Macaluso v. Zoning Bd. of Appeals of Town of Windsor

• Decision Date: 11 February 1975
• Parties: Thomas E. MACALUSO v. ZONING BOARD OF APPEALS OF the TOWN OF WINDSOR et al.
• Court: Connecticut Supreme Court

Page 885

356 A.2d 885

167 Conn. 596

Thomas E. MACALUSO v. ZONING BOARD OF APPEALS OF the TOWN OF WINDSOR et al.

Supreme Court of Connecticut.

Feb. 11, 1975.

Valentine J. Sacco, Hartford, with whom, on the brief, was Neal H. Jordan, Hartford, for appellant (defendant Devanney).

Steven D. Bartelstone, Hartford, for appellee (plaintiff).

Before HOUSE, C.J., and COTTER, MacDONALD, BOGDANSKI, and LONGO, JJ.

COTTER, Associate Justice.

The defendant takes this appeal from a judgment of the Court of Common Pleas sustaining the plaintiff's appeal from the action of the defendant zoning board of appeals, which had earlier upheld the decision of the building inspector and zoning enforcement official of the town of Windsor that the defendant Devanney's property could be used as a package store in conformity with the zoning regulations of the town.

The premises which are the subject matter of this appeal have been used since 1933 as a drug store which also sold liquor under a drug store liquor permit. In 1935 the town of Windsor adopted zoning regulations prohibiting the use of a building or premises for the sale of alcoholic beverages if such building or premises were within 1000 feet of any other building or premises in which such beverages were sold. Windsor Zoning Regs. § 4.04.02. The defendant's premises were then within 1000 feet of three other liquor outlets, two of which remain. On July 12, 1972, the drug store having vacated the premises, the defendant applied to the building inspector for certification of a liquor application that his property could be used as a package store in conformity with the town regulations; the building inspector certified the premises to the state liquor control commission as a permitted use.

The defendant has assigned error in the conclusions set forth by the court in its limited finding. The initial question is whether the use of the premises in dispute as a liquor outlet under a drug store liquor permit was a nonconforming use after 1935, as determined by the court. The Windsor zoning regulations define a nonconforming use as 'a use of land, building or premises which is not a use permitted by the provisions of this ordinance . . . which is legally in existence at the time of passage of this ordinance.' Windsor Zoning Regs. § 20.14. In determining whether the property in question was properly classified as a nonconforming use, the words of the 1935 regulation passed by the town and relied upon by the court are vital: 'No building or premises shall be used, and no building shall be erected or altered which is arranged, intended, or designed to be used, except as permitted in Section 4.04.01, for the sale or exchange of alcoholic beverages either at wholesale or retail, or whether for consumption upon the premises or otherwise . . . if any part of such building or premises is situated (a) within 1000 feet in a direct line from any building or premises other than permitted in Section 4.04.01 in which alcoholic beverages are stored, sold or exchanged . . ..' Windsor Zoning Regs. § 4.04.02. It is the use to which the premises in question have been put which has made these premises nonconforming since this regulation was passed. The use of the premises to sell liquor under a preexisting drug store liquor permit was clearly nonconforming, as the court concluded, since the premises are within 1000 feet of at least two other existing liquor outlets. Rafala v. Zoning Board of Appeals, 135 Conn. 142, 146, 62 A.2d 337. It is not, as the defendant argues, the building that made the premises nonconforming, but rather its use as a liquor outlet within 1000 feet of two other such outlets, since the applicable zoning regulation is concerned with the use of land and buildings. See, e.g., Kallay's Inc. v. Katona, 152 Conn. 546, 547, 209 A.2d 185; Great Atlantic & Pacific Tea Co. v. Katona, 151 Conn. 417, 420, 198 A.2d 711. The court did not err in concluding that the use of the subject premises as an outlet for the sale of alcoholic beverages under a drug store liquor permit was a nonconforming use after the passage of the 1935 regulation.

The defendant has also assigned error in the court's conclusion that the substitution, upon the defendant Devanney's application, of a package store permit for the previous drug store permit constituted an extension or expansion of this nonconforming use. This conclusion was...