Zoning moratoria in one form or another have been around in Connecticut for almost half a century. The interest in the use of moratoria has become greater in the last year with the possibility that marijuana will be approved for general use and the continued expansion of short-term rentals, such as Airbnb and VRBO.

So what is a defensible moratorium?

One of the earliest decisions to involve what was essentially a moratorium was Lebanon v. Woods, 153 Conn. 182, 215 A.2d 112 (1965). The court upheld the validity under §8-2 of "interim zoning regulations," a technique that has been around for decades. The interim regulations imposed bulk and area requirements to protect the status quo while the town updated its comprehensive plan. The court held that no express statutory authority was required for interim regulations.

Years later, a Connecticut trial court expressly recognized that "[a] moratorium is effectively an 'interim' zoning regulation, and therefore the court finds that zoning moratoriums fall within the scope of § 8-2h. " See 137 East Aurora v. Zoning Comm'n of City of Waterbury, 2000 WL 1912211 (Ct. Super. 2000). Section 8-2h is the savings clause that protects an applicant who submits a complete and conforming application before the effective date of a zone change from such change.

Next from our Supreme Court was State ex rel. Brodie v. Powers, 168 Conn. 512, 362 A.2d 884 (1975). There, the court considered a moratorium adopted by resolution, rather than by a formal amendment to the zoning regulations. In a per curiam opinion, the court held that "[s]ince that resolution purported to amend the zoning regulations of the town of Westport, it could not be legally adopted without the public notice and hearing required by § 8-3 of the General Statutes." Brodie did not establish if a moratorium was statutorily enabled.

Two years later in Rosnick v. Zoning Commission, 172 Conn. 306, 374 A.2d 245, 374 A.2 (1977), the court again considered an "interim development ordinance." In Rosnick, the amendment applied to portions of the business districts and prohibited the granting of zoning permits for any new use or any change in use, and was time-limited, with the termination date about nine months after it became effective. The court never got to the question of the legality of the interim development regulation because it was held to be moot, given the interim development regulation had expired.

Finally, in Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 479 A.2d 801 (1984), the court answered the question directly: "In the case before us, the moratorium was neither procedurally flawed nor substantively unreasonable," the court said. "The plaintiff has conceded that the regulation was enacted in accordance with the procedural requirements of General Statutes § 8-3, and the trial court expressly so found. The moratorium was reasonably limited in scope since it did not prevent all development but applied only to business uses. Using the same procedure, the commission could have rezoned the affected portion of the district to permit only residential uses. The moratorium was limited in time since it extended only for a nine month period. In these circumstances, we hold that the moratorium was within the power delegated to the local zoning authority by § 8-2."

For local governments wanting to update their plans and regulations to face challenges such as marijuana and short-term rentals, the key considerations for a defensible moratorium, as described in St. Amand, and Merriam, "Defensible Moratoria: The Law Before and after the Tahoe-Sierra Decision," Natural Resources Journal, Vol. 43, No. 3, Summer 2003, are these:

1.  The moratorium must be enabled by statute or common law. This is established in Connecticut, but care must be taken to follow the zoning amendment process, and not attempt to do a moratorium through a resolution.
2.  Protecting the public's health and safety should be stressed. The use of "heavyweight" objectives, including life safety, are helpful in defending a moratorium. Other "light-weight" objectives, such as promoting tourism, are not going to be as helpful, and may detract from what is most important.
3.  Limiting moratoria in time for no longer than what is absolutely necessary is helpful in defending. There is no standard time that might be applied for moratorium to update a comprehensive plan, or zoning regulations, but something in the order of six months, with possible extensions, should be all that is needed in most cases.
4.  The moratorium should be limited in its physical dimensions. That is, the least amount of the community, or areas within a zoning district, should be affected.
5.  A defensible moratorium will also be limited in its functional impact. Consider this to be like the First Amendment issue of overinclusiveness and underinclusiveness. In short, a moratorium should be closely tailored to the achievement of the objectives.
6.  And finally, any defensible moratorium may be saved from judicial invalidation by providing a local, administrative process, which is adjudicatory in nature, by which someone who is subject to the moratorium can seek relief.

Attorney Dwight Merriam is a member of the Connecticut Law Tribune's editorial board.