CRABTREE REALTY CO. v. Planning & Zoning Commission

• Decision Date: 20 April 2004
• Docket Number: (AC 23709)
• Citation: 845 A.2d 447,82 Conn. App. 559
• Court: Connecticut Court of Appeals
• Parties: CRABTREE REALTY COMPANY v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WESTPORT CRABTREE REALTY COMPANY v. ZONING BOARD OF APPEALS OF THE TOWN OF WESTPORT

82 Conn. App. 559

845 A.2d 447

CRABTREE REALTY COMPANY v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WESTPORT

CRABTREE REALTY COMPANY v. ZONING BOARD OF APPEALS OF THE TOWN OF WESTPORT

(AC 23709)

Court of Appeals of Connecticut.

Argued February 19, 2004.

Officially released April 20, 2004.

Dranginis, Bishop and Peters, JS.

John F. Fallon, for the appellant (plaintiff).

Patricia C. Sullivan, with whom, on the brief, was Barbara M. Schellenberg, for the appellees (defendants).

Opinion

PETERS, J.

Pursuant to General Statutes § 8-3 (g), a local zoning commission may deny a site plan application only if the proposed plan "fails to comply with requirements already set forth in [applicable zoning or inland wetlands] regulations."¹ In this case, a commercial landowner was denied approval of plans to construct and to access new off-street parking spaces on adjacent commercial property. In its appeal contesting these denials, the landowner argues that its proposals would neither have enlarged a preexisting nonconforming use nor have violated zoning regulations for residential zones. Like the trial court, we find these arguments unpersuasive. Accordingly, we affirm the judgments of the court dismissing the landowner's appeals.²

The plaintiff, Crabtree Realty Company, owns property located at 777 Post Road East in Westport and leases contiguous property located at 785 Post Road East. It appealed to the trial court from two decisions of the defendant planning and zoning commission of the town of Westport (commission) denying its site plan applications (1) to use part of newly leased property at 785 Post Road East for twenty additional parking spaces for its employees and customers and (2) to construct an access road between the two properties. The commission defended its decisions.

The trial court, agreeing with the commission, dismissed the plaintiffs appeals.³ It declined to overturn the commission's substantive determinations that the site plan applications did not conform to the applicable Westport zoning regulations. The court further held that the board's improper reliance on evidence not disclosed at a public hearing was harmless error.

Having obtained certification to do so, the plaintiff filed the present appeal, in which it renews the arguments that it presented to the trial court. The plaintiff maintains that the commission (1) should have approved the site plan application for construction of additional parking at 785 Post Road East because it intensified but did not enlarge its preexisting nonconforming use of 777 Post Road East, (2) should have approved the site plan application for an access road because this use of its property was not forbidden by the town zoning regulations and (3) acted illegally in relying on evidence that had not been presented at a public hearing. Because each argument raises issues of law, our review of the court's judgment is plenary. Barbieri v. Planning & Zoning Commission, 80 Conn. App. 169, 174, 833 A.2d 939 (2003).

I NONCONFORMING USE

The plaintiff's first argument for reversal is a challenge to the commission's determination that construction of parking spaces on aborning property would enlarge rather than intensify its existing nonconforming use of its own property. We agree with the trial court that the commission had the authority to decide as it did.

Although existing nonconfoiming uses are protected by statute; General Statutes § 8-2; public policy favors their abolition "as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase." (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 740, 626 A.2d 705 (1993). Accordingly, § 6-1.2 of the Westport zoning regulations prohibits the expansion or relocation of an existing nonconforming use. The determination of whether a proposed project is an illegal expansion of an existing use is a question of fact. Wood v. Zoning Board of Appeals, 258 Conn. 691, 708, 784 A.2d 354 (2001). Our examination of the relevant facts persuades us that the commission had the authority to deny the plaintiffs first site plan application.

The record discloses that the plaintiff owns a car dealership and an adjacent parking area located at 777 Post Road East in Westport. This property is located in a general business district in which off-street parking is a permitted use. An automobile dealership is not, however, a permitted use but is authorized for this plaintiff as a preexisting nonconforming use.

