Tillman v. Planning & Zoning Commission ( 2022 )

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JOHN TILLMAN ET AL. v. PLANNING AND
ZONING COMMISSION OF THE CITY
OF SHELTON ET AL.
(SC 20549)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The plaintiffs, who own real property in the city of Shelton, appealed to
the trial court from the decision of the defendant planning and zoning
commission approving an application for a planned development district
submitted by the defendant S Co. The trial court dismissed the plaintiffs’
appeal from the commission’s decision, and the plaintiffs appealed,
claiming, inter alia, that this court’s decision in Campion v. Board of
Alderman (278 Conn. 500), in which the court concluded that a special
act of the legislature authorizing zoning in the city of New Haven allowed
for the creation of a planned development district, did not authorize
municipalities, such as Shelton, that derive their authority to zone by
statute (§ 8-2), rather than by a special act, to establish such districts.
Held:
1. The plaintiffs could not prevail on their claim that the zoning authority
conferred by § 8-2 did not support the creation of planned development
districts: a comparison of the language in the special act at issue in
Campion, the language of the enabling act at issue in Sheridan v.
Planning Board (159 Conn. 1), and the language of § 8-2, which allowed
the defendant commission to create and alter zones, led this court to
conclude that § 8-2 permits the creation of planned development districts
like the one at issue in the present case; moreover, the legislature’s
prior repeal of legislation that provided for a detailed procedure for the
approval of planned developments did not evince a legislative intent to
eliminate or severely limit the use of planned developments, as that
legislation was repealed because its provisions were largely viewed as
unnecessary and unduly burdensome, and the legislature’s enactment
of a statute (§ 8-2m) expressly allowing for the use of flexible zoning
techniques was not intended to preclude the generalized application of
§ 8-2 or to restrict the zoning devices that it allows; furthermore, there
was no indication that the development in the present case resulted
from impermissible spot zoning, as previous claims of spot zoning had
involved smaller areas than the area at issue in the present case, and
there was little reason to disagree with the commission’s determination
that the proposal was consistent with Shelton’s comprehensive plan for
development, as the majority of the subject parcel had been located in an
industrial zone for more than fifty years, and the applicable regulations
identified the area at issue as an appropriate location for planned devel-
opment districts.
2. There was no merit to the plaintiffs’ claim that the use of planned develop-
ment districts in Shelton, generally, and the creation of the planned
development district proposed by S Co., in particular, violated the unifor-
mity requirement of§ 8-2: the uniformity requirement did not require
regulations governing adjacent zones to be consistent, and § 8-2 indi-
cated that regulations in one district may differ from those in another
district; moreover, the uniformity requirement does not prohibit the
commission from permitting a combination of residential, commercial
and professional uses, and the commission’s decision created a new zone
governed by a single set of regulations, including a specific, preapproved
mixture of uses for the planned development district and a detailed set
of standards applicable to the various classes and kinds of structures
to be constructed therein.
3. The commission’s decision, which delineated separate development areas,
did not result in an unlawful subdivision: even though the various devel-
opment areas were occasionally referred to in the record as parcels,
there was no indication that the commission’s approval of the planned
development district caused the alteration of any previously existing
property line, and the statement of uses and standards approved by the
commission in granting S Co.’s application noted that any subdivision
of the subject parcel would require separate approval.
Argued February 18—officially released October 20, 2021*
Procedural History
Appeal from the decision of the named defendant
approving the application of Shelter Ridge Associates,
LLC, for a planned development district, brought to
the Superior Court in the judicial district of Ansonia-
Milford; thereafter, Shelter Ridge Associates, LLC, was
permitted to intervene as a defendant; subsequently,
the case was transferred to the land use litigation docket
in the judicial district of Hartford, where the case was
tried to the court, Domnarski, J., who, exercising the
powers of the Superior Court, rendered judgment dis-
missing the appeal, from which the plaintiffs appealed.
Affirmed.
Joel Z. Green, with whom, on the brief, was Linda
Pesce Laske, for the appellants (plaintiffs).
Francis A. Teodosio, for the appellee (named defen-
dant).
Dominick J. Thomas, Jr., with whom was Ian A.
Cole, for the appellee (defendant Shelter Ridge Associ-
ates, LLC).
Opinion
KAHN, J. The principal question raised in this appeal
is whether the zoning authority granted to municipali-
ties by General Statutes § 8-21 permits the use of a
zoning device known as a planned development district.
The plaintiffs, John Tillman and Judith Tillman, appeal
from the decision of the trial court dismissing their
appeal from the decision of the named defendant, the
Planning and Zoning Commission of the City of Shelton
(commission), approving an application for such a dis-
trict submitted by the defendant Shelter Ridge Associ-
ates, LLC (Shelter Ridge). On appeal, the plaintiffs claim
that (1) this court’s decision in Campion v. Board of
Aldermen, 278 Conn. 500, 899 A.2d 542 (2006), which
concluded that the special act authorizing zoning in the
city of New Haven allows for the creation of a planned
development district, is inapplicable to municipalities
that derive their authority to zone from § 8-2, (2) the
planned development district proposed by Shelter
Ridge violates the uniformity requirement contained in
§ 8-2, and (3) the commission’s decision resulted in an
unlawful subdivision. For the reasons that follow, we
reject each of these claims and, accordingly, affirm the
judgment of the trial court.
