belicved it was preferable to have a secdpd and had rppii"a to the Connecticut
Depailmont of Tran.lportation for permidsion"...ss-*uy
to provide a full acieis-way onto Oxford Airport
Road, or, in the alternative, an emergend *.*i
of access. There is a letter of denial in ft;
record from DOT, both for full access qlo rot emergency access, bascd upon reasons
which are
not analyzed in this appeal. In any uuunf, the r:ecorcl rcflLcts that
the plaintiffs claim to have
withdrawn_their application to DOT bcfdre action was to bc taken by DOT. Therefore,
the
plaintiffs claim that the lctter of deni.d dom DoT "must be regarded
as an ad,visory statement as
to what would have happened had the ap$lication been pursue-d" ,atn", tt *.
a.oial per se,,,
rThe
site plan calls for one or twd-car gaf,ages for parking plus spaces fbr two cars in the
drivewa;'s. I

23
Lt/114/'2au! 14:i.E Zg3gZEgggS t^lVt^,7
PAGE 24/24

accord with that of ttre

commission' The design of the dead-end
streets and the lack of space to
park at the units will undoubtedly
lead to impr:opcr parking in places
which will makc it very
difficult for fire kucks to mancuver.
I agree with the commission,s rriew
that these ar.e health
and safety deficits in the site
plan which clearly outweigh
the neod for affordable housing.
However' tbese concerns can
be handled rvith reasonable conditions
which would. require tbe
arnendment ofthc site plan to
eliminate thesc intemal traffic deficiencies.

The commissions had other health

and safefy concerns as well, including
inadequate
provision for snow removal
and unacceptable erosion and drainage
on the r,r,est side of the
propetty' My own review of the
record reveals that these conoerns rise
to tlie Ievel of healtb and
safety risks u'hich clearly outweigh
thc need for affordable housing, but
that each coulcl be easily
addressed wi th r.easonable conditions.

V'I. Remedy

The court sustains the appeal and

remands tl:is matter to the commission
and orders it to
approve the text ameodment to the
zonngRegulations and the amondrnent to the
zoning map,
and to approvo the site pian and zoningpernrit
applications subject to reasonable and necessary
conditions, n'ot inconsistent with this decision,
for: t) a full second access road which is
.separated from the access on
Hur:ley Road; 2) aclditional parking; 3) redesign
of the
hammerheads at the ends of the interjor
sheets to pennit fire trucks to nrake eflicient
turns; 4)
snow removal in the hammerJteads; and
5) erosion and drainage on the west side
of the property.

BY THE COI'RT,

24