Opinion
No. CV 05 4001820 S
January 10, 2007
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, the Kement Family Limited Partnership and Isabella Kement, appeal from the decision of the defendant, the East Windsor zoning board of appeals (ZBA), upholding a denial of a certificate of zoning compliance by the East Windsor zoning enforcement officer. The zoning enforcement officer (ZEO) had denied the plaintiffs' request, finding that the plaintiffs had abandoned their preexisting nonconforming use of the landfill site located along North Road in East Windsor on an area of land zoned A-1 agricultural.
The plaintiffs' "[l]and [f]ill [a]rea" "on the northerly side of North Road, Broad Brook, Connecticut" was recognized as a nonconforming use by the East Windsor ZBA in 1976. (Return of Record [ROR] Exhibit 11, Item R-8; Item R-9.)
II FACTUAL BACKGROUND
On August 4, 2004, the plaintiffs applied for a certificate of zoning compliance from the ZEO, claiming that the entire North Road parcel had retained its status as a nonconforming solid waste disposal site. (Return of Record [ROR] Exhibit 11, Item R-1.) On October 7, 2004, the ZEO issued a written response denying the plaintiffs' request, finding that the plaintiffs' voluntary cooperation with the department of environmental protection had resulted in an abandonment of the property's status as a prior nonconforming use upon closure of the landfill in 1983. (ROR, Exhibit 11, Item R-21.) On October 19, 2004, the plaintiffs filed an appeal with the ZBA challenging the validity of the ZEO's decision. (ROR, Exhibit 11, Item R-23.) Thereafter, on January 3, 2005, the ZBA, after providing the required notice, conducted a public hearing on the plaintiffs' application; (ROR, Exhibit 1, p. 1; Exhibit 5); which was continued to February 7, 2005. (ROR, Exhibit 2, p. 1; Exhibit 6.) At these hearings, various individuals testified concerning their positions on the application. At the conclusion of the February 7 hearing, the ZBA upheld the ZEO's decision, unanimously voting to deny the plaintiffs' appeal (ROR, Exhibit 2, p. 13; Exhibit 7.) Subsequently, the plaintiffs appealed from the ZBA's decision to the Superior Court. On October 25, 2006, this court conducted the trial in this matter.
The plaintiffs' purpose for seeking the certificate of zoning compliance was to obtain evidence of local zoning compliance to satisfy General Statutes § 22a-208b, which requires an applicant seeking a permit from the department of environmental protection for the construction of a solid waste disposal facility to provide evidence of local zoning compliance. (ROR, Exhibit 11, Item R-1.)
III JURISDICTION
General Statutes § 8-8 governs an appeal from a zoning board of appeals to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and a plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
The plaintiffs allege that they are both statutorily and classically aggrieved in the complaint. At trial, the attorney for the plaintiffs submitted into evidence a quitclaim deed evidencing the Kement Family Limited Partnership's ownership interest in four parcels of land on North Road, Village of Broad Brook, East Windsor, Connecticut consisting of "[f]irst [p]iece," a twenty-five-acre parcel, "[s]econd [p]iece," a four-acre parcel, "[t]hird [p]iece," a forty-three-acre parcel and "[f]ourth [p]iece," a ten-acre parcel. (Plaintiff's Exhibit 1.) During the trial on October 25, 2006 the parties also stipulated that the plaintiffs at all relevant times were and are the owners of the property that is the subject of this appeal. Therefore, the court finds that the plaintiffs are aggrieved and are entitled to bring this appeal.
In the complaint, the plaintiffs allege that they "are statutorily aggrieved by the decision of the [ZBA] in that they are the owners of the premises which is the subject of this matter and were the applicants before the board"; (Appeal, ¶ 28); and that they "are classically aggrieved in that they have a specific legal interest in the subject matter of the decision of the [ZBA] which interest has been specially and injuriously affected. The interest of the Plaintiffs arises out of their ownership of the premises. The decision of the [ZBA] has specially and injuriously affected them in that, under the existing zoning regulations, solid waste facilities are not permitted in the zone in which the premises lies. Accordingly, unless the premises retains its status as a non-conforming solid waste use, the plaintiffs will be unable to put the premises to their intended use thereby causing great financial harm to them and adversely affecting the value of their property." (Appeal, ¶ 29.)
B Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f)(2) further provides that "[for any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 . . ." General Statutes § 52-57(b) provides that "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
The ZBA's decision was published in the Journal Inquirer on February 10, 2005. (Appeal, ¶ 27; Answer, ¶ 1.) The plaintiffs commenced their appeal on February 22, 2005 by service of process upon the East Windsor town clerk by serving the original writ, summons and summons and appeal. (Marshal's Return.) As this appeal was commenced by service of process within fifteen days from the date of publication, the court finds that it is timely and that service was proper.
IV SCOPE OF REVIEW
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by . . . [a zoning board of appeals] must be upheld by the trial court if they are reasonably supported by the record . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61. "It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993).
"[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993). ['[T]he proper focus of a reviewing court is on the decision of the zoning agency and, with regard to its factual determinations, on the evidence before it that supports, rather than contradicts, its decision." (Internal quotation marks omitted.) Caserta v. Zoning Board of Appeals, 41 Conn.App. 77, 79-80 n. 2, 674 A.2d 855 (1996). "The conclusion that this scope of review applies upon judicial review is not undermined by the fact that . . . the zoning agency was a zoning board of appeals reviewing the decision of a zoning enforcement officer in an appeal from that decision pursuant to [the General Statutes] . . . [I]t is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an appeal de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court." (Internal quotation marks omitted.) Caserta v. Zoning Board of Appeals, supra, 226 Conn. 87-89.
A review of the record reveals that the ZBA did not formally state its reasons for upholding the ZEO's cease and desist order. "Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 454. "The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action . . . It does not apply to mere utterances of individual members of the agency." (Internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 439-40 n. 6, 908 A.2d 1049 (2006). Therefore, although the statements of individual board members are contained in the record, the court must search the entire record to determine whether substantial evidence supports the ZBA's decision to uphold the ZEO's order.
V DISCUSSION
The plaintiffs appeal on the grounds that the ZBA acted arbitrarily, illegally and in abuse of its discretion in the following manner: (a) "[t]he decision of the Board was not supported by substantial evidence;" (b) "[t]he Board gave great deference to the decision of the Zoning Enforcement Officer when the law provided no such deference was appropriate;" (c) "[t]he Board prejudged and predetermined the application;" (d) "[t]he Board held the [p]laintiffs to an improper burden;" and (e) "[t]he decision of the Board amounts to an inverse condemnation of the [p]laintiffs' property in violation of Article I Section II of the Connecticut Constitution." (Appeal, ¶ 30.)
Although the plaintiffs alleged several grounds in its complaint, they have not briefed all of these grounds. "Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1070, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996). Accordingly, any grounds asserted in the plaintiffs' appeal which are not briefed are deemed abandoned and will not be addressed by the court.
In its memorandum of law, the plaintiffs contend that the ZBA incorrectly determined that its preexisting nonconforming use was abandoned after the plaintiffs entered into a 1983 stipulated judgment providing for the closure of the landfill. The plaintiffs argue that neither the closure of the landfill nor the role played by the plaintiffs in actively participating in the closure activities establish that they intended to abandon the nonconforming use of the property.
A Whether Substantial Evidence Exists in the Record to Demonstrate that the Plaintiffs Abandoned the Preexisting Nonconforming Use of the Subject PropertyIn their brief, the plaintiffs first argue that the ZBA's decision, which upheld the ZEO's determination that the plaintiffs' use of the nonconforming landfill had been abandoned, was not supported by substantial evidence. The plaintiffs maintain that the "closure" of the landfill amounts to a mere "suspension" of use, and contend that Skip Kement's testimony at the January 3, 2005 and February 7, 2005 hearings, the family's inquiries regarding the possibility of continued use of the subject property as a landfill and the ongoing landfill closure operations evidence an uncontroverted manifest expression of intent to continue using the property as a nonconforming landfill. The plaintiffs further maintain that their "decade-long court battle" with the department of environmental protection regarding the closure of the landfill cannot be construed as voluntary in that they were subject to large fines if they continued to operate the landfill.
