Opinion
No. UWY-CV-094019527
May 25, 2011
MEMORANDUM OF DECISION
I
PROCEDURAL HISTORY AND BACKGROUND
The parties in this action are the plaintiffs, Woodbury Donuts, LLC and EYRE, LLC, and the defendant, the town of Woodbury zoning board of appeals (zoning board of appeals). The plaintiffs have filed a complaint appealing from the April 20, 2009 decision of the defendant zoning board of appeals arguing that it acted illegally, arbitrarily and in abuse of its discretion in upholding the town of Woodbury zoning enforcement officer's denial of a special permit for a Dunkin' Donuts franchise at Woodbury Green South at 787-807 Main Street South, Woodbury, Connecticut (the Premises). The defendant contends that its decision was not in error and that its interpretation of the applicable zoning regulations was reasonable and supported by the record.
A hearing was held on this appeal on March 4, 2011. Post-hearing briefs were filed by the plaintiffs on April 4, 2011, and by the defendant on March 25, 2011.
II
FACTUAL BACKGROUND
Prior to the plaintiffs seeking a special permit from the zoning commission, the Premises was the site of a 3,000 square foot restaurant named Corey's, which primarily sold hot dogs and hamburgers. Corey's was a seasonal fast food restaurant, and patrons ate at picnic tables or in their cars parked throughout the subject site. The Corey's site also included a golf driving range, and other unimproved land on the site was used on a regular basis for a flea market and antique car shows. Corey's restaurant was located in the Middle Quarter zoning district, and § 5.2.3.1(c) of the Middle Quarter Zoning Regulation specifically prohibited the sale of fast food, predominately take out food. Corey's restaurant was a nonconforming use of the Premises and the Corey's building was also a nonconforming building under the town of Woodbury zoning regulations.
The plaintiff EYRE, LLC filed an application to the zoning commission for a special permit to redevelop the Corey's site and build a 42,000 square foot commercial retail center. On November 28, 2006, the zoning commission approved the special permit application. In its approval, the zoning commission set forth, inter alia: (1) "the Commission finds that the proposed site development and uses of the property within the Middle Quarter District, including the relocation of an existing legal non-conforming use within the same portion of the lot as conditioned below conform to the applicable standards of the Regulations . . . The Developer shall obtain a Zoning Permit from the Zoning Enforcement Officer for each approved structure, including signage, and each use on the subject property." (Emphasis added.) (11/28/06 Zoning Commission Approval.) Said approval included the relocation and continuation of Corey's restaurant use within the shopping center.
The plaintiff EYRE, LLC alleges in this appeal that following receipt of the special permit and in reliance thereon, it purchased the Premises, hired contractors and began construction of the first building, known as Building A. The plaintiff EYRE, LLC further alleges that in reliance upon the special permit approval to continue the nonconforming Corey's restaurant use, it attempted to lease a portion of the Premises to Corey's, but when the parties could not reach agreement on the terms of a lease, it contracted with the plaintiff Woodbury Donuts, LLC for a Dunkin' Donuts to be a tenant for Building A.
The plaintiffs Woodbury Donuts and EYRE, LLC then filed an application for a permit with the zoning enforcement officer to locate a Dunkin' Donuts at the Premises in accordance with special permit section A-5, which provided that the developer shall obtain a zoning permit from the zoning enforcement officer for each proposed use on the subject property. The zoning enforcement officer referred the application for a permit to the town of Woodbury zoning commission. The zoning commission conducted hearings on four separate nights, October 9, 2008, October 14, 2008, October 28, 2008 and November 12, 2008, with respect to this application.
On November 12, 2008, the zoning commission denied the application and, in doing so, expressly directed that the zoning enforcement officer was not authorized to approve the Dunkin' Donuts special permit application. On November 18, 2008, the zoning enforcement officer denied the special permit application. In her letter of rejection, the zoning enforcement officer stated that the permit was denied because: "The proposed use is not permitted under Section 5.2 of the Woodbury Zoning Regulations, is significantly different in character from and is an impermissible expansion of the previous nonconforming use." (November 18, 2008, ZEO letter.)
