Agenda - Planning Commission - 01/06/2011

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Zoning Bulletin November 10, 20101 Volume 41 No. 21 amended application. Among other reasons, the PZC denied the appli- cation because of "a negative referral from the [city's water pollution control] authority [(the "Authority ")]." At the time of its site plan approval application, CMB had not yet sub- mitted formal applications to the Authority. However, as part of the pro- ceedings before the PZC, CMB's affordable housing application was re- ferred to the Authority "for review, comment and recommendation." The Authority issued a negative referral to the PZC. The PZC, in basing its denial on the Authority's negative referral, reasoned that CMB's "sewer connection application [would] probably be denied by the [A]uthority." CMB appealed the PZC's denial of its site plan application for the 'proposed affordable housing development. CMB appealed under the Connecticut statute that governs affordable housing appeals —Con- necticut General Statutes § 8 -30g. Section 8 -30g required that upon appeal by CMB, the PZC had to prove that "(1)(A) the decision [wa] s necessary to protect substantial public interests in health, safety, or other matters which the [PZC] [could] legally consider; (B) such public interests clearly outweigh[ed] the need for affordable housing; and (C) such public interests [could] not be protected by reasonable changes to the affordable housing development ...." The trial court "found that none of the reasons given by the [PZC] for denying [CMB]'s application met the requirements of § 8 -30g." The court ordered the PZC to approve CMB's amended site plan application subject to the condition that CMB apply to the Authority and obtain approval for adequate sewerage service for the proposed development. The PZC appealed. It argued that the court could not order the PZC to conditionally approve CMB's affordable housing site plan applica- tion. It maintained that a conditional approval was improper because: it could not issue approval of CMB's application conditioned upon approval by the Authority unless it was "reasonably probably that [CMB] would secure approval ... from the [A]uthority." DECISION. Affirmed. The Appellate Court of Connecticut held that the PZC was required to grant CMB's affordable housing site plan application on the condition that CMB obtain approval of the sewer connection from the Authority. In reaching its decision, the court disagreed with PZC's argu- ment. It explained that, in order to be valid, conditional approval did not require evidence that the other agency (i.e., here, the Authority) would act favorably on the future request (i.e., grant approval). With the PZC's approval conditioned upon approval by the Authority, the PZC's approval would not be "operative" without Authority approv- al. Thus, there was no need for the PZC to ensure that the Author - ---- ity would probably issue approval "because there [was] no risk to the public interest if the [approval] [did] not occur." © 2010 Thomson Reuters 3 27