Opinion
No. CV-04-0200065
October 20, 2005
I STATEMENT OF APPEAL
The plaintiffs, Thomas L. Rich ("Rich"), Antoine Geffrard and Christine Geffrard ("the Geffrards") (collectively referred to as the plaintiffs), appeal from a decision of the Zoning Board of Appeals of the City of Stamford ("ZBA") upholding the decision of the Zoning Enforcement Officer of the City of Stamford ("ZEO") to issue a permit to the defendant Newtowne Hospitality Group, Inc. ("Newtowne") to perform demolition and interior renovations at 26 Mill River Street in Stamford (the "Property').
Procedurally, it is important to note that at the time of their appeal to this court, the plaintiffs owned property within one hundred feet of the Property, but that Rich did not own an interest in any property within such footage of the Property prior to the present appeal. As more fully discussed herein, Rich's interest in property within one hundred feet of the Property was acquired subsequent to the decision of the ZEO and Rich's appeal to the ZBA.
II BACKGROUND
The Property is located within the R-MF zoning district of the City of Stamford. (Return of Record [ROR], Exh. 3.) Prior to July 1988, the Inn at Mill River was operated on the Property as a legal nonconforming use under the hotel or inn Definition no. 48 of the Stamford zoning regulations. In 1988 the Inn at Mill River underwent a change of ownership, ceased operation and the new owner, Kapson Stamford Corp. ("Kapson"), commenced operation of a senior residence on the Property. Prior to Kapson's purchasing the Property, Michael D. Macri ("Macri"), the chief zoning enforcement officer at the time, confirmed in writing that the Property could be used as a residential facility for the elderly under the hotel, residential Definition no. 49 of the Stamford zoning regulations. CT Page 13940-cg In his letter, dated July 12, 1988, Macri stated that the "use of the property as a residential hotel under Definition No. 49 of the zoning regulations would be a continuation of the present non-conforming use and would be legally permitted under the existing Certificate of Occupancy No. 18266." (Emphasis added.) (ROR, Exh. 7, Macri letter.) Kapson operated the residential facility until its closing in early 2003.
Zoning of the site changed from C-L Commercial Limited to R-MF Residential Multi-Family after the completion of the Inn, therefore, the Inn was operating as a legal nonconforming use. Section 3.A.48 of the Stamford zoning regulations provides: "Hotel or Inn: A building designed as the more or less temporary abiding place for more then twelve (12) persons or providing six (6) or more sleeping rooms in which lodging is provided for compensation with or without meals. The word inn shall be used as being synonymous with hotel." (Emphasis added.)
Section 3.A.49 of the Stamford zoning regulations provides: "Hotel, Residential: A hotel wherein the rooms or suites are intended principally for more or less permanent occupancy by guest individuals and families, and in which any dining room or other commercial facilities are intended primarily for the accommodation of the occupants of the building and not to exceed fifty percent (50%) of the ground floor area, and having no entrance except from within the building and no sign visible outside the building."
In December 2002, Mill River Associates LLC, the then contract purchaser of the Property, sought and obtained a written decision from James Lunney, the ZEO, stating that the Property could legally be operated as a full-service traditional hotel, continuing its preexisting nonconforming use. (ROR, Exh. 7, Tesei letter.) In a letter dated December 9, 2002, the ZEO stated that the, legally non-abandoned and nonconforming hotel or inn use of the Property . . . may continue after the change of ownership . . ." (Emphasis added.) (ROR, Exh. 7, Tesei letter.) In May 2003, the current owner, Newtowne, also sought and obtained a similar decision from the ZEO. (ROR, Exh. 11, Komacki letter.)
On October 7, 2003, the ZEO issued a building permit to Newtowne, to perform demolition and interior renovations on the Property in order to revert to a hotel use. (ROR, Exh. 21.) Rich submitted an application dated November 5, 2003 to the zoning board of appeals in which he appealed the ZEO's decision to issue the permit. (ROR, Exh. 1.) Antoine Geffrard and Christine Geffrard, owners of property within one hundred feet of the Property, were not parties to that application.
