Int'l Investors v. Town Plan & Zoning Comm'n of Fairfield
| Decision Date | 16 February 2021 |
| Docket Number | AC 43035 |
| Citation | 202 Conn.App. 582,246 A.3d 493 |
| Parties | INTERNATIONAL INVESTORS v. TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF FAIRFIELD et al. |
| Court | Connecticut Court of Appeals |
Charles J. Willinger, Jr., with whom, on the brief, were Ann Marie Willinger and James A. Lenes, for the appellant (plaintiff).
James T. Baldwin, for the appellee (named defendant).
John F. Fallon, for the appellee (defendant Fairfield Commons, LLC).
Prescott, Elgo and Moll, Js.
This appeal requires us to consider whether a zoning authority may condition its approval of a special permit on the completion of development attendant to the permitted use by a date certain, in effect imposing a conditional time limit on the special permit. The plaintiff, International Investors, appeals from the judgment of the trial court disposing of the plaintiff's appeal from the decision of the defendant Town Plan and Zoning Commission of the Town of Fairfield (commission) extending its approvals of a special permit and coastal site plan review granted to the defendant Fairfield Commons, LLC (Fairfield Commons).1 After sustaining the plaintiff's appeal insofar as it challenged the commission's decision to extend the special permit approval, the court ruled that it nonetheless was not finding that the special permit had expired because, it reasoned, the special permit, once recorded in the town land records, was valid indefinitely and not subject to a condition limiting its duration. On appeal before us, the plaintiff claims that the court improperly concluded that the special permit remained valid on the basis that it could not be temporally limited. We reverse, in part, the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of this appeal. Fairfield Commons owns an approximately 3.6 acre parcel of property known as 1125 Kings Highway in Fairfield (property). The plaintiff is an abutting landowner. In 2006, Fairfield Commons filed an application for a special permit to construct a 36,000 square foot retail building on the property. Fairfield Commons also submitted an application for a coastal site plan review.2 On April 11, 2006, the commission approved the special permit and the coastal site plan review.3 Thereafter, a nonparty to this matter appealed from the commission's decision to the Superior Court, challenging a condition of the special permit requiring the removal of an existing billboard. See Lamar Co. of Connecticut, LLC v. Town Plan & Zoning Commission , Superior Court, judicial district of Fairfield, Docket No. CV-06-4016312-S, 2008 WL 366557 (January 25, 2008) ( Lamar action). On May 5, 2008, an appeal from the judgment rendered in the Lamar action was filed with this court and later transferred to our Supreme Court, which dismissed the appeal on April 8, 2009. See Connecticut Supreme Court, Docket No. SC 18204 (appeal dismissed April 8, 2009).
The Fairfield Zoning Regulations in effect on April 8, 2009 (2009 regulations)4 contain the following relevant provisions. Section 25.8.3 of the 2009 regulations provides: "The duration of a [special permit] shall be as provided in Sections 2.23.5, 2.23.6 and 2.23.7 of the Zoning Regulations." Section 2.23.5 of the 2009 regulations in turn provides: "Approval or approval with modification shall constitute approval conditioned upon completion of the proposed use in accordance with the Zoning Regulations within a period of two (2) years from the date of such approval." Section 2.23.6 of the 2009 regulations provides in relevant part: 5
On February 8, 2011, the commission amended § 2.23 of the 2009 regulations (2011 amendment). Following the 2011 amendment, § 2.23 of the Fairfield Zoning Regulations read in its entirety: "Whenever a public hearing on any application is to be held pursuant to the requirements of the foregoing sections of the Zoning Regulations, other than the public hearing for an amendment to the Zoning Regulations, the procedure for which is set forth in Section 2.39 of the Zoning Regulations, the Commission shall proceed in accordance with the requirements of the Connecticut General Statutes." The remainder of § 2.23 as it existed in the 2009 regulations, including §§ 2.23.5 and 2.23.6, was deleted. The stated purpose of the 2011 amendment was Additionally, sometime after April 8, 2009, § 25.8.3 of the 2009 regulations was amended to provide: "The duration of a [special permit] shall be as provided in the Connecticut General Statutes."
