Cramer & Anderson Partner Dan Casagrande secured victory for a Sherman client who lives across the street from property where zoning violations involving commercial activities and junk were ordered to cease by the Zoning Enforcement Officer but then allowed to continue by the Zoning Board of Appeals (ZBA).
The ZBA’s 2023 decision said certain uses cited by the enforcement officer as violations should be permitted on the property at the junction of Spring Lake Road and Route 39, while other cited issues were violations.
That prompted two appeals, one filed by Attorney Casagrande’s client, neighbor John Dwyer, who argued that all the cited activities were violations, and the second, filed by property owners Joel and Roberta Judd, which argued that all the activities were preexisting nonconforming uses, or intensifications of existing nonconforming uses, and should be allowed.
In a May 2 decision, Judge Trial Referee Barbara Brazzel-Massaro ruled in favor of Dwyer and against the Judds – finding all activities to be violations and giving a full victory to Attorney Casagrande’s client.
The case revolved around the question of whether the activities on the property – including multiple storage trailers and 55-gallon drums, trailer beds, construction supplies, various business uses, and residents in a trailer with multiple dogs – were permitted nonconforming uses.
“[T]he issue which is determinative in each of the appeals is what uses were present on the property in 1937 before the enactment of the zoning regulations, and what if any use may be a permitted intensification or increase in that permitted use,” Judge Brazzel-Massaro wrote in her decision.
A preexisting nonconforming use is a use or structure that is prohibited by a municipality’s zoning regulations but is permitted to continue, even perhaps intensify, because it existed at the time land-use regulations were adopted.
“There is no evidence to support a finding of a preexisting valid nonconforming use by the Judds,” Judge Brazzel-Massaro ruled. “The decision of the board to partially affirm and partially overrule the decision of the zoning enforcement officer is overruled.”
On May 12, 2020, John Dwyer filed a complaint with Zoning Enforcement Officer about the activities and the junk on the Judd property. The complaint resulted in an August 25, 2022, notice of violation from the enforcement officer, and then a November 17, 2022, cease-and-desist order, according to the judge’s summary.
The owners of the property appealed the cease-and-desist order to the Zoning Board of Appeals, which conducted a site view and then issued a decision on August 1, 2023, that upheld the cease-and-desist order for certain activities but reversed the order for other activities.
For example, the ZBA’s list of not valid nonconforming uses included the repair of heavy equipment, a firewood processing area and storage, and utility company truck and shipping container storage.
The ZBA’s list of valid nonconforming uses included snow plowing equipment storage, a construction equipment storage area, and topsoil, winter road salt, and gravel storage and sales.
Judge Brazzel-Massaro found after an exhaustive review of the record that neither the Judds nor the Zoning Board of Appeals presented or established any “credible and relevant evidence to permit any of the uses to be considered a preexisting nonconforming use … .”
Another issue central to the case was the principle of municipal estoppel, which can be invoked in circumstances including when an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief.
Judge Brazzel-Massaro wrote that the Zoning Board of Appeal’s decision in declaring certain situations and uses on the Judd property to be valid nonconforming uses “confused the claim of valid preexisting nonconformity with the claim of municipal estoppel.”
About Attorney Casagrande
Attorney Casagrande, who was named to the Connecticut Super Lawyers list for a third consecutive year in 2024, has served multiple-year engagements as Town Attorney for New Milford and New Fairfield, as well as being retained for special counsel assignments on behalf of Ridgefield, Middlebury, Southbury, New Milford, Waterford, Cheshire, Bethany, Beacon Falls, Norfolk, and the City of Waterbury.
In addition to Municipal Law, Attorney Casagrande’s practice also focuses on Planning & Zoning Land Use, Appellate Law, and Land Use & Environmental Law.
His notable awards and honors include a 2023 Distinguished Leaders Award in the New England Legal Awards, achieving AV Preeminent status from Martindale-Hubbell, being named a Fellow of the Connecticut Bar Foundation (CBF) James W. Cooper Fellows Program, and receiving a Marvin J. Glink Private Practice Local Government Lawyer of the Year from the International Municipal Lawyers Association (IMLA) in 2019. In 2018, he was honored as the “Giant Slayer” among Connecticut counsel as part of the Connecticut Law Tribune’s professional excellence awards.
See Attorney Casagrande’s profile page to learn more. He may be reached by phone at 203-744-1234 or by email at dcasagrande@crameranderson.com.
About Cramer & Anderson
Cramer & Anderson provides sophisticated legal services, close to home, with regional offices in New Milford, Litchfield, Danbury, and Ridgefield. For more information, see the website or call the flagship office in New Milford at (860) 355-2631.