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BRENMOR PROPERTIES, LLC v. PLANNING AND

ZONING COMMISSION OF THE

TOWN OF LISBON

(AC 37293)

Gruendel, Mullins and Sullivan, Js.

Argued October 13, 2015—officially released February 2, 2016

(Appeal from Superior Court, judicial district of

Hartford, Land Use Litigation Docket, Shluger, J.)

Michael A. Zizka, for the appellant (defendant).

Timothy S. Hollister, with whom was Andrea L.

Gomes, for the appellee (plaintiff).
Opinion

GRUENDEL, J. The defendant, the Planning and Zoning Commission of the Town of Lisbon (commission),

appeals from the judgment of the Superior Court sustaining the administrative appeal of the plaintiff,

Brenmor Properties, LLC. The commission contends

that the court improperly concluded that the plaintiff’s

failures to comply with (1) the road construction standards established by town ordinance and (2) the Connecticut State Fire Prevention Code (fire code) were not

valid grounds to deny its application for an affordable

housing subdivision. The commission also challenges

the propriety of the remand ordered by the court. We

affirm the judgment of the Superior Court.1

The underlying facts are not in dispute. 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.2

In May, 2012, the plaintiff filed an application

with the commission pursuant to General Statutes § 8-

30g for approval of an affordable housing subdivision.3

The proposed subdivision consisted of nineteen residential lots with an average size of 29,620 square feet.

On all but one lot, a single-family, three bedroom modular home4 would be erected.5 The proposal also included

a dedicated septic system and well for each home. With

respect to price restrictions, six of the eighteen proposed homes ‘‘would be deed-restricted for forty years

at prices within the economic reach of moderate income

households, such that, based on 2012 data, three homes

would be preserved for households earning $70,200 or

less and sold at a maximum of $247,000; and three

homes would be preserved for households earning

$52,600 or less and sold at a maximum of $174,000.

Other homes would be sold at market-rate prices in the

range of $275,000.’’6

Four of the 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 a private

roadway, which the plaintiff describes as a ‘‘common

driveway’’7 and the commission characterizes as an

‘‘interior road network.’’8 This appeal concerns that

roadway.9

The commission conducted a public hearing on the

plaintiff’s original application that began on August 7,

2012, and was continued over four additional evenings

on September 4, October 2, November 7, and November

13, 2012. In response to various comments raised during

that hearing, the plaintiff submitted multiple revisions

to its proposal, culminating with its November 13, 2012

‘‘final submission materials.’’ Following the conclusion
of the public hearing, the commission’s legal counsel,

Attorney Michael Zizka, prepared a document dated

January 8, 2013, and entitled ‘‘Brenmor Subdivision

Application Issues and Potential Conditions of

Approval’’ (document). That document delineated

seven 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 Lisbon road ordinance (road ordinance)10 generated the most discussion, as the roadway violated its minimum width and

maximum grade requirements.11 On that issue, Commissioners Robert Adams, Ronald Giroux, Kim Sperry,

John Dempsey, Gary Ritacco, Sharon Gabiga and David

Gagnon all concurred that the proposed roadway

needed to comply with the road ordinance as a matter

of public safety.12 When the deliberations concluded,

Zizka stated that, in light of the sentiments expressed

by commission members, his ‘‘recommendation would

be that the commission deny the application for the

reasons set forth in the [document] regarding issues

numbered 1, 2, 4 . . . .’’ Commissioner Giroux then

immediately made such a motion, stating: ‘‘I’d like to

make a motion to deny the application to the issues of

1, 2, 4 . . . .’’13 The motion was approved by a vote

of eight to zero, with one commissioner abstaining.

Following that vote, Zizka remarked for the record that

‘‘as [he] understood it, [the commission is] prepared to

entertain and . . . perhaps even welcome the [plaintiff] to come back with . . . a renewed proposal where

the road meets town standards because . . . the belief

is that that would solve most of . . . the issues that

the commission has the greatest concerns with.’’

On January 30, 2013, the plaintiff filed with the commission a modified affordable housing proposal pursuant to § 8-30g (h).14 Consistent with the strictures of

that statutory mechanism, the plaintiff emphasized that

‘‘this resubmission constitutes a continuation of the

application denied January 8; this is not a new application.’’ The revised plan contained certain modifications

that the plaintiff made ‘‘in direct response to the [commission’s] January 8, 2013 denial.’’15 That revised plan

nonetheless did not modify the width or grade of the

proposed roadway adjacent to Ames Road so as to fully

comply with the requirements of the 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.

On March 5, 2013, the commission held a public hearing on the plaintiff’s modified application, as required by

§ 8-30g (h). At its outset, the plaintiff’s representative,

Attorney Timothy Hollister, provided an overview of

the changes to its proposal. On the issue of compliance

with the road ordinance, Hollister candidly acknowledged that ‘‘[w]e just don’t think it’s necessary to build

these internal private roads including the town standard

in terms of widths and sidewalks and turn arounds and

so forth. It’s just not—these don’t serve enough lots that

that’s required to do.’’ Hollister concluded his prefatory

remarks by stating that ‘‘where we end up is really, I

think . . . one big issue . . . and that is . . .

whether this internal, what we call the private internal

roadway system, driveway is safe for the people who

want to live there . . . .’’

Mark Vertucci, a traffic engineerretained by the plaintiff, then addressed the commission. Vertucci prepared

a traffic impact study that was submitted with the plaintiff’s original application. That study utilized traffic

rates provided by the Institute of Transportation Engineers Trip Generation Manual, an ‘‘industry accepted

resource.’’ Vertucci’s analysis concluded that the proposed subdivision was ‘‘going to be a very low traffic

generator, given the . . . small number of units.’’ Vertucci further concluded that ‘‘the development will provide safe and efficient access, egress, and circulation

for the residents and guests of the subdivision as well

as the general public entering or passing the property.

In addition, the [proposed roadway] interior to the site

will sufficiently accommodate circulation by emergency vehicles.’’ As part of the plaintiff’s modified application, Vertucci 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.’’

At that public hearing, the commission’s professional

staff also commented on the modified proposal. James

Rabbitt, the town planner, and Robert DeLuca, the town

engineer, disagreed with the plaintiff’s assertion that

the proposed roadway qualified as a driveway, as it

would provide ‘‘the only access to fifteen single-family

dwellings.’’ Rabbitt and DeLuca both noted that the

proposed roadway did not comply with the minimum

width or maximum grade requirements of the road ordinance. In his March 1, 2013 letter to Rabbitt, DeLuca

had opined that the standards set forth in the road

ordinance ‘‘provide for an appropriate higher level of

safety’’ and reflected ‘‘a typical policy within [Connecticut] municipalities for access roads to multiple residences as opposed to a shared driveway to 2–3
residences.’’ At the public hearing, DeLuca stated, ‘‘I

do feel that the infrastructure needs to be built completely to service all these lots safely . . . so that it’ll

be in place so that emergency vehicles can safely get

around regardless of how many houses they have

built.’’16 Although they repeatedly emphasized that the

proposed roadway did not comply with the requirements of the road ordinance, neither Rabbitt nor

DeLuca indicated that compliance was necessary to

protect a substantial public interest or that the risk of

harm thereto clearly outweighed the need for

affordable housing.

The commission deliberated the merits of the plaintiff’s application at its April 2, 2013 meeting. During

those deliberations, commission members debated

whether to defer their final vote, as Zizka was not present at that time but was available to attend a special

meeting the following week. After one unidentified

commissioner indicated his unavailability the following

week, another stated: ‘‘There’s gonna be quite a lot of

information here between the three reports [submitted

by Zizka, DeLuca and Rabbitt]. It’s kind of tough to

make a decision just reading them now.’’ When Chairman Adams inquired as to whether his colleagues had

‘‘enough information to vote tonight,’’ an unidentified

commissioner responded: ‘‘I feel that we have enough

information to vote tonight. This has been going on for

quite a while. We did get all this information. It has

been basically the same information over and over and

over. [The plaintiff] made a couple changes last month,

ah. Their attorney basically said to us last month you

can vote tonight because, you know, you know we’re

gonna go to court. They’re gonna deny it. So vote tonight

and get it over with. And, that’s it. And, ah, you know

we’re going over the same stuff tonight we went over

last month and it’s just saying how much stuff you

gonna read on the same subject? You know. It’s the

same thing over and over and over.’’

