You asked whether state agencies have to comply with local zoning regulation.

SUMMARY

Although no Connecticut statute touches on the state's relationship to local zoning, state government's use of its own property is immune from municipal zoning and other land use controls, according to various authorities. Several attorney general's opinions extend this immunity to situations in which the state leases private property for a state purpose. But a government or private entity using or leasing government property for commercial purposes may be subject to zoning.

While state agencies do not have to comply with local land use regulation, several state laws they must follow address similar concerns according to Jeffrey Beckham, the Department of Public Works' chief counsel. For example, agencies undertaking an action that may significantly affect the environment must prepare a detailed evaluation that looks at facility size; parking; water supply; wastewater treatment; alternative sites; and effects on housing, when applicable, among other items (CGS § 22a-1b). Their projects may also be subject to review by the State Traffic Commission (CGS § 14-311).

STATE IMMUNITY FROM LOCAL ZONING REGULATION

State Use of State Property

While no statute specifically exempts the state from local zoning regulation, several concepts found in Connecticut case law provide this immunity. These are stated in Connecticut Land Use Law and Practice (Fuller, 2007).

1. A municipality has no inherent powers of its own, only those expressly granted by statute. No statute expressly gives towns the right to regulate state functions through zoning or other land use control (citing Simons v. Canty, 195 Conn. 524 (1985)).

2. Local law must yield to the superior power of the state in an area of statewide concern (citing Shelton v. Commissioner, 193 Conn. 506 (1984) and Bencivegna v. Milford, 183 Conn. 168 (1981)).

3. Statutes limiting rights are not construed as covering the state government unless that appears to be the legislature's clear intention (citing State v. Goldfarb, 160 Conn. 320 (1971)).

Thomas Byrne, a noted authority on Connecticut zoning law, agrees with this conclusion. He states, “Neither the State of Connecticut nor the United States Government is subject to the zoning regulations of a municipality, unless they have specifically consented to be so regulated. This applies to all state and federally-owned land within the municipality, regardless of the purpose for which that land is used” (Byrne, Planning and Zoning in Connecticut, 4^th ed. , 1990).

The state has consented to be regulated by local zoning in at least one situation, thus demonstrating Byrne's point. Statute requires the Transportation Department to conform to zoning ordinances when it uses any site acquired by eminent domain for a maintenance storage area or garage. The statute further permits the department to seek a zoning variance or special exception to accomplish its end (CGS § 13a-73(b)).

State Use of Leased Private Property

At least two attorney general's opinions have held that the state is immune from local zoning rules when it leases private property and uses it for a state purpose. In 1987, the mental health commissioner asked the attorney general whether a facility the state leased was subject to local zoning. The circumstance involved the Mental Health Department (predecessor to the Department of Mental Health and Addiction Services) potentially leasing private property in a residential zone to locate a crisis intervention center in Stamford. The attorney general opined that the facility would be exempt from zoning because it was to be under state control and custody and used for a legislatively created purpose. That a private building was to be leased to the state was irrelevant (1988 Conn. Op. Atty. Gen. , No. 88-002).

In 1988, House Speaker Stolberg asked the attorney general the same question concerning the legislature's leasing private property to establish a day care center. The attorney general stated that the property was not subject to local zoning because the center was (1) established by legislative mandate to further a state policy addressing the state's childcare problem and (2) to be largely state-run and state-funded. He based his opinion largely on the principal that “municipal zoning ordinances do not apply to the state or its agencies unless the legislature has clearly indicated a contrary intent” (1988 Conn. Op. Attny. Gen. , No. 88-19).

Government Property Used For Proprietary Purposes

Some courts, although none we have found in Connecticut, have ruled that government activities that are “proprietary,” rather than “governmental,” in nature are not immune from local zoning. But the attorney general has opined that municipal zoning regulations could not be applied to commercial property owned by the University of Connecticut (1986 Conn. Op. Attny. Gen. , No. 86-063).

While no exact definitions of “governmental” and “proprietary” exist, these courts have characterized a “governmental” function as a political function or one mandated by statute that a government entity performs as part of its obligation for the public's health, safety, and general welfare. They have characterized a “proprietary” function as one a government entity undertakes in a business, private, or corporate capacity (53 ALR 5^th § 10).

This proprietary theory has been used in Connecticut to subject a private entity leasing government property for commercial use. In Dupuis v. Submarine Base Credit Union, an entity leasing federal property to offer credit union services for Navy personnel was required to adhere to local zoning rules because the use was for commercial, nongovernmental purposes (170 Conn 344, cited in 84 ALR 3d. , p. 1190).

JR: dw