Posted by: Patricia Salkin | January 28, 2015

CT Supreme Court Finds Town Zoning Regulation Was Not Preempted by Statute Allowing the State to Contract to Establish Nursing Home Services

The Town of Rocky Hill appealed a decision of the trial court that denied its application for declaratory and injunctive relief for a determination that Securecare Realty, LLC, et al., who had contracted with the state pursuant to General Statutes § 17b-372a, which permits certain state officials to “establish or contract for the establishment of” nursing home facilities for state prisoners and individuals receiving services from the Department of Mental Health and Addiction Services to provide nursing home services to state prisoners and others in state custody, was prohibited from opening or operating the proposed facility because such use would be noncompliant with town zoning regulations and did not constitute a prior nonconforming use, and no special permit had been sought or issued. The trial court concluded that § 17b–372a preempted local zoning regulations, regardless of whether the defendants were an arm of the state.

The Supreme Court disagreed, noting that “A local ordinance is preempted by a state statute whenever the legislature has demonstrated an intent to occupy the entire field of regulation on the matter … or … whenever the local ordinance irreconcilably conflicts with the statute…. Whether an ordinance conflicts with a statute or statutes can only be determined by reviewing the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates the achievement of the state’s objectives.” See, Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 232, 662 A.2d 1179 (1995). The Court also noted , “That a matter is of concurrent state and local concern is no impediment to the exercise of authority by a municipality through local regulation, so long as there is not conflict with the state legislation. Where the state legislature has delegated to local government the right to deal with a particular field of regulation, the fact that a statute also regulates the same subject in less than full fashion does not, ipso facto, deprive the local government of the power to act in a more comprehensive, but not inconsistent, manner.” Greater New Haven Property Owners Assn. v. New Haven, 288 Conn. 181, 190–91, 951 A.2d 551 (2008). A regulation is not necessarily inconsistent because it imposes standards additional to those required by a statute addressing the same subject matter.

Where local regulation “merely enlarges on the provisions of a statute by requiring more than a statute, there is no conflict unless the legislature has limited the requirements for all cases.” As long as the local regulation does not “attempt to authorize that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict.”

The Supreme Court disagreed with the trial court’s determination that the legislature, by its use in § 17b–372a of the broad and generalized prefatory language, “notwithstanding any provision of the general statutes,” intended to expressly preempt the application of local zoning regulations to nursing home projects established under the authority of that provision. The court stated that although the language suggested that § 17b–372a should operate independently of any other statutory requirements, it said nothing about the continued applicability of municipal regulations, including zoning and that when the legislature intends for a statutory provision to apply exclusive both of other statutes, and of other types of law, it knows how to say as much.

The trial court interpreted § 17b–372a, by the legislature using the “notwithstanding” language, it intended to preempt every other conceivably pertinent statute. However, the court stated that there was a strong indication that the legislature, by inclusion of the “notwithstanding” language, did not intend to render every other potentially pertinent statute inapplicable, namely, the last sentence of § 17b–372a, which provided that “a nursing home developed under this section is not required to comply with the provisions of sections 17b–352 to 17b–354, inclusive.” If the legislature had intended by the prefatory language to render all other statutes inapplicable to § 17b–372a nursing home projects, there would have been no need also to include this more specific caveat. The Supreme Court disagreed with the trial court’s determination that the prefatory language of § 17b–372a expressly preempts municipal authority to regulate zoning.

The Court further disagreed that local zoning regulations are impliedly preempted because they irreconcilably conflict with § 17b–372a or will frustrate the state’s statutory objective of establishing nursing homes for those in state custody. The Court stated that a regulation requiring a nursing home facility to be located in a particular zone, or to have a permit that might impose conditions on its operation, does not “attempt to forbid that which the legislature has expressly authorized”; but rather, properly subjects what the legislature has authorized to additional requirements.

The Supreme Court also disagreed that requiring § 17b–372a facilities established on private property to be zoning compliant would frustrate the achievement of the state’s objectives to an unacceptable degree. The court stated that although the number of potential locations for such facilities will be lessened due to the need to comply with zoning regulations, there was no reason to believe that the state’s interest in establishing such facilities will be entirely thwarted. Pursuant to § 17b–372a, the state has the option of establishing a facility on its own property. Alternatively, it may contract for the establishment of a facility on private property that already is properly zoned.

Town of Rocky Hill v. SecureCare Realty, LLC, 2015 WL 46242 (CT 1/6/2015)

The opinion can be accessed at:

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