Caruso v. Zoning Board of Appeals ( 2016 )

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DOMINICK CARUSO ET AL. v. ZONING BOARD
OF APPEALS OF THE CITY OF
MERIDEN ET AL.
(SC 19380)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued October 5, 2015—officially released February 2, 2016
Daniel J. Krisch, with whom was Dennis A. Cene-
viva, for the appellant (defendant Mark Develop-
ment, LLC).
Joseph P. Williams, with whom was Beth Bryan Crit-
ton, for the appellees (plaintiffs).
Opinion
ROBINSON, J. This certified appeal arises from the
decision of the named defendant, the Zoning Board of
Appeals of the City of Meriden (board), to grant a vari-
ance to the defendant Mark Development, LLC,1 to use
a certain parcel of real property, located in a regional
development zone, as a used car dealership, on the
ground that the property has been practically confis-
cated. The defendant appeals,2 upon our grant of its
petition for certification, from the judgment of the
Appellate Court reversing the judgment of the trial court
and remanding the case with direction to sustain the
appeal of the plaintiffs, the city of Meriden (city), Domi-
nick Caruso,3 and James Anderson,4 from the board’s
decision granting the variance. Caruso v. Zoning Board
of Appeals, 150 Conn. App. 831, 832–33, 93 A.3d 617
(2014). On appeal, the defendant claims that the Appel-
late Court improperly concluded that: (1) substantial
evidence did not support the board’s conclusion that
the property had been practically confiscated; and (2)
evidence of the property’s diminution in value was
required. We disagree and, accordingly, affirm the judg-
ment of the Appellate Court.
The record reveals the following facts and procedural
history. In 2003, the defendant purchased an approxi-
mately 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’ ’’ (develop-
ment district). Id., 833. The Meriden Zoning Regulations
(regulations),6 provide that, six uses are permitted ‘‘by
right’’ on such properties. Meriden Zoning Regs., § 213-
26.2 (C) (1) (a) (1) through (6) (2008). These uses
include: 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.7 Id. The regulations further provide
that ‘‘[n]o building or premises may be used, in whole
or in part, for any purpose except those listed . . . .’’
Id., § 213-26.2 (C) (1). The stated purpose of the devel-
opment district, created in 1986, is to ‘‘further the eco-
nomic base of the city by providing for development
of a regional scale along the interstate highway system,
in an attractive, efficient, [and] environmentally sensi-
tive campus setting.’’ Id., § 213-26.2 (A). Two other prop-
erties in Meriden are zoned as part of the development
district, one of which contains the Midstate Medical
Center, the other of which is owned by the state.
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 applica-
tion.8 Immediately following the hearing, the board
granted the variance by a four to one vote.9
The plaintiffs appealed from 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 sup-
ported 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 contem-
plated within the development district. The court none-
theless 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 relation-
ship with the defendant’s attorney. Accordingly, the
trial court rendered judgment sustaining the plaintiffs’
appeal in part and remanded the case to the board for
further proceedings.
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, therefore, improperly remanded the case for fur-
ther 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 practi-
cal 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 conclu-
sion that the property had been deprived of all reason-
able 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 substan-
tial evidence did not support the defendant’s practical
confiscation claim. The defendant 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 dis-
pute 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 practi-
cally 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 unrea-
sonable, arbitrary or illegal.’’ (Internal quotation marks
omitted.) Green Falls Associates, LLC v. Zoning Board
of Appeals, 138 Conn. App. 481, 492, 53 A.3d 273 (2012).
A reviewing court is ‘‘bound by the substantial evidence
rule, according to which, [c]onclusions reached by [the
board] must be upheld by the trial court if they are
reasonably supported by the record. . . . The question
is not whether the trial court would have reached the
same conclusion, but whether the record before the
[board] supports the decision reached. . . . The
agency’s decision must be sustained if an examination
of the record discloses evidence that supports any one
of the reasons given.’’ (Citations omitted; internal quota-
tion marks omitted.) Municipal Funding, LLC v. Zon-
ing Board of Appeals, 270 Conn. 447, 453, 853 A.2d
511 (2004).
‘‘A variance 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 hard-
ship 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 General Statutes
§ 8-6 (a) (3).13 ‘‘The hardship must be different in kind
from that generally affecting properties in the same
zoning district. . . . It is well settled that the granting
of a variance must be reserved for unusual or excep-
tional circumstances.’’ (Internal quotation marks omit-
ted.) Garlasco v. Zoning Board of Appeals, 101 Conn.
