Agenda - Planning Commission - 08/06/1996

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Revocation of Permit -- Whose intent matters when deciding abandonment of nonconforming use? Caserta v. Zoning Board of Appeals of the City of Milford, 674 A.2d 855 (ConnecticuO 1996 Caserta bought property in the city of Milford, Conn. According to wit- nesses, the prior owners had voluntarily discontinued for several years a legal nonconforming use of the property. Nevertheless, Caserta got a zoning per- m~t to reestablish the use. The zoning enforcement officer revoked Caserta's zoning permit, saying the nonconforming use had been abandoned. Under the city's zoning ordi- nance, "abandonment" meant "the voluntary discontinuance of a use, when accompanied by an intent no(t) to re-establish [sic] such use." Once a non- conforming use was abandoned, it could not be reestablished; the property's : use had to comply with the ordinance. .Caserta appealed to the city's Zoning Board of Appeals, which upheld the revocation. Caserta appealed to court. After a trial and several appeals, the.trial court · reversed .the board's decision. It found that despite the prior owners' discontinuation, Caserta intended to reestablish the use. Therefbre, the court held, the board improperly found an abandonment of the use. The ~board appealed. The board said the court should have considered whether the prior owners ever intended to reestablish the use, not whether Caserta had such an intent. DECIsIoN: Reversed and sent back to the trial court. The trial court improperly considered Caserta's intent instead of the prior owners'. The judgment was reversed, and the case was sent back to the trial court for further proceedings on that issue. Because they were the ones who discontinued the nonconforming use, the former owners' intent to reestablish the use was the only relevant inquiry. The ordinance said the voluntary discontinuance had to be accompanied .by the intent not tO reestablish, so the only person's intent that mattered was the person who discontinued the use. Editor's note: Four other court decisions provide greater detail about this case. They are, in chronological order: Caserta v. Zoning Board of Appeals, 580 A.2d 528 (i990); Caserta v. Zoning Board of Appeals, 593 A.2d 118 (1991); Caserta'v. Zoning Board of Appeals, 610 A.2d 713 (1992); 'and'Caserta v. Zoning t~oard of Appeals, 626 A.2d 744 (1993). Subdivision: Does board have to decide Whether new state statute applies? Holland v. City of Cannon ;5each, 915 lq. 2d 407 (Orego~O t996 Holland wanted to form an ll-Iot residential subdivision/_n the city of Cannon Beach, Ore. The city denied his development application, finding it didn't com- ply with the city's comprehensive plan. However, the comprehensive-plan poli- cies on which the city relied were not part of the city's land-use regulations.