Transcript The Many Hats of Duffie Bartlett

Planning Commissions
By Timothy D. Bates
Powers of the Planning
Commission
A. Powers of the Planning Commission
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Source of planning commission jurisdiction is
either the General Statutes or the terms of
specific municipal charters.
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Assignments vary between the visionary and the
mundane, with little in between.
Powers of zoning commissions are more broadly
construed, and powers granted to zoning
commissions under C.G.S. Section 8-1 are more
extensive.
About 50% of municipalities have combined
planning and zoning commissions.
Specific Powers
1. Planning Commission must
adopt a plan of conservation and
development [master plan]
under Section 8-2. There is an
increasing need to consider the
State Plan of Conservation and
Development: See Public Act
10-138 regarding coordination
of State, regional, and local
plans after 2011 and possible
loss of State funding if localities
do not update their plans.
Specific Powers Continued
2. Planning Commission reviews
municipal improvements under
Section 8-24. Advisory and can be
overruled by town meeting or 2/3 of
legislative body.
3. The commission also reviews street
layouts and building lines under
Section 8-29. Also levies assessments
on same.
4. Some planning commissions may also
approve special permits under Section
8-26e and site plans under Section 83(g).
Specific Powers Continued
5. If the commissions are separate, the planning
commission reviews zone change referrals under
Section 8-3a(b). Can be overruled by 2/3 vote of
the zoning commission.
6. Major function of planning commissions is to
review subdivisions pursuant to Sections 8-25
and 8-26.
Regulation of Subdivisions
A. Adoption of Regulations
1. The subject matter of regulations
is limited by the explicit authority of
Section 8-25.
2. The Commission cannot require
preliminary applications.
3. The Commission cannot impose
fees not specifically allowed.
4. The Commission cannot define
subdivisions differently from statutes.
Regulation of Subdivisions Continued
5. Objectives of subdivisions [Think of a lot in an improved
subdivision like a car with a warranty]:
a. Proper provision of water
b. Drainage, sewerage, flood control
c. Street design and layout
d. Road width, grade and improvements
e. Open space, parks and playgrounds
f. Sedimentation and erosion control
g. Public utilities and services
h. Bonding for public improvements
i. Solar energy orientation
Regulation of Subdivisions Continued
6. Generally, subdivision regulations require:
a. An application fee/town ordinance may also require
“review fee”
b. Subdivision application
c. A topographical map
d. Soil suitability report when septic systems are required.
e. Engineering drawings for proposed roads and public
improvements.
f. Map showing inland wetlands boundaries.
Regulation of Subdivisions Continued
B. Standards in Subdivision Regulations
1. Regulations should be specific and
not lend themselves to arbitrary or
varying determinations.
2. Appearance and aesthetic concerns
are not explicitly included in Section 825. However, see Smith v. Zoning
Board of Appeals, 227 Conn. 71.
(Historic conditions)
3. Should they be? Novi v. City of
Pacifica, 215 Cal. Rptr. 439.
Regulation of Subdivisions Continued
C. Review of subdivision applications
1. If application conforms, it must be approved.
2. If it does not, it must be denied.
3. Waivers available if allowed by regulation, but not
variances.
4. Subdivision regulations cannot conflict with, waive, or vary
zoning regulations. However, see cluster development density
bonuses, often in the form of special zoning regulations or
special permits. C.G.S. Section 8-25(c)
5. Violations of dimensional zoning regulations can be the
basis for denial of a subdivision plan. However, current use of
property – even under litigation – cannot be.
Regulation of Subdivisions Continued
D. Procedure for Approval of
Subdivision Applications
1. Time line: 65-35-65,
with 65 days of extensions.
Public hearings are
required for resubdivisions, but
discretionary for
subdivisions.
2. What is an application?
Watch out for
“incomplete” application
and constructive approval.
Regulation of Subdivisions Continued
E. Special Problems in Subdivision Applications
1. Preliminary applications: Avoid predetermination.
2. Referrals
a. Regional planning agencies where two towns are involved.
b. To adjoining municipality, if within 500 feet, significant
traffic, drainage, or septic
c. Wetland review: can delay decision
d. CAM: requirement to read into record
e. Sanitarian or Health Director
f. New statute requires 60-day prior notice to holder of land
trust restrictions if property is part of subdivision. C.G.S.
