Zoning 1990
| Pages | 151 |
| Publication year | 2021 |
65 CBJ 151. Zoning 1990
The year 1990 saw a number of cases examining the powers of municipal land use commissions, not only as distinct governing bodies, but in relation to other regulatory authorities as well as to the courts. There were also judicial interpretations of both land use statutes and municipal ordinances.
A. Changing Roles
Zoning commission members can rely on their own personal knowledge of traffic patterns and real estate development requirements when making a decision concerning a zone change, according to the court in Dram Associates v. Planning and Zoning Commission of the Town of Cromwell; (fn1) and as long as there is ample evidence to support the decision, a procedural error occurring during the hearing is harmless when the information provided at the time of the error is not used in the decision making process.
In Dram, (fn2) owners of some land had agreed to sell the land for the construction of a mall. After the agreement was executed but before the site plan was filed, the zoning commission held a public hearing concerning a proposed comprehensive zoning change which, among other things, considered changing the permitted use of the owner's land to planned office development. A principal of the owner appeared at an initial hearing and spoke against the change. At the owner's request, the commission held a second hearing about a month later at which the owner's attorney presented the owner's position, complete with witnesses and supporting documents. A member of the public also spoke in favor of the change, but the owner's attorney was not permitted to question her.
After the commission adopted the new zoning regulations, the owner appealed to the trial court. The trial court sustained the
appeal, finding that the record was inadequate to support the commission's decision, and that the commission's denial of the ability to cross examine was arbitrary and capricious.
The Appellate Court disagreed. The Court first examined the records of the public meetings, reviewing the commission's reasons for approving the zone change, and finding that these reasons were based on a report by a subcommittee charged with making rezoning recommendations. In a discussion about the report, the town planner had explained how the zone change would benefit neighboring communities by promoting office development while at the same time minimizing traffic by concentrating it in an area near a highway. The Superior Court decided that commission members lacked the expertise necessary to determine either the impact of development on traffic, or the value of available office development to areas nearby. This last ruling, the Appellate Court said, contradicted the holding in Central Bank for Savings v. Planning & Zoning, (fn3) wherein the Appellate Court had previously decided that lay commission members may rely on their personal knowledge about traffic patterns and development needs when making zone changes. Once the members' knowledge and observations are considered part of the record, there is sufficient evidence on the record to support the commission's decision. (fn4)
In addressing the claim that the commission erred in refusing to allow the owner's legal representative to cross-examine someone who had spoken favorably about the zone change, the Appellate Court agreed that, when holding a public hearing, a municipal commission must observe procedural safeguards. The Appellate Court said, however, that even when an error is committed because a party is not given the opportunity to cross-examine a witness, if that witness' testimony is not used by the commission in its decision, the error is harmless. (fn5)
The power of a municipality to question the effect of development on traffic and property values was tested again, with different results, in TLC Development, Inc. v. Planning and Zoning Commission of the Town of Branford. (fn6) That case began when the plaintiff, who held an option to purchase a large tract
of unimproved land abutting Route 1 in Branford, applied to Planning and Zoning for approval of a site plan as part of its proposal to build a large shopping center. The area was zoned as a local business district, allowing the use contemplated by the plaintiff upon site plan approval. After holding a public hearing on the matter, however, the commission denied the plaintiff's application, citing concerns about increased traffic.
The plaintiff appealed the commission's decision to the trial court, which sustained the appeal on the grounds that the commission lacked the authority to raise traffic issues when considering the site plan application. The commission appealed and the Supreme Court transferred the case to itself.
In affirming the trial court's decision, the Court cited Connecticut General Statutes Section 8-3(g) (fn7) as authority for a town's requiring a site plan in connection with a proposed development. The plan approval insures that the specifics of the proposal conform to the local regulations. The Court noted that the commission had the power to demand modifications of the site plan to assure the accomplishment of certain objectives, including public safety and traffic flow; but the Court distinguished the town's ability to modify with the inability to deny the site plan when the plan is for an allowable use within a specified zone. Finding that the proposed use was already fully permitted in the area under the town's zoning regulations, the Court held that the town's designation of the use as permitted established a conclusive presumption that such a use did not adversely affect the surrounding area, and precluded further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district. Therefore, offsite traffic concerns could not serve as a proper basis for the commission's denial of the site plan. (fn8)
Language reconciling Dram with TLC may be found in the case of Sowin Associates v. Planning and Zoning Commission of the Town of South Windsor. (fn9) There, the factual situation was
similar but not identical to the one in TLC, with the plaintiff applying for approval of a proposed subdivision in an area zoned for residential use. At the hearing on the application, members of the public voiced opposition to the proposal on the grounds that the new subdivision would cause traffic congestion. Citing problems generated by increased traffic as the basis for its decision, the commission denied the application, and the plaintiff appealed. The trial court sustained the appeal, ruling that because the subdivision plan conformed to all of the town commission's regulations the record did not support the decision. The commission appealed.
Relying on the Supreme Court's ruling in TLC, the Appellate Court affirmed the lower court decision. In its opinion, the Appellate Court found that when a municipal planning commission considers a plan for subdivision in a residential zone, the commission is acting in an administrative rather than a legislative capacity. While the commission is empowered to use broad discretion and is authorized to utilize personal knowledge and observation when doing something in its legislative capacity, (such as considering a zone change), when acting in its administrative role, the scope of the local agency's authority is limited to determining whether the proposal complies with the town's regulations. (fn10)
B. Confiscation - Compensation
The town's ability to restrict a landowner's use of property could, in some cases, constitute a taking of that property, giving rise to a claim for compensation. In Gil v. Inland Wetlands and Watercourses Agency of the Town of Greenwich, (fn11) the plaintiff owned a legally nonconforming lot, ninety percent of which contained inland wetland soils. After...
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