Joseph Tagliarini v. BOA CPC (2011)

SUPPLEMENT TO MEMORANDUM OF DECISION

In finalizing its decision in this matter the court neglected to consider the relevancy or bearing of Section 8–2m of the General Statutes which reads as follows:

“ § 8–2m.  Floating and overlay zones and flexible zoning districts.

The zoning authority of any municipality that (1) was incorporated in 1784, (2) has a mayor and board of alderman form of government, and (3) exercises zoning power pursuant to a special act, may provide for floating and overlay zones and flexible zoning districts, including, but not limited to, planned development districts, planned development units, special design districts and planned area developments.   The regulations shall establish standards for such zones and districts.   Flexible zoning districts established under such regulations shall be designed for the betterment of the municipality and the floating and overlay zones and neighborhood in which they are located and shall not establish in a residential zone a zone that is less restrictive with respect to uses than the underlying zone of the flexible zoning district.   Such regulations shall not authorize the expansion of a pre-existing, nonconforming use.   Notwithstanding the provisions of this section, no planned development district shall be approved which would permit a use or authorize the expansion of a pre-existing nonconforming use where the underlying zone is a residential zone.”

The court always was of the opinion that the statute is inapplicable to this case.   The statute was passed with an effective date of June 2, 2006.   The Campion decision was released on June 6th.

First the language is somewhat confusing.   Planned Development Districts are included in the statutory term “overlay zones and flexible zones.”   The statute says flexible zones, in the regulations authorized thereunder “shall not establish in a residential zone, a zone that is less restrictive with respect to uses than the underlying zone of the flexible zoning district.”   A PDD is a zone change, it, in effect, terminates the existence of the underlying zone it replaces.   In any event the PDD here does not establish a zone that is “less restrictive with respect to uses.”   University uses were already permitted in the underlying zone and have been for 45 years.

The “betterment of the municipality” language adds nothing to the requirement of the existing case law.   As previously noted, Konigsberg already has held that the comprehensive plan can be said to be complied with, a Section 65 requirement, if “the zoning authority acts with the intention of promoting the best interests of the entire community,” 283 Conn. page 585.

Also it is apparent that the approval of the PDD in this case does not authorize the expansion of a pre-existing nonconforming use.

Thomas J. Corradino

Judge Trial Referee

Corradino, Thomas J., J.T.R.