Do Connecticut's priority-funding-area rules, the village-character cooperation rule, and the State Facilities Plan apply to a state police training facility being built in Griswold using bond proceeds?

Plain-English summary

The Department of Administrative Services proposed to locate a state police training facility (including a gun range) in the Town of Griswold. House Republican Leader Klarides asked whether the project had to comply with three separate state planning regimes: Chapter 297a's priority-funding-area rules, the cooperation-with-municipalities-to-sustain-village-character rule, and the State Facilities Plan administered by the State Properties Review Board.

The AG addressed each in turn. On Chapter 297a, the AG concluded that the priority-funding-area restriction in Conn. Gen. Stat. § 16a-35d does not apply when a state agency is building its own facility. The statute restricts state agencies from "providing funding" to non-state recipients (e.g., grants, loans, or subsidies for development) outside priority funding areas; it does not restrict the State from constructing on its own. The AG drew this conclusion from the longstanding rule that statutes limiting rights are not construed to apply to the State unless the legislature expressly or by necessary implication says so.

On the village-character cooperation rule in § 16a-35e, the AG noted the statute uses different language ("programs and activities," not "growth-related projects") and likely does apply to state-agency activities. But the statute requires only "cooperation," with no specific kind or level required and no negative consequence for noncompliance. The AG saw no basis to second-guess DAS's assertion that it had communicated extensively with Griswold and held public meetings, and so concluded DAS had satisfied the requirement.

On the State Facilities Plan, the AG noted that since 2006 the legislature had been authorizing capital projects directly through bond authorization legislation rather than through the Plan, and that this was permitted because no legislature can bind a successor. The Griswold facility had been authorized through the 2012 and 2013 capital bonding bills. The Properties Review Board would still review specific real-estate acquisitions and architect/engineer contracts going forward, but the broader Plan-inclusion process did not apply.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Chapter 297a of the General Statutes (the "smart growth" framework) was enacted to coordinate state funding decisions with land use policy. A "priority funding area" is an area designated upon recommendation of OPM and approval of the General Assembly. Section 16a-35d(a) prohibits a state agency from "provid[ing] funding for a growth-related project unless such project is located in a priority funding area," subject to exceptions in § 16a-35d(b) that allow funding outside priority funding areas if (1) the project is consistent with the local plan of conservation and development, and (2) the project meets one of nine enumerated criteria. "Growth-related project" includes acquisitions and developments over $200,000 (§ 16a-35c(a)(2)). "Funding" is defined to include "any form of assurance, guarantee, grant payment, credit, tax credit or other assistance, including a loan, loan guarantee, or reduction in the principal obligation of or rate of interest payable on a loan" (§ 16a-35c(1)).

The AG read § 16a-35d as applying to state-agency funding of non-state recipients (the typical case being grants for economic development to a private developer or a municipality). Several considerations supported that reading. First, the statutory definition of "funding" is a list of vehicles by which the State channels assistance to others (loans, guarantees, grants, tax credits). Second, the statute did not contain language expressly applying its restrictions to state-agency development of its own projects. Third, State v. Lombardo Bros. and State v. Shelton establish a longstanding rule that statutes limiting rights do not apply to the State unless the legislature expressly or by necessary implication says so. The AG had previously applied this rule to hold state-owned land was not subject to local zoning regulation in the absence of express statutory language (Op. No. 2014-006, Op. No. 86-63). The same principle applied here.

Section 16a-35e takes a different approach. It says "each state agency, department or institution shall cooperate with municipalities to ensure that programs and activities in rural areas sustain village character." The use of "programs and activities" (rather than the defined "growth-related projects") signaled a broader reach. The AG assumed the section applied to the proposed facility. But the statute does not specify a kind or level of cooperation, and provides no remedy for noncompliance. That structure suggests the legislature meant to give state agencies discretion. DAS had told the legislature that "communication with the Town of Griswold and other municipalities has been extensive" and that public meetings had been held. Without contrary evidence, the AG had no basis to second-guess that.

On the State Facilities Plan, Conn. Gen. Stat. § 4b-23 sets out a five-year capital-planning process: agencies submit needs to OPM, OPM submits a proposed plan to the State Properties Review Board, the Board recommends, OPM submits the recommended plan to the legislature, and after appropriations OPM updates the Plan. Section 4b-23(d) describes the Plan as "an advisory document for the leasing of property for use by state agencies and departments and for related capital projects." Section 4b-23(k) lets agencies submit additional facility requests outside the Plan to OPM and the Board, who must determine the request is for facilities "of emergency nature" or that lack would "seriously hinder the efficient operation of the state."

