If You Don’t Use It, You May Lose It: Land Development Approvals

Picture this scenario: You have a residential development project that had conceptual approval from the local Planning Board two years ago. Under the local laws that existed when you applied for your approval, you were entitled to 60 market-rate dwelling units. But when you submit your engineering plans for the next phase of approval, you are told by staff your conceptual approval has expired. Staff also informs you that, since your conceptual approval, which was vested under the regulations that existed at the time of your initial filing, the municipality has changed its regulations, such that you are now only entitled to 45 units — and that 20% of them must be deed-restricted for affordable housing. If you had simply asked for an extension, you would be entitled to the 60 market rate units. 

The obvious moral of the story — land development approvals indeed have a set amount of time after they are granted before they expire. Obtaining these approvals is an extremely resource-intensive process, and the value they add to your land is substantial. As such, it is important to take proactive measures to avoid losing your land development approval. Otherwise, you could be sacrificing vested rights in the ordinances, bylaws, and regulations in effect at the time of the application, as well as a substantial portion of their land value that can otherwise be easily avoided with the prudent exercise of simple due diligence, and review of the approval itself.

States, and often municipalities within states, provide for a variety of expiration periods that must be closely monitored. We have summarized the expirations for select approvals in five states below. Developers must be mindful of these requirements, which may be state or locally mandated. If you have approvals in any state, do not wait to review and address expiration dates.

Rhode Island

In Rhode Island, there are essentially three stages of review for a major subdivision or land development project, all of which have different expirations for vesting. For the first two stages of review and approval, the applicant is provided with a more significant time period, i.e., two years for vesting rights, with two additional annual by-right extensions, for a total of four years. Any additional extensions are granted only “for good cause shown.” The final approval stage of a major subdivision or land development project expires one year from the date of the approval; with the right to extend that approval for an additional year. In any case, requests for extensions must be properly submitted to the planning board for the municipality in which the property is located. Minor subdivisions and land development project approvals expire just 90 days from the date of approval unless a plat or plan is submitted for signature and recording in the land evidence records or a request for extension is submitted “for cause shown.” As of this writing,[1] special use permits and variances reviewed by the zoning board may expire before subdivision or land development approval, which may require a return to the zoning board with a redundant application if not addressed. Municipalities across Rhode Island provide a wide range of vesting and expiration periods that must be monitored.

Massachusetts

Massachusetts provides a somewhat streamlined approach for review of site plans, without the several steps that Rhode Island requires. Recent changes in Massachusetts provide that if an applicant obtains Site Plan Approval from the local planning board, the approval will expire two years from the date of the final action, unless the applicant has commenced work on the project. Individual municipalities within Massachusetts mandate the process for requesting an extension; most require a petition be made to the planning board for good cause to extend the expiration of the approval. Because each municipality determines the review board for a special permit, and variances are generally heard by the zoning board, it is important to understand expiration periods of each entitlement received.

Connecticut

Connecticut provides a range of expiration periods between 5 and 10 years depending on the type of project, which are sometimes set by the local municipality (e.g., business site plans for projects with at least 400,000 square feet). The granting of a subdivision approval extension is a discretionary action of the individual municipal planning commissions. Under the general law, a land use board may grant an extension, and/or as many extensions as it may provide, so long as the extensions do not exceed 10 years from the date the subdivision was approved.

In 2021, Connecticut passed special legislation pertaining to the expiration of land use approvals, including those for site plan review, variances and special permits or exceptions, which provides generally that approvals granted may extend from anywhere between 14 and 19 years.  Moreover, the Connecticut Supreme Court issued a decision holding that a town has no authority to condition a special permit with an expiration before the statutory expiration provided for related site plan approvals.[2]  Clearly, expirations of an approval in Connecticut must be reviewed on a case-by-case basis.

New York

In the State of New York, once a final plan for major land development is approved, the owner or applicant must file the plat or a section of the plat within 62 days from the date of final approval or that approval will expire. New York is very specific as to the procedure where an applicant is permitted to file only a section of an approved plan (for example, a filing of 10 lots out of a total 60-lot subdivision). However, if the applicant chooses to file only a section of an approved plan, the entire approved plat must be filed within 30 days of the filing of that particular section with the Town clerk in each Town in which any portion of the land is situated. The section filed has to encompass a minimum of 10% of the total number of lots contained in the approved plat.

Depending on certain conditions existing within both the municipal agency where the final plan was approved, and the ordinances and procedures in place at the time of the approval, a final plan approval in New York can expire anywhere from 1-3 years. It is important to take each individual final plan approval under review when calculating the expiration period.

Florida

Florida is unique in that land use laws and controls are specific to each individual county within the State of Florida, unless, the developer is seeking to develop what is called a Large-Scale Development Project, which are governed by the state coordinated review process.

If an applicant has a land development approval that is not a Large-Scale Development Project, then their expiration of approval timeline and procedure for renewing any existing approvals will be governed by the land use regulations in the county for which the approval lies. This is why it is important to consult with legal counsel, as Florida does not implement a “one-size fits all” approach as do other states.

Final Thoughts

It is critical that you know when the expiration of your land development and other related entitlements will expire in each state and/or municipality and take the proper steps to ensure the time period for requesting a by right extension does not lapse.

Importantly, other states may have different time periods for expiration of land development approvals, and it is always important to check with counsel licensed in the state your approval lies.

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[1] Legislation introduced this General Assembly session, if enacted, will require municipalities to either combine planning and zoning review or prohibit expiration of variances and special use permits while planning review is pending.

[2] International Investors v. Fairfield Planning & Zoning Commission, 277 A.3d 750 (Conn. 2022).