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Lasa Extract, LLC v. Zoning Board of Appeals
LASA EXTRACT, LLC, ET AL. v. ZONING
BOARD OF APPEALS OF THE
TOWN OF SUFFIELD
(SC 21226)
Mullins, C. J., and McDonald, D’Auria, Ecker,
Alexander, Dannehy and Bright, Js.*
Syllabus
The defendant, the Zoning Board of Appeals of the Town of Suffield, appealed, on the granting of certification, from the judgment of the trial court, which had reversed the board’s decision to uphold a town zoning enforcement officer’s determination that the use of the plaintiffs’ property for the cultivation and processing of cannabis was not within the scope of the property’s existing, legal nonconforming use. The property historically had been used to grow and process tobacco, and, because that use predated the enactment of the town’s zoning regulations, such use was permitted as an existing nonconforming use. In 2019, the General Assembly legalized and established a licensing regimen for the cultivation and processing of hemp. The zoning enforcement officer subsequently confirmed that the cultivation and processing of hemp was a valid, nonconforming use of the property, and the plaintiffs proceeded to cultivate and process hemp on the property. In 2021, the General Assembly legalized the recreational use of cannabis for adults and established a licensing regimen for its cultivation and processing. Hemp and cannabis are derivatives of the same plant, cannabis sativa L., but cannabis has a higher concentration of tetrahydrocannabinol (THC) than does hemp. The plaintiffs thereafter sought a determination from the zoning enforcement officer that the cultivation and processing of cannabis was a legal continuation of the property’s existing nonconforming use, but the zoning enforcement officer, relying on the different legal definitions of hemp and cannabis and the different licensing regimens pertaining to those products, rejected the plaintiffs’ request. In sustaining the plaintiffs’ appeal and reversing the board’s decision to uphold the zoning enforcement officer’s determination, the trial court found that, although the fact that hemp and cannabis are subject to different licensing regimens and regulatory schemes was relevant to the determination of whether a proposed use falls within the scope of an existing nonconforming use, that fact was not dispositive. Instead, the trial court applied the factors set forth in Zachs v. Zoning Board of Appeals (218 Conn. 324) for determining whether a proposed use impermissibly expands the scope of a nonconforming use and concluded that, under the facts of this case, the cultivation and processing of cannabis on the plaintiffs’ property was a lawful continuation of the existing, nonconforming use. On appeal, the board claimed, inter alia, that the trial court had improperly applied this court’s precedent in sustaining the plaintiffs’ appeal. Held:
The trial court correctly concluded that the proposed use of the plaintiffs’ property for cannabis cultivation and processing constituted a continuation of *
The listing of judges reflects their seniority status on this court as of the date of oral argument.
Lasa Extract, LLC v. Zoning Board of Appeals
the property’s preexisting, legal nonconforming use under the circumstances of this case, and, accordingly, this court affirmed the trial court’s judgment.
Under this court’s nonconforming use jurisprudence, the determination of whether a proposed use of a property falls within the scope of an existing nonconforming use involves a fact-intensive inquiry that focuses on a comparison of the purpose, nature, kind, character, and effects of the existing and proposed uses of the property, which includes the application of the Zachs factors.
This court declined the board’s invitation to recognize a bright-line rule, pursuant to which the fact that a proposed use and the existing nonconforming use of a property are subject to different state licensing regimens or regulatory schemes is dispositive evidence that the proposed use will constitute an impermissible change in the character of the use of the property so as to bring the proposed use within the relevant prohibition in the governing zoning regulations, as a difference in such regimens or schemes is relevant to but not determinative of the zoning inquiry.
In the present case, the record established that there were two primary distinctions between the existing use and the proposed use of the property, namely, that the final cannabis product would contain a higher concentration of THC than the final hemp product, and the higher THC concentration of the cannabis product would require a different license from the state.
There was no evidence, however, that the proposed cultivation and processing of cannabis would require changes to the existing property or to the equipment, or process the plaintiffs employed, that there would be any effect on the neighborhood, or that there was opposition from neighboring property owners regarding the proposed change.
Although this court recognized that the separate regulatory treatment of hemp and cannabis reflected significant differences in the two products that could be relevant to the nonconforming use analysis, there was no evidence in the record that the proposed use would cause a change in the character of the property, and it was not clear that the regulatory scheme reflected a difference in the end products that was relevant for zoning purposes.
Argued April 9—officially released August 25, 2026
Procedural History
Appeal from the decision of the defendant upholding the town zoning enforcement officer’s denial of the
named plaintiff’s request for a determination that its use of certain real property constituted a lawful continuation of an existing nonconforming use of that property,
brought to the Superior Court in the judicial district
of Hartford and tried to the court, Klau, J.; judgment
Lasa Extract, LLC v. Zoning Board of Appeals
sustaining the appeal, from which the defendant, on the
granting of certification, appealed. Affirmed.
