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First: Buy Land
by Ron Davis

A Connecticut developer may have doomed plans for construction of a shopping center by failing to buy the land targeted for the project.

The developer, Plainville NWD Limited Partnership, had hoped to build the shopping center on a choice piece of property in Plainville. That property is owned by Tyler Farms Group, which had offered it to an affiliate of the developer through an option agreement and purchase and sales agreement. The plan was to get the local zoning commission to approve the shopping center construction, and then the developer's affiliate would exercise its option to purchase the property and assign it to the developer.

In keeping with the plan, the developer subsequently applied for site approval for the 102,000-square-foot shopping center, and the zoning commission okayed the project.

Opponents of the shopping center appealed the zoning commission decision, however. They claimed that the developer could not legally apply for site plan approval because the property on which the shopping center would be constructed was not owned by the developer at the time of application.

Under Connecticut law, anyone applying to a zoning commission for approval of a project must have "a sufficient interest in the subject property. And the opponents of the developer's plans pointed out that the developer lacked such interest.

A Connecticut Superior Court dismissed the appeal, ruling that the developer was a real party in interest and therefore had standing to apply for zoning approval. The judge explained that the developer's interest in the property came by virtue of the purchase agreement with the developer's affiliate, as well as the payment of the option costs and expenses incurred in pursuing the application.

The opponents again appealed.

The Connecticut Court of Appeals reversed the lower court ruling, stating, "The underlying question is whether the developer has an interest in the subject property.... The determination that there was no evidence that the developer possessed an interest in the property necessarily precludes any claim that the partnership possessed a substantial interest in that property." (Gladysz v. Planning and Zoning Com'n, 750 A.2d 507 [Conn.App. 2000])

Decision: June 2000
Published: July 2000



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