Caserta v. Zoning Board of Appeals
Caserta v. Zoning Board of Appeals
Opinion of the Court
The defendant zoning board of appeals of the city of Milford (board)
This case has a protracted history. The facts and procedural evolution of this case are adequately set out in four prior appellate opinions. See generally Caserta v. Zoning Board of Appeals, 23 Conn. App. 232, 580 A.2d 528 (1990) (Caserta I); Caserta v. Zoning Board of Appeals, 219 Conn. 352, 593 A.2d 118 (1991) (Caserta II); Caserta v. Zoning Board of Appeals, 28 Conn. App. 256, 610 A.2d 713 (1992) (Caserta III); Caserta v. Zoning Board of Appeals, 226 Conn. 80, 626 A.2d 744 (1993) (Caserta IV). We will provide additional pertinent facts and procedural events as required.
In Caserta IV, supra, 226 Conn. 82, our Supreme Court concluded that the trial court did not apply the proper scope of review to the board’s decision to uphold the revocation of the plaintiffs zoning permit.
The board claims that the trial court, in determining that the board should not have upheld the revocation of the plaintiffs zoning permit, improperly focused on the intent of the plaintiff to reestablish the nonconforming use of the subject property. The board asserts that the trial court should have considered the evidence in the record regarding the prior owners ’ intent to reestablish the nonconforming use because they were the owners who originally discontinued that use. We agree with the board.
In its memorandum of decision, the trial court determined that the board improperly found that there had been an “abandonment” of the nonconforming use of the plaintiffs property pursuant to the Milford zoning regulations.
At the time of the hearing before the board, § 6.2.7 of the Milford zoning regulations mandated the following:
The trial court, in reviewing the decision of the board, was required to “determine only whether the assigned grounds [for the board’s decision] are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.” (Internal quotation marks omitted.) Caserta IV, supra, 226 Conn. 86-87. We conclude that the trial court improperly reviewed the record before the board in light of the Milford zoning regulations. The trial court determined that the record supported a finding that the prior owners had voluntarily discontinued the nonconforming use, but the trial court did not determine whether the record supported a finding that the prior owners’ discontinuance of the nonconforming use was accompanied by their intent not to reestablish that use. Instead, the trial court improperly focused on the intent of the plaintiff to reestablish the nonconforming use, while, according to
To determine if the record before the board supported a finding of abandonment pursuant to the Milford zoning regulations, the trial court, having already determined that the record supported the finding that the prior owners had voluntarily discontinued the nonconforming use, is next required to determine whether the record supported the finding that the prior owners’ voluntary discontinuance of that use was accompanied by their intent not to reestablish that use. Milford Zoning Regs., § 6.2.7.1 (1987). On the basis of that determination, the trial court should proceed with its findings and render judgment accordingly.
The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
The Milford city clerk was cited as an additional defendant. The board has been regarded as the sole defendant throughout the course of the litigation. See Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82 n.1, 626 A.2d 744 (1993).
The proper standard of review is as follows: “Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.’ . . . [Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commis
The trial court’s original judgment sustained the plaintiffs appeal from the decision of the board.
Section 6.2.7 of the Milford zoning regulations at the time of the board’s hearing provided: “Abandonment. Any non-conforming use which has been abandoned shall not thereafter be re-established. Any structure or land, or structure and land in combination which was formerly devoted to a nonconforming use which has been abandoned, shall not again be devoted to any use other than those uses which are allowable in the Zoning District in which it is located.”
Section 6.2.7.1 of the Milford zoning regulations provided: “The term abandonment, as used herein, shall mean the voluntary discontinuance of
“(X) Any failure to take all necessary steps to resume the non-conforming use with reasonable dispatch in the circumstances, including advertising of the property for sale or for lease; OR
“(2) In the case of a non-conforming use of a structure or of a structure and land in combination, discontinuance of the non-conforming use for 6 consecutive months, or for a total of 18 months during any three year period; OR
Reference
- Full Case Name
- JAMES CASERTA v. ZONING BOARD OF APPEALS OF THE CITY OF MILFORD
- Cited By
- 6 cases
- Status
- Published