Pfister v. Madison Beach Hotel, LLC

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CECILIA PFISTER ET AL. v. MADISON
BEACH HOTEL, LLC, ET AL.
(SC 20478)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Keller, Js.
Syllabus
The plaintiffs sought a permanent injunction precluding the defendant owner
and defendant operator of a hotel located in a residential zone in the
town of Madison, from hosting a series of free, weekly outdoor concerts
on a grassy strip of land in a town park that is immediately adjacent to
the hotel property. The hotel predates the enactment of the Madison
zoning regulations, and, therefore, its operation was grandfathered and
is permitted as a preexisting, nonconforming use in the residential zone.
In addition, because the park existed in the residential zone prior to a
1979 revision to the town zoning regulations that requires a landowner
to obtain a special exception to establish a park in a residential zone,
it was grandfathered and is permitted as a preexisting, nonconforming
use. The hotel scheduled, organized, and funded the concerts, and
obtained the requisite permits from the town to host them. The plaintiffs
alleged, inter alia, that the defendants, by hosting the concerts, had
violated the town zoning regulations because the use of the park for
concerts was an illegal expansion of the hotel’s preexisting, nonconform-
ing use of the hotel property. The trial court, relying on Crabtree Realty
Co. v. Planning & Zoning Commission (82 Conn. App. 559), granted
the plaintiffs’ request for a permanent injunction. The trial court rea-
soned that, because the hotel could not host the concerts on the hotel
property without illegally expanding that property’s nonconforming use,
it could not host the concerts on the grassy strip in the park without
also violating the use restrictions applicable to the hotel property. The
defendants appealed to the Appellate Court, which reversed the trial
court’s judgment, concluding, inter alia, that the trial court had improp-
erly considered the restrictions applicable to the hotel property in evalu-
ating the legality of the hotel’s use of the grassy strip to host the concerts.
The Appellate Court determined that the permitted uses of the grassy
strip included all of the permitted uses of a park under the applicable
zoning regulations, including free outdoor concerts. On the granting of
certification, the plaintiffs appealed to this court. Held:
1. The plaintiffs could not prevail on their claim that the Appellate Court
had improperly applied plenary review to the trial court’s determination
that the hotel’s use of the grassy strip of land in the park illegally
expanded the hotel’s nonconforming use of the hotel property: the trial
court’s determination was predicated on the application of an incorrect
legal standard, as Crabtree Realty Co. was not persuasive authority,
and, even if it were, it did not support the trial court’s determination,
which ostensibly was based on a theory that the defendants’ hosting of
the concerts, in contributing to the hotel’s business, annexed the grassy
strip to the hotel; accordingly, because the trial court’s factual findings
were predicated on a misapprehension of the law, the court did not
make the requisite findings necessary to conclude that the hosting of
the concerts on the grassy strip violated the town zoning regulations, and
the court’s decision to grant the permanent injunction could not stand.
2. There was no merit to the plaintiffs’ claims that the Appellate Court
misapplied the actual use doctrine in concluding that the concerts were
a permitted use of the park and that the defendants were required to
prove that the park was actually used for concerts prior to the enactment
of the special exception requirement in 1979; the Appellate Court cor-
rectly determined that the park was irrevocably and actually committed
to its use as a park prior to the 1979 enactment of the special exception
requirement and that the defendants’ use of the park to host free concerts
was within the bounds of the permissible uses of the park, as defined
in the town zoning regulations.
3. The plaintiffs could not prevail on their claim that the Appellate Court
incorrectly concluded that the concerts were permitted under the town
zoning regulation that limits the use of parks to active and passive
recreational activities insofar as the trial court unequivocally found that
the concerts, although free, were commercial rather than recreational
in nature: the commercial nature of the concerts was irrelevant to the
legal determination regarding the permissible uses of the park, and the
trial court’s focus on that issue was misguided; moreover, the trial court’s
analysis improperly made the permissibility of hosting a concert in the
park turn on the subjective intent of the host, in violation of the zoning
principle that zoning may be used only to regulate the use of land, not
the user.
Argued February 22, 2021—officially released January 5, 2022*
Procedural History
Action seeking, inter alia, a permanent injunction
prohibiting the named defendant et al. from hosting a
certain concert series, and for other relief, brought to
the Superior Court in the judicial district of New Haven
and tried to the court, Ecker, J.; judgment for the named
plaintiff et al., from which the named defendant et al.
appealed to the Appellate Court, Alvord, Moll and
Bishop, Js., which reversed the trial court’s judgment
and remanded the case with direction to deny the plain-
tiffs’ request for a permanent injunction, and the named
plaintiff et al., on the granting of certification, appealed
to this court. Affirmed.
