Essex Leasing, Inc. v. Zoning Bd. of Appeals of Town of Essex, 13128

• Decision Date: 22 March 1988
• Docket Number: No. 13128,13128
• Citation: 539 A.2d 101,206 Conn. 595
• Court: Connecticut Supreme Court
• Parties: ESSEX LEASING, INC. v. ZONING BOARD OF APPEALS OF the TOWN OF ESSEX et al.

Page 101

539 A.2d 101

206 Conn. 595

ESSEX LEASING, INC. v. ZONING BOARD OF APPEALS OF the TOWN OF ESSEX et al.

No. 13128.

Supreme Court of Connecticut.

Argued Feb. 2, 1988.

Decided March 22, 1988.

Timothy S. Hollister, with whom were Ann D. Dexter and, on the brief, Eric Lukingbeal, Hartford, for appellant (plaintiff).

Peter M. Sipples, Clinton, with whom was Jack E. Rutigliano, for appellees (named defendant et al.).

Thomas P. Byrne, Farmington, for appellees (defendant Edwin L. Russell et al.).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ.

PETERS, Chief Justice.

The principal issue in this case is whether a municipality is authorized to enact a zoning regulation that terminates a nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of a property owner to relinquish that use. The plaintiff, Essex Leasing, Inc., appealed from the decision of the named defendant, ¹ the Essex zoning board of appeals, terminating its nonconforming use irrespective of intent. In sustaining the appeal, the trial court interpreted the Essex zoning regulations to require a showing of intent to relinquish a nonconforming use. The Appellate Court reversed, concluding that the regulations make it possible to abate a nonconforming use for nonuse alone. Essex Leasing, Inc. v. Zoning Board of Appeals, 9 Conn.App. 391, 518 A.2d 970 (1986). We affirm the judgment of the Appellate Court.

The relevant facts are undisputed. In early 1983, the plaintiff began to explore the feasibility of purchasing a building in Essex. A portion of the building, which is situated in a residential zone, is a legal nonconforming commercial use. The building had been leased to a commercial tenant by the plaintiff's immediate predecessors in title for a period of three years commencing November 1, 1980. In 1981, the tenant ceased actual operation of its business on the premises. Unable to find a suitable subtenant, the tenant continued to pay rent and to maintain the premises with heat, utilities and office furnishings until March, 1983. The plaintiff, on March 28, 1983, in conjunction with its impending purchase of the property, filed an application for a permit to continue its nonconforming use of the building in its leasing business. The plaintiff acquired title to the property on May 2, 1983.

The Essex zoning enforcement officer denied the plaintiff's application for a zoning permit for two related reasons. He determined that the proposed use would constitute a change from one nonconforming use to another, in violation of § 50C.1 of the Essex zoning regulations. Further, he found that the property had not been in use for the period of one year and that therefore, in accordance with § 50E of the Essex zoning regulations, its nonconforming use had been terminated and could not be resumed. The latter regulation provides, in relevant part, that no nonconforming use may be resumed "[i]f such use or characteristic has not existed for a period of one year from the date of cessation...." Essex Zoning Regulations § 50E.1. Upon the plaintiff's appeal to the zoning board of appeals (board), that board upheld the decision of the officer on the sole ground that the "subject property was not in use as intended in the Essex Zoning Regulations [s] 50E.1."

The plaintiff appealed to the Superior Court, claiming that the zoning decision was in error because: (1) the board had no authority under the zoning enabling act; General Statutes § 8-2; to terminate a nonconforming use solely on the basis of nonuse; (2) the board had misconstrued § 50E.1, as requiring no showing of intent to discontinue a nonconforming use; and (3) the record was factually insufficient to support the board's finding that a one year period of nonuse had occurred. The trial court ruled only on the plaintiff's second ground for appeal. It held that the term "cessation" in § 50E.1, in its ordinary meaning, was synonymous with "discontinuance," a term that has been interpreted to require a showing of intent. See Dubitzky v. Liquor Control Commission, 160 Conn. 120, 123, 273 A.2d 876 (1970). Since the board concededly had not considered intent in its deliberations, the trial court sustained the plaintiff's appeal.

