Caruso v. Zoning Board of Appeals ( 2014 )

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DOMINICK CARUSO ET AL. v. ZONING BOARD
OF APPEALS OF THE CITY OF
MERIDEN ET AL.
(AC 35345)
Beach, Bear and Borden, Js.*
Argued March 4—officially released June 10, 2014
(Appeal from Superior Court, judicial district of New
Haven, A. Robinson, J.)
Daniel J. Krisch, with whom was Dennis A. Cene-
viva, for the appellant-cross appellee (defendant Mark
Development, LLC).
Joseph P. Williams, with whom was Beth Bryan Crit-
ton, for the appellees-cross appellants (plaintiffs).
Opinion
BEACH, J. The defendant, Mark Development, LLC,1
appeals from the judgment of the Superior Court sus-
taining in part the zoning appeal of the plaintiffs, Domi-
nick J. Caruso, James M. Anderson, and the city of
Meriden (city), in which the plaintiffs claimed that the
Zoning Board of Appeals of the city of Meriden (board)
improperly granted the defendant’s application for a
use variance. Caruso, Anderson, and the city filed a
cross appeal. On appeal, the defendant claims that the
court improperly concluded that a board member
should have disqualified himself from considering and
voting on the defendant’s application for a zoning vari-
ance and improperly remanded the case to the board
for further proceedings. On cross appeal, the plaintiffs
claim that the court improperly determined that the
board had before it sufficient evidence to support the
conclusion that the zoning regulations had caused a
practical confiscation of the property.2 We agree with
the plaintiffs.
In August, 2008, the defendant applied to the board
for a use variance for an approximately forty-eight acre
parcel located at 850 Murdock Avenue in Meriden (prop-
erty).3 The application stated that the property was
located in an area zoned ‘‘Regional Development Dis-
trict’’ (RDD) and that the defendant wanted to use the
property for ‘‘used car sales,’’ a use not contemplated
by the Meriden Zoning Regulations (regulations), found
in chapter 213 of the Meriden City Code. Accordingly,
it sought a variance relaxing the application of § 213-
26.2 (C) of the regulations.
Section 213-26.2 (C) (1) of the regulations provides
that: ‘‘No building or premises may be used, in whole
or in part, for any purpose except those listed below.’’
Section 213-26.2 (C) (1) (a) of the regulations provides
that the uses permitted ‘‘by right’’ in an RDD district
include conference center hotels, executive offices,
research and development, medical centers, a college
or university accredited by the state, and distribution
facilities. Heliports, coliseums, arenas and stadiums are
permitted in the RDD by special exception permit. Meri-
den City Code, c. 213, § 213-26.2 (C) (1) (b). Automotive
sales and service facilities are not listed as permitted
uses in a RDD zone.
In its application for a variance, the defendant stated:
‘‘Applicant proposes to use property for automotive
sales and services (i.e. ‘Used Car Dealership’) because
application of the zoning regulations (and particularly
the restrictive permitted uses) drastically reduces its
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 practical confiscation.’’ On
September 2, 2008, the board approved the defendant’s
application for a variance. By letter dated September
3, 2008, Anderson, the city’s zoning enforcement officer,
informed the defendant that the board had approved
its application requesting a variance to use the property
for a used car dealership because the ‘‘application of
the zoning regulations (and particularly the restrictive
permitted use) drastically reduces its 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.’’
In October, 2008, the plaintiffs, Anderson, Caruso,
the city planner and director of the department of devel-
opment and enforcement, and the city appealed to the
Superior Court from the board’s granting of the defen-
dant’s application for a variance. The plaintiffs alleged
that in 1986, an RDD zone was created to regulate devel-
opment in an area that encompassed the property. It
further alleged that the defendant purchased the prop-
erty in 2003. The plaintiffs claimed, inter alia, that the
defendant failed to demonstrate that application of the
zoning regulations caused a practical confiscation of
the property and that one board member’s participation
in the application process was improper.