The plaintiffs appealed the zoning enforcement officer's denial to the defendant town of Woodbury zoning board of appeals. On January 20, 2009, February 2, 2009, February 17, 2009, and March 2, 2009, the defendant conducted public hearings on the appeal.
On April 20, 2009, the defendant denied the appeal and stated the following reasons for the denial: "(a) the Applicants failed to demonstrate that the Zoning Enforcement Officer's decision was in error; (b) the zoning permit was properly denied under the analysis, reasoning and interpretations of the applicable regulations of the Zoning Enforcement Officer, namely that the proposed use is not permitted under Section 5.2 of the Woodbury Zoning Regulation, is significantly different in character and is an impermissible expansion of the previous use; and (c) under our de novo review, the zoning permit should not have issued for the additional reason based upon Regulation 1.4.4.2 which prohibits the relocation of a non-conforming use from one portion of a lot to another portion of a lot unless it complies with the use provisions of the zone to which it is relocated. The proposed use is proposed in another portion of the lot and is a use not permitted in the applicable zone. No variance of the subject regulation had been granted or obtained."
The plaintiffs contend that in making said decision, the defendant zoning board of appeals acted arbitrarily, illegally and in abuse of its discretion in one or more of the following respects: "(a) the approved special permit expressly authorized the relocation and continuation of the existing non-conforming use and the proposed use is the same fast food use as the existing nonconforming use defined by the Woodbury Zoning Regulations; (b) there is not substantial evidence in the record to support a finding that the proposed use is not the same use as the existing non-conforming "Fast-Food" use defined in the regulation; (c) the zoning board of appeals decision is not a correct interpretation of the Regulations and/or the zoning board of appeals misapplied its Regulations; (d) the proposed Dunkin' Donuts use is a fast food use as defined in the Woodbury zoning regulations. The zoning board of appeals decision fails to take into account that the zoning regulations provide a specific definition for a fast-food restaurant, the fast-food restaurant is a vested non-conforming use at this location and zoning commission expressly approved continuation of the fast-food restaurant; and (e) the zoning board of appeals acted beyond its authority to decide that the zoning commission should not have approved the special permit and site plan based on § 1.4.4.2 of the Regulations."
The plaintiffs have requested that this court sustain their appeal and declare that the defendant zoning board of appeal's decision is void and vacated, that the zoning enforcement officer's decision is reversed and that the zoning permit be issued.
III
DISCUSSION
A zoning board of appeals is endowed with liberal discretion and its actions are subject to review by the courts only to determine whether its actions were unreasonable, arbitrary or illegal. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269, 588 A.2d 1372 (1991). "The burden of proof is on the plaintiff to demonstrate that the [board] acted improperly." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). "On appeal, the trial court may not retry the facts. The court will review the record before the board to determine whether the board's decision was a reasonably exercised honest judgment supported by the record." (Internal quotation marks omitted.) DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 829-30, 624 A.2d 372 (1993). "The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings." (Internal quotation marks omitted.) Wing v. Zoning Board of Appeals, 61 Conn.App. 639, 644, 767 A.2d 131, cert. denied, 256 Conn. 908, 772 A.2d 602 (2001). "[T]he trial court, upon a judicial appeal from the board pursuant to General Statutes § 8-8, must focus on the decision of the board and the record before it, (sic) because it is that decision and record that are the subject of the appeal under § 8-8." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90-91, 626 A.2d 744 (1993).
"The action of the commission should be sustained if even one of the stated reasons is sufficient to support it." Primerica v. Planning Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989). "The evidence . . . to support any such reason must be substantial . . . This so-called substantial evidence rule is similar to the sufficiency of 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 . . . [I]t 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 . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable enough of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 540-41, 525 A.2d 940 (1987).
