February 7, 2008
TIME RESTRICTIONS ON SUBDIVISION DEVELOPMENTS
By: Kevin E. McCarthy, Principal Analyst
You asked whether Connecticut law permits municipalities to adopt subdivision regulations or other development controls that limit the timing of residential development, e.g., limiting the number of homes that can be built in a given year in a particular subdivision. You also asked whether other states have laws on this topic. The Office of Legislative Research is not authorized to provide legal opinions, and this report should not be considered one.
Some municipal officials have expressed concerns that development can outpace the growth in local facilities and services, potentially placing a financial burden on the municipalities. The Connecticut statutes are silent on whether municipalities can impose subdivision regulations or other development controls that limit the pace of development. There is little case law on this subject, although the state Supreme Court has held that a planning commission has no authority to disapprove a subdivision plan because it will cause an unbearable financial burden to the town. We have not found any municipality that imposes such development controls.
In contrast, several states allow or require municipalities to control the timing of development through concurrency provisions that tie the pace of development to the availability of adequate public facilities. Florida and Washington have the most comprehensive concurrency provisions. Florida's comprehensive planning law requires, among other things, that a wide variety of public improvements be in place before certificates of occupancy are granted for a new development. Washington's law is less prescriptive, giving local governments more discretion than Florida. However, cities and counties must adopt mechanisms to ensure that the public facilities and services needed to support a development are available at the minimum standards established in local plans. Washington also has specific concurrency requirements for transportation infrastructure.
In addition, Maryland and New Jersey allow local governments to control the pace of development through their development control regulations, but these are not mandatory provisions of their land use laws.
We have enclosed OLR reports (1) 2005-R-0575, which describes tools that Connecticut law grants municipalities to control development, and impact fees, which are generally not permitted; (2) 2004-R-0270, which discusses caps on housing permits; and (3) 2001-R-0782, which discusses development moratoria.
The statutes governing subdivision regulation and zoning (notably CGS § 8-25 and 8-2, respectively) are silent on whether municipalities can impose subdivision regulations or other development controls that limit the timing of residential development. The statutes give municipalities broad discretion in how they regulate development. But, they generally require that developers complete work in connection with their subdivisions within five years after the planning commission has approved the subdivision plan, although commissions can grant extensions for up to an additional five years (CGS § 8-26c). In the case of developments consisting of 400 or more dwelling units, the work must be completed with ten years (CGS § 8-26g).
We have found no case law addressing whether municipalities have implied powers to control the pace of development. The state Supreme Court has found that a planning commission has no authority to disapprove a subdivision plan because it will cause an unbearable financial burden to the town. In this case, the Court found that the town's underlying subdivision regulations did not address the issue of financial burden as a criterion for approving individual plans. Moreover, the Court held that “[t]here is nothing in section 858 [currently CGS Sec. 8-25] which authorizes regulations prohibiting the subdivision of land
because it would place additional financial burdens upon the town.” Beach v. Planning and Zoning Commission of Town of Milford (1954) 141 Conn. 79, 84-85.
On the other hand, commissions can approve an application conditionally although they cannot approve a subdivision subject to a condition that is not within the applicant's control or that requires the approval of a “coordinate agency” (e.g., a wetlands agency) when this approval is not probable. Carpenter v. Planning and Zoning Commission 176 Conn. 581 (1979).
We have not found any municipality that uses subdivision or other development controls to govern the pace of development. Stonington adopted zoning regulation setting an annual cap on the number of building permits the town could issue. As discussed in OLR memo 2004-R-0470, the town chose not to enforce the regulation on the advice of its counsel.
The state's comprehensive land use planning law (the Growth Management Act, Fla. Rev. Stat. Sec. 165.2511 et seq.) requires local governments to regulate the pace of development to ensure that the necessary infrastructure is in place to support it. The act requires each city and county to adopt a local comprehensive plan, which must be consistent with the state and regional plans. The local plan must, among other things, (1) guide and control future development and (2) address existing problems as well as problems that may arise in the future as a result of the development and use of land. The plan must include elements dealing with such things as capital improvements, future land use, transportation, and housing.
Each city and county must adopt land development regulations, which are the local ordinances needed to implement the goals, objectives, and policies of local plans. The regulations must address subdivision of land, zoning, and land use compatibility. The local government implements the regulations through developments orders, including the issuance of subdivision and zoning approvals and building permits. A University of Florida website, http://edis.ifas.ufl.edu/FE643, provides additional information about the planning process in Florida.
Under Fla. Rev. Stat. Sec. 163. 3180, before a local government can issue a building permit or its equivalent for a new development, it must consult with the applicable water supplier to determine whether adequate water supplies to serve the development will be available by the anticipated date of issuance of a certificate of occupancy or its equivalent. Sanitary sewer, solid waste, drainage, adequate water supplies, and potable water facilities must be in place and available to serve new development by the time that the local government issues the certificate of occupancy or its equivalent.
