Week of September 30
Welcome to CT Law of the Land. Developments in the law which can impact the state and municipal agency approval process for land use applications in Connecticut happen on almost a daily basis. These can range from important court decisions, to legislative changes, all of which can dramatically impact the approval and review process. On this page we will try to highlight some of those changes that might be of interest to our clients and prospective clients. We invite you to check back regularly to receive potentially important tips.
- SC19027 - Lane v. Commissioner of Environmental Protection
- SC19027 Concurrence - Lane v. Commissioner of Environmental Protection
Plaintiff’s property had a gravel path that extended through the tidal marsh to a dock dating back to 1937, but its existence in the late 80’s was questionable, with some aerial photos suggesting the dock was gone by 85. In 1986, a hurricane took out part of the dock that remained, and it was replaced with a floating dock in 88, and a new boardwalk to a new dock were installed in 1988…… but without the permits required by the DEP (now DEEP) per CGS 22a-32 & 22a-361. When discovered, a notice of violation and order for removal was issued in 2007. The homeowner claimed the dock and boardwalk were grandfathered as they predated 1939 and had been in continuous existence ever since. This decision agreed that 22a-362b could not be applied retroactively, but the administrative decision was not based on that premise because the agency concluded the dock had not been continuously maintained since 1939. So that statute did not even apply. The Court also rejected the argument that no permit was required when an owner is replacing an existing structure and had no intent to abandon the pre-existing structure. If a new structure is to be built for any purpose, a permit is required. The principals of abandonment of a nonconforming use found in zoning law simply do not apply to the heavily regulated field of tidal wetlands and navigable waterways.
The concurrence agreed with the result, but objected to the majority agreeing to review an unpreserved claim upon which a party cannot prevail as being a total waste of the Court’s time.
The recent Superior Court decision in Steroco, Inc. v. Szymanski reminds us that in measuring the distance between a proposed liquor store and a church in order to determine compliance with a local regulation, the distance to be measured is a straight line between the church and the store, and not the walking distance between the two properties.
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