2004 Connecticut Commercial Real Estate Conference

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2004 Connecticut Commercial Real Estate Conference

• Update on Land Use Law
• Dwight H. Merriam, FAICP, CRE
• www.dwightmerriam.com

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Connecticut Cases

• The wetlands case
• AvalonBay v. Wilton (Conn. 2003)
• Jurisdiction over upland review areas and beyond

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The legislative fix that did nothing
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PUBLIC ACT 04-209 AN ACT CONCERNING JURISDICTION
OF MUNICIPAL INLAND Section 1. Section 22a-41
of the general statutes is amended by adding
subsections (c) and (d) as follows(NEW) (c)
For purposes of this section, (1) "wetlands or
watercourses" includes aquatic, plant or animal
life and habitats in wetlands or watercourses,
and (2) "habitats" means areas or environments in
which an organism or biological population
normally lives or occurs. (NEW) (d) A municipal
inland wetlands agency shall not deny or
condition an application for a regulated activity
in an area outside wetlands or watercourses on
the basis of an impact or effect on aquatic,
plant, or animal life unless such activity will
likely impact or affect the physical
characteristics of such wetlands or watercourses.
Approved June 3, 2004
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A municipal inland wetlands agency shall not deny
or condition an application for a regulated
activity in an area outside wetlands or
watercourses on the basis of an impact or effect
on aquatic, plant, or animal life unless such
activity will likely impact or affect the
physical characteristics of such wetlands or
watercourses.
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Nothing really changedmaybe
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• The big box legislation
• Public Act 04-248

Sec. 3. the zoning regulations of a
municipality shall not authorize the
construction of structuresmore than twelve
thousand square feet, within two thousand feet of
the boundary of any lake, that exceeds five
hundred acres. The provisions of this section
shall not apply to reservoirs.
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• Watch out in marketing properties
• At least until the General Assembly fixes itand
  watch the slip laws for similar high jinks in the
  futuretheyll do it again

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• The very recent Planned Development District case
• Campion v. New Haven, Nov. 9, 2004
• http//www.jud.state.ct.us/external/supapp/Cases/A
  ROap/AP85/85ap519.pdf
• Do you have an approved PDD not yet built?
• Is it legal?

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Connecticut in the U.S. Supreme Court the Eyes
of the Entire Country Are Upon Us

• Kelo v. New London, 843 A.2d 500 (Conn.2004)
• How far is too far in interpreting the public use
  requirement of the Fifth Amendment?
• Is private economic development a public use
  under the Fifth Amendment?

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Fort Trumbull
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(No Transcript)
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(No Transcript)
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What happened

• 1978 development corporation established
• Jan 1998 state bond commission authorized bonds
  for planning and property acquisition to create
  state park at Ft. Trumbull
• Feb 1998 Pfizer announced global research
  facility next to Ft. Trumbull
• 1998 development plan for 90 acres next to Ft.
  Trumbull and Pfizer

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The development plan of 7 parcels

• 1 hotel, conference center, marinas
• 2 80 new homes, Coast Guard Museum
• 3 90,000 sq. ft. high tech research Italian
  Dramatic Club
• four properties of three plaintiffs in this area
• 4A parking
• eleven properties of four plaintiffs in this area
• 4B marina

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• 5 140,000 sq. ft. of office, parking, retail
• 6 water-dependent commercial uses
• 7 small office or research
• All to be developed under ground leases, some of
  99 years

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Benefits

• 518-867 construction jobs
• 718-1362 direct jobs
• 500-940 indirect jobs
• 680,544-1,249,843 property taxes
• Citywide 54 land tax exempt
• City economically distressed

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The questions

• Is economic development a public use?
• Berman and Midkiff
• Not proved beyond a reasonable doubt that
  provisions are facially unconstitutional
• Was there sufficient public benefit?
• Private benefit secondary economic development
  enough
• Was there reasonable assurance in parcels 3 and
  4A of future public use?
• Sufficient statutory and contractual constraints

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And more questions

• Was the delegation of eminent domain authority to
  the development corporation unconstitutional?
• Enough that public benefits
• Were the takings reasonably necessary and were
  they for reasonably foreseeable needs?
• Long term planning John Mullin thought otherwise
• Was equal protection afforded in not taking
  Italian Dramatic Club?
• Rational basis burden of proof

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Susette Kelo

• Registered nurse bought in 1997 with husband,
  Tim

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• Kelo can see Montauk from her house

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Bill Von Winkle

• Ft. Trumbull deli with 6 apartments above
• Operated deli since 1986
• All apartments occupied

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Michael Christafaro and his father

• Brother Anthonys children live here
• Family forced out of prior home for seawall never
  built (private development was)

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Matt and Suzanne Dery

• Family has lived in Ft. Trumbull area since 1895
• Matts mother and father next door mother born
  there 1918

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Why did the Court take this case?

• Widely-reported cases elsewhere
• Michigan Supreme Court reversed Poletown case in
  July

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Impacts of possible outcomes

• May get more definitive rules
• May not change things much
• Continuing public involvement
• More articulated plans