You asked whether there are any limits on the proportion of land that a municipality can require a developer to dedicate for open space, e. g. , could a municipality require a developer to dedicate 50% of the land in a subdivision for open space. The Office of Legislative Research is not authorized to provide legal opinions and this report should not be considered one.

SUMMARY

Under state law, planning commissions can adopt subdivision regulations that require developers to dedicate part of the subdivision to open space, parks, or playgrounds. The statute does not establish any limit on the amount of open space land a municipality can require and we have found no case law setting such a limit. State courts have upheld subdivision regulations requiring up to 15% of the land in a subdivision to be dedicated to open space, parks, or playgrounds.

An open space requirement would be subject to tests established by the state and U. S. Supreme Courts. In Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109 (1970), the state Supreme Court held that the validity of an open space or other subdivision requirement depends on whether the burden imposed on a developer is specifically and uniquely attributable to his own activity. In Dolan v. City of Tigard, 512 U. S. 374 (1994), the U. S. Supreme Court established a two-part test to determine the constitutionality of requirements by land use agencies that developers dedicate land for public purposes, such as open space, as a condition of obtaining local permits. First, there must be an “essential nexus” between a legitimate state interest and the permit condition. Second, the land use agency must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development, and the requirement must be roughly proportional to the impact. These tests apply when the agency is acting in its adjudicative capacity, approving individual subdivision applications, as distinct from its legislative capacity in adopting regulations.

STATE LAW

Under CGS § 8-25, municipal subdivision regulations must have a provision authorizing the planning commission to require “the provision of open spaces, parks and playgrounds when, and in places deemed appropriate by the planning commission…” The open space must be shown on the proposed subdivision plans. The open space requirements do not apply to transfers, for no consideration, of subdivisions containing up to five parcels among family members. Nor do they apply if 20% or more the housing in the subdivision will be affordable, as defined by law. The statute also allows the regulations to permit a developer to contribute up to 10% of the market value of the land before it is developed, in lieu of contributing the land itself. The payment of the fee in lieu of the land has to be approved by the commission and must be based on an appraisal made by an appraiser selected jointly by the commission and the developer. In contrast, the statute does not set a limit on the amount of land that can be demanded of the developer.

In practice, it appears that most towns in northeastern Connecticut that have open space requirement in their subdivision regulations cap the amount that a planning commission can require at 10% to 20% of the land in the subdivision. Many allow a developer to instead contribute 10% of the subdivision's market value. Ellington is unusual in that it requires the developer to donate land whose value is equal to 10% of the subdivision's fair market value, rather than specifying the acreage of the land that must be donated.

In addition to the above subdivision provisions, municipalities in Connecticut can limit the amount of individual parcels that can be developed through their zoning regulations adopted under CGS § 8-2 or special act. Such regulations routinely establish the maximum proportion of lot that can be covered by buildings and establish minimum distances between buildings and lot lines. While these measures to not produce open space, they can limit development.

CASE LAW

The statute does not establish any limit on the amount of open space land a municipality can require, but there is some relevant case law. In Aunt Hack Ridge Estates, Inc. v. Planning Commission, the state Supreme Court held (1) that the Danbury's open space requirements did not exceed the authority granted by CGS § 8-25 and (2) the statute was a valid and constitutional use of the state's police powers. The planning commission's regulations allowed it to require that subdivision plans show an area for parks or playgrounds of up to 4% of the total area but not less than 10,000 square feet. The regulations also allowed the commission to require that the area be suitable for recreational use and located to fit in with the city's recreation plan. The court held that the validity of an open space requirement depends on “…whether the burden cast upon the subdivider is specifically and uniquely attributable to his own activity. Where the [open space] requirement is uniquely attributable to the subdivider's activity, it has been held to be a permissible exercise of the police power. ” Aunt Hack at 117-18. The court found that the open space requirement imposed on the developer in this case was valid because it was based on the increase in population created by the subdivision. It also noted that when a developer chooses to subdivide the land, the open space requirement makes the lots more attractive and desirable to buyers, which creates value for the seller. The court also found that the statute was not void for vagueness. The trial court in this case had previously held that the open space requirement was not a taking for which compensation is required.

