From Mark Branse, Esq., Halloran & Sage Municipal Law Group
The Superior Court decision in International Investors v. Fairfield Planning & Zoning Commission of Town of Fairfield, FBT CV-18-6074152 (2019), caused quite a stir when it was first published because it held that time limits on special permits (or special exceptions, which are legally the same) are unlawful and unenforceable. Many towns grant special permits for a period of years, especially for uses that are essentially temporary, like gravel pits or public events. Some towns limit special permits to a term of years so that they may become comfortable that the proposed use will operate as intended. Other towns set time limits within which approvals must be used or they expire so that they don’t get “stale.” The Superior Court decision would have made such provisions illegal on the ground that special permits “run with the land.” However, the Appellate Court overruled the Superior Court and upheld such regulatory provisions in a decision released pre-publication on February 10, 2021.
The case involved a development (Fairfield Commons) that received a special permit from the Fairfield Town Plan and Zoning Commission. Under Fairfield’s zoning regulations in effect at the time of the initial approval, the development had to be completed within two years (absent extensions), or else the special permit was void. The developer obtained extensions of time from the Commission, but the most recent one was challenged by an abutter, the plaintiff. The Superior Court (Radcliffe, J.) held that the extension was unnecessary because the regulation under which the special permit would have expired was unauthorized by Statute. The Court reasoned that since special permits (like other zoning approvals) “run with the land” (that is, are assignable to a new owner), local regulations cannot terminate them and they must be perpetual. In reaching its conclusion, the Superior Court relied on the treatise published by Robert Fuller, Land Use Law and Practice (4th Ed. 2015), which opined that time limits on special permits were not authorized by Statute.
The Appellate Court disagreed, holding that since Conn. Gen. Stat. §8-2(a) allows zoning regulations to authorize special permits which may be granted subject to “conditions necessary to protect the public health, safety, convenience, and property values,” time limits on special permits could be “conditions” of such approvals. The Court held,
We construe the language of § 8-2 (a) providing that special permits may be approved subject to ‘ ‘conditions necessary to protect the public health, safety, convenience and property values’’ as authorizing a zoning authority to condition, by regulatory fiat, its approval of a special permit on the completion of development related to the permitted use within a set time frame. We note that ‘‘[t]he basic rationale for the special permit [is]…that while certain [specially permitted] land uses may be generally compatible with the uses permitted as of right in particular zoning districts, their nature is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site.’’ (Internal quotation marks omitted.) St. Joseph’s High School, Inc. v. Planning & Zoning Commission, 176 Conn. App. 570, 586, 170 A.3d 73 (2017). The approval of a special permit on the condition that development attendant to the permitted use is finished by a date certain prevents the permit holder from unduly delaying the commencement of the permitted use to a time when the surrounding circumstances may no longer support it. [1]
The Court went on to offer, as an example, the approval of a crematorium by a local zoning commission because there is a need for such a facility in the town. “The individual [special permit holder] elects to wait thirty years before constructing the crematorium. In the interim . . . two other crematoriums may have been built and are in operation… [A] crematorium…might have been welcomed thirty years prior when no other similar uses existed within the municipality, [but] the lapse of time has diminished the need for such a use.” Id. The Court went on to hold that time limits on special permits still allow them to “run with the land,” just for a period of years and not in perpetuity. The Appellate Court extensively reviewed and expressly rejected the opinion to the contrary in the Fuller treatise.
This is good news for local zoning commissions because, in fact, a special permit that is appropriate for a given location at one point in time may not be appropriate years later. It will also be interesting to see if any future cases distinguish between time limits to commence work and time limits for a use that has already begun operation. We’ll keep an eye out for a petition for certification to the Supreme Court. We hope that you find this client bulletin to be helpful.
[1] There are no page numbers for these quotes because the pre-publication version of the decision doesn’t have page numbers.