App. 451, 456, 922 A.2d 227, cert. denied, 283 Conn. 908,
927 A.2d 917 (2007).
Unusual hardship may be shown by demonstrating
that the zoning regulation has deprived the property of
all reasonable use and value, thereby practically confis-
cating the property. This contention ‘‘sits at the intersec-
tion 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 it cannot be utilized for any reasonable purpose
goes beyond valid regulation and constitutes a taking
without due process.’’ (Internal quotation marks omit-
ted.) Verrillo v. Zoning Board of Appeals, supra, 710.
The same analysis is used in the variance context
because, when the regulation ‘‘practically destroys or
greatly decreases [the property’s] value for any permit-
ted use to which it can reasonably be put’’; Libby v.
Board of Zoning Appeals, 143 Conn. 46, 51, 118 A.2d
894 (1955); the loss of value alone may rise to the level
of a hardship. Cf. Ward v. Zoning Board of Appeals,
153 Conn. 141, 144–45, 215 A.2d 104 (1965) (‘‘[e]vidence
of financial considerations, short of a drastic deprecia-
tion in the value of the property, will not suffice [to
show hardship]’’). ‘‘This test is used in the extreme
situation where the application of a regulation renders
property practically worthless . . . .’’ Id. In this
‘‘exceptional set of circumstances’’; Libby v. Board of
Zoning Appeals, supra, 52; the zoning regulation ‘‘oper-
ate[s] in a confiscatory manner . . . justifying the exer-
cise of the variance power.’’ Verrillo v. Zoning Board
of Appeals, supra, 699.
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]vi-
dence that a property is not ‘ ‘‘practically worthless’’ ’
but ‘still possesses value’ precludes a finding of practi-
cal 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 subdivi-
sion 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 confis-
cated because it retained some value as a side yard to
the property owner as well as her neighbors. Thus,
Connecticut courts similarly rejected practical confis-
cation claims when zoning regulations prevented a
property owner from building on the property in a par-
ticular way, so long as the property retained some rea-
sonable use under the regulation. See, e.g., Moon v.
Zoning Board of Appeals, supra, 291 Conn. 25–26 (addi-
tional 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 property 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 vari-
ance was required in order to use the property in those
ways. The Appellate Court noted that there were ‘‘no
reasonable alternative uses’’ for the property 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 Zon-
ing 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 mainte-
nance 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 pur-
poses); 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 regu-
lations. 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 presented 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 confis-
cation 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 prop-
erty has no reasonable use or value under the regu-
lations.
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 develop-
ment. . . . [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 differ-
ent 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 vari-
ance. See Meriden Zoning Regs., § 213-26.2 (C) (1) (a)
(1) through (6) (2008). The defendant also makes no
distinction between its property and the other zoned
properties in the development district, one of which
has been successfully marketed and developed as a
medical center.
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 prop-
erty 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 property’s potential
use as a hotel or conference center, medical center,
college or university, or distribution facility. See Meri-
den Zoning Regs., § 213-26.2 (C) (1) (a) (1) through (6)
(2008). Thus, even if we accept the proposition that
the property cannot reasonably be used for executive
offices or research and development, the defendant still
falls short of establishing that the property has lost all
reasonable use and value under the regulations.
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 that 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 [Meri-
den and Wallingford] corridor along [Interstate 91].’’
The report concludes that the property is at a ‘‘competi-
tive 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] . . . dramati-
cally reduce the market value of the [property].’’ The
attorney’s letter provides that the ‘‘limited uses permit-
ted in the [development district] make the parcel 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 pur-
chase 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 letter notes that the previous owner ‘‘mar-
keted 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 rea-
sonably 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.) Dolan v.
Zoning Board of Appeals, supra, 156 Conn. 431. Giving
due deference to the judicial standard of review of
board decisions, we cannot say that the record supports
a conclusion that the defendant’s property has been
practically confiscated. See Green Falls Associates,
LLC v. Zoning Board of Appeals, supra, 138 Conn. App.
492; see also Sydoriak v. Zoning Board of Appeals, 90
Conn. App. 649, 658, 879 A.2d 494 (2005) (‘‘a court
cannot take the view in every case that the discretion
exercised by the local zoning authority must not be
disturbed, for if it did the right of appeal would be
empty’’ [internal quotation marks omitted]). The defen-
dant’s property actually has more potential uses
allowed than the properties in Rural Water Co. and
Grillo, which could only be used to supply water and
as a side yard, respectively. See Rural Water Co. v.
Zoning Board of Appeals, supra, 287 Conn. 296–97;
Grillo v. Zoning Board of Appeals, supra, 206 Conn.
