Connecticut Law Tribune Editorial Board

The reality in land use matters in Connecticut today is that virtually every approval of a development of any size at all by a local land use agency—be it planning and zoning, wetlands, zoning board of appeals, or the dozens of variants—will be appealed. Any attorney representing an applicant is well-advised to tell the client that fact from the start. As you explain the land use approval process, which itself can have many different steps through several different agencies, it should always be added at the end that if all the required approvals are obtained, someone will appeal at least one of them. The approval process can take months, perhaps as long as a year, and then you must add on another year, more or less, for the approval. If the appeal is not successful, appeal to the Appellate Court is not automatic, and that court does not accept very many land use matters, so most often the appeal process stops at the Superior Court level. But this process means that from the date of application to successful defense of the appeal, a period of at least two, and often more, years has passed. The expense to the applicant is significant.

Is this a problem? Not if the goal is to slow down development and not if it is to maximize participation by the public in land use decisions. It is a problem if the goal is to encourage development, and therefore business, in Connecticut. Any attorney who handles land use matters will likely tell you that his or her developer clients are doing more in Massachusetts and Florida right now than they are in Connecticut, finding those states much more receptive than is Connecticut.

What is a problem is to resolve the tension between encouraging public participation in the process and curbing abusive use of the process. Allowing neighbors to weigh in on changes planned for their neighborhood is all to the good. Very often suggestions are made by neighbors that developers take to heart and plans are changed to everyone’s satisfaction. But that process can be manipulated. The classic example is when a supermarket or some other business wants to locate somewhere, receives all the approvals it needs, and then a homeowner who lives within the statutorily required 100 feet of the site appeals. That can be entirely legitimate. But more often the appeal is actually brought by a competing business, which is financing the appeal and using the homeowner as the entrée to get into court. That is not valid citizen participation; that is trying to obtain a competitive advantage to the detriment of the applicant and very possibly also of the public, who miss the commercial advantages that competition may present. As Connecticut zoning law is currently written, there is no way to curtail this abusive use of the appeals process.

Land use agencies are composed of lay volunteers, some of whom may have experience and education relevant to their task, but many of whom do not. They are simply average citizens either elected or appointed to the agency and willing to volunteer their time to help determine the future of their town or city. Some municipalities have professional staffs to support the agency, many do not. Some of the smaller towns have no staff at all, yet they are the ones that often have vast expanses of land attractive for development. It is a significant task for those agencies to review and rule on complex applications. In the vast majority of cases, they do so carefully and with good intentions. But the minutia of zoning law—not to mention traffic concerns, environmental concerns, wetland issues, and historic preservation—are beyond their capability. When their decisions are exposed to scrutiny through the appeals process, their innocent errors are magnified and applications die at the hands of the judge. Many local agencies are simply not equipped to dot every i and cross every t, but that is what is demanded of them on appeal, even though courts pay lip service to deference to the agency.

So a perfectly good application, two years and tens of thousands of dollars in the making, is defeated on appeal. Even if the appeal is unsuccessful and the application lives on, it does so after significant and expensive delay, sometimes to the point where the development dies even if approved.

Is there a solution? There must be, because other states are doing the job better than Connecticut. In this time of budget angst, there is much talk of greater regionalization. The impetus for that is largely economic, but it may also be the case that better decision-making would result from a more regional approach. Whether Connecticut’s municipalities would agree is another question.