Agenda - Planning Commission - 07/10/2008

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June 10, 20081 Volume 2 I No. 11 tions had limited the number of horses allowed for any "animal rais- ing operations" to one per 0.8 acres. The amended regulations there- fore had limited the number of horses allowed on the Benyeis' 6.4 acre parcel to eight. At that time, the Benyeis had kept from twenty to twenty-five horses on the Property. Therefore, their use of the Proper- ty as to the number of horses on the parcel had become a preexisting nonconforming use. The Richardsons argued that the nonconforming use of the Property was being expanded and therefore it required sub- mission and approval of an application for a special permit. The town's zoning commission (the commission) initially agreed that a special permit was required. The commission denied the Be- nyeis' application and required it be submitted through a special per- mit process. However, in November 2005, the Benyeis submitted a revised plan to the commission. The revised plan moved the proposed arena more than 100 feet from the Richardsons' property. The Benyeis said the primary use of their land was farming, which was a permitted use in the zoning district where the Property was located. They noted that the zoning ordinance required major structures on a farm be set back 100 feet. They argued that since the proposed arena was now set back more than 100 feet from the Richardsons' property, the are- na could be constructed as a permitted use. The Benyeis also argued that since the only nonconformity on the Property was the number of horses and the proposed arena did not increase that nonconformity, they did not ne.ed a special permit. The commission agreed and approved the site plan. The Richardsons appealed. The lower court said that the commission should not have consid- ered the Benyeis' revised application. The court said this was because the subsequent application rule applied. That rule generally prohib- ited zoning boards of appeal from reversing a prior decision unless there had been a material change of conditions. The court determined that the change in location was minor because it was the structure, not its location, which was nonconforming. Accordingly, the court concluded that the commission improperly reversed its initial decision on the first of the Benyeis'applications. The Benyeis appealed. DECISION: Affirmed. The Appellate Court of Connecticut found that the successive ap- plication rule did not apply. The court so concluded because it found there was a material change of conditions. The lower court had based 3 63