Opinion
AANCV156019430S
01-26-2018
RECYCLING, INC., et al. v. ZONING BOARD OF APPEALS OF the CITY OF MILFORD
UNPUBLISHED OPINION
OPINION
STEVENS, J.
PROCEDURAL HISTORY
The plaintiffs, Recycling, Inc. (Recycling) and The Housatonic Terminal, LLC (Housatonic), instituted this administrative appeal against the Zoning Board of Appeals of the City of Milford (the Board) through a complaint served on October 1, 2015. The appeal seeks to reverse the Board’s decision affirming a May 22, 2015 order of the Zoning Enforcement Officer (ZEO). The ZEO’s order addressed an application submitted by the plaintiffs seeking a certificate of zoning compliance for a preexisting, nonconforming use of the property located at 990 Naugatuck Avenue, Milford, Connecticut (the subject property). The ZEO granted the application as to the property’s use as a limited processing recycling facility, and the plaintiffs claim that the ZEO’s decision failed to grant the application in its entirety.
On November 9, 2016, Recycling filed its brief in support of the appeal. On December 30, 2016, the Board filed its brief in opposition. Reply briefs were filed by Recycling on January 18, 2017, and by the Board on February 3, 2017. The court held an initial hearing on the appeal on July 31, 2017. At the hearing, the court heard the plaintiffs’ evidence regarding aggrievement. Specifically, the court received evidence that Recycling became the owner of the property in October 2010, and Housatonic executed a contract to purchase the property from Recycling in February 2015. The court found aggrievement on the basis of this evidence.
In an order issued on September 22, 2017, the court scheduled the case for reargument, which was held on October 2, 2017. At that time, the court also held a hearing on a motion filed by the Board on August 4, 2017, to dismiss Housatonic as a party to this action. In a ruling issued from the bench, this motion was granted and Housatonic was dismissed as a plaintiff in this action.
The court’s written ruling on the motion to dismiss states the following: " As articulated on the record on October 2, 2017, this motion to dismiss filed by the defendant Zoning Board of Appeals of the City of Milford as to the plaintiff Housatonic Terminal, LLC is granted on the ground that this plaintiff has failed to prove by a preponderance of the evidence that it is aggrieved by the decision at issue of the Zoning Board of Appeals of the City of Milford.
DISCUSSION
I
AGGRIEVEMENT
" [P]leading and proof of aggrievement are prerequisites to the trial court’s jurisdiction over the subject matter of a plaintiff’s appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). " ‘Aggrieved person’ means a person aggrieved by a decision of a board ..." General Statutes § 8-8(a)(1).
As previously discussed, at the July 31, 2017 hearing, the court found that Recycling was aggrieved by the Board’s decision because of its ownership of the property. Although the court initially found that Housatonic was also aggrieved by the decision because of its contract to purchase the property, in a subsequent ruling, the court changed this decision and granted the Board’s motion to dismiss Housatonic’s appeal. In ruling on the motion to dismiss, the court concluded that Housatonic failed to prove by a preponderance of the evidence that it was aggrieved. See n.1. Consequently, this decision will refer to Recycling as the plaintiff.
A
The subject property is situated in the Housatonic Design District Zone (HDD zone) and consists of 7.94 acres. In June 1955, the property was acquired by Joseph Barrett, Richard Barrett, and Donald Barrett (the Barrett family). In 2006, Recycling acquired a lease of the property. Also in 2006, Recycling acquired a permit from the Connecticut Department of Energy and Environmental Protection (DEEP) to operate a limited processing recycling facility, and in 2010, Recycling acquired title to the property. The plaintiff’s stated objective is to eventually operate a volume reduction facility on the property.
On July 7, 2009, the Board amended the zoning regulations to add the following prohibited uses in the HDD zone:
Section 3.12.5.3: Prohibited Uses. Trash hauling, solid waste processing, construction and demolition debris storage and processing, recycling plants, and volume reduction facilities. To the extent that these uses are accessory to permitted principal uses, they shall be allowed.
As a result of this amendment to § 3.12.5.3, a recycling facility became a prohibited use on the property, but the plaintiffs nevertheless believed that the amendment should be considered inapplicable because the property had been used for salvage operations before the amended regulation.
