BRENMOR PROPERTIES, LLC v. PLANNING

AND ZONING COMMISSION OF THE TOWN OF LISBON (SC 19665)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. Syllabus

The plaintiff developer appealed to the trial court from the decision of the defendant planning and zoning commission denying its application for

an affordable housing subdivision pursuant to statute (§ 8-30g). The commission had denied that application on the ground that the project,

as proposed, did not comply with a municipal ordinance governing the construction of roads or the state fire safety code. The trial court renderedjudgment sustaining the plaintiff’s appeal, concluding that neither noncompliance with the ordinance nor noncompliance with the fire code constituted a valid ground on which to deny the application, and remanded the matter to the commission with direction to grant the application as presented. The commission appealed to the Appellate Court, which concluded thatthe trial courtproperly sustainedthe plaintiff’s appeal and did not abuse its discretionby ordering the commission to approve the application as is. The commission, on the granting of certification, appealedtothis courtfromtheAppellate Court’sjudgment. Held that the Appellate Court properly affirmed the judgment of the trial court, this court having concluded that, following consideration of the arguments presented, the Appellate Court’s opinion should be adopted as the proper statement of the issues and the applicable law concerning those issues, and, in light of the commission’s concession before both the Appellate Court and this court that the abuse of discretion standard ofreview applied to the trial court’s decision to order the commissionto approvetheplaintiff’sapplicationaspresented, this court declined to considerthe standard applicable to atrial court’s affordable housing remedy under § 8-30g. Argued January 20—officially released June 27, 2017

Procedural History Appeal from the decision of the defendant denying the plaintiff’s application for subdivision approval, brought to the Superior Court in thejudicial district of New London and transferred to the judicial district of Hartford, Land Use Litigation Docket; thereafter, the matter was tried to the court, Shluger, J.; judgment sustaining the appeal, from which the defendant, on the granting of certification, appealed to the Appellate Court, Gruendel, Mullins and Sullivan, Js., which affirmed thejudgment ofthe trial court, and the defendant, on the granting of certification, appealed to this court. Affirmed

. Michael A. Zizka, for the appellant (defendant). Timothy S. Hollister, with whom were Beth Bryan Critton and Andrea L. Gomes, for the appellee (plaintiff).
Mark K. Branse and Caleb F. Hamel filed a brieffor the Garden Homes Management Corporation as amicus curiae.Opinion PER CURIAM. This certified appeal requires us to consider the relationship between a town’s roadway construction standards andthe more flexible treatment given to development proposals made pursuant to the Affordable Housing Appeals Act, General Statutes § 8- 30g. The defendant, the Planning and Zoning CommissionoftheTownofLisbon (commission), appeals, upon our grant ofits petition for certification, from thejudgment of the Appellate Court affirming the judgment of the trial court sustaining the administrative appeal of the plaintiff, Brenmor Properties, LLC. BrenmorProperties, LLC v. Planning & Zoning Commission, 162 Conn. App. 678, 680, 136 A.3d 24 (2016); see footnote 4 of this opinion. On appeal, the commission claims that the Appellate Court improperly concluded that (1) the commission was required to grant the plaintiff’s application for subdivision approval, despite the application’s lack ofcompliance with amunicipal road ordinance (roadordinance),1 and (2) thetrialcourtproperly orderedthe commissionto approvethe plaintiff’s application ‘‘as is,’’ rather than remand the case to the commission for consideration of potential conditions of approval. We disagree and, accordingly, we affirm the judgment of the Appellate Court.
The record and the Appellate Court’s opinion reveal the following facts and procedural history.2 ‘‘At all relevant times, the plaintiff owned a 12.92 acre parcel of undeveloped land with frontage on Ames Road and Route 169 in Lisbon (property). The property contains
a small pond and 1.9 acres of the property are designated as wetlands. In May, 2012, the plaintiff filed an application with the commission pursuant to

. . . § 8- 30g for approval of an affordable housing subdivision. The proposed subdivision consisted of nineteen residential lots with an average size of 29,620 square feet. On allbut one lot, asingle-family, three bedroommodular home would be erected. The proposal also included
a dedicated septic system andwell for eachhome. With respect to price restrictions, six of the eighteen proposed homes would be deed-restricted for forty years atpriceswithintheeconomicreachofmoderateincome households

