High Watch Recovery Center, Inc. v. Planning & Zoning Commission

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HIGH WATCH RECOVERY CENTER, INC. v.
PLANNING AND ZONING COMMISSION
OF THE TOWN OF KENT
(AC 45972)
Prescott, Clark and Seeley, Js.*

Syllabus

The plaintiff appealed to this court from the trial court’s judgment dismissing
its appeal from the decision of the defendant town planning and zoning
commission denying the plaintiff’s special permit application to con-
struct a greenhouse on its farm property in Kent. Since 1939, the plaintiff
has operated a residential treatment program for individuals with sub-
stance abuse disorders, which includes a residential facility with an on-
site kitchen, on real property located across the street from the farm
property. In 2017, the plaintiff purchased the seventy acre farm property
that had been used for farming at the time the plaintiff purchased it.
Both the farm property and the residential property are located in the
town’s rural residential district. The regulations for the rural residential
district in place at the time the plaintiff purchased the farm property
in 2017 permitted, subject to special permit review and approval, a
privately operated hospital, clinic, nursing home, or convalescent home.
In early 2018, the plaintiff filed with the defendant a special permit
application and a site plan application seeking approval to conduct
therapeutic activities on the farm property in conjunction with the resi-
dential treatment program, including equine therapy, a ropes course and
climbing wall, and a therapeutic agricultural program and accompanying
kitchen facility. The defendant subsequently approved the plaintiff’s
applications for the farm property for therapeutic activities in conjunc-
tion with a privately operated hospital, clinic, nursing or convalescent
home or similar institution. In February, 2020, the town’s zoning regula-
tions were amended to prohibit, by special permit, a privately operated
hospital, clinic, nursing home or convalescent home in the rural residen-
tial district. In August, 2020, the plaintiff applied for a special permit
to add a hoop house style greenhouse to the existing garden/pasture
area of the farm property in order to enhance its existing farming capac-
ity. The plaintiff’s application stated, inter alia, that the use of a green-
house was consistent with its special permit application from 2018 and
that the intention of the use of the greenhouse was not to expand
its therapeutic work but to expand its capacity to provide fruits and
vegetables to the residential facility. After a public hearing, the defendant
denied the plaintiff’s application, finding that the proposed greenhouse
was an impermissible expansion of a nonconforming use. The plaintiff
appealed to the Superior Court, claiming, inter alia, that the proposed
greenhouse was within the scope of the prior approved special use
permit issued to the plaintiff in 2018, that the greenhouse was a permissi-
ble intensification of that prior approved, but now nonconforming, thera-
peutic agricultural or farm use, and that the substantial evidence in the
record did not support the defendant’s stated reasons for its denial. After
briefing and oral arguments, the court rendered judgment dismissing
the plaintiff’s administrative appeal, concluding that the nonconforming
use of the farm property was limited to the precise terms of the 2018
special permit and the site plan that the plaintiff submitted in support
of its application for that permit and that the plaintiff could not, as a
matter of law, intensify the use of the farm property in accordance with
the test set forth in Zachs v. Zoning Board of Appeals (218 Conn. 324),
in which the Supreme Court set forth three criteria for determining
whether a valid nonconforming use of property has been permissibly
intensified or impermissibly expanded, including the extent to which
the current use reflects the nature and purpose of the original use, any
differences in the character, nature and kind of use involved, and any
substantial difference in effect upon the neighborhood resulting from
differences in the activities conducted on the property. The court also
held that a reasonable interpretation of the defendant’s first stated rea-
son for its denial was that the greenhouse constituted an impermissible
expansion of the nonconforming use, that, even if the use of the farm
property could have been intensified, the addition of a greenhouse to
an approved special permit accompanied by a site plan that did not
include a greenhouse would be an impermissible expansion rather than
a permissible intensification, and that the defendant’s first stated reason
for the denial was supported by substantial evidence in the record. After
a grant of certification, the plaintiff appealed to this court. Held:
1. The trial court erred as a matter of law in concluding that the plaintiff’s
valid nonconforming use of the farm property could not be intensified
in accordance with the criteria set forth in Zachs because it arose from
a special permit: the case on which the defendant primarily relied in
claiming that the unique nature of special permits supported the court’s
conclusion that the plaintiff could not intensify its valid nonconforming
use of the farm property that was approved by the 2018 special permit,
Barberino Realty & Development Corp. v. Planning & Zoning Commis-
sion (222 Conn. 607), did not involve a valid nonconforming use or
discuss the interplay of a use approved by special permit and the
important rights a property owner has in a use that later becomes
nonconforming; moreover, a review of the case law addressing noncon-
forming uses led this court to conclude that a use approved by special
permit may be intensified in accordance with the Zachs criteria, as
the Supreme Court has made clear that the right to continue a valid
nonconforming use includes a right to intensify that use, and to limit a
valid nonconforming use to the exact specifications of a site plan that
was submitted with the application for the special permit approving
what subsequently becomes a valid nonconforming use would invade
the constitutional guarantees of due process that brought the noncon-
forming principle into being; furthermore, the trial court’s per se rule
prohibiting any intensification of a valid nonconforming use that origi-
nated from a special permit on the basis that the special permit was
approved in conjunction with a site plan, if accepted, would prohibit
the intensification of any nonconforming use that arose from any of the
host of other uses approved in conjunction with a site plan, including
any activity designated in the regulations as requiring site plan approval,
whereas the very nature of the analysis required under Zachs, on the
other hand, ensures that any proposed intensification of a valid noncon-
forming use is consistent with the nature and scope of that nonconform-
ing use, and, unlike a per se rule prohibiting the intensification of a use
approved by way of a special permit, the Zachs approach balances an
owner’s protected interest in the reasonable use of his or her property
with a local government’s valid interest in ensuring that the property
continues to be used in a manner that is consistent with the zoning
regulations.
2. The trial court erred in concluding that there was substantial evidence
in the record to support the defendant’s finding that the addition of
the proposed greenhouse would constitute an illegal expansion of the
plaintiff’s valid nonconforming use of the property:
a. On the basis of its review of the record, this court concluded that the
use of the proposed greenhouse reflected the nature and purpose of the
existing, original use of the farm property, given that it would be placed
on the existing garden and pasture area on the farm property where
plants were already grown, it would be in close proximity to the existing
house and barn on the farm property, and it would permit the plaintiff
to continue to grow fruits and vegetables in order to feed and support
the residents and staff residing on the residential property, activities
that it already performed.
b. This court concluded that the proposed greenhouse simply provided
an improved and more efficient way to grow fruits and vegetables and
to provide therapeutic agricultural services, and the fact that the green-
house may have increased the fruit and vegetable yield already used to
support the residents and staff on the residential property could not
reasonably be said to involve differences in the character of the noncon-
forming use rather than increases in the volume of business within the
scope of the original use; moreover, the defendant’s argument that the
addition of a structure to a nonconforming use was a per se change in
the character of the use, constituting an illegal expansion, found no
support in the case law, and, although some courts had concluded that
the addition of a new structure or the expansion of an existing building
constituted an illegal expansion of a nonconforming building or use, the
legality of a proposed change to a nonconforming use was a fact intensive
inquiry that must be conducted on a case-by-case basis; furthermore,
although a proposal to extend a nonconforming use into an additional
season or seasons may, under certain circumstances, constitute an illegal
expansion of the nonconforming use, the defendant relied on a highly
technical and overly narrow characterization of the existing use of the
farm property in support of its argument that the proposed greenhouse
would impermissibly allow activities over a substantially additional
period of the year, and this court could not conclude on the basis of
the record that the addition of the greenhouse, which would simply allow
the plaintiff to increase its fruit and vegetable yield, constituted an illegal
expansion when the farm property was already being used year-round
for related activities.
