81 CBJ 139. 2006 CONNECTICUT REAL PROPERTY LAW DEVELOPMENTS.

AuthorBY EDWARD V. O'HANLAN*

Connecticut Bar Journal

Volume 81.

81 CBJ 139.

2006 CONNECTICUT REAL PROPERTY LAW DEVELOPMENTS

CONNECTICUT BAR JOURNALVolume 81, No. 2June 20072006 CONNECTICUT REAL PROPERTY LAW DEVELOPMENTSBY EDWARD V. O'HANLAN*I. INTRODUCTION

This article highlights the 2006 decisions from the Connecticut Supreme Court ("Supreme Court") and Connecticut Appellate Court ("Appellate Court") in the area of real property law. "Real property law" includes matters concerning eminent domain, zoning, conveyances, wetlands and other environmental issues, easements, common interest ownership, real estate brokers, leasing, adverse possession, real property liens, and sovereign immunity. Where the author has discerned a "trend," new development or important land use practice pointer, the article notes that fact. However, given the breadth of topics discussed, an in-depth analysis or discussion of every case is beyond the scope of this article. Further, this article could not reach the many more decisions of the Superior Court, essentially the "first responder" authority on real property issues, that are issued but not published.

  1. SIGNIFICANT APPELLATE DECISIONS

    The significant decisions are as follows:

    1. Eminent Domain

      In 2006, the Supreme Court dealt with fewer issues of eminent domain than in past years, principally refining the law regarding valuation. In Albahary v. City of Bristol,(fn1) the Supreme Court upheld the Appellate Court's conclusion that it was appropriate to include a property's pre-taking environmental injury in the valuation of the taking. In Commissionerof Transportation v. Rocky Mountain LLC,(fn2) the Supreme

      140Court upheld the trial court's valuation of an easement for commercial billboards. Specifically, it held that the billboards constitute personal property, which is not subject to condemnation. The Court also held that future billboard business income, while a factor in valuing the easement itself, is not separately compensable.(fn3)

      The Supreme Court heard one case involving economic development agencies, Maritime Ventures LLC v. City of Norwalk.(fn4) The Supreme Court affirmed the Appellate Court's and trial court's decisions that a redevelopment agency has no duty to integrate non-substandard properties into its redevelopment plan when the plan already does not permit the uses exercised by that property.(fn5) The Court further held that the redevelopment agency, in amending its development plan, as distinct from adopting a new plan, is not required to make a new finding of blight.(fn6)

      In Farina v. Modzelewski,(fn7) the Appellate Court affirmed the trial court's decision that a taking by the State was more akin to a partial sale because it was not disputed that the parties were left with the same parcel of real property, and that only rights of access to one particular street had been affected. In City of Norwich v. Styx Investors in Norwich, LLC,(fn8) the Appellate Court remanded the judge trial referee's damages award of $20,000 because the judge refused to consider the assemblage theory that the condemndee had advanced. The judge trial referee refused to consider that theory after concluding that there was no evidence of any real effort to assemble adjoining lots.(fn9) However, the Appellate Court held that, even if the trial court were correct, proof that assemblage would be undertaken is not required; rather, upon a finding that "it was likely" assemblage would occur, the trial court could assess the highest and best use of separate parcels.(fn10)

      141B. Zoning

      Zoning law again provided the bulk of real property cases that the Supreme Court and Appellate Court heard in 2006. This is remarkable in light of the fact that most of these cases did not reach the appellate level as of right, but by certification. Further, of the eighteen cases mentioned here, many were transferred to the Supreme Court pursuant to Practice Book Chapter 65.(fn11) These cases cross a broad spectrum of issues, and do not lend themselves to categorization. Nevertheless, it appears that zoning law in Connecticut will continue to be scrutinized and refined on appeal in years to come.