We begin by briefly reviewing the municipal zoning
regulations relevant to the present appeal. Chapter 3,
§ 34.1, of the Shelton Zoning Regulations (regulations)
authorizes the creation of planned development dis-
tricts in order to encourage ‘‘unique and desirable’’
developments that cannot be accommodated by con-
ventional zoning. Those regulations provide that ‘‘[e]ach
[planned development district] is [an] independent zon-
ing district created to accomplish a specific purpose,
complete with its unique and narrowly drawn permitted
uses . . . .’’ Shelton Zoning Regs., c. 3, § 34.1. Such
zones can be established in a set of specifically mapped
‘‘[s]pecial [d]evelopment [a]rea[s]’’ and may be used to
incorporate those uses ‘‘appropriate’’ to a mixed-use
development.2 Id. In addition to the foregoing limita-
tions, the regulations detail minimum lot sizes, the maxi-
mum percentage of lot coverage, applicable floor area
ratios, restrictions with respect to building height, vari-
ous requirements with respect to utility connections,
and additional provisions with respect to both architec-
ture and the preservation of natural features. See id.,
§§ 34.3.1 through 34.3.8.
Approval of a new planned development district zone
proceeds in a series of distinct stages. First, the appli-
cant engages in an informal review by the commission
and its staff. Id., § 34.4. The applicant then submits a
formal proposal that includes both a written statement
‘‘identifying the permitted uses and setting forth the
specific area, location and bulk standards to be applica-
ble to the district’’; id., § 34.5.1; and an initial develop-
ment concept plan including, inter alia, ‘‘property maps,
[s]ite [p]lans, [a]rchitectural [p]lans and other drawings
as relevant in sufficient detail to show the existing con-
ditions and improvements proposed to be erected on
the site . . . .’’3 Id., § 34.5.2. Following the receipt of
an application, the commission can solicit comments
from numerous municipal officials and authorize the
preparation of any independent reports that it deems
necessary for its consideration. Id., § 34.6. The commis-
sion is then required by regulation, as it would be for any
application for an amendment to a zoning regulation,
to hold a duly noticed public hearing. Id., § 34.7.
The commission may approve an initial development
concept plan and adopt a planned development district
only if it makes several specific factual findings. Id.,
§§ 34.8 and 34.9. Most notably for present purposes,
the commission must find that a proposal ‘‘will not have
a significant adverse impact [on] surrounding proper-
ties or on property values in the area’’; id., § 34.8 (f); that
‘‘[a]nother zoning district could not be appropriately
established to accomplish such purposes’’; id., § 34.9
(c); and that the proposal ‘‘will be consistent with any
comprehensive plan of development . . . for the area
in which it is located . . . .’’ Id., § 34.9 (d). If a planned
development district is approved, the commission
adopts a ‘‘[s]tatement of [u]ses and [s]tandards’’ as an
amendment to its zoning regulations that ‘‘authorize[s]
uses, building structures and site development in accor-
dance with the approved [i]nitial [d]evelopment [c]on-
cept [p]lan,’’ and updates its official zoning map to show
the creation of a new zone. Id., § 34.13. An applicant
then has a period of six months to submit detailed final
site development plans to the commission. Id., § 34.10.
Although the Appellate Court once described planned
development districts as ‘‘creature[s] not normally spot-
ted in Connecticut’s jurisprudential forests’’; (internal
quotation marks omitted) Blakeman v. Planning &
Zoning Commission, 82 Conn. App. 632, 637 n.7, 846
A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521(2004); the trial court in the present case accurately
noted that they have ‘‘thrived in the environs of Shel-
ton.’’ Specifically, the trial court observed that this flexi-
ble zoning technique has been used more than seventy-
five times in the city of Shelton alone. Indeed, an inven-
tory of planned development districts set forth in an
appendix to the regulations indicates a more or less
consistent use of that device in Shelton since the late
1970s.
The following undisputed facts and procedural his-
tory relating to the present case are relevant to our
analysis. On March 16, 2016, Shelter Ridge filed an appli-
cation with the commission seeking the creation of a
planned development district on a parcel of real prop-
erty consisting of approximately 121 acres of land. That
parcel, almost all of which had existed within a ‘‘[l]ight
[i]ndustrial [p]ark’’ zone for more than fifty years,4 is
bounded by (1) a one-half mile stretch of Bridgeport
Avenue5 to the east, (2) approximately 1800 feet of
frontage on Mill Street to the south, (3) the rear lot lines
of several residential properties on Old Kings Highway,
certain parcels maintained by Shelton as open space,
and a short length of Buddington Road to the west, and
(4) a mobile home park and a few office buildings to
the north. The parcel slopes steeply up from Bridgeport
Avenue and Mill Street to a ridgeline running generally
north to south and has areas of exposed bedrock. The
property is also bisected by a series of overhead power
transmission lines and an underground gas transmis-
sion line. Several wetlands, including a vernal pool, are
located on the western side of the parcel. Although
Shelton’s 2006 plan of conservation and development
contemplated improvement of this land for either office
space or industrial use, the parcel has remained vacant
with the exception of one single-family home near Bud-
dington Road.
Shelter Ridge submitted a proposed statement of uses
and standards for this planned development district
that contemplated the construction of buildings in five
separate development areas. The two areas closest to
Bridgeport Avenue were reserved for retail use. The
other three development areas, which are located on
the interior of the parcel, were slated for (1) a mixture
of retail, offices and food services, (2) medical and
professional offices, and (3) a multistory residential
structure. The remaining land, which consisted of
approximately twenty-four acres near the western
edges of the parcel, would be traversed by a proposed
hiking trail and would remain otherwise undeveloped
as dedicated open space. Maps submitted with the pro-
posal showed the size and location of, inter alia, pro-
posed buildings, parking lots, and various internal
access roads. A series of perspective renderings
showed, in great detail, the visual impacts of the pro-
posed development.
In 2016, the commission held six public hearings
relating to this development over a period of several
months. As the trial court noted, ‘‘the commission had
before it some 65 exhibits, including a full engineering
report . . . a 900 page traffic impact study . . . sup-
plemented by a revision to address certain questions
from the commission . . . a retail demand study . . .
and the blowup of the rings and drive times related to
the retail analysis . . . an environmental report . . .
and a traffic peer review. . . . The applicant also pre-
sented numerous articles and data related to existing
apartment developments, parking, school-age children,
fire and safety, and downtown development. . . . All
of the applicant’s submissions were supplemented by
the testimony of the authors of the reports.’’ (Citations
omitted.)
