Hall v. Brazzale

• Decision Date: 18 May 1993
• Docket Number: No. 11375,11375
• Citation: 31 Conn.App. 342,624 A.2d 916
• Court: Connecticut Court of Appeals
• Parties: Elizabeth M. HALL v. Peter V. BRAZZALE.

Page 916

624 A.2d 916

31 Conn.App. 342

Elizabeth M. HALL v. Peter V. BRAZZALE.

No. 11375.

Appellate Court of Connecticut.

Argued Feb. 18, 1993.

Decided May 18, 1993.

David B. Losee, with whom, on the brief, was Holly Jean Bray, Hartford, for appellant (defendant).

Ralph G. Elliot, Hartford, for appellee (plaintiff).

Before DUPONT, C.J., and FOTI and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

This is an action brought by the zoning administrator of the town of Salisbury to enforce a cease and desist order against the defendant regarding the storage of contractor's vehicles and equipment on his property in Salisbury. The defendant appeals from the judgment of the trial court granting the plaintiff a permanent injunction prohibiting the defendant from storing more than three pieces of construction equipment on his property. The defendant's central claim on appeal is that his present use of the property as the storage site for all of his business vehicles and equipment is legally protected as an intensification of the prior existing nonconforming use of the property as a storage site for some of the vehicles and equipment associated with his business. Because we conclude that the defendant's prior existing nonconforming use of his property is as a storage site for his contractor's vehicles and equipment, we reverse the judgment of the trial court.

The parties and the trial court employed an unusual procedure in adducing evidence regarding whether the defendant had a prior existing nonconforming use at the time zoning was adopted in Salisbury and whether that use had been abandoned. The trial court, at the request of the parties, "remanded" those issues to the Salisbury planning and zoning commission. After hearing sworn testimony from fifteen individuals and examining forty-eight exhibits, the commission prepared a report and findings, which were then submitted to the court. The parties raise no challenge to the procedure used by the trial court. Accordingly, we base our decision on the following facts as found by the commission and accepted by the trial court. ¹

Brazzale Construction Company has been in the contracting business in Salisbury since the 1930s. The original contracting business was primarily in masonry and excavation. Over the years, Brazzale Construction added paving and dropped masonry work from its contracting business.

Three parcels of land on Lincoln City Road in Salisbury are involved in the determination of the issues presented by this case. The parcel referred to as lot 33-34 is the focus of the trial court's injunction at issue in this case.

From the late 1930s until January, 1941, lot 33-34 was the principal and only place of business for Brazzale Construction. In 1941, a parcel known as lot 41 was purchased. Most of the business' equipment was moved from lot 33-34 to lot 41. Some materials and, occasionally, some equipment used by Brazzale Construction continued to be stored on lot 33-34. In January, 1953, a parcel known as lot 25-1 was purchased. Lot 25-1 then became the principal place for the storage of Brazzale Construction's equipment and materials. As a result of the purchase of lots 41 and 25-1, equipment and material storage on lot 33-34 became incidental and subordinate to the use of lots 41 and 25-1 as storage sites. The business did, however, continue to store materials and equipment on lot 33-34 at different times throughout the year.

In 1959, zoning regulations were adopted in Salisbury. Lot 33-34 was zoned residential. At that time, however, lot 33-34 continued to be used for the incidental and occasional storage of both materials and equipment. The use of lot 33-34 was clearly secondary to the principal business locations at lots 41 and 25-1. All dispatching, invoicing and related everyday business activity for Brazzale Construction occurred at lot 41, not lot 33-34. Everyday storage of equipment for Brazzale Construction was on lot 25-1, not lot 33-34.

In 1959, lot 34 had two residential buildings with a few accessory outbuildings. Lot 33 had a small barn for the storage of materials. In the early 1960s, the barn was removed and a house was built for the defendant, Peter V. Brazzale. This brought lot 33 to a more conforming use. The lot was used less for the incidental and secondary storage of contractor's equipment than at the time zoning was enacted.

The use of lot 33-34 as a secondary storage site for Brazzale Construction continued into the 1980s. In 1984, Brazzale Construction moved its principal place of business from lots 25-1 and 41 to Millerton, New York. In 1985, lot 41 was sold. From November, 1984, through May, 1988, Millerton was the principal place of business of Brazzale Construction and the principal site of equipment and material storage. Lot 33-34, however, continued its secondary and incidental use for the business. That incidental use was never abandoned.

In 1988, Brazzale Construction relocated its principal business operations to lot 33-34, making that lot not only the principal storage facility but also the principal place of business, which had been located elsewhere since 1941. In addition, lot 33-34 has become the only site for the storage of the equipment and materials of Brazzale Construction. The occasional storage of some of the equipment on lot 33-34 in 1959 was expanded to the continuous storage of all of the business' equipment. ² In 1989, the plaintiff directed a cease and desist order to the defendant regarding his storage of contractor's vehicles and equipment on lot 33-34 without a permit.

The commission concluded, and the trial court agreed, that the defendant's prior existing nonconforming use was limited to the type of secondary storage use made of the property in 1959. Further, because Brazzale Construction owned a total of twelve pieces of equipment in 1959 and, at most, stored only a few of those pieces of equipment on lot 33-34 in 1959, the commission determined that the defendant's legally protected prior existing nonconforming use extended to the storage of no more than three pieces of contractor's equipment on his property. The trial court therefore "grant[ed] a permanent injunction prohibiting the defendant from storing more than three (3) pieces of construction equipment on lot 33-34 Lincoln City Road, Salisbury, Connecticut, without a permit issued pursuant to the Salisbury zoning regulations." There was no order regarding the use of lot 33-34 as the principal place of business of Brazzale Construction. ³

The defendant challenges the conclusions drawn by the trial court and the commission from the subsidiary facts as they bear on the permissible scope of the defendant's prior existing nonconforming use of his property. The defendant contends that the present use of his property is merely an increase in the amount of storage done on the property when compared to the prior use. We agree.

The defendant correctly points out that " 'a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use.' " Zachs v. Zoning Board of Appeals, 218 Conn. 324, 331, 589 A.2d 351 (1991); Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 716, 519 A.2d 49 (1986). "A change in the character of a use, however, does constitute an unlawful extension of the prior use." Helicopter Associates, Inc. v. Stamford, supra; Salerno v. Scheuy, 140 Conn. 566, 571, 102 A.2d 528 (1954). "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 difference 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, supra, 218 Conn. at 332, 589 A.2d 351.

In this case, the present use is simply an intensification of the prior use. The attempt by the commission and the trial court to limit the defendant's use of his property to a secondary storage site for his business vehicles and equipment finds no support in our law. " 'For there to be an existing use, premises must be so utilized as to be known in the neighborhood as employed for a given purpose.' " Helicopter Associates, Inc. v. Stamford, supra, 201 Conn. at 713, 519 A.2d 49; Wallingford v. Roberts, 145 Conn. 682, 684, 146 A.2d 588 (1958). " '[A] utilization of the property so that it may be known in the neighborhood as being employed for a given purpose ... [prescribes] neither the extent nor the quantity nor the quality of the use which may be permitted to continue....' " DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 831, 624 A.2d 372 (1993), quoting Melody v....