2004 merriam

2004 Connecticut Commercial Real Estate Conference: 

2004 Connecticut Commercial Real Estate Conference Update on Land Use Law Dwight H. Merriam, FAICP, CRE www.dwightmerriam.com

Connecticut Cases : 

Connecticut Cases The wetlands case AvalonBay v. Wilton (Conn. 2003) Jurisdiction over upland review areas and beyond

The “legislative fix” that did nothing…: 

The “legislative fix” that did nothing…

PUBLIC ACT 04-209: AN ACT CONCERNING JURISDICTION OF MUNICIPAL INLAND Section 1. Section 22a-41 of the general statutes is amended by adding subsections (c) and (d) as follows:(NEW) (c) For purposes of this section, (1) "wetlands or watercourses" includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) "habitats" means areas or environments in which an organism or biological population normally lives or occurs. (NEW) (d) A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses. Approved June 3, 2004: 

PUBLIC ACT 04-209: AN ACT CONCERNING JURISDICTION OF MUNICIPAL INLAND Section 1. Section 22a-41 of the general statutes is amended by adding subsections (c) and (d) as follows: (NEW) (c) For purposes of this section, (1) "wetlands or watercourses" includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) "habitats" means areas or environments in which an organism or biological population normally lives or occurs. (NEW) (d) A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses. Approved June 3, 2004

A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses.: 

A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses.

Nothing really changed…maybe: 

Nothing really changed…maybe

Slide7: 

The “big box” legislation Public Act 04-248 Sec. 3. … the zoning regulations of a municipality… shall not authorize the construction of structures…more than twelve thousand square feet, within two thousand feet of the boundary of any lake, that exceeds five hundred acres. The provisions of this section shall not apply to reservoirs.

Slide8: 

Watch out in marketing properties At least until the General Assembly fixes it…and watch the slip laws for similar high jinks in the future…they’ll do it again…

Slide9: 

The very recent Planned Development District case Campion v. New Haven, Nov. 9, 2004 http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP85/85ap519.pdf Do you have an approved PDD not yet built? Is it legal?

Connecticut in the U.S. Supreme Court – the Eyes of the Entire Country Are Upon Us: 

Connecticut in the U.S. Supreme Court – the Eyes of the Entire Country Are Upon Us Kelo v. New London, 843 A.2d 500 (Conn.2004) How far is too far in interpreting the public use requirement of the Fifth Amendment? Is private economic development a public use under the Fifth Amendment?

Fort Trumbull: 

Fort Trumbull

What happened: 

What happened 1978 development corporation established Jan 1998 state bond commission authorized bonds for planning and property acquisition to create state park at Ft. Trumbull Feb 1998 Pfizer announced global research facility next to Ft. Trumbull 1998 development plan for 90 acres next to Ft. Trumbull and Pfizer

The development plan of 7 parcels: 

The development plan of 7 parcels 1: hotel, conference center, marinas 2: 80 new homes, Coast Guard Museum 3: 90,000 sq. ft. high tech research; Italian Dramatic Club four properties of three plaintiffs in this area 4A: parking eleven properties of four plaintiffs in this area 4B: marina

Slide16: 

5: 140,000 sq. ft. of office, parking, retail 6: water-dependent commercial uses 7: small; office or research All to be developed under ground leases, some of 99 years

Benefits: 

Benefits 518-867 construction jobs 718-1362 direct jobs 500-940 indirect jobs $680,544-1,249,843 property taxes Citywide 54% land tax exempt City economically “distressed”

The questions: 

The questions Is economic development a public use? Berman and Midkiff Not proved beyond a reasonable doubt that provisions are facially unconstitutional Was there sufficient public benefit? Private benefit secondary; economic development enough Was there reasonable assurance in parcels 3 and 4A of future public use? Sufficient statutory and contractual constraints

And more questions: 

And more questions Was the delegation of eminent domain authority to the development corporation unconstitutional? Enough that public benefits Were the takings reasonably necessary and were they for reasonably foreseeable needs? Long term planning; John Mullin thought otherwise Was equal protection afforded in not taking Italian Dramatic Club? Rational basis; burden of proof

Susette Kelo: 

Susette Kelo Registered nurse; bought in 1997 with husband, Tim

Slide21: 

Kelo can see Montauk from her house

Bill Von Winkle: 

Bill Von Winkle Ft. Trumbull deli with 6 apartments above Operated deli since 1986 All apartments occupied

Michael Christafaro and his father: 

Michael Christafaro and his father Brother Anthony’s children live here Family forced out of prior home for seawall never built (private development was)

Matt and Suzanne Dery: 

Matt and Suzanne Dery Family has lived in Ft. Trumbull area since 1895 Matt’s mother and father next door; mother born there 1918

Why did the Court take this case?: 

Why did the Court take this case? Widely-reported cases elsewhere Michigan Supreme Court reversed Poletown case in July

Impacts of possible outcomes…: 

Impacts of possible outcomes… May get more definitive rules May not change things much Continuing public involvement More articulated plans