c. Contrary to the defendant’s arguments, the plaintiff’s proposed use
of the greenhouse was consistent with the permitted as of right uses
and accessory uses in the zoning district in which the farm property
was located, and the relevant provisions of the town zoning regulations
undercut the defendant’s contention that there would be a substantial
effect on the neighborhood by the use of the proposed greenhouse;
moreover, there was no evidence in the record that the proposed green-
house would be seen from the road, and, although the defendant made
conclusory arguments on appeal suggesting that the greenhouse may be
seen from the road and that the site plan showed that the proposed
greenhouse would be quite close to surrounding properties, these argu-
ments did not, without more, demonstrate that there would be a substan-
tial effect upon the neighborhood; furthermore, although numerous
neighbors spoke at the hearings held by the defendant and voiced their
displeasure with the plaintiff’s expansion in the town over the years,
most of the statements were not specific to the application and site plan
under consideration but, instead, constituted general grievances about
the plaintiff and the construction on the residential property that the
defendant had previously approved, and, because the comments by the
neighbors amounted to general concerns, speculation, and mere worry,
such comments did not qualify as substantial evidence and therefore
provided little, if any, evidence concerning the proposal’s effect on the
neighborhood.
Argued September 21, 2023—officially released January 23, 2024

Procedural History

Administrative appeal from the decision of the defen-
dant denying the plaintiff’s special permit application
to build a greenhouse on its property, brought to the
Superior Court in the judicial district of Litchfield,
where the court, Hon. John W. Pickard, judge trial
referee, rendered judgment dismissing the plaintiff’s
appeal, from which the plaintiff appealed to this court.
Reversed; judgment directed.
Christopher J. Smith, for the appellant (plaintiff).
Michael A. Zizka, for the appellee (defendant).
Opinion

CLARK, J. In this certified zoning appeal, the plaintiff,
High Watch Recovery Center, Inc., appeals from the
judgment of the Superior Court dismissing its adminis-
trative appeal. The plaintiff brought the underlying
appeal to the Superior Court from a decision of the
defendant, the Planning and Zoning Commission of the
Town of Kent (commission), denying its special permit
application that proposed the addition of a thirty foot
by seventy foot greenhouse to its property located at
47 Carter Road in Kent. The commission denied the
plaintiff’s application because it determined that the
plaintiff’s proposed greenhouse was an illegal expan-
sion, rather than a permissible intensification, of its
valid nonconforming use of the property. On appeal,
the plaintiff claims that the court erroneously con-
cluded that (1) the plaintiff could not, as a matter of law,
intensify its valid nonconforming use of the property
because the intensification doctrine recognized by our
Supreme Court in Zachs v. Zoning Board of Appeals,
218 Conn. 324, 332, 589 A.2d 351 (1991),1 does not apply
to a nonconforming use that arises out of a previously
issued special permit and (2) the substantial evidence
in the record supported the commission’s determina-
tion that the plaintiff’s proposed greenhouse was an
illegal expansion of its valid nonconforming use. For
the reasons that follow, we agree with the plaintiff and
reverse the judgment of the Superior Court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. Since 1939, the
plaintiff has operated a residential treatment program
on real property known as 62 Carter Road in Kent (resi-
dential property) for individuals with substance abuse
disorders. Located on the residential property is a sev-
enty-eight bed residential facility that includes an on-
site kitchen.
On June 23, 2017, the plaintiff purchased property
located across the street from the residential property.
That property is known as 47 Carter Road and is the
subject of this appeal (property). The property spans
approximately seventy acres and was used for farming
up until the time the plaintiff purchased it in 2017. Both
the property and the residential property are located
in Kent’s Rural Residential (RU-1) district.
Kent adopted zoning regulations for the first time in
or about 1965. In the RU-1 district, the Kent Zoning
Regulations (regulations) in place at the time the plain-
tiff purchased the property permitted, subject to special
permit review and approval, ‘‘[a] privately operated hos-
pital, clinic, nursing home, or convalescent home
. . . .’’ Kent Zoning Regs., c. 3200, § 3224 (2018).
Because the plaintiff had operated its residential treat-
ment program on the residential property prior to the
adoption of the regulations, the plaintiff was not
required to obtain a special permit for the residential
property. To the extent the plaintiff wished to engage
in such activities on the subject property located across
the street from the residential property, however, the
regulations required it to obtain a special permit.
In February, 2018, the plaintiff filed with the commis-
sion a special permit application and a site plan applica-
tion seeking approval to conduct therapeutic activities
on the property in conjunction with the treatment pro-
gram that it operated on the residential property. The
special permit application stated in relevant part: ‘‘[The
plaintiff] has the opportunity to incorporate into its
existing program additional therapies that have proven
effective in the treatment of substance use disorders.
These new therapies would include equine therapy, a
ropes course and climbing wall, and a therapeutic
agricultural program and accompanying kitchen facil-
ity. In fact, [the plaintiff] purchased the property as a
working farm in part to continue its agricultural use.
. . . The therapies at [the property] will be offered as
part of the [plaintiff’s] existing . . . treatment plan, not
as a standalone program; the residents that participate
in the therapies offered at [the property] will be the
same residents living at the [residential property] across
the street.’’ In March, 2018, the commission adopted a
resolution approving the plaintiff’s applications for the
subject property for ‘‘therapeutic activities in conjunc-
tion with a privately-operated hospital, clinic, nursing
or convalescent home or similar institution . . . .’’
On February 16, 2020, the regulations were amended
to prohibit the plaintiff’s addiction treatment services
in the RU-1 district. Specifically, the amendment elimi-
nated language from the regulations that permitted, by
special permit, ‘‘[a] privately operated hospital, clinic,
nursing home, or convalescent home . . . .’’ Compare
Kent Zoning Regs., c. 3200, § 3224 (2018), with Kent
Zoning Regs., c. 3200, § 3224 (2020).
On August 20, 2020, the plaintiff applied for a special
permit to add a thirty foot by seventy foot ‘‘hoop house’’
style greenhouse2 to the ‘‘existing [g]arden/pasture
area’’ of the property. The plaintiff stated that it sought
to add the greenhouse in order ‘‘to enhance [its] existing
farming capacity.’’ The application further stated, inter
alia, that ‘‘[t]his is consistent with our special permit
application from 2018 which stated, ‘[The plaintiff] pur-
chased the property as a working farm in part to con-
tinue its agricultural use.’ We remain true to that inten-
tion and we seek to further continue that pre-existing
use. The intention of this application for a hoop house
is not to expand our therapeutic work but to expand
our capacity to provide fruits and vegetables to [the
residential property].’’
The commission held a public hearing on the plain-
tiff’s special permit application on multiple days in Sep-
tember and October, 2020. On November 12, 2020, the
commission, by a vote of four to two, denied the plain-
tiff’s application. The commission’s stated reasons for
its denial were as follows: ‘‘a. With regard to [§ 10440
(3)], which states: ‘Whether the proposed use will have
a detrimental effect on neighboring properties or the
development of the district’, the [c]ommission finds that
based on the representations made by the applicant, it
is unclear whether or not this proposed structure and
its use would increase the intensity of a use that is pre-
existing, non-conforming as a result of its affiliation
with the use of 62 Carter Road.
‘‘b. With regard to [§ 10440 (11)], which states:
‘Whether adequate provisions have been made to mod-
erate or mitigate neighborhood impacts by limiting
the intensity of use of the property (including, without
limitation, such considerations as the area devoted to
the use, the number of people involved in the use, the
number of events or activities proposed, the hours of
operation, etc.) or by modifying the location or config-
uration of the proposed use’, the [c]ommission finds
that conflicting information indicates that the proposal
could not meet the requirements of this section.’’3
(Emphasis in original.)