But since 2006, capital projects had been authorized directly through bond legislation rather than the Plan. The training facility had been so authorized in 2012 P.A. 12-189, § 2(c)(2) and 2013 P.A. 13-239, § 100. The AG explained that legislative practice was permissible: "[o]ne [l]egislature cannot control the exercise of the powers of a succeeding [l]egislature" (Patterson v. Dempsey), and where new legislation conflicts with prior, the latest in time prevails (also Patterson). Specific legislation also prevails over the general (Brennan v. Brennan Assocs.; Tomlinson v. Tomlinson). The legislature's specific bond authorization for the training facility therefore controlled, and the project did not need to be in the Plan.

The Board would still see the project, however. Section 4b-3(f) gives the Board authority to review real estate acquisitions, and § 4b-23(i) gives it authority to review architect, engineer, and other construction-consultant contracts. Those reviews proceed independently of whether the project is in the Plan.

Common questions

So can DAS just put any state facility anywhere it wants without smart-growth review?

No. Section 16a-35d does not restrict state agencies from building their own facilities, but § 16a-35e still requires the agency to cooperate with municipalities to sustain village character. That requirement is loose and gives the agency discretion, but the agency cannot simply ignore municipal concerns. State agencies are also still subject to whatever environmental and procurement requirements apply.

What's the difference between § 16a-35d (no funding outside priority areas) and § 16a-35e (cooperate with municipalities)?

Section 16a-35d is a hard restriction tied to specific dollar thresholds and project definitions, and it applies to grants and other forms of funding that the State channels to non-state recipients. Section 16a-35e is a soft cooperation requirement that uses broader language ("programs and activities"), applies to state-agency conduct, and gives no specific compliance test or remedy. The AG read the first as not applying to state self-funded projects and the second as a general consultation duty.

Can the legislature really bypass the State Facilities Plan whenever it wants?

Yes. The Plan is an advisory document, and the legislature can authorize capital projects directly through bond legislation. The AG explained this is just the principle that one legislature cannot bind a successor, plus the rule that specific legislation prevails over general. Once the legislature authorizes a project specifically through a bond act, that authorization governs.

Does the State Properties Review Board still have any role?

Yes. The Board retains authority to review real estate acquisitions (§ 4b-3(f)) and architect/engineer/consultant contracts (§ 4b-23(i)) even when the project is not in the Plan. So the project will still come before the Board, just not as part of the Plan-development process.

What about local zoning?

The opinion did not directly address that, but cited State v. Lombardo Bros., State v. Shelton, and prior AG opinions for the rule that state-owned land is generally not subject to local zoning unless the legislature expressly says so. Griswold's local land use authority is therefore limited as to a state-built training facility.

Citations

Statutes

• Conn. Gen. Stat. § 4b-3(f) (Properties Review Board: real estate acquisitions)
• Conn. Gen. Stat. § 4b-23 (State Facilities Plan process)
• Conn. Gen. Stat. § 4b-23(i), (k) (architect/engineer review; out-of-Plan requests)
• Conn. Gen. Stat. § 16a-35c (priority funding area definitions)
• Conn. Gen. Stat. § 16a-35d (priority funding area restriction)
• Conn. Gen. Stat. § 16a-35e (cooperation to sustain village character)
• Conn. Gen. Stat. § 8-23 (municipal plan of conservation and development)
• 2012 P.A. 12-189, § 2(c)(2) and 2013 P.A. 13-239, § 100 (bond authorizations for training facility)

Cases

• Town of Middlebury v. Connecticut Siting Council, 326 Conn. 40 (2017) (statutory construction objective)
• State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412 (2012) (statutes limiting rights not applied to State without express language)
• State v. Shelton, 47 Conn. 400 (1879) (same)
• Mayer v. Historic District Comm'n, 325 Conn. 765 (2017) (courts will not supply missing statutory language)
• Patterson v. Dempsey, 152 Conn. 431 (1965) (one legislature cannot bind a successor; later in time prevails)
• Tomlinson v. Tomlinson, 305 Conn. 539 (2012) (specific legislation prevails over general)
• Brennan v. Brennan Assocs., 316 Conn. 677 (2015) (same)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2017/2017-07_opinion_statepolicetrainingfacilitygriswold-pdf.pdf?rev=f9adb6e237604fa8968a18dbf12bd47c

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120

GEORGE JEPSEN
ATTORNEY GENERAL

Office of the Attorney General

State of Connecticut

August 11, 2017

The Honorable Themis Klarides
Republican Leader
State of Connecticut
House of Representatives
Legislative Office Building
300 Capitol Avenue, Suite 4200
Hartford, CT 06106-1591

