Int'l Investors v. Town Plan & Zoning Comm'n of Fairfield

• Decision Date: 19 July 2022
• Docket Number: SC 20579
• Citation: 344 Conn. 46,277 A.3d 750
• Parties: INTERNATIONAL INVESTORS v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD et al.
• Court: Connecticut Supreme Court

344 Conn. 46

277 A.3d 750

INTERNATIONAL INVESTORS

v.TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD et al.

SC 20579

Supreme Court of Connecticut.

Argued December 13, 2021

Officially released July 19, 2022

Timothy S. Hollister, Hartford, with whom were Andrea L. Gomes, Hartford, and John F. Fallon, for the appellant (defendant Fairfield Commons, LLC).

Charles J. Willinger, Jr., Shelton, with whom, on the brief, were Ann Marie Willinger, Shelton, and James A. Lenes, for the appellee (plaintiff).

Pascal F. Naples, Joseph P. Williams, New Haven, and Joette Katz, Stamford, filed a brief for the National Association of Home Builders as amicus curiae.

John P. Casey, New London, and Evan J. Seeman, Hartford, filed a brief for the Connecticut Association of Realtors, Inc., as amicus curiae.

Amy E. Souchuns, Milford, filed a brief for the Home Builders & Remodelers Association of Connecticut, Inc., as amicus curiae.

Robinson, C.J., and McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

D'AURIA, J.

This certified appeal concerns whether a local zoning authority may, by regulation, condition the continuing validity of a special permit¹ on completing development in connection with the permitted use within a specified period of time. The defendant Fairfield Commons, LLC, appeals from the judgment of the Appellate Court, which (1) affirmed the trial court's judgment insofar as the trial court concluded that the named defendant, the Town Plan and Zoning Commission of the Town of Fairfield (commission), improperly granted Fairfield Commons’ request for an extension of its special permit deadline to complete development, and (2) reversed the judgment insofar as the trial court concluded that 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 had authority to adopt a regulation prescribing a temporal condition for special permits; see id., at 599, 246 A.3d 493 ; and that a temporal condition does not violate the tenet that special permits run with the land. See id., at 606, 246 A.3d 493. We agree with those conclusions subject to an important—and, in this case, determinative—limitation that the Appellate Court did not recognize: such a special permit regulation may not prescribe a shorter time limitation for completing development than the statutory period prescribed for completion of development in connection with an accompanying site plan under General Statutes § 8-3 (i) and (m). Because the statutory period governing completion of development in connection with Fairfield Commons’ coastal area management site plan (site plan)² had not expired, Fairfield Commons’ special permit could not have expired for failure to satisfy that condition by force of a municipal regulation. We therefore reverse the Appellate Court's judgment.

The record reflects the following undisputed facts, either reflected in the trial court's memorandum of decision or otherwise reflected in the record. Fairfield Commons is the owner of a 3.6 acre undeveloped parcel of land located in a design commercial district in the town of Fairfield. Sometime before April 11, 2006, Fairfield Commons applied to the commission for a special permit and site plan review for the purpose of constructing a 36,000 square foot retail building, as required by Fairfield zoning regulations. On April 11, 2006, the commission voted to approve the special permit, subject to several conditions, as well as the accompanying site plan. The approval did not actually take effect until April 8, 2009, however, when an appeal from that decision, unrelated to the present matter, was resolved. See Fairfield Zoning Regs., § 2.23.6 (a) (2009).

At the time the approval took effect in April, 2009, the Fairfield zoning regulation governing special permits conditioned approval on "completion of the proposed use" within two years from the date of approval. Id., § 2.23.5. The regulations provided that the commission may grant extensions of time to complete work, up to five years from the date of approval. Id., § 2.23.6 (a). Failure to complete the proposed use within the specified period would render the approval "null and void ...." Id.

The statute governing Fairfield Commons’ site plan provides that "all work in connection with [the] site plan shall be completed within five years after the approval of the plan." General Statutes § 8-3 (i). "Work" is defined to mean "all physical improvements required by the approved plan."³ General Statutes § 8-3 (i). The statute permits the local zoning authority to grant one or more extensions of time to complete the work, provided that the total of the extension(s) did not exceed ten years from the date of the site plan approval. General Statutes § 8-3 (i). The statute further provides that "[f]ailure to complete all work within [the specified] period shall result in automatic expiration of the approval of such site plan ...." General Statutes § 8-3 (i).