Derek E. Donnelly, with whom, on the brief, were Eric
Duey and Robert A. Cane, for the appellant (defendant).
Scott T. Garosshen, with whom were Brian R. Smith
and, on the brief, Ryan D. Hoyler and Jenna M. Scoville,
for the appellees (plaintiffs).
Opinion
D’AURIA, J. This appeal requires us to consider the
role of state regulatory and licensing statutes when
determining if a proposed use of land falls within the
scope of an existing nonconforming use. The defendant,
the Zoning Board of Appeals of the Town of Suffield
(board), upheld a determination by the town’s zoning
enforcement officer, James R. Taylor (zoning officer),
that the plaintiffs, Lasa Extract, LLC (Lasa), and The
Crosswalk, LLC (Crosswalk), could not process cannabis
as a lawful continuation of the existing nonconforming
use permitting hemp processing at the property. The trial
court sustained the plaintiffs’ appeal and rejected the
board’s determination, concluding that the cultivation
and processing of cannabis, under the unique circumstances of this case, is within the scope of the existing
nonconforming use. On appeal, the board argues that
the trial court incorrectly applied this court’s precedent, allowing the plaintiffs to circumvent the town’s zoning
regulations regarding cannabis establishments. We disagree and therefore affirm the trial court’s judgment.
The record reflects the following facts. Lasa, owned
by Ricardo Sotil, operates a hemp cultivation and processing business at 426 South Grand Street in Suffield.1
The property is a 0.9 acre lot that includes a single,
two-story, 23,256 square foot building (building). The
property is located in zone R-45, which is a single-family 1
Crosswalk owns the property. Through an agreement with Crosswalk, Lasa owns and operates the hemp cultivation and processing operation at the property. Sotil is the sole member of both Lasa and Crosswalk.
Lasa Extract, LLC v. Zoning Board of Appeals
residential zone under the Suffield Zoning Regulations
(regulations). The town assessor has classified the use
of the property as “industrial.” The regulations permit certain uses, such as farming, in residential zones
by right and other uses by special permit. See Suffield
Zoning Regs., § IV D. Any use of property not expressly
permitted by the regulations is prohibited. See id., § I C. The property was historically used to farm and process
tobacco products. This use of the property predates the
establishment of zoning regulations in Suffield and was
therefore a legal nonconforming use. See, e.g., Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535
A.2d 799 (1988) (“[a] nonconformity is a use or structure
prohibited by the zoning regulations but is permitted
because of its existence at the time that the regulations
[were] adopted”).
In 2001, Sotil, through Crosswalk, purchased half of
the property at issue. In 2018, Congress legalized the
industrial production of hemp products. See Agriculture
Improvement Act of 2018, Pub. L. No. 115-334, § 10113,
132 Stat. 4490, 4908–14 (codified at 7 U.S.C. §§ 1639o
through 1639s (2018)). The act permits states to regulate
hemp by submitting a plan to the United States Department of Agriculture. See 7 U.S.C. § 1639p (a) (2024).
Federal law defines “hemp” as “the plant Cannabis sativa
L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers,
acids, salts, and salts of isomers, whether growing or
not, with a delta-9 tetrahydrocannabinol concentration
of not more than 0.3 percent on a dry weight basis.” 7
U.S.C. § 1639o (1) (2024).
In 2019, the General Assembly passed No. 19-3 of the
2019 Public Acts (P.A. 19-3), legalizing and establishing
a licensing regimen for the cultivation and processing of
hemp. See General Statutes §§ 22-61l and 22-61m. The
legislature in P.A. 19-3 adopted the federal definition
of hemp, classifying it according to the concentration
of the active ingredient delta-9 tetrahydrocannabinol.
See General Statutes § 22-61l (a) (5) and (7). In 2019, the
Lasa Extract, LLC v. Zoning Board of Appeals
Department of Consumer Protection issued Lasa a license
under P.A. 19-3, §§ 1 and 2, to grow and process hemp.2
Lasa approached both the zoning officer and the town’s
director of planning and development (director), seeking a determination that the cultivation and processing
of hemp and the extraction of cannabidiol was within
the scope of the property’s preexisting, nonconforming use. The director confirmed that hemp production
was “acceptable from a zoning perspective.” The zoning
officer approved hemp production as a valid nonconforming use consistent with the prior use of the property for
tobacco processing. In 2020, Lasa also received approval
from the town for commercial renovations at the property for a hemp extraction and processing facility. Sotil, who had purchased half of the property in 2001 through
Crosswalk, then purchased the other half of the property.
Lasa, through Crosswalk, contracts with hemp growers
licensed by the state, who grow cannabis sativa L. plants
on the second floor of the building. Lasa purchases the
hemp from these contractors, as well as from third-party
growers. Lasa then processes the hemp using equipment
on the first floor of the building. The equipment cost
roughly $1 million and occupies approximately 5000
square feet on the first floor. The process includes drying the plants in an oven and processing the dried product
using machines that distill the material into hemp oil.