Shortly thereafter, Chairman Adams then asked,

‘‘[a]ny further discussion?’’ Hearing no reply, he continued: ‘‘Okay. All in favor of having a motion tonight.

Vote tonight. Who would like to make a motion? And,

and be forewarned. When you make a motion, you have

to be pretty specific. You can’t just say testimony or

other information given by the planner and other staff.

You have to be clear. As many of you know, that [the

plaintiff is] already expecting us, expecting this [commission] to go to court so you have to be pretty specific

and careful on what you’re making a motion and how

you’re presenting it and the reasons you’re for your

motion.’’ At that point, Commissioner Sperry made ‘‘a

motion to deny the resubmitted application based on

the testimony from the town engineer, fire marshal, and

town [attorney]. The road does not meet code, doesn’t

meet fire code, doesn’t meet town code. Um. Based

upon the retraction of the commitment to build the
entire infrastructure and we’re back to a piecemeal

infrastructure as we go. Um, ah, and, um the elimination

of, ah, the, ah, the right of way, um, that can potentially,

ah, put the wells at risk and does not allow the town

the flexibility it needs to, um, maintain or widen or do

work, now or in the future, on Ames Road as well as

I believe Lot 17 is still on the plan and that is not an

approved lot.’’ Chairman Adams then inquired, ‘‘[a]m I

to take that motion to mean, in addition to the other,

ah, information on the record?’’ Commissioner Sperry

replied, ‘‘in addition to the information on the record,

the testimony submitted by [inaudible] engineers, that

[of] the town of Lisbon fire marshal, [and Zizka and

Rabbitt].’’ That motion to deny was approved by a vote

of eight to zero, with one commissioner abstaining.

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,

the court concluded that neither noncompliance with

the road ordinance nor noncompliance with the fire

code constituted a valid ground on which to deny the

plaintiff’s application.17 As a result, the court reversed

the ‘‘denial of the plaintiff’s resubmission and

remand[ed] the case to the [commission] with direction

to grant the plaintiff’s resubmission as is.’’ The commission thereafter filed a petition for certification to appeal

pursuant to General Statutes § 8-8 (o). We granted the

commission’s petition and this appeal followed.

I

As a preliminary matter, we first consider the plaintiff’s claim, raised as an alternative ground of

affirmance, that the commission failed to state its reasons for denying the resubmitted application when it

rendered its decision. Section 8-30g obligates a land use

agency ‘‘to make a collective statement of its reasons

on the record when it denies an affordable housing

land use application.’’ JPI Partners, LLC v. Planning &

Zoning Board, 259 Conn. 675, 692, 791 A.2d 552 (2002).

That requirement serves to provide ‘‘a clear basis’’ for a

court to review that decision; (internal quotation marks

omitted)id., 689; as opposed to ‘‘reasons thatlater might

be culled from the record . . . .’’ (Internal quotation

marks omitted.) Id. ‘‘Requiring the [land use agency]

to state its reasons on the record when it denies an

affordable housing land use application will further that

purpose because it will help guard against possibly pretextual denials of such applications.’’ (Internal quotation marks omitted.) Id., 689–90.

At the same time, our Supreme Court has cautioned

against exalting ‘‘form over substance’’ in contemplating the adequacy of such decisions. Quarry Knoll II

Corp. v. Planning & Zoning Commission, 256 Conn.

674, 730, 780 A.2d 1 (2001). Rather, ‘‘we must recognize

that the commission is composed of laymen whose

procedural expertise may not always comply with the
multitudinous statutory mandates under which they

operate. . . . We must be scrupulous not to hamper

the legitimate activities of civic administrative boards

by indulging in a microscopic search fortechnicalinfirmities in their actions . . . .’’18 (Citation omitted;

emphasis in original; internal quotation marks omitted.)

Id., 730–31. Affording a degree of latitude is particularly

appropriate in the context of affordable housing

appeals, where—unlike traditional zoning appeals—the

reviewing court is not empowered to scour the record

in search of a proper basis for the agency’s decision.

Christian Activities Council, Congregational v. Town

Council, 249 Conn. 566, 575–76, 735 A.2d 231 (1999)

(outlining differences between affordable housing

appeal and traditional zoning appeal); cf. Verrillo v.

Zoning Board of Appeals, 155 Conn. App. 657, 673,

111 A.3d 473 (2015) (in traditional zoning appeal, when

zoning agency fails to provide collective statement for

its actions, reviewing court obligated to search entire

record to find basis for agency’s decision).

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. In particular, the motion stated that the proposed roadway did not comply with the town code or

the fire code. In that respect, the motion echoed the

commission’s January 8, 2013 denial of the plaintiff’s

original application, in which the formal motion incorporated by reference the document detailing the commission’s concerns regarding noncompliance with both

the road ordinance and the fire code. As a result, we

conclude that the record contains a clear basis on which

to review the commission’s decision.19 We therefore

turn our attention to the distinct claims raised by the

commission in this appeal.

II

The commission’s principal claim is that the court

improperly concluded that the plaintiff’s noncompliance with the road ordinance did not constitute a valid

ground on which to deny its affordable housing application. The commission maintains that because the road

ordinance is a municipal legislative enactment aimed

at protecting public health and safety, ‘‘any deviation

from the ordinance’s standards should be deemed unacceptable per se.’’

The parameters of our review of an affordable housing appeal are circumscribed by § 8-30g (g).20 Section

8-30g (g) provides: ‘‘Upon an appealtaken 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 consider; (B) such public interests clearly

outweigh the need for affordable housing; and (C) such

public interests cannot be protected by reasonable

changes to the affordable housing development, or (2)

(A) the application 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 development is not assisted housing, as

defined in subsection (a) of this section. 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.’’

The standard of review embodied in § 8-30g (g) is

twofold in nature. See JPI Partners, LLC v. Planning &

Zoning Board, supra, 259 Conn. 690. First, a reviewing

court must ‘‘determine whetherthe 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.’’ (Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v.

Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973

(2004). If that standard is met, the reviewing court then

‘‘must conduct a plenary review of the record and determine . . . whether the commission’s decision was necessary to protect substantial interests in health, safety

or other matters that the commission legally may consider, whether the risk of such harm to such public

interests clearly outweighs the need for affordable

housing, and whether the public interest can be protected by reasonable changes to the affordable housing

development.’’ Id. That plenary review entails an independentreview of the land use agency’s decision ‘‘based

upon [the reviewing court’s] own scrupulous examination of the record.’’21 Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 727.

A

We therefore begin with the question of whether the

commission’s decision to deny the modified application

due to the plaintiff’s noncompliance with the road ordinance is supported by sufficient evidence in the record.

Our Supreme Court has ‘‘defined sufficient evidence in

this context to mean less than a preponderance of the

evidence, but more than a mere possibility. . . . [T]he

zoning commission need not establish that the effects

it sought to avoid by denying the application are definite
or more likely than not to occur, but that such evidence

must establish more than a mere possibility of such

occurrence.’’ (Internal quotation marks omitted.)

Christian Activities Council, Congregational v. Town

Council, supra, 249 Conn. 585. Notably, that court also

has indicated that the sufficient evidence standard

imposes a ‘‘lesser burden’’ than the substantial evidence

standard. Kaufman v. Zoning Commission, 232 Conn.

122, 149–50, 653 A.2d 798 (1995).

The substantial evidence standard has been

described as one that ‘‘is highly deferential and permits

less judicial scrutiny than a clearly erroneous or weight

of the evidence standard of review.’’ (Internal quotation

marks omitted.) New England Cable Television Assn.,

Inc. v. Dept. of Public Utility Control, 247 Conn. 95,

118, 717 A.2d 1276 (1998); accord Dickinson v. Zurko,

527 U.S. 150, 153, 119 S. Ct. 1816, 144 L. Ed. 2d 143

(1999) (clearly erroneous standard stricter than substantial evidence standard); Brunswick v. Statewide

Grievance Committee, 103 Conn. App. 601, 612, 931

A.2d 319 (‘‘[t]he substantial evidence standard is even

more deferential’’ than clearly erroneous standard),

cert. denied, 284 Conn. 929, 934 A.2d 244 (2007).

