High Watch Recovery Ctr., Inc. v. Plan. & Zoning Comm'n of Town of Kent

• Docket Number: AC 45972
• Decision Date: 23 January 2024
• Citation: 308 A.3d 1060,223 Conn.App. 424
• Parties: HIGH WATCH RECOVERY CENTER, INC. v. PLANNING AND ZONING COMMISSION OF the TOWN OF KENT
• Court: Connecticut Court of Appeals

308 A.3d 1060

223 Conn.App. 424

HIGH WATCH RECOVERY CENTER, INC.

v.PLANNING AND ZONING COMMISSION OF the TOWN OF KENT

(AC 45972)

Appellate Court of Connecticut.

Argued September 21, 2023

Officially Released January 23, 2024

Christopher J. Smith, for the appellant(plaintiff).

Michael A. Zizka, Hartford, for the appellee(defendant).

Prescott, Clark and Seeley, Js.^*

CLARK, J.

₄₂₈In this certified zoning appeal, the plaintiff, High Watch Recovery Center, Inc., appeals from the judgment of the Superior Court dismissing its administrative appeal.The plaintiff brought the underlying appeal to the Superior Court from a decision of the defendant, the Planning and Zoning Commission of the Town of Kent(commission), denying its special permit application that proposed the addition of a thirty foot ₄₂₉by seventy foot greenhouse to its property located at 47 Carter Road in Kent.The commission denied the plaintiff’s application because it determined that the plaintiff’s proposed greenhouse was an illegal expansion, rather than a permissible intensification, of its valid nonconforming use of the property.On appeal, the plaintiff claims that the court erroneously concluded that (1)the plaintiff could not, as a matter of law, intensify its valid nonconforming use of the property because the intensification doctrine recognized by our Supreme Court in Zachs v. Zoning Board of Appeals,218 Conn. 324, 332, 589 A.2d 351(1991),¹ does not apply to a nonconforming use that arises out of a previously issued special permit and (2) the substantial evidence in the record supported the commission’s determination that the plaintiff’s proposed greenhouse was an illegal expansion of its valid nonconforming use.For the reasons that follow, we agree with the plaintiff and reverse the judgment of the Superior Court.

The following facts and procedural history are relevant to our resolution of this appeal.Since 1939, the plaintiff has operated a residential treatment program on real property known as 62 Carter Road in Kent (residential property) for individuals with substance abuse disorders.Located on the residential property is a seventy-eight bed residential facility that includes an on-site kitchen.

On June 23, 2017, the plaintiff purchased property located across the street from the residential property.₄₃₀That property is known as 47 Carter Road and is the subject of this appeal (property).The property spans approximately seventy acres and was used for farming up until the time the plaintiff purchased it in 2017.Both the property and the residential property are located in Kent’s Rural Residential (RU-1) district.

Kent adopted zoning regulations for the first time in or about 1965.In the RU-1 district, the Kent Zoning Regulations (regulations) in place at the time the plaintiff purchased the property permitted, subject to special permit review and approval, "[a] privately operated hospital, clinic, nursing home, or convalescent home …."Kent ZoningRegs., c. 3200, § 3224(2018).Because the plaintiff had operated its residential treatment program on the residential property prior to the adoption of the regulations, the plaintiff was not required to obtain a special permit for the residential property.To the extent the plaintiff wished to engage in such activities on the subject property located across the street from the residential property, however, the regulations required it to obtain a special permit.

In February, 2018, the plaintiff filed with the commission a special permit application and a site plan application seeking approval to conduct therapeutic activities on the property in conjunction with the treatment program that it operated on the residential property.The special permit application stated in relevant part: "[The plaintiff] has the opportunity to incorporate into its existing program additional therapies that have proven effective in the treatment of substance use disorders.These new therapies would include equine therapy, a ropes course and climbing wall, and a therapeutic agricultural program and accompanying kitchen facility.In fact, [the plaintiff] purchased the property as a working farm in part to continue its agricultural use.… The therapies at [the property] will be offered as part of the [plaintiff’s] existing … treatment plan, not ₄₃₁as a standalone program; the residents that participate in the therapies offered at [the property] will be the same residents living at the [residential property] across the street."In March, 2018, the commission adopted a resolution approving the plaintiff’s applications for the subject property for "therapeutic activities in conjunction with a privately-operated hospital, clinic, nursing or convalescent home or similar institution …."