A. Aggrievement
General Statutes § 8-8 governs appeals taken from a decision of a board, such as a zoning board of appeals, and grants a right of appeal to the superior court by an aggrieved person. Aggrievement is a jurisdictional question involving standing and is a prerequisite to maintaining an appeal. See DiBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 373, 588 A.2d 244, cert. denied, CT Page 12238 219 Conn. 903, 593 A.2d 129 (1991). "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 391, 880 A.2d 865 (2005). Certain statutes contain provisions granting standing to appeal. General Statutes § 8-8(a)(1) provides in relevant part' that an "aggrieved person" includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.
The second way to establish aggrievement is by proving facts that satisfy the requirements of classical aggrievement. Adross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008). "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 394, 941 A.2d 868 (2008). "The determination of aggrievement presents a question of fact for the trial court and a plaintiff has the burden of proving that fact." Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978).
In the present case, the record and testimony reflect that the plaintiff EYRE, LLC is the owner of the property in question and that both plaintiffs applied to the zoning enforcement officer, zoning commission and then zoning board of appeals for a permit to operate a Dunkin' Donuts at the premises. As the owner of the property at issue, the plaintiff EYRE, LLC is aggrieved by the denial of its application and has standing to bring this appeal. As the applicant for a permit to operate a Dunkin' Donuts at the site, the plaintiff Woodbury Donuts, LLC, has a real personal and legal interest that has been specially and injuriously affected by the action of the zoning board of appeals and is aggrieved by the denial of its application. The court finds that the plaintiff Woodbury Donuts, LLC also has standing to bring this appeal.
B. Nonconforming Use
The plaintiffs first contend that the defendant zoning board of appeals acted arbitrarily, illegally and in abuse of its discretion by denying the permit in that: (a) the approved special permit expressly authorized the relocation and continuation of the existing nonconforming use, Corey's restaurant, and the proposed use is the same fast food use as the existing nonconforming use defined by the town of Woodbury zoning regulations and (b) there is not substantial evidence in the record to support a finding that the proposed use is not the same use as the existing nonconforming "Fast-Food" use defined in the regulation.
"A nonconformity is defined as a "use or structure prohibited by the zoning regulation, but is permitted because of its existence at the time that the regulations are adopted." Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988). [T]he rule concerning the continuance of a nonconforming use protects the "right" of a user to continue the same use of the property as it existed before the date of the adoption of the subject zoning regulations. Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981).
Nonconforming uses are protected by statute. Pursuant to General Statutes § 8-2, zoning regulations "shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations." The appropriate standard of review of a zoning agency's finding that a current use represents an expansion of a prior nonconforming use is whether that finding is supported by substantial evidence in the record. See Zachs v. Zoning Board of Appeals, 218 Conn. 324, 329-30, 589 A.2d 351 (1991). "Where a zoning [commission] has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994).
"Where nonconformity exists, it is a vested right which adheres to the land itself and the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use . . . A vested right, unless abandoned, to continue the nonconforming use is in the land . . . [T]he right to a nonconforming use is a property right and . . . any provision of a statute or ordinance which takes away that right in an unreasonable manner, or in a manner not grounded on the public welfare, is invalid. A lawfully established nonconforming use is a vested right and is entitled to constitutional protection." (Citation omitted; internal quotation marks omitted.) Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483-84, 408 A.2d 243 (1979); see also Taylor v. Zoning Board of Appeals, 65 Conn.App. 687, 694, 783 A.2d 526 (2001).
"It is a fundamental zoning precept in Connecticut . . . that zoning regulations cannot bar uses that existed when the regulations were adopted . . . It is readily apparent that the rule concerning the continuance of a nonconforming use protects the 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." (Emphasis in original; citation omitted; internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, supra, 65 Conn.App. 694. The town of Woodbury in its zoning regulations has defined "nonconforming use" as "the actual use of land, buildings or premises which is not a use permitted by these Regulations, but which lawfully existed prior to the effective date of these Regulations by amendment hereof or change in zoning classification which created the nonconformity."
