Developments in Connecticut Zoning Case Law from 1992 Through 1995
| Publication year | 2021 |
| Pages | 37 |
70 CBJ 37. Developments in Connecticut Zoning Case Law From 1992 through 1995
This article reviews selected planning and zoning decisions from Connecticut's appellate courts from 1992 through 1995. The article has fourteen sections ranging from traditional zoning topics such as special permits, (fn1) subdivisions, zoning enforcement, nonconforming uses and site plans to the more recent practice areas concerning affordable housing, takings and the interplay of environmental law with zoning. It has been several years since the Connecticut Bar journal annual law survey has included an article on zoning law. The courts have handed down a number of significant zoning decisions during that period. Thus, this four- year summary should be particularly helpful to all land use practitioners.
Subdivisions, one of the traditional areas of land use practice, again proved to be fertile ground for judicial intervention, producing a number of new appellate level decisions.
The courts continued to wrestle with issues relating to the limits of agency authority when acting on subdivisions. On the one hand, the Supreme Court expanded the permissible boundaries within which planning agencies can act. Specifically, the Court approved a Greenwich subdivision regulation which allowed consideration of historical factors when determining whether to grant or deny an application to subdivide property located in a historic district. (fn2) The Court concluded:
because the phrase "public health and safety" includes environmental factors, it includes historical factors. The commission, therefore, had the authority to promulgate subdivision regulations that take into account historical factors. (fn3)
On the other hand, in Dimopoulos v. Planning & Zoning Commission, (fn4) the Court strictly interpreted a Southington regulation requiring a fifty-foot right-of-way for public streets. In that case, both the trial court and the local agency found the requirement was satisfied where the town would have an easement over a section of the fifty-foot area but the applicant retained ownership of and the right to install a sign on that section of the rightof-way. The Appellate Court disagreed and reversed the subdivision approval.
Moreover, in Gorman Construction Co. v. Planning & Zoning Commission, (fn5) it was held that a subdivision approval could not be conditioned on service by a public water supply pursuant to Avon's subdivision regulations since neither the commission nor the applicant had control over satisfying the condition. The applicant's victory was Pyrrhic, however, since the Court found the invalidated condition an integral part of the approval and remanded to the agency for further proceedings. In contrast, Timber Trails Corporation v. Planning & Zoning Commission (fn6) held that a subdivision approval conditioned upon further state agency approval was valid since there was a reasonable probability that the applicant could comply with the condition within a reasonable time. Furthermore, the Timber Trails case confirmed that a commission can reduce the number of lots requested by the applicant as a "modification" authorized by General Statutes 8-26 if the local regulations provide for such a reduction. (fn7)
In yet another challenge of a commission's power to impose conditions on subdivisions, both the Appellate Court and the Supreme Court found that the Tolland Planning and Zoning Commission exceeded its authority by imposing an off-site improvement condition requiring that a public highway abutting the proposed subdivision be widened. (fn8) The fact that the off-site property was owned by the applicant did not change its status since the parcel was not a part of the subdivision application. (fn9) However, in this case, the validity of the subdivision was not affected even though the condition was invalidated.
Finally, in Gagnon v. Planning Commission,"' the Supreme Court ruled that approval of a resubdivision application rendered an appeal of the original subdivision approval moot.
Despite a large body of established case law addressing subdivisions, the field continues to raise new issues. No doubt, these decisions will prove helpful in dealing with the next crop of subdivision disputes.
After the Supreme Court handed down its 1969 decision in Sheridan v. Planning Board, (fn11) the land use community generally accepted the proposition that administrative agencies had little, if any, discretion when acting in an administrative capacity on special permit applications. However, the strict limitations on agency discretion when dealing with special permits was greatly relaxed, if not abrogated, in two Appellate Court decisions, one of which was followed by apercuriam, Supreme Court affirmance.
First, in Connecticut Health Facilities, Inc. v. Zoning Board (fn12)of Appeals, the Court held that the standards applicable to a special permit application can be general, and the reviewing agency can exercise discretion when determining if those standards have been satisfied. Subsequently, in Whisper Wind Development Corporation v. Planning & Zoning Commission, (fn13) despite a forceful dissent by Chief judge DuPont, the Appellate Court sanctioned special permit standards as broad as those that allow the commission to take into consideration "the general health, safety and welfare." Notwithstanding the invitation for local agencies to adopt regulations making special permit decisions as discretionary as legislative decisions, the Supreme Court merely adopted the "thoughtful and comprehensive majority opinion of the Appellate Court" and affirmed the decision per curiam. (fn14)
Similarly, the Appellate Court looked favorably on broad local regulations that authorize conditions on special permit approvals. The Court ruled in Michel v. Planning & Zoning Commission (fn15) that General Statutes § 8-2 specifically authorizes "conditions necessary to protect the public health, safety, convenience and property values." (fn16) The applicable zoning regulations in Michel sanctioned "appropriate conditions and safeguards " (fn17) for special permits. Accordingly, the Court upheld the imposition of a condition requiring the applicant to install a sidewalk in a zone where the regulations did not require them generally, since the commission was "well within its considerable discretion" to impose the condition. (fn18)
The Courts made clear, however, that each condition imposed on a special permit must be voted on separately; local regulations can explicitly make each condition an integral part of the special permit; and site plans that are approved with special permits become an integral part of the special permit. In Floch v. Planning & Zoning Commission, (fn19) the Court ruled that each condition must be voted on individually; and, because the local regulations made each condition integral to the permit, the invalidation of any condition rendered the entire approval void. Likewise, the Supreme Court held in Barbarino Realty & Development Corp. v. Planning & Zoning Commission (fn20) that any revision to a site plan, subsequent to an earlier approval in conjunction with a special permit, must comply with not only the site plan regulations but also the special permit regulations.
As if to mitigate the effect of its decisions in Connecticut Health and Whisper Wind, the Appellate Court found that local agencies did not have sufficient reason to deny special permit applications in two other cases. In Felsman v. Zoning Commission, (fn21) the Court, consistent with its decisions on general standards, found that "overuse" of a property could justify denial of an application, but the Court found that the record did not support the agency's finding of "overuse" and ruled the application should have been approved. Likewise, in deciding Mobil Oil Corporation v. Zoning Commission, (fn22) the Appellate Court let stand the trial court ruling that there was no basis in the record
to deny the application for a special permit; and it further held that upon remand there should be direction to the administrative agency to approve the application "under such terms and conditions as the commission might reasonably prescribe in accordance with its regulations." (fn23)
On the other hand, the Appellate Court also reiterated the oft-cited zoning rule against substituting a judicial conclusion for an agency determination where there was evidence supporting the decision of the local authority~ In Mobil Oil Corp. v. Zoning Board of Appeals, (fn24) the Court reversed the trial court, finding that it had improperly reweighed the evidence and substituted its opinion for that of the agency.
Finally, the Appellate Court decided in the 1995 case of Bakerville Lumber & Construction Co. v. Planning & Zoning Commission (fn25) that if a renewable special permit expires during the pendency of an appeal, then the appeal is rendered moot.
With increased discretion, both in terms of deciding whether to grant special permits and choosing which conditions to attach, local land use agencies are newly empowered. Hence, the use of special permits is likely to win increased favor with land use agencies throughout Connecticut.
Although site plans can serve as an independent land use tool, they are frequently a part of the special permit process. Local regulations often. require site plan approval concurrent with special permit approval. Whether the site plan approval is independent of the special permit decision is not always clear. The Supreme Court addressed that issue in Barbarino Realty & Development Corp. v. Planning & Zoning Commission. (fn26) In that case, a site plan...
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