Agenda - Planning Commission - 09/04/2014

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Zoning Bulletin August 10, 2014 I Volume 8 I Issue 15 Development's argument, and approved for those reasons its variance applica- tion to use the Property for a used car dealership. James M. Anderson and Dominick J. Caruso, the City planner and director of the department of development and enforcement, and the City (collectively hereafter, the "City") appealed to the superior court the Board's granting of Mark Development's variance application. They maintained that Mark Development had failed to demonstrate that application of the zoning regula- tions caused a practical confiscation of the property. More specifically, the City argued that the Board lacked substantial evidence on which to find that the RDD zone classification deprived Mark Development of all economically ben- eficial uses of the land, since there was no evidence that Mark Development at- tempted to sell the property or that Mark Development attempted to develop or lease the property for any of the uses permitted in the RDD zone. Mark Development argued that the Board had made a reasonable conclusion. It noted that there had been no development on the Property since the creation of the RDD. It argued that the extended marketing period and relatively low sale price per acre (that Mark Development paid for the Property), for the most part, could be attributed to the "restrictive zoning that controls the parcel." DECISION: Judgment of superior court reversed, and matter re- manded with direction. The Appellate Court of Connecticut held that substantial evidence did not support a determination that application of the zoning regulations caused a practical confiscation of property so as to warrant a grant of a use variance. In so holding, the court explained that "[d]isadvantage 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 . . . unnecessary hardship . . . . " However, noted the court, zon- ing regulations will have a confiscatory or arbitrary effect when they "greatly decrease or practically destroy [a property's] 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 . . . . " In other words, zoning regula- tions may have a confiscatory effect where "the application of the regulations renders the property in question practically worthless." In such a case, that loss of value alone may amount to a hardship warranting a variance, said the court. The court further noted that "[i]n Connecticut, [a] practical confiscation oc- curs when a landowner is prevented from making any beneficial use of its land —as if the government had, in fact, confiscated it. A practical confiscation does not occur when the landowner cannot take advantage of a myriad of uses acceptable under the applicable regulations because of choices the landowner itself has made that limit its land use options . . . . Further, [p]roof of financial hardship having a confiscatory or arbitrary effect requires more than testimony 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." Here, the court found that there was no specific evidence of a decrease in the value of the Property by virtue of its being in the RDD zone. In fact, the court found that Mark Development had paid more than $1 million for the Property after it had been zoned RDD. Moreover, the court found that Mark Develop- ©2014 Thomson Reuters 11