Because the sufficient evidence standard applicable to

affordable housing appeals imposes a lesser burden

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. River Bend Associates, Inc.

v. Zoning Commission, supra, 271 Conn. 26.

As a municipal legislative enactment, the road ordinance is entitled to a presumption that it is predicated

on a legitimate public policy. See Pollio v. Planning

Commission, 232 Conn. 44, 49, 652 A.2d 1026 (1995)

(‘‘a presumption of validity is accorded to municipal

ordinances’’); see also State v. Santiago, 318 Conn. 1,

72 n.62, 122 A.3d 1 (presumption that legislative body

acted for legitimate reasons), rehearing denied, 319

Conn. 912, A.3d (2015); Tine v. Zoning Board of

Appeals, 308 Conn. 300, 306, 63 A.3d 910 (2013) (presumption that legislative bodies do not intend to enact

meaningless provisions). The road ordinance at issue

here expressly indicates that its purpose is to ‘‘protect

the public health and safety.’’ See footnote 10 of this

opinion. In furtherance of that aim, the ordinance prescribes, inter alia, minimum widths and maximum

grades for roads constructed in Lisbon. In light of the

foregoing, the commission reasonably could conclude

that noncompliance therewith creates more than a mere

theoretical possibility of harm to public health and

safety. We therefore agree with the commission that

noncompliance with a municipal legislative enactment

intended to protect the public health and safety constitutes evidence sufficient to satisfy the minimal threshold determination under § 8-30g (g).
B

We next consider whether the commission’s decision

to deny the plaintiff’s application due to noncompliance

with the road ordinance ‘‘was necessary to protect substantial interests in health, safety or other matters that

the commission legally may consider [and] whether the

risk of such harm to such public interests clearly outweighs the need for affordable housing . . . .’’

(Emphasis added.) River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26. On those questions, our review is plenary. Id., 22.

The commission claims that ‘‘any deviation’’ from the

requirements set forth in the road ordinance entitles it

to deny an affordable housing application. We disagree.

As our case law recognizes, § 8-30g is a remedial statute.

Kaufman v. Zoning Commission, supra, 232 Conn. 140.

A principal aim of § 8-30g is to prevent prextextual

denials. See, e.g., Quarry Knoll II Corp. v. Planning &

Zoning Commission, supra, 256 Conn. 729; Town Close

Associates v. Planning & Zoning Commission, 42

Conn. App. 94, 105, 679 A.2d 378, cert. denied, 239 Conn.

914, 682 A.2d 1014 (1996). That purpose easily would

be thwarted were we to adoptthe ‘‘per se’’rule proposed

by the commission regarding noncompliance with

municipal legislative enactments. It is axiomatic that

we must ‘‘construe a statute in a manner that will not

thwart its intended purpose . . . .’’ (Internal quotation

marks omitted.) Tayco Corp. v. Planning & Zoning

Commission, 294 Conn. 673, 686, 986 A.2d 290 (2010).

Furthermore, the commission’s contention also is

contrary to another purpose of that statute, which is

to eliminate the traditional deference to such municipal

legislative enactments. As our Supreme Court observed,

‘‘[b]ecause of the importance of developing affordable

housing, the normally applicable presumption of regularity that applies to municipal enactments would not

apply in Affordable Housing Appeals.’’ (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 716,

quoting Blue Ribbon Commission on Housing, Report

and Recommendations to the Governor and General

Assembly (February 1, 1989) p. A-9. Consistent with

that purpose, our precedent instructs that noncompliance with a municipal legislative enactment alone does

not furnish a proper basis for a land use agency to deny

an affordable housing application. Rather, the agency

also must determine whether, in light of the rationale

underlying the municipal legislative enactment, compliance is necessary to protect a substantial public interest

and whether the risk of harm to that interest clearly

outweighs the need for affordable housing.

As this court has held, § 8-30g ‘‘does not allow a

commission to use its traditional zoning regulations to

justify a denial of an affordable housing application,
butratherforces the commission to satisfy the statutory

burden of proof.’’ Wisniowski v. Planning Commission, 37 Conn. App. 303, 317, 655 A.2d 1146, cert. denied,

233 Conn. 909, 658 A.2d 981 (1995). It is well established

that a zoning regulation, like a road ordinance, is a

municipal legislative enactment. See Spero v. Zoning

Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590

(1991); Harlow v. Planning & Zoning Commission,

194 Conn. 187, 193, 479 A.2d 808 (1984). ‘‘The zoning

commission, in the enactment of zoning regulations

[acts as] a municipal legislative body.’’ Lebanon v.

Woods, 153 Conn. 182, 190, 215 A.2d 112 (1965); see

also Dinan v. Board of Zoning Appeals, 220 Conn. 61,

74, 595 A.2d 864 (1991) (describing zoning commission

as ‘‘[t]he municipal legislative body empowered to

adopt zoning regulations’’); Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823

(1988) (‘‘[p]romulgation of zoning regulations is a legislative process, although local in scope’’); Parks v. Planning & Zoning Commission, 178 Conn. 657, 660, 425

A.2d 100 (1979) (‘‘a local zoning [agency], in enacting

or amending its regulations, acts in a legislative rather

than an administrative capacity’’ [emphasis in original]).

Accordingly, whether the issue is noncompliance with

a municipal zoning regulation or noncompliance with

a municipal road ordinance, the inquiry is the same.

Thus, ‘‘[i]nstead of simply questioning whether the

application complies with [the municipal legislative

enactment at issue] . . . under § 8-30g, the commission considers the rationale behind the [enactment] to

determine whether[compliance is] necessary to protect

substantial public interests in health, safety or other

matters. . . . The commission must look at the rationale behind [the enactment] to determine if there is a

substantial interest, outweighing the need for

affordable housing, that must be protected by the denial

of an application.’’ (Emphasis in original.) Wisniowski

v. Planning Commission, supra, 317–18.

In sum, we agree with the commission that ‘‘the establishment of town-wide standards for road construction

is matter of public health and safety that a commission

may properly consider under the affordable housing

appeals act.’’ We disagree with the commission’s contention that any deviation from those standards constitutes a ‘‘per se’’ ground for denial of an affordable

housing application. As Wisniowski plainly indicates,

the commission must further demonstrate, as part of

its burden in an affordable housing appeal, that compliance with such standards is necessary to protect the

public interest, that the risk of harm thereto clearly

outweighs the need for affordable housing, and that

the public interest cannot be protected by reasonable

changes to the affordable housing development. See

General Statutes § 8-30g (g) (1).

We conclude that the commission has not met that

burden. As an initial matter, we note that the minimum
road width and maximum grade requirements set forth

in §§ 4.3 and 4.4 of the road ordinance are not absolutes.

To the contrary, § 2.2.3 of the road ordinance provides

that ‘‘[t]he Board of Selectman may approve alternate

design and construction standards when (a) such standards are prepared by a licensed professional engineer

and (b) the board determines that such standards will

be in accord with the purpose and intent of the road

ordinance.’’22 The road ordinance thus contemplates the

construction of roads in Lisbon that depart from the

standards specified therein.

Second, it is undisputed that the proposed roadway

would remain a private road, rather than a public road,

and would serve only fifteen homes. As part of its modified application, the plaintiff provided the commission

with a ‘‘Homeowner’s Agreement for Lots 1-15’’ that

provides in relevant part that the proposed roadway ‘‘is

a private driveway and [the] Town of Lisbon shall have

no obligation for any costs associated with the maintenance, repair or replacement thereof or for resolving

any disputes among [the] [p]arties relating to the use,

maintenance, repair or replacement or costs associated

with’’ the roadway. See also footnote 7 of this opinion.