Scott T. Garosshen, with whom was Karen L. Dowd,
for the appellants (named plaintiff et al.).
Damian K. Gunningsmith, with whom were David
S. Hardy and, on the brief, Drew J. Cunningham, for
the appellees (named defendant et al.).
Opinion
KELLER, J. The plaintiffs Cecilia Pfister, Margaret
P. Carbajal, Katherine Spence, Emile J. Geisenheimer,
Susan F. Geisenheimer, Henry L. Platt, Douglas J. Crow-
ley, and 33 MBW, LLC,1 appeal from the judgment of
the Appellate Court reversing the judgment of the trial
court, which granted the plaintiffs’ request for a perma-
nent injunction prohibiting the defendants Madison
Beach Hotel, LLC, and Madison Beach Hotel of Florida,
LLC,2 from hosting a summer concert series at a public
park adjacent to the Madison Beach Hotel (hotel). The
plaintiffs claim that the Appellate Court incorrectly con-
cluded that the trial court had abused its discretion in
granting the injunction because the concerts do not
violate the Madison zoning regulations. We disagree
and, accordingly, affirm the judgment of the Appel-
late Court.
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘Madi-
son Beach Hotel, LLC, is the owner of the [hotel] and
the real property on which the hotel is situated, 86
and 88 West Wharf Road in Madison (hotel property).
Madison Beach Hotel of Florida, LLC, is the operating
entity for the hotel. The hotel sits in an R-5 [district].3
The hotel property has existed in Madison, albeit under
different management, since before the adoption of the
town’s zoning regulatory scheme on April 10, 1953.
Accordingly, the hotel’s operation as a hotel and restau-
rant, which otherwise is not a permitted use in the
residential zone in which it sits, was grandfathered as
a preexisting nonconforming use.4
‘‘In 2006, Madison Beach Hotel, LLC, purchased the
hotel property and, thereafter, the hotel began operating
as it exists today. Prior to this change in ownership,
previous owners of the hotel property had received
approval for a number of individual variances pertinent
to the property to allow for, among other things, the
hotel restaurant to operate year-round instead of . . .
seasonally, and for renovations to expand the hotel size,
to reduce the number of guest rooms, and to raise the
roof. In 2008, in order to address enforcement difficul-
ties created by the numerous piecemeal variances that,
at that time, were still applicable to the hotel property,
the hotel applied for what it called a ‘comprehensive
variance,’ which it claimed would, thereafter, be the
sole authority governing the legal uses of the hotel
property.
‘‘After a public hearing, the Madison Zoning Board
of Appeals (board) approved the hotel’s variance appli-
cation. The terms of this variance, as approved by the
board, both expanded and reduced nonconformities
that existed on the hotel property.5 Furthermore, the
variance placed ‘additional conditions and modifica-
tions’ on the hotel’s operation and use of the hotel
property. For example, the variance limited amplifica-
tion of outdoor music played on the hotel property by
prohibiting any amplification louder than that which
can be plainly heard within fifty feet of the hotel prop-
erty.
‘‘In 2012, the hotel began sponsoring a summer con-
cert series, known as the Grassy Strip Summer Concert
Series (concert series), which consisted of one concert
per week for approximately ten weeks each summer,
with each concert lasting from 7 p.m. until approxi-
mately 9:30 p.m. In sponsoring the concert series, the
hotel would schedule, organize, fund, and host the con-
certs on a strip of land located immediately adjacent
to the hotel, known as the ‘Grassy Strip.’ The Grassy
Strip is part of a town owned parcel of land called West
Wharf Beach Park. Since 1896, the Grassy Strip and
West Wharf Beach Park have been owned exclusively
by the town and have been used as a park since prior
to the enactment of the Madison zoning regulations.
Like the hotel, the park is located in a residential zone
. . . .’’ (Footnotes in original.) Pfister v. Madison
Beach Hotel, LLC, 197 Conn. App. 326, 328–30, 232 A.3d
52 (2020). ‘‘As of 1974, parks were a permitted use of
property in residential zones under the Madison zoning
regulations. [In 1979], the zoning code [was] revised to
add the requirement that, in order to establish a park
in a residential zone, the land owner must obtain a
special exception.6 Because West Wharf Beach Park
existed in the [residential] zone prior to the special
exception requirement, it was grandfathered into this
requirement [as a preexisting nonconforming use].’’