The defendant zoning board of appeals argues in this appellate proceeding two different positions with respect to Corey's restaurant. First, the defendant argues that Corey's restaurant was a conforming use, not a nonconforming use. The court finds that position to be without merit for the following reasons. First, the town of Woodbury zoning commission, in its November 28, 2006 minutes, when granting the special permit to the plaintiff, specifically referred in the record to the relocation of an existing nonconforming use within the same portion of the lot. The existing nonconforming use referred to by the zoning commission was the Corey's restaurant use. Second, in the April 20, 2009, minutes of the defendant zoning board of appeals, the defendant stated "under our de novo review, the Zoning Permit should not have been issued for the additional reason based upon Regulation 1.4.4.2 which prohibits the relocation of a non-conforming use from one portion of the lot to another portion of the lot." The defendant also found "the proposed use is not permitted under Section 5.2 of the Woodbury Zoning Regulation, is significantly different in character and is an impermissible expansion of the previous use." (April 20, 2009 minutes.)
In the record, the defendant, the zoning commission and the zoning enforcement officer treated and called the prior Corey's restaurant usage on this site a nonconforming use and based their decisions on that premise. The record and the findings made by both the town of Woodbury zoning commission, zoning enforcement officer and the defendant zoning board of appeals do not support the defendant's current position that Corey's was a conforming use. Based on the record, the court finds that Corey's restaurant was a nonconforming use.
"Once a nonconforming use is established, the only way it can be lost is through abandonment. The sale of the property will not destroy the right to continue in the nonconforming use." Taylor v. Zoning Board of Appeals, supra, 65 Conn.App. 695. "General Statutes § 8-2 restricts the ability of the town to eliminate a nonconforming use through its zoning regulations." DiBlasi v. Zoning Board of Appeals, supra, 224 Conn. 831.
In defining the words "existing use," the Connecticut Supreme Court has held that it means "a utilization of the property so that it may be known in the neighborhood as being employed for a given purpose; that neither the extent nor the quantity nor the quality of the use which may be permitted to continue is prescribed by those words; and that it is only required that the use must have existed. The court is not generally required to speculate as to the number of acts or business transactions necessary to constitute an existing use." DiBlasi v. Zoning Board of Appeals, supra, 224 Conn. 831 citing Melody v. Zoning Board of Appeals, 158 Conn. 516, 520-21, 264 A.2d 572 (1969).
"In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in 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 DiBlasi, the Supreme Court affirmed the trial court's decision that the record did not support the zoning board of appeal's decision that the plaintiff's proposed lease to an adult probation office constituted an impermissible change in a nonconforming use of office space previously used by a utility company. DiBlasi v. Zoning Board of Appeals, supra, 224 Conn. 833. The applicant in Diblasi contended that the proposed lease of office space to the probation department was merely a continuation of the nonconforming use first established in 1957 by the utility. Id., 830. The board contended that the proposed lease represented a change in use and that the right to make such use of plaintiff's property was correctly denied by the board as being more intensive than the previous use of the property. Id. The Supreme Court held that "the testimony before the commission on which it relied to find a change of use noted the differences in usage of a business office as compared to a medical office. These differences relate to the hours of operation and number of visitors to the building." Id., 832. It held that the testimony of the land use administrator focused on intensity of the use of the property: "[w]hile a change in intensity may be a valid criterion for determining whether to allow a change in use, it is not an acceptable criterion for determining whether a proposed use is a change in use or a continuation of an existing use. We have previously held that a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use . . . [T]he use at the time of the adoption of zoning regulations is not frozen. The amount of business may be increased . . . and the nonconforming use may continue despite changes in ownership or tenancy." (Citations omitted; internal quotation marks omitted.) Id., 833. The Supreme Court held that the proposed lease was merely a continuation of the original nonconforming use and it was entitled to protection. Id.