Following the commission’s denial of the plaintiff’s
application, the plaintiff appealed to the Superior Court.
See General Statutes § 8-8 (b).4 The plaintiff raised three
claims. First, it claimed that the substantial evidence
in the record established that the plaintiff’s proposed
greenhouse constituted a permitted accessory agricul-
tural or farm use, as provided by the operative regula-
tions. It therefore argued that a special permit was not
actually required to construct its proposed greenhouse.
Second, the plaintiff claimed that the proposed green-
house was within the scope of the commission’s prior
approved special use permit that it issued to the plaintiff
in 2018. Accordingly, the plaintiff argued that the green-
house was a permissible intensification of that prior
approved, but now nonconforming, therapeutic agricul-
tural or farm use and that no special permit was
required. Last, the plaintiff claimed that the substantial
evidence in the record did not support either of the
commission’s stated reasons for its denial. The parties
filed briefs and oral arguments were held by the court.
On July 5, 2022, the Superior Court, Hon. John W.
Pickard, judge trial referee, issued a memorandum of
decision dismissing the plaintiff’s administrative
appeal. The court rejected the plaintiff’s first claim that
the plaintiff did not need a special permit in order to
construct and maintain the greenhouse because an
agricultural or farm related greenhouse constitutes a
permitted, as of right, farm use.5
The court also rejected the plaintiff’s claim that the
addition of its proposed greenhouse is a permissible
intensification of its valid nonconforming use. The court
concluded that the current nonconforming use of the
property is limited to the precise terms of the 2018
special permit and the site plan that the plaintiff submit-
ted in support of its application for that permit and that
the plaintiff could not, as a matter of law, intensify the
property in accordance with the test set forth in Zachs
v. Zoning Board of Appeals, supra, 218 Conn. 332. The
court reasoned that ‘‘the plaintiff’s use of the subject
property was a permitted use in connection with their
program but one which existed by special permit only.
That special permit had its own terms. Those terms
were that the property could be used for an agricultural
or farm use as therapy for program participants. The
approval of the special permit was accompanied by a
site plan which did not include a greenhouse. . . .
[T]his fact distinguishes this case from typical noncon-
forming use cases where the issue is whether the pro-
posed use is an intensification or an expansion. The
plaintiff is limited by the terms of the 2018 special
permit and is not permitted to intensify that approved
use. It would be very odd if the law permitted a special
permit applicant to obtain a permit and site plan
approval showing no buildings and [then] proceed to
build a building on the grounds that it is merely a permis-
sible intensification.’’
The court nevertheless went on to hold that a reason-
able interpretation of the commission’s first stated rea-
son for its denial was that the greenhouse constituted
an impermissible expansion of the nonconforming use.
The court concluded that, even if the use of the property
could have been intensified, ‘‘[t]he addition of a green-
house to an approved special permit use without a
greenhouse would be an impermissible expansion
rather than a permissible intensification.’’ The court
also found that the commission’s first stated reason for
the denial was supported by substantial evidence in the
record. See footnote 7 of this opinion.
On August 15, 2022, the plaintiff filed a petition for
certification with this court requesting review of the
Superior Court’s July 5, 2022 decision dismissing its
zoning appeal. See General Statutes § 8-8 (o); Practice
Book § 81-1. On October 19, 2022, this court granted
the plaintiff’s petition. This appeal followed. Additional
facts and procedural history will be set forth as neces-
sary.
I
The plaintiff first claims that the court erred as a
matter of law in holding that the plaintiff’s valid noncon-
forming use of the property may not be intensified in
accordance with the criteria set forth in Zachs v. Zoning
Board of Appeals, supra, 218 Conn. 332. In particular,
the plaintiff claims that the court improperly concluded
that a nonconforming use that arises from a special
permit is forever limited to the strict terms of the special
permit and the site plan that accompanied the special
permit application. The plaintiff contends that it has a
vested and constitutionally protected right to intensify
the use of its property notwithstanding the fact that
its valid nonconforming use was initially approved by
special permit. We agree with the plaintiff.
Whether the court applied the correct legal standard
in determining whether the plaintiff could intensify its
valid nonconforming use is a question of law over which
our review is plenary. See St. Joseph’s High School,
Inc. v. Planning & Zoning Commission, 176 Conn.
App. 570, 586–87, 170 A.3d 73 (2017); MacKenzie v.
Planning & Zoning Commission, 146 Conn. App. 406,
435, 77 A.3d 904 (2013).
We begin with a brief overview of the legal principles
at play. ‘‘A nonconformity is a use or structure [that is]
prohibited by the zoning regulations but is permitted
because of its existence at the time that the regulations
are adopted.’’ Adolphson v. Zoning Board of Appeals,
205 Conn. 703, 710, 535 A.2d 799 (1988). ‘‘For a use to
be considered nonconforming . . . [it] 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.’’
(Emphasis in original.) Helicopter Associates, Inc. v.
Stamford, 201 Conn. 700, 712, 519 A.2d 49 (1986).
Connecticut law recognizes and protects the right to
continue valid nonconforming uses. Indeed, General
Statutes § 8-2 (d) (4) provides in relevant part that
municipal zoning regulations shall not ‘‘[p]rohibit the
continuance of any nonconforming use, building or
structure existing at the time of the adoption of such
regulations . . . .’’ This means that a property owner
has the right to continue ‘‘the same use of the property
as it existed before the date of the adoption of the
zoning regulations’’ that made the use nonconforming.
Helbig v. Zoning Commission, 185 Conn. 294, 306, 440
A.2d 940 (1981). Our law therefore ‘‘precludes a munici-
pality from amortizing or altogether eliminating such
nonconformities through the enactment or amendment
of its zoning regulations.’’ Verrillo v. Zoning Board of
Appeals, 155 Conn. App. 657, 684, 111 A.3d 473 (2015).
A valid nonconforming use can arise in a number of
different ways. For example, a valid nonconforming use
of a property may arise when a property is used lawfully
prior to the enactment of town zoning regulations. See,
e.g., Petruzzi v. Zoning Board of Appeals, 176 Conn.
479, 482–83, 408 A.2d 243 (1979) (‘‘[t]he lot and building
in question’’ qualified as legally protected nonconform-
ing uses because they were lawful and in existence
prior to enactment of zoning regulations). Or, like in
the present case, the zoning regulations could have
permitted the use (e.g., by right or special permit), but
a subsequent amendment to the regulations later made
that permitted use nonconforming. See Helicopter
Associates, Inc. v. Stamford, supra, 201 Conn. 712
(‘‘[u]ntil the amendment was passed, heliports were
allowed under Stamford zoning regulations in the zone
where the [property] is located’’). Irrespective of how
a valid nonconforming use comes into being, a property
owner may continue the same use of the property as
it existed prior to the enactment of zoning regulations
making the use nonconforming.
Our appellate courts have recognized that ‘‘[t]he right
to a nonconforming use is a property right and . . .
any provision of a statute or ordinance which takes
away that right in an unreasonable manner, or in a
manner not grounded on the public welfare, is invalid.
A lawfully established nonconforming use is a vested
right and is entitled to constitutional protection.’’ (Inter-
nal quotation marks omitted.) Petruzzi v. Zoning Board
of Appeals, supra, 176 Conn. 483–84, citing 2 E. Yokley,
Zoning Law and Practice (3d Ed. 1965) § 16-3, p. 219.
A property owner’s right to continue a nonconforming
use, however, does not include a right to expand that
use. See, e.g., Parker v. Zoning Commission, 209 Conn.
