No Zoning Variance Absent Practical Confiscation

There can be no zoning variance absent practical confiscation of the property. The Connecticut Supreme Court determined in Caruso v. Zoning Board of Appeals that land use regulations for a regional development zone did not result in a practical confiscation of a property within the zone. The Supreme Court also determined that the Appellate Court’s decision reversing the trial court did not impose a requirement of diminution in value evidence for every practical confiscation claim.

The Meriden zoning regulations permit only six uses within a “Regional Development District.” The six uses are: conference center hotels; executive offices; research and development; medical centers; colleges or universities accredited by the state; and distribution facilities combined with executive offices or research and development.

The developer applied to the board for a variance claiming essentially that limiting its uses to these six things practically confiscated the property. The developer asked for permission to operate a used car lot on it. The board voted to grant the variance.

Plaintiffs appealed to the Superior Court claiming that the developer failed to demonstrate a practical confiscation and that the vote was void because one voting board member had a conflict of interest. Superior Court concluded that there was substantial evidence that the property had been practically confiscated. But, because Superior Court also concluded that the one board member should have disqualified himself from the vote, it remanded the case to the board for further proceedings.

The developer appealed to the Appellate Court, arguing that the vote was proper. Plaintiffs cross-appealed Superior Court’s decision that there was substantial evidence of a practical confiscation. The Appellate Court concluded that there was no substantial evidence of a practical confiscation because the developer “offered no evidence of the current value of the property or its efforts to market, sell, or develop the property for any permitted use within the development district.” The Appellate Court reversed and remanded to Superior Court with a direction to sustain plaintiffs’ appeal.

The Supreme Court affirmed.

Arguments on Appeal

The court noted that “[a] zoning board of appeals is statutorily authorized to grant a variance if two requirements are met: (1) the variance will not ‘affect substantially the comprehensive zoning plan’; and (2) the application of the regulation causes ‘unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.'” The court continued, “[u]nusual hardship may be shown by demonstrating that the zoning regulation has deprived the property of all reasonable use and value, thereby practically confiscating the property.” There is no practical confiscation where, even as regulated, the property can be reasonably used or still has value.

The court concluded that the developer “failed to prove practical confiscation because it did not demonstrate that the property has been deprived of all reasonable use and value under the regulations.”

As for the purported categorical rule requiring evidence of the property’s diminished value, the Supreme Court concluded that the Appellate Court did not impose any such rule. The Supreme Court explained, as follows (quotes and cites omitted; emphasis original):