The defendant counters that the record contains substantial evidence supporting the ZBA's decision to uphold the decision of the ZEO, who refused to issue a certificate of zoning compliance because the plaintiffs intended to abandon the property's use as a landfill. The defendant first points to the stipulated judgment entered into between the plaintiffs and the DEP that provided for the closure of the landfill. The defendant also contends that the plaintiffs' voluntary cooperation with the department of environmental protection, which included the subsequent "hiring [of] the required engineers and compl[iance] with the various departmental and court orders in properly closing the landfill pursuant to regulatory requirements" further demonstrates a voluntary intent to abandon. The defendant further argues that although Skip Kement testified that his family's intentions were to continue using the site as a landfill, and notwithstanding the Kement's inquires regarding the possible use of other portions of the site for disposal activities, the record reflects "no effort by the Kements from 1983 to 2004 to obtain any local or state permits to restore the solid waste disposal use to the site." Further, the defendant claims that a 1993 report to the Superior Court prepared by the plaintiffs' attorney indicating that the landfill "site ha[d] been dormant since 1983 and [would] remain dormant" provides further factual support for its conclusion.
"A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted . . . For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted." (Emphasis in original; internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 165 n. 5, 855 A.2d 1044 (2004). "Nonconforming uses are protected by the express language of General Statutes § 8-2 . . . To be sure, [i]t is the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate . . . While [t]he accepted policy of zoning . . . is to prevent the extension of nonconforming uses . . . legally existing nonconforming uses are property rights vested in the land . . . [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 zoning regulations." (Citation omitted; internal quotation marks omitted.) Campion v. Board of Aldermen, 85 Conn.App. 820, 842-43, 859 A.2d 586 (2004), rev'd on other grounds, 278 Conn. 500, 899 A.2d 542 (2006).
"Once a nonconforming use is established, the only way it can be lost is through abandonment . . . The issue of a specific intent to relinquish a nonconforming use presents a question for the trier of fact." (Citation omitted; internal quotation marks omitted.) Campion v. Board of Aldermen, supra, 85 Conn.App. 842-43. "Abandonment is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances . . . To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 230 (1987). Abandonment must be "evidenced by overt acts or failure to act sufficient to constitute proof of that intent." Dubitzky v. Liquor Control Commission, 160 Conn. 120, 125, 273 A.2d 876 (1970). "Because the conclusion as to the intention of the landowner is an inference of fact, it is not reviewable unless it was one which the trier could not reasonably make." (Internal quotation marks omitted.) Cummings v. Tripp, supra, 93.
General Statutes § 8-2 provides, in relevant part, that zoning "regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use."
Given the considerable confusion apparent in the record regarding the legal effect of the discontinuation of a nonconforming use for a period of time, a brief review of the law is appropriate. The Supreme Court has determined that a nonconforming use is not abandoned "by a mere temporary suspension for a reasonable time, for reasons beyond the owner's control, where there exists a manifested intention on the part of the owner to resume the nonconforming use as soon as . . . [possible]." State ex rel. Eramo v. Payne, 127 Conn. 239, 241-42, 16 A.2d 286 (1940). The passage of time, however, although "not an essential element of abandonment . . . is evidential, especially in connection with facts evidencing such intention." Id., 241. To summarize, the law provides that operational suspension of a nonconforming use for a substantial period of time, when accompanied by evidence in the form of an overt action or failure to act relating to the use of the property, reasonably supports an inference of an intent to abandon. See id.; see also Dubitzky v. Liquor Control Commission, supra, 125 Conn. 125; Palmieri Cove Associates v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 04 0491317 (March 16, 2006, Corradino, J.).
For example, after hearing testimony, receiving evidence and obtaining a briefing on the law of abandonment by the town attorney, one ZBA member proclaimed, "[w]ell, it's bad enough when we have, unfortunately, when one lawyer comes. Now, now we got three and it's more confusing than ever." (ROR, Exhibit 1, p. 11.)