For that reason, the town planner remarked during the

commission’s deliberations on the modified proposal

that ‘‘the road system is not proposed as public . . . .’’

The document prepared by the commission’s legal

counsel, which the commission incorporated by reference into its January 8, 2013 denial of the original application, likewise acknowledged that ‘‘the roads would

be privately owned . . . .’’ The fact that the proposed

roadway would not be a public road further informs

our consideration of whether the rationale underlying

the requirements of the road ordinance compels strict

compliance in this case.23

Third, the record is replete with expert testimonial

and documentary evidence from Vertucci, a senior

transportation engineer with Fuss & O’Neill, Inc., who

also is certified by the Institute of Transportation Engineers as a professional traffic operations engineer. In

both his January 30, 2013 ‘‘traffic safety review’’ letter24

and his testimony during the public hearing on the plaintiff’s modified application, Vertucci provided his expert

opinion that the plaintiff’s modified proposal ‘‘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.’’ In particular, Vertucci

noted that the proposed twenty foot width of the roadway was ‘‘adequate for two vehicles to pass each other

at one time.’’ He also emphasized that the modified plan

included no parking zones and that ‘‘[e]ven if there were

a vehicle parked along a driveway anywhere in the site,

we’d still have the width for a fire truck to get by. Fire

trucks are at a maximum ten feet wide even with the

mirrors extended. That means another ten feet for the
cars that are parked there. A typical passenger car is,

at most—or [a sports utility vehicle] is at most eight

feet wide. So, even if they were not obeying these no

parking restrictions and their car was parked there, the

fire truck could still get by.’’25 Vertucci thus offered his

expert opinion that ‘‘[a]s far as the town road standards

. . . there is nothing from a traffic safety perspective

that would require any of these internal roadways to

be constructed to the [road ordinance] standards. These

drives are extremely low volume roadways. . . .

They’re not functioning as public roadways and [their]

stated width [will] accommodate size for electrical or

emergency vehicle traffic as they’re designed today. In

fact . . . Ames Road, [a public road] which borders

the site, is twenty-two feet wide. So, we’re designing a

road nearly the width of the town roadway that abuts

the site . . . .’’

Vertucci was the only expert who testified at the

public hearing on the risk of harm to public health and

safety posed by the proposed roadway. Although the

commission’s professional staff repeatedly noted that

the proposed roadway did not comply with the minimum width and maximum grade requirements of the

road ordinance, they did not submit any evidence of

specific harm that likely would result therefrom, nor

did they opine that the proposed roadway was unsafe.

As this court has noted, ‘‘[t]he narrow rigorous standard

of § 8-30g dictates that the commission cannot deny an

application on broad grounds such as noncompliance’’

with a municipal legislative enactment. Wisniowski v.

Planning Commission, supra, 37 Conn. App. 314.

Although the commission’s professional staff opined

that the standards set forth in the road ordinance provide for ‘‘generally safer access’’ and ‘‘an appropriate

higher level of safety,’’ the statutory imperative of § 8-

30g (g) (1) (A) involves a question of necessity, not

reasonableness. See Eureka V, LLC v. Planning & Zoning Commission, 139 Conn. App. 256, 275, 57 A.3d

372 (2012).

The burden placed on the commission in an

affordable housing appeal requires it to prove, inter

alia, that its denial of an affordable housing application

was ‘‘necessary to protect substantial public interests’’

and that ‘‘such public interests clearly outweigh the

need for affordable housing . . . .’’ (Emphasis added.)

General Statutes § 8-30g (g) (1) (A) and (B); see also

Wisniowski v. Planning Commission, supra, 37 Conn.

App. 306–307. The administrative record before us lacks

evidence indicating that strict compliance with the minimum road width and maximum grade requirements of

the road ordinance was necessary to protect the public

health and safety on the proposed roadway or that the

need for such compliance clearly outweighed the need

for affordable housing in Lisbon.26

Furthermore, we note that, in discussing the commis-
sion’s burden to demonstrate such necessity under § 8-

30g, our Supreme Court has held that the administrative

record must contain evidence in the record ‘‘concerning

the probability that such harm in fact would occur.’’

Kaufman v. Zoning Commission, supra, 232 Conn. 156;

see also AvalonBay Communities, Inc. v. Zoning Commission, 130 Conn. App. 36, 58, 21 A.3d 926 (record

must contain evidence as to quantifiable probability

that specific harm will result if application is granted),

cert. denied, 303 Conn. 909, 32 A.3d 962 (2011). The

commission has identified no such evidence regarding

the probability of harm to the public health and safety

in the record here.27

Mackowski v. Zoning Commission, 59 Conn. App.

608, 757 A.2d 1162, cert. granted, 254Conn. 949, 762A.2d

902 (2000) (appeal withdrawn September 21, 2001), is

instructive in this regard. In Mackowski, this court concluded that the defendant commission had ‘‘failed to

meet its burden of proving . . . that its denial of the

plaintiffs’ application was necessary to protect substantial public interests in health, safety or other matters

that the commission may legally consider.’’ Id., 616. We

reasoned that ‘‘[t]he commission never addressed the

traffic and sewage concerns in detail; rather, it made

generalized statements concerning the adverse impacts

on the health, safety and welfare of the community that

would be created by the project and remarked that

those adverse impacts appeared to be unnecessary in

achieving affordability for this development. The evidence before the commission . . . established that

there would be no significant problems with traffic or

the sewer system as a result of the proposed development. Neighbors of the proposed development did

express concern with the impact on traffic from the

development. While they claimed that at times traffic

could be dense atthe intersection ofthe proposed development, there was no record of any specific findings

of fact, such as the frequency of the traffic, to support

this allegation. Furthermore, while the town engineer

expressed concerns regarding the effect that the continued development of the area would have . . . there

was no showing that a possibility of substantial harm

could ever result.’’ Id., 617.

In the present case, the document prepared by the

commission’s legal counsel, on which the commission

relied in denying the plaintiff’s original application, suffers a similar infirmity. It states in relevant part that

‘‘no town residents should be obligated to accept roads

of lesser quality and safety than anticipated by the . . .

road ordinance,’’ but it provides no specific findings of

fact as to the harm that would result if the proposed

roadway was constructed. The document contains generalized statements that ‘‘lesser quality roads would

have a tendency to create a variety of problems . . .

including: lack of adequate space for parking; difficult

or impossible turning movements for emergency vehi-
cles, such as fire apparatus; and extremely steep

grades.’’ Yet neither that document nor the commission’s decision cite to any evidence as to the severity

and probability of such harm. Such generalized concerns cannot support a determination that the commission’s decision was necessary to protect the public

interest or that the harm outweighed the town’s documented need for affordable housing. See Eureka V, LLC

v. Planning & Zoning Commission, supra, 139 Conn.

App. 276–77; Mackowski v. Zoning Commission, supra,

59 Conn. App. 617. In addition, the plaintiff’s modified

application made several changes in response to those

generalized concerns. See footnote 15 of this opinion.

The commission’s decision to deny the modified application did not include any findings regarding those

concerns.

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.

Wisniowski v. Planning Commission, supra, 37 Conn.

App. 317–18. The explicit purpose of the road ordinance

is to protect the public health and safety on roads in

Lisbon. The plaintiff’s modified application included

expert evidence indicating that the proposed roadway

did not present any public health or safety concerns.

As in AvalonBay Communities, Inc. v. Zoning Commission, supra, 130 Conn. App. 54, the record in the

present case is devoid of specific evidence undermining

the expert evidence furnished by the plaintiff.28 We

therefore conclude that the court properly 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.

III

The commission also challenges the court’s conclusion that the plaintiff’s alleged noncompliance with the

fire code did not constitute a valid ground on which to

deny its affordable housing application. The administrative record before us does not substantiate that claim.

