Could a Connecticut court consider new evidence in an affordable housing zoning appeal?

Plain-English summary

Two Connecticut senators asked in 2006 how a court reviewed a zoning commission's decision on an affordable housing proposal. Attorney General Richard Blumenthal pointed to a state Supreme Court ruling requiring the court to independently examine the record before the commission to decide whether the commission met its burden. He also cited lower court decisions saying review was confined to that record and that arguments in court briefs were not themselves evidence.

The court's inquiry included whether denying the project was necessary to protect substantial public interests, whether the harm clearly outweighed the need for affordable housing, and whether reasonable changes could protect those interests. The AG said a party could appeal a Superior Court error to the Appellate Court. He suggested legislative clarification if lawmakers believed courts were misreading the statute.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Zoning commissions and housing applicants at the time

The opinion described a review focused on the evidence assembled before the local commission. It said the commission bore the burden of supporting its decision and stated reasons under the affordable housing appeals statute. It did not decide any specific project's merits.

Common questions

Q: Did a court simply defer to a zoning commission that rejected affordable housing?
A: No. The 2006 opinion said the court independently reviewed the commission record to determine whether the commission met the statute's burden.

Q: Could lawyers' court briefs fill a gap in the evidence?
A: The AG cited a Superior Court decision holding that briefs were argument, not evidence, and could not themselves satisfy an evidentiary burden.

Background and statutory framework

Conn. Gen. Stat. §8-30g(g) placed the burden on a municipal commission defending its affordable housing decision. The AG relied on River Bend Associates v. Zoning Commission, 271 Conn. 1, 22 (Conn. 2004), for plenary review of the commission's record. He described later trial court decisions applying that rule to keep review within the local record.

Citations and references

Statute cited in the opinion: Conn. Gen. Stat. §8-30g(g).

Case cited in the opinion: River Bend Associates v. Zoning Commission, 271 Conn. 1, 22 (Conn. 2004).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2006-formal-opinions/honorable-louis-c-deluca-senate-republican-leader-and-honorable-george-gunther-deputy-minority-leade

Original opinion text

Honorable Louis C. DeLuca, Senate Republican Leader, and Honorable George Gunther, Deputy Minority Leader-At-Large, Formal Opinion 2006-006, Attorney General State of Connecticut

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).