The court determined that ‘‘the facts in this case
created the rare but exceptional circumstance under
which the application of the doctrine of confiscatory
effect is appropriate. . . . The record supports the con-
clusion that the property, which has been vacant and
unused for close to thirty years, cannot be practically
used in any of the ways permitted by the regulations.
. . . Therefore this court concludes that the insuffi-
ciency of support in the record is not a proper basis to
sustain the appeal.’’ (Citations omitted; internal quota-
tion marks omitted.) The court agreed with the plain-
tiffs’ claim that a member of the board should have
been disqualified from considering the defendant’s
application due to his relationship with the defendant’s
counsel. The court reasoned that the board member
should have disqualified himself from participating in
the proceeding, and therefore, it sustained the appeal
and remanded the matter to the board for further pro-
ceedings. This appeal and cross appeal followed.
The issue raised by the plaintiffs on cross appeal is
dispositive. The plaintiffs claim that the court’s finding
of practical confiscation was not supported by substan-
tial evidence. We agree. We need not consider any of
the other issues raised by the parties, and we direct
judgment to be rendered sustaining the plaintiffs’
appeal.
‘‘In reviewing a decision of a zoning board, 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 credibility of
the witnesses and the determination of issues of fact
are matters solely within the province of the [board].
. . . 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. . . . If a trial court finds that there is substan-
tial evidence to support a zoning board’s findings, it
cannot substitute its judgment for that of the board.
. . . If there is conflicting evidence in support of the
zoning [board’s] stated rationale, the reviewing court
. . . cannot substitute its judgment as to the weight of
the evidence for that of the [board]. . . . 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 quotation
marks omitted.) Municipal Funding, LLC v. Zoning
Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511
(2004).
‘‘Zoning boards of appeal have authority pursuant to
General Statutes § 8-6 to grant variances from local
zoning regulations.4 One who seeks a variance must
show that, because of some unusual characteristic of
his property, a literal enforcement of the zoning regula-
tions would result in unusual hardship to him. . . . The
hardship complained of must arise directly out of the
application of the ordinance to circumstances or condi-
tions beyond the control of the party involved. . . .
‘‘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 in his favor on the ground of . . . unneces-
sary hardship. . . . Financial considerations are rele-
vant only in those exceptional situations where a board
could reasonably find that the application of the regula-
tions to the property greatly decreases or practically
destroys its value for any of the uses to which it could
reasonably be put and where the regulations, as applied,
bear so little relationship to the purposes of zoning that,
as to particular premises regulations have a confisca-
tory or arbitrary effect. . . . Zoning regulations have
such an effect in the extreme situation where the appli-
cation of the regulations renders the property in ques-
tion practically worthless.’’ (Citations omitted;
footnotes altered; internal quotation marks omitted.)
Vine v. Zoning Board of Appeals, 281 Conn. 553, 560–62,
916 A.2d 5 (2007). This analysis may be appropriate
‘‘in the extreme situation where the application of a
regulation renders property practically worthless, and
that loss of value alone amounts to a hardship.’’ (Inter-
nal quotation marks omitted.) Jersey v. Zoning Board
of Appeals, 101 Conn. App. 350, 358–59, 921 A.2d 683
(2007).
‘‘The United States Supreme Court has found a taking
where a regulation denies all economically beneficial
or productive use of land. Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 1015, 112 S. Ct. 2886,
120 L. Ed. 2d 798 (1992). In Connecticut, [a] practical
confiscation occurs when a landowner is prevented
from making any beneficial use of its land—as if the
government had, in fact, confiscated it. A practical con-
fiscation does not occur when the landowner cannot
take advantage of a myriad of uses acceptable under
the applicable regulations because of choices the land-
owner itself has made that limit its land use options.