The defendants then sought further review by the Appellate Court, which, after granting certification, concluded that the trial court's construction of § 50E.1 was erroneous. Holding that the general statutes permit local zoning regulations to premise the termination of a nonconforming use solely upon a period of nonuse, the court determined that the town of Essex had adopted such a regulation. The court based its conclusion upon a close reading of the text of the applicable regulations; Essex Leasing, Inc. v. Zoning Board of Appeals, supra, 9 Conn.App. at 393-95, 518 A.2d 970; and upon the long-standing policy of this state to abolish or to reduce nonconforming uses as quickly as justice will permit. Id., at 395, 518 A.2d 970. Because the trial court had not reached the factual issue of whether a one year period of nonuse had occurred, the Appellate Court remanded the case for further trial court proceedings to resolve that question.

This court thereafter granted the plaintiff's petition for certification on the following limited issue: "May a town validly enact zoning regulations which provide for the abatement of a nonconforming use as a result of nonuse for a specified period of time, without regard to the property owner's intent to maintain that use?" In order to resolve that issue properly, we must, however, first decide whether § 50E.1 of the Essex zoning regulations, as drafted, terminates a nonconforming use without a showing of intent. Without a threshold determination that intent is superfluous under the regulation, we might well not reach the ultimate question of law because its resolution would not dictate the outcome of the case. Cf. Ozyck v. D'Atri, 206 Conn. 473, 479, 538 A.2d 697 (1988); State v. Shashaty, 205 Conn. 39, 50, 529 A.2d 1308 (1987), cert. denied, --- U.S. ----, 108 S.Ct. 753, 98 L.Ed.2d 766 (1988); Wu v. Fairfield, 204 Conn. 435, 441, 528 A.2d 364 (1987).

I

Our determination of the proper construction of the Essex zoning regulations must start with a review of the reasons advanced by the Appellate Court for deciding that "cessation" of a nonconforming use under § 50E.1 extinguishes such a use regardless of intent. In an appeal following certification, "the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo." State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985); Fidelity Trust Co. v. Irick, 206 Conn. 484, 487, 538 A.2d 1027 (1988); Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 634, 513 A.2d 52 (1986).

The Appellate Court undertook a careful analysis of § 50E in all its relevant parts. In its entirety, that regulation states: "50E. TERMINATION. Except as provided in § 50F., no use of any land or improvement having a non-conforming characteristic and no non-conforming use or characteristic of land or improvement shall be resumed or restored:

"50E.1. CESSATION. If such use or characteristic has not existed for a period of one year from the date of cessation or from the effective date of the applicable regulation, whichever is later; or

"50E.2. ABANDONMENT. If it is abandoned.

"[U]nless such use conforms to these Regulations or such use or characteristic has previously been authorized by the grant by the Zoning Board of Appeals of a variance varying the application of the pertinent regulations." Principally, the Appellate Court concluded that § 50E.1 could not be construed to include an intent requirement without rendering § 50E.2 superfluous. In zoning law, "abandonment" has normally been understood to require an intent permanently to cease the nonconforming use. See Magnano v. Zoning Board of Appeals, 188 Conn. 225, 228, 449 A.2d 148 (1982); Dubitzky v. Liquor Control Commission, supra, 160 Conn. at 123, 273 A.2d 876. Because § 50E.2 authorizes termination, once there has been an intent to discontinue the nonconforming use, without regard to any particular period of nonuse, it is illogical to interpolate an intent requirement into § 50E.1. Essex Leasing, Inc. v. Zoning Board of Appeals, supra, 9 Conn.App. at 394, 518 A.2d 970.

In addition, the Appellate Court discussed the inference to be drawn from the fact that § 50E.1 makes nonuse for "a period of one year ... from the effective date of the applicable regulation" a separate ground for abating a nonconforming use. That clause in § 50E.1 addresses the possibility of an amendment to the town zoning regulations that would make a parcel of then nonused property nonconforming, and directs that the nonconforming use will be extinguished by dint of the passage of the specified period of time, without regard to intent. The Appellate Court could find no justification for requiring intent when there was a period of nonuse of one year because of a prior nonconformity and not requiring intent when the same period of nonuse followed a new nonconformity. Id., at 394-95, 518 A.2d 970.

The plaintiff urges us, for two reasons, to reverse the ruling of the Appellate Court and to hold that intent continues to be a viable component of the termination of a nonconforming use under § 50E.1. It maintains that: (1) in its ordinary definition, the term "cessation" is synonymous with "discontinuance," and therefore requires proof of intent; and (2) nonuse for a one year period creates only a presumption of relinquishment, which an owner should be permitted to overcome with appropriate proof of intent to maintain the use. We find neither contention persuasive.

Like the Appellate Court, we conclude that the term "cessation" does not, in and of itself, interpose an intent standard into the regulation. In construing a zoning regulation, it is...