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A Busy Summer for Environmental and Land Use Law

September 17, 2015

In the past three months, we have witnessed a breathtaking series of decisions from the U.S. Supreme Court, the Connecticut Supreme Court, and the California Supreme Court that have provided important rulings and clarifications affecting real estate ownership and development in Connecticut and nationally. In summary:

  • in Connecticut, our Supreme Court ruled that the Department of Energy and Environmental Protection, in reviewing permit applications, may review only the impacts of the activity that requires the permit, and may not inquire about or regulate other activities that may be “facilitated” by the regulated activity;

  • the U.S. Supreme Court clarified, once and for all, that government regulation that confiscates personal property is a “taking,” for which the federal Fifth Amendment requires the government to pay compensation;

  • the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers proposed a new definition of “waters of the United States” − already challenged in the courts and (as of this writing) enjoined by one federal judge; the rule has the potential to greatly expand when a federal permit will be needed, in addition to local and state permits, to develop land;

  • the U.S. Supreme Court confirmed that local governments can be sued for discrimination under the federal Fair Housing Act if they adopt ordinances or policies that have a “disparate” (disproportionate) impact on minorities, in addition to being liable for actions that constitute intentional discrimination;

  • the California Supreme Court became the highest court of the largest state to affirm the right of municipalities to enact “inclusionary zoning” ordinances, which require builders to include in their developments a percentage of units for low and moderate income households; and

  • the U.S. Supreme Court clarified federal constitutional rules for sign regulation.

This Client Alert also reports on amendments, proposed in the 2015 General Assembly, to Connecticut’s affordable housing statute, which changes were not adopted but garnered support, and are likely to return in 2016.

Click to view the Client Alert.

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