As part of Halloran Sage’s continuing efforts to inform our clients of significant developments in the law, this is an update about a recent Connecticut Superior Court decision involving the contradictory determination of a legal nonconforming use by two different Zoning Enforcement Officers. The basic holding is that a successive Zoning Enforcement Officer cannot reverse the unappealed decision of their predecessor.

The case is One Barberry Real Estate, LLC v. Zoning Board of Appeals of the Town of East Haven, Docket No. CV-17-6085490 (Berger, J.).

The facts were as follows: the subject property was alleged to be a rock quarry at the time East Haven adopted zoning regulations, and hence a legal nonconforming use. It should be noted that the East Haven zoning regulations at the time did not allow quarries at all, and excavations were allowed only for temporary site preparation, and not as ongoing uses. The Zoning Enforcement Officer in 2013 (Mingione) issued a written decision indicating that based on his personal knowledge, the quarry had been operating for more than twenty years and was thus a legal nonconforming use. On November 10, 2014, the Town’s new Zoning Enforcement Officer (Biancur) issued a similar written ruling, and a legal notice of that decision was published on January 5, 2015. No one appealed that decision to the Zoning Board of Appeals within thirty days, as required by Statute. Although not discussed in the opinion, the Biancur decision was based on a number of documents, including affidavits, assessor’s records, and aerial photographs.

In reliance on the Biancur decision, the property owner invested millions of dollars to improve the quarry. The Town’s Fire Marshal issued numerous blasting permits, the quarry was taxed as an operating quarry, and the quarry operated without incident, withdrawing 28,000 loads of earth material from the site. Yet, clearing for an expansion of the quarry led to complaints from citizens, resulting in a cease and desist order from the new Zoning Enforcement Officer (Soto).  The plaintiff property owner appealed the order to the Zoning Board of Appeals, which upheld Soto’s order and so the plaintiff appealed to Superior Court.

Judge Berger (presiding judge of the Connecticut Land Use Docket), ruled that the absence of a timely appeal of Biancur’s decision to the Zoning Board of Appeals rendered that decision final, and Soto could not reverse it. The Court noted, in footnote 12, that the Town Attorney had rejected not only the Biancur and Mingione letters, but also “the legal opinions of three experienced land use attorneys—Mark Branse; Robert A. Fuller; and Timothy Hollister.”  (citations omitted). Mark Branse is a member of Halloran Sage’s Municipal and Land Use Practice Group.

The moral of the story is that if a Zoning Enforcement Officer issues a decision and it is not timely appealed, a future Zoning Enforcement Officer cannot simply reverse that decision, even if they believe in good faith that the prior decision was wrong. Getting it right the first time is therefore extremely important!

Also bear in mind that outcomes may differ if there are substantial changes in the nonconforming use subsequent to the initial ZEO determination. This case pertained to a quarry, which like gravel pits, are an exception to the general rule that nonconforming uses may intensify but not expand.

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