International Investors v. Town Plan & Zoning Commission ( 2021 )

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INTERNATIONAL INVESTORS v. TOWN PLAN
AND ZONING COMMISSION OF THE
TOWN OF FAIRFIELD ET AL.
(AC 43035)
Prescott, Elgo and Moll, Js.
Syllabus
The plaintiff, an abutting property owner, appealed to this court from the
judgment of the trial court sustaining in part its appeal from the decision
of the defendant Town Plan and Zoning Commission of the Town of
Fairfield granting extensions of the approvals of a special permit and
coastal site plan review to the defendant F Co., until April, 2023. The
commission had approved the special permit and coastal site plan review
in April, 2006. A nonparty appealed the commission’s decision to the
Superior Court and an appeal from the Superior Court’s judgment in
that case to our Supreme Court was dismissed on April 8, 2009. In April,
2009, the Fairfield zoning regulations provided that a special permit was
valid for two years, subject to any extensions, from the date of such
approval and, in the case of an appeal, the two year period would
commence from the date of the final judicial determination of such
appeal. On February 8, 2011, the commission amended the Fairfield
zoning regulations, which deleted the language providing for the two
year limitation. On February 15, 2011, F Co. requested confirmation
from the town that pursuant to the 2011 amendment to the Fairfield
zoning regulations and a certain statute (§ 8-3 (i)), the special permit
and coastal site plan review approvals granted in April, 2006, remained
in effect until April 8, 2014. The town provided the requested confirma-
tion in writing. A few years later, in March, 2018, F Co. submitted a
letter to the commission requesting an extension of the special permit
and coastal site plan review approvals, which the commission voted to
extend until April, 2023. The plaintiff appealed from that decision to
the trial court, which sustained the appeal in part, concluding that
the commission’s decision to extend the special permit approval was
improper. The court further concluded, however, that its decision sus-
taining the plaintiff’s appeal as to the commission’s decision to extend
the special permit approval did not operate to invalidate the special
permit, because special permits attach to the property and run with the
land and, therefore, could not be limited as to time, and the plaintiff,
on the granting of certification, appealed to this court. The plaintiff
claimed that the court improperly concluded that the special permit
granted to F Co. could not be limited in duration because a zoning
authority is empowered pursuant to statute (§ 8-2 (a)) to impose a
temporal condition on a special permit and the court’s reliance on the
legal principle that special permits ‘‘run with the land’’ was misplaced.
Held that the trial court incorrectly determined that the special permit
granted to F Co. and recorded in the land records pursuant to statute
(§ 8-3d) was valid indefinitely and could not be subject to a temporal
condition: § 8-2 (a), which provides that special permits may be approved
subject to ‘‘conditions necessary to protect the public health, safety,
convenience and property values,’’ authorizes a zoning authority to con-
dition, by regulatory fiat, its approval of a special permit on the comple-
tion of development related to the permitted use within a set time frame
as it prevents the permit holder from unduly delaying the commencement
of the permitted use to a time when the surrounding circumstances may
no longer support it; moreover, the fact that the legislature has chosen
to set forth express time limits in some land use statutes does not
prevent the imposition of temporal limits on special permits, especially
in light of the explicit language in § 8-2 (a) permitting a zoning authority
to subject a special permit approval to certain conditions; furthermore,
the trial court misapplied the legal principle that special permits ‘‘run
with the land’’ in concluding that special permits cannot be temporally
restricted, although permits are not personal to the applicant and remain
valid notwithstanding a change in the ownership of the land, a zoning
authority is not prohibited from placing a temporal condition on a special
permit; accordingly, once the special permit became effective in April,
2009, F Co. had two years to complete development on the property in
accordance with the Fairfield zoning regulations in effect at that time,
and, because it failed to do so or request any extensions within that
time frame, the special permit expired in April, 2011, and the case was
remanded with direction to render judgment sustaining the plaintiff’s
appeal as to its claim that the special permit expired on April 8, 2011.
Argued September 21, 2020—officially released February 16, 2021
Procedural History
Appeal from the decision of the named defendant
extending its approvals of a special permit and a coastal
site plan review granted to the defendant Fairfield Com-
mons, LLC, brought to the Superior Court in the judicial
district of Fairfield and tried to the court, Radcliffe, J.;
judgment sustaining the appeal in part, from which the
plaintiff, on the granting of certification, appealed to
this court. Affirmed in part; reversed in part; judg-
ment directed.
Charles J. Willinger, Jr., with whom, on the brief,
were Ann Marie Willinger and James A. Lenes, for the
appellant (plaintiff).
James T. Baldwin, for the appellee (named
defendant).
John F. Fallon, for the appellee (defendant Fairfield
Commons, LLC).
Opinion
MOLL, J. This appeal requires us to consider whether
a zoning authority may condition its approval of a spe-
cial permit on the completion of development attendant
to the permitted use by a date certain, in effect imposing
a conditional time limit on the special permit. The plain-
tiff, International Investors, appeals from the judgment
of the trial court disposing of the plaintiff’s appeal from
the decision of the defendant Town Plan and Zoning
Commission of the Town of Fairfield (commission)
extending its approvals of a special permit and coastal
site plan review granted to the defendant Fairfield Com-
mons, LLC (Fairfield Commons).1 After sustaining the
plaintiff’s appeal insofar as it challenged the commis-
sion’s decision to extend the special permit approval,
the court ruled that it nonetheless was not finding that
the special permit had expired because, it reasoned,
the special permit, once recorded in the town land
records, was valid indefinitely and not subject to a con-
dition limiting its duration. On appeal before us, the
plaintiff claims that the court improperly concluded
that the special permit remained valid on the basis that
it could not be temporally limited. We reverse, in part,
the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. Fairfield Commons
owns an approximately 3.6 acre parcel of property
known as 1125 Kings Highway in Fairfield (property).
The plaintiff is 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 applica-
tion for a coastal site plan review.2 On April 11, 2006,
the commission approved the special permit and the
coastal site plan review.3 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.
