DOMINICK CARUSO ET AL. v. ZONING BOARD OF APPEALS OF THE CITY OF MERIDEN ET AL.
(SC 19380)
Supreme Court of Connecticut
Argued October 5, 2015—officially released February 2, 2016
Rоgers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
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Daniel J. Krisch, with whom was Dennis A. Ceneviva, for the appellant (defendant Mark Development, LLC).
Joseph P. Williams, with whom was Beth Bryan Critton, for the appellees (plaintiffs).
Opinion
ROBINSON,
The record reveals the following facts and procedural history. In 2003, the defendant purchased an approximately forty-eight acre parcel in Meriden for more than one million dollars.5 The property is located in an area zoned as a ‘‘ ‘Regional Development District’ ’’ (development district). Id., 833. The Meriden Zoning Regulations (regulations),6 provide that, six uses are permitted ‘‘by right’’ on such properties.
In August, 2008, the defendant applied to the board for a variance seeking permission to use its property for a used car dealership. The defendant claimed that the regulations ‘‘drastically [reduce the property’s] value for any of the uses to which it could reasonably be put, and/or the effect of applying the regulations is so severe as to amount to a practical confiscation.’’ At a public hearing on September 2, 2008, the defendant submitted, inter alia, an appraiser’s report and a letter from a local attorney in support of its variance application.8 Immediately following the hearing, the board granted the variance by a four to one vote.9
The plaintiffs appealed frоm the board’s decision to the trial court, claiming, inter alia, that the defendant failed to demonstrate that the regulations had caused a practical confiscation of the property and that one board member should have disqualified himself from the proceedings due to a purported conflict of interest.10 The trial court concluded that substantial evidence supported the board’s conclusion that the property had been practically confiscated, noting that the property had been vacant and unused for nearly thirty years and cannot practically be used in any of the ways contemplated within the development district. The court nonetheless sustained the plaintiffs’ appeal in part on the alternative ground that one board member should have disqualified himself from considering the defendant’s variance application because of his personal relationship
The defendant appealed from the judgment of the trial court to the Appellate Court, arguing that the trial court improperly concluded that the board member should have disqualified himself from the proceedings and, therefоre, improperly remanded the case for further proceedings.11 Caruso v. Zoning Board of Appeals, supra, 150 Conn. App. 833. The plaintiffs cross appealed, asserting that the trial court improperly determined that substantial evidence supported the defendant’s practical confiscation claim, but properly sustained their appeal on the disqualification ground. Id. The Appellate Court agreed with the plaintiffs in part, holding that the defendant failed to prove practical confiscation before the board. Id., 838, 841. The court stated that substantial evidence did not support the board’s conclusion that the property had been deprived of all reasonable uses because the defendant 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. Id., 835, 839–40. The Appellate Court therefore reversed the judgment of the trial court, and remanded the case to that court with direction to sustain the plaintiffs’ appeal. Id., 841. This certified appeal followed. See footnote 2 of this opinion.
On appeal to this court, the defendant contends that the Appellate Court improperly concluded that substantial evidence did not support the defendant’s practical confiscation claim. The defеndant further claims that the Appellate Court improperly required evidence of the property’s diminished value in proving practical confiscation and, in doing so, created a categorical rule that all practical confiscation claims must contain such evidence, contrary to our precedent. The plaintiffs dispute this reading of the Appellate Court’s decision and maintain that substantial evidence did not support the board’s conclusion that the property had been practically confiscated.12 We agree with the plaintiffs.
As a preliminary matter, we set forth our standard of review. A zoning board of appeals ‘‘is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or
‘‘A variаnce constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town.’’ Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). 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.’’ (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 24, 966 A.2d 722 (2009); see also
Unusual 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. This contention ‘‘sits at the intersection of two related, yet distinct, areas of law: land use regulation and constitutional takings jurisprudence.’’ Verrillo v. Zoning Board of Appeals, 155 Conn. App. 657, 699, 111 A.3d 473 (2015). In Connecticut, a taking occurs ‘‘when a landowner is prevented from making any beneficial use of its land—as if the government had, in fact, confiscated it.’’ Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 256, 662 A.2d 1179 (1995). Accordingly, a zoning regulation ‘‘permanently restricting the enjoyment of property to such an extent that
Thus, in accordance with our takings jurisprudence, we have continually held in variance cases that ‘‘[w]hen a reasonable use of the property exists, there can be no practical confiscation.’’ Id., 701. Additionally, ‘‘[e]vidence that a property is not ‘ ‘‘practically worthless’’ ’ but ‘still possesses value’ precludes a finding of practical confiscation.’’ Id., 702. For example, in Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 297, 947 A.2d 944 (2008), we concluded that a lot in a subdivision had not been practically confiscated because a reasonable use of the property remained; the property could continue to be used, as it had for many years, to supply water to the subdivision through a well on the property. Likewise, in Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369–73, 537 A.2d 1030 (1988), this court held that a lot had not been practically confiscated because it retained some value as a side yard to the property owner as well as her neighbors. Thus, Connecticut courts similarly rejected practical confiscation claims when zoning regulations prevented a property owner from building on the property in a particular way, so long as the property retained some reasonable use under the regulation. See, e.g., Moon v. Zoning Board of Appeals, supra, 291 Conn. 25–26 (additional living space on second floor); Kelly v. Zoning Board of Appeals, 21 Conn. App. 594, 595, 575 A.2d 249 (1990) (multifamily dwellings in single-family zone); Green Falls Associates, LLC v. Zoning Board of Appeals, supra, 138 Conn. App. 495–96 (inability to build three bedroom house did not deprive propеrty of ‘‘all economically beneficial or productive use of the land’’).