Lasa employs a carbon dioxide (CO2) extraction system,
which uses pressurized carbon dioxide to extract cannabinoids from raw hemp material. The extracted oil initially
contains more than 0.3 percent of tetrahydrocannabinol
(THC) by dry weight, defined as cannabis3 by state law.
Lasa then adds coconut oil to reduce the THC concentration below the 0.3 percent threshold. Lasa ships the
2
The license was originally granted in June 2019 to Happy Hemp, LLC, another company established by Sotil. The license was converted to Lasa in 2021.
3
Relevant law uses the terms “marijuana” and “cannabis” interchangeably. See General Statutes § 21a-420 (3). For consistency, we use the term “cannabis” to refer to substances with a total THC concentration of 0.3 percent or more.
Lasa Extract, LLC v. Zoning Board of Appeals
final product off site and does not conduct retail sales
at the property.
In 2021, the legislature passed Public Acts, Spec. Sess.,
June 2021, No. 21-1, legalizing adult recreational use of
cannabis and establishing a regulatory regimen for state
licensing of the cultivation of recreational cannabis. See General Statutes §§ 21a-420a, 21a-420c and 21a-420n.
The statutes permit municipalities to use zoning laws to
determine where cannabis establishments can be located4
and to require a special permit or affirmative approval
for a cannabis cultivator seeking to be located within a
municipality. See General Statutes § 21a-422f. Accordingly, in 2022, the Planning and Zoning Commission of
the Town of Suffield amended the town’s regulations to
regulate cannabis establishments. The regulations do not
prohibit cannabis establishments but require them to be
located within an industrial zone with a special permit
and not within 200 feet of a residential zone. See Suffield Zoning Regs, § V Y 1 (a).
In October 2022, Lasa requested a determination from
the zoning officer that cannabis microcultivation5 would
constitute a legal continuation of a preexisting nonconforming use based on the existing nonconforming
hemp cultivation and processing taking place on the
property. Lasa explained that the current cultivation
and extraction process would remain identical, except
that the extract would be diluted with less coconut oil to
4
General Statutes § 21a-422f (b) provides in relevant part that “[a]ny municipality may, by amendment to such municipality’s zoning regulations or by local ordinance, (1) prohibit the establishment of a cannabis establishment, (2) establish reasonable restrictions regarding the hours and signage within the limits of such municipality, or (3) establish restrictions on the proximity of cannabis establishments to any of the establishments listed in subdivision (1) of subsection (a) of section 30-46. . . .”
5
General Statutes § 21a-420 (39) defines “[m]icro-cultivator” as “a person licensed to engage in the cultivation, growing and propagation of the cannabis plant at an establishment containing not less than two thousand square feet and not more than ten thousand square feet of grow space, prior to any expansion authorized” by the commissioner of the Department of Consumer Protection.
Lasa Extract, LLC v. Zoning Board of Appeals
maintain a higher THC concentration. The zoning officer
denied Lasa’s request. The zoning officer explained that
hemp manufacturing was approved as a nonconforming
use because “it was determined that it is somewhat compatible to the historic use of the property as a tobacco
sorting and shipping warehouse and closely related to
the agriculture business.” However, the zoning officer
explained that, “[i]f cannabis/marijuana, a hallucinatory processing was to be considered at that time, it
would not have been approved by this office.” Relying on
the different legal definitions of the product and state
licensing programs, the zoning officer determined that
processing extract with a higher THC concentration was
not permissible.
Lasa appealed from the zoning officer’s determination
to the board.6 The board held two hearings, during which
Lasa established that hemp and cannabis are derivatives
of the same plant, cannabis sativa L., which is already
grown and cultivated at the property, and that extract
with THC concentrations legally categorized as cannabis
are produced at the property as a necessary step in the
production of hemp products. Lasa explained that the
sole differences in producing extract with cannabis level
THC concentrations using the current process would
be the amount of coconut oil used to dilute the extract
and the required use of union workers, to which Sotil
already had agreed. Lasa provided details and photos
of the interior and exterior of the building, including
the current production operation and equipment, which
Lasa contended would remain unchanged.
The zoning officer reasoned that the regulations prohibit cannabis production at the property and that Connecticut’s nonconforming use jurisprudence supported
the prohibition of the continuation of a nonconforming use based on a difference in state licensing regimens alone. Several members of the public present at
6
The board is a municipal agency authorized to receive, review and decide appeals of decisions and determinations made by the zoning officer in accordance with the regulations and General Statutes § 8-6.
Lasa Extract, LLC v. Zoning Board of Appeals
the hearing spoke in favor of approving Lasa’s request;
none opposed it. The board voted four to one to uphold
the zoning officer’s decision, with the majority of the
board relying primarily on the different legal treatment
of cannabis and hemp under both state and federal law.
