Taylor v. Zoning Bd. of Appeals of the Town of Wallingford

• Citation: 783 A.2d 526
• Decision Date: 18 September 2001
• Docket Number: 20448
• Court: Connecticut Court of Appeals
• Parties: PERRY TAYLOR ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WALLINGFORD ET AL.20448 THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

PERRY TAYLOR ET AL. v ZONING BOARD OF APPEALS OF THE TOWN OF WALLINGFORD ET AL.

No. AC 20448

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 4, 2001

September 18, 2001

Counsel Leonard A. Fasano, with whom, on the brief, was Timothy J. Lee, for the appellants (plaintiffs).

Gerald E. Farrell, Sr., assistant town attorney, for the appellee (named defendant).

Lavery, C. J., and Spear and Flynn, Js.

Opinion

Lavery, C. J.

The plaintiffs, Perry Taylor, Margaret Taylor and Tayco Corporation, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant zoning board of appeals of the town of Wallingford (board), ¹ upholding the action of the town's zoning enforcement officer, who issued a cease and desist order to the plaintiffs. On appeal, the plaintiffs claim that (1) the trial court improperly held that when the town of Wallingford (town) enacted zoning regulations making sand and gravel operations a permitted use in the plaintiffs' zoning district subject to a special permit, the plaintiffs' right to operate a sand and gravel mine on their property as a pre-existing nonconforming use was extinguished, (2) the town zoning regulations are unconstitutional because they deprive the plaintiffs of their vested right in a pre-existing nonconforming use of their property and (3) the trial court improperly upheld the cease and desist order issued against the plaintiffs' use of their property as a sand and gravel mine merely because the plaintiffs' did not possess a special permit. ² We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our consideration of this appeal. The plaintiffs are the owners of property located at 109 Hosford Street in Wallingford. Part of the property is located in an industrial zone, while the rest is located in a residential zone. Beginning in 1942 and continuing up to the issuance of the cease and desist order that is the subject of this appeal, the property has been used by the plaintiffs and their predecessors in title for sand and gravel operations, which includes the screening, storing, excavating, stockpiling and selling of earth products, and which includes the sale of landscaping material. This use of the property by the plaintiffs' predecessors in title began prior to the town's adoption of its first zoning regulations, which took place in 1958. ³

The plaintiffs assert, and the board concedes, that when the town chose to enact zoning regulations, the plaintiffs' use of their property for the operation of a quarry became a valid, pre-existing nonconforming use. The plaintiffs continued to operate the quarry without any effort by the town to stop them from doing so for several decades thereafter.

In 1990, the town amended its zoning regulations to relax the prior categorical prohibition against the operation of quarries in residential zones by enacting a regulation permitting such use of property in a residential zone if the operator obtained a special permit. The plaintiffs sought and were granted such a permit in 1990, and thereafter renewed it on two subsequent occasions. The last renewal permit expired on June 8, 1998, at which time the plaintiffs did not seek a further renewal of their permit, but nevertheless continued their operation of the land as a quarry.

On June 11, 1998, the town's zoning enforcement officer issued a cease and desist order to the plaintiffs ordering them to cease the operation of their quarry for the sole reason that they had failed to secure a renewal of their special permit. No other violation of any applicable zoning ordinance or regulation was alleged.

The plaintiffs appealed from the cease and desist order to the board, claiming that the expiration of their special permit notwithstanding, their use of the property as a sand and gravel mine was a pre-existing nonconforming use and they, therefore, were not required to obtain a special permit. The town again conceded the plaintiffs' claim that their use of the property constituted a pre-existing nonconforming use. The town claimed, however, and the board agreed, that by previously applying for and receiving special permits, the plaintiffs had waived their rights to the continued use of their property as a pre-existing nonconforming use. The board thus denied the plaintiffs' appeal.

The plaintiffs thereafter appealed to the Superior Court pursuant to General Statutes § 8-8 (a). ⁴ The court dismissed the appeal, concluding that ''the use at issue is not a prohibited use, but a permitted use, subject to regulation.'' The court explained that ''[t]he scheme of regulation of the Wallingford zoning regulations clearly contemplated the conversion of a valid pre-existing nonconforming use into a permitted use.'' The court also held that even if ''the plaintiffs' use continues to be a valid, pre-existing nonconforming use, this appeal still would fail'' because ''[n]onconforming uses are subject to regulation in the interest of public health, safety and welfare.'' We disagree with the former and agree with the latter reason given by the trial court for dismissing the plaintiffs' appeal.

I.

The plaintiffs first claim that the trial court improperly held that their right to operate a sand and gravel mine on their property as a pre-existing nonconforming use was extinguished when the town enacted zoning regulations that made the use permitted, but subject to a special permit. We agree.

We first state the applicable standard governing our review of the plaintiffs' claim. ''Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts.'' (Internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 538, 738 A.2d 1157 (1999).

''Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes. Police Department v. State Board of Labor Relations, [225 Conn. 297, 300, 622 A.2d 1005 (1993)]; Crocetto v. Lynn Development Corporation, 233 Conn. 376, 381, 612 A.2d 1212 (1992). . . . This case . . . presents a pure question of law, and therefore invokes a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny, as in this case, the agency is not entitled to special deference.'' (Citations omitted; internal quotation marks omitted.) Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 735±n36, 675 A.2d 430 (1996).

The parties in this case do not disagree that the plaintiffs' use of their property for sand and gravel operations was a valid nonconforming use that predated the enactment of the town's first zoning laws. Even if this were not so, it could readily be inferred from the fact that, from the enactment of the town zoning laws in 1958 until 1998 when the cease and desist order giving rise to the present litigation was issued, the town's zoning officials made no effort to stop or otherwise hinder the plaintiffs' use of their property for sand and gravel operations, notwithstanding that the property was partly in a residential zone.

The trial court ruled that ''[t]he scheme of regulation of the Wallingford zoning regulations clearly contemplated the conversion of a valid pre-existing nonconforming use into a permitted use. . . . The court finds that the use at issue is not a nonconforming use, but a permitted use requiring special permit.'' (Emphasis added.) The trial court's interpretation misses the mark by treating a nonconforming use as a transient permission, which becomes unnecessary and disappears if the municipality changes its zoning laws to make the use permissible with a special permit.

The right to continue an established nonconforming use of one's property is securely grounded, both in statutes and in previous decisions of this court and our Supreme Court. General Statutes § 8-2 provides that municipal zoning ''regulations shall not prohibit the continuance of any nonconforming use . . . existing at the time of the adoption of such regulations....''

''Where a nonconformity exists, it is a vested right which adheres to the land itself. And the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use. 1 Anderson, American Law of Zoning (2d Ed.) § 6.37, p. 445. A vested right, unless abandoned, to continue the nonconforming use is in the land ....[T]he right to a nonconforming use is a property right and . . . any provision of a statute or ordinance which takes away that right in an unreasonable manner or in a manner not grounded on the public welfare is invalid. A lawfully established nonconforming use is a vested right and is entitled to constitutional protection.'' (Emphasis added; internal quotation marks omitted.) Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483±n84, 408 A.2d 243 (1979); see also Carbone v. Vigliotti, 222 Conn. 216, 230, 610 A.2d 565 (1992); Darien v. Webb, 115 Conn. 581, 586, 162 A.2d 690 (1932).

''It is a fundamental zoning precept in Connecticut . . . that zoning regulations cannot bar uses that existed when the regulations were adopted. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 16, 291 A.2d 208 (1971). . . . It is readily apparent that the rule concerning the...