The issue before the zoning enforcement officer and the defendant zoning board of appeals in this action was whether the lease to Dunkin' Donuts constituted a substantial change in a nonconforming use. The defendant argues that it properly denied the plaintiffs' appeal on the grounds that the proposed use in the application was for a Dunkin' Donuts franchise which was prohibited by zoning regulation 5.2.3, as the subject property was located in the Middle Quarter District, a special use district. Regulation 5.2.3 prohibits the sale of fast food, predominately take out. The defendant contends that the record reasonably supports a finding that the proposed Dunkin' Donuts fast food, predominantly take out, franchise use was a prohibited use. The plaintiffs do not disagree, but contend that they had a right to a Dunkin' Donuts use because of the special permit issued by the zoning commission on November 28, 2006. The defendant contends that this argument is without merit as the approval of the special permit specifically states that "the relocation of the existing legal non-conforming use within the same portion of the lot conforms as conditioned below, conform to the applicable standards of the Regulations." The defendant further contends that under approval condition A5, the permit states that "the developer shall obtain a Zoning Permit from the Zoning Enforcement Officer for each approved structure, including signage, and each use on the subject property." The defendant contends that there is nothing in the permit itself that provides any right to operate a Dunkin' Donuts franchise on the property and the permit states that any use on the property will be subject to having an application for special permit filed and approved by the zoning enforcement officer. The court finds that there is substantial evidence in the record to support the defendant's position that the special permit issued does not support the plaintiffs' claims.
The defendant next contends that the change in the type of food served, increased hours of operation from 5:00 a.m. to 9:00 p.m., instead of Corey's restaurant hours of 11:00 a.m. to 9:00 p.m., the Dunkin' Donuts food being predominantly take-out, increased visitors to the site, increased traffic and early morning deliveries, and increased operation from March through the first week of December to year round operations are all an impermissible expansion of the prior Corey's restaurant use and that the Dunikin' Donuts application for special permit was properly denied.
With respect to the defendant's argument that the type of food proposed to be served has changed, the defendant argues that Corey's did not serve breakfast, but lunch and dinner. The defendant also contends that Corey's served a casual lunch and dinner mainly of hot dogs and hamburgers and that Dunkin' Donuts would be primarily coffee with donuts and breakfast type sandwiches. The defendant contends that the Dunkin' Donuts proposed use is fast food, primarily take out and that Corey's was not primarily take out.
The plaintiffs do not disagree with this description of the types of foods served by the two entities, but argue that both types of food are fast food. In support of its position the plaintiff directs this court to the Woodbury Zoning Regulations regarding the treatment of "fast food." The plaintiff submits that in the Woodbury zoning regulations there is no distinction between one type of fast food restaurant and another. In fact the Regulations define fast food restaurants as: "a commercial enterprise whose principal business is the sale of prepared or rapidly prepared food sold directly to the customer in a ready to consume state packaged in disposable containers or wrapping, with two or more of the following features; menu boards, central ordering area, microphone or headsets, unavailability of beer, wine or alcoholic beverages, visible cooking facilities or unavailability of table service." (Woodbury Zoning Regulations p. A7.) In the record, the zoning officer's statement reports that the Corey's fast food use and the proposed Dunkin' Donuts fast food use both meet the regulations definition of fast food restaurant. Additionally, upon review of the transcripts for the hearings on this appeal, it is clear that the defendant also regarded the food sold at Corey's and Dunkin' Donuts to be "fast food." The court find that there is substantial support in the record that both establishments were restaurants that served fast food.
With respect to the issue of the Dunkin' Donuts food being primarily take out versus Corey's food which was primarily eaten on site, the plaintiffs argue that the Dunkin' Donuts customers will also be eating on site. The plaintiffs do not dispute that the hours of operation of the proposed Dunkin' Donuts will increase over the hours of operation of Corey's restaurant or that the proposed number of visitors will also increase.