See Lamar Co. of Connecticut, LLC v. Town Plan &
Zoning Commission, Superior Court, judicial district of
Fairfield, Docket No. CV-XX-XXXXXXX-S, 2008 WL 366557(January 25, 2008) (Lamar action). On May 5, 2008, an
appeal from the judgment rendered in the Lamar action
was filed with this court and later transferred to our
Supreme Court, which dismissed the appeal on April
8, 2009. See Connecticut Supreme Court, Docket No.
SC 18204 (appeal dismissed April 8, 2009).
The Fairfield Zoning Regulations in effect on April 8,
2009 (2009 regulations)4 contain the following relevant
provisions. Section 25.8.3 of the 2009 regulations pro-
vides: ‘‘The duration of a [special permit] shall be as
provided in Sections 2.23.5, 2.23.6 and 2.23.7 of the
Zoning Regulations.’’ Section 2.23.5 of the 2009 regula-
tions in turn provides: ‘‘Approval or approval with modi-
fication shall constitute approval conditioned upon
completion of the proposed use in accordance with the
Zoning Regulations within a period of two (2) years
from the date of such approval.’’ Section 2.23.6 of the
2009 regulations provides in relevant part: ‘‘(a) Upon
failure to complete within such two (2) year period,
the approval or approval with modification shall
become null and void, unless an appeal to court is filed
within such period, whereupon the two (2) year period
shall commence from the date of the final judicial deter-
mination of such appeal. Three (3) extensions of such
period for an additional period not to exceed one (1)
year may be granted, subject to appropriate conditions
and safeguards necessary to conserve the public health,
safety, convenience, welfare and property values in the
neighborhood. . . .’’5
On February 8, 2011, the commission amended § 2.23
of the 2009 regulations (2011 amendment). Following
the 2011 amendment, § 2.23 of the Fairfield Zoning Reg-
ulations read in its entirety: ‘‘Whenever a public hearing
on any application is to be held pursuant to the require-
ments of the foregoing sections of the Zoning Regula-
tions, other than the public hearing for an amendment
to the Zoning Regulations, the procedure for which is
set forth in Section 2.39 of the Zoning Regulations,
the Commission shall proceed in accordance with the
requirements of the Connecticut General Statutes.’’ The
remainder of § 2.23 as it existed in the 2009 regulations,
including §§ 2.23.5 and 2.23.6, was deleted. The stated
purpose of the 2011 amendment was ‘‘to repeal the
language that is inconsistent with current statutory
requirements. Rather than adopt statut[ory] language
as part of the regulations, which may change from time
to time, reference is made to the statutes.’’ Additionally,
sometime after April 8, 2009, § 25.8.3 of the 2009 regula-
tions was amended to provide: ‘‘The duration of a [spe-
cial permit] shall be as provided in the Connecticut
General Statutes.’’
On February 15, 2011, Fairfield Commons requested
confirmation from the town of Fairfield (town) that,
pursuant to the 2011 amendment and General Statutes
§ 8-3 (i),6 the special permit and coastal site plan review
approvals granted in April, 2006, remained in effect
until April 8, 2014. Thereafter, the town provided the
requested confirmation in writing.7
On May 9, 2011, the legislature amended § 8-3 (m) to
provide: ‘‘Notwithstanding the provisions of this sec-
tion, any site plan approval made under this section
prior to July 1, 2011, that has not expired prior to May
9, 2011,8 except an approval made under subsection (j)
of this section,9 shall expire not less than nine years
after the date of such approval and the commission
may grant one or more extensions of time to complete
all or part of the work in connection with such site
plan, provided no approval, including all extensions,
shall be valid for more than fourteen years from the
date the site plan was approved.’’10 (Footnotes added.)
Several years later, on March 29, 2018, Fairfield Com-
mons submitted a letter to the commission requesting
an extension of the special permit and coastal site plan
review approvals. Fairfield Commons represented that,
on an unspecified date, the commission and the office
of the town attorney had confirmed that, in accordance
with § 8-3 (m), the approvals were extended to April
8, 2018, subject to extensions. Pursuant to § 8-3 (m),
Fairfield Commons requested an additional five year
extension of the approvals to April 8, 2023. In a letter
addressed to the commission dated April 6, 2018, the
plaintiff opposed Fairfield Commons’ request for an
extension, arguing, inter alia, that the approvals had
expired in April, 2011, and that the 2011 amendment
had not affected the expiration date of the approvals.
On April 10, 2018, the commission held a meeting to
discuss Fairfield Commons’ request for an extension
of the special permit and coastal site plan review
approvals. The meeting was attended by commission
members, alternates, and town department members,
including Jim Wendt, the town’s planning director. Dur-
ing the meeting, which was transcribed, Wendt stated
that, at the time of Fairfield Commons’ March 29, 2018
request for an extension of the approvals, the expiration
date of the approvals was April 8, 2018, explaining that
(1) on April 8, 2009, when our Supreme Court dismissed
the appeal filed in the Lamar action, the 2009 regula-
tions were in effect, and, thereunder, the approvals
were set to expire on April 8, 2011, (2) prior to the 2011
amendment, the 2009 regulations conflicted with § 8-
3 (i), which allowed up to five years, not including
extensions, for the completion of work related to site
plans, (3) the commission approved the 2011 amend-
ment so that the Fairfield Zoning Regulations would be
‘‘in sync’’ with the General Statutes, (4) the commission
intended to have the 2011 amendment apply retroac-
tively, (5) as the approvals had been active in February,
2011, when the 2011 amendment was adopted, the 2011
amendment had operated to extend the approvals to
April 8, 2014, and (6) following the amendment to § 8-
3 (m) in May, 2011, the approvals were further extended
to April 8, 2018. At the conclusion of the meeting, the
commission voted unanimously to grant Fairfield Com-
mons’ request for an extension of the approvals to April
8, 2023.11 In a letter dated April 12, 2018, Wendt notified
Fairfield Commons of the commission’s decision, and
notice of the decision was published in a local newspa-
per on April 13, 2018.