In 2010, Recycling instituted a declaratory judgment action contesting the Board’s authority to regulate recycling through § 3.12.5.3 of the zoning regulations. Recycling, Inc. v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-10-6002308-S (November 2, 2010, Hiller, J.). In a decision issued on November 2, 2010, the court, Hiller, J., ruled in favor of Recycling, holding that the state statutes governing solid waste management evinced a legislative intent to occupy the entire field of regulation in this area to the exclusion of local zoning authorities. This holding was legislatively modified effective March 6, 2012, by an amendment to General Statutes § 22a-208b(b), which provided the following: " Nothing in this chapter or chapter 446e shall be construed to limit the right of a municipality to regulate, through zoning, land usage for an existing or new solid waste facility. No municipal regulation adopted pursuant to section 8-2 [of the General Statutes] shall have the effect of prohibiting the construction, alteration or operation of solid waste facilities within the limits of a municipality." In another declaratory action, entitled Recycling, Inc. v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-13-6013854-S, Recycling claims that this amendment to § 22a-208b applies prospectively only and does not apply retrospectively to reverse Judge Hiller’s decision precluding the application of § 3.12.5.3 to Recycling’s property. This latter lawsuit remains pending.
On April 6, 2015, Recycling and Housatonic applied for a certificate of zoning compliance from the ZEO seeking a determination that recycling, as well as certain other uses of the property, were not prohibited by § 3.12.5.3 because they were preexisting, nonconforming uses.
Specifically, the application for certificate of zoning compliance stated that the prior owners of the property, the Barrett family, had used the property for many years for heavy industrial activities, which the applicants claimed were " non-conforming" uses: " 1. Salvaging now known as recycling; 2. Sorting and selling scrap metal and construction material from demolition jobs; 3. Heavy trucking company; 4. Manufacturing plant; 5. Owned and maintained heavy equipment, industrial cranes, dozers and drills; and 6. Sale of lite and heavy oil/asphalt." R Doc. # 104, p. 1. (The references to the record are to the pages of the court filings of the record, documents having the filing numbers 103, 104, and 105.)
In support of the application, the plaintiff submitted the affidavits of Joseph Barrett and Darlene Chapdelaine. Regarding recycling usage, Barrett’s affidavit stated that after purchasing the property in 1955, the Barrett family operated businesses that " salvaged scrap material on the subject property from demolition and site work projects that they were contracted to manage. The salvage consisted of metals, concrete, bricks, [and] wood material including but not limited to beams." R. Doc. # 104, p. 5. " The word recycle became popular in the 1970s to our family prior to that it was called ‘salvaging.’ " Id. In his affidavit, Joseph Barrett stated that the Barrett family never intended to abandon any of their prior uses of the property.
The references to the record are to the pages of the court filings of the record, documents having the filing numbers 103, 104, and 105.
In her affidavit, Chapdelaine represented that she was the sole shareholder, director, and president of Recycling. Chapdelaine described Recycling’s planned use of the property as follows:
5. On December 8, 2008, Recycling, Inc. received a permit from the State of Connecticut Department of Environmental Protection to operate a solid waste facility as defined under § 22a-201 of the Connecticut General Statutes. A copy of this license for the operation of a solid waste facility known as a " limited processing recycling facility" is attached hereto as Exhibit A. It is the intention of Recycling, Inc. to be able to use this property as a " limited processing recycling facility." This proposed facility is considered a " Volume Reduction Plant" under § 22a-207 of the State Statutes being a part of Chapter 446 of the " Solid Waste Management" Act.
6. A " limited processing recycling facility" is a facility which receives, sorts and processes recyclable material and solid wastes. The material is collected and sorted at the property and then the material is forwarded for ultimate disposal at a " Solid Waste Disposal Area." Recycling, Inc. intends to operate this facility in accordance with its permit granted by the Department of Environmental Protection.
Record, Doc. # 104, p. 7.
In summary, according to Chapdelaine’s affidavit, Recycling had a permit to use the property as a limited processing recycling facility, intended to use the property for this purpose, but had been advised by Milford’s city planner that this use was prohibited by the amendment to the zoning regulations under § 3.12.5.3. Although the plaintiff’s application for zoning compliance represented that Recycling had acquired a permit from DEEP to operate a limited processing facility, the application did not explain or indicate that this permit had been revoked.
