Agenda - Planning Commission - 09/04/2003

Home

Pa*~~-,--,' August ~ lO, 2000 Z.B. 132 Due Process -- Zoning officer toils spring water bus/ness current use is not permitted Business says use is within agricultural exception COb~fECT!CUT (6/13/03') ~ Gavlak owned real property m Somers and he operated r~side Spnngs F~ ~C. witch ~e town ~rs. 2Z~lside was a:spnng water business that used water co-~ng ~om four narurai springs located on a _parcel that Gay!ak leased from a ~" ,,~ esrabhs~ent }shown as Wood F~. Before i991, the water collected and stored on the prope~y was used for fi/ling swq~ng pools. A~ker ~har, the. water was stored on the prope~/before' bein~ sent re bo~i2~=~o facilities,, then sotd for human consumption. On Dec. 30, ' o .... . ,¢90, the zomng enforcement orncer sent a letter ro Gav!~. advising ~m the cu~enr use of the prope~y was prohbtred by the local zomng regulations. %ne letter amounted roa cease and desist notification. Gavtak and Hillside appeaied ro the zoning o,~d of appeals. ~guing the . ,,vtrhm the scope of use of ~he propen,/ was a pe~firred use because [r }~ll '" ' ' a~nc~trur~ and/or f~mg." They :~[so contended the use of the prope~y collect spring water consffrured a regal nonconfo~ng use inasmuch as water had been coilecred t~om the springs for several hundred ye~s. The board afl, ed the cease and desist order bur o~y considered the per- ~Ued agnculturai uses, %se bo~d did nor decide the aoncovdo~ng use issue. Hillside appealed [o the rna[ coup, which afl,ed the bo~dts demsion. On appeal, the Connect[cur .Supreme Cou~ agreed'that the plain~.~:'s use of the properv was nor a pestled use, bur the maker was remanded ro the board m~e a decision on [he aonconfo~ng use ~ssue. ~ae bo~d decided the use of the properW did nor constitute a aonco~'o~-' mg use. %ne bo~d did nor conduct a heanng and. would not Mlow the plaintiffs ro be he~d. ~side and Gav[~ sued the town ~d the board cla~ng they were de- prived of rhe~ prope~y fi~hrs without just compensation and the [own and board ,Ao[ared the= rights ro due process and equal protection. The [own and board asked the court ro disuse the claims. 'DECISION: Dismissal denied in part. The just compensation claim was nor rope because ~side d~d not plead any facts uvon which rile cou~ could infer that it utilized ¢11 stare procedures available so as ro procure just compensation for ~he "~al~g." However, the court noted the board's decisions ro decide the nonconfo~- lng use without giving ~he p~aintiffs an oppo~nity ro be heard were mare and i=arionai k they were ,~ecause , mamfesrarions of ~he bond's desto destroy the spnng water business. 7urger, since Hillside' and Gav[~ have teged a prorecrabie property interest (nonco~o~ng use) and alleged ~he bo~d. took illegal actions, they ctaimed facts sufficient to overcome the defendant's morion m disuse. ~ malty, ~mflmde and Gavmtc a~eged ~he ooard intentionally "subjected them