Agenda - Planning Commission - 04/07/2016

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Zoning Bulletin March 25, 2016 I Volume 10 I Issue 6 Regulations governing the Development District caused a practical confiscation so as to warrant a grant of a use variance to Mark. In so holding, the court explained that "[a] variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town." The ZBA, said the court, was "statutorily authorized to grant a variance if two requirements [were] met: (1) the variance [would] not `affect substantially the comprehensive zoning plan'; and (2) the application of the regulation cause[d] `unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.' " (See Conn. Gen. Stat. § 8-6(a)(3).) Moreover, said the court, any hardship shown "must be different in kind from that generally affecting properties in the same zoning district," such as where the zoning regulation has deprived the property of all rea- sonable use and value, "thereby practically confiscating the property." Conversely, "[w]hen a reasonable use of the property exists, there can be no practical confiscation," said the court. Thus, "[e]vidence that a property is not `practically worthless' but `still possesses value' precludes a finding of practical confiscation," said the court. Here, the court found that Mark failed to prove practical confisca- tion because it did not demonstrate that the property had been deprived of all reasonable use and value under the regulations. The court found that Mark had not presented evidence "of the property's unfitness for any permitted use in the [D]evelopment [D]istrict, the property's value since 2003, or any efforts to market, sell, or develop the property since 2003." In fact, the appraiser's report that Mark had presented as evidence opined that the property was in a "relatively good" location and had "no significant physical characteristics that would preclude development." While Mark may have presented evi- dence of unfavorable market conditions in the City for executive of- fice and research and development uses, Mark failed to address the property's potential use as a hotel or conference center, medical center, college or university, or distribution facility —all peiinitted uses in the Development. District. Moreover, found the court, Mark had provided no information on its efforts to market, sell, or develop the property for any permitted use, but instead only pointed to the previous owner's efforts in that regard. Having found Mark had failed to prove practical confiscation because Mark had not demonstrated "that the property had been deprived of all reasonable use and value under the regulations," the court concluded noting that "[d]isadvantage in property value or income, or both, to [Mark], resulting from application of the [Z]on- ing [R]egulations [did] not. . .[amount to unusual hardship]." The court sustained the judgment of the Appellate Court, finding no variance should have been granted to Mark. ©2016 Thomson Reuters 7