A very short one from the Connecticut Appellate Court, Santos v. Zoning Board of Appeals, No. AC37281 (July 11, 2017) in a Penn Central-style takings challenge to local land use regulations. We’re going to set out the facts, then let you guess who prevailed.
The plaintiff purchased an unimproved parcel of land in Stratford at a tax sale conducted by the town in May, 2002. The prior owner had owned the property for approximately seventeen years, but had never attempted to develop the property. The town had never formally approved the property as a building lot. In noticing the sale of the property, the town included a warning that the property had not been guaranteed to be buildable under the town’s current zoning regulations. The property was sold to the plaintiff for approximately one half of its assessed value, and the prior owner made no attempt to exercise his right to redeem the property in the six months following the sale.
After the sale was complete, the plaintiff attempted to develop the property as a residential building lot. Because the property contained wetlands, the plaintiff applied for a permit from the town’s Inland Wetlands and Watercourses Commission. He then learned that two variances were required in order to build a home on the lot. One variance was required in order to construct a building near wetlands, and another was required because the lot, by application of the zoning regulations,1 did not meet the lot width requirement set forth in those regulations. The board denied the requested variances, noting that because the plaintiff’s predecessor in title had created the plaintiff’s lot in a way that did not conform to the town’s zoning regulations, the board lacked the power to grant a variance. The plaintiff appealed, and the trial court affirmed the board’s decision, reasoning that the plaintiff had failed to establish that the denial of the variance would cause him an unusual hardship.
If you guessed “no taking,” you win.
The court rejected the owner’s claim that he had a reasonable investment-backed expectation that he could build on the land. Yes, the denial of variances means he can’t build, but hey, he has the solution right in his hands:
The plaintiff has conceded, however, that he may still be able to build a home on the property. If the plaintiff adjusts the building line by inserting a limitation in his deed such that the lot width deficiency is remedied, and if the board approves a building plan consistent with that adjustment, he will be able to build a home on his property. Both parties conceded this point in their briefs and at oral argument before this court. It is undisputed, then, that the problem could be solved with relatively little expense.
Slip op. at 3.
Santos v. Zoning Board of Appeals, No. AC 37281 (Conn. Ct. App. July 11, 2017) (per curiam)