Public opposition to the development was substantial
and focused on several significant concerns relating to
traffic, effects on nearby residential areas, and various
environmental impacts. As a result of those concerns,
Shelter Ridge modified its initial proposal (1) to replace
a proposed public entrance located on Buddington
Road with a gated access limited to emergency person-
nel, (2) to reorganize certain parking facilities to
increase dedicated open space, (3) to reduce the size
of the residential structure from nine stories to no more
than five stories, and (4) to abandon previous plans for
an assisted living facility.
On March 7, 2017, the commission adopted a resolu-
tion approving both Shelter Ridge’s application and a
detailed statement of uses and standards containing a
series of additional conditions and restrictions. In mak-
ing its decision, the commission explicitly found that
‘‘[d]ifficult physical site features, coupled with market-
ing constraints, have precluded the ability to develop
the site for light industrial and/or major office building
development,’’ that ‘‘[t]he subject property can be
improved to accommodate the proposed mixed-use
development in a manner that minimizes intrusion on
neighboring areas,’’ and that the proposal was ‘‘consis-
tent with the comprehensive plan of zoning for the
area . . . .’’
The plaintiffs, the owners of a single family residence
located on an adjacent parcel, subsequently appealed
to the trial court pursuant to General Statutes § 8-8.6 In
that appeal, the plaintiffs argued, inter alia, that (1)
municipalities deriving their authority to zone from § 8-
2 lack the authority to create planned development
districts, (2) the proposed planned development district
violates the uniformity requirement contained in § 8-2,
and (3) the commission’s decision resulted in an unlaw-
ful subdivision under General Statutes § 8-18.
The trial court subsequently issued a detailed, thor-
ough, and well reasoned memorandum of decision, dis-
agreeing with each of these claims. The trial court
reviewed Sheridan v. Planning Board, 159 Conn. 1,
266 A.2d 396 (1969), and Campion v. Board of Alder-
men, supra, 278 Conn. 500, and concluded that those
decisions implicitly supported ‘‘the conclusion that § 8-
2 authorizes the creation of [planned development dis-
tricts].’’ The trial court also concluded that the uniformity
requirement set forth in § 8-2 mandates only ‘‘intradis-
trict uniformity’’ and that, because the present case
involved the creation of an entirely new zone governed
by a single set of regulations, the commission’s actions
did not violate that statutory mandate. (Emphasis omit-
ted; internal quotation marks omitted.) Finally, the trial
court rejected the plaintiffs’ argument that the commis-
sion had created an unlawful subdivision because the mere
discussion of separate ‘‘development areas’’ did not
amount to a division of the larger parcel into smaller
lots. As a result of these conclusions, the trial court
dismissed the plaintiffs’ appeal from the commission’s
decision. This appeal followed.7
In the present appeal, the plaintiffs renew their claims
that (1) municipalities, like Shelton, that derive their
zoning powers from § 8-2, rather than a special act,
lack the authority to establish planned development
districts; (2) the proposal at issue in this case violates
the uniformity requirement contained in § 8-2, and (3)
the commission’s decision constituted an unlawful sub-
division. We address each of these claims in turn.
I
The plaintiffs’ principal claim is that the zoning
authority conferred by § 8-2 does not support the cre-
ation of planned development districts. In support of
this claim, the plaintiffs argue that this court’s decision
in Campion v. Board of Aldermen, supra, 278 Conn.
514–15, which concluded that the 1925 special act
authorizing zoning in New Haven allowed for the cre-
ation of planned development districts, does not extend
permission to other municipalities, acting under § 8-2,
to create similar planned development districts. The
defendants respond by arguing that both § 8-2 and the
reasoning of Campion are not so limited. For the rea-
sons that follow, we agree with the defendants.
Before turning to the specific question at issue, we
begin by setting forth certain general principles of law
relevant to our consideration of this appeal. In this
state, it is well established that ‘‘zoning authorities can
only exercise such power as has been validly conferred
upon them by the General Assembly.’’ (Internal quota-
tion marks omitted.) Eden v. Town Plan & Zoning
Commission, 139 Conn. 59, 63, 89 A.2d 746 (1952); see
also Capalbo v. Planning & Zoning Board of Appeals,
208 Conn. 480, 490, 547 A.2d 528 (1988); MacKenzie v.
Planning & Zoning Commission, 146 Conn. App. 406,
426, 77 A.3d 904 (2013); Keiser v. Zoning Commission,
72 Conn. App. 721, 729, 806 A.2d 103, cert. denied, 262
Conn. 909, 810 A.2d 274 (2002). Indeed, ‘‘[n]o adminis-
trative or regulatory body can modify, abridge or other-
wise change the statutory provisions under which it
acquires authority unless the statute specifically grants
it that power.’’ (Internal quotation marks omitted.) Finn
v. Planning & Zoning Commission, 156 Conn. 540,
546, 244 A.2d 391 (1968).
‘‘Municipalities in Connecticut may exercise zoning
power either by adopting the provisions of chapter 124
of the General Statutes . . . or by enacting a municipal
charter authorized by a special act of the legislature.
. . . In either case, the power of the local zoning author-
ity to adopt regulations is limited by the terms of the
statute or special act.’’ (Internal quotation marks omit-
ted.) Campion v. Board of Aldermen, supra, 278 Conn.
510–11. Whether the legislature has granted a particular
power to a municipality presents a question of statutory
interpretation and, thus, is subject to plenary review.
Id., 509.
