64 CBJ 176. REVIEW OF ZONING LAW 1989.

• Author: By JONATHAN S. R. ANDERSON AND RICHARD A. HOGAN

Connecticut Bar Journal

Volume 64.

64 CBJ 176.

REVIEW OF ZONING LAW 1989

REVIEW OF ZONING LAW 1989By JONATHAN S. R. ANDERSON AND RICHARD A. HOGAN(fn*) The year 1989 marked a continuing refinement of the law concerning zoning appeals through both judicial interpretation and the enactment of new legislation.

1. CASE LAW

   1. Aggrievement

      This past year, Connecticut courts decided a number of cases which dealt with the issue of aggrievement for the purpose of establishing appeal rights. In Caltabiano v. Planning and Zoning Commission,(fn1) the plaintiff's neighbor received permission from the Town of Salem to excavate on a portion of the neighbor's land. The trial court originally dismissed the plaintiff's appeal of the town planning board's action after finding that the plaintiff had not established aggrievement, because the approved excavation was located more than 100 feet from the plaintiff's property. Upon review, the Supreme Court analyzed the meaning of the provision in Connecticut General Statutes Section 8-8(a), which affords appeal rights to any person owning property abutting or within a radius of 100 feet of any portion of the land involved in a town planning and zoning commission's decision.(fn2) The Court had to determine whether these words referred to any land within 100 feet of the overall parcel on which the activity was taking place, or whether the words referred to a smaller area within 100 feet of the offending activity. Ultimately choosing the more liberal construction of the statutory language, the Court decided that "the land involved" meant the entire tract, noting that this interpretation would be consistent with the legislature's apparent purpose of eliminating the delay, expense and difficulty in proving classical aggrievement.(fn3)

      177The same issue was raised in Hotchburg v. Zoning Commission,(fn4) where, the plaintiffs appealed from the trial court's judgment dismissing their previous zoning appeal for lack of aggrievement. Following the recent Supreme Court ruling in Caltabiano, the Appellate Court reversed the lower court's decision, finding that Connecticut General Statutes Section 8-8(a) referred to all contiguous land owned by the applicant, rather than the discrete part of the premises containing the activity considered in the decision of the zoning commission. Since the plaintiffs owned property within 100 feet of a boundary of the applicant's parcel, even though the local authority's decision involved only a portion of that land, the Appellate Court ruled that the plaintiffs established statutory aggrievement and the Court allowed the appeal.

   2. Automatic Approval

      In the case of SSM Associates Limited Partnership v. Planning & Zoning Commission,(fn5) the Supreme Court answered an interesting question regarding approval of an application by lapse of time.(fn6) The case involved an application by the plaintiffs to construct an office building on his property. The plaintiffs' application included a proposed site plan together with a special permit request, all in accordance with the relevant local zoning regulations. The commission failed to act on the application within 65 days; and, since the plaintiffs never consented to an extension of the time limitations contained in the general statutes,' they brought suit against the defendant commission upon the expiration of the 65 day period in an effort to compel the town's issuance of a certificate of zoning compliance. In rendering judgment for the plaintiffs, the trial court found that the site plan was an inseparable component of the special permit application, and that the site plan and application must be presumed approved by the defendant planning and zoning commission because of the commission's failure to act within the statutory time constraints. The Appellate Court affirmed, prompting a further appeal to the Supreme Court.

      178Previously, the Connecticut Supreme Court had consistently held that whenever a local land use commission fails to accept or reject a site plan within the time period recited in the statutes, the law requires approval of the site plan application.(fn8) In this case, the commission argued that the applicants were seeking approval of a special permit rather than a site plan, and that the time constraints of Connecticut General Statutes §§ 8-7d and 8-3(g) did not apply because those statutes do not mandate automatic approval of special permit applications. The Court, in a narrowly framed decision, agreed with the lower court's conclusions that, since the site plan was an integral part of the application for the special permit,(fn9) the town's failure to act on the plaintiffs' application triggered automatic approval.

   3. Enforcement of Remedies

      The Appellate Court dealt with the issue of whether a town may enforce its zoning regulations by recording a notice on the land records in Cabinet Realty v. Planning and Zoning Commission.(fn10) This case involved a developer who received site plan approval from the defendant commission to develop a condominium project in phases. Under the terms of the approval, no further action from the commission would be needed so long as construction proceeded in accordance with the approved site plan.(fn11)

      The developer completed the first phase of the project and the town zoning enforcement officer promptly issued certificates of zoning compliance. After building began on the second phase, however, members of the planning and zoning commission conducted a field inspection. Finding variations between the actual unit construction in the later phase and the approved site plan, the commission prepared and recorded a notice on the land records reciting the commission's conclusions that the newly built units did not conform to the site plan and therefore were not in compliance with the local zoning regulations.

      The developer brought suit, but the trial court ruled in favor of the commission, refusing to find that the filing of the notice

      179constituted either tortious interference with business relations, unjust taking without compensation, or slander of title. An appeal followed, but the Appellate Court also upheld the town's right to record the notice of noncompliance, basing the decision on the provisions of Connecticut General Statutes § 8-12, which sets forth the procedures to be used by a local authority when it discovers a violation of its planning and zoning regulations. Citing a well known treatise on Connecticut land use law, (fn12) the Court stated that recording documents on the land records has been recognized as a means of enforcing a municipality's zoning regulations.(fn13) Section 8-12 authorizes the use of legal proceedings to prevent the occupancy of structures, as well as "other remedies" to correct or abate violations. Giving the statutory language its plain meaning, the Court held that placing a notice of noncompliance on the land records was a legitimate remedy and enforcement mechanism, .,useful as a means of alerting prospective purchasers (and lenders) to zoning problems affecting the property.

   4. Appeal Procedures

      A number of cases reported during 1989 dealt with issues related to the Simko decisions.(fn14) In Fong v. Planning and Zoning Board of Appeals, (fn15) the plaintiff applied for and obtained a variance to add a second story to his commercial building. The plaintiff failed to comply with the...