On February 5, 2015 (two months before the filing of the plaintiff’s application for zoning compliance) DEEP revoked Recycling’s permit to operate a limited processing recycling facility. In significant part, this revocation was based on a finding that Chapdelaline’s representation that she was the principal and sole shareholder of Recycling was a materially false and misleading statement made to conceal the identity and criminal history of the true principal of the company, Gus Curcio. Recycling filed an appeal to the Superior Court seeking a reversal of DEEP’s revocation order. The Superior Court dismissed the appeal and this dismissal was affirmed by the Appellate Court. Recycling, Inc. v. Commissioner of Energy and Environmental Protection, 179 Conn.App. 127 (2018).
On May 22, 2015, the ZEO granted the plaintiff’s application and issued a certificate of zoning compliance. This certificate authorized the use of the property for a limited processing recycling facility. There is no dispute between the parties that the ZEO’s certificate essentially found compliance as to the first two uses described in the plaintiff’s application: " salvaging now known as recycling" and " sorting and selling scrap metal and construction material from demolition jobs." The certificate did not address any of the other uses delineated in the application. See n.3.
The Certificate of Zoning Compliance for Use of Land or Building states the following: " This is to certify that the existing use at 990 Naugatuck Avenue has been researched and found to be under the authority of the State of Connecticut Solid Waste Management Act in accordance with a summary judgment granted November 10, 2010. It may be used as ‘Limited Processing Recycling Facility’ designed to receive store and process only recyclable material in accordance with the limit and specifications of the General Permit issued by the department of Energy and Environmental Protection on August 16, 2010." The court notes that on February 5, 2015, DEEP revoked the general permit it had issued to Recycling to operate the limited processing recycling facility, and as a consequence, the ZEO revoked the certificate of zoning compliance on July 14, 2015.
As established at the reargument hearing, held on October 2, 2017, the other four uses, items three through six of the application (see n.3), did not pertain to recycling, and do not appear to be either regulated or prohibited uses under § 3.12.5.3. Moreover, these other four uses were not squarely addressed by the plaintiff in its present appeal or its submission to the court, and, therefore, are deemed waived and abandoned.
On June 4, 2015, Housatonic appealed the ZEO’s decision to the Board. The ground for the appeal was that although the ZEO had granted the application as to a limited processing recycling facility, the " preexisting non-conforming uses are broader than just a ‘Limited Processing Recycling Facility.’ " R. Doc. # 104, p. 1.
The Board held hearings on the appeal on July 14 and September 8, 2015. After the September 8, 2015 hearing, the Board voted to uphold the ZEO’s decision and the decision was formally published on September 17, 2015.
The court notes that at the Board’s first hearing held on July 14, 2015, the Board was advised that on that day, the ZEO issued an order revoking the May 22, 2015 certificate of zoning compliance. This reversal of the certificate was premised on the false representation made in the application that Recycling had a DEEP permit to operate a limited processing recycling facility when in fact the permit had been revoked. See n.5.
The July 14, 2015 revocation order stated the following: " The Certificate of Zoning Compliance (CZC) issued on May 22, 2015 for 990 Naugatuck Avenue is hereby revoked due to the submission of false, incomplete and misleading information in the CZC application, including, but limited (sic) to, the submission of a General Permit Dated December 1, 2010, which was revoked by the Department of Energy and Environmental Protection in its decision dated February 5, 2014." (The court notes that DEEP’s final revocation decision was issued on February 5, 2015, not February 5, 2014.)
