Summary
In Seaside Properties v. Zoning Board of Appeals, supra, 14 Conn.App. 639, the plaintiffs purchased three nonconforming lots with seasonal homes.
Summary of this case from Woodbury Donuts v. Woodbury Zng. Brd.Opinion
(5940)
The plaintiffs, who, in 1985, acquired three Fairfield properties which were nonconforming with respect to the applicable lot size and setback requirements of the zoning regulations and which had been used prior to 1985 on a seasonal basis, appealed to the Superior Court from the decision of the named defendant zoning board of appeals affirming the town zoning enforcement officer's determination that under the local zoning ordinances the subject properties could be used only on a seasonal basis. The trial court rendered judgment sustaining the plaintiffs' appeal and the named defendant appealed to this court. Held that the trial court did not err in sustaining the plaintiff's appeal; the town zoning regulations, which did not distinguish between seasonal dwellings and year-round dwellings, did not prohibit the plaintiffs from changing from one permitted use — seasonal occupancy — to another permitted use — year-round occupancy — of buildings having a condition of legal nonconformity.
Argued March 1, 1988
Decision released June 14, 1988
Appeal from a decision of the named defendant upholding an order requiring the plaintiffs to cease and desist from using certain of their real property on a year-round basis, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Berdon, J.; judgment sustaining the appeal from which the named defendant, on the granting of certification, appealed to this court. No error.
Roy H. Ervin, town attorney, with whom was Roy H. Ervin, Jr., for the appellant. (defendant).
James A. Miller, Jr., with whom was Charles A. B. Moore, for the appellees (plaintiffs).
The named defendant appeals from the judgment of the trial court sustaining the plaintiffs' challenge to the issuance of a cease and desist order limiting the use of their premises. The issue before us is whether year-round use of nonconforming summer cottages is prohibited by 2.5.3 of the zoning regulations of the town of Fairfield. We hold that it is not, and we find no error.
The owners of property within one hundred feet of the subject properties intervened as defendants in the trial court. They have not appealed to this court.
Section 2.5.3 of the Zoning regulations of the town of Fairfield provides: "No nonconforming use of land, buildings and other structures shall be changed to another use unless such new use is substantially the same in nature and purpose as the original nonconforming use or is a conforming use."
The facts are not in dispute. The plaintiffs own three separate properties located on Long Island Sound in Fairfield. The cottages situated on the respective properties have always been used as single family dwellings, a permitted use under the town's zoning regulations. The enactment of those zoning regulations, however, rendered the lot and the cottages which then existed on the properties nonconforming because of the lot size and setback requirements. At the time they became nonconforming, the cottages were used during the summer months and were inadequate for year-round occupancy.
The plaintiffs purchased the properties in 1985 and utilized the houses thereon as single family dwellings on a year-round basis. The Fairfield zoning regulations do not distinguish between seasonal dwellings and year-round dwellings.
In 1986, the town's zoning enforcement officer issued cease and desist orders to the plaintiffs, based on a violation of 2.5.3 of the regulations. The plaintiffs appealed to the named defendant, which upheld the orders of the zoning enforcement officer. The plaintiffs appealed to the Superior Court. The court sustained the plaintiffs' appeal. We granted certification for appeal to this court.
We conclude that Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 408 A.2d 243 (1979), controls this case. In Petruzzi, the plaintiff proposed to change a structure used as a church to a single family detached residence, both permitted uses under the zoning regulations of the town of Oxford. The lot on which the church existed, however, did not comply with the area, setback and frontage requirements of the town's zoning regulations. The trial court concluded that "the proposed use was in violation of article 2, 5, of the Oxford zoning regulations, which provides that one nonconforming use may not be substituted for another." Id., 481. Our Supreme Court, "`recogniz[ing] that the distinction between a nonconforming building or structure and a nonconforming use of land is genuine and maybe critical'"; id., 481 n. 2, quoting 1 R. Anderson, American Law of Zoning (2d Ed.) 6.01, p. 355; concluded that because the change in use was from one permitted use to another permitted use, and because "there [was] nothing in Oxford's zoning regulations which prohibit[ed] a change from one permitted use to another permitted use, with respect to a building or lot having a condition of legal nonconformity"; id., 481; article 2, 5 of the zoning regulations had no applicability to the situation. Id., 482.
We note that our Supreme Court has not yet had an opportunity to revisit this conclusion of Petruzzi v. Zoning Board of Appeals, supra, in another case. At least one commentator has read Petruzzi broadly, concluding that "if the new activities are permissible under the applicable zoning regulations, the Petruzzi decision implies that they must be permitted, even if the structure continues to violate area and bulk regulations." T. Tondro, Connecticut Land Use Regulation (1983 Supp.), p. 32. We agree that the rule laid down in Petruzzi does not suggest any limitations which would prevent its application to the present case.
In the present case, the change was only in the nature of the permitted use of a nonconforming building; as in Petruzzi, no nonconforming use of the land is involved. As in Petruzzi, furthermore, there is nothing in Fairfield's regulations "which prohibits a change from one permitted use [of a building] to another permitted use, with respect to a building or lot having a condition of legal nonconformity." Id., 481. Indeed, 2.5.3 of the Fairfield regulations specifically permits a "nonconforming use of land, buildings and other structures [to] be changed to another use [if] such new use . . . is a conforming use." See footnote 2, supra. As in Petruzzi, the non-conforming building here was not changed in any way; only the use of the building has been altered from one permitted use to another permitted use. See Singh Sukthankar v. Hearing Board of Radnor Township, 2 Pa. Commw. 489, 280 A.2d 467 (1971), cited with approval in Petruzzi v. Zoning Board of Appeals, Supra, 481. Under these circumstances, we conclude that Petruzzi controls, and that 2.5.3 of the Fairfield zoning regulations does not prohibit a change from seasonal to year-round use of the plaintiff's houses.
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; see Cummings v. Tripp, 204 Conn. 67, 527 A.2d 230 (1987); Weyls v. Zoning Board of Appeals, 161 Conn. 516, 290 A.2d 350 (1971); Beerwort v. Zoning Board of Appeals, 144 Conn. 731, 137 A.2d 756 (1958); 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 v. Zoning Board of Appeals, supra, recognizes that this distinction is genuine. In the present case, it is critical. See id., 481 n. 2; 1 R. Anderson, American Law of Zoning (3d Ed.) 6.01, p. 448.