The issue of compliance with the fire code was raised

by Rick Hamel, the town’s fire marshal. Although Hamel

did not testify at the March 5, 2013 public hearing on

the plaintiff’s modified application, he did provide a

letter to the commission dated April 1, 2013, which

detailed three manners in which the proposed subdivision allegedly did not comply with the fire code. That

letter expressly indicates that Hamel had not reviewed

the plaintiff’s March 5, 2013 revised plan in reaching

those conclusions. In its memorandum of decision, the

Superior Court noted that ‘‘[t]he parties . . . stipulated
at the argument that [Hamel’s] letter was based on the

original submission and not the resubmission, which

incorporated changes to correct the deficiencies.

Because both parties acknowledged [Hamel’s] failure

to analyze the resubmission with its changes and modifications, the court will not consider the [April 1, 2013]

letter . . . .’’ We see no reason to depart from that

sound determination. Hamel concededly had not

reviewed the plaintiff’s modified application, and therefore could not offer any perspective on whether it complied with the fire code.

The commission also briefly argues that the risk of

inadequate snow removal and illegal on street parking

could result in ‘‘a too narrow road for emergency vehicles.’’ That contention amounts to little more than speculation and conjecture, which ‘‘have no place in

appellate review.’’29 (Internal quotation marks omitted.)

New Hartford v. Connecticut Resources Recovery

Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009). The

plaintiff’s modified proposal included a ‘‘snow storage

plan,’’ with which the revised homeowner’s agreement

required compliance. The modified proposal also

included a condition prohibiting on street parking; that

prohibition was memorialized in the homeowner’s

agreement. See footnote 15 of this opinion. Furthermore, in his expert testimony at the public hearing,

Vertucci opined that ‘‘[e]ven if there [was] a vehicle

parked along a driveway anywhere in the [subdivision,

the proposed roadway would] still have the width for

a fire truck to get by. Fire trucks are at a maximum

ten feet wide even with the mirrors extended. That

means another ten feet for the cars that are [illegally]

parked there. A typical passenger car is, at most—or

even a [sports utility vehicle] is at the most eight feet

wide. So, even if they were not obeying these no parking

restrictions and their car was parked there, [emergency

vehicles] could still get by.’’ The commission has not

identified any evidence in the record of a quantifiable

probability of specific harm stemming from what, at its

essence, is its presumption that citizens will not comply

with the various no parking and fire lane designations

throughout the subdivision, the requirements set forth

in the homeowner’s agreement, and the conditions of

approval for the subdivision proposed by the plaintiff.

Accordingly, it has not satisfied its burden under § 8-

30g (g).

IV

As a final matter, the commission contends that the

court improperly remanded the matter to it ‘‘with direction to grant the plaintiff’s resubmission as is.’’ That

claim requires us to consider the statutory basis for,

and the propriety of, that determination.

Generally, the court’s remedial authority is limited

in appeals from the decisions of municipal land use

agencies. As the Supreme Court recently explained,
‘‘[t]he statutes create a limited role for a trial court

hearing an administrative or zoning appeal. . . .

Courts hearing such appeals do not sit as courts of

equity, but as appellate tribunals. . . . Their power to

find facts and grant relief is narrow and generally confined to reviewing the validity of the agency decision.

. . . Specifically, in zoning appeals, the trial court’s

reviewing authority is strictly constrained by § 8-8 (l)

and the substantial evidence rule . . . .’’ (Citations

omitted; emphasis added.) Hunter Ridge, LLC v. Planning & Zoning Commission, 318 Conn. 431, 445, 122

A.3d 533 (2015); see also Wood v. Zoning Board of

Appeals, 258 Conn. 691, 708–709, 784 A.2d 354 (2001).

In affordable housing appeals, the court’s authority

derives not from § 8-8, but from § 8-30g. Section 8-30g

(g) provides in relevant part that ‘‘[i]f 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.’’ Our Supreme Court has recognized that § 8-30g (g) authorizes a reviewing court ‘‘to

employ much more expansive remedies than are available to courts in traditional zoning appeals.’’30 AvalonBay Communities, Inc. v. Zoning Commission, 284

Conn. 124, 140 n.15, 931 A.2d 879 (2007); accord Wisniowski v. Planning Commission, supra, 37 Conn. App.

320 (§ 8-30g ‘‘takes away some of the discretion that

local commissions have under traditional land use law

and allows the reviewing trial court to effect a zone

change if the local commission cannot satisfy the statutory requirements for its denial of an application’’); R.

Fuller, 9B Connecticut Practice Series: Land Use Law

and Practice (3d Ed. 2007) § 51.5, p. 175 (§ 8-30g confers

‘‘more authority than provided for in other administrative appeals, and the court can direct the agency to

approve the project as is or with suggested modifications’’); M. Westbrook, ‘‘Connecticut’s New Affordable

Housing Appeals Procedure: Assaulting the Presumptive Validity of Land Use Decisions,’’ 66 Conn. B. J. 169,

194 (1992) (noting that remand provision of § 8-30g

‘‘gives the court great latitude’’ and ‘‘several options for

providing relief to the developer’’). Because the plain

language of § 8-30g (g) permits a reviewing court to

‘‘wholly or partly revise, modify, remand or reverse the

decision’’ of a commission ‘‘in a manner consistent with

the evidence in the record,’’ it necessarily confers on

the court a degree of discretion. Imparting such discretion on a reviewing court is consonant with the remedial

nature of § 8-30g. See Kaufman v. Zoning Commission,

supra, 232 Conn. 140.

Accordingly, our review of the court’s exercise of its

remand authority under § 8-30g (g) is governed by the

abuse of discretion standard.31 Underthat standard, ‘‘the

unquestioned rule is that great weight is due to the

action of the trial court and every reasonable presump-
tion should be given in favor of its correctness. . . .

We will reverse the trial court’s ruling only if it could

not reasonably conclude as it did.’’ (Citation omitted;

internal quotation marks omitted.) Parslow v. Zoning

Board of Appeals, 110 Conn. App. 349, 354, 954 A.2d

275 (2008).

In the present case, the court’s decision to remand

the matter with direction to ‘‘grant the plaintiff’s resubmission as is’’ is one consistent with the evidence in

the record. The court had before it transcripts of two

public hearings that transpired over the course of six

days and countless documents regarding the proposed

subdivision and revisions thereto. The court also had

before it expert testimony from a professional engineer,

a transportation engineer, and a land surveyor. The

record also encompasses the commission’s decision to

deny the plaintiff’s original application, the plaintiff’s

modified application and accompanying materials, the

materials submitted by the commission’s professional

staff, and the commission’s deliberations and ultimate

decision on the modified application. Significantly, that

modified application contained numerous conditions of

approval proposed in response to concerns raised by

the commission and its professional staff.32 Because the

court’s remand ordered the commission to grant the

modified application ‘‘as is,’’ those detailed conditions

necessarily are part of that approval, and are binding

on the plaintiff. In addition, although the commission

in this appeal suggests that the court impaired its ability

to attach appropriate conditions to such an approval,

it does not specify any additional conditions that it

believes are necessary.33

In an affordable housing appeal, the authority of the

Superior Court to fashion appropriate relief derives

from the General Statutes. The court’s authority under

§ 8-30g (g) includes ‘‘the power’’ to order a commission

to grant an affordable housing application on remand.

AvalonBay Communities, Inc. v. Zoning Commission,

supra, 284 Conn. 140–41 n.15; see also West Hartford

Interfaith Coalition, Inc. v. Town Council, 228 Conn.

498, 527, 636 A.2d 1342 (1994) (reviewing court’s ‘‘remedy granting the [affordable housing] application [is]

specifically authorized by the plain language of § 8-

30g’’). Accordingly, the court here was authorized to

remand the matter to the commission with direction to

grant the modified application ‘‘as is.’’ On our review

of the evidence in the administrative record, we cannot

say that the court could notreasonably reach that determination. See Parslow v. Zoning Board of Appeals,

supra, 110 Conn. App. 354. The court, therefore, did

not abuse its discretion in remanding the matter to

the commission with direction to grant the plaintiff’s

modified affordable housing application as is.

The judgment is affirmed.

In this opinion the other judges concurred.
APPENDIX

1

‘‘In hearing appeals from decisions of a planning and zoning commission,

the Superior Court acts as an appellate body.’’ MacKenzie v. Planning &

Zoning Commission, 146 Conn. App. 406, 409 n.3, 77 A.3d 904 (2013).