As set forth in DiBlasi, "a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use." DiBlasi v. Zoning Board of Appeals, supra, 224 Conn. 833. Upon review of the evidence in the record, the court finds that there was not substantial evidence of a difference between the two entities' operations, namely the primary use of the premises as a restaurant providing fast food service to the general public. The court also finds that the defendant's arguments regarding a substantial change in the business as a result of hours of operation, visitors, traffic and food served are not supported by substantial evidence in the record and merely describe an intensification of the nonconforming Corey's restaurant business.
B. Seasonal Usage
The defendant next contends that it reasonably concluded that the Dunkin' Donuts proposed use was a substantially different use than the Corey's restaurant use in that Corey's restaurant use was seasonal and the Dunkin' Donuts proposed use is year round. In the record, the defendant zoning board of appeals contended that this was a change of use that required a variance, which the plaintiffs did not apply for. The record reflects that Thomas Briggs, the owner of the Premises, advised the zoning board of appeals that he was told by Gary Elias, the owner of Corey's, that in 1995 and 1996 Corey's restaurant operated year round with the exception of two weeks and from that point on operated from March through the first week of December due to the fact the building was not heated. (March 2, 2009 Minutes p. 1.) The record also reflects that Elias himself advised the zoning commission on February 14, 1995, that Corey's would be open from May to December. (March 2, 2009 Minutes p. 9.)
"While it is true that mere intensification of a nonconforming use is permissible so long as the nature of use is not substantially changed, it is generally recognized that the right of a landowner to continue the same kind of use to which the property was devoted on the critical date does not confer on him a right to subsequently change or add to that use a new and different one amounting to a drastic enlargement or extension of a prior existing use . . . To be illegal, an extension of a permitted use need not necessarily consist of additional uses of a different character. It may consist of uses of the same character carried on over a substantially additional period of the year . . . The legality of an extension of a nonconforming use is essentially a question of fact." (Citations omitted; internal quotation marks omitted.) Planning Zoning Commission v. Craft, 12 Conn.App. 90, 96-97, 529 A.2d 1328, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987).
A nonconforming use carried on over a substantially additional period of the year can be an illegal extension of a nonconforming use. Cummings v. Tripp, 204 Conn. 67, 86, 527 A.2d 1230 (1987) (change of use from seasonal occupancy to year round occupancy found to be an illegal extension of the nonconforming use); Weyls v. Zoning Board of Appeals, 161 Conn. 516, 520, 290 A.2d 350 (1971) (plaintiffs purchased land within a zoned area from persons who had used property only during summer months and plaintiffs occupied premises year round and court found that the plaintiffs' prolongation of a nonconforming use into a season in which such use had not existed at the time of passage of the zoning regulations was an impermissible extension of a nonconforming use); Beerwort v. Zoning Board of Appeals, 144 Conn. 731, 734, 137 A.2d 756 (1958) (plaintiff opened a trailer park on a seasonal basis and intended to have year round occupancy, such use did not materialize and town adopted zoning regulations limiting the use of the park to non-winter months. The court held that the extension of the park beyond the months which it had previously been used would be an illegal extension of a nonconforming use); See also Greene v. Zoning Board of Appeals of Stonington, Superior Court judicial district of New London, Docket No. CV 513622 (Teller, J., November 19, 1991) ( 5 Conn. L. Rptr. 266, 269) (the trial court held that increasing the period of time that a snack bar restaurant was used from eight months (March 1 through November 1) per year to year round, a fifty percent increase, was a substantial increase in use).
In Planning Zoning Commission v. Craft, supra, 12 Conn.App. 97, however, the Supreme Court agreed with the trial court's finding that a landowner's full-time year round use was in substantial conformity with her part-time, year round nonconforming use and that the year round use did not constitute an illegal enlargement of the nonconforming use. The court held: "[w]hile the change in use from two or so days a week to seven days a week, or from vacation time to full-time, may constitute an intensification of use, we do not find upon the facts of this case, that it compelled a factual finding by the trial court that such additional use was an illegal expansion or extension of a nonconforming use." Id., 100.
