Woodbury Donuts, LLC v. Zoning Bd. of Appeals of the Town of Woodbury

• Decision Date: 25 December 2012
• Docket Number: AC 34000
• Court: Connecticut Court of Appeals
• Parties: WOODBURY DONUTS, LLC, ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WOODBURY

WOODBURY DONUTS, LLC, ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WOODBURY

AC 34000

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 11, 2012

officially released December 25, 2012

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Gmendel, Alvord and Bear, Js.

(Appeal from Superior Court, judicial district of

Waterbury, Ozalis, J.) Franklin G. Pilicy, for the appellants (plaintiffs).

Thomas A. Kaelin, for the appellee (defendant).

Opinion

ALVORD, J. The plaintiffs, Woodbury Donuts, LLC, and EYRE, LLC, appeal from the judgment of the trial court dismissing their administrative appeal from the decision of the defendant, the zoning board of appeals of the town of Woodbury (board). The board had upheld the town zoning enforcement officer's denial of the plaintiffs' application for a zoning permit to operate a Dunkin Donuts on Main Street South in Woodbury. On appeal, the plaintiffs claim that the court improperly determined that (1) there was substantial evidence in the record to support the board's conclusion that the proposed use constituted an impermissible expansion of a preexisting, legal nonconforming use and (2) the doctrine of municipal estoppel was not applicable under the circumstances of this case. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. EYRE, LLC, owns property at 787-807 Main Street South in Woodbury, which is located in the Middle Quarter District. Corey's restaurant, a tenant, was a 3000 square foot establishment that operated seasonally on a portion of that property. The restaurant opened in 1995 or 1996 and ceased operation in the fall of 2006. The building housing Corey's restaurant was a preexisting, legal nonconforming structure, and the use as a fast food restaurant was a preexisting, legal noncon-forming use.¹

In 2006, EYRE, LLC, filed a special permit application with the town's zoning commission (commission), seeking approval to construct a 42,000 square foot commercial retail center on the property and to relocate Corey's restaurant into a conforming building to be constructed on the site. The commission approved the application on November 28, 2006. In that approval, the commission found, inter alia, that "the proposed site development and uses of the property within the Middle Quarter District, including the relocation of an existing legal non-conforming use within the same portion of the lot and as conditioned below, conform to the applicable standards of the Regulations . . . ." The approval was subject to several conditions, including the following: (1) "[a]ny variation from the approved Special Permit or Site Development Plans . . . shall require review and approval in accordance with Section 8.2.8 of the Regulations"; (2) "[t]he Developer shall obtain a Zoning Permit from the Zoning Enforcement Officer for each approved structure, including signage, and each use on the subject property";² and (3) "[u]ses permitted on the subject site pursuant to this Approval are as permitted by Zoning Regulations pertaining to [the] Middle Quarter [District]."

EYRE, LLC, and Corey's restaurant were unable to agree on terms for a new lease. Accordingly, EYRE, LLC,looked for a replacement tenant, and, on September 22, 2008, Woodbury Donuts, LLC, applied for a zoning permit to operate a Dunkin Donuts franchise at the location originally planned for Corey's restaurant. By letter dated November 18, 2008, the zoning enforcement officer notified Woodbury Donuts, LLC, that its application had been denied for the following reasons: "The proposed use is not permitted under Section 5.2 of the Woodbury Zoning Regulations [and] is significantly different in character from and is an impermissible expansion of the previous non-conforming use."

The plaintiffs appealed to the board from the decision of the zoning enforcement officer pursuant to General Statutes § 8-6.³ Following a four day public hearing, the board issued its decision on April 20, 2009. The board denied the plaintiffs' appeal and gave the following reasons for its decision: (1) the plaintiffs failed to demonstrate that the zoning enforcement officer's decision was in error; (2) the zoning permit was properly denied because the proposed use is not permitted under § 5.2 of the zoning regulations, is significantly different in character from the previous use and is an impermissible expansion of the previous use;⁴ and (3) the zoning permit should not be issued for the additional reason that it would be in violation of § 1.4.4.2 of the zoning regulations.

The plaintiffs appealed from the board's decision to the trial court. See General Statutes § 8-8 (b). Among their claims, the plaintiffs alleged in their complaint that the board misinterpreted and misapplied the zoning regulations and that the proposed use as a fast food restaurant was a vested nonconforming use. On February 22, 2011, the plaintiffs filed a motion seeking permission to introduce evidence at the hearing to support their contention that the town was estopped from prohibiting the operation of a Dunkin Donuts franchise at the proposed location.⁵ The court held a hearing on March 4, 2011, at which time it granted the plaintiffs' motion to present additional evidence. Thomas Briggs, the owner of EYRE, LLC, then testified as to the expenses the company incurred in connection with the construction of the building, which would have housed tenants including the Dunkin Donuts restaurant. Following the hearing, the parties filed posttrial briefs.

The court issued a memorandum of decision on May 25, 2011. After finding that the plaintiffs were aggrieved by the board's decision, the court addressed the parties' claims. Contrary to the board's position, the court concluded that Corey's restaurant had been a nonconform-ing rather than a conforming use of the property. See footnote 1 of this opinion. Following a summary of the evidence before the board, the court stated that the proposed year-round use as a Dunkin Donuts restaurant would expand, by between thirteen and twenty-one weeks, the previous seasonal use as Corey's restaurant.The court determined that there was substantial evidence in the record to support the board's conclusion that the "proposed use was an impermissible expansion of a nonconforming use by the substantial extension and expansion of the time period in which the nonconforming Corey's restaurant was open for business." With respect to the plaintiffs' municipal estoppel claim, the court concluded: "[W]hile the court agrees that the [board] is estopped from taking any action to preclude the nonconforming Corey's restaurant use on the [p]remises, the court finds in the [board's] favor on [the] plaintiffs' estoppel claim with respect to the current application." The plaintiffs filed the present appeal after this court granted their petition for certification.

I

The plaintiffs' first claim is that the trial court improperly determined that there was substantial evidence in the record to support the board's conclusion that the proposed year-round use as a fast food restaurant was an impermissible expansion of the previous noncon-forming use by Corey's as a seasonal fast food restaurant. Specifically, the plaintiffs argue that the 2006 special permit issued by the commission expressly authorized the proposed use as a fast food restaurant and that the proposed use was simply a continuation of the prior, legal nonconforming use as a fast food restaurant. The plaintiffs claim that the proposed year-round use was not an impermissible expansion of the previous seasonal use because the 2006 special permit did not contain any seasonal restrictions, and Woodb-ury's zoning regulations do not distinguish between seasonal and year-round use of properties. Additional facts are necessary for the resolution of this claim.

The record before the trial court included the exhibits submitted to the board and the transcripts from the public hearing. From the evidence presented at the public hearing, the board reasonably could have found the following facts. At all relevant times, the zoning regulations for the Middle Quarter District expressly prohibited the use of any property within that district as a "[f]ast food, predominantly take-out [restaurant]." Woodbury Zoning Regs, art. II, § 5.2.3.1 (C). The Middle Quarter District was created in or about 1977. Prior to 1995 or 1996, when Corey's restaurant began its operation, the property had been occupied by an A&W Root Beer restaurant and later by a restaurant called Toppers.⁶

In 1995, Brian Elias⁷ came before the commission seeking permission to change the use of the property from...