(Footnote added.) Id., 330 n.5. Despite the special
exception requirement, it remains a permitted use within
the zone. See Madison Zoning Regs., §§ 3.11 and 4.1.
‘‘The Grassy Strip is available for recreational use by
any taxpaying citizen of Madison who files the appro-
priate facilities request form and pays the correspond-
ing fees.7 The evidence adduced at trial reveals that,
each summer, the hotel obtains the requisite permits
from the town and pays the requisite fees in order to
hold the concerts on the Grassy Strip. The hotel secures
the town’s showmobile,8 uses its own electricity, hires
and pays the bands, reimburses the town for providing
police officers to direct traffic, and advertises the con-
cert series to the public. Although the concerts take
place on the Grassy Strip, the hotel also utilizes portable
bars located on the porches of the hotel to serve bever-
ages, and the hotel restaurant is open for business dur-
ing the concerts. Accordingly, patrons who attend the
concerts often travel back and forth between the hotel
property and the Grassy Strip during the concert to
buy food and beverages, and many attendees choose
to watch the concert from the hotel’s balconies and
railings. Although attendance at the concerts has been
estimated to average around 200 patrons per show, the
evidence revealed that, for at least one of the concerts
held in 2017, attendance reached close to 1000 atten-
dees.
‘‘Since 2012, there have been a number of complaints
regarding the noise and the traffic created by the con-
cert series, which the town and the hotel have worked
together to alleviate. On June 19, 2015, the plaintiffs
filed a complaint in the trial court against the defen-
dants, alleging, among other things, that the defendants
had violated § 12.3 of the [Madison] [Z]oning [R]egula-
tions . . . by hosting outdoor concerts and, therefore,
illegally extending and expanding nonpreexisting, non-
conforming uses of the hotel property.9 The defendants
disagreed, arguing that the use restrictions imposed on
the hotel property have no impact on their activities
on the Grassy Strip. After a bench trial, the [trial] court
rendered judgment [in favor of] the plaintiffs, granting
their request for a permanent injunction that prohibits
the defendants from organizing, producing, promoting,
or sponsoring the . . . [c]oncert [s]eries . . . . ’’10
(Footnotes in original; internal quotation marks omit-
ted.) Pfister v. Madison Beach Hotel, LLC, supra, 197
Conn. App. 331–32.
In so doing, the trial court reasoned that, because
the hotel could not host the concert series on the hotel
property without illegally expanding that property’s
nonconforming use, it could not host the concert series
on the Grassy Strip without also violating the use
restrictions applicable to the hotel. Specifically, the
court stated: ‘‘Once the concert series is seen for what
it is—an activity produced by the hotel as part of its
business operations—the legal analysis is relatively
straightforward. The activity is illegal because it goes
far beyond the preexisting, nonconforming use [of the
hotel property] permitted under [§] 12.3 of the Madison
Zoning Regulations . . . . The fact that the hotel has
made arrangements . . . to locate the musical perfor-
mance . . . on an adjacent property does not change
the undeniable reality that the concert series substan-
tially extends and expands the hotel’s nonconforming
use of [the hotel] property. Physically and operationally,
the concerts are an integral component of the business
activity at the hotel in virtually every respect. . . . In
the same way that the hotel could not evade the illegality
by purchasing or leasing the Grassy Strip from the town
to hold concerts, it also cannot temporarily lease or
license [it] for the purpose, and with the effect, of
enlarging its business operations; an annexation of adja-
cent land that enlarges the hotel’s nonconforming use
is illegal in the absence of a variance or zone change.’’
(Citation omitted.) The trial court cited Crabtree Realty
Co. v. Planning & Zoning Commission, 82 Conn. App.
559, 845 A.2d 447, cert. denied, 269 Conn. 911, 852 A.2d
739 (2004), as legal support for the theory that the
hotel’s use of the Grassy Strip effectively annexed that
property to the hotel, thus permitting the trial court
to treat the two properties as one for purposes of its
analysis.