372–73. Additionally, unlike the soil problems in Pike
and the large single-family homes in Culinary Institute
of America, Inc., and Libby, nothing unique to the
defendant’s property prevents it from having any rea-
sonable use or value under the regulations. See Culi-
nary Institute of America, Inc. v. Board of Zoning
Appeals, supra, 143 Conn. 262; Libby v. Board of Zoning
Appeals, supra, 143 Conn. 52–53; Pike v. Zoning Board
of Appeals, supra, 31 Conn. App. 276.
We also disagree with the defendant’s hardship argu-
ment. Zoning, by definition, restricts land use, and ‘‘vari-
ance[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 application
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 defen-
dant cannot simply point to the zoning regulation itself
in arguing that it suffers from an unusual hardship. See
General Statutes § 8-6 (a) (3). Any grievances that the
defendant has with the zoning plan should be directed
toward the zoning commission that creates the plan;
not the board when seeking a variance.14 See Ward v.
Zoning Board of Appeals, supra, 153 Conn. 145 (‘‘[a]rgu-
ments concerning the general unsuitability of a neigh-
borhood to the zoning classification in which it has
been placed are properly addressed to the promulgators
of the ordinance and not to those who have been
empowered to grant variances’’); Verrillo v. Zoning
Board of Appeals, supra, 155 Conn. App. 723–25
(describing ‘‘fundamental distinction between the legis-
lative function of the zoning commission . . . and the
administrative and quasi-judicial functions of the zoning
board of appeals,’’ in noting that ‘‘[i]f the requirements
of the [zone] are particularly oppressive to the many
. . . properties therein, the proper forum for redress
is the town zoning commission’’ [internal quotation
marks omitted]).
The defendant also contends that the Appellate Court
improperly required evidence of diminution in the prop-
erty’s value since 2003 in proving its practical confisca-
tion claim and, in doing so, created a categorical rule
that all practical 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 develop-
ment district] . . . .’’ Id. Additionally, the Appellate
Court did not declare that all practical confiscation
cases must contain evidence of the property’s diminu-
tion 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 confisca-
tion in the absence of evidence of the property’s dimin-
ished 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 evi-
dence 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 confisca-
tion 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 prop-
erty and what diminishing effect [the] regulation has
had on the value of the property. Without this informa-
tion the board could not have found that the regulation’s
effect on the property was confiscatory or arbitrary.’’);
see also Garlasco v. Zoning Board of Appeals, supra,
101 Conn. App. 461 (lot retained value as side yard and
absence of evidence of property’s value, other than
neighbor’s offer to purchase lot for $60,000, was ‘‘fatal’’
to practical confiscation claim). We conclude, there-
fore, that the Appellate Court properly determined that,
without evidence that the property could not reasonably
be used as contemplated in the development district,
the defendant’s lack of evidence of the property’s dimi-
nution in value required the defeat of its practical confis-
cation claim. Accordingly, the Appellate Court properly
reversed the judgment of the trial court and remanded
the case with direction to sustain the plaintiffs’ appeal.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The board was also named as a defendant in the plaintiffs’ complaint,
but is not a party to the present appeal. For the sake of simplicity, we refer
to Mark Development, LLC, as the defendant.
2
We granted the defendant’s petition for certification to appeal limited
to the following question: ‘‘Did the Appellate Court properly determine that
the [board] erroneously granted a variance to [the defendant]?’’ Caruso v.
Zoning Board of Appeals, 314 Conn. 912, 100 A.3d 849 (2014).
3
Caruso is the city’s director of development and enforcement and also
serves as the city’s planner.
4
Anderson is the city’s zoning enforcement officer and environmental
planner.
5
The defendant’s property also includes approximately six acres in the
neighboring town of Wallingford. Caruso v. Zoning Board of Appeals, supra,
150 Conn. App. 833 n.3. Only the acreage in Meriden is at issue in the present
appeal. Id. Accordingly, we refer to the forty-eight acre parcel in Meriden
as the property throughout this opinion.
6
We note that the regulations were enacted, as an ordinance, by the
Meriden City Council and are presently set forth in chapter 213 of the
Meriden City Code.
7
Heliports, coliseums, arenas, and stadiums are also permitted uses in
the development district, subject to the issuance of a special exception from
the board. Meriden Zoning Regs., § 213-26.2 (C) (1) (b) (1) and (2) (2008).
8
The defendant also submitted information on the impact that the used car
dealership would have on the surrounding neighborhood. The defendant’s
attorney argued in favor of the variance and explained this impact to the
board. The plaintiffs did not submit any evidence, although Anderson and
another zoning official attended the hearing.