On April 20, 2018, the plaintiff appealed from the
commission’s decision to the Superior Court. The plain-
tiff claimed on appeal that the commission improperly
granted Fairfield Commons’ request for an extension
of the special permit and coastal site plan review
approvals because the approvals had expired prior to
the commission’s action. More specifically, the plaintiff
asserted that (1) the 2009 regulations governed the
approvals, and, in accordance therewith, the approvals
had expired on April 8, 2011, (2) the 2011 amendment
and § 8-3 (m) did not apply retroactively to the approv-
als, and (3) even assuming that they applied retroac-
tively, the 2011 amendment and § 8-3 (m) were germane
to site plans only and, thus, had no bearing on the
approval of the special permit.12 In response, Fairfield
Commons, joined by the commission,13 argued that (1)
the 2011 amendment incorporated by reference § 8-3
(i) and (m), pursuant to which the approval of the
coastal site plan review had been extended first to April
8, 2014 (under § 8-3 (i)) and then to April 8, 2018 (under
§ 8-3 (m)), (2) the coastal site plan review was insepara-
ble from the special permit such that the extension of
the coastal site plan review approval to April 8, 2018,
also functioned to extend the special permit approval to
April 8, 2018, and (3) Fairfield Commons had statutory
authority under § 8-3 (m) to request an additional five
year extension of the approvals. On October 12, 2018,
the plaintiff filed a reply brief, arguing, inter alia, that
special permits and site plans are separate and distinct,
such that § 8-3 (i) and (m), concerning site plans only,
were inapplicable to the special permit approval.
On February 14, 2019, the trial court, Radcliffe, J.,
issued a memorandum of decision sustaining, in part,
the plaintiff’s appeal. After finding that the plaintiff was
statutorily aggrieved as an abutting landowner of the
property, the court determined that § 8-3 (i) and (m)
governed site plans only, and, as a result, those statutory
provisions provided no basis to extend the approval of
the special permit, which the court found to be separate
and distinct from the approval of the coastal site plan
review. Accordingly, the court concluded that the com-
mission’s decision to extend the special permit approval
was improper.
The court proceeded to clarify that its decision sus-
taining the plaintiff’s appeal as to the commission’s
decision extending the special permit approval did not
operate to invalidate the special permit. Citing R. Fuller,
9B Connecticut Practice Series: Land Use Law and Prac-
tice (4th Ed. 2015), and several Superior Court deci-
sions, the court stated that ‘‘[s]pecial permits, like vari-
ances, attach to the property, and run with the land,’’
and, consequently, special permits could not be ‘‘limited
as to time, or personalized to any individual.’’ In addi-
tion, observing that a zoning authority has no inherent
powers but rather derives its authority strictly from
statute, the court further determined that ‘‘[n]o provi-
sion of the General Statutes allows a municipal zoning
commission to revoke, or place a time limit upon, a valid
special permit, which has become effective pursuant
to [General Statutes §] 8-3d14 . . . . Therefore, the
April 10, 2018 action of the [commission] had no impact
on the special permit issued to . . . Fairfield Com-
mons . . . assuming that the special permit was other-
wise effective. The only approval impacted by the
action, based upon the provisions of [§] 8-3 (i) and (m)
. . . is the coastal [site plan review approval].’’ (Foot-
note added.) In sum, the court concluded that ‘‘[t]he
appeal of the plaintiff . . . is sustained, to the extent
that it challenges the authority of the [commission] to
extend the expiration date of the special permit until
April 8, 2023. In sustaining the appeal, the court does
not find that the special permit issued to Fairfield Com-
mons . . . has expired, or is otherwise invalid, as a
matter of law.’’ (Emphasis omitted.)
On March 1, 2019, the plaintiff filed a petition for
certification to appeal from the court’s judgment, which
this court granted on May 22, 2019. This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
The plaintiff on appeal challenges the court’s judg-
ment insofar as the court concluded that the special
permit granted to Fairfield Commons could not be lim-
ited in duration and, thus, remained valid (and did not
require timely extension).15 More specifically, the plain-
tiff claims that the court improperly concluded that the
special permit, once recorded in accordance with § 8-
3d, was valid in perpetuity and not subject to a temporal
condition because (1) General Statutes § 8-2 (a) empow-
ers a zoning authority to impose a temporal condition
on a special permit and (2) the court’s reliance on the
legal principle that special permits ‘‘run with the land’’
was misplaced. For the reasons that follow, we agree.
At the outset, we set forth the applicable standard
of review. ‘‘The scope of our appellate review depends
upon the proper characterization of the rulings made
by the trial court. To the extent that the trial court has
made findings of fact, our review is limited to deciding
whether such findings were clearly erroneous. When,
however, the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Villages, LLC v. Enfield
Planning & Zoning Commission, 149 Conn. App. 448,
456, 89 A.3d 405 (2014), appeal dismissed, 320 Conn.
89, 127 A.3d 998 (2015). This appeal does not require
us to consider the propriety of the commission’s deci-
sion to grant Fairfield Commons’ application for a spe-
cial permit. Instead, the issue before us concerns the
court’s legal conclusion that the special permit, once
recorded in the town land records, was indefinite and
not subject to a condition limiting its duration. Thus,
our review is plenary.
I
We first turn to the plaintiff’s claim that the trial court
incorrectly determined that there was no statutory
authority enabling a zoning authority to restrict the
duration of a special permit, which, in the present case,
came in the form of a condition requiring the completion
of development attendant to the permitted use within
two years, subject to extensions. The plaintiff contends
that § 8-2 (a) extended such authority to the commis-
sion. We agree.
‘‘It is axiomatic that [a]s a creature of the state, the
. . . [town . . . whether acting itself or through its
planning commission] can exercise only such powers
as are expressly granted to it, or such powers as are
necessary to enable it to discharge the duties and carry
into effect the objects and purposes of its creation.
. . . In other words, in order to determine whether the
[condition] in question was within the authority of the
commission to [impose], we do not search for a statu-
tory prohibition against such an [action]; rather, we
must search for statutory authority for the [action].’’
(Citations omitted; internal quotation marks omitted.)
Moscowitz v. Planning & Zoning Commission, 16
Conn. App. 303, 308, 547 A.2d 569 (1988).