On appeal to the Appellate Court, the defendants
claimed that the trial court incorrectly concluded that
(1) ‘‘the use restrictions applicable to the hotel property
are also binding on the actions taken by the hotel on
the Grassy Strip,’’ and (2) Crabtree Realty Co. supported
that determination.11 Pfister v. Madison Beach Hotel,
LLC, supra, 197 Conn. App. 332–33. The Appellate Court
agreed with both claims. See id., 333. Applying plenary
review to the trial court’s decision to grant the perma-
nent injunction, the Appellate Court explained that the
decision violated a fundamental tenet of land use law,
namely, that ‘‘zoning power may only be used to regu-
late the use, not the user of the land . . . .’’ (Citation
omitted; internal quotation marks omitted.) Id., 334,
quoting Reid v. Zoning Board of Appeals, 235 Conn.
850, 857, 670 A.2d 1271 (1996). Specifically, the Appel-
late Court stated that the trial court ‘‘erred in consider-
ing the restrictions applicable to the hotel property
when evaluating the legality of the hotel’s use of the
Grassy Strip. In its memorandum of decision, the [trial]
court cites no basis, either in the [Madison] zoning
regulations or in precedent, to justify disregarding the
use-user distinction that serves as a cornerstone of land
use law.’’ Pfister v. Madison Beach Hotel, LLC, supra,
341.
The Appellate Court further stated that ‘‘the proper
inquiry for determining the legality of a use of a parcel
of land is that set forth by the defendants: (1) What is
the parcel being used? (2) What are the permissible
uses of the parcel at issue under the law? (3) Is the
parcel at issue being used for a permissible use under
the law?’’ Id. Applying this analytical framework, the
Appellate Court determined that the parcel being used
was the Grassy Strip and that the permitted uses of
that parcel include all of the permitted uses of a park
under the Madison zoning regulations, including free
outdoor concerts. Id., 343.
In reaching its determination, the Appellate Court
rejected the plaintiffs’ contention that Crabtree Realty
Co. permitted the court to treat the Grassy Strip as
hotel controlled property for purposes of determining
whether the hotel’s use of the park unlawfully expanded
the hotel’s nonconforming use of the hotel property. Id.,
336–37. The Appellate Court explained that ‘‘Crabtree
Realty Co. is readily distinguishable from the present
case because the second parcel in Crabtree Realty Co.
was a vacant lot of private property that was exclusively
leased by the owner of the first parcel. The court in
Crabtree Realty Co. stated that the [planning and zon-
ing] commission in that case was entitled to deny the
plaintiff’s [site plan] application because the proposed
use of [the vacant second parcel] would have added
new land to the plaintiff’s nonconforming use of [its
own parcel]. . . . The court in Crabtree Realty Co. also
stated that the trial court properly upheld the [planning
and zoning] commission’s determination that the use
would result in an illegal expansion of a nonconforming
use because the proposed use of [the vacant second
parcel] would result in a physical change of the property
under the plaintiff’s control . . . .
‘‘In the present case, the second parcel at issue, the
Grassy Strip, is not a vacant private lot leased [or other-
wise controlled] by the defendants for future use but,
instead, is a public tract of land operating as a park and
owned by the town.12 Although the hotel has received
permits to use the Grassy Strip, these licenses granted
to the hotel by the Madison Beach and Recreation
Department do not grant the hotel the same possessory
interest in the Grassy Strip as the lease in Crabtree
Realty Co. granted to that landowner.’’ (Citations omit-
ted; emphasis omitted; footnote in original; internal quo-
tation marks omitted.) Id., 337–38. The Appellate Court
additionally explained that, ‘‘[c]ontrary to the conclu-
sion of the [trial] court, the hotel’s use of its own
resources to support and sponsor a free concert series
does not transform the Grassy Strip into part of the
[hotel] property; nor does it expand the hotel’s use of
[the hotel] property impermissibly.’’ Id., 339.