A public hearing relating to the appeal was held on January 21, 2004 and continued on March 3, 2004. (ROR, Exh. 34.) The ZBA voted unanimously that Rich did not have standing to appeal to the ZBA because he was not aggrieved by the ZEO's decision. (ROR, Exh. 30; 34.) Additionally, the ZBA voted 3-2 to uphold the ZEO's order. (ROR, Exh. 31; 34.) On March 18, 2004, the ZBA published notice of its decision denying the application and upholding the ZEO's decision. (ROR, Ext. 32.) Thereafter, Rich and the Geffrards commenced the instant appeal. CT Page 13940-ch
III JURISDICTION
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." (Internal quotation marks omitted.) Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). "In the case of a decision by a zoning board of appeals, aggrieved person includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." (Emphasis added; internal quotation marks omitted.) General Statutes § 8-8(a)(1).
The plaintiffs allege that they are owners of real property located at 17 Greenwood Hill Street, Stamford, within one hundred feet of the Property and, therefore, are statutorily aggrieved for the purposes of appealing the ZBA's decision to the Superior Court. (Appeal, Count 1, ¶ 1; 6.) The complaint also alleges that Rich is classically aggrieved. (Appeal, Count 1, ¶ 7.) At the hearing of this appeal, the court found that the plaintiffs were statutorily aggrieved pursuant to General Statutes § 8-8(a)(1), and, therefore, did not reach the issue of classical aggrievement. Consequently, the court undertakes a review of the plaintiffs' substantive appellate claims.
IV SCOPE OF REVIEW
"[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of CT Page 13940-ci appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993). "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted, internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
"Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 454, 853 A.2d 511 (2004). In the present case, the ZBA failed to provide an official collective reason for denying Rich's appeal of the ZEO's order. (ROR, Exh. 32 and 33.) The record discloses that individual members of the ZBA generally discussed reasons for their vote, however, those statements do not constitute an official collective statement for its decision. The court, therefore, must search the record to determine whether the evidence supports the ZBA's decision to deny Rich's application and uphold the decision of the ZEO to issue the permit to Newtowne. Parks v. Planning Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979).
The court must decide "whether there is substantial evidence in the record supporting the board's denial of the plaintiff's application . . ." Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 454. "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is CT Page 13940-cj sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 170, 855 A.2d 1044 (2004).
V DISCUSSION
The plaintiffs appeal the ZBA decision, and argue that "the ZBA erred in two respects." (Plaintiffs' brief, p. 19.) First, they contend that aggrievement need not be proven to the ZBA. Second, they argue that the ZBA erred in not concluding that the use of the Property as a legal nonconforming use, that of a hotel, had been abandoned.
A Whether the Zoning Board of Appeals Properly Considered Whether the Applicant Thomas L. Rich, Was Aggrieved by the Zoning Enforcement Officer's Decision.The plaintiffs argue that the ZBA improperly considered whether Rich was aggrieved by the ZEO's decision. Additionally, the plaintiffs contend that even if Rich's aggrievement was properly considered by the board, the ZBA improperly interpreted § 19.1.2. of the Stamford zoning regulations governing appeals to the ZBA.
The court notes that this issue pertains only to Rich. The Geffrards were not parties to the appeal from the ZEO's decision to issue the zoning permit to Newtowne to the ZBA.
The defendants argue that General Statutes § 8-7 applies to appeals taken to the ZBA, and that the statute requires that parties appealing a decision of the ZEO to the ZBA be aggrieved. Section 8-7 provides in relevant part: "An appeal may be taken to the zoning board of appeals by any person aggrieved . . ." (Emphasis added.)
The City of Stamford is a "charter" or "special act" jurisdiction. As a special act municipality, "[w]ith the exception of certain provisions contained in chapters 124 and 126 of the General Statutes . . . planning and zoning in Stamford are governed by 26 Spec. Laws 1228, CT Page 13940-ck No. 619, hereinafter referred to as the Stamford charter (1953), rather than by the General Statutes." Sheridan v. Planning Board, 159 Conn. 1, 4, 266 A.2d 396 (1969). "It has been well established that a city's charter is the fountainhead of municipal powers . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised . . . Agents of a city, including [the zoning board of appeals], have no source of authority beyond the charter . . . In construing a city charter, the rules of statutory construction generally apply . . . A city charter must be construed, if possible, so as reasonably to promote its ultimate purpose . . . In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws." (Citations omitted; internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 423, 572 A.2d 951 (1990).
Moreover, General Statutes § 8-1 provides, in pertinent part, that a "municipality may, by vote of its legislative body, adopt the provisions of . . . chapter [124] and exercise through a zoning commission the powers granted hereunder." This enabling act authorizes a municipality to adopt the statutory zoning laws and create a zoning commission to carry out those laws. Thus, in determining whether § 8-7 of the General Statutes applies to appeals taken to the ZBA, the court must interpret the Stamford Charter and determine whether the City of Stamford has adopted the appeal provisions set forth in § 8-7 of the General Statutes.