Thus, under the statutes and regulations initially governing Fairfield Commons’ development plans, its special permit would be rendered void if the proposed development was not completed by April, 2011, in the absence of a grant of an extension of time. Fairfield Commons’ site plan would automatically expire if all work was not completed by April, 2014, unless the commission granted an extension of time.

In February, 2011, the commission amended its zoning regulations. As relevant to the present case, the commission repealed the regulation prescribing the time limit for completing the use authorized by a special permit. It simultaneously amended another regulation to provide that, for applications that require a public hearing (as do special permits under General Statutes § 8-3c (b) ), "the [c]ommission shall proceed in accordance with the requirements of the ... General Statutes." Fairfield Zoning Regs., § 2.23 (2011). Shortly thereafter, Fairfield Commons requested and obtained written confirmation from the commission that the expiration date of both its special permit and site plan was April 8, 2014.

Due to an economic downturn that had stalled development across the state, in May, 2011, the legislature amended statutes governing land use permits and approvals to extend the time limitations to complete development. See Public Acts 2011, No. 11-5 (P.A. 11-5). Site plans that had not yet expired, like that of Fairfield Commons, were provided a nine year period from the plan's approval date to complete the work, with authority for the local zoning agency to grant extensions of time not to exceed fourteen years from the date of approval. P.A. 11-5, § 1, codified at General Statutes (Supp. 2012) § 8-3 (m). This change extended the time limitation in Fairfield Commons’ site plan until April, 2018, by operation of law.

In March, 2018, the parcel at issue remained undeveloped.⁴ Fairfield Commons therefore requested from the commission a five year extension of the time limit to complete work in connection with its site plan and its special permit—from April 8, 2018, to April 8, 2023. At the hearing on the request, James R. Wendt, the town planning director, explained the intention and effect of the 2011 amendment to the zoning regulations, namely, to ensure that the commission's regulatory time limits would conform to statutory time limits as they may change, and stated that it applied retroactively to Fairfield Commons’ unexpired special permit and site plan approvals. Commission members expressed agreement with this view and voted to grant Fairfield Commons’ extension request.

The plaintiff, an owner of property abutting the parcel at issue, appealed to the Superior Court from the commission's decision granting the extension. See General Statutes § 8-8 (a) (1) and (b) (designating abutting property owner as aggrieved person for purposes of right to appeal). The trial court first addressed the plaintiff's challenge to the commission's authority to extend the time limitation attached to the special permit. The court concluded that the 2011 amendment to the town's zoning regulation providing that the commission would proceed "in accordance with the requirements of the ... General Statutes"; Fairfield Zoning Regs., § 2.23 (2011); was irrelevant because no statute addressed time limits applicable to special permits. It rejected Fairfield Commons’ position, jointly adopted by the commission, that the time limitations for completing work in connection with a "site plan" established by § 8-3 (i) and (m) encompass both the special permit and the site plan because they must be viewed as a single, integrated application and approval. The court reasoned that the two matters have materially distinguishing characteristics and functions. The court therefore sustained the plaintiff's appeal insofar as it challenged the commission's authority to extend the special permit approval in 2018.

The court then considered whether it was legally permissible for the special permit to be subject to a time limitation in the first instance. Relying on the view contained in Attorney Robert A. Fuller's treatise on Connecticut land use law, the court concluded that a duly recorded special permit; see General Statutes § 8-3d ; runs with the land and, as such, is valid indefinitely in the absence of statutory authority allowing revocation or expiration of special permits. See R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 50:1, pp. 161–62.⁵ The trial court therefore concluded that the commission's 2018 decision had no impact on the validity of Fairfield Commons’ special permit, assuming it was otherwise valid. Accordingly, the court sustained the plaintiff's appeal "to the extent that it challenge[d] the authority of the [commission] to extend the expiration date of the special...