Due to the absence of space for additional parking for its employees and customers at 777 Post Road East, the plaintiff leased adjoining property at 785 Post Road East, which had room for the construction of twenty additional parking spaces.⁴ Like 777 Post Road East, the property at 785 Post Road East is located in a general business district in which off-street parking is a permitted use.

The commission denied the plaintiffs proposal to construct this parking lot. It did not question the legitimacy of the plaintiffs quest for additional off-street parking for its employees and customers. For the commission, the dispositive fact was that, in the plaintiffs past operations of its dealership at 777 Post Road East, it had never used any part of 785 Post Road East. This fact led the commission to decide that the proposed construction would illegally expand the plaintiffs nonconforming use in violation of § 6-1.2 of the Westport zoning regulations.

According to the plaintiff, § 6-1.2 is inapplicable because the proposed project was a permissible intensification of a nonconforming use. In support, the plaintiff cites Zachs v. Zoning Board of Appeals, 218 Conn. 324, 589 A.2d 351 (1991), in which the installation of additional antennae on an existing radio communications tower was held to be permissible as an intensification rather than an enlargement of an existing use. Id., 331-32. Concededly, addition of the new antennae in Zachs did not involve any enlargement of the land on which the tower stood.

The commission argues that Zachs is not applicable under the circumstances of this case. It notes that the court's opinion in Zachs did not address, and consequently should not be construed as having overruled, a line of cases that hold the addition of new land to be an illegal expansion of an existing nonconforming use. See, e.g., Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 383-84, 311 A.2d 77 (1972); Raffaele v. Planning & Zoning Board of Appeals, 157 Conn. 454, 457, 462, 254 A.2d 868 (1969).

As Professor Terry Tondro has observed, the case law governing expansion of nonconforming uses is not entirely consistent. T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 158-60. In our view, this inconsistency can best be addressed by heeding the oftrepeated observation that "[t]he legality of an extension of a nonconforming use is essentially a question of fact." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 708; Connecticut Resources Recovery Authority v. Planning & Zoning Commission, supra, 225 Conn. 744.

From this vantage point, we agree with the trial court that the commission was entitled to deny the plaintiffs application because the proposed use of 785 Post Road would have added new land to the plaintiffs nonconforming use of 777 Post Road East. We agree with the court that Zachs is factually distinguishable.

The plaintiff reminds us, however, that Zachs was not limited to a factual determination that additional use of the radio tower was merely a permissible expansion of an existing nonconforming use. In reaching its conclusion, the Supreme Court set out three criteria for determining the scope of an existing nonconforming use. These criteria are (1) the nature and purpose of the existing use, (2) the extent to which the proposed use would change the character, nature and kind of use involved and (3) the impact of the proposed use on the neighborhood. Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332.

According to the plaintiff, application of the Zachs criteria in this case requires us to order reversal of the commission's denial of its site plan application. In its view, the first criterion is met because there is no dispute about the nature and purpose of the existing use of its own property for an automobile dealership. The second criterion is met because the proposed use of 785 Post Road East would not change the character, nature and kind of use of the automobile dealership property. Additional parking spaces would merely augment existing parking spaces for employees on its own property. Lastly, the third criterion is met because additional off-street parking will benefit the community by relieving congestion of Post Road East. We are not persuaded.

The plaintiffs analysis is flawed because it assumes the very facts that are at issue. The commission did not decide, and did not have to decide, whether adding additional parking would be advantageous to the plaintiffs dealership. In effect, it decided, and had the right to decide, that an addition to the property of the existing nonconforming use was a change in its nature. It would be elevating form over substance if we were to overturn its decision for failure to use the precise wording of the second Zachs criterion.

Because the proposed use of 785 Post Road East would result in a physical change of the property under the plaintiffs control, the commission reasonably could decide that granting the plaintiffs proposed use of 785 Post Road East would result in the illegal expansion of its preexisting nonconforming use. The trial court properly upheld this decision.

II LAND USE IN A RESIDENTIAL ZONE

The plaintiff also challenges the commission's denial of its site plan application to construct an access road to enable its employees and customers to make use of the new parking spaces at 785 Post...