      In Jalowiec Realty Associates v. Planning & Zoning Commission,(fn12) the Supreme Court affirmed the appropriateness of the remedy of mandamus for a zoning commission's failure to act within the mandatory statutory time frames in General Statutes Section 8-7d(fn13) for decision on zoning applications. However, see the discussion, infra, of an Appellate Court decision regarding application of these time frames.(fn14)

      In City of Bridgeport v. Planning & Zoning Commission,(fn15) the Supreme Court ruled that the notice requirement under General Statutes Section 8-3(b)(fn16) for zone change applications is both jurisdictional and requires strict compliance. Adopting the reasoning of two earlier Appellate Court cases,(fn17) the Supreme Court found that a notice's reference to maps on file in other town hall offices did not constitute sufficient notice, and sustained the appeal.(fn18)

      In Fedus v. Planning & Zoning Commission,(fn19) the

      142Supreme Court reviewed the history of its 1987 Simko(fn20) decision and the subsequent amendment of General Statutes Section 8-8(b),(fn21) and reversed the dismissal of an appeal that failed to name the municipal clerk in the citation, even though the municipal clerk was served.(fn22) Then, in a subsequent decision, Vitale v. Zoning Board of Appeals,(fn23) the Supreme Court explained Fedus in reaffirming the principle that zoning appeals are creatures of statute and that service of process requirements must be strictly observed. In Vitale, the Supreme Court held that service of process for appeal from a municipal zoning board on July 15, 2003 was governed by General Statutes Section 8-8(f)(1),(fn24) which required service on the chairman and clerk of the defendant board, and not by General Statutes Section 52-57(b)(5)(fn25) which applies to appeals taken after October 1, 2004.(fn26) The plaintiff in Vitale had served only the town clerk.(fn27)

      In Moutinho v. Planning & Zoning Commission,(fn28) the Supreme Court addressed statutory and classical aggrievement. First, it reiterated earlier holdings that the owner of a property that is the subject of the application, even if he is not a party to the application, can nevertheless claim to be statutorily aggrieved.(fn29) Second, the Supreme Court adopted the reasoning of a 1991 Appellate Court decision(fn30) holding that, when the evidence clearly establishes the existence of an oral agreement and the intent of the parties to abide by that agreement, "a substantial and legitimate interest" in the property exists so as to meet the first prong of the test for classical aggrievement.(fn31) The Supreme Court rejected the idea that the

      143 contract at issue, even though violative of the statute of frauds, could not serve to establish aggrievement as a matter of law.(fn32)

      In Campion v. Board of Alderman,(fn33) the Supreme Court reversed the Appellate Court and expressly found that planned developed districts, like floating zones, are among the legitimate zoning choices the City of New Haven may exercise pursuant to its 1925 Special Act. In Graff v. ZoningBoard of Appeals,(fn34) the Supreme Court addressed the theory of implicit accessory uses, in holding that pets may be regulated as an accessory use on residential property. The Supreme Court held that the ZBA's decision that owning more than four dogs was not a permissible accessory use was a clarification of, not a substantive change in, the zoning regulation,(fn35) and that the zoning regulation regarding accessory uses was not unconstitutionally vague for not addressing pets specifically.(fn36)

      In Clifford v. Planning & Zoning Commission,(fn37) the Supreme Court reversed the trial court and remanded the case for further proceeding based upon the trial court's denial both of a motion to add information to the return of record and, subsequently, of a motion to introduce evidence in addition to the contents of the record. Justice Borden, writing after reconsideration en banc, found it significant that, while the Zoning Commission was not required to hold a public hearing on the matter, its decision not to hold a public hearing nevertheless precluded the plaintiff from offering information in any context until the two motions that the Superior Court denied.(fn38) The decision contains a discussion helpful for the practitioner of the standard whether evidence outside the record was "necessary for equitable disposition of the appeal,"(fn39) as required by General Statutes Section

      144 8-8(k)(2),(fn40) and of the analysis of an implicit "accessory use," under the liberal standard when the zoning commission has not stated on the record a basis for its determination.(fn41) This aspect of the decision directly referenced the Supreme Court's earlier discussion of "accessory use" in Graff v. Zoning Board of Appeals.(fn42)

      The Supreme Court considered the distinction between the administrative and legislative functions of a zoning board in the context of a local regulation requiring special exception permit appeals to go first to the zoning board of appeals in Jewett City Savings Bank v. Town of Franklin.(fn43) On behalf of the Court, Justice Zarella stated that, while special exception review requires the exercise of discretion as to whether the standards set forth in local zoning regulations have been met, such review is nevertheless...

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