Agenda - Planning Commission - 08/07/2008

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'. .' June 25, 20081 Volume 2/ No. 12 -..' j '._./' The Richardsons opposed the construction of the arena. They insisted that the Benyeis' proposed arena was an expansion of a nonconforming use. In 1986, an amendment to the town's zoning regulations had limited the number of horses allowed for any "animal raising operations" to one per 0.8 acres. The amended regulations. therefore had limited the nuinber 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 Property 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 submission 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 Benyeis' appli- cation and required it be submitted through a special permit 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 or- dinance 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 arena could be constructed as a permitted use. The Benyeis also argued that since the only nonconfor- mity on the Property was the number of horses and the proposed arena did not increase that nonconformity, they did not need a special permit. . , The commission agreed and approved the site plan. The Richardsons appealed. The lower court said that the commission'should not have considered the Benyeis' revised'application. The court said this was because the subse- quent application rule applied. That rule generally prohibited 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 noncon- forming. Accordingly, the court concluded that the commission improperly reversed its initial decision on the first of the Benyeis' applications. The Benyeis appealed. " 1 j I DECISION: Affirmed. The Appellate Court of Connecticut found that the successive applica- tion rule did not apply. The court so concluded because it found there was a material change of conditions. The lower court had based its deci- sion on its finding that the commission had first denied the Benyeis' ap- @ 2008 Thomsoh ReuterslWest 3 27