Agenda - Planning Commission - 07/10/2008

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Zoning Bulletin its decision on its finding that the commission had first denied the Benyeis' application because the structure was nonconforming. The appellate court disagreed with that finding and instead found that the commission had not given a collective reason for its decision. Com- mission members had commented that the proposed arena was an il- legal expansion of a preexisting, nonconforming use. However, they had also commented as to the failure of the structure to meet the 100 foot setback requirements in the regulations. Relying on the latter of those comments, the Benyeis had argued that the successive applica- tion rule did not apply because the plan was changed substantially in that it brought the proposed structure into compliance with the ap- plicable zoning regulations. The court emphasized that a subsequent permit application made in order to bring a prior application into compliance with applicable regulations was-no matter how minor the work involved would be--clearly not minor in regard to its sig- nificance and effect. The court therefore concluded that if, as the Be- nyeis argued, the revised application satisfied all of the requirements for the use of the arena, the commission was entitled to review the subsequent application and approve the site plan. Nevertheless, the court also concluded that the Benyeis had to ap- ply for a special permit for the proposed arena. The Richardsons had argued that a special permit was needed because the proposed arena involved the expansion of a nonconforming use. The court did not agree with that argument. Rather, the court found that a special per- mit was needed because the arena would alter the Benyeis' permitted special use of the property. The court found the Benyeis' use of the property was not, as the Benyeis had argued, primarily for farming; it was for the raising of horses. The court found that "livestock farms" was a permitted special use under the town's zoning ordinance. The court noted that the Benyeis' use of the property was established be- fore a special permit for livestock farms was required. Still, the court said, any enlargement of the use had to conform with the town's zon- ing requirements, The town's zoning ordinance said a use subject to a special permit could not be "altered" without approval of a special permit application. Finding the proposed arena would require its own septic system, the court concluded that the Benyeis' permitted special use of the property as a livestock farm would be altered by the con- struction of the arena. Accordingly, the court found that the zoning regulations required them to apply for a special permit for the arena. See also: Grasso v. Zoning Ed. of Appeals of Groton Long Point Ass'n, Inc., 69 Conn. App. 230, 794 A.2d 1016 (2002). 4 64