Resolving the plaintiff’s claim requires us to construe
§ 8-2 (a). ‘‘The principles that govern statutory construc-
tion are well established. When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . When a statute is not plain and unam-
biguous, we also look for interpretive guidance to the
legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter . . . .’’ (Internal quotation marks
omitted.) Petrucelli v. Meriden, 198 Conn. App. 838,
847–48, 234 A.3d 981 (2020).
Section 8-2 (a) provides in relevant part that zoning
‘‘regulations in one district may differ from those in
another district, and may provide that certain classes
or kinds of buildings, structures or uses of land are
permitted only after obtaining a special permit or spe-
cial exception16 from a zoning commission, planning
commission, combined planning and zoning commis-
sion or zoning board of appeals, whichever commission
or board the regulations may, notwithstanding any spe-
cial act to the contrary, designate, subject to standards
set forth in the regulations and to conditions necessary
to protect the public health, safety, convenience and
property values. . . .’’ (Footnote added.)
We construe the language of § 8-2 (a) providing that
special permits may be approved subject to ‘‘conditions
necessary to protect the public health, safety, conve-
nience and property values’’ as authorizing a zoning
authority to condition, by regulatory fiat, its approval
of a special permit on the completion of development
related to the permitted use within a set time frame.17
We note that ‘‘[t]he basic rationale for the special permit
[is] . . . that while certain [specially permitted] land
uses may be generally compatible with the uses permit-
ted as of right in particular zoning districts, their nature
is such that their precise location and mode of operation
must be regulated because of the topography, traffic
problems, neighboring uses, etc., of the site.’’ (Internal
quotation marks omitted.) St. Joseph’s High School,
Inc. v. Planning & Zoning Commission, 176 Conn.
App. 570, 586, 170 A.3d 73 (2017). The approval of a
special permit on the condition that development atten-
dant to the permitted use is finished by a date certain
prevents the permit holder from unduly delaying the
commencement of the permitted use to a time when the
surrounding circumstances may no longer support it.18
The following example illustrates the utility of impos-
ing a temporal condition on a special permit ‘‘to protect
the public health, safety, convenience and property val-
ues’’ within a municipality. General Statutes § 8-2 (a).19
In a particular municipality, in accordance with the
zoning regulations, an individual applies for a special
permit to operate a crematorium, which the zoning
authority grants with no time restriction limiting the
special permit. At that time, there is no other cremato-
rium in the municipality. The individual elects to wait
thirty years before constructing the crematorium. In the
interim, following the necessary approvals, two other
crematoriums have been built and are in operation. In
this scenario, although the construction and operation
of a crematorium may have been welcomed thirty years
prior when no other similar use existed within the
municipality, the lapse of time has diminished the need
for such a use. A durational limit on the special permit
granted to the individual would have prevented such a
circumstance.20
The defendants argue that the legislature has
expressly imposed durational limits with respect to
other land use permits, such as inland wetlands permits;
see General Statutes § 22a-42a (d) (2) and (g);21 and
thus, without an explicit time limit set forth therein,
§ 8-2 (a) should not be interpreted to authorize temporal
limitations on special permits.22 We are not persuaded.
The defendants’ argument ignores the explicit language
of § 8-2 (a) permitting a zoning authority to subject
a special permit approval to ‘‘conditions necessary to
protect the public health, safety, convenience and prop-
erty values.’’ General Statutes § 8-2 (a). We do not con-
strue the legislature’s choice to set forth express time
limits in some land use statutes as eschewing the impo-
sition of temporal limits on special permits. As we con-
clude in this opinion, a condition limiting the duration
of a special permit falls within the ambit of § 8-2 (a).
In sum, we conclude that § 8-2 (a) empowers a zoning
authority to impose a temporal condition on a special
permit, in this instance, by requiring the completion of
development attendant to the permitted use within a
set time frame. Thus, the court improperly concluded
that there was no statutory authority enabling a zoning
authority to impose such a condition.
II
The plaintiff next claims that the trial court improp-
erly 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. We agree.
In concluding that special permits, once recorded in
accordance with § 8-3d,23 are valid in perpetuity and
cannot be time limited, the court relied on former Judge
Robert A. Fuller’s treatise on land use and several Supe-
rior Court decisions. In his treatise, Fuller opines that
‘‘[w]hen a special permit is issued by the zoning commis-
sion or other agency designated in the zoning regula-
tions, it remains valid indefinitely since the use allowed
under it is a permitted use subject to conditions in the
zoning regulations. [In N & L Associates v. Planning &
Zoning Commission, Superior Court, judicial district
of Litchfield, Docket No. CV-04-93492-S (June 8, 2005)
(39 Conn. L. Rptr. 466, 468–69)] [w]here a special excep-
tion and related site plan was granted for earth excava-
tion and related activities, including the retail sales of
gravel created by processing it as an accessory use to
the commercial gravel business even though renewal
of the approval was required every two years from the
zoning commission, the special exception runs with the
land and was not personal with the initial property
owner which is confirmed by the provision in § 8-3d
that special exceptions are not effective until they are
recorded in the land records. A special permit runs with
the land, and a limitation on it and a related site plan
cannot be limited to the time of ownership of the origi-
nal applicant. The agency cannot put an expiration date
on and require renewal of special permits or special
exceptions because that automatically would turn a
permitted use into an illegal use after the time period
expired.’’ (Footnotes omitted.) 9B R. Fuller, supra,
§ 50:1, pp. 162–63. Fuller further opines that ‘‘[i]f the
conditions of the special permit are violated, the remedy
is a zoning enforcement proceeding since there is no
statutory provision allowing revocation or expiration
of special permits.’’ Id., 163.