Conversely, when the property retains no reasonable use or value under the zoning regulation, a practical confiscation occurs. For instance, in Pike v. Zoning Board of Appeals, 31 Conn. App. 270, 275–76, 624 A.2d 909 (1993), the Appellate Court held that a lot had been practically confiscated because the property could only reasonably be used for two of the fourteen permitted uses in the zone because of soil problems, and a variance was required in order to use the property in those ways. The Appellate Court noted that there were ‘‘no reasonable alternative uses’’ for the prоperty and that the value of the lot would ‘‘be greatly decreased, if not totally destroyed’’ without a variance. Id., 276. Similarly, in Culinary Institute of America, Inc. v. Board of Zoning Appeals, 143 Conn. 257, 260–61, 121 A.2d 637 (1956), and Libby v. Board of Zoning Appeals, supra, 143 Conn. 52–53, this court held that properties containing homes with a large number of rooms had been practically confiscated because the prohibitive cost of maintenance meant that they could no longer reasonably be used, sold, or marketed as single-family residences, despite the owners’ best efforts. Thus, ‘‘to compel such a use would be confiscatory.’’ Culinary Institute of America, Inc. v. Board of Zoning Appeals, supra, 259; see also Nielsen v. Zoning Board of Appeals, 152 Conn. 120, 124–25, 203 A.2d 606 (1964) (factory building in industrial zone practically confiscated because interior design of building no longer suited for industrial purposes); Lessner v. Zoning Board of Appeals, 151 Conn. 165, 168–70, 195 A.2d 437 (1963) (variance properly granted to permit construction of one story house on vacant lot because property ‘‘cannot be used for any permitted purpose without a variance’’).
In the present case, like in Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 297, and Grillo v. Zoning Board of Appeals, supra, 206 Conn. 369–73, the defendant 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. See Garlasco v. Zoning Board of Appeals, supra, 101 Conn. App. 462 (property owner failed to meet his ‘‘burden to present evidence to the board regarding the issues of reasonable use and the valuation of the property’’). The defendant рresented no evidence of the property’s unfitness for any permitted use in the development district, the property’s value since 2003, or any efforts to market, sell, or develop the property since 2003. The defendant’s evidence of practical confiscation consisted of an appraiser’s report and a letter from a local attorney. Although these documents describe the history of the development district, the previous owner’s attempts to market the property, and the market conditions for several of the permitted uses, this evidence is insufficient to establish that the property has no reasonable use or value undеr the regulations.
The defendant’s evidence, first, does not indicate that the property is unfit for any permitted use because of a ‘‘peculiar characteristic’’ of the property. Dolan v. Zoning Board of Appeals, 156 Conn. 426, 429, 242 A.2d 713 (1968). On the contrary, the appraiser’s report opines that ‘‘the [property’s] location is relatively good with convenient access to the interstate highway system . . . . In addition, the [property] has no significant physical characteristics that would preclude development. . . . [T]he majority of the parcel is physically suitable for development.’’ The report notes that the property is ‘‘irregularly shaped . . . both open and wooded and evidences a rolling topography although the site predominantly slopes downward . . . .’’ The attorney’s letter provides that the property ‘‘has a different lot configuration and topographic features’’ than the property owned by the state in the development district. Although these physical features are described, the defendant does not explain why they would allow the property to be used as a used car dealership, but not as a conference center hotel, executive office building, research and development site, medical center, college or university, or distribution facility, all of which are permitted in the development district without a variance. See
Further, the defendant’s evidence of the unfavorable market conditions in Meriden for two of the permitted uses—namely, executive offices and research and development—is insufficient to establish that the property has no reasonable use or value. The appraiser’s report provides that ‘‘the market for large corporate headquarter sites in Connecticut is [nonexistent]’’ and that most interest in ‘‘research-design and bio-tech uses’’ has been confined to areas near Yale University. The attorney’s letter provides: ‘‘It is my experience that there is no demand for these [campus like] types of developments. This is evidenced by the existence of multiple undeveloped or underdeveloped sites and office buildings with vacancies along the [Interstate 91 and Interstate 691] corridor. Corporate offices are much smaller now. More and more employees are able to work from home or off-site. Support services are often provided by off-site personnel.’’ Neither document squarely addresses or negates the рroperty’s potential use as a hotel or conference center, medical center, college or university, or distribution facility. See
The defendant also provided no specific evidence of the value of the property, other than its purchase price of more than one million dollars in 2003. The appraiser’s report notes only thаt the property sold for a ‘‘relatively low sale price’’ in 2003 at $23,583 per acre, and that ‘‘[t]his unit rate is clearly below the unit rates that can be expected for commercial/industrial sites in the [Meriden and Wallingford] corridor along [Interstate 91].’’ The report concludes that the property is at a ‘‘competitive disadvantage’’ and that ‘‘price/value is a function of supply and demand. . . . [T]he demand for the [property] is limited to [nonexistent] . . . the use restrictions in the [development district] . . . dramatically reduce the market value of the [property].’’ The attorney’s letter provides that the ‘‘limited uses permitted in the [development district] make the parcеl less competitive and . . . there is essentially no demand for the permitted uses.’’ Neither document, however, opines as to any change in the property’s specific value since the defendant’s more than one million dollar purchase price in 2003.
