Attorney General's Opinion

Attorney General, Richard Blumenthal

March 15, 2006

The Honorable Louis C. DeLuca
Senate Republican Leader
Legislative Office Building, Suite 3400
Hartford, CT 06106-1591

The Honorable George Gunther
Deputy Minority Leader-At-Large
Legislative Office Building, Suite 3400
Hartford, CT 06106-1591

Dear Senators DeLuca and Gunther:

You asked for a formal opinion concerning the Superior Court’s scope of review in an appeal of a municipal commission's decision on an affordable housing application under the Affordable Housing Land Use Appeals Procedure set forth in Conn. Gen. Stat. §8-30g.¹ 

Conn. Gen. Stat. §8-30g(g) provides:

Upon an appeal taken 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…  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.

Recently, the Connecticut Supreme Court held that under Conn. Gen. Stat. §8-30g, the proper scope of review of whether the commission sustained its burden of proof “requires the court to conduct a plenary review of the record in order to make an independent determination on this issue.”  River Bend Associates v. Zoning Commission, 271 Conn. 1, 22 (Conn. 2004).  During its review, the court must determine whether the commission’s decision denying an application for an affordable housing development was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, and whether the risk of harm to such public interests clearly outweighed the need for affordable housing. Id. It must also weigh whether the public interest can be protected by reasonable changes to the affordable housing development.  River Bend Associates, 271 Conn. at 22.

Recent superior court decisions have applied the Supreme Court’s ruling in River Bend Associates to conclude that under Conn. Gen. Stat. §8-30g, review shall be limited to the record of the zoning commission. One court held that the parties’ briefs are not evidence and may not, in themselves, be used to satisfy a party’s evidentiary burden.  AvalonBay Cmtys, v. Wilton Planning & Zoning Comm’n, 2005 Conn. Super. LEXIS 2408 (Conn. Super. Ct. 2005). Another court stated that the legislative purpose of Conn. Gen. Stat. §8-30g is to encourage and facilitate the development of affordable housing throughout the state and, therefore, must be liberally construed in favor of the legislation's intended beneficiaries.  Jordan Props., LLC v. Old Saybrook Zoning Comm’n, 2003 Conn. Super.  LEXIS 3089 (Conn. Super. Ct. 2003).

If the Superior Court misconstrues the law or its scope of review, a party may appeal that decision to the Connecticut Appellate Court.  If you are concerned that courts are misconstruing the legislature’s intent when it enacted Conn. Gen. Stat. 8-30g, you may wish to consider legislation to clarify the statute.

Very truly yours,

RICHARD BLUMENTHAL

¹ A municipal "commission" from which an appeal may be taken is defined as "a zoning commission, planning commission, planning and zoning commission, zoning board of appeals or municipal agency exercising zoning or planning authority." Conn. Gen. Stat. §  8-30g(a)(4).

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