Upon our careful review of the case law cited by the
trial court and/or in Fuller’s treatise, we conclude that
the court misapplied the legal principle that special
permits ‘‘run with the land.’’ In those cases, 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 owner-
ship of the land. See Fromer v. Two Hundred Post
Associates, 32 Conn. App. 799, 802, 805, 631 A.2d 347(1993) (concluding that inland wetlands permit ‘‘to con-
duct a regulated activity runs with the land and not
with the applicant,’’ that permit ‘‘is concerned solely
with the property to be regulated, and that the change
of ownership does not affect the validity of the permit’’);
Madore v. Zoning Board of Appeals, Superior Court,
judicial district of Middlesex, Docket No. CV-11-
6005648-S (August 21, 2012) (54 Conn. L. Rptr. 519,
523) (concluding that home occupation site plan permit
issued to plaintiff’s husband remained valid notwith-
standing husband’s death because permit ‘‘ran with the
land, not with the applicant’’); Gozzo v. Zoning Com-
mission, Superior Court, judicial district of New Brit-
ain, Docket No. CV-XX-XXXXXXX-S (July 24, 2008) (46
Conn. L. Rptr. 110, 114) (concluding that conditions
imposed on special permit, including condition provid-
ing that special permit ‘‘shall pertain only to the present
owner of the property and shall not run with the prop-
erty,’’ were invalid, stating, inter alia, that ‘‘[t]o the
extent that [the] conditions are personal to the plaintiffs
and reflect that this permit will not run with the land,
they are invalid’’); Shaw v. Planning & Zoning Com-
mission, Superior Court, judicial district of Fairfield,
Docket No. CV-02-395344 (July 12, 2005) (39 Conn. L.
Rptr. 648, 651) (concluding that ‘‘special permit runs
with the land’’ and, therefore, change in operator of
group home on property would not invalidate special
permit); N & L Associates v. Planning & Zoning Com-
mission, supra, 39 Conn. L. Rptr. 468 (concluding that
‘‘special permit issued to [prior property owner] ran
with the land and [subsequent property owner] was
entitled to use it to operate its gravel excavation busi-
ness’’); Beeman v. Planning & Zoning Commission,
Superior Court, judicial district of New Haven, Docket
No. CV-XX-XXXXXXX (April 27, 2000) (27 Conn. L. Rptr.
77, 80) (concluding that special permit ‘‘run[s] with the
land’’ and, therefore, condition voiding special permit
if permit holder transferred property was invalid); Gris-
wold Hills of Newington Ltd. Partnership v. Town
Plan & Zoning Commission, Superior Court, judicial
district of Hartford-New Britain, Docket No. CV-95-
0705701-S (June 9, 1995) (14 Conn. L. Rptr. 405, 407)
(concluding that special permit and site plan ‘‘run with
the land’’ and, therefore, current owner of property had
standing to bring mandamus action to require planning
and zoning commission to finalize land use approvals
granted to previous owner of property). These cases
illustrate the well settled precept that land use permits
are not personal to the applicant and are not rendered
void by a transfer of ownership of the property. None
of these cases, however, addresses the issue of whether
a zoning authority may impose a temporal condition in
approving a special permit.
Put another way, there is a distinction between (a)
the principle that a special permit ‘‘runs with the land’’
as opposed to being personal in nature to the applicant
and (b) the ability of a zoning authority to place a
temporal condition on a special permit. At least one
Superior Court decision has recognized this distinction.
In Vanghel v. Planning & Zoning Commission, Supe-
rior Court, judicial district of Windham, Docket No. CV-
XX-XXXXXXX-S (August 20, 2012) (54 Conn. L. Rptr. 589),
the trial court upheld the denial of the plaintiff’s applica-
tion seeking a second renewal of his special permit on
the ground that the local zoning regulations, pursuant
to which special permit approvals were rendered void
if improvements attendant thereto were not completed
within two years, subject to renewal for ‘‘an additional
period of two years,’’ did not authorize multiple renew-
als. (Emphasis omitted.) Id., 592–94. In a footnote, the
court considered an argument raised by the plaintiff that
construing the zoning regulations to preclude multiple
renewals would be ‘‘inconsistent with the principle that
the permit attaches to the land and follows the title
. . . .’’ Id., 594 n.1. The court rejected that argument,
aptly observing that ‘‘[t]here is no inconsistency
between the zoning rights running with the land and
not with the owner, and temporal limitations on those
rights. They are different subjects.’’24 (Emphasis
added.) Id. We agree with that assessment.
In his treatise, Fuller cites Durham Rod & Gun Club,
Inc. v. Planning & Zoning Commission, Superior
Court, judicial district of Middlesex, Docket No. CV-94-
0072189-S (November 27, 1995), Scott v. Zoning Board
of Appeals, 88 App. Div. 2d 767, 451 N.Y.S.2d 499 (1982),
and Room & Board Homes & Family Care Homes,
Operators & Owners v. Gribbs, 67 Mich. App. 381, 241
N.W.2d 216 (1976), in positing that ‘‘[t]here is some case
law in Connecticut and other states concluding that in
the absence of statutory authority, the commission or
board which grants special permits (special exceptions)
cannot impose a time limit or expiration date as a condi-
tion of approval of the permit.’’ (Emphasis added.) 9B
R. Fuller, supra, § 50:1, p. 163 and n.8. As we have
concluded in part I of this opinion, § 8-2 (a) authorizes
the imposition of a temporal condition on a special
permit. Moreover, although the parties have not cited,
and our research has not revealed, any appellate case
law in this state analyzing the issue of whether a special
permit may be restricted in duration, a number of our
Superior Courts have determined that such a condition
is permissible. See, e.g., 848, LLC v. Zoning Board of
Appeals, Superior Court, judicial district of New Haven,
Docket No. CV-XX-XXXXXXX-S (June 6, 2016) (62 Conn. L.
Rptr. 550, 556–57) (concluding that planning and zoning
commission had authority to grant special permit with
condition, imposed in response to public safety con-
cerns, that commission, along with police and fire
departments, would review permit within one year);
Vanghel v. Planning & Zoning Commission, supra, 54
Conn. L. Rptr. 594 n.1 (rejecting plaintiff’s argument
that limiting duration of special permit conflicted with
legal principle that special permits ‘‘run with the land’’);
Cole v. Planning & Zoning Commission, Superior
Court, judicial district of Litchfield, Docket No. CV-91-
55617, 1994 WL 149326, *6–7 (April 4, 1994) (rejecting
plaintiff’s argument that amendment to zoning regula-
tions, providing that special permits obtained to operate
sawmills in residential districts expire after two years
subject to renewals, was illegal), aff’d, 40 Conn. App.
