Curry v. Planning and Zoning Commission of Town of Guilford

• Decision Date: 10 January 1977
• Docket Number: No. 100687,100687
• Citation: 376 A.2d 79,34 Conn.Supp. 52
• Court: Connecticut Court of Common Pleas
• Parties: George CURRY et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF GUILFORD.

Page 79

376 A.2d 79

34 Conn.Supp. 52

George CURRY et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF GUILFORD.

No. 100687.

Court of Common Pleas of Connecticut, New Haven County.

Jan. 10, 1977.

Syllabus by the Court

The plaintiffs, who challenged on constitutional grounds the open space amendment to the Guilford town plan of development adopted by the defendant planning and zoning commission, failed to sustain their burden of proving the claimed unconstitutionality beyond a reasonable doubt.

The statute (§ 12-504a) which provides for a ten-year decrease in the conveyance tax imposed on sales of property classified as open space land does not violate the equal protection clause of the fourteenth amendment to the United States constitution since the decrease is rationally related to the legislative goal of preserving open land and since § 12-504a treats alike all persons who have owned their land for the same amount of time.

The statute (§ 12-107e) which allows a planning commission, as part of its plan of development, to designate areas for preservation as open space land is not void for vagueness since, before so designating any land, the commission must find that it meets certain statutory (§ 12-107b(c)) criteria, and since the commission must follow statutory (§ 8-23) procedures for adopting a plan of development.

The open space amendment adopted by the defendant commission did not constitute a taking of property without just compensation as claimed by the plaintiffs since they were not prevented from using their land and since there was no evidence that the amendment had destroyed the value of their land.

Lattanzi, Vishno & Levine, New Haven, for the plaintiffs.

Dudley & Cox, Guilford, for the defendant.

JACOBS, Judge.

On September 15, 1975, the planning and zoning commission of the town of Guilford (hereinafter referred to as the commission), acting under the provisions of § 8-23 of the General Statutes, adopted an amendment ¹ to its comprehensive plan of development, effective September 30, 1975. The plaintiffs allege that they are aggrieved by the open space amendment for the reasons that (1) section 12-107e of the General Statutes is vague and therefore violative of the state and federal constitutions; (2) the open space amendment violates the equal protection clause "in that it confers a benefit on some to the detriment of other property owners . . . without legislative reason"; (3) the amendment constitutes spot zoning; (4) the commission exceeded its authority in passing the amendment because it is not "within the letter and/or spirit of . . . (§ 12-107e) . . . "; (5) the amendment as applied will effect a taking of property without just compensation . . .; "(6) . . . the amendment will prevent land from being properly developed and will relieve some property owners from a tax burden which is justifiably theirs at the expense of other taxpayers; (7) . . . the amendment gives the (c)ommission de facto power to assess taxes and therefore constitutes a usurpation of the taxing power; and (8) (t)he amendment further curtails the equal protection clause of the federal constitution in that it arbitrarily provides greater benefits to those who have owned property for a longer period of time than others." The complaint further alleges that the "(c)ommission acted illegally, arbitrarily and in abuse of the discretion vested in it." In their prayer for relief, the plaintiffs ask this court to declare the amendment null and void.

The court deems it unnecessary to discuss paragraph three (spot zoning), paragraph six (proper development of land) and paragraph seven (de facto power to assess taxes) for the reason that the plaintiffs' brief does not address itself to those issues.