Dear Representative Klarides:

You have asked for an opinion about certain legal questions pertaining to a proposed police training facility in the Town of Griswold. Specifically, you ask (1) whether the requirements under Chapter 297a of the General Statutes relating to priority funding areas apply to the proposed training facility; (2) whether the Department of Administrative Services (DAS) has satisfied the requirement of Conn. Gen. Stat. § 16a-35e that state agencies cooperate with municipalities to ensure programs and activities in rural areas sustain village character; and (3) whether the proposed training facility requires the approval of the State Properties Review Board as part of the State Facility Plan. We conclude that (1) the statutory requirements pertaining to priority funding areas, and in particular Conn. Gen. Stat. § 16a-35d, do not apply to the proposed facility; (2) we have no basis for concluding that DAS has not satisfied the statutory cooperation requirement; and (3) the legislature has expressly authorized the use of bond proceeds for the training facility project even though the proposed training facility is not included in the State Facility Plan.

Background

We understand that DAS is proposing to locate a State Police training facility in the Town of Griswold. We further understand that DAS has taken positions on each of the three issues you have raised. First, DAS maintains that the statutes relating to priority funding areas do not apply to state projects, such as the proposed facility here, "where a state agency is developing a facility to carry out its statutory mission." Letter to Hon. Kevin Skulczyck from Commissioner Melody A. Currey dated May 24, 2017. Second, DAS has indicated that "[t]hroughout this process, communication with the Town of Griswold and other municipalities has been extensive. Public meetings were held in the Towns affected even though such meetings were not required." Id. Finally, as to the role of the State Properties Review Board, DAS indicated that capital projects such as this one are not included in the State Facility Plan but have been separately authorized by the General Assembly in bond authorization acts. Letter to Hon. Kevin Skulczyck from Commissioner Melody A. Currey dated Nov. 28, 2016.

The Applicability of Chapter 297a of the General Statutes to the Proposed Facility

Chapter 297a of the General Statutes addresses the funding of certain projects in "priority funding areas." The question of the applicability of Chapter 297a depends on the interpretation of its statutory language. As with all such statutory questions, a court's "fundamental objective is to ascertain and give effect to the apparent intent of the legislature." Town of Middlebury v. Connecticut Siting Council, 326 Conn. 40, 48 (2017) (internal quotation marks omitted). Of particular relevance to the interpretation of Chapter 297a's provisions is the principle that statutes limiting rights are not to be construed as applying to the State unless the legislature expressly or by necessary implication provides otherwise. State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 426-27 (2012).

Section 16a-35d of the General Statutes provides that "no state agency, department or institution shall provide funding for a growth-related project unless such project is located in a priority funding area." Conn. Gen. Stat. § 16a-35d(a). Notwithstanding this prohibition, a state agency, with the approval of the Secretary of the Office of Policy and Management (OPM), may provide funding for a growth-related project that is not located in a priority funding area upon determination that the project is consistent with the local plan of conservation and development and meets one of nine enumerated criteria.

A "priority funding area" is an area of the state designated as such upon the recommendation of OPM and approval of the General Assembly. Conn. Gen. Stat. §§ 16a-35c(a)(3), 16a-35c(b). It is our understanding that the proposed training facility will not be located in a priority funding area.

A "growth-related project" is defined to include the acquisition or development of real property when costs exceed $200,000, the acquisition of public transportation equipment or facilities over $200,000, and certain authorized state grants over $200,000 for those purposes. Conn. Gen. Stat. § 16a-35c(a)(2).

"Funding" within the meaning of § 16a-35d is defined as including "any form of assurance, guarantee, grant payment, credit, tax credit or other assistance, including a loan, loan guarantee, or reduction in the principal obligation of or rate of interest payable on a loan or a portion of a loan." Id., § 16a-35c(1). The forms of funding included in this definition all are common ways by which the State provides assistance for economic development to non-State entities. See, e.g., Conn. Gen. Stat. §§ 4-66c; 4-66g; 12-217ii to 12-217pp; 32-7g; 32-9l; 32-9o to 32-9t.