Lastly, the defendant provided no information on its efforts to market, sell, or develop the property for any permitted use, and merely speculates on the previous owner’s efforts to do so between 1986 and 2003. The appraiser’s report provides that ‘‘[t]he [property] had an extensive marketing period with limited to no interest in the real estate [market] for numerous years.’’ Similarly, the attorney’s lеtter notes that the previous owner ‘‘marketed the . . . undeveloped parcel for [twenty] years but was unable to find a buyer with a plan that complied with the [development district’s] zoning regulations.’’ There is, however, no discussion of the defendant’s efforts to market, sell, or develop the property since 2003. Nor is there any information provided on the previous owner’s attempts to market, sell, or develop the property with any specificity.
On the basis of this record, the board could not reasonably have concluded that the regulations had ‘‘greatly decrease[d] or practically destroy[ed] [the property’s] value for any of the uses to which it could reasonably be put . . . .’’ (Emphasis added.)
We also disagree with the defendant’s hardship argument. Zoning, by definition, restricts land use, and ‘‘variance[s] must be reserved for unusual or exceptional circumstances.’’ Kelly v. Zoning Board of Appeals, supra, 21 Conn. App. 598. ‘‘Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation . . . on the ground of . . . [unusual] hardship.’’ (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 561, 916 A.2d 5 (2007). ‘‘It is not a proper function of a zoning board of appeals to vary the apрlication of zoning regulations merely because the regulations hinder landowners and entrepreneurs from putting their property to a more profitable use.’’ Dolan v. Zoning Board of Appeals, supra, 156 Conn. 430–31. The defendant cannot simply point to the zoning regulation itself in arguing that it suffers from an unusual hardship. See
The defendant also contends that the Appellate Court improperly required evidence of diminution in the property’s value since 2003 in proving its practical confiscation claim and, in doing so, created a categorical rule that all praсtical confiscation cases must contain such evidence, contrary to our precedent. We disagree with this reading of the Appellate Court’s decision. The Appellate Court did not conclude that the defendant failed to prove practical confiscation based solely on the lack of evidence of the property’s value since 2003. See Caruso v. Zoning Board of Appeals, supra, 150 Conn. App. 840. Rather, the Appellate Court also noted that the defendant presented no evidence ‘‘that it was unable to sell the property or unable to develop the property for any of the uses permitted in [the development district] . . . .’’ Id. Additionally, the Appellate Court did not deсlare that all practical confiscation cases must contain evidence of the property’s diminution in value. See id., 838–40. The Appellate Court simply held that without such evidence in this case, with no evidence that the property could not reasonably be used as permitted in the development district, there was ‘‘no reliable evidence on which to form the conclusion that application of the . . . regulations had destroyed the value of the property.’’ Id., 838.
Moreover, previous cases finding practical confiscation in the absence of evidence of the property’s diminished value are distinguishable. In those cases, the property owners demonstrated that the property could not reasonably be used in any of the ways permitted under the regulation, rendering its lack of value obvious. See, e.g., Libby v. Board of Zoning Appeals, supra, 143 Conn. 48–49 (large single-family home could no longer be sold or marketed as single-family home; only evidence of value was original purchase price of $23,000); Pike v. Zoning Board of Appeals, supra, 31 Conn. App. 271 (soil problems prevented any use of lot without variance; only evidence of value was original purchase price of $1000). Without such evidence, as in the present case, this court has declined to find practical confiscation without a showing that the regulation ‘‘greatly decrease[d] or practically destroy[ed]’’ the property’s monetary value. Dolan v. Zoning Board of Appeals, supra, 156 Conn. 431; see id. (restaurant could still reasonably be operated on property without variance allowing liquor license); id. (‘‘There is nothing in the record . . . to indicate the terms and conditions [the owner] was proposing for the sale or rental of his property and what diminishing effect [the] regulation has had on the value of the property. Without this information the board could not have found
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.