Ensign-Bickford Realty Corp. v. Zoning Commission
715 A.2d 701, 1998 Conn. LEXIS 233, 245 Conn. 257 (1998)
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Rule of Law:
Appeals from Superior Court judgments in affordable housing land use cases under General Statutes § 8-30g are not appealable by right. Such appeals are subject to the discretionary certification requirement applicable to general zoning appeals as set forth in General Statutes § 8-8(o).
Facts:
- Ensign-Bickford Realty Corporation owned 138.75 acres of undeveloped land in Simsbury, Connecticut, which was zoned for general industrial use.
- Ensign-Bickford applied to the Zoning Commission of the Town of Simsbury to amend the zoning map to re-designate its land for residential use.
- The application was accompanied by a conceptual site plan for a 115-unit single-family residential subdivision.
- The plan proposed that 23 of the 115 residences (20%) would be set aside as 'affordable housing units' pursuant to state statute.
- After a public hearing, the Zoning Commission denied the application, concluding that the need to preserve public safety, health, and welfare outweighed the need for affordable housing at that location.
Procedural Posture:
- Ensign-Bickford Realty Corporation appealed the Zoning Commission's denial of its application to the Superior Court (trial court).
- The Superior Court affirmed the Zoning Commission's decision.
- Ensign-Bickford simultaneously filed a direct appeal to the Appellate Court and petitioned the same court for certification to appeal.
- The Appellate Court denied the petition for certification.
- The Zoning Commission then moved to dismiss Ensign-Bickford's direct appeal for lack of subject matter jurisdiction.
- The Appellate Court, sitting en banc, granted the motion and dismissed the direct appeal.
- Ensign-Bickford successfully petitioned the Connecticut Supreme Court for certification to appeal the dismissal.
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Issue:
Is an appeal from a Superior Court judgment on an affordable housing land use application under General Statutes § 8-30g subject to the certification requirements for general zoning appeals found in General Statutes § 8-8(o)?
Opinions:
Majority - Callahan, C. J.
Yes. An appeal from a Superior Court judgment concerning an affordable housing land use application under § 8-30g is subject to the certification requirements of § 8-8(o). The affordable housing statute, § 8-30g(b), expressly provides that appeals shall proceed 'in conformance with the provisions of... section[] 8-8,' except as 'otherwise provided' in § 8-30g itself. Because § 8-30g does not create an explicit exception to the certification requirement found in § 8-8(o), that requirement applies. The court's reasoning is based on several points: (1) Statutory Text: The plain language of § 8-30g incorporates § 8-8, and canons of construction require exceptions to be stated expressly and construed narrowly. (2) Legislative History: The commission that proposed the affordable housing law recommended that appellate review 'be by certiorari, as under existing law,' and language to that effect was removed from the bill only because it was considered redundant. (3) Statutory Purpose: While a direct appeal might aid developers in some cases, it could also allow commissions to delay approved projects, so the certification process strikes a proper balance. (4) Statutory Scheme: The failure to list § 8-30g as an exception in the general appellate jurisdiction statute (§ 51-197b) is not dispositive, as § 8-30g achieves this result by incorporating § 8-8 by reference.
Analysis:
This decision harmonizes the appellate procedure for affordable housing cases with the general framework for all other zoning appeals in Connecticut. By rejecting the argument for a special, more permissive appellate track, the court affirmed that the legislative intent was to modify the substantive standards of review for affordable housing, not to create a separate procedural system. This ruling solidifies the Appellate Court's gatekeeping role in all land use matters, requiring any party appealing from a Superior Court decision—whether a developer or a municipality—to first demonstrate that the appeal presents a significant issue worthy of further review. The decision prevents an automatic second layer of appeal, thereby promoting judicial efficiency and finality in land use disputes.
