Land use attorney tells Zoning Board of Appeals that variances face a high legal bar; recommends regulatory fixes

Dori Reiser, a land use attorney at Cahan Kurenski & Capicella, told members of the Zoning Board of Appeals at a May 11 training that Connecticut courts set a high bar for granting variances and that boards should document independent, fact‑based findings when they act.

"You are acting with broad discretion and authority to review on a de novo basis," Reiser said, advising members not to treat staff presentations as dispositive and to ‘‘take evidence and apply the law’’ before reaching their own decision. She said the ZBA’s statutory duties include hearing appeals from the zoning enforcement officer (ZEO), granting variances and granting special exceptions (cited in her materials as Connecticut General Statutes section 8-6).

Reiser summarized the two-part test for variances: the board must find that granting relief will not substantially affect the comprehensive plan and that the property suffers an "unusual hardship." She told members the first element is often straightforward, but the hardship standard — which requires showing the regulation’s application would effectively destroy all reasonable economic use of the property — is “nearly impossible” to meet in many cases.

To illustrate, Reiser reviewed recent case law. In one cited decision a buyer’s offer ($8,000) was used as evidence that the land retained value; in another (Pike v. Hampton) lack of septic rendered a parcel nearly unusable and supported relief. Reiser also described a February 2025 superior court decision that overturned a local denial of a front-yard setback variance, underscoring variability in judicial outcomes depending on facts and the judge.

Board members asked how to evaluate "reasonable use." Reiser said courts examine both financial value and the availability of reasonable uses and noted there is no bright-line rule; she urged members to consider the full record when assessing whether a denial would amount to a practical confiscation of the property. "If there's no economic value, then... it's basically a taking," she said.

Reiser advised that repeated or clustered variance requests in a neighborhood often indicate a regulatory mismatch. "If you see a lot of similarly situated properties coming in asking for the same thing, it's time to have a deeper conversation" with planning staff and the planning and zoning commission about amending regulations rather than resolving each case individually.

She also reviewed an exception she relied on as a practitioner (identified in the materials as the Adelson/Adolphson exception): an owner may obtain relief by showing a legally protected nonconforming use is being reduced, without proving traditional hardship. Reiser warned that creating new nonconformities can nullify that route and recommended conditioning approvals to specific site plans.

On appeals, Reiser said not every ZEO communication is immediately appealable; boards should look for a final decision or order (for example, a cease-and-desist). She cautioned that a failure to appeal an appealable determination can waive administrative remedies.

Nate (Torrington zoning staff) noted local provisions that already provide modest relief for uncovered decks and ramps, and he said the city handles many location-approval functions administratively; Reiser confirmed that location-approval statutes were pared back and that such approvals now require more discretionary judgment from boards.

Votes at a glance: the board voted to table approval of minutes until the next meeting and later voted to adjourn. Both motions passed by voice vote; no roll-call tallies were recorded in the transcript.

The training closed with Reiser offering follow-up help through town staff. The session included multiple exchanges on regulatory options, reasonable-accommodation rules under federal disability law and practical drafting tips (for example, tying variances to specific site plans to prevent unilateral changes).