A dispute exists between the parties about the relevance or significance of the ZEO’s revocation order. This dispute will be addressed further below, but at this point the only emphasis is that neither the legality nor propriety of the ZEO’s order is before the court. Again, the ZEO’s revocation order was based on the application’s false statement that Recycling had a DEEP permit authorizing the operation of a limited processing recycling facility when such authorization did not exist because the permit had been revoked. Recycling did not file a separate appeal to the Board contesting the ZEO’s revocation order. Furthermore, the plaintiff did not add or incorporate the ZEO’s revocation order as part of the appeal made to the Board. No evidence or argument was presented to the Board disputing the falsity of the representation or the ZEO’s use of it to revoke the certificate. The plaintiff obviously cannot appeal to this court that which was not presented to the Board. The plaintiff limited its argument to the Board (as well as its arguments to this court) to whether the ZEO’s finding on nonconforming uses was too narrow. Specifically, during the hearing before the Board, counsel for Recycling explained that the ZEO’s revocation order did not matter " because the State permit has nothing to do with whether or not the non-conforming use exists from a local zoning standpoint." R. Doc, # 104, p. 141. Similarly, as part of its court appeal, Recycling insists that " [t]he fact that the ZEO ‘revoked’ his previously issued certificate of zoning compliance is of no consequence." Def.’s Reply Brief, p. 2. Indeed, none of the plaintiff’s court filings advance any arguments that the revocation order was premised on erroneous information or was an abuse of discretion. Consequently, the substantive merits of the revocation order itself are not before the court.
B
The plaintiff bears the burden of proving that its appeal of the Board’s decision should be sustained. In reviewing the plaintiff’s zoning appeal, the court does not conduct a trial de novo and may not substitute its judgment for that of the zoning board. A zoning board’s decision will be invalidated when it is not supported by substantial evidence in the record. " The substantial evidence rule is similar to the sufficiency 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. It 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 settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonable exercised." (Internal quotation marks omitted.) Gevers v. Planning & Zoning Commission, 94 Conn.App. 478, 483, 892 A.2d 979 (2006).
When the Board’s action involves a review of the propriety of a decision of a zoning enforcement officer, the Board considers the case de novo without deference to the enforcement officer’s decision. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90-91, 626 A.2d 744 (1993). Moreover, in a case such as the present one, where the zoning board fails to give reasons for its decision, the trial court " must search the record to attempt to find some basis for the action taken." Ward v. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104 (1965). The Boards’ decision must be affirmed if any reason stated by the Board or discerned from the record support its decision. The zoning appeal, however, must be sustained if the Board has " acted illegally or arbitrarily or has abused its discretion." Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 470, 442 A.2d 65 (1982).
In its appeal, the plaintiff contests the Board’s failure to find that certain activities on the property were permissible as preexisting, nonconforming uses under the amended zoning regulation, § 3.12.5.3. A municipality’s zoning regulations may not prohibit the continuance of nonconforming uses. Specifically, General Statutes § 8-2(a) states the following in relevant part: " Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations."
The property in this case is not presently being used for recycling. Thus, the general question presented is whether the Board properly found that the claimed uses, to the extent that they previously existed, were abandoned. In this regard, § 8-2(a) further provides the following in relevant part: " Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use." Abandonment is a question of fact involving a voluntary and intentional renunciation, " but the intent may be inferred as a fact from the surrounding circumstances." (Internal quotation marks omitted.) Blum v. Lisbon Leasing Corp., 173 Conn. 175, 182, 377 A.2d 280 (1977). " To establish abandonment of a nonconforming use, it must be proven that: (1) there was a voluntary discontinuance of the use, and (2) the voluntary discontinuance was accompanied by an intent not to reestablish that use." R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 52.5, p. 251. Furthermore, when, as in this case, the prior owner discontinued the use, the question is whether the prior owner intended to resume the use. Caserta v. Zoning Board of Appeals, 41 Conn.App. 77, 82, 674 A.2d 855 (1996).
C
At the hearing before the Board, the plaintiff primarily relied on the testimony and affidavit of Joseph Barrett, supplemented by the testimony of his nephew, James Barrett, about the business operations conducted on the property by the Barrett family. The recycling or " salvaging" operation entirely ceased for nine years, from 1995 to 2004, but according to James Barrett, this business was extensive and intensive from 1955 to 1995. He also testified that the salvage business ceased for economic reasons without any intention to permanently abandon this use. On the basis of this evidence, the plaintiff claims that the Board wrongly concluded that the nonconforming use should be limited or restricted to a limited processing recycling facility. The plaintiff insists that the nonconforming use of the property for recycling operations is without limitation in the " amount, types or volume of materials." Pl.’s Appeal Brief, p. 3.