. . . Further, [p]roof of financial hardship having a con-
fiscatory or arbitrary effect requires more than testi-
mony that property can be sold only for a price
substantially lower than can be obtained if a variance
is granted to permit a use otherwise prohibited by the
zoning regulations.’’ (Citation omitted; internal quota-
tion marks omitted.) Green Falls Associates, LLC v.
Zoning Board of Appeals, 138 Conn. App. 481, 494–95,
53 A.3d 273 (2012).
The plaintiffs claim that the court’s finding that the
board properly determined that there had been a practi-
cal confiscation was not supported by substantial evi-
dence. The plaintiffs argue that because the defendant
submitted only a report by Arthur Estrada and did not
submit any specific evidence as to the current value of
the property, there was no reliable evidence on which
to form the conclusion that application of the zoning
regulations had destroyed the value of the property. The
plaintiffs further argue that the board lacked substantial
evidence on which to find that the RDD zone classifica-
tion deprived the defendant of all economically benefi-
cial uses of the land, because there was no evidence
that the defendant attempted to sell the property or
that the defendant attempted to develop or lease the
property for any of the uses permitted in the RDD zone.
The defendant argues that the board could reasonably
conclude on the basis of the evidence presented that
the application of the RDD zoning regulations to the
defendant’s property resulted in a practical confisca-
tion, or, in other words, it practically destroyed or
greatly decreased the value of its property. It argues
that the board reasonably could have concluded that
there had been no development on the parcel since the
creation of the RDD zone. It further contends that it
submitted Estrada’s report concerning the negative eco-
nomic impact of the RDD zone on the defendant’s prop-
erty. We agree with the plaintiffs.
The only evidence of the value of the property submit-
ted to the board was Estrada’s report. In the report, he
stated that the property ‘‘had an extensive marketing
period with limited to no interest in the real estate for
numerous years. Ultimately, [in 2003] the subject parcel
[was sold to the defendant] for $23,583 per acre. This
unit rate is clearly below the unit rates that can be
expected for commercial/industrial sites in the Meriden-
Wallingford corridor along Interstate 91.’’ Estrada noted
that the property is in a ‘‘relatively good [location] with
convenient access to the interstate highway system.
. . . Given the reasonably good location and physical
characteristics, it is reasonable to conclude that the
extended marketing period and relatively low sale price
per acre, for the most part, can be attributed to the
restrictive zoning that controls the parcel.’’ Estrada
noted that it has been generally acknowledged for years
that the market for corporate headquarters in Connecti-
cut is nonexistent. He opined that although there has
been some interest in Connecticut in research and bio-
technology uses, it is likely that the vast majority of
such development would be concentrated around Yale’s
West Campus in Orange. Estrada then noted that three
other parcels, located in surrounding towns with less
restrictive zoning, have attracted market interest and
concluded, therefore, that the property is at a ‘‘competi-
tive disadvantage’’ and that the ‘‘existing RDD zone
significantly limits the uses/users for the [property].’’
Estrada concluded that ‘‘price/value is a function of
supply and demand. As presently zoned, the demand
for the [property] is limited to non-existent. Conse-
quently, it is my opinion that the use restrictions in
the RDD zoning classification dramatically reduce the
market value of the [property].’’
Even if we accept the proposition that a different
zoning classification might yield a higher market value,
there is not sufficient evidence in the record to support
the board’s conclusion of confiscation. Estrada stated
in his report that the defendant paid more than
$1,000,000 for the property in 2003, but there was no
specific evidence as to subsequent decrease in value
of the property by virtue of its being in the RDD zone.
Without this information, the board could not properly
have determined that the effect of the zoning regulation
was confiscatory. See Dolan v. Zoning Board of
Appeals, 156 Conn. 426, 431, 242 A.2d 713 (1968) (‘‘There
is nothing in the record . . . to indicate . . . what
diminishing effect this regulation has had on the value
of the property. Without this information 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, 101 Conn. App.
