Woodbury Donuts, LLC v. Zoning Board of Appeals of the Town of Woodbury
A proposed change of a nonconforming use from seasonal to year round constitutes a change in character of the previous use and, therefore, is an impermissible expansion of that use. The plaintiffs, Woodbury Donuts LLC and Eyre, LLC applied for a zoning permit to operate a Dunkin Donuts in Woodbury. The town zoning enforcement officer denied the application. Woodbury's zoning board of appeals upheld the denial. The plaintiffs appealed to the trial court which dismissed their appeal. The court found, contrary to the board, that the prior restaurant on the property, Corey's Restaurant, had been a nonconforming rather than a conforming use of the property and that the proposed year-round use as a Dunkin Donuts restaurant would expand the seasonal use by Corey's Restaurant. The plaintiffs appealed challenging the court's determination that substantial evidence in the record supported the conclusion that the proposed use constituted an impermissible expansion of a pre-existing, legal nonconforming use and that the doctrine of municipal estoppel did not apply. The Appellate Court affirmed the judgment. The plaintiffs contended that their proposed franchise represented an intensification and not an expansion of the previous legal nonconforming use. However, Connecticut case law supported the board's determination that the proposed change of a nonconforming use from seasonal to year round would constitute a change of character of the previous use and, therefore, would be an impermissible expansion of that use. The board's conclusion found support in the record and town's zoning regulations. Further, because the Dunkin Donuts intended to open at 5 a.m. and receive earlier truck deliveries, the board members voiced concerns that the character of the use would change by adversely impacting residents of a nearby elderly housing development. A reduction in seating for customers also supported the inference that the proposed use primarily would be take-out. The proprietor of Corey's Restaurant had stated that 80 percent of the patronage would be eating on-site. Additionally, the trial court did not improperly determine that the plaintiffs failed to prove their claim of municipal estoppel under the circumstances of this case.