Posted by: Patricia Salkin | August 4, 2009

CT Municipalities May Not Require Off-Site Sidewalks as a Condition of Subdivision Approval

On October 6, 2006, the plaintiff (Buttermilk Farms, LLC) filed an application with the Commission seeking approval of a proposed subdivision of its property located in Plymouth (“Town”), into five buildable residential lots.  Each lot abuts the southeast side of Lane Hill Road, which is in poor condition.  The entire front of the proposed subdivision abuts the ten foot strip of unpaved land on the southeast side of Lane Hill Road and the plaintiff’s application did not propose the building of any new roads, nor any new roads that would intersect Lane Hill Road.  The application was received on October 12, 2006, and the Commission informed the plaintiff that it was required to include a sidewalk along the adjacent unpaved shoulder of Lane Hill Road before approval.  Following a series of public hearings, on December 14, 2006 the plaintiff indicated that it had revised its subdivision plan to include a sidewalk, but that it intended to apply for a deferment of the requirement in accordance with town subdivision regulations.  Later believing that the Commission did not have the authority under statute to compel the sidewalk, because the shoulder in question fell outside the boundaries of the proposed subdivision, the Plaintiff removed the proposed sidewalk from its plan and withdrew its request for deferment.  At a public hearing on March 22, 2007, the Plaintiff maintained that it did not own the land the road was located on and the Town maintained the land had not been deeded to it.  At a final hearing on May 10, 2007, the chairman expressed that he understood the regulations to require the Plaintiff to show the sidewalks and subdivisions on the map, even if the Plaintiff believed that it was not required to install them.  The Plaintiff appealed from the commission’s denial of its application to the trial court and the trial court affirmed the decision, from which the Plaintiff appealed.

On appeal the Plaintiff contends that trial court improperly determined that § 8-25 granted the Commission the authority to adopt regulations under which the Commission could require the plaintiff to install off-site sidewalks as a condition of approval of its proposed subdivision.  It has been established that a planning and zoning commission has no inherent powers of its own, only those granted expressly to it by the state.  To determine whether a particular regulation is within the commission’s authority, the court must find the statutory authority for the enactment of the regulation.  The Court noted that because subdivision regulations are in derogation of common-law property rights, the scope of power to adopt regulations should not be extended to include an implication that is not within its express terms.  In the present case, the Court determined that it was required to interpret the language of § 8-25 to determine whether the authority includes the ability to require off-site sidewalks. 

The Court evaluated General Statutes § 1-2z, which directs the Court to consider the text of the statute and its relationship to other statutes.  If the language is unambiguous, a court is required to take the statute on its face, instead of considering its extratextual meaning.  Section 8-25 contains several specific grants of power to the commission, such as “(3) harmonious and safe intersections between proposed streets and existing or proposed principal thoroughfares.”  However, in the absence of an intersection between a proposed street and a presently existing street, no enumeration can be construed to allot the commission the power to require the construction of sidewalks on an existing road which abuts a proposed subdivision.  The Court determined that the language of § 8-25 is clear in that it applies only to the land to be subdivided.  The Court therefore concluded that the language of § 8-25 did not grant the Commission the authority to require off-site sidewalks on existing roads under the disguise of a general power to regulate health and public safety. 

Buttermilk Farms, LLC v. Planning and Zoning Commission of the Town of Plymouth, 2009 WL 1740151 (Conn.  6/30/2009).

 The opinion can be accessed at:


  1. This case highlights the important issue of providing safe walkways to encourage people to drive less and walk and bike more. Since no new roads were planned as part of the subdivision and the homes fronted the existing road it seems like the developer should have had some responsibility for providing safe sidewalks for the people living in the subdivision. With nothing but an unpaved shoulder along the main road it is not very likely that residents will choose to walk or bike anywhere, and it is understandable that they will instead choose to drive to their destinations. Given these facts it seems like providing safe sidewalks should fall under the provision of protecting the public health and safety, and thus should have been a valid requirement for approval of the subdivision.

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