Connecticut was neither the first nor the only state to pass open space laws which provide tax relief to certain qualified property owners. Note, "Preferential Property Tax Treatment of Farmland and Open Space under Michigan Law," 8 U.Mich.J.L.Ref. 428, 429 n. 6 (hereinafter referred to as Note, J.L.Ref.); Hagman, "Open Space Planning and Property Taxation Some Suggestions," 1964 Wisc.L.R. 628, 636 n. 30 (hereinafter referred to as Hagman). "The premise for all open-space legislation is that much undeveloped land in and around an expanding metropolis is an increasingly valuable asset. Open areas should be preserved for a variety of purposes, economic and otherwise some only vaguely articulated thus far: to 'shape' or 'time' urban growth and thus prevent development from spreading at all, or too fast, into areas where it will produce high public cost for community services or hasty, ill-planned sprawl today which will be blight tomorrow; to preserve nature and natural amenities; to relieve urban congestion and create more cohesive suburban communities; to reserve large accessible areas for outdoor recreation and neighborhood playgrounds and parks; to preserve sites of historic or scientific importance; to conserve wildlife habitats, water supply areas, valuable forests, and agricultural land; to minimize water runoff, soil erosion, and flood damage in critical areas; to protect health against the hazards of inadequate waste disposal; and to reserve adequate land for the development of facilities, public or private, that careful estimates suggest will be needed in the future." Krasnowiecki & Paul, "The Preservation of Open Space in Metropolitan Areas," 110 U.Pa.L.Rev. 179, 180-81. ² "Open land taxation motivated by the land use planning desideratum maintaining open space and preventing sprawl has a relatively recent discoverable history. There are no antecedents in England, where assessment is based on the income produced and not on market value. Under such circumstances, land which is not intensively used produces little income and hence is not highly taxed. . . . Suggestions for open land taxation schemes having a resemblance to current open land taxation statutes date back to 1926 in the United States. The resemblance is due to a similarity in motivation, namely, the achievement of land use planning goals." Hagman, op. cit., 634.

Basically, General Statutes §§ 12-107a, 12-107e and 12-504a allow a preferential assessment, that is, they permit an assessor to disregard the market value of the land and compute the tax on its use value. Those statutes also "provide for deferred taxation by charging a lower-than-normal rate while land is used in an approved manner and recapturing all or part of the reduction when the land is converted to another use." Note, J.L.Ref. 431; see also §§ 12-504a, 12-504b and 12-504e. The theory underlying those enactments is that lower taxes will prevent the sale and conversion of the land to more intensive use. Note, J.L.Ref. 429.

The plaintiffs and the citizens of the town of Guilford are obviously divided on the issue of their open space amendment and the tax preference it entails. "(T)axation is an intensely practical matter." State Tax Commission v. Gales, 222 Md. 543, 560, 161 A.2d 676, 685. But to paraphrase Holmes, J., the task of the law is the drawing of lines. In so doing, it is possible to commit errors of judgment in the accommodation of principle, but perhaps this is the best that the law can afford. Schlesinger v. Wisconsin, 270 U.S. 230, 241, 46 S.Ct. 260, 70 L.Ed. 557 (dissenting opinion). As one commentator put it, "(a) preferential tax raises a controversial political issue, as any tax favoritism would. However, it is not unreasonable for the general body politic to support preferential taxation of open land. Support would be reasonable where land use is controlled and the community is serious and careful about planning, so that the landowner cannot remove the restriction virtually at his discretion. True, the speculative value of the land may still be realized, but it also may not be, and the public, not the landowner, determines when. Furthermore, preferential taxation for open land does not seem grossly unfair when the benefit theory of taxation is applied. Clearly, open land places a comparatively light burden on schools, police and fire departments, and the many other governmental facilities conventionally supported by the property tax. If the public, in its need for open space and its need to control sprawl, seriously restricts the right to convert the land to a higher use, it seems only fair that the public should pay by way of a tax preference for that it has gained." Hagman, op. cit., 639-40.

The plaintiffs ask the court to declare § 12-504a unconstitutional as violative of the equal protection clause of the fourteenth amendment of the United States constitution. They argue that the ten-year decrease in the conveyance tax bears no rational relationship to the legislative goal of § 12-107a, and that the ten-year decrease discriminates, without reason, on the length of the ownership of the land. The plaintiffs also make an equal protection argument against Guilford's open space amendment and ask that § 12-107e be struck down.

It has been suggested that there is no federal constitutional basis for a challenge to the Connecticut preferential assessment scheme. The equal protection clause of the fourteenth amendment merely requires that taxation of property not be patently arbitrary and that rates be uniform within classes. Hagman, op. cit., 641 n. 43; see Newhouse, Constitutional Uniformity and Equality in State Taxation, pp. 603, 605-606.

State constitutional provisions, however, must also be examined with respect to tax assessment schemes. In other states, state constitutional requirements of uniformity and equality in taxation have constituted a factor in deciding whether any type of open land taxation scheme might be adopted. Hagman, op. cit., 640-41. First, when the state constitution requires property assessments to be based on "just," "full," "market," or "true" valuation, then tax statutes based on "use" value are open to constitutional challenge....