Transportation facilities needed to serve a new development that generates traffic must be in place or under actual construction within three years after the local government approves a building permit or its equivalent. Parks and recreation facilities to serve a new development must be in place or under actual construction within one year after issuance of a certificate of occupancy or its equivalent. The law allows for exemptions from these requirements for certain urban redevelopment and infill projects.
The law also establishes concurrency requirements for public schools. A local government's that fails to adopt a public school facilities element in its comprehensive plan or to amend the plan as needed to implement school concurrency is prohibited from adopting comprehensive plan amendments to increase residential density. The failure also subjects the local school board to losing its school construction funding. The state land planning agency may provide a waiver to a county and to the municipalities in the county if (1) the capacity rate for all schools within the school district is no greater than 100% and (2) the projected 5-year full-time equivalent student growth rate is less than 10%. Further information about the school concurrency requirements is available at www.dca.state.fl.us/fdcp/dcp/SchoolPlanning/index.cfm
The law also allows local governments to adopt long-term transportation and school concurrency management systems as part of their comprehensive plans. The systems can have a planning period of up to ten years for specially designated districts or areas where there are significant infrastructure backlogs. A plan may include interim service standards on certain facilities, based on the local government's capital improvement plan as a basis for issuing development orders that authorize construction in the designated districts or areas. The concurrency management system must be designed to correct existing deficiencies and set priorities for addressing backlogged facilities. It must be financially feasible and consistent with other portions of the adopted local plan, including the future land use map.
A Tallahassee County website, www.talgov.com/growth/confaq.cfm, addresses frequently asked questions about the state's concurrency requirements.
Washington also addresses the pace of development in its comprehensive planning law. The state's Growth Management Act (Wash. Rev. Code Sec. 36.70A.070 et seq.) is a policy framework for local comprehensive planning and land use regulation. Local plans must address land use, public facilities, and housing, among other things. The act identifies 14 statewide planning goals and prescribes a process and certain minimum requirements for the adoption and updating of land use plans and development regulations by local governments. The act emphasizes local discretion. The land use plans and regulations do not require state approval, except under state shoreline management programs.
Concurrency is one of goals local governments must consider in land use planning. The concurrency goal is intended to ensure public facilities and services such as sewer, water, roads, parks and schools are adequate to serve new development at the time of occupancy without decreasing service levels below locally established minimum standards.
To address the concurrency goal, local governments must craft a capital facilities plan that lists all public facilities and services, establishes minimum standards for their performance, connects the facilities and services to a specific funding strategy, and identifies those that are needed to support development. Public facilities and services needed to support development must be regulated by a concurrency or adequacy mechanism that triggers a policy or regulatory reassessment if the minimum standard is not met. Additional information about the act's capital facilities provisions law is available at www.mrsc.org/focus/pladvisor/pla0407.aspx.
The act also has a specific transportation concurrency requirement. First, local governments must set level of service standards (minimum of performance benchmarks) for roads and transportation facilities and services. Once the standard is established, the local government must adopt an ordinance to deny proposed developments if they cause service on a local transportation facility to decline below the adopted
standard, unless transportation improvements or strategies to accommodate the impacts of development are made concurrent with development. Under this provision, improvements or strategies must be in place at the time of development, or a financial commitment has been made to complete them within six years. Local governments may accommodate development impacts by changing the phasing or timing of new development, improving transportation facilities or services to serve the new development, reducing the standard, or revising their land use policies.
A sample of concurrency ordinances from Washington cities and counties is available at www.mrsc.org/subjects/planning/curren.aspx.
Maryland requires municipalities and counties to develop comprehensive plans that include various elements, including provisions for transportation, environmental protection, and land development regulation (Md. Code Art. 66B). For municipalities with zoning powers, the plan must contain a municipal growth element, which must consider anticipated future growth areas outside the municipality's existing corporate limits; the capacity of land areas inside these limits that is available for development, including in-fill and redevelopment; and public services and infrastructure needed to accommodate growth within the proposed municipal growth areas.
Counties and municipalities must implement their plans through zoning ordinances and regulations, planned development ordinances and regulations, subdivision ordinances and regulations, and other land use ordinance. These local jurisdictions can enact ordinances regarding the provision of adequate public facilities. In practice, according to staff at the state Department of Planning, local governments that adopt such ordinances use them to regulate the pace of development, often in conjunction with impact fees. The local jurisdictions also can enact ordinances to require the planning, staging, or provision of affordable housing.
New Jersey law (N.J. Rev. Stat. Sec. 55D-39) allows municipal subdivision regulations to include provisions for planned developments that can establish requirements for the timing of development among the various types of uses in the development. In the case of planned unit developments and planned unit residential unit developments, the regulations can require that nonresidential uses be built before, at the same time as, or after the residential uses.
Developers of large (100 acres or more) parcels seeking approval of planned developments can submit a general development plan to the local planning board. If the developer seeks to modify the timing of the proposed development plan after it has been approved, it must obtain the planning board's approval. In making its decision, the board must consider prevailing economic and market conditions, the anticipated and actual need for residential units and nonresidential space in the municipality and the region, and the availability and capacity of public facilities to accommodate the proposed development (N.J. Rev. Stat. Secs. 40:55D-45.3 and 45.4)