You wouldn't immediately think the coronavirus pandemic has zoning implications, but it does. What happens, for instance, when meetings on pending applications can't be held?

We have statutory time limits for accepting applications, holding hearings, closing hearings and deciding applications. And those time limits sound like they are mandatory.

Take a look at Section 8-7d of the General Statutes: "such hearing shall commence within 65 days after receipt of such petition … and shall be completed within 35 days after such hearing commences" and "all decisions on such matters shall be rendered not later than 65 days after completion of such hearing." Applicants may consent to one or more extensions of these time periods for up to 65 days in total.

That's draconian. And most land-use boards and commissions treat these time limits as mandatory and sacrosanct.

But buried in the common law of zoning may be a way out from coronavirus-induced delays and rescheduling that may drive the process beyond time limits. There is an argument that time limits can be waived by an applicant with a unilateral request for an extension.

In Frito-Lay v. Planning & Zoning Commission, 206 Conn. 554, 538 A.2d 1039 (1988), the Connecticut Supreme Court held that the applicant's request for an extension that necessarily took it beyond the time limits was a waiver of its rights to a decision within the time limits:

"The trial court found that Frito-Lay, by requesting the extension March 11, 1985, waived the 65-day time limit under the statute, thereby rendering it impossible for the commission to act within that 65-day period. There is no question that more than 65 days had elapsed from January 14, 1985, to March 26, 1985, when the commission rendered its decision. Having requested this continuance beyond what would have been 65 days. … Frito-Lay's action in obtaining the extension … was a valid waiver of its right to require the defendant commission to make its decision under the statute within 65 days after the completion of the hearing of January 14, 1985. See General Statutes §§ 8-7d, 8-3c."

The Appellate Court followed the Frito-Lay holding in Cammarota v. Commission, 906 A.2d 741, 97 Conn. App. 783 (App. Ct. 2006):

"Although it concerns the 65-day period after the completion of the public hearing as opposed to the 35 days to complete the hearing at issue here, our Supreme Court's reasoning in Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 538 A.2d 1039 (1988), is apposite. … In this case, the Cammarotas, having requested the extensions beyond the 35 day limitation to complete the hearing, similarly cannot complain now about the effect of the extensions' having been granted."

The unanswered question is whether the "waiver" in these decisions is merely the invocation of the allowed extensions or something more. Frito-Lay is silent on the statutory extension. Cammarota discusses the statutory extension at length and lays out how the continuances requested fall within the terms of the amended statute. In a footnote in Cammarota, the court calls them "extensions:"

"Although the Cammarotas assert that the continuances they requested are distinct from the extensions included in the statute, they cite to no case law, and we are unaware of any, that differentiates a continuance from an extension in the realm of applications to a planning and zoning commission," the court wrote. "Therefore, for clarity in this section, we will refer to the Cammarotas' requests as being for extensions."

The "something more" is that the time limits are most certainly for the sole benefit of the applicant. They are not jurisdictional. If an applicant can waive the time limit by requesting continuances or extensions or whatever you want to call them that happen to comport with the statutory provision allowing for extensions, cannot an applicant request an extension beyond the allowed extensions and effectively waive its rights? Frito-Lay is all about waiver and Cammarota follows it. A logical extension of the decisions may be that an applicant can waive its rights under the time limits.

And if the town attorney or any of the stakeholders are uncomfortable with making new law during the coronavirus pandemic by going one step beyond Frito-Lay and going against all those "shall's" in the enabling statute, an applicant might offer to withdraw without prejudice and reapply, with the commission waiving the usual fees. The old record can be incorporated into the new one. Withdrawing and reapplying won't work in those rare cases where the zoning affecting the property has been amended after the application was submitted and the applicant needs to protect its vested rights under Section 8-2h of the General Statutes.

Finally, there is broad-based speculation that the General Assembly will offer up some relief from the "mandatory" time limits.

Attorney Dwight Merriam, www.dwightmerriam.com, practices in Simsbury and is a member of the Connecticut Law Tribune's editorial board.