On February 16, 2020, the regulations were amended to prohibit the plaintiff’s addiction treatment services in the RU-1 district.Specifically, the amendment eliminated language from the regulations that permitted, by special permit, "[a] privately operated hospital, clinic, nursing home, or convalescent home …."CompareKent ZoningRegs., c. 3200, § 3224(2018), withKent ZoningRegs., c. 3200, § 3224(2020).

On August 20, 2020, the plaintiff applied for a special permit to add a thirty foot by seventy foot "hoop house" style greenhouse² to the "existing [g]arden/pasture area" of the property.The plaintiff stated that it sought to add the greenhouse in order "to enhance [its] existing farming capacity."The application further stated, inter alia, that "[t]his is consistent with our special permit application from 2018 which stated, ‘[The plaintiff] purchased the property as a working farm in part to continue its agricultural use.’We remain true to that intention and we seek to further continue that pre-existing use.The intention of this application for a hoop house is not to expand our therapeutic work but to expand our capacity to provide fruits and vegetables to [the residential property]."

₄₃₂The commission held a public hearing on the plaintiff’s special permit application on multiple days in September and October, 2020.On November 12, 2020, the commission, by a vote of four to two, denied the plaintiff’s application.The commission’s stated reasons for its denial were as follows: "a.With regard to [§ 10440 (3)], which states: ‘Whether the proposed use will have a detrimental effect on neighboring properties or the development of the district’, the [c]ommission finds that based on the representations made by the applicant, it is unclear whether or not this proposed structure and its use would increase the intensity of a use that is preexisting, non-conforming as a result of its affiliation with the use of 62 Carter Road.

"b.With regard to [§ 10440 (11)], which states: Whether adequate provisions have been made to moderate or mitigate neighborhood impacts by limiting the intensity of use of the property (including, without limitation, such considerations as the area devoted to the use, the number of people involved in the use, the number of events or activities proposed, the hours of operation, etc.)or by modifying the location or configuration of the proposed use’, the [c]ommission finds that conflicting information indicates that the proposal could not meet the requirements of this section."³(Emphasis in original.)

Following the commission’s denial of the plaintiff’s application, the plaintiff appealed to the Superior Court.SeeGeneral Statutes §8-8 (b).⁴The plaintiff raised three ₄₃₃claims.First, it claimed that the substantial evidence in the record established that the plaintiff’s proposed greenhouse constituted a permitted accessory agricultural or farm use, as provided by the operative regulations.It therefore argued that a special permit was not actually required to construct its proposed greenhouse.Second, the plaintiff claimed that the proposed greenhouse was within the scope of the commission’s prior approved special use permit that it issued to the plaintiff in 2018.Accordingly, the plaintiff argued that the greenhouse was a permissible intensification of that prior approved, but now nonconforming, therapeutic agricultural or farm use and that no special permit was required.Last, the plaintiff claimed that the substantial evidence in the record did not support either of the commission’s stated reasons for its denial.The parties filed briefs and oral arguments were held by the court.

On July 5, 2022, the Superior Court, Hon. John W. Pickard, judge trial referee, issued a memorandum of decision dismissing the plaintiff’s administrative appeal.The court rejected the plaintiff’s first claim that the plaintiff did not need a special permit in order to construct and maintain the greenhouse because an agricultural or farm related greenhouse constitutes a permitted, as of right, farm use.⁵

The court also rejected the plaintiff’s claim that the addition of its proposed greenhouse is a permissible intensification of its valid nonconforming use.The court concluded that the current nonconforming use of the property is limited to the precise terms of the 2018₄₃₄special permit and the site plan that the plaintiff submitted in support of its application for that permit and that the plaintiff could riot, as a matter of law, intensify the property in accordance with the test set forth in Zachs v. Zoning Board of Appeals,supra, 218 Conn. at 332, 589 A.2d 351.The court reasoned that "the plaintiff’s use of the subject property was a permitted use in connection with their program but one which existed by special permit only.That special permit had its own terms.Those terms were that the property could be used for an agricultural or farm use as therapy for program participants.The approval of the special permit was accompanied by a site plan which did not include a greenhouse.… [T]his fact distinguishes this case from typical nonconforming use cases where the issue is whether the proposed use is an...