2

In connection with the proposed development, the plaintiff obtained a

permit from the Conservation Commission of the Town of Lisbon to conduct

minor regulated activity within the 100 foot upland review area.

3

It is undisputed that the affordability plan submitted by the plaintiff as

part of its application demonstrated that the proposed subdivision satisfied

the statutory criteria for an affordable housing development.

4

‘‘[A] modular home is largely manufactured somewhere away from the

eventual home site and brought to the local home site for installation.’’

Bennett v. CMH Homes, Inc., 770 F.3d 511, 518 (6th Cir. 2014); see also

Lauderbaugh v. Hopewell Township, 319 F.3d 568, 571 n.2 (3rd Cir. 2003)

(modular home ‘‘is built off-site in modular components that are transported

to a residential site and erected on a permanent foundation’’); Woodstock

v. Williams, 1 Conn. App. 505, 506, 473 A.2d 330 (describing modular home

as one that is ‘‘prefabricated’’), cert. denied, 193 Conn. 804, 475 A.2d 1104

(1984). ‘‘Unlike a mobile home or house trailer, a modular home is not built

on a permanent chassis, and for that reason, it is not able to be readily

moved to another location once installed or erected.’’ Williams v. Fox, 219

S.W.3d 319, 323 (Tenn. 2007).

5 One lot, shown as ‘‘Lot 17’’ on the plans and surveys submitted to the

commission, was designated as ‘‘not a proposed building lot.’’ At the time
that the plaintiff’s application was before the commission, this lot did not

meet the minimum requirements of the Connecticut Public Health Code for

sewage disposal ‘‘due to high seasonal water levels.’’ The plaintiff nevertheless envisioned an additional single-family home on that lot, pending further

groundwater testing and approval by the town sanitarian. The plaintiff’s

original application proposed, as a condition of approval, that should subsequent testing conducted in the spring of 2013 fail to garner the approval of

the town sanitarian, the plaintiff ‘‘will file on the land records documentation

showing the merging of Lot 17 into an adjacent lot and will notify the

[c]ommission.’’ In its modified application, the plaintiff stated that ‘‘the

[s]anitarian directed the test to be done in spring 2013, and the applicant

has agreed. Lot 17 is not proposed as a building lot at this time.’’ Lot 17

thus is not at issue in this appeal.

6 As the plaintiff notes in its appellate brief, the median home price in

Lisbon in 2012 was $179,000.

7 During the public hearings on the plaintiff’s original application and

its modified application, the plaintiff’s representatives also referred to the

proposed roadway as an ‘‘internal roadway’’ system.

8 Under the plaintiff’s proposal, the roadway would remain private and

would be maintained by an association comprised of homeowners. Specifics

regarding the formation of that association and its corresponding obligations

were set forth in the conditions of approval proposed by the plaintiff, as

well as the ‘‘Homeowner’s Agreement for Lots 1-15’’ drafted by the plaintiff

and included in its submissions to the commission.

9 For purposes of clarity, appended to this opinion is a copy of the roadway

proposed by the plaintiff’s modified affordable housing application, as

depicted on the plan prepared by land surveyor Dieter & Gardner, Inc., and

submitted to the commission on March 5, 2013.

10 The road ordinance officially is known as ‘‘An Ordinance Concerning

the Construction and Acceptance of Roads in the Town of Lisbon Connecticut.’’ It was adopted by a town meeting convened on June 29, 1995, and

became effective on July 19, 1995. Its stated purpose is as follows: ‘‘In order

to protect the public health and safety, to promote the general welfare, to

preserve property values and to assure the orderly growth and development

of the Town, the following standards and procedures for the construction

of all roads, drainage structures and appurtenances thereto have been

adopted by a Town meeting . . . .’’

11 Pursuant to §§ 4.3.1 and 4.4.1 of the road ordinance, the minimum width

of a local residential road without curbs is twenty-six feet, and the maximum

grade for such a road shall not exceed 10 percent. The roadway originally

proposed by the plaintiff was less than twenty feet wide and, at certain

locations, contained a grade of 16 percent. Following the denial of its original

application, the plaintiff modified its application to provide a twenty foot

wide roadway to address various concerns raised by the commission and

its staff regarding emergency vehicle access and on street parking on the

roadway.

12 The transcript of the commission’s January 8, 2013 deliberations on the

plaintiff’s application indicates that Zizka began the discussion by reviewing

the portion of his document that addressed noncompliance with the road

ordinance. When he concluded, the following colloquy transpired:

‘‘[Chairman] Adams: I think we’re in pretty much agreement. I’m not sure

but we can find out right now. Uh, if there’s a problem with the, the width

is 16’ and 20’. Uh, it should be between 26’ and 28’. Movement on the roads

pose[s] a problem. Uh my feeling is it should be a town road. It should be

accepted as a town road and town road standards. How do you feel about it?

‘‘[Commissioner] Giroux: Ron Giroux. Um, I agree. I think the roads need

to be the width of all the other Town roads. I don’t think [there are] a lot

of houses in there but, you know, we don’t even, like, we don’t even allow

the shared driveway for a simple reason because of egress in and out of

those areas.

‘‘[Chairman Adams]: Um, yeah, I have a problem with the, the grades too.

I mean, the slopes aren’t, um, safety-wise, I think we should adhere to the

[road] [o]rdinance.

‘‘[Commissioner] Sperry: Oh, I agree and coming up to the Town road

standards would ensure, um, that public safety has adequate access, um,

to service the future residents of, you know, to this development and I think

that was, um, the fact that emergency vehicles and first responders were

able to, um, respond or turn safety concern but not only for the people who

live there and would require services but responders as well.

‘‘[Commissioner] Dempsey: Uh, John Dempsey. I feel the same way, especially with the grades. Um, if it was a single house going up into the woods,
that’s, that’s your prerogative to do that but when you have this many houses

with those kind of grades, you’re asking the Town of Lisbon’s . . . emergency personnel to do something that’s pretty risky, not to mention there’s,

nobody’s going to want to plow those roads up or down at those grades,

so I feel the same.

‘‘[Commissioner] Ritacco: Gary Ritacco. I feel the same as everybody else

here on the maintenance of the Town road.

‘‘[Commissioner] Gabiga: Um, I agree also. I think that, uh, we should

adhere to the Town road standards, this development, and then I also feel

the, the safety of not only the people who would live there but along the

road and also the, um, uh, in the development itself that, uh, the emergency

vehicles and, uh, do not have enough turn around and that was the problem

[inaudible] and, and enforcing of the parking bans and things like that too.

‘‘[Commissioner] Gagnon: Dave Gagnon. I agree with everything that’s

been said. You know, the emergency vehicles, the width, urn, and then the

fact that the homeowner’s association could come back to the town later

with that action of making the town do something, so I think, I don’t know,

that the width is definitely too small and with, you know, the problems that

we did, especially the parking too, that we discussed.

‘‘[Zizka]: Okay.

‘‘[Commissioner Giroux]: Yeah, the parking and the, uh, the width of the

roads, I definitely agree with and I think it’s been presented very well. I

just want to make, can I just say one thing, though? Um, a 10 [percent]

slope, I mean, we’re not all people who know every little detail but a 10

[percent] slope is less than a handicap ramp, okay? I just, you know, because

I noticed it was said earlier but a 30 [percent] slope going down a very

steep hill grade on the, um, the next thing we’re going to talk about in your

report and even that is like walking on a 3

1/2 pitch roof. To me, that is not

very steep, okay? The way it’s presented, okay? Just so because not everybody knows and I look at 10 [percent] slope, what does that mean? Does

that mean, you know, I’m going off a cliff? No. It’s almost nothing. Just, I

just wanted to say that. Thank you.

‘‘[Chairman Adams]: So it sounds like you’re in agreement as far as there’s

a problem with the road, uh, uh, situation. Um, and as written here, to

redesign it isn’t really our, our job to redesign the way the road’s going to

look and to try to approve something that we don’t know what it’s going

to look like, it’s very difficult to do. Uh, if anybody has any suggestions as

to a possible solution besides bringing up the road standards, I’d like to

hear it now. Okay, we’ll go on to the next one. . . .’’

