Developments in Connecticut Zoning Case Law from 1996 Through 1997
| Publication year | 2021 |
| Pages | 331 |
72 CBJ 331. Developments in Connecticut Zoning Case Law From 1996 through 1997
This article reviews selected planning and zoning decisions from Connecticut's appellate courts during 1996 and 1997. The article has fifteen sections set out to correspond to the last survey of zoning law published here in 1996. For the most part, the reviewed decisions logically follow and build upon the traditional body of land use law, addressing new variations on old themes. However, the few decisions that do depart from established precedent may be more important because of their result than their future impact. In fact, those cases may be more oriented to produce a particular fact based result than to add to our body of land use law. As practitioners, those seemingly conflicting decisions can be used to argue virtually any side of an issue; and result-oriented decision-making may in fact produce equitable. results. However, as guardians of the land use jurisprudence, we should remain mindful that consistency in our case law may be more important to sound long-term legal land use policy than the result in a particular case.
Only a few cases involving subdivisions were decided by Connecticut's appellate courts during 1996 and 1997. In the main, those, decisions affirmed existing case law; but they also touched upon some nuances previously unaddressed.
In Samperi v. Planning & Zoning Commission, (fn1) the Planning and Zoning Commission of West Haven approved a sixty-one-lot subdivision on 19.3 acres located within the R-3 zone. The local zoning regulations provided that the minimum lot size in the R-3 residential district was 6000 square feet, and required that each lot have a minimum of fifty feet of street frontage. The applicant complied with those requirements. However, the subdivision regulations had a separate mandate that required the lot size in any subdivision be at
least 12,000 square feet with 100 feet of street frontage, with the effect there could be no subdivisions that did not exceed the obstensibly allowable minimum zoning requirements. Only four of the proposed lots met both of these subdivision requirements. Not surprisingly, the Appellate Court affirmed the trial court's decision which determined that the commission had no authority to approve the subdivision application without a waiver because it did not conform to the subdivision requirements. (fn2)
The Sampeyi decision also addressed several new issues. First, the Appellate Court concluded that, even though the more restrictive subdivision regulations were amended to conform to the less restrictive zoning regulations after the commission's decision but before the trial court's decision, it had no impact on the outcome. The appeal by abutting neighbors was not rendered moot by the subsequent amendment of the subdivision regulations. (fn3) Second, the Court rejected the argument that under Cyistofaro v. Burlington, (fn4) the more restrictive subdivision regulations were necessarily invalid. Here, the Court distinguished the result from Oistofaro because the applicant did not first challenge the subdivision regulation by way of a declaratory judgment action, but instead sought approval of its application under the very regulations it sought to invalidate on appeal. (fn5) In addition, the Court concluded that the trial court was not required to remand the case back to the commission for further proceedings, since no proper purpose would be served; (fn6) and the trial court did not abuse its discretion by excluding the testimony of the city planner at trial because the trial court made a finding that the witness had "ample opportunity" to offer his testimony at the public hearing. (fn7)
In Wight v. Southington, (fn8) the Appellate Court dealt with multiple votes by the planning and zoning commission. Although framed as a civil rights action pursuant to 42 U.S.C.
§ 1983, both the Superior and Appellate Court dealt with the issue of multiple and conflicting votes in order to determine whether the applicants had a constitutionally protected right to the approval of their subdivision application. The commission initially voted to approve the application following the public hearing in September, 1991; but thereafter, and before notice of the approval was published, the commission voted to reconsider the application on October 1, 1991, because a commission member was concerned about the size of a proposed cul-de-sac. After considering the matter at subsequent meetings, the commission voted to deny the application by a vote of four to three. Relying on its recent decision in Sharp v. Zoning Board of Appeals, (fn9) the Appellate Court held that until a decision on a subdivision is published, it is not final. (fn10) Therefore, the commission is free to reconsider an earlier vote and, in fact, change its decision until a decision is published.
Two other cases, although discussed elsewhere in this article, deserve mention here as subdivision cases. First, in Bombero v. Planning & Zoning Commission, (fn11) the Appellate Court held that the owner of land affected by the adoption of a new subdivision regulation had standing to bring a declaratory judgment action even though the complaint may not have properly pleaded aggrievement, since the commission failed to raise the issue before trial, the trial was conducted as though the allegation were pleaded, and the commission suffered no prejudice. (fn12) The fact that the Supreme Court had previously dismissed Bombero's appeal of the enactment of the new regulation, noting that he should have brought a declaratory judgment action, probably helped cure his pleading deficiency. (fn13) Second, in Irwin v. Planning and Zoning Commission, (fn14) although treated primarily as a special permit case, the Appellate Court reversed the denial of a sub
division application, finding that the commission's reasons were extremely vague, nebulous and imprecise. However, the Supreme Court reversed, holding that the record adequately supported the commission's decision to deny the special exception. (fn15) (The subdivision created two interior lots in order to avoid crossing wetlands, and interior lots are permitted only by special exception.)
As noted in the last survey published here concerning land use decisions, the strict limitations on agency discretion when dealing with special permits were greatly relaxed, if not abrogated, in two recent Appellate Court decisions, one of which was affirmed by a per curiam Supreme Court decision. (fn16) More recently, the courts are still wrestling with the effect of Whisper Wind Development Corp. v. Planning & Zoning Commission; and in some cases attempt to explain it away. Unfortunately, we are left with a body of case law that is at best confusing and, at worst, a potpourri of conflicting decisions from which trial courts can choose to support almost any result. Moreover, local commissions and property owners are left with little guidance as to the proper application of special permit standards.
For example, in Irwin v. Planning and Zoning Commission, (fn17) Chief judge Dupont, who wrote a compelling dissent in Whisper Wind, authored a unanimous Appellate Court decision which reversed the trial court and held that the local planning and zoning commission did not have the right to deny a special exception to permit the development of two interior lots. Although the commission explicitly articulated several reasons for denying the requested special permit, each based upon provisions in its regulations, the Appellate Court rejected them. (fn18) In Irwin, the Appellate Court retreated from its prior rulings in Connecticut Health Facilities Inc. v. Zoning Board of Appeals (fn19) and Misper Wind, each of which held that regulations could be general in nature and a reviewing agency can exercise discretion when determining whether those standards have been satisfied. The Appellate Court distinguished Whisper Wind and remanded the case with instructions that the trial court order the zoning commission to grant the requested special exception. (fn20)
Upon the granting of certification, the Supreme Court reversed the judgment of the Appellate Court. (fn21) In its decision, the Supreme Court observed that the special permit process can be discretionary and that general considerations enumerated in the zoning regulations may be the basis for the denial of a special permit. (fn22) Exercising a bit of logical slight of hand, the Court stated that, although a zoning commission lacks the discretion to deny a special permit when the proposed plan satisfies the special permit regulations, it does have discretion to determine whether a given proposal meets the standards in the regulations. (fn23) Query whether a board has as much discretion as when acting in a legislative capacity. In Irwin, the Court concluded that the record adequately supported the zoning commission's decision denying the special exception application due to noncompliance with the special exception regulations. (fn24)
In CRRA v. Planning & Zoning Commission, (fn25) the Appellate Court relied upon Whisper Wind for the traditional proposition that the zoning commission has no discretion to deny the special exception if the regulations are satisfied. In CRRA the commission had approved a special permit for a solid waste transfer station and leaf-composting facility in Torrington. On appeal, the trial court determined that the facility was located on an impermissible "flag lot" and sustained the appeal. The Appellate Court, however, reversed the trial court, finding that the flag lot restrictions were applicable
only in residential zones...
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