Lasa appealed from the board’s decision to the Superior
Court, which disagreed with the board’s interpretation
of this court’s nonconforming use jurisprudence and
determined that the legal distinctions relied on by the
board were relevant, but not dispositive, for purposes of
determining whether the use of a property would mark a
change in character for zoning purposes. The trial court
applied the test established in Zachs v. Zoning Board
of Appeals, 218 Conn. 324, 332, 589 A.2d 351 (1991),
and determined that, under the unique facts of this case,
Lasa’s proposed use was a lawful continuation of the
current nonconforming use of the property.
The board, on the granting of certification, appealed
to the Appellate Court. We then transferred the appeal
to this court pursuant to General Statutes § 51-199 (c)
and Practice Book § 65-1 to determine if the trial court
had incorrectly concluded that Lasa’s proposed cannabis
microcultivator facility would constitute a continuation of the preexisting, legal nonconforming use of the
property.
Generally, when “a town or neighboring landowner
contends that a particular activity on the property is
not within the scope of the original nonconforming use
because the activity is inconsistent with the nature and
purpose of such use, the burden is on the town or landowner to prove that an illegal expansion of the nonconformity has occurred, which is done through application
of the Zachs factors.” Pfister v. Madison Beach Hotel,
LLC, 341 Conn. 702, 729, 267 A.3d 811 (2022); see also
Cummings v. Tripp, 204 Conn. 67, 95, 527 A.2d 230
(1987); D. Merriam, 9B Connecticut Practice Series:
Land Use Law and Practice (2026 Ed.) § 52:3, p. 277.
“In reviewing a decision of a zoning [commission], a
reviewing court is bound by the substantial evidence
Lasa Extract, LLC v. Zoning Board of Appeals
rule, according to which . . . [c]onclusions reached by [a zoning] commission must be upheld by the trial court if
they are reasonably supported by the record.” (Internal
quotation marks omitted.) McLoughlin v. Planning &
Zoning Commission, 342 Conn. 737, 751–52, 271 A.3d
596 (2022). “The substantial evidence rule is similar to
the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably
inferred. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion
sought to be drawn from it is one of fact for the jury.”
(Internal quotation marks omitted.) Id., 752. If a zoning board does not articulate a reason for its decision,
“the [reviewing] court must search the entire record
to find a basis for the [board’s] decision . . . .” (Internal quotation marks omitted.) Markatos v. Zoning Board of
Appeals, 355 Conn. 143, 153, A.3d (2026); see also
High Watch Recovery Center, Inc. v. Planning & Zoning
Commission, 352 Conn. 1, 21–22, 334 A.3d 972 (2025).
“[T]he right of a user to continue the same use of the
property as it existed before the date of the adoption
of the zoning regulations, or any amendment thereto,
is protected by the constitution and the General Statutes.” (Internal quotation marks omitted.) High Watch
Recovery Center, Inc. v. Planning & Zoning Commission,
supra, 352 Conn. 14; see Petruzzi v. Zoning Board of
Appeals, 176 Conn. 479, 483–84, 408 A.2d 243 (1979)
(nonconforming uses are vested rights protected by constitution); see also General Statutes § 8-2 (d) (“[z]oning regulations . . . shall not . . . (4) (A) [p]rohibit the continuance of any nonconforming use, building or structure
existing at the time of the adoption of such regulations”). It is a general principle of zoning law to abolish or reduce nonconforming uses “as quickly as the fair interest of the parties will permit—[i]n no case should they be allowed to increase.” (Internal quotation marks omitted.) Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 710.
However, when a nonconforming use exists, it is a vested
Lasa Extract, LLC v. Zoning Board of Appeals
right that adheres to the land and is entitled to constitutional protection, which “in no way contradicts the recognized goal of eliminating nonconformities as quickly
as possible, since that policy must be carried out within
the limits of permissible governmental action.” Petruzzi
v. Zoning Board of Appeals, supra, 484.