Section C6-50-1 of the Stamford Charter, entitled "Powers and Duties, of the Zoning Board of Appeals," provides in relevant part: "The provisions of the General Statutes pertaining to zoning appeals shall apply to the City except so far as inconsistent with the specific provision of this Charter."
Section C1-40-2 of the Stamford Charter provides that the General Statutes "shall remain in full force and effect, within the territorial limits of the City when CT Page 13940-cl not inconsistent with the provisions of this Charter, to be construed and operated in harmony with its provisions, until amended or repealed as herein provided."
Section 19.1.2 of the Stamford zoning regulations provides in relevant part: "Any person claiming to be aggrieved . . . by any order, requirement or decision made by the Zoning Enforcement Officer may appeal to the Zoning Board of Appeals as provided in Section 8-7 of the Connecticut General Statutes as amended. In order to be considered, such appeal shall be duly filed with the Zoning Board of Appeals within thirty (30) days of the effective date of the action of the Zoning Enforcement Officer . . ." (Emphasis added.)
The Stamford Charter expressly adopts the provisions of § 8-7. Therefore, in order to bring an appeal to the ZBA in accordance with the provisions of that statute, Rich was required to be a person aggrieved by the ZEO's decision to issue a permit to Newtowne.
As an administrative appellate body, "[z]oning boards of appeals do not perform the same functions as zoning commissions. Zoning boards of appeals do not adjudicate initial land use applications, but review those already acted upon by a municipality's zoning commission or enforcement officer." Leo Fedus Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 445, 623 A.2d 1007 (1993). General Statutes § 4-183(a), which governs appeals from an administrative agency to the Superior Court, clearly states that: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court . . ." (Emphasis added.) "It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 438, 559 A.2d 1113 (1989).
Moreover, "[i]t is [the] general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a CT Page 13940-cm particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such an agency authority to determine whether the situation is such as to authorize the agency to act — that is to determine the coverage of the statute — and this question need not, and in fact cannot, be initially decided by a court." (Emphasis added.) Id., 439.
Our Supreme Court explained the reasoning behind the exhaustion rule in Francini v. Zoning Board of Appeals, 228 Conn. 785, 794, 639 A.2d 519 (1994). In Francini, the court refused to resolve whether the zoning board of appeals had authority to grant a variance for seasonal use, when it had not been decided by the board in the first instance. Id., 793-94. The court stated, "[t]he requirement that the board first address this issue is consistent with the well settled principle of administrative law that mandates the exhaustion of administrative remedies, a doctrine grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions." (Internal quotation marks omitted.) Id., 794.
The ZBA was required to consider whether Rich was an aggrieved person for the purposes of bringing an appeal to the ZBA from the decision of the ZEO. "Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]." (Citation omitted; internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369-70, 880 A.2d 138 (2005). "Statutory aggrievement CT Page 13940-cn exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Id., 370.
"In order to appeal a decision of a zoning enforcement officer to the zoning board of appeals under C.G.S.A. § 8-7, the appellant must be an aggrieved person. This requires some evidence to be produced before the board in order for it to have standing to review the ruling." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2005 pocket part) § 15.8, p. 62. "Aggrievement is a question of fact . . . The defendant Zoning Board of Appeals, is the factfinder." Zappone v. Thomaston, Superior Court, judicial district of Litchfield, Docket No. 061765 (July 13, 1993, Pickett, J.).
The record reveals that Rich provided no evidence to the ZBA to support his claim of either statutory or classical aggrievement. Counsel for Rich argued before the ZBA that the wording of § 19.1.2 of the Stamford zoning regulations gives "everybody the right to come to [the zoning] board [of appeals] and claim aggrievement. By the time we get to the Superior Court, we acknowledge that we have to have aggrievement . . . [b]ut if you look at [19.1.2] . . . you see any person claiming to be aggrieved, and in the state, it's any person aggrieved. That's the distinction. We have a right to come here because we're claiming aggrievement, and we have to do something between now and then." (Emphasis added.) (ROR, Exh. 35, p. 79.) Counsel continued: "We have sufficient grounds to be here before this board because what we have to do is claim aggrievement versus actual aggrievement in the statute. It's one very, very, very important word." (Emphasis added.) (ROR, Exh. 35, p. 80.) He argued that "the difference is the word claiming." (Emphasis added.) (ROR, Exh. 35, p. 79.) In short, Rich argued that he was claiming aggrievement but that he had no burden to offer any evidence of how he was, in fact, aggrieved by the ZEO's decision.
