August 30, 2002 |
2002-R-0583 | |
PREAPPLICATION REVIEWS FOR PROPOSED PLANNING AND ZONING PROJECTS | ||
By: John G. Rappa, Principal Analyst | ||
You asked if towns are legally bound by statements land use planners or commissioners make regarding a proposed project during a preapplication review. The Office of Legislative Research cannot give legal opinions and you should not regard this memo as one.
SUMMARY
Neither the statutes nor case law say whether land use planners and commissioners are legally bound by anything they say during a preapplication review on a proposed project. These reviews appear to be common here and in other states and allow developers and municipal officials to share information about a project without making formal or binding commitments.
The legislature recognized that the lack of statutory authority could be discouraging towns from conducting preapplication reviews and considered legislation to authorize them. In 2000, the House approved a bill providing this authorization, but it died in the Senate. The courts have not ruled on the legality of preapplication reviews. But in a case regarding a commission's power to grant preliminary approval to a subdivision plan, the Superior Court stated that preapplication reviews were advisory.
At least 41 towns conduct preapplication reviews, but some do so cautiously. Commissioners in several towns do not join staff in these reviews to avoid charges of prejudging or predetermining an application. In other towns, planners or attorneys advise commissioners on how to avoid making certain comments that could be construed as giving preliminary approval to a project.
Five towns responding to an informal OLR online survey said their commissioners participate in preapplication reviews. Only one of them reported the commissioners' comments during any these reviews had triggered lawsuit. But all the law suits were eventually dropped.
Maine, New Hampshire, and New Jersey's planning and zoning statutes specifically authorize preapplication reviews. New Hampshire and New Jersey's specify that planning board members are not bound by what they say during these reviews.
PREAPPLICATION REVIEWS
Preapplication reviews appear to be very common here and other states. They can help developers and municipal officials save time and money associated with preparing and reviewing planning and zoning applications. Preapplication reviews allow a developer and the reviewing municipal officials to discuss a proposed project and the requirements it might have to meet before the developer prepares and submits the official application. They are not meant to convey or suggest preliminary approval.
CONNECTICUT
Statutes
Many towns conduct preapplication reviews even though Connecticut law gives little guidance as to whether developers or municipal officials are legally bound by what they say during these reviews. Since the statutes do not mention this type of review, they give no guidance as to whether a commissioner's statements are legally binding. This fact could be discouraging some towns from conducting preapplication reviews.
In a 2000 House debate on sHB 5426, Representative Patrick Flaherty said that these towns would be more inclined to adopt this practice if the statutes explicitly authorized it. The bill would have provided the statutory authorization and banned appeals from the reviews. He added that towns could still continue or adopt the practice if the legislature failed to enact the bill, which died on the Senate calendar after the House adopted it (House Proceedings, April 12, 2000).
Case Law
The Connecticut courts have not ruled directly on the legality of preapplication reviews. The Superior Court discussed these reviews when it ruled on an appeal from a planning commission's refusal to extend the expiration date for preliminary approval of a subdivision plan. The court dismissed the appeal mainly because the statutes did not authorize these approvals. But it suggested that these approvals dealt with issues that otherwise could be appealed. It made this point by comparing them to preliminary reviews, which it said were legal (even though the statutes did not explicitly authorize them) and could not be appealed:
While a planning commission may engage in informal or preliminary review of a subdivision application for practical reasons and to assist both the applicant and the commission, any conclusions reached would be at most advisory, and certainly not create any vested rights for the applicant (Nicholas E. Owen, II D/B/A, et al. v. Planning Commission of Stratford, et al., No CV 93309563S (1994)).
Practice
At least 41 towns allow preapplication reviews, based on two different sources. All 17 towns that responded to our on informal, online survey reported that they allow preapplication reviews, but were almost evenly split as to whether land use commissioners participated in these reviews. Among the nine towns that excluded commissioners from the reviews, two explained that they did so because developers could construe the commissioners' comments as prejudging proposed projects. An online search of zoning ordinances found four other towns authorize preapplication reviews without the commissioners' participation (www.ordinance.com).
Eight towns responding to our survey reported that commissioners participate in preapplication reviews. Four said that the reviews worked very well. Monroe, for example reported that the commission has conducted “informal reviews” for over 40 years under ground rules that are established and agreed upon before the review begins: the review is a nonbonding discussion intended to help the commission gain a better understand of the proposed project before the developer presents it at a public hearing. The town reported “no negative reaction from any party.”
South Windsor, on the other hand, has been sued by developers who claimed that commissioners voted against projects they had initially favored during a preapplication review. But these suits “have gone nowhere to date,” the town reported. Despite the potential for suits, the planning and zoning commission believes that the preapplication reviews are too valuable to discontinue.
The zoning regulations in at least four of the towns where commissioners participate in preapplication reviews explicitly state that they have no official status. For example, Essex's subdivision regulations state, “Review in regard to their (preliminary plans') feasibility in no way implies approval of the formal subdivision plan” (Attachment 1). Ledyard's regulations allow pre-application conferences with staff and preliminary reviews with the planning commission. It conducts the latter “with a clear understanding that preliminary plans enjoy no official status, and that consent with regard to feasibility on the part of the commission in no way implies approval” (Attachment 2).
OTHER STATES
An online search of state statutes found three that authorize planning commissions and boards to conduct preapplication reviews. Maine allows planning commissions to adopt multistage application or review procedures through which they can review preapplication sketch plans, preliminary plans, and final plans (Me. Rev. Stat. Ann. 30-A § 4403).
New Hampshire allows planning boards to conduct two-stage preapplication reviews during which they can advise applicants about their preliminary concepts and designs. Statements board members make during either stage “shall not be the basis for disqualifying said members or invalidating any action taken” (N.H. Rev. Stat. § 676:4).
New Jersey also allows planning boards to conduct “informal reviews” and specifies that developers and board members be not bound by what they say during these reviews (N.J. Rev. Stat. 40:55D-10.1)
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