Illegal apartments and excess signage

RECESSION CREATES NEW LAND USE ISSUES

By Jane W. Freeman, Esq. and Danielle Bercury, Esq.

Developers, municipalities and individuals face new and significant land use issues created by the current economic turndown. Municipal officials will have to make difficult policy decisions about pursuing aggressive zoning enforcement measures during a recession; developers will need to find ways to preserve project approvals if construction is deferred; and individuals will need to address use and development restrictions in order to develop underused properties.

ZONING ENFORCEMENT

Municipal land use staffs now have more time to focus on zoning enforcement issues because of the decrease in new land use applications. However, any substantial increase in zoning enforcement activity may be deferred for both policy and financial reasons.

Zoning enforcement staffs have reported an increase in complaints about unsightly neighborhood conditions. This increase may be due, in part, to complaining sellers, who are already finding it difficult to attract buyers in a recession and feel that such conditions hinder their sales efforts.

Land use staffs also report an increase in the number of illegal apartments. It is not surprising that property owners seeking to generate more income during this recession have established additional, illegal units in rental properties. It is difficult and time consuming for zoning officials to terminate these illegal uses. Where municipalities are struggling to reallocate resources and establish priorities officials may decide not to invest their limited resources in terminating these illegal apartments.

There has also been a visible increase in the amount illegal signage. Retailers are desperately trying to attract customers by using large flags and banners advertising sales. In most municipalities, signage is heavily regulated and many of these signs violate size limits and setback requirements in local zoning regulations. However, elected officials, feeling pressure from local businesses, may decide not to aggressively enforce sign regulations in an economic turn down.

Finally, zoning and building officials report that professional certifications as to building and safety standards required for final permits have been much more “qualified” in nature than in the past. For example, instead of an engineering certification that “required floodproofing is adequate to withstand flood pressures,” a qualified certification providing that “required floodproofing is reasonably adequate,” has become typical. Financial constraints may cause developers and contractors to cut corners and fail to build according to plans, thereby forcing engineers, architects and other land use professionals to issue more qualified certifications. Town officials are unlikely to accept such “qualified” certifications, nor should they, where public health and safety may be compromised.

DEVELOPED SITES

Corporate downsizing and retail declines have been widespread in this recession. Two by-products have been a decreased need for office and retail space and an increased desire by tenants to sublease excess space. Subleasing excess space can be restricted by zoning requirements. Firstly, the proposed use must be a permitted use. If the use requires special permits or site plan review, the parties involved will need to determine whether the time and expense warrant pursuing the required permits and which party will do so. Secondly, any change in use may impact the required parking. On sites with excess parking or room for additional parking, these requirements can often be met. However, if not, a tenant may be prevented from subleasing excess space even if the use is permitted.

Many developed residential sites have also been impacted by the recession. In the recent past, it was common for new homes to be constructed on subdivision lots far exceeding the required minimum lot size. To preserve property values in these large lot subdivisions, developers sometimes recorded private restrictions prohibiting future subdivision of these lots. Now, lot owners who want to generate revenue by selling part of a lot, have discovered they cannot do so.

One title insurance company reports receiving several requests to issue policies insuring over violations of such private restrictions. However, its refusal to do so is understandable, where all lot owners benefit from and can enforce the restrictions. Owners of oversized lots should seek agreements to modify these restrictions. Agreements are more likely if subdividers offer to insulate abutters from the impacts of new development by submitting adjacent land to conservation easements, open space designations or other landscaped buffers.

UNDEVELOPED SITES

The recession has caused many developers to delay approved projects. Most zoning and environmental regulations permit at least one year extensions for special permits, site plans and environmental permits, for good cause shown, but limit the total number of extensions. The total extensions permitted may be inadequate for larger projects that are deferred in the recession. Land use commissioners and staff may support increasing the number of permit extensions. However, if the additional extensions proposed exceed a three or four years, they may not support additional extensions, arguing that the approved projects are no longer be consistent with the character of a neighborhood or with the town’s plan of conservation and development.

Where existing zoning regulations do not permit phased developments, amendments to permit them could ease problems created by regulations with a limited number of extensions. For larger projects, this would mean that later phases could be deferred for longer periods of time and developers would only have to undertake limited construction during the early years after approval. Alternatively, additional extensions could be authorized, but subject to a different standard than “for good cause shown.”

For example, to secure an additional extension of time for a special permit after three one year extensions, a permit holder could be required to show any one or more of the following: there have been no significant changes in the character of the neighborhood since approval or if there have been, that the nature and intensity of the proposed use is still consistent with the character of the neighborhood; that the proposed development is still consistent with the town’s plan of conservation and development; and/or that adjacent streets are still adequate to accommodate the traffic associated with the proposed use.

Not all development activity has ceased during this recession. Some developers continue to process land use applications so they will be well positioned with approvals in hand when the economy starts to recover. Land use staffs have noted that developers are having increasing difficulty securing subdivision bonds to assure the completion of public improvements in their projects. Typically, developers post a letter of credit or surety bond so that they can sell approved lots before public improvements are constructed. Planning authorities, however, will not endorse subdivision plans for recording until the required bond is posted. Because approved plans must be recorded within ninety days after the appeal period expires, a developer who cannot post a subdivision bond in a timely manner risks losing his approval.

One way to address this problem is for a developer to request a conditional approval, which is permitted under Conn. Gen. Stat. § 8-25, if authorized in the local zoning regulations. Once public improvements are completed or the bond is posted, the commission endorses a final approval on the subdivision plan and lots may then be sold. With use of the conditional subdivision approval, a developer will not need to post a hefty subdivision bond immediately after approval and may record an approved subdivision map in a timely manner.

CONCLUSION

Additional land use issues may develop as 2009 progresses. Developers and towns need to work together to find creative solutions as these new land use issues arise.

Jane W. Freeman is chair of the land use practice group at Cacace, Tusch & Santagata. She frequently represents clients before local land use boards and in appeals from their decisions to Connecticut's trial and appellate courts.

Danielle Bercury is an associate at the law firm of Cacace, Tusch & Santagata in Stamford. The majority of her practice is devoted to zoning and land use law.