To decide if a proposed use of a property is within the
scope of a preexisting nonconforming use, local authorities and courts consider a wide cross section of factors
that serve to assess the nature and scope of the use of the property and to determine if there is a change in the character of the use that brings it within the prohibition of
zoning regulations. See Pfister v. Madison Beach Hotel,
LLC, supra, 341 Conn. 728; Zachs v. Zoning Board of
Appeals, supra, 218 Conn. 332. In Zachs, we articulated
the following factors that should be given consideration:
“(1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved; and (3) any
substantial difference in effect upon the neighborhood
resulting from differences in the activities conducted on
the property.” Zachs v. Zoning Board of Appeals, supra,
332.7 These factors are intended to guide local authorities
7
Prior to our decision in Zachs, our nonconforming use jurisprudence focused on the character and degree of the change in use at issue. See, e.g., Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 383, 311 A.2d 77 (1972) (“[i]t is clear that even a change in the character of a business conducted on a parcel of land constitutes an extension of use”); Salerni v. Scheuy, 140 Conn. 566, 571, 102 A.2d 528 (1954) (“[t]here must be a change in the character of the existing use in order to bring it within the prohibition of the zoning ordinance”). The test we articulated in Zachs drew from decisions by courts in two other jurisdictions and a zoning law treatise. See Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332; see also 6 P. Rohan, Zoning and Land Use Controls (1993) § 41.02 [2], pp. 41-71 through 41-72 (“Several factors must be considered in determining what constitutes a change of a nonconforming use. These factors include: (1) intention and an overt act or failure to act indicating abandonment of the former use; (2) the extent and nature of the use, before and after the change; (3) whether the premises are adapted for only a particular use.” (Footnotes omitted.)). The distinction between each of the Zachs factors is not always clear. However, the factors are aimed at understanding whether the facts of any particular case indicate a change in the use of a property by comparing the character
Lasa Extract, LLC v. Zoning Board of Appeals
and courts when distinguishing between permissible and
impermissible continuations of nonconforming uses,
although we have made clear that we intend these factors
to supplement—not supplant—our case law regarding
impermissible expansions. See High Watch Recovery
Center, Inc. v. Planning & Zoning Commission, supra,
352 Conn. 17. The factors are consistent with our general
nonconforming use jurisprudence, which focuses on a
comparison of the purpose, nature, kind, character and
effects of the original and the proposed use of the property. Id., 18 n.7. Whether an activity falls within the
scope of an existing nonconforming use is a fact-intensive inquiry undertaken on a case-by-case basis to determine
the degree of impact on the use of the property and its
effect on the neighborhood.
In particular, we have held that a mere increase in the
amount of business transacted pursuant to a nonconforming use, or a change in equipment, does not necessarily
constitute an impermissible expansion of a nonconforming use but that a change in the character of the use
brings it within the prohibition of the zoning ordinance.
See Salerni v. Scheuy, 140 Conn. 566, 571, 102 A.2d 528
(1954). In Zachs, the plaintiff had maintained a radio
communications tower on his property before an amendment to the town zoning ordinance requiring a special
permit for radio broadcasting rendered that use nonconforming. Zachs v. Zoning Board of Appeals, supra, 218
Conn. 326. The court in Zachs considered whether the
installation of additional antennae and an emergency
electricity generator was a permissible intensification of an existing nonconforming use. See id., 328. Although
the changes included additional use and equipment, the
court observed that the town zoning board of appeals had
not “explain[ed] how th[e] additional equipment [could]
reasonably be deemed to have changed the original nature
and purpose of the undertaking.” (Internal quotation
marks omitted.) Id., 334. The court therefore concluded
that the plaintiff succeeded in his challenge to the zoning and purpose of the original use and the proposed use, and any effect on a neighborhood that may result.
Lasa Extract, LLC v. Zoning Board of Appeals
board’s denial of the nonconforming use because there
was no evidence that the additional equipment impermissibly changed the character of the use of the property or
significantly increased the existing nonconforming use
of the property. See id., 335.
We have, on occasion, considered state regulations and
licensing regimens in our nonconforming use jurisprudence. The board relies primarily on Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 519 A.2d 49
(1986), Macaluso v. Zoning Board of Appeals, 167 Conn.
596, 356 A.2d 885 (1975), and Salerni v. Scheuy, supra,
140 Conn. 566. In Salerni, this court considered whether
a restaurant that sold beer could sell liquor under a full liquor restaurant permit without impermissibly expanding the existing nonconforming use of the property.
See id., 568–69. We held that the addition of liquor
sales would lead to more than an increase in business
or a change in equipment; rather, it would change the
character of the use. See id., 571–72. We considered
that the change would require a different permit from
the state, which indicated that the legislature believed
that a restaurant selling all liquors was a different kind of business that required greater policing. Id., 571. We
stated that “[t]he difference between the sale of beer
only in a restaurant and the sale of all liquors therein is so great that our law requires a different permit from
the liquor control commission for each of the two kinds
of business.” Id. We also noted that it was “a matter of
common knowledge” that a restaurant selling liquor is
a different enterprise that shared “characteristics of
a night club, rather than a quiet family eating place.”
Id. Similarly, in Macaluso, this court held that a drug
store selling liquor under a drug store liquor permit
converting to a full package store would impermissibly
expand the existing nonconforming use. See Macaluso
v. Zoning Board of Appeals, supra, 600. We concluded
that it was common knowledge that the two enterprises
were substantially different, noting that the “[s]tatutory regulations concerning sales in both types of establishments recognize these distinctions.” Id.