In response, the Board emphasizes the presentations at the hearing made by the ZEO and Attorney Amy Souchuns, outside counsel for the city of Milford, who insisted that the plaintiff had failed to meet its burden of proving all the uses or their extensiveness as claimed by the plaintiff. In brief, they pointed to the absence of " hard evidence" supporting the extensiveness of the alleged uses, the long period of inactivity, and both the February 5, 2015 revocation and the August 15, 2015 expiration of the DEEP permit. R. Doc. # 105, pp. 374-85. In particular, Attorney Souchuns noted that the prior permits for the recycling operations (including one issued in 1984) were limited and not as broad as the uses being sought by the plaintiff, and she opined that the plaintiff’s purported uses would represent an expansion of a nonconforming use. Id., pp. 377-78.
Thus, the question before the court is not whether recycling itself is a nonconforming use, but what is the breadth or extent of that use. More precisely, the question is whether the Board’s decision affirming the ZEO’s decision limiting the nonconforming use to a limited processing recycling facility is unsupported by substantial evidence or is otherwise an abuse of discretion.
In searching the administrative proceedings for factors supporting the Board’s decision, the record reflects that the plaintiff’s position on the nonconformity itself is too broad to be tenable, that the evidence supporting its position was not as clear and uncontroverted as it claims, and the revocation of the certificate of compliance provided a procedural basis supporting the denial of the plaintiff’s appeal.
1
In its appeal to the Board, the plaintiff argued that the ZEO’s decision erroneously restricted the nonconforming use to a limited processing recycling facility because the application sought approval for recycling uses that were broader. The Board correctly rejected this argument because as to recycling, the ZEO granted exactly what was requested in the application. More specifically, Chapdelaine’s affidavit explained that the plaintiff had a DEEP permit to use the property as a limited processing recycling facility, the plaintiff intended to use the property for this purpose, this use was being prohibited because of the recently amended zoning regulations, and that this facility was a nonconforming use. The ZEO approved the application for this use as requested.
In its appeal to the Board, the plaintiff qualitatively changed the nature and scope of its application. Relying on the affidavit and testimony of Joseph Barrett regarding the prior salvage operations that took place on the property, the plaintiff argued to the Board that its recycling activities should be unlimited in type, amounts, or volume. Contrary to the plaintiff’s contention, the Board was not required to credit or accept this extraordinarily broad, limitless position.
To a significant degree, the plaintiff’s position presented a hypothetical to the Board. It is one thing to ask a zoning authority to authorize a specific use as requested in an application for zoning compliance, and quite another to request authorization for a use without any limitations as to size, scope, or intensity, as the plaintiff sought in its appeal. As a general rule, for example, the mere increase in the amount of business done pursuant to a nonconforming use is not an improper or prohibited expansion of the original use. On this record, however, a fair determination could not be made by the Board whether the increased use as sought by the plaintiff involved a mere increase in the amount of a preexisting use or involved such an intensification that there would in fact be a change in the nature or character of the use.
Furthermore, on this record, it was not possible for the Board to determine or understand precisely what it would be authorizing the plaintiff to do on the property regarding recycling operations, except for anything and everything. The court simply cannot conclude that the Board, in rejecting the plaintiff’s application as requested, exercised its authority illegally, arbitrarily, or abusively. Indeed, it may very well have been a dereliction of the Board’s discretion to approve the application premised on a use as unlimited and undefined as requested by the plaintiff in its administrative appeal. The plaintiff’s arguments to the contrary are rejected.
2
The plaintiff contends that the Board’s decision was improper because, contrary to § 8-2, the decision was based solely on the nine-year cessation of the recycling operation to the exclusion of any consideration of the owners’ intent not to abandon the use. The court rejects this argument. Neither the Milford zoning regulations, nor the Board’s use of these regulations as reflected in the record, support the plaintiff’s argument.
The Milford zoning regulation § 6.2.7 provides the following regarding abandonment of a use:
As previously explained, § 8-2(a) provides that zoning regulations " shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specific period of time without regard to the intent of the property owner to maintain that use." This statutory language only precludes the termination of a nonconformity based solely on the time period of nonuse without regard to the property owner’s intent. Contrary to the plaintiff’s apparent argument, the statute does not preclude any consideration of the length of the nonuse. Furthermore, the law is well established that intent may be inferred from the surrounding circumstances; see generally, Blum v. Lisbon Leasing Corp., supra, 173 Conn. 182; and the length of time an activity has been discontinued may certainly be considered a factor in evaluating an owner’s intent to abandon the activity.
