Over the years, more than a few clients have approached my firm with a similar dilemma: The Town will not permit the client to develop an undersized lot and they would like my opinion whether the Town is right or wrong. The answer? Sometimes the Town is right, often the Town is wrong.
The client is surprised when the town will not permit him/her to develop the lot.Edward Schenkel
The clients’ stories behind the lots are usually similar. The lot is an undersized lot that does not conform to the minimum area requirement of the current zoning regulations. In other words, the lot’s size is too small to comply with the current zoning regulations. The lot has been owned by the client’s family for many years and it may have been passed down through generations. The client believed that s/he would have no problem developing the lot because it is an old lot that either predates zoning or it complied with the regulations before the minimum lot area was increased by amendment. The client is surprised when the town will not permit him/her to develop the lot. That leads them to my firm to ask what is going on.
Whether a client may develop an undersized lot that is non-conforming as to the minimum area depends on several factors. First, if the lot was created as part of an approved subdivision or re-subdivision plan, the lot should be treated as a legally non-conforming lot and it may be developed, notwithstanding any subsequent changes in the zoning or subdivision regulations. In other words, since the lot complied with the subdivision and zoning regulations at the time the subdivision plan was approved, the lot’s approved status is vested and should continue after the Town changed the zoning regulations to increase the minimum area requirements in that zone. Therefore, even though the lot does not comply with the minimum area of today’s current zoning regulations, the Town should allow the lot to be developed.
Equally as significant, Conn. Gen. Statute § 8-26a provides that the owner of such a lot may use the zoning regulations in effect at the time that the subdivision map was approved to develop the lot. This is significant and may be overlooked by the town’s Planning and Zoning Dep’t. Whether the town applies the current regulations or the regulations at the time that the subdivision map was approved may determine whether the lot may be developed. For example, the current zoning regulations may be much more restrictive in terms of setbacks, coverage requirements, height requirements, and so on, compared with the zoning regulations in place back when the subdivision map was approved. Therefore, it may be impossible to develop the lot under the current more restrictive regulations, but may be developed if the town applied the regulations in effect at the time that the subdivision map was approved.
If the undersized lot was not part of a subdivision map, whether the lot may be developed becomes more complicated and may depend on local zoning ordinances. The Connecticut General Statutes do not protect a vacant lot that is not part of a subdivision map in the same way that it protects lots that were part of approved subdivisions. In other words, if a vacant lot is part of an approved subdivision map, it has a vested right to be developed under the zoning regulations at the time the map was approved, notwithstanding any subsequent changes in the regulations. If the lot is not part of a subdivision map, for example if it predates zoning, there is no such protection from changes in the zoning regulations and you may not be able to develop it.
…if you cannot develop under the current regs, you are free to apply for a variance…Edward Schenkel
However, the Town may have a zoning ordinance that does protect such undersized lots as legally non-conforming lots that may be developed under the current regulations, notwithstanding the fact that the lot was not part of a subdivision map. Many towns do have such regulations, but it is important to review the specific regulations to understand whether these lots may be developed. Significantly, since these lots are not part of an approved subdivision plan, they must be developed under the current zoning regulations, which may make development impossible if the current regulations are more restrictive than before. Of course, if you cannot develop under the current regs, you are free to apply for a variance (an exception to certain regulations), which will be the topic of another post.
In summary, whether you can develop a lot that does not conform to the minimum size requirements is a complicated issue and largely depends on the history of the lot. If the lot was part of a subdivision plan, you should be able to develop it and apply the zoning regulations in effect at the time the subdivision plan was approved. If you own an undersized lot that was not part of an approved subdivision plan, development becomes more challenging and whether you can develop it will depend on the current zoning regulations.
So if you have been told by your town that you cannot develop your lot because it is too small, they may be wrong. It is worth taking a close look at the history, statutes, and the regulations.