Lasa Extract, LLC v. Zoning Board of Appeals
In Helicopter Associates, Inc., the plaintiffs operated
a small heliport where approximately ten takeoffs and
landings in total had been performed—a frequency that
did not require a state license—as of the date that the
applicable zoning regulations prohibiting heliports went
into effect. Helicopter Associates, Inc. v. Stamford,
supra, 201 Conn. 702–703. After the zoning regulations
were amended, the plaintiffs received a state license,
which was required for heliports expecting more than
thirty-six landings and takeoffs per year, and sought to
use the property as a commercial heliport for an unlimited number of flights as a continuation of their nonconforming use of the property. Id., 703–704. Citing both Salerni and Macaluso, we recognized that differing statutory
treatment was evidence of a change in the character of
a nonconforming use and concluded that operating a
commercial heliport would amount to an impermissible
change. Id., 716–18. We noted that, by requiring a license for more than thirty-six annual flights, the legislature
had identified two types of heliports—one that required
close supervision and licensing by the state, and one that did not. Id., 717. We reasoned that the legislature’s
decision to regulate higher volume heliports could reasonably reflect the legislature’s conclusion that fewer
flights would not have the same “deleterious effect upon
the surrounding properties considering such factors as
noise, distractions and traffic . . . .” Id.
These three cases predate our decision in Zachs, and
we have not had occasion since Zachs to consider the
role of regulatory schemes and licensing requirements
in the Zachs analysis and our nonconforming use jurisprudence. The board argues that Helicopter Associates,
Inc., Macaluso and Salerni establish that a difference
in state licensing and regulation governing an approved
use of property and a proposed use of that property is
dispositive evidence that the character of the use of a
property has changed and asks us to recognize this brightline rule. The board argues that the trial court misread
and misapplied these precedents in concluding that a
regulatory distinction, standing alone, was insufficient
Lasa Extract, LLC v. Zoning Board of Appeals
to establish a change in character. The board contends
that the only way to harmonize the Zachs test with our
prior nonconforming use jurisprudence is to hold that a
change in the regimen governing the proposed new activity on the property demonstrates a change in the nature,
purpose, character, and kind of use of the property as a
matter of law. We disagree.
We do not read Helicopter Associates, Inc., Macaluso
and Salerni to stand for the proposition that differences
in licensing requirements are dispositive of a change in
character, obviating the need to evaluate the factual and
policy considerations reflected in the regulatory scheme
to determine if they are relevant to the property use in
question. To the contrary, in each of these cases, we considered the regulatory differences that characterized the
activities at issue along with other facts in the record,
including facts we considered to be “common knowledge”;
Salerni v. Scheuy, supra, 140 Conn. 571; to determine if
the character of the activity had changed so as to bring
it within the prohibition of the zoning regulations.
In Salerni and Macaluso, we deemed the difference
in the proposed sale of liquor at the property compared
to the prior use of the property to be so obvious that it
was “common knowledge”8 that the proposed use would
effect a change in character. Id.; see also Macaluso v.
Zoning Board of Appeals, supra, 167 Conn. 600. We
held that the legislature’s decision to license the sale of liquor to patrons at a restaurant, and the sale of liquor
at a package store as opposed to a drug store, reflected
a legislative acknowledgment of those differences.
See Salerni v. Scheuy, supra, 140 Conn. 571; see also
8
The board also argues that “common knowledge” is an inappropriate and impractical consideration for zoning boards. We disagree. Determining if a property use is within the scope of a preexisting nonconformity has always been a fact-specific inquiry. Zoning boards are permitted to exercise common sense, and doing so does not permit unreasonable or arbitrary action. See, e.g., Lauer v. Zoning Commission, 220 Conn. 455, 464, 600 A.2d 310 (1991) (“[c]ommon sense must be used in construing [a] regulation, and we assume that a rational and reasonable result was intended by the local legislative body” (internal quotation marks omitted)).
Lasa Extract, LLC v. Zoning Board of Appeals
Macaluso v. Zoning Board of Appeals, supra, 600. In
Helicopter Associates, Inc., we did not decline to consider facts supporting the conclusion that operating a
commercial heliport would change the character of the
existing nonconforming use simply because the legislature required a license for commercial heliports. See id., 717–18. Rather, we considered the legislature’s decision
to license higher volume heliports as evidence that the
volume of flights resulted in a change in character of the use and determined that the effects on the property’s
use and neighboring community could have reasonably
prompted the legislature’s licensing requirements. See
id. Although we have often stated that a quantitative
increase in the use of a property is not by itself necessarily an impermissible expansion of a nonconforming
use, in Helicopter Associates, Inc., the legislature’s
licensing regimen helped to determine when an increase
in the amount of business pursuant to a nonconforming
use in fact changes the character of the use because of
the potential impact on the surrounding community.
See id., 716–18.
When considering the proposed activities in each
of the foregoing cases—a change in the products sold
directly to consumers at retail establishments and the
use a commercial heliport—the differing regulatory
schemes corresponded to meaningful differences in the
character, nature, kind, purpose or effect of the uses of
the properties. We did not consider a difference in regulatory or licensing regimens alone sufficient evidence of
a change in character divorced from any factual nexus
to the change in character of the property relevant for
zoning. Rather, we considered the reasons the legislature decided to license the activities separately and the
extent to which those reasons reflected a change in the
use of the property for purposes of the analysis applied
in our nonconforming use jurisprudence, which focuses
on the potential effect the use has on the property and
the surrounding community. The legislature’s licensing schemes do not replace the need for a fact-specific
inquiry to that end.
