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

• Decision Date: 30 December 1986
• Docket Number: Nos. 4644,4645 and 4646,s. 4644
• Citation: 518 A.2d 970,9 Conn.App. 391
• Court: Connecticut Court of Appeals
• Parties: ESSEX LEASING, INC. v. ZONING BOARD OF APPEALS OF the TOWN OF ESSEX, et al.

Page 970

518 A.2d 970

9 Conn.App. 391

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

Nos. 4644, 4645 and 4646.

Appellate Court of Connecticut.

Argued Nov. 12, 1986.

Decided Dec. 30, 1986.

Thomas P. Byrne, Farmington, Peter M. Sipples, Clinton, and Jack E. Rutigliano, for appellants (defendants).

Timothy S. Hollister, with whom, on brief, was Eric Lukingbeal, Hartford, for appellee (plaintiff).

Before HULL, BORDEN and DALY, JJ.

BORDEN, Judge.

The decisive issue in these consolidated appeals is whether the zoning regulations of the town of Essex effectively provide for termination of a nonconforming use of property, based on nonuse of the property for a period of one year without regard to any intent of the owner to relinquish the use. The trial court read the regulation in question to require such an intent. We hold that the regulation does not require such an intent, and find error.

The plaintiff, which is the owner ¹ of the property in question, applied to the Essex zoning enforcement officer for a permit to continue using the property as a nonconforming business use. The zoning enforcement officer denied the plaintiff's application. The plaintiff appealed that decision to the zoning board of appeals. The board upheld the officer's decision on the basis that § 50E.1 of the zoning regulations does not require an intent permanently to discontinue a nonconforming use, and that the plaintiff had not used the property, within the meaning of that section, for a period of one year.

The plaintiff appealed to the Superior Court, claiming that the zoning regulations require an intent to discontinue the nonconforming use, and that the record was factually insufficient to support the board's decision. The court sustained the appeal, holding that § 50E.1 of the zoning regulations requires a showing of intent to relinquish a nonconforming use, and that the board did not consider any such intent. We granted the petitions for certification to appeal filed by the defendants, the Essex zoning commission, the zoning enforcement officer, the board, and two abutting property owners.

Sections 50E, 50E.1, and 50E.2 of the Essex zoning regulations provide in pertinent part: "50E. TERMINATION. Except as provided in 50F. [which is not applicable to this case], no use of any land or improvement having a non-conforming characteristic and no non-conforming use or characteristic of land or improvement should 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." The trial court reasoned that the word "cease" means "discontinue," that "discontinue" is synonomous with "abandon," and that both "discontinue" and "abandon" have been held to require an intent by an owner permanently to cease the nonconforming use of his property. See Magnano v. Zoning Board of Appeals, 188 Conn. 225, 449 A.2d 148 (1982). The court held, therefore, that "cessation" as used in § 50E.1 is synonomous with "discontinuance," and requires an intent permanently to cease the nonconforming use of the property.

The defendants argue that the trial court erred in this reading of § 50E.1. We agree.

Our Supreme Court has stated, albeit in dictum, that "a town may be able to fashion its zoning ordinance so as to make the cessation of use for a certain period alone a ground for extinguishing a nonconforming use...." (Footnote omitted.) Magnano v. Zoning Board of Appeals, supra, at 228, 449 A.2d 148; see also State [Ullman] ex rel. Eramo v. Payne, 127 Conn. 239, 241, 16 A.2d 286 (1940). In Magnano v. Zoning Board of Appeals, supra, 188 Conn. at 228-29, 449 A.2d 148, the court held that "Westbrook has not done so," and interpreted the word "discontinued" in the Westbrook zoning regulations to be synonomous with "abandoned" and thus to require intent. In this case, however, Essex has done so.

First, § 50E.2 provides for an alternate method of extinguishing a nonconforming use: "If [the use] is abandoned." The concept of abandonment of a nonconforming use as requiring an intent permanently to cease the use is well established in our zoning law. See Magnano v. Zoning Board of Appeals, supra; Dubitzky v. Liquor Control Commission, 160 Conn. 120, 125-26, 273 A.2d 876 (1970). Thus, under § 50E.2, where intent is required, no particular time period of nonuse is required. To hold that § 50E.1, which requires a one year period of nonuse, also requires intent would render § 50E.2 superfluous. See also Canada's Tavern, Inc. v. Glen Echo, 260 Md. 206, 271 A.2d 664 (1970), cited with approval in Magnano v. Zoning Board of Appeals, supra, 188 Conn. at 228 n. 3, 449 A.2d 148. In Canada's Tavern, Inc. v. Glen Echo, supra, the Montgomery county code provided for extinguishment upon "the cessation of a nonconforming use for a period of six months or more." (Emphasis added.) Id., 260 Md. at 207, 271 A.2d 664. The court held that this language did not require an intent to abandon.

Second, reading "cessation" as synonomous with "discontinuance," and thus with abandonment, effectively ignores the remainder of § 50E.1 and its implicit reference to § 50A. Section 50A provides: "50A. NONCONFORMING USES AND IMPROVEMENTS. Except as otherwise expressly provided in these Regulations, a non-conforming use of any land or improvement or a...