App. 631, 655, 269 A.3d 157, cert. denied, 343 Conn. 908,
273 A.3d 694 (2022). Our courts have observed that
‘‘[z]oning regulations in general seek the elimination of
nonconforming uses, not their creation or enlarge-
ment’’; Planning & Zoning Commission v. Craft, 12
Conn. App. 90, 96, 529 A.2d 1328, cert. denied, 205 Conn.
804, 531 A.2d 937 (1987); and that ‘‘it is the indisputable
goal of zoning to reduce nonconforming to conforming
uses with all the speed justice will tolerate.’’ (Internal
quotation marks omitted.) Woodbury Donuts, LLC v.
Zoning Board of Appeals, 139 Conn. App. 748, 761, 57
A.3d 810 (2012).
But not every change to a nonconforming use is an
impermissible expansion. See, e.g., Raymond v. Zoning
Board of Appeals, 76 Conn. App. 222, 257, 820 A.2d 275,
cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). Our
Supreme Court has held, for instance, that, although a
nonconforming use may not be expanded, it may be
intensified. See Zachs v. Zoning Board of Appeals,
supra, 218 Conn. 332–33. In Zachs, the court identified
three criteria for determining whether a change to a
nonconforming use constitutes a permissible intensifi-
cation or an impermissible expansion: ‘‘(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 prop-
erty.’’ Id., 332.
With these principles in mind, we turn to the court’s
memorandum of decision in this case. The court con-
cluded that the commission properly denied the plain-
tiff’s application for a special permit to place a green-
house on the subject property because the 2018 special
permit and the site plan that accompanied the applica-
tion for that permit did not include the proposed green-
house. The court held that the ‘‘current use of the sub-
ject property in accordance with the 2018 special permit
is limited to the terms of the special permit and the
site plan approved at the same time’’ and that ‘‘the
current nonconforming use cannot be intensified in
accordance with the Zachs standards.’’
The plaintiff claims that the court’s conclusion is
erroneous as a matter of law because it deprives it of
the right to intensify its valid nonconforming use of the
property. It claims that there is no precedent or valid
rationale for excluding its property from the class of
nonconforming uses that may permissibly be intensified
solely because the nonconforming use was initially
approved by a special permit. The commission counters
that the nature of special permits supports the court’s
conclusion that the plaintiff may not intensify its valid
nonconforming use of the property that was approved
by the commission in 2018. The commission argues that,
because the 2018 special permit application included a
site plan, the plaintiff is precluded from using the prop-
erty in a manner that would cause the property to differ
from what was depicted in the initial site plan that was
submitted with the approved special permit application.
In order to address the question before us, we begin
with an overview of the statutes governing special per-
mits. Section 8-2 (a) (3) provides in relevant part that
municipalities may enact regulations that ‘‘provide that
certain classes or kinds of buildings, structures or use
of land are permitted only after obtaining a special
permit or special exception from a zoning commission,
planning commission, combined planning and zoning
commission or zoning board of appeals, whichever
commission or board the regulations may, notwith-
standing any special act to the contrary, designate, sub-
ject to standards set forth in the regulations and to
conditions necessary to protect the public health,
safety, convenience and property values.’’ This court
has explained that a ‘‘function of a special permit is to
allow a property owner to use his property in a manner
expressly permitted under the zoning regulations, sub-
ject to certain conditions necessary to protect the public
health, safety, convenience, and surrounding property
values.’’ (Internal quotation marks omitted.) St.
Joseph’s High School, Inc. v. Planning & Zoning Com-
mission, supra, 176 Conn. App. 585. Indeed, ‘‘[t]he basic
rationale for the special permit [is] . . . that while cer-
tain [specially permitted] land uses may be generally
compatible with the uses permitted as of right in partic-
ular zoning districts, their nature is such that their pre-
cise location and mode of operation must be regulated
because of the topography, traffic problems, neigh-
boring uses, etc., of the site.’’ (Internal quotation marks
omitted.) Barberino Realty & Development Corp. v.
Planning & Zoning Commission, 222 Conn. 607, 612,
610 A.2d 1205 (1992) (Barberino Realty), quoting T.
Tondro, Connecticut Land Use Regulation (1979), p. 78.
It also is common for zoning regulations to require
the submission of a site plan in conjunction with a
special permit application, as the regulations required
in the present case. See Kent Zoning Regs., c. 10300,
§ 10320 (2) (2020) (‘‘[a] [s]ite [p]lan application shall
be submitted . . . [f]or any activity designated in the
[r]egulations as requiring [s]pecial [p]ermit approval’’);
see also International Investors v. Town Plan & Zoning
Commission, 344 Conn. 46, 68–70, 277 A.3d 750 (2022)
(discussing interplay between special permits and site
plans). Our Supreme Court has explained one reason
for this practice. ‘‘[B]efore the zoning commission can
determine whether the specially permitted use is com-
patible with the uses permitted as of right in the particu-
lar zoning district, it is required to judge whether any
concerns, such as parking or traffic congestion, would
adversely impact the surrounding neighborhood. The
commission, therefore, must be allowed to examine the
suggested proposal closely. The details of the proposal
are laid out in the site plan, which is a physical plan
showing the layout and the design of the site of a pro-
posed use . . . . It generally should indicate the pro-
posed location of all structures, parking areas and open
spaces on the plot and their relation to adjacent road-
ways and uses. . . .
‘‘When considering an application for a special per-
mit, the commission is called upon to make a decision
as to whether a particular application . . . would be
compatible with the particular zoning district, under
the circumstances then existing. That determination
can only be made after a thorough examination of the
specific site plan submitted. . . . [R]eview of a special
permit application is necessarily dependent on a thor-
ough review of the proposed site plan because, in fact,
the grant of the special permit is usually contingent [on]
approval of the site plan.’’ (Citations omitted; emphasis
omitted; footnote omitted; internal quotation marks
omitted.) Barberino Realty & Development Corp. v.
Planning & Zoning Commission, supra, 222 Conn.
613–14.
Once an agency approves a special permit, however,
that ‘‘[a]pproval confers a right, albeit one that may be
subject to conditions.’’ (Emphasis added.) Interna-
tional Investors v. Town Plan & Zoning Commission,
supra, 344 Conn. 69. The nature of that right once the
specially permitted use becomes nonconforming has
not been addressed thoroughly by our case law.
Pointing to Barberino Realty, the commission claims
that the unique nature of special permits supports the
court’s conclusion that the plaintiff may not intensify
its valid nonconforming use of the property that was
approved by the 2018 special permit. Although we rec-
ognize that there are some unique features to the special
permit process, we are not convinced that Barberino
Realty, including its description of the special permit
process, compels the conclusion that a nonconforming
use that was initially approved by special permit may
never be intensified.
First, Barberino Realty, the case on which the com-
mission principally relies, did not involve a valid non-
conforming use or discuss the interplay of a use
approved by special permit and the important rights a
property owner has in a use that later becomes noncon-
forming. See Barberino Realty & Development Corp.
v. Planning & Zoning Commission, supra, 222 Conn.
614–15. The plaintiff in Barberino Realty had not com-
menced construction on the project approved by a spe-
cial permit and therefore never used the property in
accordance with the special permit. Id., 610. Instead, it
returned to the commission several years after the spe-
cial permit had been approved with an application for
a revised site plan that materially altered the original
proposal for its elderly housing project. Id. The plaintiff
argued that, once a site plan has been approved in
conjunction with a special permit application, any sub-
sequent revision to the site plan is required to conform
to the criteria set forth only in the site plan regulations
rather than the special permit regulations. Id., 611.