‘‘In traditional zoning appeals, the scope of judicial
review depends on whether the zoning commission has
acted in its legislative or administrative capacity. The
discretion of a legislative body, because of its consti-
tuted role as formulator of public policy, is much
broader than that of an administrative board, which
serves a quasi-judicial function. . . . Acting in such leg-
islative capacity, the local [zoning] board is free to
amend [or to refuse to amend] its regulations whenever
time, experience, and responsible planning for contem-
porary or future conditions reasonably indicate the
need for [or the undesirability of] a change. . . . Zon-
ing must be sufficiently flexible to meet the demands
of increased population and evolutionary changes in
such fields as architecture, transportation, and redevel-
opment. . . . The responsibility for meeting these
demands rests, under our law, with the reasoned discre-
tion of each municipality acting through its duly author-
ized zoning commission. . . . In contrast, when acting
in an administrative capacity, a zoning commission’s
more limited function is to determine whether the appli-
cant’s proposed use is one which satisfies the standards
set forth in the [existing] regulations and the statutes.
. . . In fulfilling its administrative function, a zoning
commission is less concerned with the development of
public policy than with the correct application of law
to facts in the particular case.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
Kaufman v. Zoning Commission, 232 Conn. 122, 150–
51, 653 A.2d 798 (1995); see also Campion v. Board of
Aldermen, supra, 278 Conn. 526–27.
There is no dispute that Shelton derives its authority
to adopt zoning regulations from chapter 124 of the
General Statutes. See T. Tondro, Connecticut Land Use
Regulation (2d Ed. 1992) pp. 38–42. The provision of
that chapter at issue in the present case, § 8-2, provides
in relevant part: ‘‘The zoning commission of each city,
town or borough is authorized to regulate, within the
limits of such municipality, the height, number of stories
and size of buildings and other structures; the percent-
age of the area of the lot that may be occupied; the size
of yards, courts and other open spaces; the density
of population and the location and use of buildings,
structures and land for trade, industry, residence or
other purposes . . . . Such zoning commission may
divide the municipality into districts of such number,
shape and area as may be best suited to carry out the
purposes of this chapter; and, within such districts, it
may regulate the erection, construction, reconstruction,
alteration or use of buildings or structures and the use
of land. All such regulations shall be uniform for each
class or kind of buildings, structures or use of land
throughout each district, but the regulations in one dis-
trict may differ from those in another district, and may
provide that certain classes or kinds of buildings, struc-
tures or uses of land are permitted only after obtaining
a special permit or special exception . . . . Such regu-
lations shall be made in accordance with a comprehen-
sive plan and in adopting such regulations the commis-
sion shall consider the plan of conservation and develop-
ment prepared under section 8-23. . . . Such regula-
tions shall be made with reasonable consideration as
to the character of the district and its peculiar suitability
for particular uses and with a view to conserving the
value of buildings and encouraging the most appro-
priate use of land throughout such municipality. . . .’’
General Statutes § 8-2 (a).
With this background in mind, we turn to the narrow
question of whether the grant of zoning authority con-
tained in § 8-2 permits a municipal zoning authority to
create planned development districts when it acts in a
legislative capacity. In answering this question, we do
not write on a blank slate. As the trial court in the
present case aptly noted, this court has examined the
validity of modern flexible zoning techniques in both
Sheridan v. Planning Board, supra, 159 Conn. 1, and
Campion v. Board of Aldermen, supra, 278 Conn. 500.
A brief review of those two decisions is instructive.
Sheridan related to the use of a modern zoning tech-
nique referred to as a floating zone. See Sheridan v.
Planning Board, supra, 159 Conn. 16. The most tradi-
tional and common form of zoning, called Euclidean
zoning, is ‘‘a system . . . whereby a [municipality] is
divided into areas in which specific uses of land are
permitted.’’ Merriam-Webster’s Dictionary, available at
https://www.merriam-webster.com/legal/
Euclidean%20zoning (last visited October 18, 2021); see
also Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.
Ct. 114, 71 L. Ed. 303 (1926); R. Fuller, 9 Connecticut
Practice Series: Land Use Law and Practice (4th Ed.
2015) § 1:1, p. 2. By contrast, a floating zone involves
the initial creation of an unmapped zone that is later
applied to a particular piece of property. As such, it
‘‘differs from the traditional [Euclidean] zone in that it
has no defined boundaries and is said to ‘float’ over the
entire area where it may eventually be established.’’ 9
R. Fuller, supra, § 3.9, p. 42; see also T. Tondro, supra,
pp. 70–72.
As in the present case, the plaintiffs in Sheridan
claimed that the relevant enabling act did not permit
the city of Stamford to use a floating zone device. Sheri-
dan v. Planning Board, supra, 159 Conn. 15. Our rejec-
tion of that claim was straightforward. This court held
that the relevant provisions of Stamford’s enabling act,8
which were similar to those in § 8-2, clearly allowed
the municipal authority to both adopt and amend zoning
boundaries. See id., 18. We noted that the language of
the enabling act, ‘‘just as that in . . . § 8-2, is suffi-
ciently broad to permit the creation of floating zones. In
creating a floating zone, and in applying it to a particular
area, the . . . zoning board is regulating the location
and use of buildings and land in a manner which clearly
is permitted under the enabling act in question.’’ Id. The
fact that floating zones differed from more traditional,
Euclidean means of zoning was irrelevant; the legisla-
tive function exercised by the municipal zoning author-
ity in that case, we noted, had simply met an existing
‘‘need for flexibility in modern zoning ordinances
. . . .’’ Id., 17.
Almost forty years later, a similar question arose with
respect to the use of planned development districts
in the city of New Haven. See Campion v. Board of
Aldermen, supra, 278 Conn. 515. New Haven, like Stam-
ford, also exercised its zoning authority pursuant to a
special act. Id., 510–13. The relevant provisions of that
legislation provided New Haven’s Board of Aldermen
with the authority to ‘‘divide the city of New Haven into
districts of such number, shape and area as may best be
suited to carry out the provisions of [the] act.’’ (Internal
quotation marks omitted.) Id., 514.
