134 Conn. App. 716
Conn. App. Ct.2012Background
- Malone acquired the property in 1958; in 1978, ownership to Carol Malone and herself in survivorship.
- In 1958 the parcel was split-zoned: ~86% residential, ~14% business district.
- Since 1958, plaintiffs claimed to operate a garbage/refuse business from the residence and stored trucks and bins on the site.
- In 1979 the zoning regulations were amended, rezoning the business district portion; since then the entire parcel has been residential.
- In fall 2008, the zoning enforcement officer issued a cease and desist order for alleged residential-zone violations of business uses and storage.
- Plaintiffs appealed to the board under § 8-7, asserting preexisting, legal nonconforming uses; no variance was sought.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the board address the preexisting nonconforming use claim? | Malone claims the board did not decide that issue. | Board relied on cease and desist validity under current regs and record; it did discuss the issue in record but not in final decision. | Board failed to issue a formal determination; remand required. |
Key Cases Cited
- Wood v. Zoning Board of Appeals, 258 Conn. 691 (2001) (board must decide preexisting use claim first; remand if not)
- Point O'Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364 (1979) (preexisting use status is a factual determination for the board)
- Wiltzius v. Zoning Board of Appeals, 106 Conn.App. 1 (2008) (nonconforming use protection and burden on claimant)
- Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622 (2003) (burden to prove nonconforming use validity)
- Vine v. Zoning Board of Appeals, 102 Conn.App. 863 (2007) (defer to board's decision; review for reasonableness; proof burden on plaintiffs)
- Mountain Brook Assn., Inc. v. Zoning Board of Appeals, 133 Conn.App. 359 (2012) (incomplete board reasoning requires search of record for basis)
- Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731 (1993) (limits on court's ability to substitute factual determinations for agency)