In the present case, the record reveals an adequate basis to support a finding by the ZBA that the plaintiffs intended to abandon the preexisting nonconforming use of the property. Although, as the plaintiffs argue, the 1983 closure of the landfill may not have been truly voluntary in that the plaintiffs were indeed subjected to fines for noncompliance with the closure plan; (ROR, Exhibit 11, Item R-16); the record indicates that the plaintiffs were provided with the opportunity to apply for permits that would have allowed them to continue solid waste disposal activities on the North Road property. (ROR, Exhibit 11, Item A-2, ¶ 7; Exhibit 11, Item R-15.) Indeed, the 1983 stipulated judgment recognized that any future inquires should have been "pursued independently of [the] judgment." (ROR, Exhibit 11, Item A-2, ¶ 7.) In response to the plaintiffs' subsequent inquiries, the department of environmental protection invited the Kements to apply for these permits. (ROR, Exhibit 11, Item R-15.) The record reveals, however, that from 1983 to 2004 the plaintiffs neglected to take any affirmative steps towards realizing the possibility of continued disposal activities on the site. (ROR, Exhibit 11, Item R-16; Exhibit 1, p. 15 and 22.) Although Skip Kement testified that his family intended to continue using the property for disposal activities; (ROR, Exhibit 1, pp. 13-16); the considerable passage of time during which the plaintiffs declined to pursue the requisite regulatory permits following the 1983 stipulated judgment reasonably evinces a contrary intention. Based on the evidence contained in the record, the ZBA could reasonably have concluded that the record provided no explanation for the plaintiffs' failure to apply for a permit within a reasonable period of time following the 1983 judgment. (ROR, Exhibit 1, p. 15.) In light of this manifest failure to act, which, when considered in conjunction with the twenty-year period of non-use for lawful disposal activities, the ZBA could reasonably have inferred that the plaintiff's continued cooperation with the closure proceedings evidenced an intention to abandon the preexisting nonconforming use.
The ZBA may reasonably have determined that substantial evidence in the record demonstrates that the preexisting nonconforming use of the plaintiffs' property, as it existed at the time of the enactment of the East Windsor zoning regulations, was limited to the portion of land known as the "Kement Park Sanitary Landfill," as delineated by the "Final Closure Plan for the Kement Park Sanitary Landfill, Route 140, East Windsor Connecticut." (ROR, Exhibit 11, Item R-11.) An examination of the record reveals that the area of the plaintiffs' property known as the "Kement Park Sanitary Landfill" was limited to eleven acres of the parcel at the time of closure. (ROR, Exhibit 11, Item R-11, ¶ 2.1.) In the December 2, 1983 motion for stipulated judgment, which was granted by the Superior Court, O'Neill, J., the plaintiffs admitted that the then existing operations at the landfill site were limited to the area of the parcel known as the "Kement Park Sanitary Landfill." (ROR, Exhibit 11, Item A-2, ¶ 5.) "An evidential admission is subject to explanation by the party making it so that the trier may properly evaluate it." (Internal quotation marks omitted.) Willow Funding Co., L.P. v. Grencom Associates, 246 Conn. 615, 621, 717 A.2d 1211 (1998). An evidential admission, "while relevant as proof of the matter stated . . . [is] not conclusive." (Citation omitted.) Remkiewicz v. Remkiewicz, 180 Conn. 114, 118, 429 A.2d 833 (1980). Thus, the ZBA may reasonably have concluded that the plaintiffs admitted that the scope of the nonconforming use was limited to the eleven-acre portion of their property known as the "Kement Park Sanitary Landfill." This conclusion is bolstered by additional statements contained in the stipulated judgment which recognized that any change in the then existing conditions would be considered as an "expansion" of, or, alternatively, the "establishment of a new landfill." (Emphasis added.) (ROR, Exhibit 11, Item A-2, ¶ 7.)
The court notes that although the plaintiffs have attempted to characterize their post-closure affairs with the department of environmental protection in the Superior Court as a "decade-long court battle," a careful review of the record indicates that ZBA may reasonably have concluded that the continued court involvement resulted from a combination of both the ongoing nature of landfill closure activities and the plaintiffs' own dilatory conduct in satisfying mandated closure deadlines. (ROR, Exhibit 11, Item R-13; R-15; R-16; R-18.)
The plaintiffs maintain that the facts of the present case are similar to those presented to the Superior Court in Davis v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV 92 0291298 (January 29, 1993, Pittman, J.) [ 8 Conn. L. Rptr. 753]. The court disagrees. In Davis, in 1991, a property owner applied for, and subsequently received, a certificate of zoning compliance for the use of his residentially zoned property as a hotel and restaurant. The hotel had been in business at the time zoning regulations were enacted in 1926 until sometime in 1966 when the owner suspended operation of the nonconforming hotel after he began to experience financial hardship. After the zoning board of appeals approved the issuance of the certificate, adjoining property owners filed an appeal with the Superior Court contending that the landowner had abandoned the nonconforming use upon closure of the hotel in 1966. The court reviewed the record, determining that substantial evidence supported the board's conclusion that the owner intended to resume operations, noting that the owner's intention to recommence operation was bolstered by his overt actions, which included upgrading hardware, purchasing additional furniture and actively collaborating with a developer to arrange for the sale, renovation and reopening of the hotel. In the present case, unlike the property owner in Davis, the record lacks any evidence indicating that the plaintiffs took any measures from 1983 to 2004 that would have facilitated the continued use of the property for disposal activities.
