CT Appeals Court Holds Trial Court Incorrectly Determined That There Was No Statutory Authority Enabling a Zoning Authority to Restrict the Duration of a Special Permit

This post was authored by Matthew Loescher, Esq. 

Fairfield Commons owned an approximately 3.6 acre parcel of property known as 1125 Kings Highway in Fairfield. The plaintiff was an abutting landowner. In 2006, Fairfield Commons filed an application for a special permit to construct a 36,000 square foot retail building on the property. Fairfield Commons also submitted an application for a coastal site plan review. On April 11, 2006, the commission approved the special permit and the coastal site plan review. Thereafter, a nonparty to this matter appealed from the commission’s decision to the Superior Court, challenging a condition of the special permit requiring the removal of an existing billboard.

On appeal, plaintiff contended that the trial court incorrectly determined that there was no statutory authority enabling a zoning authority to restrict the duration of the special permit, which came in the form of a condition requiring the completion of development attendant to the permitted use within two years, subject to extensions. The court found that § 8-2 (a) empowers a zoning authority to impose a temporal condition on a special permit, such as by requiring the completion of development attendant to the permitted use within a set time frame. As such, the court improperly concluded that there was no statutory authority enabling a zoning authority to impose this condition.

The plaintiff next argued that the trial court improperly relied on the legal tenet that special permits ‘‘run with the land’’ in concluding that special permits, once recorded pursuant to § 8-3d, are valid indefinitely and cannot be temporally restricted. In the cases relied on by the trial court, the courts concluded that various land use permits ‘‘run with the land’’ in that they are not personal to the applicant and remain valid notwithstanding a change in the ownership of the land. Thus the court held that the trial court misapplied the legal principle that special permits ‘‘run with the land.’’

Based on the aforementioned, the judgment was reversed only with respect to the trial court’s conclusion that the special permit approval granted to Fairfield Commons, LLC had not expired, and the case was remanded with direction to render judgment sustaining the plaintiff’s appeal as to that claim.

International Investors v Town Plan and Zoning Commission of the Town of Fairfield, 2021 WL 502235 (CT App. 2/16/2021)