Agenda - Planning Commission - 04/04/2013

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February 10, 2013 I Volume 7 I Issue 3 Zoning Bulletin ing enforcement officer found that the proposed use was "not permitted" under the Town's zoning regulations and was "significantly different in character from[,] and [was] an impermissible expansion off,] the previous non - conforming use." Woodbury Donuts appealed to the Town's zoning board of appeals (the "ZBA "). After a four day public hearing, the ZBA agreed with the zoning enforcement officer's findings and denied Woodbury Donuts' appeal. Woodbury Donuts appealed to the trial court. The trial court affirmed the ZBA's decision. Woodbury Donuts again appealed. It argued that the proposed use as a fast food restaurant was a vested nonconforming use. It noted that the 2006 special permit did not contain any seasonal restrictions. It also noted that the Town's zoning regulation did not distinguish between seasonal and year -round use of properties. Woodbury Donuts argued that the expanded hours and months of operation for the proposed Dunkin Donuts franchise (compared to the seasonal Corey's restaurant) represented "an intensification, not an expansion, of the previous legal nonconforming use." Accordingly, it contended that the ZBA should have approved its zoning permit application. DECISION: Judgment of superior court affirmed. The Appellate Court of Connecticut held that Woodbury Donuts' proposed year -round use of the property as a Dunkin Donuts restaurant was an impermis- sible expansion of the preexisting, legal nonconforming use established by Corey's restaurant as a seasonal fast food restaurant. In so holding, the court acknowledged that "a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use...." However, "[a] change in the character of a use... does consti- tute an unlawful extension of the prior use." Thus, explained the court: "In decid- ing whether the current activity is within the scope of a nonconforming use[,] consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property." The court further explained that: "[t]o be . illegal, an extension of a permitted use need not necessarily consist of additional uses of a different character. It may consist of uses of the same character carried on over a substantially additional period of the year...." Relying on Connecticut case law, the court concluded that the proposed change of a nonconforming use from seasonal to year -round would constitute a change in character of the previous use. Therefore, it would be an impermissible expansion of that use. Here, under Woodbury Donuts' proposal, the Dunkin Donuts restaurant busi- ness would: expand the restaurant use into additional months of the year; change the restaurant use from primarily eat -in to primarily take -out; and potentially adversely impact nearby residents with truck deliveries prior to 5:00 a.m. The court concluded that the ZBA's determination that the proposed year - round use as a Dunkin Donuts franchise was significantly different in character from the previous seasonal use as Corey's restaurant and was an impermissible expansion of the previous nonconforming use had support in the record, in the town's zoning regulations and in Connecticut case law. 6 © 2013 Thomson Reuters