On January 28, 2003, the Connecticut Appellate Court reversed a trial court’s approval of a site plan application to build a gasoline station in the Town of Westbrook, Connecticut. The gas station was to be located in Westbrook’s town center district. The trial court had reversed the Westbrook Zoning Board of Appeals’ decision to deny the gas stations’ application.
Halloran & Sage was retained to appeal the trial court’s decision. The first step in the process was to convince the Appellate Court to consider the matter. Because the appeal was not an appeal as of right, but rather, a discretionary appeal, the Appellate Court did not have to review the trial court’s decision. After getting the Appellate Court to grant certification, the case was fully briefed and argued in June 2002. Supplemental briefs were ordered and the case was reargued in October 2002.
The Appellate Court’s decision was authored by Chief Judge William J. Lavery. It is reported at Cumberland Farms, Inc. v. Zoning Bd. of Appeals, 74 Conn. App. 622 (2003). In reversing the trial court, the Appellate Court expressly agreed with the two main arguments advanced by the Westbrook ZBA. First, the Appellate Court held that the trial court had incorrectly substituted its judgment for that of the Westbrook ZBA, which had determined that a gasoline station was not a valid non-conforming use because it had been discontinued prior to the enactment of zoning regulations prohibiting such a use. Second, the Appellate Court held that the trial court had incorrectly substituted its judgment for that of the Westbrook ZBA, which had determined that any claimed non-conforming use had been abandoned by the previous owners of the property.
Duncan Forsyth, a partner in Halloran & Sage’s Municipal Law and Governmental Liability Practice Group, was the Westbrook ZBA’s lead counsel in this matter.
For more information on the Firm’s Municipal Law & Governmental Liability Practice Group, please contact Duncan Forsyth at (860) 297-4696.