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Owners of Subdivision Properties Have Greater Development Opportunities

By Linda Alderman

Appellate Court Decision May Change Zoning Laws

Zoning laws related to subdivision properties could be substantially changed after the state of Connecticut court of appeal's decision of Poirier v. Town of Wilton Zoning Board of Appeals, allowing owners of subdivision properties to make significant modifications to their homes that otherwise wouldn't have been allowable.

In Poirer, a Wilton couple sought a building permit to add a garage and breezeway to their home that was built in 1954 as part of a 38-lot subdivision. The planning and zoning commission denied their request because the addition would have exceeded the lot coverage limitations allowed under the current zoning regulations. They appealed, arguing that the commission had to apply the zoning regulations that were in effect in 1954, which would have allowed the building permit, and could not apply the current zoning regulations that had been modified to restrict the lot coverage limitations. In support of their argument, the Poiriers cited C.G.S. � 8-26a(b), which provides that "when a change is adopted in the zoning regulations . . . no lot or lots shown on a subdivision plan for residential property, which has been approved, prior to the effective date of such change shall be required to conform to such change." Wilton attorneys argued that other state laws restricted the Poiriers from getting a building permit. The superior court upheld the town's denial, but the appellate court reversed unanimously. The appellate court held that 8-26a(b) placed a "sweeping statutory restriction" on a town's ability to regulate land use once it has approved a subdivision plan and that the statute forever prohibits the application of new subdivision or zoning regulations to all subdivisions once they are approved. It further stated that by enacting the statute, "the legislature has clearly made a policy decision that once the division of the land and proposed lot layout has been reviewed by the municipality through its planning commission the subdivision does not have to be reviewed again, and that the subdivision lots are not affected by subsequently enacted zoning regulations." The court's holding, therefore, is that owners of approved subdivision lots had a vested right to build in accordance with the zoning regulations in effect at the time of the subdivision approval.

The effects of Poirier will be numerous and far reaching. First, and most importantly, zoning commissions will no longer be able to apply just one set of zoning regulations -- each application related to a subdivision will be subject only to the (usually much less stringent) laws that were on the books at the time the subdivision was created. Not only will this create a bureaucratic nightmare for zoning commissions, zoning boards of appeal and courts alike, but houses built next to each other but built upon different subdivisions could be subject to different regulations, undermining the goal of uniform zoning. For example, if a developer wants to build larger homes than are allowed by current lot coverage restrictions he can purchase subdivision lots that were approved prior to the passage of those restrictions, raze the current structures and then build those larger homes. Poirier will, therefore, probably have the impact of increasing the value of homes located in older subdivisions in towns where there are stringent lot coverage limitations. For example over the past decade, Greenwich has been inundated with applications for the construction of "McMansions", which some residents say ruin Greenwich's character. This year the Greenwich Planning and Zoning Commission approved regulations meant to limit house size uniformly throughout the town by reducing bulk-control measures such as floor area ratio. Poirier could have the effect of allowing owners and/or developers in Greenwich to circumvent those regulations in subdivisions that were formed prior to the passage of those new regulations.

Attorney Alderman  regularly represents landowners, operators, and other impacted parties in matters related to Environmental Law, Wetlands, Land Use or Zoning. 

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