LLC v. Ansonia Planning & Zoning Commission (2011)

MEMORANDUM OF DECISION

The plaintiffs, Ansonia M & L Properties, LLC and Mark Tice, appeal the decision of the defendant, the planning and zoning commission of the City of Ansonia.   The plaintiffs are the owners and operators of property located on 420 Main Street in Ansonia, Connecticut (“the property”).   The property falls within the City Center Zone pursuant to a zoning map amendment which was adopted by the City of Ansonia in February 4, 2009.   Section 222.05 of the zoning map regulations prohibits building contractors and subcontractors yards within the City Center Zone. On February 26, 2009, the plaintiffs submitted an application for a special exception, seeking in part to store and sell surplus earth material on the site.   On May 18, 2009, the commission approved the plaintiffs' application for a special exception subject to certain conditions, including a prohibition against storing or selling material on the site.   The plaintiffs appeal the commission's decision including this prohibition, arguing that they have the right to continue an established nonconforming use on their property.

As per the papers and counsel's statements at the administrative hearing, the only issue presented is whether there existed a nonconforming use on the property that predated the zoning amendment.  “A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted ․ For a use to be considered non-conforming ․ that use must possess two characteristics.   First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted.”  (Internal quotation marks omitted.)  Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 165 n.5, 855 A.2d 1044 (2004).  “The plaintiff bears the burden of proving the existence of a nonconforming use.”  Francini v. Zoning Board of Appeals, 228 Conn. 785, 789, 639 A.2d 519 (1994).   The plaintiffs, however, have failed to show that they engaged in a nonconforming use predating February 4, 2009, the date that the City Center Zone was adopted.   The record is devoid of facts that support the proposition that the plaintiffs stored or sold material on the property prior to the adoption of the zoning amendment.   Accordingly, the court denies the plaintiff's appeal of the zoning commission's decision.

The Court

By Hiller, J.

Hiller, Arthur A., J.