Agenda - Planning Commission - 11/08/1999

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Page 8 -- Septembe'r 25, 1999 Z.B. When the city originally enacted its zoning regulations in 1956, a gas sta- tion on the property made the property a legal nonconforming use. The zoning board later allowed the previous owner to change the nonconforming use from "filling station" to "fast food restaurant," and its decision was upheld in court. The previous owner sold the property in i986 but regained title four years later through foreclosure. Throughout the 1980s and 1990s, several owners had operated various res- taurants on the property. The most recent restaurant had closed in 1997, but the previous owner swore, "I have never abandoned or had any intent to abandon the use of the property as a restaurant offering both sit-down and take-out service." The zoning commission approved the owner's site plan application for the Dunkin' Donuts, finding it complied with the property's nonconforming use status. Williams and other neighbors appealed to court. They claimed the com- mission illegally approved the site plan because the proposed use wasn't al- lowed in a residential district. They said a former owner, apparently the one who lost the property through foreclosure, abandoned the property's noncon- forming use and argued the new owner couldn't reclaim it. The neighbors also claimed that even if the property continued as a nonconforming use, the com- mission shouldn't have approved the site plan because the proposed use ille- gally expanded the prior nonconforming use. The zoning commission asked the court to dismiss the neighbors' lawsuit. DECISION: Complaint dismissed. There was more than enough evidence for the commission to conclude the proposed use neither changed the character of the nonconforming use nor ille- gally expanded that use. The property never lost its nonconforming status. Contrary to the neigh- bors' claims, the previous owner never abandoned the property's nonconform- ing use -- as his statement cl~arty showed. Nor did the proposed use illegally expand the prior nonconforming use. The property had been used for the past two decades by restaurants that served sit-down and take-out meals. The proposed Dunkin' Donuts would sell bever- ages and baked goods in addition to coffee and donuts. All of those items could be consumed on the premises, just. as in the previous restaurants. Moreover, even if the donut shop would increase the amount of business conducted at the premises, this wouldn't amount to an illegaI expansion of the original use. To lose its nonconforming status, there had to be a change in the character of the existing use. Citation: Williams v. Zoning Commission of the Town of Westbrook, Superior Court of Connecticut, Judicial Dist. of Middlesex, at Middletown, No. CV 980086189S (1999). see also: Gorman Construction Co. v. Planning dc Zoning Commission, 644 A.2d 964 (1994).