501, 671 A.2d 844 (1996).
Additionally, in his treatise, in support of the proposi-
tion that, once issued, a special permit ‘‘remains valid
indefinitely since the use allowed under it is a permitted
use subject to conditions in the zoning regulations,’’
Fuller cites Cioffoletti v. Planning & Zoning Commis-
sion, 24 Conn. App. 5, 584 A.2d 1200 (1991), and East
Windsor Sportsmen’s Club v. Planning & Zoning Com-
mission, Superior Court, judicial district of Hartford-
New Britain, Docket No. 338696 (July 10, 1989) (4
C.S.C.R. 657). 9B R. Fuller, supra, § 50:1, p. 162 and
n.5. Neither case supports the conclusion that special
permits cannot be temporally limited.
In Cioffoletti, the plaintiffs owned property on which
they operated a commercial sand and gravel removal
business as a valid nonconforming use. Cioffoletti v.
Planning & Zoning Commission, supra, 24 Conn. App.
6. Sometime after the plaintiffs had started their busi-
ness, the local planning and zoning commission
amended its zoning regulations to provide that sand
and gravel operations required a special permit, which
could be granted for a maximum of two years, subject
to an additional extension. Id., 6–7. The plaintiffs chal-
lenged the amended regulation, and the trial court held
that, as applied to the plaintiffs, the amended regulation
was illegal because it attempted to prohibit the plaintiffs
from continuing their valid existing nonconforming use.
Id., 7. On appeal, this court affirmed the trial court’s
judgment, stating that ‘‘[i]t is a fundamental zoning pre-
cept in Connecticut . . . that zoning regulations can-
not bar uses that existed when the regulations were
adopted.’’ Id., 8. Additionally, this court observed that
‘‘assum[ing], arguendo, that the [planning and zoning
commission] has the authority to regulate sand and
gravel removal and if otherwise proper, the regulation
in question is a lawful mechanism to control any such
business started after the effective date of the regula-
tion.’’ Id. Thus, whether a special permit can be tempo-
rally limited was not at issue in Cioffoletti; rather, Ciof-
foletti was decided in accord with the well settled legal
principle that zoning regulations cannot prohibit preex-
isting valid nonconforming uses.
In East Windsor Sportsmen’s Club, the plaintiff sub-
mitted an application to amend its existing special per-
mit to allow it to construct a storage shed adjacent to
its shooting range. East Windsor Sportsmen’s Club v.
Planning & Zoning Commission, supra, 4 C.S.C.R. 658.
The local zoning commission granted the application
with certain conditions, including a limitation on the
hours of the shooting range. Id. On appeal to the Supe-
rior Court, the plaintiff claimed, inter alia, that the zon-
ing commission acted illegally by adding a restriction
to the existing special permit. Id. The court sustained
the appeal on that ground, concluding that there was
nothing in the record reflecting that the existing special
permit was conditioned on periodic review, that neither
§ 8-2 nor the local zoning regulations gave the zoning
commission ‘‘authority to restrict a preexisting use of
undisputed legality,’’ and that, even assuming that the
plaintiff’s application could be construed as requesting
an expansion of the use allowed under the special per-
mit, there was no authority enabling the zoning commis-
sion to restrict the original permitted use. Id. Nothing
in East Windsor Sportsmen’s Club supports the propo-
sition that, in granting a permit initially, a temporal
condition cannot be imposed.
In sum, we conclude that the court incorrectly deter-
mined that the special permit granted to Fairfield Com-
mons, once recorded, was valid indefinitely and could
not be subject to a temporal condition, such as a condi-
tion requiring the completion of development attendant
to the permitted use by a date certain. Thus, the court
committed error in concluding that the special permit
had not expired. Once the special permit became effec-
tive in 2009, Fairfield Commons had two years, subject
to any additional extensions granted, to complete devel-
opment on the property. Fairfield Commons failed to
complete development or request any extensions of the
special permit approval within that time frame, and,
therefore, the special permit expired in 2011. We leave
undisturbed the court’s conclusion that the commis-
sion’s decision extending the special permit was
improper.
The judgment is 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 is remanded with direction to render judg-
ment sustaining the plaintiff’s appeal as to that claim;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
On January 16, 2020, the commission filed a notice indicating that it was
adopting the appellate brief filed by Fairfield Commons. We refer in this
opinion to Fairfield Commons and the commission individually by their
designated names and collectively as the defendants.
2
Pursuant to § 2.14.1 of the Fairfield Zoning Regulations, ‘‘[a]ll buildings,
uses and structures fully or partially within the coastal boundary as defined
by Section 22a-94 of the Connecticut General Statutes and as delineated on
the Coastal Boundary Map for the Town of Fairfield, shall be subject to the
coastal site plan review requirements and procedures in Sections 22a-105
through 22a-109 of the Connecticut General Statutes.’’
3
When the commission approved the special permit in 2006, the permitted
use was a retail building. In 2017, the commission granted an application
filed by Fairfield Commons to change the permitted use to a medical
office building.
4
Pursuant to Practice Book § 81-6, the plaintiff filed copies of (1) the
2009 regulations and (2) the Fairfield Zoning Regulations in effect on March
29, 2018. The plaintiff represents that §§ 2.23.5 and 2.23.6 of the 2009 regula-
tions were also in effect in 2006, when Fairfield Commons’ special permit
and coastal site plan review applications were submitted and granted. None
of the parties contends that the relevant zoning regulations in effect in 2006
varied from the 2009 regulations.
5
Section 2.23.7 of the 2009 regulations concerned special permits required
for land excavation and fill.