B Whether Substantial Evidence Exists in the Record that Would Have Enabled the ZBA to Conclude that the Plaintiffs' Proposed Bulky Waste Facility Would Constitute an Illegal Expansion of the Preexisting Nonconforming UseIn their brief, as an alternative ground supporting the ZBA's decision, the defendant argues that even if the plaintiffs had not abandoned the use of the nonconforming landfill, the proposed bulky waste facility would amount to an illegal horizontal expansion of the nonconforming landfill in violation of the law of nonconforming uses and section 9A.2 of the East Windsor zoning regulations. The defendant contends that before the plaintiffs could lawfully operate a bulky waste facility on another portion of the site, under the East Windsor zoning regulations, the plaintiffs would first have to acquire a special use permit pursuant to section 9A.2 for the horizontal expansion of the nonconforming use.
Section 9A.2 provides: "A solid waste facility which was lawfully in existence prior to the adoption of these regulations may continue to operate, provided it complies with all local, state and federal laws, ordinances and regulations. However, no such use may be extended horizontally beyond the physical limits of the existing facility without first receiving a Special Use Permit under these regulations. It is the intent of these Regulations that non-conforming solid waste facilities be eliminated in accordance with Section 8-2 of the General Statutes. Accordingly, such a non-conforming use shall terminate and may not be resumed without a Special Use Permit, if actual non-use of the land as a solid waste facility exists for one year, regardless of the intent of the owners."
"It is a general principle in zoning that nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase." Salerni v. Scheuy, 140 Conn. 566, 570, 102 A.2d 528 (1954). "[General Statutes] § 8-2 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; internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 240, 662 A.2d 1179 (1995). "[W]hile 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 the prior existing use." (Internal quotation marks omitted.) Planning Zoning Commission v. Craft, 12 Conn.App. 90, 96, 529 A.2d 1328, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987). This principle is reflected in sections 2.2 and 2.3.2 of the East Windsor zoning regulations.
"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 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, 218 Conn. 324, 332, 589 A.2d 351 (1991). Section 9A.2 of the zoning regulations provides that a nonconforming solid waste facility "may [not] be extended horizontally beyond the physical limits of the existing facility without first receiving a Special Use Permit . . ."
Based upon substantial evidence contained in the record, in denying the plaintiffs' request for a certificate of zoning compliance, the ZBA could reasonably have found that the proposed bulky waste facility would represent a horizontal expansion of the nonconforming use that required a special use permit. Given the fact that the plaintiffs proposed to construct the bulky waste facility on an area of the parcel that was adjacent to the existing landfill site, it would have been reasonable for the ZBA to have concluded that the issuance of a certificate of zoning compliance was inappropriate, as the proposed bulky waste facility may reasonably have been determined to represent a horizontal expansion requiring a special use permit under the East Windsor zoning regulations. (ROR, Exhibit 11, Item A-5.)
Even if, as the plaintiffs appear to argue, the area of the property where intermittent activities occurred, including the salvage operations and the storage of small amounts of the plaintiffs' own construction debris, was determined to have been an independent nonconforming use, the question would become whether the use of the same property to support a new commercial undertaking involving the operation of a bulky waste facility amounts to an enlargement that would change the character of the nonconforming use. "A change in the character of a use . . . constitute[s] an unlawful extension of the prior use." Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 716, 519 A.2d 49 (1986). Based on the evidence presented, the ZBA could reasonably have found that the proposed bulky waste facility would constitute an illegal expansion of the use in violation of section 2.3.2 of the East Windsor Zoning Regulations. (ROR, Exhibit 11, Item A-5.)
VI CONCLUSION
For the foregoing reasons, the court dismisses the plaintiffs' appeal.