Aunt Hack primarily dealt with the validity of state laws and local regulations requiring open space, i. e. , actions by governments acting in their legislative capacity. The U. S. Supreme Court established a different test when a land use agency, acting in its adjudicative capacity, requires the dedication of land for public purposes. In Dolan v. City of Tigard, the city wanted to exact a dedication of approximately 10% of the Dolan's property for floodplain and open space requirements as well as a pedestrian path before granting a building permit. The Court held that for these conditions to withstand constitutional challenge, an “essential nexus” must exist between a legitimate state interest and the permit condition, and if so, the conditions demanded by the permit must have a required relationship to the projected impact of the proposed development. Consequently, under Dolan, in cases where a zoning agency acts in its adjudicative capacity and conditions approval of a zoning or building application on the applicant's granting of a public dedication, the agency “must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. ” Dolan at 391. The Court characterized this need for individualized findings as a “rough proportionality test. ”

Dolan served as a basis for several challenges to open space requirements in Connecticut. Notably, in Dunham v. Planning Com'n of Town of New Milford, 2002 WL 31124552 Conn. Super. , 2002 (Aug 20, 2002) the Superior Court upheld New Milford's subdivision regulations, which requires a contribution of 15% of the land in a subdivision. Dunham claimed that the open space regulation unconstitutionally took his property without just compensation, arguing that it did not satisfy the “rough proportionality” test established in Dolan. Dunham contended that this test requires the commission to make specific findings that the 15% open space requirement bears a sufficient relationship to the projected impact of a proposed subdivision and that the commission made no such findings before amending the subdivision regulation. Dunham also claimed that the commission acted unreasonably and abused its discretion in enacting the amending the subdivision regulation.

The Superior Court disagreed with Dunham's argument that the planning commission was required to satisfy the rough proportionality test. The commission acts in a legislative capacity when it amends its regulations, not in its adjudicative capacity. Citing Aunt Hack and several federal cases, the court held that when a regulation enacted by an agency in its legislative capacity function is attacked as being invalid on its face, the regulation enjoys a presumption of constitutionality and party challenging the regulation has the burden to prove its illegality. It held that the state Supreme Court's decision in Aunt Hack has not been undermined by the Dolan decision in cases involving the exercise of an agency's legislative functions. The court concluded that that the 15% open space requirement was not so large or extreme that it is unconstitutional on its face.

In another Connecticut case, Hardy Farm Ltd. Prtnrshp. v. Southbury Planning Com'n, 2001 WL 548919 Conn. Super. ,2001 (May 4, 2001), the plaintiffs argued that the 10% cap on the fee authorized by CGS § 8-25 meant that the legislature intended 10% to be the maximum area of a subdivision that the commission may require to be dedicated for open space. Based on this reasoning, the plaintiffs argued that the 15% open space dedication under Southbury's subdivision regulation exceeded this 10% ceiling and is beyond the statutory mandates of § 8-25. The court found that this interpretation had no support in the statute itself. It noted that the plain words of the statute do not place any restrictions on the size of the open space requirement itself. Although a planning commission cannot act unreasonably, arbitrarily, illegally or in abuse of its discretion (see Smith v. Zoning Board of Appeals, 227 Conn. 80 (1993)); the commission is not precluded under the provisions of CGS § 8-25 from acting within the reasonable exercise of its authority to establish an open space dedication exceeding 10% of a subdivision's total acreage.

Further information on cases dealing with open space requirements can be found in 9 Conn. Prac. , Land Use Law and Practice. § 10: 14 (2006). The article notes that two unresolved questions are (1) a commission's discretion in specifying where the open space will be located and (2) whether a commission can require open space in an area that is not so designated in the town's plan of the development. The article is available online at http: //web2. westlaw. com/Find/Default. wl?bhcp=1&CaseCite=273+A%2E2d+880&CaseSerial=1970111092&FindType=1&FN=%5Ftop&rs=dfa1%2E0&SerialNum=0328801268&ssl=n&strRecreate=no&sv=Split&vr=2%2E0.