The plaintiff also contends that the Board’s decision lacks substantial basis in the record because the only evidence regarding intent was from the Barretts’ testimony, and they testified that the Barrett family did not intend to abandon the extensive salvaging or recycling work on the property. The evidence of the record, however, is not as clear and unequivocal as the plaintiff suggests because the question was not just the existence of prior recycling operations, but the existence of the " unlimited" nature of the work as advanced by the plaintiff. There was evidence, for example, that the permits the owners acquired authorizing the recycling work were not as broad or unlimited as the plaintiff’s descriptions. Moreover, the Board is charged with the task of evaluating the weight, credibility and veracity of witnesses’ testimony. See Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983) (credibility of witnesses solely within province of board). In determining whether the Board’s decision is without substantial basis in the record, the court should apply the general rule that it should not substitute its judgment for that of the zoning authority by endeavoring to avoid displacing the zoning board’s evaluation of the evidence unless, on the basis of the totality of the record, the board’s evaluation reflects irrationality or discretion abuse. The court cannot find such infirmities here. See generally, Blum v. Lisbon Leasing Corp., supra, 173 Conn. 182 (because conclusion regarding intent is inference of fact, " it is not reviewable unless it was one which the trier could not reasonably make" [internal quotation marks omitted] ).
3
As previously discussed, the ZEO officer issued an order revoking the certificate of compliance based on the application’s misleading statement that Recycling had a DEEP permit to operate a limited processing recycling facility. Contrary to the representation in the application, the plaintiff was without DEEP authority to operate such a facility because the permit had been revoked. The plaintiff maintains that the ZEO’s revocation order is irrelevant and the only controlling issue is whether the ZEO’s initial order of compliance was too narrow. The Board disagrees, arguing that the underlying basis of the revocation was not appealed or contested by the plaintiff, and the basis of the revocation was relevant to the Board’s decision.
The court agrees with the Board because the knowing submission of false and misleading material information as part of a zoning application may support a denial of the application. Although the propriety of the revocation order itself was not before the Board, the order is nevertheless relevant because the Board may rely on the revocation order and the uncontested reasons supporting it to reject the appeal and sustain the ZEO’s decision. Stated differently, the ZEO’s revocation decision and the reasons supporting it provide a separate, alternative basis for the Board’s decision to reject the plaintiff’s appeal. The plaintiff does not make a specific argument to the contrary.
CONCLUSION
Therefore, for these reasons, the plaintiff’s appeal of the Board’s decision is hereby dismissed.
" Housatonic’s interest in the property at issue is based on a 2015 contract to purchase the property from the co-plaintiff Recycling, Inc. The undisputed facts establish that Recycling, Inc. also executed a July 2017 contract to sell the property to Primrose Development, LLC. Neither of these contracts refer to the other or indicate that one is in any way contingent on the other. Although both of these contracts purport to be separate, independent and enforceable, the seller can only sell the property once and cannot perform under both these contracts simultaneously. " As the record is unquestionably unclear as to whether the property is being sold to Housatonic Terminal, LLC or Primrose Development, LLC (and the property owner obviously cannot sell the property to both buyers under the terms of the respective contracts for sale), the court finds that Housatonic Terminal, LLC has failed to meet its burden of proving aggrievement, and therefore, the court lacks subject matter jurisdiction over its appeal."
6.2.7. Any nonconforming use which has been abandoned shall not thereafter be re-established. Any structure or land, or structure and land in combination which was formerly devoted to a non-conforming use which has been abandoned, shall not again be devoted to any use other than those uses which are allowable in the Zoning District in which it is located.
6.2.7.1. The term abandonment, as used herein, shall mean the voluntary discontinuance of a use, when accompanied by an intent not to re-establish such use. Any one of the following shall constitute prima facie evidence of intent to abandon:
(1) Any failure to take all necessary steps to resume the non-conforming use with reasonable dispatch in the circumstances, including advertising of the property for sale or for lease; or
(2) In the case of a non-conforming use of a structure or of a structure and land in combination, discontinuance of the non-conforming use for 6 consecutive months, or for a total of 18 months during any three year period; or
(3) In the case of land only, discontinuance of the non-conforming use for 30 consecutive days, or for a total of 3 months during a one year period.