On appeal to our Supreme Court, the court addressed
‘‘whether, after approval of such a permit and site plan,
a subsequent revision to the site plan must conform to
the zoning regulations governing approval of such a
special permit.’’ Id., 608. The court held that ‘‘any appli-
cation to revise such a site plan must be evaluated in
light of the conditions set out in the special permit
regulations.’’ Id., 614. The court reasoned that ‘‘a con-
trary holding would render a zoning commission help-
less if a developer first obtained a special permit on
the basis of a site plan that was particularly well suited
to the neighborhood, but then decided to substitute for
that site plan one that eradicated the very features that
motivated the commission to grant the special permit.
By allowing the commission to take into account all
special permit zoning regulations when a developer
seeks a revision to its site plan, the commission can
further the purposes of a town’s zoning regulations.’’
Id., 615.
It is clear, therefore, that the court in Barberino
Realty did not address the issue raised in this appeal:
whether a nonconforming use initially approved by spe-
cial permit may be intensified. That question requires
a court to weigh the important property rights one holds
by virtue of a valid nonconforming use with the
important governmental interests identified in Bar-
berino Realty.
A review of the case law addressing nonconforming
uses leads us to conclude that a use approved by special
permit may be intensified in accordance with the Zachs
criteria. Our Supreme Court has made clear that the
right to continue a valid nonconforming use includes
a right to intensify that use. See, e.g., Zachs v. Zoning
Board of Appeals, supra, 218 Conn. 331–33. That is
because certain changes to a nonconforming use fall
within the scope of the valid nonconforming use. See
Bauer v. Waste Management of Connecticut, Inc., 234
Conn. 221, 243, 662 A.2d 1179 (1995) (‘‘we have recog-
nized that certain changes in nonconforming uses repre-
sent permissible intensifications within the scope of
the valid nonconforming use’’). To limit a valid noncon-
forming use to the exact specifications of a site plan
that was submitted with the application for the special
permit approving what subsequently becomes a valid
nonconforming use ‘‘would invade the constitutional
guarantees of due process which indeed brought the
nonconforming principle into being.’’ (Internal quota-
tion marks omitted.) State v. Szymanski, 24 Conn.
Supp. 221, 225, 189 A.2d 514 (1962); see also Upper
Darby Township Appeal, 391 Pa. 347, 353–54, 138 A.2d
99 (1958) (‘‘[o]nce it is determined . . . that a noncon-
forming use existed, natural development and growth
cannot be paralyzed by an overly-technical
appraisement of the existing use’’).
Furthermore, Zachs, which is Connecticut’s principal
authority on whether a change is a permissible intensifi-
cation of a nonconforming use or an illegal expansion
of it, speaks broadly about nonconforming uses (irre-
spective of how the valid nonconforming use origi-
nated) and instructs courts to apply three criteria to
help determine whether the activity in question is a
permissible intensification or an impermissible expan-
sion. See Zachs v. Zoning Board of Appeals, supra, 218
Conn. 332 (‘‘[i]n deciding whether the current activity is
within the scope of a nonconforming use consideration
should be given to three factors’’ (emphasis added)).
Our Supreme Court recently reiterated this require-
ment: ‘‘[W]hether a nonconforming use has been
expanded . . . requires application of the criteria set
forth in Zachs . . . .’’ (Emphasis altered.) Pfister v.
Madison Beach Hotel, LLC, 341 Conn. 702, 728, 267
A.3d 811 (2022).
The Superior Court’s per se rule prohibiting any inten-
sification of a valid nonconforming use that originated
from a special permit on the basis that the special permit
was approved in conjunction with a site plan runs head-
long into statutory and constitutional prohibitions. See
General Statutes § 8-2 (d) (4); Petruzzi v. Zoning Board
of Appeals, supra, 176 Conn. 483. Further, the court’s
holding, if accepted, would have far reaching ramifica-
tions for a host of other uses approved in conjunction
with a site plan. Indeed, many other permissible uses
under Kent’s zoning regulations, as is true in other
towns, require the submission of a site plan. Under the
regulations, a site plan application is required ‘‘[f]or
any activity designated in the [r]egulations as requiring
[s]pecial [p]ermit approval’’; ‘‘[i]n a residential zone, for
any construction, development, expansion, or major
alteration of a multi-family use or any non-residential
use’’; ‘‘[i]n a non-residential zone, for any construction,
development, expansion, or major alteration of any use
including any alteration in site improvements such as
parking, pedestrian or vehicle circulation, public utili-
ties or reduction of landscaping’’; and ‘‘[f]or any activity
designated in the [r]egulations as requiring [s]ite [p]lan
approval.’’6 See Kent Zoning Regs., c. 10300, § 10320
(2020). The court’s per se rule would prohibit the inten-
sification of any nonconforming use that arose from any
of these approvals, including ‘‘any activity designated in
the [r]egulations as requiring [s]ite [p]lan approval.’’ Id.
The very nature of the analysis required under Zachs,
on the other hand, ensures that any proposed intensifi-
cation of a valid nonconforming use is consistent with
the nature and scope of that nonconforming use. In the
case of a nonconforming use that was approved by way
of special permit, Zachs requires a court to closely
examine the terms of the special permit to determine
the extent to which the change in use reflects the nature
and purpose of the approved use, any differences in
the character, nature and kind of use involved, and any
substantial difference in effect upon the neighborhood
resulting from differences in the activities conducted
on the property. Unlike a per se rule prohibiting the
intensification of a use approved by way of a special
permit, the Zachs approach balances an owner’s pro-
tected interest in the reasonable use of his or her prop-
erty with a local government’s valid interest in ensuring
that the property continues to be used in a manner
that is consistent with the zoning regulations. For these
reasons, we conclude that a valid nonconforming use
arising out of a previously issued special permit may
be intensified in accordance with our Supreme Court’s
decision in Zachs.
II
Having concluded that a nonconforming use initially
approved by way of a special permit may be intensified
in accordance with Zachs, we must next determine
whether there was sufficient evidence in the record to
support the commission’s stated reasons for its denial
of the plaintiff’s proposed greenhouse. The commission
denied the plaintiff’s special permit on the basis that
the use of the proposed greenhouse would be an illegal
expansion of the plaintiff’s valid nonconforming use of
the property.7 The plaintiff claims that the court erred
in concluding that there was substantial evidence in
the record to support the commission’s finding that the
addition of its proposed greenhouse would constitute
an illegal expansion of a nonconforming use. We agree
with the plaintiff.
‘‘In reviewing a decision of a zoning [commission], a
reviewing court is bound by the substantial evidence
rule, according to which . . . [c]onclusions reached by
[a zoning] commission must be upheld . . . if they are
reasonably supported by the record. The credibility of
the witnesses and the determination of issues of fact
are matters solely within the province of the [commis-
sion]. . . . The question is not whether the [reviewing
court] would have reached the same conclusion, but
whether the record before the [commission] supports
the decision reached.’’ (Internal quotation marks omit-
ted.) McLoughlin v. Planning & Zoning Commission,
342 Conn. 737, 751–52, 271 A.3d 596 (2022); see also
Zachs v. Zoning Board of Appeals, supra, 218 Conn.
329–30 (board’s finding that nonconforming use was
illegally expanded is reviewed for ‘‘whether that finding
is supported by substantial evidence’’). ‘‘If there is con-
flicting evidence in support of the zoning commission’s
stated rationale, the reviewing court . . . cannot sub-
stitute its judgment as to the weight of the evidence
for that of the commission. . . . The agency’s decision
must be sustained if an examination of the record dis-
closes evidence that supports any one of the reasons
given.’’ (Internal quotation marks omitted.) Cambodian
Buddhist Society of Connecticut, Inc. v. Planning &
Zoning Commission, 285 Conn. 381, 427, 941 A.2d
868 (2008).
