May 28, 2002
MUNICIPAL EXEMPTION FROM ZONING REGULATIONS
By: John G. Rappa, Principal Analyst
You asked us to answer 11 questions a constituent asked you about the statute under which towns can exempt themselves from their zoning regulations.
We summarize the statute and answer questions 1 to 6 and 8 below. (The fax listing these questions is attached to this memo. )
As we explained to your legislative aide, questions 7 and 9 to11 require us to survey towns about their experience with the statute and cannot be answered within the constituent's timeframe. We will answer them in a subsequent memo.
The Office of Legislative Research cannot give legal opinions, and you should not regard this memo as one.
MUNICIPAL ZONING EXEMPTION
PA 63-133 amended the zoning enabling statute (CGS § 8-2) explicitly to require towns to comply with their zoning regulations unless their legislative bodies vote to exempt the towns from these regulations.
CAN A TOWN EXEMPT ONE PIECE OF PROPERTY OR MUST IT EXEMPT ALL?
The statute does not appear to allow towns to pick and choose which municipal property to exempt from the zoning regulations. Nor does it appear to allow towns to pick and choose a zoning regulation from which to exempt municipal property.
The language of the statute allows towns to "exempt municipal property from the regulations prescribed by the zoning commission. " It does not say "a municipal property" or "a regulation. " During the floor debate on the bill allowing this exemption, Senator Alfano stated that it required towns to choose "whether or not they will be bound by their zoning ordinances. So if they prefer not to be bound, they can do that by a vote of the legislative body, and if they want to be bound by all the zoning laws, they can certainly indicate. This forces them to make an election" (Senate Proceedings, May 7, 1963 p. 1318).
CAN THE TOWN EXEMPT A SPECIFIC PIECE OF PROPERTY RETROACTIVELY?
No, laws are generally proscriptive unless they or the courts specify otherwise. The courts have not ruled on whether towns can apply the exemption retroactively. Normally, proposed projects must comply with zoning regulations that were in effect when a project was proposed. Towns cannot change a regulation and apply it retroactively to the project (CGS § 8-2h).
CAN A TOWN EXEMPT A SPECIFIC BUILDING THAT IS ONLY A PORTION OF THE PROPERTY?
No. Just as a town cannot selectively choose the municipal properties it wants to exempt from zoning, it cannot exempt part of a municipal property and subject the other part to zoning.
CAN A TOWN THAT PURCHASES A PIECE OF PROPERTY, WHICH IS ZONED AS RESIDENTIAL, PUT A MUNICIPAL BUILDING (SENIOR CENTER) AND EXEMPT THIS BUILDING OR MUST IT EXEMPT THE ENTIRE PIECE OF PROPERTY OR MUST IT EXEMPT ALL MUNICIPAL PROPERTY?
As stated above, the town must exempt all municipal property. It cannot buy a parcel, exempt it from zoning, and then build a school, public works garage, or senior center. The town must exempt all municipal property in order to exempt the property in question.
IF A TOWN EXEMPTS [MUNICIPAL PROPERTY] UNDER 8-2 (a), WHAT APPROVALS MUST IT GET FROM WHOM? FLOOD OR EROSION, ENVIRONMENTAL IMPACT, ZONING VARIANCE, ETC. IN ORDER TO GET A BUILDING PERMIT?
The exemption under 8-2 (a) applies only to the zoning regulations; it does not automatically extend to inland wetlands regulations and the building code. Towns proposing projects on municipally owned property containing wetlands must get a wetlands permit unless the project involves a statutorily permitted operation or use (CGS §§ 22a-42(c) (1) and 22a-40). The law does not allow towns to exempt themselves from wetlands regulations or the building code.
Towns that exempt themselves from zoning do not have to apply for a variance or any other zoning approval. The exemption allows towns to use municipally owned property anywhere in town for any purpose, including those the zoning regulations either ban or do not expressly allow.
CAN IT BUILD A SKYSCRAPER OR PUT IN A TOWN DUMP ON THE EXEMPTED PROPERTY?
Not necessarily. The 8-2(a) exemption applies only to zoning approvals. A proposed municipal skyscraper or dump must still comply with other public health and safety codes.
ARE THERE ANY CASES RELATED TO THIS SECTION ON EXEMPTION?
We could find no court cases on the application of the 8-2 (a) zoning exemption.