The subdivision of land into multiple parcels to create a proposed development is subject to municipal regulations that govern such actions. Section 8-25 of the Connecticut General Statutes, as amended, allows towns to enact comprehensive regulations that address an array of issues such as: water, sewage, roads, drainage, open space, public health and safety, utilities, bonding, site plan, and energy conservation techniques.
One regulatory topic that has fostered debate, is the issue of conservation easements. Traditionally, conservation easements control the use of designated land by prohibiting development that would alter its natural terrain or habitat. Permitted activities within the conservation easement typically include passive recreation such as hiking, athletic fields, parks, and playgrounds.
Municipal zoning boards and even wetlands commissions, have exercised authority to require conservation easements as a condition of permitting approval. Such authority is based upon C.G.S. Section 8-25 which provides in part, “Such regulations shall also provide that the commission may require the provision of open spaces, parks and playgrounds which shall be shown on the subdivision plan.” Zoning regulations adopted within the scope of authority sanctioned by Section 8-25 have been upheld as a constitutional exercise of police power.
The United States Supreme Court in the case of Dolan v. City of Tigard, 512 U.S. 374, (1994) established criteria for municipalities seeking to mandate the dedication of open space and easements from developers seeking zoning approval. The Court said that there must be an “essential nexus” between a “legitimate state interest” and the mandated easement. The Court characterized this as a “rough proportionality”, necessary to satisfy the prohibition against a “taking” as set forth in the Fifth Amendment of the U.S. Constitution. Furthermore the Court said that there must also be a reasonable relationship between the dedication of land and the impact to the proposed development.>P>
Consequently, the Supreme Court upheld the zoning decision of the City of Tigard that required land within the 100 year flood plain adjacent to a waterway to be dedicated as open space. However the Court declared invalid, the City’s zoning condition that the land owner additionally grant a 15 foot bicycle/pedestrian pathway easement above the flood plain. The Court found no nexus between the recreational pathway and the municipal interest of controlling flooding. Without the nexus demonstrating need for the easement, and failing to connect the relationship of the proposed easement to the impact of the proposed development, the exaction of the bicycle/pedestrian easement amounted to a government taking of private property.
Nothwithstanding broad grants of authority in municipal zoning regulations, many Town Planners have cautioned their Zoning Boards and Wetlands Commissions against mandating conservation easements as a condition of permitting approval. Consider the Bloomfield Subdivision Regulations which provide in part, “Public open space …may be required by the Commission in amounts and locations it considers reasonable, where in the judgment of the Commission the subdivision is of such size and/or location to require such space.”
There is of course, no legal prohibition in accepting a voluntary conservation easement offered by an applicant. However, the concern about an illegal “taking” has prompted zoning boards and wetlands commissions to exercise restraint in mandating such easements as part of the subdivision or wetlands approval process. Even if the proper nexus and relationship to a development is found, the scope, location, use and intensity of any mandated exaction of land or of an easement must also survive legal scrutiny.
Meeting with the Town Planner and Wetlands Agent of a town before submitting an application for subdivision or wetlands approval, can assist in ascertaining the philosophy, tradition, and attitudes of the local officials. Helping professional staff understand the legal parameters governing the exaction of conservation easements, may assist in eliminating what could otherwise become a contentious issue. It might also avoid the denial of an application based upon failure of the applicant to consent to easement conditions that may in fact, not even be permitted by law.
For more information, please contact Attorney David A. Baram.