451, 461, 922 A.2d 227 (absence of evidence before
board of value of property fatal to applicant’s claim that
value of property was greatly decreased or destroyed),
cert. denied, 283 Conn. 908, 927 A.2d 917 (2007); Santos
v. Zoning Board of Appeals, 100 Conn. App. 644, 652,
918 A.2d 303 (no proof of financial hardship having
confiscatory effect where record silent as to extent of
financial impact on landowner), cert. denied, 282 Conn.
930, 926 A.2d 669 (2007).
In fact, the defendant purchased the property for
more than $1,000,000 after the property had been zoned
RDD. The defendant offered no evidence that it was
unable to sell the property or unable to develop the
property for any of the uses permitted in an RDD zone;
rather, the only evidence was that the defendant applied
for a zoning change in 2004 to allow an auto auction
facility to be built on the property, but withdrew the
application, and applied in 2008 for a variance to build
a used car dealership.5
Furthermore, Estrada’s conclusion that the property
was at a ‘‘competitive disadvantage’’ when compared
with other properties in the area is insufficient to dem-
onstrate practical confiscation. ‘‘[E]vidence of financial
disappointment alone is an insufficient basis for varying
the application of this type of regulation. . . . 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.’’
(Citations omitted.) Dolan v. Zoning Board of Appeals,
supra, 156 Conn. 430–31 ‘‘[C]onsiderations of financial
disadvantage—or, rather, the denial of a financial
advantage—do not constitute hardship, unless the zon-
ing restriction greatly decreases or practically destroys
[the property’s] value for any of the uses to which it
could reasonably be put . . . .’’ (Internal quotation
marks omitted.) Rural Water Co. v. Zoning Board of
Appeals, 287 Conn. 282, 295, 947 A.2d 944 (2008); see
also Jaser v. Zoning Board of Appeals, 43 Conn. App.
545, 548, 684 A.2d 735 (1996) (‘‘Disappointment in the
use of property does not constitute exceptional diffi-
culty or unusual hardship . . . . It is well established
that the power to grant a variance should be sparingly
exercised.’’ [Citation omitted; internal quotation
marks omitted.]).
For the foregoing reasons, we conclude that the court
erred in determining that there is substantial evidence in
the record to support the board’s conclusion of practical
confiscation. Because there was insufficient evidence in
the record to support the board’s conclusion of practical
confiscation, the board’s decision granting the variance
cannot be sustained. Because the court’s judgment with
respect to the board’s decision is reversed on this basis,
we need not address the defendant’s claim on appeal
that the court improperly determined that a board mem-
ber should have disqualified himself; accordingly, the
court’s remand order is not appropriate.
The judgment is reversed and the case is remanded
with direction to sustain the plaintiffs’ appeal.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date or oral argument.
1
The Meriden Zoning Board of Appeals was also named as a defendant
in the plaintiffs’ complaint. The Meriden Zoning Board of Appeals did not
file a brief in this appeal and, therefore, we will refer only to Mark Develop-
ment, LLC, as the defendant.
2
The plaintiffs raise additional arguments that we need not address
because we agree with their claim that there was not sufficient evidence
in the record to support the board’s conclusion of a practical confiscation.
3
The property also apparently includes approximately six acres in the
neighboring town of Wallingford. Only the acreage in Meriden is the subject
of this appeal. The term ‘‘property’’ as used in this opinion will refer to the
acreage in Meriden only.
4
‘‘[T]he authority of a zoning board of appeals to grant a variance under
. . . § 8-6 (3) requires the fulfillment of two conditions: (1) the variance
must be shown not to affect substantially the comprehensive zoning plan,
and (2) adherence to the strict letter of the zoning ordinance must be shown
to cause unusual hardship unnecessary to the carrying out of the general
purpose of the zoning plan.’’ (Internal quotation marks omitted.) Grillo v.
Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988).
5
We note, however, that we need not reach the ‘‘purchaser with knowl-
edge’’ ground urged by the plaintiffs.