Lasa Extract, LLC v. Zoning Board of Appeals
Although analyzing a separate licensing scheme was
not required in Zachs or explicitly included in the factors we articulated, engaging in such analysis is not incompatible with the existing Zachs test and does not compel use
of the bright-line rule the defendant proposes. Again, the Zachs test did not supersede our existing nonconforming
use jurisprudence but, rather, synthesized the factors
local authorities and courts should use to distinguish
between permissible and impermissible changes in use.
See High Watch Recovery Center, Inc. v. Planning &
Zoning Commission, supra, 352 Conn. 17–18 n.7. The
Zachs test is consistent with our prior case law that seeks to determine whether the administrative record supports
a finding that a proposed use of property is within the
scope of a valid nonconforming use by “focus[ing] on a
comparison of the purpose, nature, kind, character, and
effects of the original use and the proposed changes.”
Id., 18 n.7.
It is axiomatic that, when the legislature chooses to
regulate two activities or products differently, it does so because it believes that the activities or products differ in some way. However, the question in a nonconforming
use case is not whether the character of the use of the
property differs in some way, but whether the difference
is one that matters for purposes of the nonconformity
analysis under Zachs and its associated forbears and
progeny. A difference in state licensing regimens or
statutory treatment may be evidence of any one of the
Zachs factors, but it is not determinative of the zoning
inquiry. In Helicopter Associates, Inc., for example,
we concluded that the legislature’s decision to require
licenses for heliports operating more than thirty-six
flights per year was evidence that a higher volume of
flights would have a different impact on the surrounding
properties—an analysis that would now fall under the
third factor of the Zachs test. See Helicopter Associates, Inc. v. Stamford, supra, 201 Conn. 717; see also Zachs
v. Zoning Board of Appeals, supra, 218 Conn. 332.
Nevertheless, it is certainly conceivable that the legislature may choose to license two activities differently
Lasa Extract, LLC v. Zoning Board of Appeals
for reasons unrelated to the considerations bearing on
our nonconforming use analysis. For example, a license
issued by the Insurance Department is a prerequisite
to becoming an insurance adjuster, consultant or broker. See General Statutes § 38a-769. A license from the
Department of Consumer Protection is required to practice public accountancy. See General Statutes § 20-280e.
It is unlikely, however, that this licensing difference
alone would compel the conclusion that the preexisting
nonconforming use of property by an insurance consultant would exceed the scope of the nonconformity if the
owner decided to offer tax accounting services instead. In DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 624
A.2d 372 (1993), we determined that a proposed lease of
office space to the state for use as an adult probation office was not an impermissible change in a nonconforming use
of office space in a residential zone when, previously, the property had been used as an administrative office by a
utility company. See id., 833. Focusing on the character
of the property use, we concluded that the existing “office use” would be protected. Id., 831.
In the present case, Lasa has cultivated cannabis sativa
L. plants and produced hemp oil as a nonconforming use
since 2019, when the zoning officer determined that
hemp processing, although subject to a different regulatory regimen, was a valid continuation of the nonconforming tobacco processing use. That decision was not
appealed or challenged, and its validity is not before this court. Before the board, Lasa established that, should the production of cannabis be permitted at the property, the
current cultivation of cannabis sativa L. plants on the
second floor of the building would remain unchanged,
as cannabis and hemp are derivatives of the same plant.
Lasa also established that identical processes, ingredients, and machinery would be used on the first floor of
the property to dry the plant and extract oil. The final
product would continue to be shipped off site, and no
retail sales would take place on the property.
Lasa Extract, LLC v. Zoning Board of Appeals
The primary factual distinctions in the record between
Lasa’s current use of the property and its proposed use
are that (1) the final product would contain a higher
concentration of THC, and (2) the higher concentration
of the final product requires a different license from the state. The singular distinction in the way that Lasa would use the property to produce hemp versus cannabis is the
amount of coconut oil used to dilute the THC concentration in the final product below 0.3 percent. There is no
additional evidence in the record, presented by the parties that the proposed cultivation and processing of cannabis
or its end product would change the existing property,
equipment, process, or effect on the neighborhood, nor is
there evidence of opposition from neighboring property
owners regarding the proposed change.
On appeal, the board does not argue that there are
additional factual differences or point to a potential
change in the effect on the surrounding community and
neighboring properties. Rather, the board argues that
the proposed use of the property falls outside the scope
of the otherwise indistinguishable nonconforming use
because hemp and cannabis are “subject to separate regulatory and licensing regimes that were carefully crafted
by our legislature and enshrined in our statutes . . .