Relying on our reasoning in Sheridan, this court simi-
lary held that this language was ‘‘sufficiently broad to
permit the creation of planned development districts
. . . .’’ Id., 518. In the course of our analysis, we com-
pared planned development districts to floating zones
and noted that, notwithstanding certain procedural dis-
tinctions, both of those devices ‘‘[alter] the zone bound-
aries of [an] area by carving a new zone out of an
existing one.’’ (Internal quotation marks omitted.) Id.,
518–19. The creation of planned development districts
was, therefore, permissible in New Haven because its
zoning enabling act, like Stamford’s, ‘‘authorize[d] the
city to create new zones, as well as to make alterations
to the zones previously created.’’ Id., 515. Our holding,
reduced to a single sentence, was simply that ‘‘[t]he
approval of a planned development district is not differ-
ent from the creation of any other new zoning district
. . . .’’ Id., 514. In reaching this result, we expressly
rejected the plaintiffs’ claim that the creation of planned
development districts ‘‘improperly breaks from the
Euclidean zoning model,’’ stating, in no uncertain terms,
that ‘‘we never have held . . . that zoning ordinances
must be judged by the standards of traditional Euclid-
ean zoning.’’ Id., 529–30.
A comparison of the language in the enabling acts in
both Sheridan and Campion to the language contained
in § 8-2 provides us with no principled basis to conclude
that the legislature intended to allow for the use of
modern, flexible zoning techniques in only a handful
of municipalities. The special act cited in Sheridan per-
mitted the city of Stamford to regulate ‘‘the height,
number of stories and size of buildings and other struc-
tures; the percentage of the area of the lot that may be
occupied; the size of yards, courts and other open
spaces; the density of population and the location and
use of buildings, structures and land for trade, industry,
residence or other purposes . . . .’’ (Internal quotation
marks omitted.) Sheridan v. Planning Board, supra,
159 Conn. 17–18. That exact language appears in § 8-2.
The special act at issue in Campion allowed the New
Haven Board of Aldermen to ‘‘divide the city of New
Haven into districts of such number, shape and area as
may be best suited to carry out the provisions of [the]
act.’’ (Internal quotation marks omitted.) Campion v.
Board of Aldermen, supra, 278 Conn. 514. Again, almost
the exact same language can be found in § 8-2. As in
those cases, the relevant question in the present case
‘‘is not whether the [enabling act] authorizes ‘planned
development districts’ by name, but whether it autho-
rizes the city to create new zones, as well as to make
alterations to the zones previously created.’’ Id., 515.
The plaintiffs readily admit that § 8-2 allows the com-
mission to both create and alter zones. As a result, we
conclude that the language of § 8-2 permits the creation
of planned development districts like the one at issue
in the present case.9
In urging us to reach the opposite conclusion, the
plaintiffs point to two legislative actions that, they
argue, evince the General Assembly’s intent either to
eliminate or to severely limit the use of planned develop-
ments. The first is the repeal of chapter 124a of the
1985 revision of the General Statutes. See Public Acts
1985, No. 85-409, § 7. The provisions in that chapter,
which provided a detailed procedure for the approval
of planned developments; see General Statutes (Rev.
to 1985) § 8-13b et seq.; were, however, repealed
because they were largely viewed as unnecessary and
unduly burdensome. See D. Mandelker, ‘‘New Perspec-
tives on Planned Unit Developments,’’ 52 Real Prop.
Tr. & Est. L. J. 229, 231 n.4 (2017); A. Martindale,
‘‘Replacing the Hardship Doctrine: A Workable, Equita-
ble Test for Zoning Variances,’’ 20 Conn. L. Rev. 669,
698 n.153 (1988). The legislature was well aware of the
fact that many municipalities had enacted regulations
providing for the use of such devices pursuant to their
general zoning enabling authority, and the debate atten-
dant to the 1985 repeal contains no support for the
proposition that the legislature intended a wholesale
elimination of similar devices. See 28 S. Proc., Pt. 7,
1985 Sess., p. 2218, remarks of Senator John F. Consoli
(‘‘[C]urrently about sixty municipalities have adopted
zoning regulations covering [similar] development[s]
. . . . None of these have relied on [chapter 124a] for
their authority. Instead, they have all relied on general
zoning authority which is far less detailed. This bill
would repeal specific statutory standards and proce-
dures governing municipal zoning for [planned unit
developments] leaving the municipalities to regulate
them under the general zoning statutes . . . .’’); see
also T. Tondro, supra, pp. 81–82 n.168.
The second legislative action cited by the plaintiffs is
the enactment of General Statutes § 8-2m.10 That statute
expressly allows for the use of various flexible zoning
techniques, including floating zones, overlay zones, and
planned development districts, in an exceedingly nar-
row class of municipalities exercising zoning authority
pursuant to a special act. Public Acts 2006, No. 06-128,
§ 2 (P.A. 06-128). The class is so narrowly drawn, in
fact, that the parties in the present case agree that only
the city of New Haven falls within its confines. The
plaintiffs invite us to infer from this express grant of
authority that the legislature intended, by negative
implication, to preclude the creation of planned devel-
opment districts in every other municipality. We decline
to accept this line of reasoning. The plaintiff’s logic, if
adopted, would compel the conclusion that New Haven
is the only municipality with the authority to use other
devices mentioned in § 8-2m, like floating zones, that
are derived implicitly from generalized grants of zoning
authority. Such an interpretation is not supported by
either the text of § 8-2m or the legislative history preced-
ing its enactment. See 49 S. Proc., Pt. 9, 2006 Sess., p.
