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Demystifying The Conditional Approval Process

Connecticut Law Tribune

October 3, 2011

Authors: Beth Bryan Critton

Whenever development of real property requires multiple permits from multiple agencies, the issue arises: Which agency goes first? Misunderstood or not properly managed, this question can result in an endless tail-chasing game in which permits are denied because all others have not yet been obtained.

The recent settlement of CMB Capital Appreciation Inc. LLC v. Planning and Zoning Commission of the Town of North Haven, 124 Conn. App. 379 (2010), leaves intact the guidance provided by the Appellate Court regarding the availability and appropriateness of “conditional approvals” as one way to resolve the potential stalemate of which agency goes first.

A conditional approval is one that cannot be used unless and until all necessary permits have been obtained; that is, it is an approval conditioned upon the receipt of all other approvals necessary for the project to proceed.

The key to understanding and using conditional approvals is identifying when they can and cannot be used. Their use varies depending on the type of land use application and whether the application is made under the affordable housing land use appeals statute, Connecticut General Statutes § 8-30g.

The CMB case illustrates the issue. CMB arose from the Planning and Zoning Commission’s denial of applications for site plan approval for an affordable housing development under § 8-30g. Although CMB did not submit a formal sewer permit application, the planning commission referred CMB’s application to the town’s Water Pollution Control Authority (WPCA) for review and recommendation. The authority held hearings and issued “negative referrals” for CMB’s applications. The planning commission then denied the site plan applications because of the negative referrals from the WPCA.

The Superior Court sustained CMB’s appeal and remanded the application to the planning commission to approve the site plan subject to the condition that “CMB apply to the WPCA and obtain approval for adequate sewerage to service the property.” On appeal to the Appellate Court, the planning commission argued that the trial court improperly ordered it to approve CMB’s application, conditional upon WPCA approval. The planning commission claimed that the conditional approval was improper because the evidence did not demonstrate that it was “reasonably probable” that CMB would obtain sewer approval. The Appellate Court affirmed the trial court decision.

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