The plaintiffs do not dispute the seasonal usage by Corey's restaurant and do not dispute that Corey's restaurant closed when it was too cold as the restaurant was not heated. The plaintiffs, however, counter that the zoning commission's special permit specifically approved the relocation of the Corey's fast food use into a new building with heat and implicitly allowed the nonconforming fast food use to be year round. The plaintiffs also contend that since there is no mention of seasonal use in the special permit there was no seasonal use restriction. However, the record is clear that at the time that the special permit was issued in 2006, the representation was made to the zoning commission that Corey's and not some other fast food entity would be leasing space in the buildings.
The plaintiffs also claim that since there is no seasonal use restriction anywhere in the town of Woodbury zoning regulations, none should be applied to the plaintiffs. The plaintiff cites to the Seaside Properties v. Zoning Board of Appeals, 14 Conn.App. 638, 542 A.2d 746 (1988) and Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 408 A.2d 243 (1979), cases in support of their position that where the regulations do not distinguish between seasonal and year round use, there is no illegal expansion of a nonconforming use when year round use occurs.
In Seaside Properties v. Zoning Board of Appeals, supra, 14 Conn.App. 639, the plaintiffs purchased three nonconforming lots with seasonal homes. New regulations were enacted that made the lots and cottages nonconforming because of size and setback requirements. There were no regulations that distinguished seasonal from permanent dwellings. The court held: "Those cases holding that a change from the seasonal use of a structure to its year-round use is prohibited by applicable local zoning regulations . . . are not inconsistent with the decision we reach in this case. Those cases are distinguishable from the present case because each involved a nonconforming use of land, while this case involves a permitted use of land with respect to a building or lot having a condition of nonconformity . . . [ Petruzzi] recognizes that this distinction is genuine. In the present case, it is critical." (Citations omitted; internal quotation marks omitted.) Id., 641.
In the case at bar, both the use of the land and the building structure were nonconforming uses. The record that the defendant zoning board of appeals relied upon in denying the plaintiffs' appeal clearly set forth that Corey's restaurant was typically open from May through the first week of December and in some years March through the first week of December. The defendant reasonably could have found that the Dunkin' Donuts proposed year round use expanded that usage by between thirteen and twenty-one weeks.
The plaintiff is correct that there is no seasonal restriction in the town of Woodbury zoning regulations. However, the town of Woodbury zoning enforcement officer did not deny the special permit on "seasonal" grounds. In her November 18, 2008, letter of rejection, the zoning enforcement officer states that the permit is denied because: "The proposed use is not permitted under Section 5.2 of the Woodbury Zoning Regulations, is significantly different in character from and is an impermissible expansion of the previous nonconforming use." (Record E-3.) In the record, the defendant zoning board of appeals extensively discusses the fact that the Dunkin' Donuts proposed usage was a significant expansion of the time period which Corey's restaurant operated. The record was supported by substantial evidence that the period of time that Dunkin' Donuts proposed to be operational for business was a substantial increase in the period of time that Corey's restaurant was being used.
The issue before this court is whether the plaintiffs' application for a permit to operate a Dunkin' Donuts was properly rejected because the proposed use was an impermissible expansion of a nonconforming use by the substantial extension and expansion of the time period in which the nonconforming restaurant Corey's was open for business. The court finds that on the aforementioned grounds there is substantial evidence in the record to support the defendant's upholding of the zoning enforcement officer's denial of the permit on the grounds that the Dunkin' Donuts proposed use was significantly different in character from and an impermissible expansion of the previous nonconforming use. Accordingly, the court finds that the defendant properly denied the plaintiffs' appeal on these grounds.