. . . . ‘‘Four ofthe proposed lots were to be located on the westerly side of the property and would be accessed by driveways on Route 169. The remaining lots were to be located on the easterly side of the property adjacent to Ames Road and would be accessed by aprivate roadway, which the plaintiff describes as a common driveway and the commission characterizes as an interiorroadnetwork. This appeal concernsthatroadway.’’ (Footnotes omitted; internal quotation marks omitted.) BrenmorProperties, LLCv. Planning & Zoning Commission, supra, 162 Conn. App. 681–82.The commission held a public hearing on the plaintiff’s application over the course of five evenings in 2012. See id., 682–83. ‘‘Inresponsetovarious comments raised duringthathearing, theplaintiffsubmittedmultiple revisions to its proposal, culminating with its November 13, 2012 ‘final submissionmaterials.’ Following the conclusion of the public hearing, the commission’s legal counsel

. . . prepared a document dated January 8, 2013, and entitled ‘Brenmor Subdivision Application Issues and Potential Conditions of Approval’ (document). Thatdocumentdelineatedseven issues and provided analysis thereof. At the commission’s regular meeting on January 8, 2013, the commission reviewed those seven issues. The proposed roadway’s nonconformance with the

. . . road ordinance

. . . generated the most discussion, as the roadway violated its minimum width and maximum grade requirements.’’ (Footnote omitted.) Id., 683. Following deliberations at the commission’s regular meeting on January 8, 2013, the commission voted unanimously to deny the plaintiff’s application, with counsel for the commission remarking for the record that the plaintiff
was ‘‘welcome’’ to return with a modified proposal ‘‘where the road meets town standards because

. . . that would solve most of

. . . the [commission’s] issues

. . . .’’ Id., 684–85. ‘‘OnJanuary30, 2013, the plaintifffiledwiththe commission a modified affordable housing proposal pursuant to § 8-30g (h).’’ Id., 685–86. Although the modified application ‘‘contained certain modifications that the plaintiffmade ‘in direct response to the [commission’s] January 8, 2013 denial.’ That revised plan nonetheless did not modify the width or grade of the proposed roadway

. . . so as to fully comply with the requirements ofthe road ordinance. In its written response to the commission’s January 8, 2013 denial of its subdivision application, the plaintiff acknowledged that the commission at that time had proposed, as a potential condition of approval, that the roadway ‘shall conform to standards established’ in the road ordinance. The plaintiff nonetheless submitted that such a condition
was unnecessary, as ‘[t]here is no expert or other testimony in the record that the proposed [roadway is] unsafe.’ The plaintiff thereafter further revised its proposal, as reflected in its revised plan that was received by the commission on March 5, 2013.’’ (Footnote omitted.) Id., 686–87. ‘‘On March 5, 2013, the commission held a public hearing on the plaintiff’s modified application, as required by § 8-30g (h).’’ Id., 687. Admitting that the

‘‘ ‘internal roadway system’ ’’ did not satisfy the road ordinance, the plaintiffpresented the commission with
a traffic engineer’s study that ‘‘concluded that the proposed subdivision was ‘going to be a very low traffic generator, given the

