Attorney General: Richard J. Howard, P.E., State Traffic Commission, 1995-023 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 11, 1995

Richard J. Howard, P.E.
Executive Director
State Traffic Commission
2800 Berlin Turnpike
Newington, CT 06131-7546

Dear Mr. Howard:

You have requested our opinion on whether the owner of an unimproved parcel of land abutting a state highway must obtain a certificate of operation from the State Traffic Commission ("STC") under Conn. Gen. Stat. 14-311 in order to operate a so-called "flea market" on the land. In our opinion the flea market described in your correspondence does not require a 14-311 certificate.

According to your correspondence, the flea market is located on property that abuts Route 7, and has an entrance/exit onto this state highway. The market operates neither through permanent buildings nor paved parking spaces. Rather, the property owner provides vendors with an area on a large tract of unimproved land to set up tents and tables to sell various items to the public, and also provides a parking area on the land for approximately 1,000 motor vehicles. It is our understanding that this flea market operates on a seasonal basis and, weather permitting, is only opened on Sundays. It is also our understanding that when opened, the market generates large volumes of traffic and that on occasion there have been traffic jams on the abutting state highway.

Section 14-311 of the Connecticut General Statutes provides, in part, that:

No person, firm, corporation, state agency, or municipal agency or combination thereof shall build, expand, establish or operate any open air theater, shopping center or other development generating large volumes of traffic, having an exit or entrance on, or abutting or adjoining, any state highway or substantially affecting state highway traffic within this state until such person or agency has procured from the State Traffic Commission a certificate that the operation thereof will not imperil the safety of the public.

Conn. Gen. Stat. 14-311(a) (Emphasis added). This statute further provides that "[n]o local building official shall issue a binding or foundation permit to any person, firm, corporation, state agency or municipal agency to build, expand, establish or operate such a development until the person, firm, corporation or agency provides to such official a copy of the certificate issued under this section by the commission." Conn. Gen. Stat. 14-311(b). (Emphasis added). Lastly, the Regulations of Connecticut State Agencies provide that "[w]ithin the context of sections 14-311 and 14-311a of the General Statutes of Connecticut, any open air theater, shopping center or other such development generating large volumes of traffic shall mean any development providing two-hundred or more parking spaces, or a gross floor area of 100,000 square feet or more." Regs., Conn. State Agencies 14-312-1(a). (Emphasis added).

In considering the applicability of 14-311 to the situation at hand, we are guided by certain well-established principles of statutory construction. "It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent." All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989). See also, Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 20, --- A.2d --- (1995); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390, 618 A.2d 1340 (1993). "The starting point in any case involving a question of statutory construction must be the language used by the legislature." Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 364, 585 A.2d 1210 (1991). "When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature." Norwich v. Housing Authority, 216 Conn. 112, 117-18, 579 A.2d 50 (1990). "When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself; ... the legislative history and circumstances surrounding the enactment of the statute; ... and the purpose the statute is to serve." Id. (citations omitted). See also, West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507-508, 636 A.2d 1342 (1994).

By its plain language, the requirements of 14-311 apply to a development which generates large volumes of traffic that substantially affects a state highway. The flea market apparently does generate large volumes of traffic when opened on Sundays and does have a substantial impact on the abutting state highway. Moreover, the market provides an area for parking two-hundred or more motor vehicles. Consequently, the flea market satisfies some of the statutory and regulatory criteria triggering the application of 14-311. The critical remaining factor is whether the flea market is a "development", as that word is used in 14-311, because it is only developments that are required to have certificates of operation under 14-311. Unfortunately, neither 14-311 itself nor the STC's definitions statute, Conn. Gen. Stat. 14-297, defines the word "development".

In the absence of a statutory definition, it is appropriate to construe the word "development" in accordance with "the commonly approved usage of the language." Conn. Gen. Stat. 1-1(a). See also, Oller v. Oller-Chiang, 230 Conn. 828, 848, 646 A.2d 822 (1994) ("In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended."). This interpretive procedure was followed in connection with a prior STC request for an Attorney General's opinion on whether a single family home subdivisions project constituted a development for purposes of 14-311. In concluding that the subdivisions project did fall within the purview of 14-311, we engaged in the following analysis of the word "development":

The word "develop" is defined in Ballantine's Law Dictionary, 3rd Ed. as "[I]mproving a tract of land preparatory to the erection of residential, commercial or industrial buildings." "Development" is also defined as "[T]o convert from a tract of raw land into an area suitable for residential or business uses." People v. Embassy Realty Association, 167 P.2d 797, 800, 73 Cal. App. 2d 901 (1946); Muirhead v. Pilot Properties, Inc., 258 So. 2d 232, 233 (1972).

"Development" is also "activity which changes the basic character or the use of the land on which the activity or construction occurs." City of Louisville v. District Court in and for the County of Boulder, State of Colorado, 190 Colo. 33, 543, P.2d 67, 71 (1975), 543 P.2d, 67, 70 (1975).

Conn. Op. Atty. Gen., No. 84-84 (July 2, 1984) (a copy enclosed).

In short, the plain and ordinary meaning of the word "development" when used in the context of real property utilization implies the improvement or alteration of land and normally the construction or reconstruction of some facility (e.g., a building, paved parking lot, etc.). This intention is reflected in subsection (b) of 14-311 which prohibits a local building official from issuing a "building or foundation permit" until the applicant has obtained a certificate of operation from the STC. The inclusion of this latter provision clearly contemplates construction in some form in connection with the STC certificate process.

As noted in your correspondence, the flea market in question is conducted on an unimproved tract of land. Moreover, no commercial buildings or other permanent structures have been erected in connection with the operation of the market. In our opinion, the type of activity outlined in your correspondence does not constitute a development and therefore the owner does not have to apply for a 14-311 certificate.

In closing it should be noted that the mere fact that the property owner may not have to apply for a 14-311 certificate does not mean that he is relieved of all responsibility for the traffic generated by the flea market operation. There are other statutory provisions which may have application to the situation. For example, the property owner provides a parking area for twenty or more vehicles which has an exit or entrance onto a state highway. As such, the STC, in cooperation and agreement with local traffic authorities, may determine that the owner must install and maintain traffic control signals or devices in order to ensure the safe movement of traffic generated or impacted by the flea market. See, Conn. Gen. Stat. 14-311b. Thus, you may wish to discuss with local authorities options for addressing the flea market traffic situation.

Very truly yours,

Richard Blumenthal
Attorney General

Cornelius F. Tuohy
Assistant Attorney General

RB/CFT/cd


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