C. Regulation 1.4.4.2 Moving Prior Nonconforming Use
The final ground upon which the defendant zoning board of appeals has based its denial of the permit is a ground raised de novo by the board that the Corey's nonconforming use was moved to another portion of the lot instead of the same portion of the lot in violation of the town of Woodbury Regulation 1.4.4.2. The plaintiffs contend that the Corey's use was never confined to any particular portion of the site and that it was spread out throughout the entire site. There is no dispute that Corey's included a restaurant, driving range and area for exhibition of antique cars. The plaintiffs also contend that at the February 2, 2009, zoning board of appeals public hearing, the zoning commission chairman and the zoning officer defended the relocation of the nonconforming use, and that the "total square footage of the nonconforming use was reduced by 50%, the set back nonconformity of the building was eliminated and the new building was on the same portion of the lot." In the transcript chairman Overton of the zoning commission stated "I think the point was pretty fairly argued that . . . Corey's was like scatter shot. I mean . . . the eating of the food could take place on the driving range . . . if you took the 1,500 square feet, can anybody in this room say that none of Corey's never took place on the 1,500 square feet? You can't do that." (2/2/09 Transcript pp. 73.)
Based upon its review of the record, the court finds that this finding made by the defendant zoning board of appeals is not supported by substantial evidence in the record.
D. Municipal Estoppel
The plaintiffs finally argue that the defendant is equitably estopped from denying the plaintiffs' permit application for a Dunkin' Donuts use because of the November 28, 2006, special permit. The plaintiffs claim that the owner obtained the special permit and that permit expressly authorized the continuation of "the non-conforming fast food use." The plaintiffs claim the owner thereafter purchased the property, paid for architectural plans, obtained a building permit, hired contractors and substantially completed construction of the new building that was the subject of the special permit. The plaintiffs further claim that the zoning enforcement officer and zoning board of appeals then "changed their interpretation of the town of Woodbury Regulations as to the fast food restaurant non-conforming use thereby, in effect, revoking the right to continue the fast food use." Id.
"The courts have consistently held that the general rule applicable to the invocation of the doctrine of estoppel against municipal corporations should be limited and invoked (1) only with great caution; (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive to enforce the zoning or building regulations." Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 354, 365 A.2d 1093 (1976). "There are two essential elements to an estoppel, the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." (Internal quotation marks omitted.) Id., 353.
It is undisputed in this action that the plaintiffs demolished Corey's and proposed to build and are in the process of building a five-building shopping center on the Premises. The plaintiffs argue that the new buildings have no restrictions on seasonal use. While that may be true, there is a restriction on fast food use in the Middle Quarter district where the buildings are situated. The only way to have a fast food restaurant in any of the five buildings the plaintiffs propose to build is for that restaurant to be a continuation of the nonconforming Corey's restaurant use. As set forth above, the proposed usage must not be a significant impermissible expansion of that nonconforming use.
The court finds that the plaintiff reasonably relied upon the special permit and actions taken by the zoning commission in demolishing the old Corey's restaurant and building a new building to house Corey's restaurant. It is clear that the plaintiff was not given license to put any entity into the five buildings on the Premises, but knowingly built such buildings with a known restriction. The zoning enforcement officer and zoning board of appeals found that the proposed Dunkin' Donuts use was an impermissible expansion of the original Corey's restaurant use. Thus, while the court agrees that the defendant is estopped from taking any action to preclude the nonconforming Corey's restaurant use on the Premises, the court finds in the defendant's favor on plaintiffs' estoppel claim with respect to the current application.
III
CONCLUSION
The court finds that on the basis of the record there was substantial evidence presented to the defendant zoning board of appeals to support its denial of the plaintiffs' appeal on at least one of the grounds it cited. Based on the foregoing, the plaintiffs' appeal of the defendant zoning board of appeal's decision is dismissed and the defendant's decision is affirmed. While the court agrees that the defendant is estopped from taking any action to preclude the nonconforming Corey's restaurant use on the Premises, the court finds in the defendant's favor on plaintiffs' estoppel claim with respect to the current application.
BY THE COURT