What is zoning anyway?
“Zoning” and “Land Use” refer to the body of laws, regulations and ordinances that create a legal fabric to control the use of land. Zoning was initially based upon the intent to make sure that similar and complementary uses were located in proximity to each other. Over the years, the concept has expanded to include the regulation of wetlands, aquifers, design standards and historic qualities in a structure or inherent in the land. At WWB, we are familiar with all aspects of the federal, state and municipal land use regulatory bodies.
Who actually regulates the use of land?
Most uses of land are regulated by the municipality in which the real estate is located. Each municipality has the ability under the aegis of the Connecticut General Statutes to create various land use boards. Each of those boards, agencies or commissions has jurisdiction over one or more aspects of the use or development of land in the municipality. In general terms, the use of land is usually within the jurisdiction of the planning commission, the zoning commission or a combined commission which considers both planning and zoning matters. In cases in which the use or the development standards for a particular use are not met, the use or development standards could be permitted by approval of another board, the zoning board of appeals for the municipality. Other boards or commissions include Historic Commissions, Conservation/Wetlands Commissions, and Port Authorities and Harbor Commissions. And although the state regulatory law remains the same throughout the state, each municipality may have different location specific rules for each different agency.
How do I find out if my intended use of my property is lawful?
A good way to start is to contact the zoning department of the municipality in which the property is located. The zoning department will have an official who makes the first run on the interpretation of the regulations that apply in the City/Town. Uses can be “permitted as of right”, permitted by way of a “special permit’ or “special exception” or not permitted at all. In some cases, the proposed use may not be easily categorized. At WWB, we routinely analyze client’s projects and, if not a permitted “as of right”, we assist the client in developing a game plan to achieve the client’s development goal.
If the use is permitted as of right, what do I have to do to make sure that I can establish the use?
Although some municipalities may permit uses with no certification of the permissibility of the use, most require that a certificate of zoning compliance be obtained. This usually requires, for a change in use, that a short, uncomplicated application is filed with the zoning department of the municipality. This is often filed in conjunction with a building permit application. There is usually a fee associated with the application.
If the use requires a special permit, what steps do I have to take to obtain the special permit?
If your proposed use requires a special permit or special exception (same thing, different name), a public hearing must be held before the zoning authority (either planning and zoning commission or zoning commission). This public hearing is required by statute. Notice must be published in a local paper and sometimes the local regulations require additional notification to nearby property owners. The commission will review the application at the public hearing to make sure that all aspects of the proposed use/construction conforms to the municipality’s zoning regulations. If your development project meets the standards of the applicable regulations, you should receive the special permit. If your application is denied, you may appeal to the Superior Court.
What if my proposed use is not permitted in the zone in which the property is located or the use does not meet all of the development requirements of the zone?
Because all uses or proposals may not meet the standards set out in the regulations, each municipality has a zoning board of appeals. It is the responsibility of this board to assess whether or not a particular regulation should be waived for a particular piece of property. The zoning board of appeals is the “relief valve” for those situations in which the application of the regulations to a discrete project/property is unduly harsh and not necessary to the safety and welfare of the community. This waiver of a regulation is called a “variance”. Variances are sparingly granted. In order to prove an entitlement to a variance, you must show that there is a “legal hardship” associated with the property. In addition, in order to receive a variance, the vote of the agency is by a “super majority” or 4 out of 5 votes by the agency members.
I was told that the real estate that I purchased has wetlands on it, but it looks dry. What does this mean?
Wetlands are defined by statute and are designated not by how wet the land is but by the type of soil located on the property. If your property does contain wetlands soils, you may have to obtain a review of any development proposal by the municipal conservation commission or wetland agency. Sometimes it is an administrative review and sometimes the review requires a public hearing. The responsible agency also has jurisdiction over any watercourse or drainage area on the property. If your property does have wetlands on the site, this is the first approval that should be obtained in the development process. It will necessitate a soil scientist be hired to map out the wetlands. It could also require the retention of other experts who would attempt to prove to the agency that the proposal would not harm the wetlands in a manner not permitted by law.
What can I expect if my proposal requires a public hearing?
If a public hearing is required, the first thing that you must do is ascertain if any special notification requirements are necessary in addition to the publication notice required by statute. A record of the hearing will be made either by a stenographer or by a tape that is later transcribed. Many times the municipality will have an internal expert who will give a report on the application. The application would be presented by you or your representative. If the application concerns a development that is complex, it may mean that you will be required to hire experts to address issues that the commission may deem important, such as traffic, impact on neighboring real estate values, noise or interference with the welfare of the local community. The commissioners ask questions about the proposal. Then supporters of the application and those opposed, if any, to the application will be given an opportunity to speak. The commission may render a decision at the conclusion of the hearing or it may delay the decision so that it can consider the application further. Once the commission has made a decision, the commission will publish the decision. The decision will stand unless a party appeals the decision within fifteen days of the date of the publication.
Can I appeal a denial of my application?
Yes. If your application is denied after a public hearing, you can appeal the denial as long as you serve the appeal within fifteen days of the date that the agency or commission publishes the notice of the denial. The appeal is taken to the Superior Court. It is important to know that with minor exceptions, no new evidence can be presented in court to support your application. The judge’s decision will be based upon the “record” of the public hearing – that is, all of the evidence and testimony that was presented to the commission in support or against your application. It is this reason that at WWB, when we prepare an application we take great care to put every bit of evidence and law that supports the application before the agency or commission. It results in a better chance of a successful appeal should an appeal be necessary.
What do I do if I do not like a proposed use in my neighborhood? How do I oppose it?
If a use is proposed in your neighborhood that you think is not appropriate, you should immediately go the zoning office and review the applicant’s file. You will see all of the plans, reports and other information that the applicant had to file to satisfy the commission that the application meets the standards of the regulations. And you should study that file. There may be inaccuracies or mistakes that could assist you in opposing the application. If the proposal is significant, you may wish to organize neighbors to gather together to oppose the application. In opposing applications, we at WWB frequently retain the services of experts who can acquaint the commission with an alternative view of the applicant’s proposal. This is an important element in the opposition process as, again, if the application is approved, any appeal will be solely based upon the information in the record. It is important to, therefore, include all of the expert evidence that is against the proposed development.
If I have opposed an application and am unsuccessful, can I appeal the application’s approval?
Yes, as long as the appeal is taken in a timely manner. But your chances of success at the appellate level will depend upon several factors. The most critical factor is the ability to prove that you are aggrieved by the decision of the commission. This is proved in two ways. Statutes provide parameters for an automatic aggrievement, for instance, abutters or persons within 100 feet of the property involved in a zoning decision are automatically aggrieved, while property owners located within 90 feet property involved in a wetland’s decision are automatically aggrieved. If you fail to meet that criteria, you can still prove aggrievement by showing that you have been injured in some special way, a way that is different from the impact of the development on anyone else. Once you have proved that you have “standing” to bring the appeal, the second major issue is whether you can prove that the commission’s decision was not supported by the evidence. Since the decision by the Superior Court judge will be made without the benefit of additional evidence, what was introduced into evidence before the commission will be critical. At WWB, we know what it takes to present our client’s information to a commission so that our clients will have the best possible chance of success in the event of an appeal.