13 The first issue pertained to the ‘‘lack of conformance with town road

standards’’; the second noted that ‘‘[t]he outlet pipe location at Lot 1 does

not comply with section 5.1.6 of the town road ordinance’’; and the fourth

issue was that ‘‘the proposed road layout fails to comply with pertinent

sections of the [fire code] and . . . the plans do not provide adequate

emergency access.’’

14 General Statutes § 8-30g (h) provides in relevant part: ‘‘Following a

decision by a commission to reject an affordable housing application or to

approve an application with restrictions which have a substantial adverse

impact on the viability of the affordable housing development or the degree

of affordability of the affordable dwelling units, the applicant may, within

the period for filing an appeal of such decision, submit to the commission

a proposed modification of its proposal responding to some or all of the

objections or restrictions articulated by the commission, which shall be

treated as an amendment to the original proposal. . . . The filing of such

a proposed modification shall stay the period for filing an appeal from the

decision of the commission on the original application. The commission

shall hold a public hearing on the proposed modification if it held a public

hearing on the original application and may hold a public hearing on the

proposed modification if it did not hold a public hearing on the original

application. The commission shall render a decision on the proposed modification not later than sixty-five days after the receipt of such proposed

modification . . . . The commission shall issue notice of its decision as

provided by law. Failure of the commission to render a decision within said

sixty-five days or subsequent extension period permitted by this subsection

shall constitute a rejection of the proposed modification. Within the time

period for filing an appeal on the proposed modification as set forth in

section 8-8, 8-9, 8-28 or 8-30a, as applicable, the applicant may appeal the

commission’s decision on the original application and the proposed modification in the manner set forth in this section. Nothing in this subsection

shall be construed to limit the right of an applicant to appeal the original

decision of the commission in the manner set forth in this section without

submitting a proposed modification or to limit the issues which may be

raised in any appeal under this section.’’

15 Among other things, the modified application (1) redesigned the pro-
posed roadway ‘‘[t]o address the [commission’s] claimed concern about fire

truck, utility truck, and delivery truck access and turnarounds’’ by creating

an internal loop within the subdivision that was twenty feet wide; (2) revised

the ‘‘pavement and turning radii for Lots 10 and 14 . . . as requested to

eliminate stated concerns about emergency vehicle turning’’; (3) reduced

certain grades at the behest of the commission’s professional staff; (4)

revised the placement of wells on the proposed lots ‘‘far enough from the

common driveway to meet the five foot minimum distance specified by the

commission in its denial’’; (5) added ‘‘a snow storage plan’’ to the proposal

and revised the homeowner’s agreement ‘‘to require conformance to it’’;

and (6) ‘‘accepted the [commission’s] demand to relocate’’ a storm drainage

outlet. In addition, the plaintiff’s modified application proposed, as a condition of approval, that ‘‘Lots 1 through 15 shall be conveyed with the prohibition from parking motor vehicles of any type in the areas more particularly

shown and depicted as ‘No Parking Anytime’ ’’ on the modified plan. The

modified application also contained a revised homeowner’s agreement that

repeated that language and then stated in relevant part that owners of those

lots ‘‘hereby grant to the [homeowner’s association] a right to enforce any

and all parking / no parking / fire lane signage, striping, and restrictions,

through the issuance of written notices of violation. The [owners] agree

that no structure, landscaping, or impediment will be maintained that will

block emergency or service vehicle use of the internal shared [roadway]

and individual driveways. . . .’’

16 The record reflects that although the commission received a number

of comments from members of the public during the March 5, 2013 public

hearing, little discussion pertained to the adequacy of the proposed roadway.

17 The court also concluded that the commission’s claim regarding the

proposed road drainage system was without merit. The commission does

not challenge that determination in this appeal.

18 The record indicates that the commission was without the assistance

of its legal counsel when itrendered its decision on the plaintiff’s resubmitted

application on April 2, 2013.

19 Without question, the better practice is forthe land use agency, following

its vote on a motion on an affordable housing application, to issue a separate,

‘‘formal, official, collective statement of the reasons forits actions.’’(Internal

quotation marks omitted.) Christian Activities Council, Congregational v.

Town Council, supra, 249 Conn. 576. On the facts of this case, which involved

a modified affordable housing application that constituted ‘‘an amendment

to the original proposal’’; General Statutes § 8-30g (h); and on which the

commission rendered a decision largely identical to its denial of the original

application, we conclude that a clear basis for that decision emanates from

the motion to deny that was approved by a vote of eight to zero.

20 As our Supreme Court has noted while discussing the standard embodied

in § 8-30g, ‘‘[t]he function of the scope of judicial review is to express the

policy choice, ordinarily drawn from the governing statutes, regarding the

allocation of decision-making authority as between the administrative

agency and the reviewing courts, and, more specifically, to articulate the

degree of constraint that the statutes place upon the courts in reviewing

the administrative decision in question.’’ Christian Activities Council, Congregational v. Town Council, supra, 249 Conn. 580–81.

21 ‘‘Because the plaintiffs’ appeal to the [Superior Court] is based solely on

the record, the scope of the [Superior Court’s] review of the [commission’s]

decision and the scope of our review of that decision are the same.’’ (Internal

quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 26–27 n.15.

22 Under the road ordinance, the Board of Selectmen is responsible for

issuing road construction permits in Lisbon, including ‘‘roads in a subdivision

approved by the [commission] . . . after the effective date of the road

ordinance.’’ Lisbon Road Ordinance § 2.1 (b). The road ordinance defines

a ‘‘road’’ as follows: ‘‘Road means and includes streets, highways, avenues,

lanes laid out and intended as vehicular access way.’’ Lisbon Road Ordinance § 1.3.

23 At no time during the application process did the plaintiff propose a

public road within the affordable housing subdivision adjacent to Ames

Road. Rather, the proposed roadway was to be a private one governed by

a homeowner’s agreement. See footnote 8 of this opinion. Whether such a

private roadway ultimately could obtain approval from the Board of Selectmen; see footnote 22 of this opinion; is an issue beyond the purview of this

administrative appeal.

24 Vertucci’s January 30, 2013 ‘‘traffic safety review’’ letter indicates that

‘‘[t]raffic circulation of passenger vehicles, emergency vehicles, and service/

delivery vehicles was reviewed, as well as the provisions for vehicle turn-
arounds, adequate site roadway width, and snow storage areas on the plan.’’

That analysis ‘‘concludes that the [plaintiff’s] revised site layout plans will

provide for safe traffic operations and do not present any public health or

safety concerns.’’

25 Among the materials Vertucci submitted to the commission is a depiction

of the ‘‘Smeal Aerial RM’’ fire truck, which contains an 80 foot ladder track

and measures 38.17 feet long by 8.33 feet wide. Vertucci also provided a

detailed ‘‘truck turning analysis’’ predicated on that vehicle’s turning radius,

given its forty-five degree ‘‘steering lock angle.’’ Vertucci submitted those

materials at the behest of the commission’s professional staff, as that fire

truck is the ‘‘longest truck’’ that responds to an emergency in the town.

26 At oral argument before this court, the commission’s counsel was asked

if the administrative record in this case contains evidence as to whether a

twenty foot wide road presented greater danger to public health and safety

than a twenty-six foot wide road. Counsel conceded that it does not.

27 The commission argues that the plaintiff’s noncompliance with the road

ordinance obviates the need for the commission, on appeal, to identify

evidence in the record as to a quantifiable probability that specific harm

will result if the modified application was granted. As it states in its principal

appellate brief: ‘‘[T]he ‘specific harm to the public interest’ is the elevated

level of risk the proposed development would cause if [the plaintiff’s] new

road system is allowed to have lower standards than those established by

the [road] ordinance. The ‘quantifiable probability’ that such ‘specific harm’

would be caused by the approval of such a road is 100 percent; i.e., there

is no question that the level of risk will be greater . . . . It should not have

been necessary for the [c]ommission to receive evidence about how many

additional accidents a narrower road or steeper grades might cause because

Lisbon’s legislative body had already determined . . . that the additional

risk was unacceptable regardless of whatfractional amountit mightinvolve.’’