. . . small number ofunits,’ ’’ withproposed roadways that ‘‘ ‘will provide safe and efficient access, egress, and circulation for the residents and guests of the subdivision as well as the general public entering orpassingthe property. In addition, the [proposed roadway] interior to the site will sufficiently accommodate circulationby emergencyvehicles.’ ’’ Id., 687–88. As part of the plaintiff’s modified application, the traffic engineer provided ‘‘both a written ‘traffic safety review’ and testimony before the commission, in which he opined that the plan set forth in the resubmission ‘does provide for safe traffic operations and site circulation. It provides for safe ingress and egress for passenger cars and emergency vehicles [and] does not present any public health or safety concerns.’ ’’ Id., 688. ‘‘At that public hearing, the commission’s professional staffalso commented onthe modifiedproposal.’’ Id. Lisbon’stownplannerandtownengineer‘‘disagreed withthe plaintiff’s assertionthatthe proposedroadway qualified as a driveway, as it would provide ‘the only
access to fifteen single-family dwellings,’ ’’ and emphasized that the ‘‘the proposed roadway did not comply with the minimum width or maximum grade requirements ofthe road ordinance.’’ Id. Lisbon’s fire marshal also submitted a letter expressing his concern that the proposed roadway did not conformto the State ofConnecticut Fire Prevention Code (fire code). See id., 690, 708. Althoughthe commission’sprofessionalstaffmembers ‘‘repeatedly emphasized that the proposed roadway did not comply with the requirements of the road ordinance, [they did not indicate] that compliance was necessarytoprotectasubstantialpublicinterestorthat the risk of harm thereto clearly outweighed the need for affordable housing.’’ Id., 689. ‘‘The commission deliberated the merits ofthe plaintiff’s [modified] applicationatitsApril2, 2013meeting.’’ Id. The commission voted unanimously, with one commissioner abstaining, to deny the modified application based on the recommendations of Lisbon’s engineer and fire marshal given, inter alia, the failure of the internal roadways to conform to the road ordinance and fire code. Id., 690–91. ‘‘From that decision, the plaintiff appealed to the Superior Court. On June 13, 2014, the court issued its memorandum of decision. In sustaining the plaintiff’s appeal, thecourtconcludedthatneithernoncompliance with the road ordinance nor noncompliance with the fire code constituted a valid ground on which to deny the plaintiff’s application.3 As a result, the court reversed the ‘denial of the plaintiff’s resubmission and remand[ed] the case tothe [commission] with direction to grant the plaintiff’s resubmission as is.’ ’’ (Footnote altered.) Id., 691. Following its grant of the commission’s petition for certificationto appealpursuantto General Statutes § 8-8 (o), the Appellate Court affirmed thejudgment ofthe trial court in a unanimous and comprehensive opinion. See id., 680, 691. The Appellate Court upheld the trial court’sdeterminationthattheplaintiff’snoncompliance with the road ordinance did not constitute a valid ground on which the commission could deny its modified affordable housing application under § 8-30g. See id., 693. The Appellate Court first concluded that, ‘‘the establishment of town-wide standards [by ordinance] for road construction is [a] matter ofpublic health and safety that a commission may properly consider under the [A]ffordable [H]ousing [A]ppeals [A]ct,’’ although ‘‘any deviation from those standards’’ does not constitute ‘‘aperse groundfordenial ofanaffordablehousing application.’’ (Internal quotation marks omitted.) Id., 699–700. The Appellate Court then concluded that the evidenceintherecorddemonstratedthatfireandtraffic safety were not adversely affected by the plaintiff’s noncompliance with the road ordinance with respect to the proposed subdivision’s internal roadways, which
were in essence low traffic driveways that served only the homes in the subdivision. Id., 700–702. Turning to the remedy ordered by the trial court, the Appellate Court then held that the trial court did not abuse its discretion in remanding the case to the commission with direction to grant the plaintiff’s modified application ‘‘as is,’’ rather than for consideration ofconditions of approval. Id., 714. This certified appeal followed.4
Our examination of the record and briefs and our consideration ofthe arguments ofthe parties persuade
us that the judgment of the Appellate Court should be affirmed. Because the Appellate Court’s well reasoned opinion fully addresses the certified issues, it would
serve no purpose for us to repeat the discussion containedtherein. WethereforeadopttheAppellate Court’s opinion as the proper statement of the issues and the applicable law concerningthose issues. See, e.g.,Recall Total Information Management, Inc. v. Federal Ins. Co., 317 Conn. 46, 51, 115A.3d458 (2015); Statev. Buie, 312 Conn. 574, 583–84, 94 A.3d 608 (2014).
We make one observation, however, with respect to the Appellate Court’s analysis of the second certified issue,5 which concerns the remedy ordered by the trial court. Consistent with the commission’s concession before that court, the Appellate Court determined that the abuse of discretion standard of review applies to the trial court’s decision to order the commission to approve the plaintiff’s application ‘‘as is,’’ rather than remandthe casetothe commissionforconsideration of potential conditions ofapproval.6BrenmorProperties, LLC v. Planning & Zoning Commission, supra, 162 Conn. App. 711 andn.31. The commissionhasreiterated that concession in its briefand at oral argument before this court. Accordingly, we neednot considerthatissue further, and apply the abuse of discretion standard of review in this certified appeal with respect to the trialcourt’s affordable housing remedy under § 8-30g as upheld by the Appellate Court.7
The judgment of the Appellate Court is affirmed.

1 See Town of Lisbon, ‘‘An Ordinance Concerning the Construction and Acceptance of Roads in the Town of Lisbon Connecticut’’ (June 29, 1995);

see also Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn. App. 683 n.10.

2 We note that the Appellate Court’s opinion contains a more detailed recitationofthefactsandproceduralhistoryunderlyingthis certifiedappeal. See Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn. App. 681–91.

