9 Conn. App. 391 | Conn. App. Ct. | 1986
The decisive issue in these consolidated appeals is whether the zoning regulations of the town of Essex effectively provide for termination of a nonconforming use of property, based on non use of the property for a period of one year without regard to any intent of the owner to relinquish the use. The trial court read the regulation in question to require such an intent. We hold that the regulation does not require such an intent, and find error.
The plaintiff, which is the owner
The plaintiff appealed to the Superior Court, claiming that the zoning regulations require an intent to discontinue the nonconforming use, and that thé record was factually insufficient to support the board’s decision. The court sustained the appeal, holding that § 50E.1 of the zoning regulations requires a showing of intent to relinquish a nonconforming use, and that the board did not consider any such intent. We granted the petitions for certification to appeal filed by the defendants, the Essex zoning commission, the zoning enforcement officer, the board, and two abutting property owners.
The defendants argue that the trial court erred in this reading of § 50E.1. We agree.
Our Supreme Court has stated, albeit in dictum, that “a town may be able to fashion its zoning ordinance so as to make the cessation of use for a certain period alone a ground for extinguishing a nonconforming use . . . .” (Footnote omitted.) Magnano v. Zoning Board of Appeals, supra, 228; see also State ex rel. Eramo v. Payne, 127 Conn. 239, 241, 16 A.2d 286 (1940). In Magnano v. Zoning Board of Appeals, supra, 228-29, the court held that “Westbrook has not done so,” and interpreted the word “discontinued” in the Westbrook zoning regulations to be synonomous with “abandoned” and thus to require intent. In this case, however, Essex has done so.
Second, reading “cessation” as synonomous with “discontinuance,” and thus with abandonment, effectively ignores the remainder of § 50E.1 and its implicit reference to § 50A. Section 50A provides: “50A. NONCONFORMING USES AND IMPROVEMENTS. Except as otherwise expressly provided in these Regulations, a non-conforming use of any land or improvement or a non-conforming characteristic of any land or improvement, which has not been changed to conformity with these Regulations or otherwise terminated, may remain and be continued and shall not be required to conform to these Regulations.” Section 50E.1 provides that a nonconforming use should not be resumed or restored “[i]f such use . . . has not existed for a period of one year from the date of cessation or from the effective date of the applicable regu
It is clear that under this clause, “or from the effective date of the applicable regulation,” no intent is necessary. Where, for example, the town amends its zoning regulations and thereby makes a parcel of then unused property nonconforming, if the owner does not use the property “for a period of one year . . . from the date of the applicable regulation,” the nonconforming use is extinguished without regard to the owner’s intent.
The conclusion of the trial court in this case would require intent where the owner ceased the nonconforming use and did not exercise it for a period of one year, but would not require intent where the owner did not exercise for one year a use which became nonconforming by virtue of a change in the zoning regulations. We see no justification in the regulations for such a distinction.
Third, this interpretation is consistent with the long standing policy of this state with regard to nonconforming uses. That policy is that “ ‘ “nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit . . . .” ’ ” Weyls v. Zoning Board of Appeals, 161 Conn. 516, 520, 290 A.2d 350 (1971); see also T. Tondro, Connecticut Land Use Regulation, p. 73.
The plaintiff also claimed in its appeal to the trial court that the board erred in determining that the plaintiff had not used the property, within the meaning of § 50E.1, for a period of one year. The trial court did not rule on this claim because of its legal conclusion regarding the meaning of “cessation.” Although the plaintiff in its brief in this court has attempted to supply this claim as an alternate ground for sustaining the
There is error, the judgment is set aside and the case is remanded for further proceedings according to law.
In this opinion the other judges concurred.
At the time of its initial application to the zoning enforcement officer, the plaintiff was not the owner of the property but was a proposed user thereof. The plaintiff subsequently purchased the property while its appeal to the zoning board of appeals was pending.