After the defendant granted tentative approval, valid for one year of the plaintiffs' preliminary subdivision plan, the plaintiffs' land was rezoned to increase the minimum lot area from one acre to two acres. Subsequently, when the plaintiffs applied for final approval of the remainder of the proposed subdivision, not previously approved, the defendant denied the application because the maps did not comply with the new requirements as to lot size and also because the plaintiffs were not entitled to the protection afforded by the statute ( 8-28a). Held that, since the granting of the application for tentative approval made 8-28a operative under the existing regulations, the defendant could not deny the application for final approval because of the intervening change in lot size.
Argued November 1, 1966
Decided November 23, 1966
Appeal from the action of the defendant commission in disapproving a planned subdivision, brought to the Court of Common Pleas in Fairfield County and tried to the court, DeVita, J.; judgment sustaining the appeal, from which the defendant appealed to this court. No error.
J. Harold Merrick, for the appellant (defendant).
Warren W. Eginton, with whom, on the brief, were George F. Lowman and John F. Spindler, for the appellees (plaintiffs).
The plaintiffs owned land in Ridgefield which was zoned for residence uses on one-acre lots. They filed with the defendant an application for approval of a preliminary plan of subdivision of the property. All of the lots in the proposed subdivision contained at least one acre. Following a public hearing, the defendant granted tentative approval of the plan, valid for one year. The plaintiffs then applied, with accompanying data, for final approval of eight of the lots. Thereafter the plaintiffs' land was rezoned to require two-acre lots. Subsequently, the defendant granted the final approval requested on the eight lots. Later, the plaintiffs applied for final approval on the rest of the proposed subdivision. The defendant denied this application "because the maps presented do not comply with the requirements as to lot size for the zone in which the property is located, and for the further reason that the applicant is not entitled to the benefit of the provisions of Section 8-28a since his applications were not complete in form and content prior to the effective date of the change of zone from R-1 to RAA."
An appeal by the plaintiffs from that decision to the Court of Common Pleas was sustained, and, from that judgment, the defendant has taken this appeal.
We have very recently construed General Statutes 8-28a as it applies to the Ridgefield planning and subdivision regulations. Harris v. Planning Commission, 151 Conn. 95, 193 A.2d 499. Since the full text of the statute and the pertinent portions of the regulations are set forth in footnotes to that decision (pp. 97-99), we do not repeat them here.
We determined in the Harris case that 8-28a provides a period of protection for a developer against zoning changes between the time of his application for approval of a subdivision plan and the time of final approval, and that an application for tentative approval which meets the existing requirements of the Ridgefield regulations sets that protection running.
The defendant claims on this appeal that it could properly deny the plaintiffs' last application for final approval for the reasons stated. The first reason, namely, that "the maps presented do not comply with the requirements as to lot size," does not support the denial. Since the granting of the plaintiffs' application for tentative approval was effective to make 8-28a operative, the defendant had no power to deny the application for final approval merely because of the change in zone.
Nor is the second reason valid, namely, "that the applicant is not entitled to the benefit of the provision of Section 8-28a." There is no claim that the plaintiffs' application for tentative approval failed to comply with the requirements of the regulations governing such an application or that their last application for final approval was lacking in any essential. Reliance is placed on the fact that the regulations require more detailed information for a final approval than for a tentative approval. Because of this differential, the defendant argues that to gain the protection of 8-28a an applicant must have met all the requirements for the final approval of his application. This court has decided to the contrary under the provisions of the Ridgefield regulations. Harris v. Planning Commission, supra, 100.
To support its argument, the defendant relies on dicta at the conclusion of the opinion (p. 100) in the Harris case. From that language it is clear that an applicant could not claim the protection of the statute if, for some valid reason other than a failure to comply with a change of zone, his application was denied. It does not permit a denial of final approval for the reason that, lacking such approval, the statute is not a protection. If that circuitry of reasoning were adopted the planning commission would have full power to nullify the statute. If, and to the extent that, the language from the Harris opinion could be construed as the defendant claims, we could not accept it as accurately expressing the applicable law.