The ‘‘substantial evidence rule is similar to the suffi-
ciency of the evidence standard applied in judicial
review of jury verdicts, and evidence is sufficient to
sustain an agency finding if it affords a substantial basis
of fact from which the fact in issue can be reasonably
inferred. . . . [I]t must be enough to justify, if the trial
were to a jury, a refusal to direct a verdict when the
conclusion sought to be drawn from it is one of fact
for the jury. . . . The substantial evidence rule is a
compromise between opposing theories of broad or de
novo review and restricted review or complete absten-
tion. It is broad enough and capable of sufficient flexibil-
ity in its application to enable the reviewing court to
correct whatever ascertainable abuses may arise in
administrative adjudication. On the other hand, it is
review of such breadth as is entirely consistent with
effective administration. . . . The corollary to this rule
is that absent substantial evidence in the record, a court
may not affirm the decision of the board.’’ (Internal
quotation marks omitted.) Putnam Park Apartments,
Inc. v. Planning & Zoning Commission, 193 Conn.
App. 42, 54, 218 A.3d 1127 (2019). ‘‘When a zoning com-
mission has stated a reason for denying a special permit
application . . . the question for the court to pass on
is simply whether the reasons assigned are reasonably
supported by the record and whether they are pertinent
to the considerations [that] the commission is required
to apply under the zoning regulations.’’ (Internal quota-
tion marks omitted.) McLoughlin v. Planning & Zoning
Commission, supra, 342 Conn. 752–53.
As previously explained, in Zachs v. Zoning Board
of Appeals, supra, 218 Conn. 332, our Supreme Court
held that ‘‘[i]n deciding 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 differ-
ence in effect upon the neighborhood resulting from
differences in the activities conducted on the property.’’
We begin with the first Zachs criterion, which
requires us to examine the scope of the use of the
property at the time it became nonconforming in order
to determine whether the proposed greenhouse reflects
the nature and purpose of the original use. The evidence
reveals that, in 2018, the commission adopted a resolu-
tion approving the plaintiff’s special permit application
for ‘‘therapeutic activities in conjunction with a pri-
vately-operated hospital, clinic, nursing or convalescent
home or similar institution.’’ It is undisputed that the
plaintiff’s 2018 application sought to use the property
for therapeutic and agricultural purposes, including for
the operation of an equine therapy program; a ropes
course and climbing wall; and various agricultural activ-
ities, including a therapeutic agricultural program. The
activities proposed for the property were intended to
support the residents residing on the residential prop-
erty.
Following the approval of the plaintiff’s 2018 special
permit application, the uncontroverted evidence
reveals that the plaintiff began using the property in
conformity with its approved special permit application
by operating an equine therapy program, which
included the use of a barn on the property to house
the program’s horses; a ropes course and climbing wall;
and agricultural activities, including the farming of veg-
etables and a horticulture therapy program for some
of the residents of the treatment program. Much of the
farming of vegetables on the property and the care of
the horses for the equine program was done by the
plaintiff’s staff. Some residents living on the residential
property also assisted with the agricultural activities as
part of their therapy program. The vegetables produced
on the property were used to feed the residents and
staff on the residential property.
The parties do not dispute that the use approved by
the 2018 special permit became a valid nonconforming
use in 2020 after the amendment to the regulations
eliminating language that permitted ‘‘[a] privately oper-
ated hospital, clinic, nursing home, or convalescent
home’’ in the RU-1 district. Although the plaintiff claims
that a property owner may permissibly intensify a valid
nonconforming use of its property as of right without
approval from the commission, the record reflects that
the plaintiff nevertheless filed a special permit applica-
tion and a site plan application with the commission
in 2020 seeking approval to add a greenhouse on the
property. Thus, the plaintiff’s 2020 special permit appli-
cation and site plan essentially amounted to a prophy-
lactic request for an order from the commission con-
firming that its use of its proposed greenhouse would
be considered a permissible intensification of its valid
nonconforming use.
The evidence from the record before the commission
shows that the plaintiff proposed adding a ‘‘hoop house’’
style greenhouse. The hoop house would consist of a
series of hoops covered with plastic that creates a tun-
nel in which plants could be grown. Because the ground
on which the plaintiff proposed to construct the green-
house is already flat, there would be no need for con-
crete work or any excessive ground disturbance. The
plaintiff’s representative explained at the hearing before
the commission that the plaintiff only proposed putting
down some stone dust or pea gravel to make walking
more comfortable. There would be no bathrooms or
habitable space in the hoop house. The plaintiff pro-
posed that a water line and electrical connection be
continued from the adjacent, preexisting barn on the
property to the hoop house in order to water the plants.
On the basis of our review of the record, we conclude
that the use of the proposed hoop house reflects the
nature and purpose of the existing, original use of the
property. The proposed thirty foot by seventy foot hoop
house on the plaintiff’s approximately seventy acre
property would be placed on the existing farm garden
and pasture area on the property where plants are
already grown. The greenhouse also would be in close
proximity to the existing house and barn on the property
and close to the previously approved equine activities,
ropes course, and wall climbing areas. The greenhouse
would permit the plaintiff to continue to grow fruits and
vegetables in order to feed and support the plaintiff’s
residents and staff residing on the residential prop-
erty—activities that it already does.
We next consider the second Zachs factor, which
requires us to consider any differences in the character,
nature and kind of use involved. The plaintiff proposes
to add a single, rudimentary hoop house to an area
already devoted to growing plants. The proposed hoop
house simply provides an improved and more efficient
way to grow fruits and vegetables and to provide thera-
peutic agricultural services. See Zachs v. Zoning Board
of Appeals, supra, 218 Conn. 334 (‘‘[t]he fact that
improved and more efficient instrumentalities are uti-
lized in pursuit of the use does not exclude it from the
category of an existing use, provided these are ordi-
narily and reasonably adapted to make that use avail-
able to the owner, and the original nature and purpose
of the undertaking remain unchanged’’ (internal quota-
tion marks omitted)). The fact that the hoop house may
increase the fruit and vegetable yield already used to
support the residents and staff on the residential prop-
erty ‘‘cannot reasonably be said to involve differences
in the character of the nonconforming use rather than
increases in the volume of business within the scope
of the original use.’’ Id., 332–33.
The commission makes two arguments in support of
its position that the plaintiff’s proposed hoop house
constitutes a change in the character of its nonconform-
ing use and, therefore, constitutes an illegal expansion.
First, the commission contends that the addition of a
structure to a nonconforming use is a per se change in
the character of the use, asserting that ‘‘[t]he [c]ommis-
sion has not found any case in which a court has held
that the addition or expansion of a structure for a non-
conforming use may be deemed to be a mere intensifica-
tion.’’ Second, it claims that the addition of the hoop
house constitutes a change in character because it
would allow, for the first time, the plaintiff to grow
fruits and vegetables into the winter season. We are
not persuaded by the commission’s arguments.
First, the commission’s contention that the addition
of any structure to a nonconforming use is a per se
illegal expansion finds no support in our case law.
