209 Conn.App. 631
Conn. App. Ct.2022Background
- The applicant (successor to Wykeham Rise, LLC) sought to build and operate an inn on a 26.9-acre R-1 lot; an earlier 2008 special-permit application was denied after hearings.
- The parties entered a 2013 settlement, approved by the Town Zoning Commission and the Superior Court under § 8-8(n), which incorporated a 2012 site plan showing a main building with a footprint that intruded into the required 50-foot setback (closest point 31 feet). The settlement contained detailed conditions but no explicit height or total floor‑area limit for the main building.
- In 2018 the successor applicant filed a modification application with a revised (2018) site plan that maintained the 2012 footprint but included internal/layout changes and some grading/egress adjustments; critics argued this constituted an unlawful expansion of a nonconformity.
- The commission held hearings, imposed 25 conditions (including prohibiting a ballroom and separate ownership of units), and approved the 2018 modification by a 3–2 vote.
- Adjoining property owners appealed to the Superior Court, which found substantial evidence supported the commission and dismissed the appeal; on certification the Appellate Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2018 approval unlawfully expanded a nonconforming structure (horizontal/vertical/volume) | Parker: the settlement/2012 materials implicitly limited height/volume; 2018 plan increased vertical size and floor area, expanding the nonconformity | Commission/Wykeham: the 2012 plan established a lawful but nonconforming footprint; renderings were illustrative; settlement contained no height/floor‑area caps; 2018 plan did not increase the footprint | Affirmed: no impermissible expansion. Footprint unchanged; no height/volume restriction in the settlement; commission reasonably credited testimony that renderings were illustrative. |
| Whether the 2018 approval unlawfully expanded a nonconforming use by adding accessory uses (bar, prefunction area, meeting room/library) | Parker: settlement permitted only specified accessory uses; new interior uses exceed scope and expand the nonconforming use | Commission/Wykeham: settlement was not meant to be exhaustive; accessory uses customary to an inn (Mayflower Inn precedent) are permitted; commission may credit testimony on customary uses | Affirmed: commission had substantial evidence that proposed accessory uses are customary to inns and within the settled nonconforming use; commission limited uses by conditions. |
| Whether the commission failed to apply/comply with special-permit standards (§§ 13.1.C.1–.2) | Parker: commission did not make required findings nor demonstrate compliance with special-permit criteria | Commission: deliberations, comparison to existing inn, parking/traffic/impact analysis and conditions show standards were considered; deference and presumption of regularity apply | Affirmed: plaintiffs failed to overcome presumption of regularity; record supplies substantial basis supporting the commission’s conformity with special-permit standards. |
| Legal effect of settlement: did it create a lawful nonconforming structure and thus invoke nonconforming-use rules? | Parker: common-law nonconforming use requires an existing, irrevocably committed structure/use; 2012 main building was only contemplated so common-law rule should not apply | Commission/Wykeham: settlement approved by commission and court authorized the proposed inn and 2012 plan; that approval created a lawful (though nonconforming) structure/use subject to nonconforming rules | Affirmed: the court-approved settlement produced a lawful but nonconforming structure; nonconforming-use principles apply (including prohibition on expansion without variance). |
Key Cases Cited
- Adolphson v. Zoning Board of Appeals, 205 Conn. 703 (Conn. 1988) (nonconforming uses should be reduced and not increased)
- Petruzzi v. Zoning Board of Appeals, 176 Conn. 479 (Conn. 1979) (nonconforming use is a vested property right)
- Helicopter Associates, Inc. v. Stamford, 201 Conn. 700 (Conn. 1986) (two-part common-law test for nonconforming use: lawful and in existence when made nonconforming)
- Francini v. Zoning Board of Appeals, 228 Conn. 785 (Conn. 1994) (use must be actual, not merely contemplated, to be nonconforming)
- Zachs v. Zoning Board of Appeals, 218 Conn. 324 (Conn. 1991) (factors for whether current activity remains within original nonconforming use)
- Torrington v. Zoning Commission, 261 Conn. 759 (Conn. 2002) (settlements resolving zoning appeals can be relied on where not shown to be outside a commission’s authority)
- Loring v. Planning & Zoning Commission, 287 Conn. 746 (Conn. 2008) (definition and test for accessory uses: incidental, subordinate, and customarily associated)
- E & F Associates, LLC v. Zoning Board of Appeals, 320 Conn. 9 (Conn. 2015) (vertical expansion can constitute prohibited increase of nonconformity depending on ordinance language)
- McLoughlin v. Planning & Zoning Commission, 200 Conn. App. 307 (Conn. App. 2020) (explaining the substantial‑evidence standard in zoning review)