[which] alone, is dispositive of whether [Lasa’s] planned
cannabis microcultivator [use] would illegally expand
[its] property’s nonconforming use.” As we explained,
the board’s argument is premised on an overly broad
reading of our case law. Nevertheless, we agree that
the separate regulatory treatment of hemp and cannabis reflects significant differences in the two products
that, if there were evidence in the record to support it,
could be relevant to the question of whether processing
cannabis instead of hemp changes the character of the
use of a particular property in a way that matters for the relevant nonconforming use analysis.
It is undisputed that the cultivation and processing
of hemp and cannabis, as well as the end products and
their sale and consumption, are regulated differently
Lasa Extract, LLC v. Zoning Board of Appeals
by the legislature and the federal government. The law
distinguishes between hemp and cannabis according to
the level or concentration of the active ingredient, THC.
See 7 U.S.C. § 1639o (1) (2024). We are cognizant that
the concentration of THC is a significant difference in
the enterprise of cannabis and hemp production in many
contexts, and the additional regulations that govern
cannabis reflect important differences in a substance
with a higher concentration of an intoxicating ingredient that require closer governmental scrutiny. In many
circumstances, the inherent difference in cultivating,
producing or selling cannabis, as opposed to hemp, at a
property would likely mark a change in the character,
nature, kind, purpose or effect of the property use. For
example, if patrons consumed or purchased cannabis
products at Lasa’s property, our conclusions in Salerni
and Macaluso would likely compel a conclusion that
moving from hemp to cannabis would constitute a change
in character that brings the use of the property within
the zoning prohibition. Similarly, if Lasa currently produces hemp in such a way that producing cannabis would
require significant alterations to the building, to the
growing or production process, to equipment, or to the
ingredients used, the board may have been able to demonstrate that the change impermissibly expanded the
nonconforming use. The same might be true if there was
any evidence in the record that the storage or shipment
of the proposed end product somehow presented risks or
dangers that would not exist with the current product.
However, having concluded that the different regulatory scheme and licensing requirements do not replace the
fact-intensive Zachs analysis, we are left to determine
whether the facts in the administrative record, including the inferences properly derived from the statutory
evidence, reflect a change in the character of the property for the purposes of the nonconforming use analysis. The
record in this case is insufficient to reach that conclusion.
In the same vein, although the statutes that regulate
cannabis indicate that cannabis products are different
Lasa Extract, LLC v. Zoning Board of Appeals
in nature and kind than hemp products, it is not clear
that the regulatory scheme reflects a difference in the
products that is relevant for zoning purposes. Section
21a-422f suggests that the legislature intended hemp
and cannabis production to be zoned similarly. Although
the legislature permits municipalities to prohibit or
implement restrictions on cannabis establishments, the
statutes otherwise contemplate that cannabis establishments will be zoned as are other establishments.9 See
General Statutes § 21a-422f (c).
The board asserts that affirming the trial court’s judgment will have far-reaching adverse implications for
state and local cannabis regulation, requiring that the
allowance of hemp production necessarily allows cannabis production. This assertion is without merit. We do
not hold, as the board contends an adverse ruling would
entail, that the only relevant factor is the similarity of hemp and cannabis and, therefore, that any valid use
of property that allows one grants a right to the other.
Nor is it true that our conclusion creates, as the board
contends, a “de facto constitutional ‘if hemp, then cannabis’ property right” that would allow any “smoke shop
that has sold hemp cigarettes . . . to sell cannabis joints” or “a drug store that [sells] hemp-based medicines . . .
to sell far more potent cannabis products.” Indeed, Lasa
concedes that, if its enterprise included retail sales on
site, there would likely be substantial evidence of a material difference from the existing nonconforming use.
As we explained, whether a change in a nonconforming
use is within the scope of the preexisting use is a factintensive inquiry that depends on the circumstances of
the particular property use at issue and the evidence in
the administrative record. Property users with preexisting nonconformities permitting hemp production who
9
Lasa also claims that the regulations regarding cannabis establishments fall outside of the legislatively authorized zoning restrictions contemplated in General Statutes § 21a-422f (b). We decline to reach this claim because Lasa did not raise this issue before the trial court. See, e.g., Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408, 418, 898 A.2d 157 (2006).
Lasa Extract, LLC v. Zoning Board of Appeals
seek to produce cannabis remain subject to the Zachs
analysis. As a part of that analysis, municipalities seeking to prohibit the transition from hemp production to
cannabis production can develop an evidentiary record to
show “(1) the extent to which the [proposed] use reflects
the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved;
and (3) any substantial difference in effect upon the
neighborhood resulting from differences in the activities conducted on the property.” Zachs v. Zoning Board
of Appeals, supra, 218 Conn. 332. In the present case,
no such evidence was presented. Under the particular
circumstances, therefore, in which the only record evidence of a change in the character of the property’s use
is a difference in state regulatory schemes, we agree with the trial court that the administrative record does not
contain substantial evidence of a change in the character
of the property’s use.
The judgment is affirmed.
In this opinion the other justices concurred.