2647, remarks of Senator Toni Nathaniel Harp (noting
that bill was intended to ‘‘clarif[y] what the city of New
Haven can do relative to planned development dis-
tricts’’); 49 H.R. Proc., Pt. 18, 2006 Sess., p. 5501, remarks
of Representative Robert W. Megna (noting that bill
‘‘clarifies the use of overlay zones within the [c]ity of
New Haven’’). The better reading, we believe, is that
§ 8-2m constitutes a narrow legislative response to the
Appellate Court’s decision in Campion11 that was not
intended to preclude the generalized application of § 8-
2 or to otherwise restrict the zoning devices that it
allows. As noted previously; see footnote 1 of this opin-
ion; the General Assembly has made several recent
amendments to § 8-2. If, as the plaintiffs contend, the
legislature intended the passage of § 8-2m to express a
broader intent that the use of modern, flexible zoning
techniques should be prohibited outside of New Haven,
it has had multiple opportunities over the past fifteen
years to address the continued use of such devices in
other parts of the state. Its failure to do so provides
further support for our interpretation of § 8-2m.
Finally, the plaintiffs contend, and we agree, that the
developer driven, case-by-case approach inherent to
modern zoning techniques such as planned develop-
ment districts significantly heightens the risk of spot
zoning and favoritism in the municipal land use process.
See, e.g., Blakeman v. Planning & Zoning Commis-
sion, supra, 82 Conn. App. 637–38 n.7; cf. 9 R. Fuller,
supra, § 3:9, pp. 43–44 (discussing same concerns in
relation to floating zones). Even a cursory review of
the appendix to the regulations demonstrates that an
excessive use of that device in Shelton has led to the
creation of dozens of entirely new, single owner zones
that are as small as 0.3 acres. We take this opportunity
to reiterate the fact that one of the essential goals of
zoning is to encourage stability and predictability in
land use. See, e.g., Damick v. Planning & Zoning Com-
mission, 158 Conn. 78, 84, 256 A.2d 428 (1969). To that
end, we emphasize that the traditional scope of judicial
review applicable to claims of spot zoning remains
unchanged in this context.
Nevertheless, we see no indication that the particular
development at issue in the present case resulted from
impermissible spot zoning. As this court has previously
stated: ‘‘Two elements must be satisfied before spot
zoning can be said to exist. First, the zone change must
concern a small area of land. Second, the change must
be out of harmony with the comprehensive plan for
zoning adopted to serve the needs of the community
as a whole.’’ Blaker v. Planning & Zoning Commission,
212 Conn. 471, 483, 562 A.2d 1093 (1989). The proposed
planned development district at issue in this case con-
sists of approximately 121 acres. Previous claims of
spot zoning have involved far smaller areas. Campion
v. Board of Aldermen, supra, 278 Conn. 506, 532 (4.04
acres); Morningside Assn. v. Planning & Zoning
Board, 162 Conn. 154, 156, 161, 292 A.2d 893 (1972) (6.5
acres); Kutcher v. Town Planning Commission, 138
Conn. 705, 711, 88 A.2d 538 (1952) (2.5 acres) (Brown,
C. J., dissenting). There is also little reason to disagree
with the commission’s determination that the proposal
at issue is consistent with Shelton’s comprehensive plan
for development. The majority of the subject parcel has
been located in an industrial zone for more than fifty
years, and the regulations specifically identify the area
around Bridgeport Avenue as an appropriate location
for planned development districts. In light of these facts,
we do not believe that the commission’s actions in the
present case constituted impermissible spot zoning.
II
The plaintiffs’ second claim is that the use of planned
development districts in Shelton, generally, and the cre-
ation of this planned development district, in particular,
violate the uniformity requirement contained in § 8-2.
This claim is subject to plenary review. See, e.g., Mac-
Kenzie v. Planning & Zoning Commission, supra, 146
Conn. App. 420. For the reasons that follow, we con-
clude that it lacks merit.
General Statutes § 8-2 (a) provides in relevant part:
‘‘All . . . regulations shall be uniform for each class
or kind of buildings, structures or use of land through-
out each district, but the regulations in one district may
differ from those in another district . . . .’’
This statutory provision requires that zoning regula-
tions ‘‘are sufficiently precise so as to apprise both the
zoning commission and an applicant of what is required,
as well as to provide guidance to the zoning commission
in applying the regulation, and to ensure equal treat-
ment to each applicant subject to the regulation.’’ Har-
ris v. Zoning Commission, 259 Conn. 402, 434–35, 788
A.2d 1239 (2002). ‘‘The obvious purpose of [this require-
ment] . . . is to assure property owners that there shall
be no improper discrimination, all owners of the same
class and in the same district being treated alike with
provision for relief in cases of exceptional difficulty
or unusual hardship by action of the zoning board of
appeals.’’ Veseskis v. Zoning Commission, 168 Conn.
358, 360, 362 A.2d 538 (1975); see also Kaufman v.
Zoning Commission, supra, 232 Conn. 147. Put simply,
‘‘[t]he thrust of the statutory requirement of uniformity
is equal treatment.’’ Harris v. Zoning Commission,
supra, 431.
Cases in which courts have found a violation of the
uniformity requirement have a singular, common ele-
ment: they all involve a waiver or modification of a
zoning regulation for some, but not all, parcels within a
particular zone. For example, in Langer v. Planning &
Zoning Commission, 163 Conn. 453, 313 A.2d 44 (1972),
we concluded that a regulation permitting a municipal
planning and zoning commission, rather than a board
of zoning appeals, to ‘‘modify, vary, waive or accept
other uses’’ on an ‘‘application-to-application basis’’ was
invalid because it permitted the commission to treat
some parcels in the district differently from others.