Although it is true that some courts have concluded
that the addition of a new structure or the expansion
of an existing building constituted an illegal expansion
of a nonconforming building or use, the legality of a
proposed change to a nonconforming use is a fact inten-
sive inquiry that must be conducted on a case-by-case
basis. See, e.g., Wood v. Zoning Board of Appeals, 258
Conn. 691, 708, 784 A.2d 354 (2001) (‘‘[t]he legality of
an extension of a nonconforming use is essentially a
question of fact’’ (internal quotation marks omitted)).8
Second, although a proposal to extend a nonconform-
ing use into an additional season or seasons may, under
certain circumstances, constitute an illegal expansion
of the nonconforming use; see, e.g., Planning & Zoning
Commission v. Craft, supra, 12 Conn. App. 99; the
commission in this case relies on a highly technical and
overly narrow characterization of the existing use of the
property in support of its argument that the proposed
greenhouse would impermissibly allow activities over
a substantially additional period of the year. The plain-
tiff’s approved use of the property is not limited to
vegetable farming. It is broader than that. It includes
use of the property for therapeutic and agricultural
purposes, including for the operation of an equine ther-
apy program; a ropes course and climbing wall; and
various agricultural activities, including a therapeutic
agricultural program. The 2018 special permit did not
purport to limit these activities to the time of year during
which vegetables may be grown outdoors and the com-
mission does not contend that all of the plaintiff’s lawful
activities on the property since the issuance of the spe-
cial permit have been confined to that period of time.
See id., 100 (preexisting use ‘‘extended to every period
of the year, through winter, spring, summer and fall’’
and, thus, increase in use was not illegal expansion or
extension). We cannot conclude, on the record before
us, that the addition of the hoop house, which will
simply allow the plaintiff to increase its fruit and vegeta-
ble yield, constitutes an illegal expansion when the
property is already being used year-round for related
activities. See Helicopter Associates, Inc. v. Stamford,
supra, 201 Conn. 716 (‘‘a mere increase in the amount
of business done pursuant to a nonconforming use is
not an illegal expansion of the original use’’).
That brings us to the final Zachs criterion: whether
there would be a substantial difference in effect upon
the neighborhood resulting from the use of the plain-
tiff’s proposed hoop house. The commission first claims
that there ‘‘was substantial testimony from neighbors
about the negative impacts the plaintiff’s existing traffic
had already caused.’’ Second, it argues that, although
the plaintiff claims that the hoop house would be at
least 1000 feet from the road and completely invisible
to passersby, the plaintiff offered no photographs or
other visual demonstrations. Third, the commission
claims that the proposed hoop house would be ‘‘quite
close’’ to surrounding properties. We conclude that
there is not substantial evidence to support the commis-
sion’s contentions.
First, the plaintiff’s proposed use of the hoop house
is consistent with the permitted as of right uses and
accessory uses in the RU-1 district. For example, the
regulations already permit as of right (with no addi-
tional zoning authorization required) the principal use
of ‘‘[a]griculture/farm in accordance with generally
accepted agricultural practices as promulgated by the
Connecticut Department of Agriculture.’’ Kent Zoning
Regs., c. 3200, § 3221 (1) (2020). ‘‘Farm’’ is defined as
‘‘[l]and used primarily for agricultural activities includ-
ing . . . farm buildings and accessory buildings
thereto including barns, silos, greenhouses, hoop-
houses and other temporary structures or other struc-
tures . . . .’’ (Emphasis added.) Kent Zoning Regs., c.
2200 (2020). The regulations also permit as of right
various accessory uses, including, inter alia, ‘‘[a]gricul-
tural uses accessory to a residence such as . . . [g]ar-
dening and the raising of crops or fruit,’’ ‘‘[a]gricultural
uses accessory to a farm,’’ and ‘‘[a]n accessory use not
listed [in the regulations]’’ if ‘‘such use is customarily
incidental and directly related to the permitted principal
use’’ and ‘‘no part of the accessory use is located in the
area between the principal building and a public street
unless visually screened from the view from the street
and from adjacent premises.’’ Kent Zoning Regs., c.
3200, § 3231 (2020). These provisions undercut the com-
mission’s contention that there would be a substantial
effect upon the neighborhood from the plaintiff’s use
of the proposed hoop house.
Second, there is no evidence in the record that the
proposed hoop house would be seen from the road.
Although the commission claims that the plaintiff did
not provide any photographs or visual demonstrations,
the plaintiff did submit a brochure for its proposed
hoop house, which included numerous photographs of
the type of greenhouse it wished to construct. It also
submitted a site plan showing the proposed location
of the hoop house. The plaintiff’s application to the
commission represented that the hoop house would be
more than 1000 feet from the road. At the hearing,
Vincent Roberti, Jr., the plaintiff’s representative, testi-
fied that he used ‘‘Google Earth,’’ an Internet mapping
program, to plot the proposed hoop house, stating, inter
alia, that ‘‘[i]t’s not visible at all from Carter Road.’’
Although the commission makes conclusory arguments
on appeal suggesting that the hoop house may be seen
from the road and that the site plan shows that the
proposed hoop house would be ‘‘quite close’’ to sur-
rounding properties, these arguments do not, without
more, demonstrate that there would be a substantial
effect upon the neighborhood.
Finally, although numerous neighbors spoke at the
hearings and voiced their displeasure with the plaintiff’s
expansion in Kent over the years, most of the statements
were not specific to the application and site plan under
consideration but, instead, constituted general griev-
ances about the plaintiff and the construction on the
residential property that the commission had previously
approved.9 See McLoughlin v. Planning & Zoning Com-
mission, supra, 342 Conn. 763 (‘‘in the absence of spe-
cific evidence about the detrimental effects of the pro-
posed facility, a generalized ‘not in my backyard’ . . .
reaction cannot, by itself, serve as substantial evidence
for denying the plaintiffs’ application’’ (footnote omit-
ted)). Indeed, a review of the comments by the neigh-
bors shows that they amounted to ‘‘general concerns,
speculation, and mere worry,’’ which do not qualify
as substantial evidence. Id., 760; see also American
Institute for Neuro-Integrative Development, Inc. v.
Town Plan & Zoning Commission, 189 Conn. App. 332,
349–50, 207 A.3d 1053 (2019) (‘‘[P]ublic testimony is not
to be considered substantial evidence when it is not
supported by anything other than speculation and con-
jecture on the part of those objecting to the [party’s]
proposed activities. . . . While the commission could
take into consideration the neighbors’ concerns and
observations as to current road conditions, the neigh-
bors’ remarks as to the adequacy of the streets to
accommodate traffic and prospective hazards or con-
gestion addressed matters of professional expertise.’’
(Citations omitted; internal quotation marks omitted.)).
The comments by the neighbors therefore provided lit-
tle, if any, evidence concerning the proposal’s effects
upon the neighborhood.
In sum, the commission did not have substantial evi-
dence before it to support its reasons for denying the
plaintiff’s application. Consequently, the only reason-
able conclusion for the commission was to grant the
application with reasonable conditions. See American
Institute for Neuro-Integrative Development, Inc. v.
Town Plan & Zoning Commission, supra, 189 Conn.
App. 353.10
The judgment is reversed and the case is remanded
to the Superior Court with direction to sustain the plain-
tiff’s appeal and to remand the case to the commission
with direction to approve the plaintiff’s application for
a special permit application with reasonable conditions.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In Zachs v. Zoning Board of Appeals, supra, 218 Conn. 324, our Supreme
Court identified three criteria for determining whether a nonconforming
use has been permissibly intensified or impermissibly expanded: ‘‘(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.’’
Id., 332.
2
The parties and the trial court use the terms ‘‘greenhouse’’ and ‘‘hoop
house’’ interchangeably. As we discuss in greater detail later in this opinion,
the type of greenhouse the plaintiff proposed to construct is commonly
referred to as a ‘‘hoop house.’’ A hoop house consists of a series of hoops
covered with plastic that creates a tunnel in which plants can be grown.
We, like the parties and the trial court, employ the terms ‘‘greenhouse’’ and
‘‘hoop house’’ interchangeably in reference to the plaintiff’s proposal.