6
General Statutes § 8-3 (i) provides: ‘‘In the case of any site plan approved
on or after October 1, 1984, except as provided in subsection (j) of this
section, all work in connection with such site plan shall be completed within
five years after the approval of the plan. The certificate of approval of such
site plan shall state the date on which such five-year period expires. Failure
to complete all work within such five-year period shall result in automatic
expiration of the approval of such site plan, except in the case of any site
plan approved on or after October 1, 1989, the zoning commission or other
municipal agency or official approving such site plan may grant one or more
extensions of the time to complete all or part of the work in connection
with the site plan provided the total extension or extensions shall not exceed
ten years from the date such site plan is approved. ‘Work’ for purposes of this
subsection means all physical improvements required by the approved plan.’’
7
Fairfield Commons represents that it received the written confirmation
on March 11, 2011.
8
As enacted by the legislature, No. 11-5, § 1, of the 2011 Public Acts
amended General Statutes (Rev. to 2011) § 8-3 (m) to provide in relevant
part that ‘‘[n]otwithstanding the provisions of this section, any site plan
approval made under this section prior to July 1, 2011, that has not expired
prior to the effective date of this section . . . .’’ (Emphasis added.) In the
interest of simplicity, we refer in this opinion to the current revision of
the statute.
9
General Statutes § 8-3 (j) is not germane to this matter, as it concerns
site plans for projects ‘‘consisting of four hundred or more dwelling units
approved on or after June 19, 1987’’ and ‘‘any commercial, industrial or
retail project having an area equal to or greater than four hundred thousand
square feet approved on or after October 1, 1988 . . . .’’
10
Prior to the amendment, General Statutes (Rev. to 2011) § 8-3 (m) pro-
vided: ‘‘Notwithstanding the provisions of this section, any site plan approval
made under this section during the period from July 1, 2006, to July 1, 2009,
inclusive, except an approval made under subsection (j) of this section,
shall expire not less than six years after the date of such approval and the
commission may grant one or more extensions of time to complete all or
part of the work in connection with such site plan, provided no approval,
including all extensions, shall be valid for more than eleven years from the
date the site plan was approved.’’
11
The commission did not provide a collective statement of the basis for
its decision on the record. Prior to rendering its decision, a few members
of the commission opined that the approvals had not expired in February,
2011, when the 2011 amendment had become effective, and that the 2011
amendment had functioned to extend the approvals to April 8, 2018. Under
our law, such individual statements cannot be construed as a collective
statement of the basis of a zoning agency’s decision. See Verrillo v. Zoning
Board of Appeals, 155 Conn. App. 657, 673–74, 111 A.3d 473 (2015), and
cases cited therein.
12
The plaintiff also asserted that the 2011 amendment was void because the
commission had failed to comply with the notice and hearing requirements
of § 8-3 (a). On September 13, 2018, after the plaintiff had filed its brief on
the merits on August 24, 2018, the parties moved by stipulation to supplement
the record with two notices, dated January 28, 2011, and February 2, 2011,
respectively, indicating that a public hearing on the proposed amendment
had been scheduled for February 8, 2011, and with a notice reflecting that
the commission’s decision on the proposed amendment had been published
on February 11, 2011. The plaintiff’s claim challenging the validity of the
2011 amendment was not addressed by the trial court in its memorandum
of decision, and the plaintiff has not attempted to pursue that claim on
appeal before us.
13
On September 27, 2018, Fairfield Commons filed its brief on the merits.
On September 28, 2018, the commission filed a notice providing that it was
adopting the brief filed by the ‘‘defendant, International Investors.’’ We
construe the commission’s reference to ‘‘International Investors,’’ rather
than to Fairfield Commons, to be a misnomer. See also footnote 1 of this
opinion.
14
General Statutes § 8-3d provides: ‘‘No variance, special permit or special
exception granted pursuant to this chapter, chapter 126 or any special act,
and no special exemption granted under section 8-2g, shall be effective until
a copy thereof, certified by a zoning commission, planning commission,
combined planning and zoning commission or zoning board of appeals,
containing a description of the premises to which it relates and specifying
the nature of such variance, special permit, special exception or special
exemption, including the zoning bylaw, ordinance or regulation which is
varied in its application or to which a special exception or special exemption
is granted, and stating the name of the owner of record, is recorded in the
land records of the town in which such premises are located. The town
clerk shall index the same in the grantor’s index under the name of the
then record owner and the record owner shall pay for such recording.’’
15
In its appeal to the Superior Court, the plaintiff claimed that the commis-
sion committed error in extending the approvals of both the special permit
and the coastal site plan review. In its memorandum of decision, the court
sustained the plaintiff’s appeal insofar as the plaintiff challenged the commis-
sion’s decision to extend the special permit approval. Although the court
did not make an express ruling as to the coastal site plan review, it is
apparent that the court did not sustain the plaintiff’s appeal with respect
thereto. After determining that the special permit, once recorded in the
town land records, was valid indefinitely and could not be time restricted,
the court stated that ‘‘[t]he only approval impacted by the [commission’s]
action [on April 10, 2018], based upon the provisions of [§] 8-3 (i) and (m)
. . . is the coastal [site plan review approval].’’ The court then stated that
‘‘[t]he appeal of the plaintiff . . . is sustained, to the extent that it challenges
the authority of the [commission] to extend the expiration date of the
special permit until April 8, 2023.’’ (Emphasis altered.) In the appeal before
us now, the plaintiff limits its claims to the portion of the court’s judgment
regarding the special permit. The plaintiff has not raised any cognizable
claim on appeal concerning the coastal site plan review. We also note that
neither of the defendants has filed a cross appeal.
16
‘‘[T]he terms ‘special exception’ and ‘[s]pecial permit’ are interchange-
able.’’ American Institute for Neuro-Integrative Development, Inc. v. Town
Plan & Zoning Commission, 189 Conn. App. 332, 338–39, 207 A.3d 1053(2019).
17
Section 8-2 (a) also provides that special permits are ‘‘subject to stan-
dards set forth in the regulations . . . .’’ General Statutes § 8-2 (a). We need
not discuss whether this language provides an independent basis on which
a zoning authority may impose a temporal condition on a special permit
because we conclude that the portion of § 8-2 (a) subjecting special permits
to ‘‘conditions necessary to protect the public health, safety, convenience
and property values’’ enables a zoning authority to limit the duration of a
special permit.
