Caruso v. Zoning Bd. of Appeals of Meriden

• Decision Date: 02 February 2016
• Docket Number: No. 19380.,19380.
• Parties: Dominick CARUSO et al. v. ZONING BOARD OF APPEALS OF the CITY OF MERIDEN et al.
• Court: Connecticut Supreme Court

320 Conn. 315

130 A.3d 241

Dominick CARUSO et al.

v.ZONING BOARD OF APPEALS OF the CITY OF MERIDEN et al.

No. 19380.

Supreme Court of Connecticut.

Argued Oct. 5, 2015.

Decided Feb. 2, 2016.

Daniel J. Krisch, Hartford, with whom was Dennis A. Ceneviva, Meriden, for the appellant (defendant Mark Development, LLC).

Joseph P. Williams, New Haven, with whom was Beth Bryan Critton, Hartford, for the appellees (plaintiffs).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

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 variance 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 confiscated. 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), Dominick 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 Appellate 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 judgment of the Appellate Court.

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., at 833, 93 A.3d 617. 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 development district, created in 1986, is to "further the economic base of the city by providing for development of a regional scale along the interstate highway system, in an attractive, efficient, [and] environmentally sensitive campus setting." Id., § 213–26.2(A). Two other properties 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 application.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 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 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 further proceedings.¹¹ Caruso v. Zoning Board of Appeals, supra, 150 Conn.App. at 833, 93 A.3d 617. 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., at 838, 841, 93 A.3d 617. 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., at 835, 839–40, 93 A.3d 617. 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., at 841, 93 A.3d 617. 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 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 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 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 quotation marks omitted.) Municipal Funding, LLC v. Zoning 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 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 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 exceptional circumstances." (Internal quotation marks omitted.) 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 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 it cannot be utilized for any reasonable purpose goes beyond valid regulation and constitutes a taking without due process." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, at 710, 111 A.3d 473. The same analysis is used in the variance context because, when the regulation "practically destroys or greatly...