(Emphasis in original.) The commission has provided no authority for that

assertion. Contra Kaufman v. Zoning Commission, supra, 232 Conn. 156;

AvalonBay Communities, Inc. v. Zoning Commission, supra, 130 Conn.

App. 58.

28 The commission argues that the court improperly imposed on it the

burden to provide expert evidence that the proposed roadway was unsafe.

We disagree. In Carr v. Planning & Zoning Commission, 273 Conn. 573,

605, 872 A.2d 385 (2005), the defendant commission similarly claimed that

‘‘the court improperly held that, in order to justify its denial of the modified

application, the burden was on the zoning commission to perform studies

to determine the extent to which the development would adversely affect

the public interest in a safe water supply.’’ Our Supreme Court rejected that

claim, stating that the court ‘‘did not impose any such burden on the zoning

commission.’’ Id. The court reasoned that ‘‘the trial court took as its starting

point information provided by the plaintiff that the likelihood of [well]

interference was extremely remote or nonexistent. Thus, the court did not

place the initial burden of establishing that there would be no such interference on the zoning commission. Rather, the trial court determined that, in

light of the information provided by the plaintiff, the zoning commission

could not deny the modified application unless it established that there was

a quantifiable probability of such interference and that reasonable changes

to the modified application would not adequately address the problem. . . .

[T]his determination was consistent with the requirements of [§ 8-30g] and

did not impose any unwarranted burden on the zoning commission.’’ (Citation omitted.) Id., 606. Accordingly, that precedent instructs that once an

affordable housing applicant submits evidence indicating that harm to a

substantial public interest is unlikely, the commission cannot deny such an

application absent specific evidence in the record indicating otherwise.

Id., 606–610.

In the present case, the plaintiff provided expert evidence indicating that

the proposed roadway did not present any public health or safety concerns.

Moreover, the plaintiff’s modified application specifically alerted the commission to the fact that, in its view, there was ‘‘no expert or other testimony

in the record that the proposed driveways are unsafe.’’ Accordingly, to

properly deny the plaintiff’s modified application, the burden properly was

on the commission to establish a quantifiable probability of harm to the

public health or safety that outweighed the need for affordable housing and

that could not be protected by reasonable changes to the proposed development.

29 The commission’s exhortation aside, we decline to take judicial notice

‘‘that ‘no parking’ signs are often disregarded.’’

30 For that reason, the commission’s reliance on cases such as Finley v.

Inland Wetlands Commission, 289 Conn. 12, 959 A.2d 569 (2008), Thorne
v. Zoning Commission, 178 Conn. 198, 423 A.2d 861 (1979), Bogue v. Zoning

Board of Appeals, 165 Conn. 749, 345 A.2d 9 (1974), Jersey v. Zoning Board of

Appeals, 101 Conn.App. 350, 921 A.2d 683 (2007), and Samperi v. Planning &

Zoning Commission, 40 Conn. App. 840, 674 A.2d 432 (1996), is misplaced,

as none involved a reviewing court’s authority under § 8-30g. Indeed, this

court has rejected a claim that a reviewing court ‘‘illegally usurped’’ the

administrative authority of a planning and zoning commission in fashioning

relief pursuant to § 8-30g. Wisniowski v. Planning Commission, supra, 37

Conn. App. 308, 319–21.

31 In its principal appellate brief, the commission agrees that our review

of the court’s remand order is pursuant to the abuse of discretion standard.

32 The plaintiff’s modified application proposed the following conditions

of approval:

‘‘[1]. Prior to the sale of any of Lots 1 through 15, [the plaintiff] will install

the common driveway and sightline improvements, drainage, utilities, and

signage necessary for access to, construction on, and use of that individual

lot as shown on the approved plans, and will provide to the [commission]

an as-built plan demonstrating compliance.

‘‘[2]. In accordance with [General Statutes] § 8-25 as amended, [the plaintiff] will post a financial guarantee, in an amount to be determined with the

Town Engineer, for erosion and sedimentation controls and the drainage

from the Ames Road culvert to the outlet at the northwest corner of Lot 2.

‘‘[3]. Each of Lots 1 to 15 will be conveyed in deeds that will include, and

will be subject to, cross-easements as follows:

‘‘a. Lots 1, 2, 11, and 15 will be conveyed together with the non-exclusive

perpetual easements for access, maintenance, and utilities as more particularly shown and depicted on Sheets 2 and 3 of the ‘Plan Showing The

Residences At Lisbon Property Of Brenmor Properties LLC, Connecticut

State Route 169 A.K.A. South Burnham Highway And Ames Road, Lisbon,

Connecticut. Scales As Shown May 2012’ comprised of Sheets 1 through 9A

last revised 1/21/13 (hereinafter the ‘Plan’).

‘‘b. Lots 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, and 14 will be conveyed subject

to and together with the non-exclusive perpetual easements for access,

maintenance, and utilities as more particularly shown and depicted on Sheets

2 and 3 of the Plan.

‘‘c. Lots 1 through 15 shall be conveyed with the prohibition from parking

motor vehicles of any type in the areas more particularly shown and depicted

as ‘‘No Parking Anytime’’ areas on Sheets 2 and 3 of the Plan.

‘‘d. Lots 1, 2, 4, 7, and 15 shall be conveyed subject to a Drainage Easement

(including access and maintenance) in favor of the Town of Lisbon as more

particularly shownand depicted on Sheets 1, 2, and 3 of the Plan.

‘‘e. Lots 3, 5, and 14 shall be conveyed subject to emergency ingress and

egress easement rights as more particularly shown and depicted on Sheets

2 and 3 of the Plan.

‘‘f. Lot 10 shall be conveyed subject to an easement for common driveway for

ingress and egress to the site as more particularly shown and depicted

on Sheet 2 of the Plan.

‘‘g. Lot 10 shall be conveyed subject to a temporary construction entrance

easement as more particularly shown and depicted on Sheet 2 of the Plan.

‘‘[4]. A condition of subdivision approval and the eventual sale of each

Lot 1 to Lot 15 will be formation by [the plaintiff] of a Homeowners Association, using the form of Agreement submitted to the [c]ommission. The

purchaser of each Lot 1 to 15 will agree to the Homeowners Association

Agreement as a condition of purchase. Upon sale of the first lot of Lots 1

to 15, [the plaintiff] will provide initial funding of the Homeowners Association in the amount of $2,500, for the purpose of funding for one season

snow plowing and driveway clearance (estimated at $200 per plow, 12 snow

events). Thereafter, each owner of a lot that is not subject to § 8-30g income

and sale / resale price restrictions, will pay a minimum of $40 per month

to the Association, and the owners of those lots that are subject to § 8-30g

will pay a minimum of $25 per month, but a maximum only as allowed by

§§ 8-30g-1 et seq. of Connecticut State Agency Regulations. Funds collected

by the Homeowners Association in excess of snow removal and regular

maintenance shall be deposited in a capital reserve fund for the purpose

of periodic repair of the driveway, common utilities, or drainage.

‘‘[5]. Well locations shown on the approved plan are schematic. Wells

may be located where allowed by the Health Code, and will be approved

on a lot-by-lot basis by the Sanitarian. Each proposed well will need to

demonstrate sufficient yield before a Certificate of Occupancy is issued.
Wells will be located so as to not be subject to damage by vehicles, including

emergency and service vehicles, traveling on the internal driveways.

‘‘[6]. School bus pick-ups for Lots 1–15 will occur at a location along Ames

Road to be determined in conjunction with the Board of Education staff.’’

33 We note that a reviewing court may—but is not obligated to—remand

an affordable housing application to a land use commission with direction

that the application ‘‘be approved under such terms and conditions as the

commission might reasonably prescribe within the parameters of’’ the

reviewing court’s ruling. (Internal quotation marks omitted.) Kaufman v.

Zoning Commission, supra, 232 Conn. 167.