Significantly, in crafting the priority funding area statutes, the legislature did not use language that either expressly or by necessary implication demonstrated an intention to make these provisions applicable to projects of the State itself, as opposed to projects of private parties or municipalities for which the State is providing funding. Instead, it speaks only in general terms. Under a longstanding rule of statutory construction, in the absence of language expressly or by necessary implication providing for application to the State, statutory provisions limiting rights are not to be construed as applying to it. Lombardo Bros., 307 Conn. at 426-27; State v. Shelton, 47 Conn. 400, 404-05 (1879). For this reason, for example, this Office has consistently opined that development of state owned land is not subject to local zoning regulation in the absence of express statutory language. E.g., A.G. Op. No. 2014-006, 2014 WL 7284325 (Oct. 23, 2014); A.G. Op. No. 86-63, 1986 WL 289176 (Aug. 18, 1986). Thus, applying these principles, a court would likely presume that the legislature would ordinarily demonstrate its intention to impose a general restriction on the State, particularly one involving subjecting the State to local laws or standards, through language that makes clear that the statute applies to state projects.

Although the proposed facility appears to exceed the valuation requirement under the definition of growth-related project, i.e., a land acquisition or development cost of over $200,000, that does not end the inquiry. Against the background principal that general statutory language is ordinarily presumed not to apply to the State, the absence of language that expressly or by necessary implication includes state projects weighs heavily in favor of a construction of the statute that excludes a state project such as the proposed training facility from its ambit. See Lombardo Bros., 307 Conn. at 426-27.

Moreover, the restrictions in § 16a-35d are placed on a state agency's authority to provide funding to non-state recipients, and not to the State's funding of its own projects. In this case, DAS (or the Department of Emergency Services and Public Protection) is not providing "funding" to anyone. Specifically, it is not providing any form of assurance, guarantee, grant payment, credit, tax credit, loan, loan guarantee, principal or interest rate reduction or other assistance to any other party. Rather, it is using state bond proceeds to fund a state project as specifically permitted by the legislature through the bond authorization. If the legislature had intended to extend § 16a-35d's restrictions to the State's funding of its own projects, the more natural way of demonstrating that intent would have been to restrict state agencies' authority to develop or construct projects outside of priority funding areas. Instead, absent evidence of such intent, the restriction is best understood as limited to funding by a state agency of non-state projects. Courts will not supply additional statutory language through interpretation where the legislature could have easily expressed its intent. Mayer v. Historic District Comm'n, 325 Conn. 765, 780 (2017). Limiting the restrictions to agency funding, rather than imposing them directly on agency construction or development of a project, supports an interpretation that § 16a-35d applies to a state agency's funding of projects other than the State's own projects.

The legislative history offers no meaningful evidence of a contrary intent. The limited legislative debate emphasized the need for improving the coordination of development among various levels of government and the effectiveness of state investment. See, e.g., 48 Conn. Senate Proc., pt. 14, 2005 Sess. 4381-84 (June 6, 2005) (remarks of Sen. Coleman). However, it is not necessarily inconsistent with that purpose to exclude the State's own projects that may have their own unique set of public policy considerations. It is therefore inappropriate to infer an intent to include state projects from this generalized statement of purpose. See Envirotest Systems Corp. v. Comm'r of Motor Vehicles, 293 Conn. 382, 389-90 (2009).

In light of the absence of statutory language that expressly or by necessary implication includes state projects such as the proposed training facility, we conclude that a court, if presented with the issue, would construe § 16a-35d as excluding such projects.

The Requirement of § 16a-35e Regarding Cooperation with Municipality to Sustain Village Character

In contrast to § 16a-35d, § 16a-35e of the General Statutes explicitly, or at least by very clear implication, applies to the activities of the state, requiring state agencies cooperate with municipalities. In particular, it provides that "each state agency, department or institution shall cooperate with municipalities to ensure that programs and activities in rural areas sustain village character." Conn. Gen. Stat. § 16a-35e (emphasis added). However, as discussed below, the statute does not mandate a certain kind or level of cooperation, and we have no reason to believe that DAS failed to adequately cooperate within the mandate of the statute.

It is significant that § 16a-35e uses the rather broad phrase of programs and activities in contrast to § 16a-35d's use of the defined term of growth-related projects. At a minimum, the different language suggests that the reach of § 16a-35e is broader. The legislature's use of different words in the same enactment indicates a different meaning. Scholastic Book Clubs, Inc. v. Comm'r of Revenue Services, 304 Conn. 204, 215-17 (2012). The precise meaning of this phrase, however, is not clear. Like § 16a-35d, the statutory language does not expressly refer to programs and activities of the State. Nonetheless, it seems a straightforward reading to interpret § 16a-35e as requiring state agencies to cooperate as to their own programs and activities. We will therefore assume, for purposes of this opinion, that § 16a-35e applies to the proposed training facility.

The statute requires a state agency to cooperate, but does not articulate the form or extent that such cooperation must take. Nor does it provide for a negative consequence for the failure to cooperate. Therefore, it appears the legislature intended to afford state agencies discretion in deciding the nature of the cooperation they will undertake depending on the circumstances of a particular program or activity.