(Internal quotation marks omitted.) Id., 457–58. Like-
wise, in MacKenzie v. Planning & Zoning Commis-
sion, supra, 146 Conn. App. 406, the Appellate Court
concluded that a municipal planning and zoning com-
mission violated the uniformity rule by waiving mini-
mum setback and landscaped buffer requirements that
were otherwise applicable to all other properties in the
same district.12 See id., 420, 431–33; see also, e.g., Harris
v. Zoning Commission, supra, 259 Conn. 430–31 (there
was no violation of uniformity requirement in case in
which regulation excluding wetlands and slopes from
minimum acreage was applied consistently throughout
zone); Veseskis v. Zoning Commission, supra, 168
Conn. 360 (‘‘[t]o require by zoning regulation a buffer
strip between one zone of a particular classification
and another zone of a different class in one specific
instance and not in other instances when zones of these
two zone classifications abut clearly violates the statu-
tory uniformity requirement and is exactly the arbitrary
and discriminatory use of the police power which the
statute was designed to prevent’’); St. Joseph’s High
School, Inc. v. Planning & Zoning Commision, 176
Conn. App. 570, 599, 170 A.3d 73 (2017) (granting special
permit application that does not satisfy applicable regu-
latory standards ‘‘runs afoul of the uniformity require-
ment’’ (internal quotation marks omitted)).
Two particular points derived from these authorities
warrant specific emphasis. First, the uniformity require-
ment does not require regulations governing adjacent
zones to be consistent with one another. Indeed, the
plain language of § 8-2 (a) indicates that ‘‘regulations
in one district may differ from those in another district.’’
See also, e.g., Abel v. Planning & Zoning Commission,
297 Conn. 414, 431, 998 A.2d 1149 (2010) (‘‘[t]he statu-
tory scheme assumes . . . uniformity within a zone’’);
Simko v. Ervin, 234 Conn. 498, 506, 661 A.2d 1018 (1995)
(‘‘[i]n accordance with § 8-2, a zoning regulation must be
applied uniformly throughout each district’’); Pleasant
Valley Neighborhood Assn. v. Planning & Zoning Com-
mission, 15 Conn. App. 110, 114, 543 A.2d 296 (1988)
(‘‘§ 8-2 . . . requires intradistrict uniformity, and not
uniformity among all districts in a given town’’ (empha-
sis omitted)). As discussed previously in this opinion,
the approval of a planned development district creates
a new and independent zone. As a result, the plaintiffs’
argument that the uniformity requirement contained
in § 8-2 categorically prohibits the use of that device
because the application-by-application process inher-
ent in its nature results in inconsistences with adjacent
areas must fail because that argument relates to inter-
district, rather than intradistrict, variations. See 9 R.
Fuller, supra, § 4:5, p. 73 (‘‘the [planned development
district] only has to be uniform within itself regardless
of the zoning of bordering districts’’); T. Tondro, supra,
p. 74 (‘‘[a] zoning amendment carving a new zone out
of a larger one, or which changes a zone’s boundaries
in any way, does not violate the uniformity rule because
the rule only requires uniformity within a [particular]
district, not between districts’’ (emphasis omitted)).
Second, the uniformity requirement in § 8-2 does not
prohibit the commission from blending different types
of uses within a particular planned development. Cf. 3
P. Salkin, American Law of Zoning (5th Ed. 2011) § 24:20,
pp. 24–44 (‘‘Planned unit development legislation has
been challenged on the ground that it does not create
districts but permits a mixture of uses in a single district.
. . . Even in the states [that] lack specific planned unit
development enabling statutes, the argument has been
rejected.’’). The fact that the commission’s decision con-
templates a mixture of residential, commercial, and
professional uses does not violate the uniformity
requirement in § 8-2. Even a traditional approach to
zoning does not mandate a complete monoculture of
uses within a particular zone. See id.
The commission’s decision in the present case cre-
ated a new zone governed by a single set of regulations.
Those regulations include both a specific, preapproved
mixture of uses for the planned development district
as a whole, and a detailed set of area, location, and
bulk standards applicable to the various classes and
kinds of buildings and structures to be constructed
therein. Cf. T. Tondro, supra, p. 75 (‘‘Planned Area
Developments (PAD[s]) specify different rules for prop-
erties within the PAD than for those outside, allowing
the single owner of the PAD to create a district unique
to his or her property. Since PADs are usually required
to have a large minimum lot area, they are consistent
with the uniformity rule because the PAD area can be
viewed as the equivalent of a new zoning district
. . . .’’). We are not persuaded by the plaintiffs’ claim
that such regulations violate the intradistrict uniformity
requirement in § 8-2.
III
The plaintiffs’ final claim is that the delineation of
separate ‘‘development areas’’ resulted in an unlawful
subdivision. Only a brief analysis is necessary to reject
this claim. ‘‘[I]n order to constitute a subdivision, the
clear language of [§ 8-18] has two requirements: (1)
[t]he division of a tract or parcel of land into three or
more parts or lots, and (2) for the purpose, whether
immediate or future, of sale or building development.’’
(Internal quotation marks omitted.) Cady v. Zoning
Board of Appeals, 330 Conn. 502, 510, 196 A.3d 315(2018). The first prong of this test requires a division
of land into three or more distinct ‘‘parts or lots . . . .’’
(Internal quotation marks omitted.) Id.; see also 500
North Avenue, LLC v. Planning Commission, 199
Conn. App. 115, 131–32, 235 A.3d 526 (concluding that
‘‘the purpose of the inclusion of ‘parts’ is to elucidate
the meaning of the word ‘lots’ ’’ and that ‘‘the two words
are meant to be read together’’), cert. denied, 335 Conn.