18
The defendants argue that, pursuant to § 8-3 (i) and (m), site plans are
temporally limited and, therefore, a zoning authority would consider changes
in the surrounding circumstances if a permit holder’s site plan expired and
a new site plan application was submitted. We are not persuaded that a
zoning authority could necessarily consider changes in the surrounding
circumstances when acting on a new site plan application. ‘‘A zoning commis-
sion acts in an administrative capacity in its review of an application seeking
a special permit use. . . . Conversely, when a zoning commission reviews
a site plan, it is engaged in a ministerial process . . . .’’ (Citation omitted.)
Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn.
App. 1, 6, 613 A.2d 1358 (1992). ‘‘A zoning commission’s authority in ruling
on a site plan is limited. . . . The agency has no independent discretion
beyond determining whether the plan complies with the site plan regulations
and applicable zoning regulations incorporated by reference.’’ (Citation omit-
ted; internal quotation marks omitted.) Fedus v. Zoning & Planning Com-
mission, 112 Conn. App. 844, 848, 964 A.2d 549, cert. denied, 292 Conn.
904, 973 A.2d 104 (2009), and cert. denied, 292 Conn. 905, 973 A.2d 103(2009). ‘‘[Section] 8-3 (g) sets out a zoning commission’s authority to act
on a site plan application: ‘A site plan may be modified or denied only if it
fails to comply with requirements already set forth in the zoning or inland
wetlands regulations. . . .’ ’’ Id. Additionally, unlike a special permit, there is
no statutory mandate that a public hearing be held on a site plan application;
compare General Statutes § 8-3c (b) (public hearing required on special
permit application), with Clifford v. Planning & Zoning Commission, 280
Conn. 434, 441–42, 908 A.2d 1049 (2006) (§ 8-3 does not impose public
hearing requirement on site plan application); and a site plan application
is presumed to be approved if not acted upon within the time prescribed
by statute. Compare General Statutes § 8-3 (g) (1) (‘‘[a]pproval of a site plan
shall be presumed unless a decision to deny or modify it is rendered within
the period specified in section 8-7d’’), with Center Shops of East Granby,
Inc. v. Planning & Zoning Commission, 253 Conn. 183, 194, 757 A.2d 1052(2000) (A special permit application, even if containing a site plan, is not
subject to automatic approval, as ‘‘[a]utomatic approval would negate the
meaning that [our Supreme Court has] long attached to the concept of a
special permit. By virtue of its unique status, a special permit for a purpose
not permitted as of right necessarily must be considered by a town’s planning
and zoning commission.’’). In sum, a site plan application is not subject to
the same scrutiny directed to a special permit application, and, in fact, in
some instances, a site plan application will be automatically approved. Thus,
the defendants’ argument is unavailing.
19
Although the parties have not cited, and our research has not revealed,
any appellate case law addressing the issue of whether § 8-2 (a) empowers
a zoning authority to impose a time limit on a special permit, at least one
Superior Court decision has construed § 8-2 (a) to extend such authority.
See Cole v. Planning & Zoning Commission, Superior Court, judicial district
of Litchfield, Docket No. CV-91-55617, 1994 WL 149326, *7 (April 4, 1994)
(‘‘permitting a limited duration for a special permit seems consistent with
[§] 8-2’’), aff’d, 40 Conn. App. 501, 671 A.2d 844 (1996).
20
This is but one of many possible examples demonstrating how changes
in a zoning district may render a specially permitted use to be no longer
suitable. By way of another example, the construction and operation of a
retail plaza as a specially permitted use in a commercial area would be
appropriate, but less so if development was delayed and, in the meantime,
the area transformed in character such that additional traffic could not
be sustained.
21
General Statutes § 22a-42a (d) (2) provides: ‘‘Any permit issued under
this section for the development of property for which an approval is required
under chapter 124, 124b, 126 or 126a shall be valid until the approval granted
under such chapter expires or for ten years, whichever is earlier. Any permit
issued under this section for any activity for which an approval is not
required under chapter 124, 124b, 126 or 126a shall be valid for not less
than two years and not more than five years. Any such permit shall be
renewed upon request of the permit holder unless the agency finds that
there has been a substantial change in circumstances which requires a new
permit application or an enforcement action has been undertaken with
regard to the regulated activity for which the permit was issued, provided
no permit may be valid for more than ten years.’’
General Statutes § 22a-42a (g) provides: ‘‘Notwithstanding the provisions
of subdivision (2) of subsection (d) of this section, any permit issued under
this section prior to July 1, 2011, that has not expired prior to May 9, 2011,
shall expire not less than nine years after the date of such approval. Any
such permit shall be renewed upon request of the permit holder unless the
agency finds that there has been a substantial change in circumstances
that requires a new permit application or an enforcement action has been
undertaken with regard to the regulated activity for which the permit was
issued, provided no such permit shall be valid for more than fourteen years.’’
22
In support of their claim, the defendants also cite § 8-3 (i) and (m)
(imposing time limit on site plans) and General Statutes § 8-25 (a) (imposing
time limit on conditional approval of subdivision plan).
23
Section 8-3d mandates that, to be effective, special permits must be
recorded in the appropriate town land records. See footnote 14 of this
opinion. An instrument is not rendered valid indefinitely merely because it
is recorded. By way of example only, once recorded, a notice of lis pendens
is effective for no more than fifteen years unless it is properly rerecorded
within five years prior to expiration of the fifteen year period, after which
the rerecorded notice of lis pendens cannot continue in force for more than
ten years. See General Statutes § 52-325e.
24
In his treatise, Fuller states that the Vanghel decision ’’is questionable’’
because (1) special permits ‘‘run with the land’’ and (2) § 8-3 (i) allows work
under an approved site plan to be completed within five years, subject to
extensions. 9B R. Fuller, supra, § 50:1, p. 163. Regarding the first point, as
we conclude in this opinion, the fact that special permits ‘‘run with the
land’’ has no bearing on whether they may be temporally limited. The second
point is not germane to the issue of whether a special permit may be
temporally limited.