Here, DAS has indicated that "[t]hroughout this process, communication with the Town of Griswold and other municipalities has been extensive. Public meetings were held in the Towns affected even though such meetings were not required." Letter to Hon. Kevin Skulczyck from Commissioner Melody A. Currey dated May 24, 2017. We have no basis, nor has one been suggested to us, for concluding that, assuming § 16a-35e applies to the proposed facility, DAS has not satisfied the statutory cooperation requirement.

State Facilities Plan and State Properties Review Board

Your final question asks about the role of the State Properties Review Board (Board) in connection with the proposed gun range. In particular, you ask whether the proposed training facility must be included in the State Facility Plan (Plan), which is subject to Board review pursuant to Conn. Gen. Stat. § 4b-23.

Section 4b-23 of the General Statutes establishes a process for the creation of the Plan. The Plan has a five-year timeframe that is updated every two years and "shall be used as an advisory document for the leasing of property for use by state agencies and departments and for related capital projects." Conn. Gen. Stat. § 4b-23(d). The preparation of the Plan begins with agencies submitting requests for facility needs to OPM. OPM, after receiving DAS's review, submits a proposed plan to the Board. Id., § 4b-23(a)-(c). The Board provides recommendations on the proposed plan to OPM, which then submits a recommended plan to the General Assembly. Id., § 4b-23(c). After the General Assembly approves the operating and capital budget appropriations, OPM updates the Plan. Id., § 4b-23(d).

Section 4b-23(k) provides that any agency requiring additional facilities that are not included in the Plan may submit a request to OPM. Such a request may be approved by OPM and the Board after OPM has determined that the request is for additional facilities that are "of emergency nature" or the lack of the additional facilities "may seriously hinder the efficient operation of the state. . . . No action may be taken by the state to lease or construct such additional facilities unless [OPM] makes such a determination." Conn. Gen. Stat. § 4b-23(k).

DAS is responsible for the implementation of the Plan and conducts a study of each proposed facility. Id., § 4b-23(e). DAS reviews and approves each facility plan implementation action and submits to the Board each approved action. The Board reviews DAS's decision and may accept, reject or request modification of the decision. Id.

The proposed training facility has not been included in the Plan. Instead, authorization for the proposed training facility has been sought directly from and approved by the legislature in bonding legislation for capital projects. 2012 Conn. Pub. Act No. 12-189, § 2(c)(2); 2013 Conn. Pub. Act No. 13-239, § 100. The training facility project is not unique in this regard. Since 2006, capital projects have not been included in the Plan, but rather have been submitted directly to the legislature in bonding legislation. See, e.g., 2007 Conn. Pub. Act No. 07-6 (June Spec. Sess.); 2009 Conn. Pub. Act No. 09-2 (Sept. Spec. Sess.); 2011 Conn. Pub. Act. No. 11-57; 2014 Conn. Pub. Act. No. 14-98.

Section 4b-23's provisions notwithstanding, the legislature is free to authorize capital projects in this manner. As our Supreme Court has long held, "[o]ne [l]egislature cannot control the exercise of the powers of a succeeding [l]egislature." Patterson v. Dempsey, 152 Conn. 431, 439 (1965) (quoting Preveslin v. Derby & Ansonia Developing Co., 112 Conn. 129, 140 (1930); accord Tomlinson v. Tomlinson, 305 Conn. 539, 553 (2012). When the legislature makes an enactment that is in conflict with or contrary to prior legislation, "[t]he effect is really that of repeal by implication. 'When expressions of the legislative will are irreconcilable, the latest [in time] prevails.'" Patterson, 152 Conn. at 439 (quoting Moran v. Bens, 144 Conn. 27, 30 (1956)). This is further supported by the rule of statutory construction that specific legislation prevails over the general, with the former treated as an exception to the latter. Brennan v. Brennan Assocs., 316 Conn. 677, 696 (2015); Tomlinson, 305 Conn. at 552-53. Because the legislature has chosen to authorize the use of bond funds for the proposed training facility specifically, DAS has the authority to proceed with the project despite it, or any other capital project, not being included in the Plan.

As the project moves forward, however, there will be occasion for Board review. The Board has authority to review real estate acquisitions, Conn. Gen. Stat. § 4b-3(f), and contracts for architects, engineers and other construction-related consultant services for the project. Conn. Gen. Stat. § 4b-23(i).

We trust this is responsive to your inquiry.

GEORGE JEPSEN
ATTORNEY GENERAL