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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 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 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 plaintiff’s 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.
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
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.
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.
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.
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 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 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 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.
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.
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 bright- line rule. The board argues that the trial court misread and misapplied these precedents in concluding that a regulatory distinction, standing alone, was insufficient 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)).
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.
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 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.
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 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 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 fact- intensive 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).
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.