Section 47-42d, nor can town take action to eliminate access to a proposed
subdivision in a different town.
Regulation of Subdivisions Continued
F. Determining When Subdivision Approval is Required
1. Decision of planning commission whether it is or not.
2. Read definition closely: division of property into 3 or more lots
subsequent to adoption of subdivision regulations for purpose whether
indirect or future of sale or building development, not including municipal
construction or agricultural purposes. Section 8-18
3. The first cut: Title search
4. Lot line adjustments and mergers do not equal divisions
5. Combination of parcels does not constitute a subdivision
6. Definition of re-subdivision: Any change in approved subdivision
which (a) affects street layout, (b) affects areas reserved for public use or
(c) diminishes the size of the lot and creates an additional building lot, if
any lot has been previously conveyed. Section 8-18.
Regulation of Subdivisions Continued
G. Difficulties Present Themselves When
Subdivisions Cross Town Boundaries
1. Regulations may provide that when
public services cannot be provided, the
application may be denied. School buses.
Fire Trucks. But regulations cannot
require direct access to approving town.
Andrews v. Planning and Zoning
Commission of Town of Wallingford, 97
Conn. 316 (2006). Town cannot abandon
road to prevent access for a subdivision in
a neighboring town.
2. Be aware of different zoning
requirements in each of the two towns and
split lot problems that may result.
Regulation of Subdivisions Continued
H. Conditions.
I.
1. No statutory authority, although customary.
2. Should be based on commission’s specific regulations
3. Watch out for Carpenter problems – must be subject to the authority and
control of the commission
Expiration of subdivision permits
1. 5-year expiration if construction is not completed or 10 years if extension
granted. However, subdivisions approved between July 1, 2006, and July 1,
2009, have a 6-year life or 11 years, if extended. Public Act 09-181.
2. After expiration, a note should be filed on the land records and placed on the
subdivision plan. Should there also be a hearing? Abandonment can be
advantageous for owner’s property taxes.
3. Poirier: What zoning regulations control a lot? See Section 8-26a stating
vacant lots are governed by zoning regulations in effect at the time of approval.
Improved lots are subject to subsequently enacted zoning regulations.
Regulation of Subdivisions Continued
J. Open Space:
1. Section 8-25 allows regulations to
require set aside of open space.
2. Specific standards should be
included in the regulations.
3. Such standards are constitutional:
Aunt Hack Ridge Estates, Inc. v.
Planning Commission. Regulations
cannot require dedication to a private
group, but can offer it as an
alternative.
4. Open space fund can be
established for donations in lieu of
deducation.
K. Pending or Approved Subdivisions
are Protected from Changes in
Zoning and Planning Regulations
Regulation of Subdivisions Continued
L. The Planning Commission
Cannot in Subdivision
Regulations Enlarge Lot Size,
Frontage, Shape, etc., Over and
Above Requirements of Zoning
Regulations.
M. Security for Public
Improvements: If Required
Public Improvement, Such as
Roads, Sidewalks, Drainage, etc.,
is not Completed, it May be
Bonded.
Regulation of Subdivisions Continued
O. Inadequate Security:
1. Town must allocate available
security to serve lots already
sold.
2. However, when 6 lots all fronted
on a public street, Pope v.
Killingworth Planning and
Zoning Commission mandated
approval. Also see Pansy Road, holding
commission cannot deny subdivision based
on aggravation of existing traffic and
parking concerns on public road.
Regulation of Subdivisions Continued
P. Inadequate Security Continued
3. Courts have been reluctant to
uphold off-site improvements,
including sidewalks and accepted roads
on which the lots front. See Buttermilk
Farm LLC v. Planning and Zoning
Commission of Town of Plymouth, 292
Conn. 317 (2009).
4. Property owner has a legal right
to use old road bed. Luf v.
Southbury.
Regulation of Subdivisions Continued
Q. Recording Decision: Section 8-25
Requires Recording of Plan Within
90 Days of Approval or the Plan is
Null and Void. As Amended by P.A.
01-52, Subsection (a) Requires the
Commission to Return the
Approved Subdivision Plan Not
More Than 30 Days After Final
Approval. (Watch out for this.)