The court finds this argument without merit. First, § CT Page 13940-co 8-7 applies to appeals taken to the ZBA. Therefore, the statutory requirement that a person actually be aggrieved is applicable to Rich's appeal from the ZEO's decision. Second, Rich is arguing a distinction without a difference; purportedly a difference between "claiming to be aggrieved" versus simply "aggrieved."
Therefore, there was substantial evidence in the record supporting the ZBA's decision that Rich was not aggrieved for purposes of his appeal to the ZBA. The ZBA's decision in that regard is not arbitrary, illegal or in abuse of discretion.
In the plaintiffs' brief to this court, they further argue that "[a]t the Stamford Zoning Board of Appeals plaintiff Rich's status as a `real party in interest' was his claim of aggrievement and his colorable claim of injury, that defendant's permit was the result of unfair or illegal competition . . . and a concurrent diminution of his own property values." (Plaintiffs' brief p. 8.) The record is bare of any evidence of Rich's owning real property near the Property prior to his acquiring an interest in the Geffrards' property for the purpose of bringing the instant appeal. The references to unfair competition and diminution in property value are apparently in regards to his ownership interest in the Marriott Courtyard Stamford Downtown. (Plaintiff's Reply Brief, p. 7.) It is axiomatic, however, that "[t]he prevention of competition is not a proper element of zoning." Jolly, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 940311034 (October 12, 1994, Fuller, J.), rev'd on other grounds, 237 Conn. 184, 676 A.2d 831 (1996); see also Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0182508 (June 20, 2002, Lewis, J.T.R.), aff'd, 266 Conn. 531, 833 A.2d 883 (2003).
Even if this court concluded that Rich was in some manner aggrieved, the record also reveals that Rich failed to file with the ZEO a notice of his appeal, a procedural requirement of § 8-7 and Section 19.1.2 of the Stamford Zoning Regulations. Construing § 8-7 in harmony with § 19.1.2 of the Zoning Regulations, as the Stamford CT Page 13940-cp Charter mandates, Rich was required to file his appeal with both the ZBA and the ZEO. Rich filed his appeal with the ZBA. (ROR, Exh. 1.) Rich failed to file a notice of appeal with the ZEO as required by § 8-7. Failure to serve a copy of the appeal upon the ZEO within thirty days of his decision was a jurisdictional defect depriving the ZBA of subject matter jurisdiction. Redenz v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 970328495 (February 24, 1998, Radcliffe, J.); see also Munroe v. Zoning Board of Appeals, 261 Conn. 263, 272, 802 A.2d 55 (2002) (a zoning board of appeals lacks subject matter jurisdiction over an untimely appeal).
Section C1-40-2 of the Stamford Charter provides that the General Statutes "shall remain in full force and effect, within the territorial limits of the City when not inconsistent with the provisions of this Charter, to be construed and operated in harmony with its provisions, until amended or repealed as herein provided." (Emphasis added.)
The plaintiffs argue that even if § 8-7 and Section 19.1.2 required filing notice of the appeal with the ZEO, Rich's counsel's letter to the ZEO was sufficient to satisfy that procedural requirement. The court is unpersuaded by the plaintiffs' claim that the letter sent to the ZEO constituted filing of the appeal.
B Whether the ZBA Properly Determined that Intent to Abandon the Legal Nonconforming Use of the Property as a "Hotel or Inn" had not been Proven
The plaintiffs further appeal on the grounds that the ZBA acted illegally, arbitrarily and in abuse of discretion by failing to find that the nonconforming use of "hotel or inn" was abandoned, an illegal use, and that the approval of the permit constituted an expansion of nonconforming use. Even if this court were to conclude that Rich was aggrieved and that he properly perfected the appeal, the court finds that there was substantial evidence in the record to support the ZBA's determination that the plaintiffs had not proven intent to abandon or an expansion of a non-conforming use.
"Once a nonconforming use is established, the only way it can be lost is through abandonment . . . The issue of a specific intent to relinquish a nonconforming use presents a question for the trier of fact." (Citation omitted; internal quotation marks omitted.) Campion v. CT Page 13940-cq Board of Aldermen, 85 Conn.App. 820, 843, 859 A.2d 586 (2004), cert. granted, 272 Conn. 920, 867 A.2d 837 (2005) (certification limited to question of enabling authority for a city ordinance.) "Abandonment is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon maybe inferred as a fact from the circumstances . . . The mere discontinuance of a use where there is no intent to abandon is not enough . . . To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use . . . Because the conclusion as to the intention of the landowner is an inference of fact, it is not reviewable unless it was one which the trier could not reasonably make." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 230 (1987).