3 The trial court declined to consider the fire marshal’s letter expressing

concerns about noncompliance with the fire code because it was not based

on an analysis of the modified proposal that is the subject of this appeal. See Brenmor Properties, LLC v. Planning & Zoning Commission, supra, 162 Conn. App. 707–708.
4 We granted the commission’s petition for certification for appeal limited to the following issues: (1) ‘‘Did the Appellate Court properly conclude that the trial court correctly determined that the plaintiff’s noncompliance with the road ordinance did not constitute a valid ground on which to deny its modified affordable housing application?’’; and (2) ‘‘Did the Appellate Court correctly determine that the trial court properly ordered the commission to approve the plaintiff’s subdivision application ‘as is’ rather than allowing the commission, on remand, to consider appropriate conditions of approval?’’ BrenmorProperties, LLC v. Planning & Zoning Commission, 320 Conn. 928, 133 A.3d 460 (2016).
5 Although we agree entirely with the Appellate Court’s resolution of the first certified issue, we briefly address the commission’s argument that the Appellate Court improperly failed to address two cases that it cited in support ofits authority to deny the plaintiff’s application on the basis ofits failure to comply with the roadway ordinance. Specifically, the commission relies on Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 25–29, 523 A.2d 467 (1987), which rejected an equal protection challenge to an ordinance prohibiting vending from motor vehicles on the town’s streets or public property, and Cormierv. Commissioner ofMotor Vehicles, 105 Conn. App. 558, 566–68, 938 A.2d 1258 (2008), which rejected an equal protection challenge to the distinction between vehicles weighing less than 26,001 pounds for purposes of lifetime commercial driver’s license disqualification under General Statutes § 14-44k (h). The commission argues that Blue Sky Bar, Inc., andCormierstandforthepropositionsthat‘‘safetystandardsingeneral

are not susceptible to bright line analysis,’’ and the ‘‘town’s legislativejudgment must prevail,’’ notwithstanding its failure to provide ‘‘analytical data’’ to support its decision. Having reviewed these cases, we believe that the Appellate Courtreasonablymayhavedeemedthemtobesoinappositeasnot towarrantmention, because theyconcernfacial constitutional challengesto municipal ordinances calling for rational basis review. Blue Sky Bar, Inc.

v. Stratford, supra, 28–29; Cormier v. Commissioner of Motor Vehicles, supra, 566–67. In contrast, the present case requires the court to apply a nuanced balancing test in determining whether an individual affordable housing application should be granted relief from a particular municipal ordinance pursuant to § 8-30g. See, e.g., River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004).
6 We note that appellate review of the trial court’s other decisions under § 8-30g (g) is plenary. Thus, we first engage in plenary review of ‘‘whether the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record.

. . . Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted.’’ (Citationomitted; internalquotationmarks omitted.)RiverBendAssociates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004). ‘‘If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission’s decision was [1] necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, [2] whether the risk ofsuch harm to such public interests clearly outweighs the need for affordable housing, and [3] whether the public interest can be protectedbyreasonable changestothe affordablehousingdevelopment.’’ Id.

7 Further, query the applicability of the well established principle that a directed grant of an application is an appropriate remedy only when it appears that the relevant municipal land use authority could reasonably reach only one conclusion on remand. See, e.g., Bogue v. Zoning Board ofAppeals, 165 Conn. 749, 753–54, 345 A.2d 9 (1974) (‘‘It is true that when on
a zoning appeal it appears that as a matter of law there was but a single conclusion which the zoning authority could reasonably reach, the court may direct the administrative agency to do or to refrain from doing what the conclusion legally requires.

. . . In the absence of such circumstances, however, the courtupon concludingthat the actiontakenbythe administrative agency was illegal, arbitrary or in abuse of its discretion should go no further than to sustain the appeal taken from its action. For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority.’’ [Citations omitted.]). Although the plaintiff seems to agree thatthis generalprinciple applies inthe affordable housing context, the Appellate Court held that it does not, relying on our decision in AvalonBay Communities, Inc. v. Zoning Commission, 284 Conn. 124, 140 n.15, 931 A.2d 879 (2007), and its decision in Wisniowski v. Planning Commission, 37 Conn. App. 303, 320–21, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995), for the proposition that judicial remedies are more ‘‘expansive’’inaffordablehousingappealsunder § 8-30g (g)thanregularland

use appeals. BrenmorProperties, LLCv. Planning & Zoning Commission, supra, 162 Conn. App. 710 and n.30. As a general matter, application ofthis general principle in the affordable housing context seems inconsistent with the abuse ofdiscretion standard ofreview. Nevertheless, given the commission’sconcessions, andthefactthatthetrialcourtdidnotabuseitsdiscretion in determining that a directed grant was appropriate even underthe usurpation rule, we apply the abuse of discretion standard of review for purposes of this certified appeal.