959, 239 A.3d 320 (2020). We agree with the trial court’s
assessment that, notwithstanding the fact that the vari-
ous ‘‘development areas’’ are occasionally referred to
in the record as ‘‘parcels,’’ there is no indication that
the commission’s approval of the proposed planned
development district actually caused the alteration of
any previously existing property line. Cf. Alvord Invest-
ment, LLC v. Zoning Board of Appeals, 282 Conn. 393,
411, 920 A.2d 1000 (2007) (‘‘a division of the land must
take place in order to trigger subdivision review’’). In
fact, the statement of uses and standards ultimately
approved by the commission expressly notes that any
subdivision of the subject parcel would require separate
approval. The defendant’s claim that the commission’s
decision resulted in an unlawful subdivision must,
therefore, fail.
The judgment is affirmed.
In this opinion the other justices concurred.
* October 20, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
We note that the legislature has made several amendments to § 8-2 since
the events underlying the present appeal. See, e.g., Public Acts 2018, No.
18-28, §§ 1–2; see also Public Acts 2021, No. 21-29, § 4. Those amendments,
however, are not relevant to the issues presented in the present appeal. For
the sake of simplicity, we refer to the current revision of the statute.
2
The regulations expressly provide that a planned development district
‘‘is not allowed on any site or parcel that is entirely surrounded by single
family residential zones’’ and ‘‘shall not be used when an alternative, conven-
tional zoning district is available.’’ Shelton Zoning Regs., c. 3, § 34.1.
3
In addition to mapping both existing and proposed buildings and uses,
an applicant is also required to submit information relating to vehicular
and pedestrian traffic, parking facilities, access roads, lighting, open areas,
landscaping, utilities, floor plans, exterior elevations, drainage plans, soil
and geology reports, a sedimentation and erosion control plan, and ‘‘[a]ny
additional information which the [c]ommission may reasonably require
. . . .’’ Shelton Zoning Regs., c. 3, § 34.5.2 (a) through (n). This last category
of information may include marketability studies, economic impact analysis,
perspective renderings, lists of proposed covenants or restrictions, mainte-
nance schedules, and additional specifications relating to development phas-
ing. Id., § 34.5.2 (n).
4
The record indicates that approximately one acre of the property fell
within a residential zone.
5
Bridgeport Avenue, also known as state route 714, is a major thoroughfare
in Shelton. Certain areas adjacent to it, including the parcel at issue in this
case, fell within a special development area and, thus, were available for
improvement as a planned development district.
6
Although Shelter Ridge was not initially named as a party defendant,
the trial court subsequently granted it permission to intervene.
7
The Appellate Court granted certification for the plaintiffs to appeal
from the judgment of the trial court pursuant to General Statutes § 8-9, and
we subsequently transferred that appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
8
The municipality in Sheridan, the city of Stamford, had enacted a charter
authorized by a special act of the legislature, providing in relevant part:
‘‘The zoning board is authorized to regulate the height, number of stories
and size of buildings and other structures; the percentage of the area of the
lot that may be occupied; the size of yards, courts and other open spaces;
the density of population and the location and use of buildings, structures
and land for trade, industry, residence or other purposes . . . .’’ (Internal
quotation marks omitted.) Sheridan v. Planning Board, supra, 159 Conn. 17–
18.
9
Although this conclusion is in accord with the law of other jurisdictions;
see 5 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning (4th Ed.
2011) § 88:2, p. 88-12; see also 3 P. Salkin, American Law of Zoning (5th Ed.
2011) § 24:18, p. 24-40; we recognize that a Connecticut land use treatise
suggests that Campion ‘‘seems limited on its facts to the provisions of the
New Haven special act and should not be construed as allowing [planned
development districts] to municipalities acting under the general statutes,
which do not contain similar zoning authorization.’’ 9 R. Fuller, supra, § 4:5,
p. 73. In light of the striking similarities between the language of the 1925
special act and § 8-2, we decline to conclude that the holding of Campion
is so limited.
10
General Statutes § 8-2m provides: ‘‘The zoning authority of any munici-
pality that (1) was incorporated in 1784, (2) has a mayor and board of
alderman form of government, and (3) exercises zoning power pursuant to
a special act, may provide for floating and overlay zones and flexible zoning
districts, including, but not limited to, planned development districts,
planned development units, special design districts and planned area devel-
opments. The regulations shall establish standards for such zones and dis-
tricts. Flexible zoning districts established under such regulations shall be
designed for the betterment of the municipality and the floating and overlay
zones and neighborhood in which they are located and shall not establish
in a residential zone a zone that is less restrictive with respect to uses than
the underlying zone of the flexible zoning district. Such regulations shall
not authorize the expansion of a pre-existing, nonconforming use. Notwith-
standing the provisions of this section, no planned development district
shall be approved which would permit a use or authorize the expansion of
a pre-existing nonconforming use where the underlying zone is a residen-
tial zone.’’
11
The bill giving rise to § 8-2m; see P.A. 06-128; was debated and passed
shortly after the Appellate Court’s decision in Campion was released, which
had held that the city of New Haven lacked the authority to create planned
development districts under the terms of its special act. Campion v. Board
of Alderman, 85 Conn. App. 820, 822 n.3, 859 A.2d 586 (2004), rev’d, 278
Conn. 500, 899 A.2d 542 (2006). After P.A. 06-128 was enacted, but before
it became effective, this court reversed the Appellate Court’s conclusion.
Campion v. Board of Aldermen, supra, 278 Conn. 502, 505. The following
day, P.A. 06-128, § 2, was made effective retroactively to the date of its
enactment. See Public Acts 2006, No. 06-196, § 290.
12
In MacKenzie, the Appellate Court contrasted the facts before it, which
involved altering requirements imposed on a particular parcel in a manner
that distinguished it from other properties in the same zone, with other
devices, such as floating zones and planned development districts, which
involve a legislative decision relating to the creation or alteration of the
underlying zones themselves. See MacKenzie v. Planning & Zoning Com-
mission, supra, 146 Conn. App. 433–34. In so doing, the Appellate Court
expressly noted that the devices named in the latter category ‘‘are recognized
as legitimate land use tools’’ in this state. Id., 433.