3
Chapter 10400, § 10440, of the zoning regulations sets forth eleven factors
that the commission is required to evaluate when considering a special
permit application. See Kent Zoning Regs., c. 10400, § 10440 (2020). The
regulations recognize that the commission may determine that some factors
may not be applicable to certain types of applications. Id. The commission
denied the plaintiff’s application citing to § 10440 (3), titled ‘‘Overall Neigh-
borhood Compatibility,’’ and § 10440 (11), titled ‘‘Mitigation.’’ See id. The
commission did not make reference to the other nine factors.
4
General Statutes § 8-8 (b) provides in relevant part: ‘‘Except as provided
in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147i,
any person aggrieved by any decision of a board, including a decision to
approve or deny a site plan pursuant to subsection (g) of section 8-3 or a
special permit or special exception pursuant to section 8-3c, may take an
appeal to the superior court for the judicial district in which the municipality
is located, notwithstanding any right to appeal to a municipal zoning board
of appeals under section 8-6. . . .’’
5
The plaintiff does not challenge that determination on appeal.
6
The regulations require as part of an application for a general zoning
permit certain ‘‘plans and/or other information.’’ Kent Zoning Regs., c. 10100,
§ 10120 (2) (2020). For example, ‘‘[a] sketch plan may be submitted with
the [z]oning [p]ermit application for all single-family and two-family dwell-
ings, and for additions, or accessory buildings and structures, and accessory
uses thereto except that, if the [z]oning [e]nforcement [o]fficer finds that
a sketch plan does not provide sufficient information to determine whether
the proposed building, structure or use would comply with these regulations,
he or she may require the submission of a site plan or survey, prepared,
signed and sealed by a Connecticut licensed land surveyor.’’ Id., § 10120 (2)
(c). Additionally, ‘‘[a] site plan or survey shall be required for any exterior
alteration, renovation or improvement of existing commercial, industrial or
campground premises or facilities and for any other proposed structure or
use other than those for which a sketch plan may be provided.’’ Id., § 10120
(2) (a).
Further, in Kent’s Village Commercial District, site plan approval is
required for ‘‘[r]etail stores’’; ‘‘[r]estaurants’’; ‘‘[b]akeries, delicatessens, ice
cream parlors, coffee shops and similar food retail and serving establish-
ments’’; ‘‘[f]armers market’’; ‘‘[a]rtists’ studio and/or art gallery’’; ‘‘[p]ersonal
service establishments including but not limited to nail salons, day spas,
yoga studios, barber shops, beauty shops’’; ‘‘[o]ffices’’; ‘‘[b]anks and other
financial institutions’’; ‘‘[m]edical or dental offices or out-patient clinics’’;
‘‘[h]ousehold service establishments including but not limited to plumbing
or electrical stores’’; ‘‘[m]ixed residential and commercial use within the
same building’’; and ‘‘[a]n accessory residential unit (attached) in accordance
with Section 6200.’’ Kent Zoning Regs., c. 4100, § 4123 (2020). These are
only a few examples of the kinds of activities that require the submission
of a site plan in Kent.
7
Before the Superior Court, the commission argued that, although its
reasons for denial were ‘‘ ‘perhaps inelegantly stated,’ ’’ they were ‘‘ ‘consis-
tent with the notion that the plaintiff was proposing an unlawful expansion
of a nonconforming use.’ ’’ See footnote 3 of this opinion. The court agreed
with the commission that a reasonable interpretation of the commission’s
first reason for denial was that the plaintiff’s proposed greenhouse was an
impermissible expansion of a valid nonconforming use. The court indicated
that, in light of its conclusion, it did not need to address the commission’s
second stated reason for denial. Upon our review, however, it is clear that
the commission’s first and second reasons for denial must be read together,
as they both are based on the commission’s conclusion that the plaintiff
was proposing an unlawful expansion of its valid nonconforming use. Indeed,
in its briefing before the trial court, the commission acknowledged that both
of its stated justifications for denial were predicated on its determination
that the greenhouse was an impermissible expansion.
8
We note that at least one Superior Court has concluded that the addition
of a structure to a nonconforming use was a permissible intensification of
that use. See Laviana v. Zoning Board of Appeals, Docket No. CV-95-055119-
S, 1996 WL 761474, *1, 4 (Conn. Super. November 26, 1996) (proposed
construction of 28 foot by 100 foot pole barn on property was permissible
intensification of nonconforming lumber yard); but see McKosky v. Plan-
ning & Zoning Commission, Docket No. CV-XX-XXXXXXX-S, 2014 WL 6996359,
*1, 16 (October 31, 2014) (site plan application seeking approval for construc-
tion of large ‘‘ ‘staging and storage area and structure’ ’’ to be used for
‘‘ ‘existing trucking and hauling business’ ’’ was illegal expansion of noncon-
forming use).
9
For example, the members of the public commented that the plaintiff
is an ‘‘omnivorous beast that just won’t stop’’ and that it was time ‘‘to stop
feeding the High Watch . . . beast’’; ‘‘Why load up Kent. Uh it’s enough.
Let them go somewhere else. . . . It’s a different neighborhood than when
. . . they came in 1939 when there were no houses. Now there are many
houses. Um somebody has to be firm with these people; if you’re not firm
they are going to be back to you time and again and they’ll be well represented
by legal people and they’ll continue what they do. So, my point is let’s stop
them now. Let them go somewhere else for their expansion and live happily
ever after in Kent’’; the plaintiff ‘‘belong[s] in a bigger town because to have
[the plaintiff] now building on two sides of Carter Road is setting a precedent
that [is] really going to be horrible for the road’’; the plaintiff is a ‘‘Trojan
horse’’; ‘‘[s]o we know that they are in the middle of building new beds [on
the residential property] and the construction and the trucks and the coming
and going; it used to be peaceful, charming, family oriented; now it’s busy,
highly trafficked, a noisy commercial area’’; and ‘‘[t]hey’ve been building
[on the residential property] for a long time now. It looks like a big gravel
pit and now they are going to start building and tearing up the other side
of the road . . . .’’
10
Although we conclude that the proposed hoop house constitutes a per-
missible intensification under Zachs, we note that, in addition to permissible
intensifications, ‘‘[s]ome jurisdictions recognize a right to expand a noncon-
forming use, despite the general rule that such expansion is not permitted,
to allow for the natural development and growth of the nonconforming use.
This right has been called the ‘natural expansion doctrine’ and permits the
augmentation of a nonconforming business use to meet the demands of
normal growth. Under the doctrine, a nonconforming use may be extended
in scope, as the business increases in magnitude, over ground occupied by
the owner of the business at the time of the enactment of the zoning ordi-
nance. The doctrine gives a landowner the right to expand the nonconform-
ing use as required to maintain economic viability or to take advantage of
increases in trade. Natural expansion, however, is subject to limitation where
the expansion is inconsistent with the public interest, or the imposition of
limitations is necessary to prevent excessive expansion, and a municipality
thus may impose reasonable restrictions on the natural expansion of a
nonconforming use. Furthermore, a natural expansion must not be substan-
tial, and it cannot be in actuality an addition of a new use rather than the
expansion of an old one.’’ (Footnotes omitted.) 83 Am. Jur. 2d 549–50,
Zoning and Planning § 559 (2023); see also Bauer v. Waste Management
of Connecticut, Inc., supra, 234 Conn. 241 (referencing natural expansion
doctrine); Connecticut Resources Recovery Authority v. Planning & Zoning
Commission, 225 Conn. 731, 745, 626 A.2d 705 (1993) (same). Because
neither party raised or briefed the doctrine of natural expansion in this
appeal, we leave for another day the question of whether or to what extent
that doctrine applies in Connecticut.