The court finds substantial evidence in the record upon which the ZBA could have relied in determining that the prior use of the Property as a hotel had not been abandoned. The record contains five affidavits from prior owners of the Property, relating to the period of ownership from April 13, 1989 though October 3, 2003, indicating that each owner never intended to relinquish his right to continue the legal nonconforming hotel use. The focus should be on "the evidence in the record regarding the prior owners' intent . . ." (Emphasis in original.) See Caserta v. Zoning Board of Appeals, 41 Conn.App. 77, 80, 674 A.2d 855 (1996).
Affidavits were submitted to the ZBA from the following: Carmin Grandinetti, an officer of Atria Senior Living Group, Inc., which is or was an affiliate of the following entities: Kapson Stamford Corp., K98 Senior, LLC and Atria Assisted Living, Town Center, LLC, which entities continuously owned the Property for the period from April 13, 1989 through January 17, 2003; Seth G. Weinstein, the General Partner of Hannah Real Estate Partnership, which was a member of Mill River Associates, LLC; Charles Mallory, the managing member of MJLF Clearwater, LLC, which was a member of Mill River Associates, LLC; John P. Tesei, the manager of Pumba Investments, LLC and President of Clearwater Investment Corp., which were members of Mill River Associates, LLC; and Randall M. Salvatore, a member of Mill River Associates, LLC, all for the period from January 17, 2003 through October 3, 2003. (ROR, Exh. 25.)
In addition to the prior owners' affidavits, Kapson, as a contract purchaser in 1988, sought and received a written decision from the zoning enforcement officer that stated that the "use of the property as a residential hotel under Definition no. 49 of the zoning regulations would be a continuation of the present nonconforming use . . ." (Emphasis added.) The ZBA was free to consider this evidence and infer that Kapson lacked the intent to abandon its right to operate a hotel on the Property.
In 1996, the Zoning Board of the City of Stamford adopted amendments to its zoning regulations, including Definition no. 92.1 Senior Housing and Nursing Home CT Page 13940-cr Facility Complex, which enumerated "assisted living residence" as a specific use in such a complex. The plaintiffs advance an argument that operation of the senior residence on the Property constituted an abandonment of the nonconforming hotel use. (Appeal, Count 1, ¶ 12; 14.) The evidence does not support this argument.
As discussed in section II, supra, in 1988, then zoning enforcement officer Macri stated that operation of a senior residence would be a continuation of the right to operate a hotel on the Property. The addition of Senior Housing and Nursing Home Facility Complex Definition no. 92.1 to the Stamford zoning regulations in 1996 could not automatically revoke the preexisting right to operate a hotel as a legal nonconforming use on the Property. The Property is in the R-MF zoning district of the City of Stamford. (ROR, Exh. 3.) As ZEO Lunney testified before the ZBA, the operation of a Senior Housing and Nursing Home Facility Complex, including an "assisted living residence," is not a permitted use in the R-MF zoning district. (ROR, Exh. 35, p. 82.) Kapson's operation of a senior residence, pursuant to its right to continue operating a hotel as a legal nonconforming use on the Property, could not simply morph into a Senior Housing and Nursing Home Facility Complex Definition no. 92.1 use. (ROR, Exh. 35 p. 82.) ZEO Lunney explained that "in order to become that use, [Newtowne would] need to go through a special exception . . . [from] the zoning board itself." (ROR, Exh. 35 p. 82.)
"The temporary interruption or suspension of a nonconforming use without substitution of a conforming one or such a definite and substantial departure from previously existing conditions and uses as to signify an abandonment of the latter, does not terminate the right to resume them." (Internal quotation marks omitted.) Point O'Woods Ass'n., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 369, 423 A.2d 90 (1979). Under the facts of this case, the operation of a senior residence under the hotel, residential Definition no. 49 of the Stamford zoning regulations was not a substitution of a conforming use or such a definite and substantial departure from previously existing conditions and uses CT Page 13940-cs as to signify an abandonment of the right to operate a hotel on the Property.
V Conclusion
In view of the foregoing, the plaintiffs' appeal from the decision of the ZBA affirming the decision of the ZEO to issue a zoning permit to Newtowne for demolition and interior renovations is dismissed.