On February 15, 2011, Fairfield Commons requested confirmation from the town of Fairfield (town) that, pursuant to the 2011 amendment and General Statutes § 8-3 (i),6 the special permit and coastal site plan review approvals granted in April, 2006, remained in effect until April 8, 2014. Thereafter, the town provided the requested confirmation in writing.7
On May 9, 2011, the legislature amended § 8-3 (m) to provide: "Notwithstanding the provisions of this section, any site plan approval made under this section prior to July 1, 2011, that has not expired prior to May 9, 2011,8 except an approval made under subsection (j) of this section,9 shall expire not less than nine years after the date of such approval and the commission may grant one or more extensions of time to complete all or part of the work in connection with such site plan, provided no approval, including all extensions, shall be valid for more than fourteen years from the date the site plan was approved."10 (Footnotes added.)
Several years later, on March 29, 2018, Fairfield Commons submitted a letter to the commission requesting an extension of the special permit and coastal site plan review approvals. Fairfield Commons represented that, on an unspecified date, the commission and the office of the town attorney had confirmed that, in accordance with § 8-3 (m), the approvals were extended to April 8, 2018, subject to extensions. Pursuant to § 8-3 (m), Fairfield Commons requested an additional five year extension of the approvals to April 8, 2023. In a letter addressed to the commission dated April 6, 2018, the plaintiff opposed Fairfield Commons’ request for an extension, arguing, inter alia, that the approvals had expired in April, 2011, and that the 2011 amendment had not affected the expiration date of the approvals.
On April 10, 2018, the commission held a meeting to discuss Fairfield Commons’ request for an extension of the special permit and coastal site plan review approvals. The meeting was attended by commission members, alternates, and town department members, including Jim Wendt, the town's planning director. During the meeting, which was transcribed, Wendt stated that, at the time of Fairfield Commons’ March 29, 2018 request for an extension of the approvals, the expiration date of the approvals was April 8, 2018, explaining that (1) on April 8, 2009, when our Supreme Court dismissed the appeal filed in the Lamar action, the 2009 regulations were in effect, and, thereunder, the approvals were set to expire on April 8, 2011, (2) prior to the 2011 amendment, the 2009 regulations conflicted with § 8-3 (i), which allowed up to five years, not including extensions, for the completion of work related to site plans, (3) the commission approved the 2011 amendment so that the Fairfield Zoning Regulations would be ‘‘in sync’’ with the General Statutes, (4) the commission intended to have the 2011 amendment apply retroactively, (5) as the approvals had been active in February, 2011, when the 2011 amendment was adopted, the 2011 amendment had operated to extend the approvals to April 8, 2014, and (6) following the amendment to § 8-3 (m) in May, 2011, the approvals were further extended to April 8, 2018. At the conclusion of the meeting, the commission voted unanimously to grant Fairfield Commons’ request for an extension of the approvals to April 8, 2023.11 In a letter dated April 12, 2018, Wendt notified Fairfield Commons of the commission's decision, and notice of the decision was published in a local newspaper on April 13, 2018.
On April 20, 2018, the plaintiff appealed from the commission's decision to the Superior Court. The plaintiff claimed on appeal that the commission improperly granted Fairfield Commons’ request for an extension of the special permit and coastal site plan review approvals because the approvals had expired prior to the commission's action. More specifically, the plaintiff asserted that (1) the 2009 regulations governed the approvals, and, in accordance therewith, the approvals had expired on April 8, 2011, (2) the 2011 amendment and § 8-3 (m) did not apply retroactively to the approvals, and (3) even assuming that they applied retroactively, the 2011 amendment and § 8-3 (m) were germane to site plans only and, thus, had no bearing on the approval of the special permit.12 In response, Fairfield Commons, joined by the commission,13 argued that (1) the 2011 amendment incorporated by reference § 8-3 (i) and (m), pursuant to which the approval of the coastal site plan review had been extended first to April 8, 2014 (under § 8-3 (i) ) and then to April 8, 2018 (under § 8-3 (m) ), (2)...
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Int'l Investors v. Town Plan & Zoning Comm'n of Fairfield
...the special permit could not be subject to a temporal limitation as a matter of law. See International Investors v. Town Plan & Zoning Commission , 202 Conn. App. 582, 606–607, 246 A.3d 493 (2021). With regard to the latter determination, the Appellate Court concluded that the commission ha......
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Int'l Investors v. Town Plan
...in opposition.247 A.3d 578 The petition by the defendant Fairfield Commons, LLC, for certification to appeal from the Appellate Court, 202 Conn. App. 582, 246 A.3d 493, is granted, limited to the following issues:"1. Did the Appellate Court correctly conclude that General Statutes § 8-2 (a)......