9
By letter dated September 3, 2008, Anderson informed the defendant
that the board had granted the variance because the regulations ‘‘drastically
reduce[d] [the property’s] value for any of the uses to which it could reason-
ably be put, and/or the effect of applying the regulations is so severe as to
amount to a practical confiscation.’’ The board’s attorney later represented
that the letter reflected the reasons for the board’s decision.
10
The plaintiffs also argued that the trial court should sustain the appeal
because: (1) the board failed to make the required findings for granting a
variance under § 213-59 (C) of the regulations; (2) the board exceeded its
authority in granting the variance; (3) the variance impairs the comprehen-
sive zoning plan; and (4) the purchaser with knowledge rule bars the defen-
dant’s variance application. The trial court rejected these contentions.
11
The Appellate Court did not address the issue of disqualification because
it determined that the plaintiffs’ contention that the defendant had failed
to prove practical confiscation was dispositive. Caruso v. Zoning Board of
Appeals, supra, 150 Conn. App. 841.
12
The plaintiffs also reassert several arguments that they made to the trial
court and the Appellate Court, including: (1) that the board failed to make
the required findings for granting a variance under § 213-59 (C) of the regula-
tions; see footnote 13 of this opinion; (2) that the variance impairs the
comprehensive zoning plan; (3) that the purchaser with knowledge rule bars
the defendant’s variance application; see, e.g., Kalimian v. Zoning Board
of Appeals, 65 Conn. App. 628, 632–33, 783 A.2d 506 (property owner barred
from obtaining variance because property owner was ‘‘charged with notice’’
of zoning regulations in effect when purchasing property and could not
‘‘now be heard to complain that the zoning regulations are unjust’’), cert.
denied, 258 Conn. 936, 785 A.2d 231 (2001); and (4) that one board member
should have disqualified himself from considering the defendant’s variance
application. See footnotes 10 and 11 of this opinion. We need not address
these arguments because we conclude that substantial evidence does not
support the board’s conclusion that the defendant’s property has been practi-
cally confiscated.
13
The regulations also list four factors that the board must consider in
deciding whether to grant a variance. Meriden Zoning Regs., § 213-59 (C)
(2008). Specifically, the regulations provide that ‘‘there must be a finding
by the [board] that all of the following conditions exist’’ before granting a
variance on the basis of unusual difficulty or unreasonable hardship: (1)
‘‘[t]hat if the owner complied with the provisions of [the zoning] regulations,
he would not be able to make any reasonable use of his property’’; (2)
‘‘[t]hat the difficulties or hardship are peculiar to the property in question,
in contrast with those of other properties in the same district’’; (3) ‘‘[t]hat
the hardship was not the result of the applicant’s own action’’; and (4) ‘‘[t]hat
the hardship is not merely financial or pecuniary.’’ Id. The regulations further
require that the board only grant a variance if it finds that: (1) ‘‘[t]he new
use will not create a traffic or fire hazard’’; (2) ‘‘[t]he new use will not block
or hamper the town pattern of highway circulation’’; and (3) ‘‘[t]he new use
will not tend to depreciate the value of property in the neighborhood or be
otherwise detrimental or aggravating to the neighborhood or its residents
or alter the neighborhood’s essential characteristics.’’ Id., § 213-59 (B).
14
The city’s mayor, Michael S. Rohde, expressed his concern that the
granting of the defendant’s variance would result in a zoning change, stating,
‘‘[w]hat troubles me the most is that this proposal is seeking a variance for
what really amounts to a zoning change. It is within the purview of the
[c]ity [c]ouncil to make those types of decisions . . . [the variance] would
amount to spot zoning, which I vehemently oppose.’’ Anderson also noted
in a memorandum to the board that ‘‘[z]oning districts are established by
the policy board [of the] [c]ity [c]ouncil and therefore [a zoning] appeals
board . . . should not be usurping the policy board’s dictate by granting
unfounded variances. . . . A [v]ariance is not the process to determine the
proper use of a parcel of land.’’ Indeed, as this court has previously stated,
‘‘[a variance] should not be used to accomplish what is in effect a substantial
change in the uses permitted in a [particular zoning district]. That is a matter
for the consideration of the zoning commission. . . . The power to repeal,
modify or amend a zoning ordinance rests in the municipal body which had
the power to adopt the ordinance, and not in the zoning board of appeals.’’
(Citation omitted; internal quotation marks omitted.) Kaeser v. Zoning
Board of Appeals, 218 Conn. 438, 446, 589 A.2d 1229 (1991).