Lastly, the Appellate Court rejected the plaintiffs’
contention that, ‘‘because there is no evidence of con-
certs having ever occurred on the Grassy Strip, their
occurrence improperly expands the nonconforming use
status applicable to the park.’’ Id., 342. The court
explained that ‘‘the ‘actual use’ requirement for qualify-
ing as a nonconforming use refers to the use of the
parcel as a whole in the manner intended to be grand-
fathered’’; (emphasis omitted) id.; and that it is undis-
puted that the West Wharf Beach Park was intended
to be used, and actually was used, as a park at the
time of the change in the Madison zoning regulations,
resulting in its nonconformity. Id., 342–43. The court
further stated: ‘‘It makes no difference whether a
particular recreational use—in this case, concerts—has
occurred in this particular park before, because [the]
definition of a ‘park’ [in the Madison zoning regulations]
has no enumerated list of permissible activities. The
Madison zoning regulations define a park only as ‘a
tract of land reserved for active or passive recreational
purposes and open to the public.’ Madison Zoning Regs.,
§ 19. Because the West Wharf Beach Park has been
reserved for active and passive recreational purposes
and open to the public since prior to 1953, the use of
the park to host a free public concert series is well
within the bounds of the park’s nonconforming use.
The property’s classification as a park, and not merely
the actual prior uses of the park, is what was grandfath-
ered into the zoning scheme.’’ (Emphasis omitted; foot-
note omitted.) Pfister v. Madison Beach Hotel, LLC,
supra, 197 Conn. App. 343.
This court granted the plaintiffs’ petition for certifica-
tion to appeal, limited to the following issues: (1) ‘‘Did
the Appellate Court properly apply plenary review to
the trial court’s judgment?’’ (2) ‘‘Did the Appellate Court
properly apply the ‘actual use’ doctrine in relation to
the nonconforming use at issue in this case?’’ And (3)
‘‘[d]id the Appellate Court correctly conclude that a
zoning regulation that limits use of a park to ‘recre-
ational purposes’ allowed the concerts at issue in this
case to occur?’’ Pfister v. Madison Beach Hotel, LLC,
335 Conn. 923, 923–24, 233 A.3d 1090 (2020). We answer
each question in the affirmative.
I
We begin with the plaintiffs’ claim that the Appellate
Court improperly applied plenary review to the trial
court’s finding that the hotel’s use of the Grassy Strip
illegally expanded the hotel’s nonconforming use of the
hotel property. The plaintiffs argue, inter alia, that the
trial court’s determination as to whether an illegal
expansion of a nonconforming use has occurred is a
question of fact reviewable only for clear error. The
plaintiffs further argue that the Appellate Court com-
pounded its error by applying plenary review to the
trial court’s finding regarding on which property the
illegal activity occurred. Finally, the plaintiffs argue
that the Appellate Court incorrectly determined that
Crabtree Realty Co. does not support the trial court’s
decision to treat the Grassy Strip as hotel property for
purposes of determining whether the hotel violated the
nonconforming use restrictions applicable to the hotel.
The plaintiffs argue, contrary to the determination of
the Appellate Court, that Crabtree Realty Co. ‘‘held that
. . . a trier of fact may consider the combined effects
of activities on two lots when deciding if a new activity
illegally expands a nonconforming use [on one of the
lots].’’
The defendants respond that the Appellate Court
properly applied plenary review to the trial court’s
determination that the hotel’s use of the Grassy Strip
constituted an illegal expansion of the hotel’s noncon-
formity because that determination was predicated on
an erroneous view of the law, namely, that Crabtree
Realty Co. supported treating the Grassy Strip as an
extension of the hotel property for purposes of its analy-
sis. The defendants maintain that whether the trial court
applied the correct legal standard is a quintessential
question of law subject to de novo review. The defen-
dants further maintain that, to the extent that this court
disagrees with the Appellate Court that Crabtree
Realty Co. is not controlling, this court should overrule
Crabtree Realty Co. because (1) ‘‘there is and was no
support for the ‘combined effects’ analysis’’ employed
therein, (2) a more recent decision of the Appellate
Court, Thomas v. Planning & Zoning Commission, 98
Conn. App. 742, 911 A.2d 1129 (2006), rejected that very
analysis, (3) sister state courts uniformly reject that
analysis, and (4) Crabtree Realty Co. ‘‘is contrary to the
principle that zoning power is concerned with uses not
users of land, and it creates substantial uncertainty in
zoning law.’’
The following legal principles guide our analysis of
the plaintiffs’ claim. ‘‘A party seeking injunctive relief
has the burden of alleging and proving irreparable harm
and lack of an adequate remedy at law. . . . A prayer
for injunctive relief is addressed to the sound discretion
of the court and the court’s ruling can be reviewed only
for the purpose of determining whether the decision
was based on an erroneous statement of law or an
abuse of discretion.’’ (Internal quotation marks omit-
ted.) Wallingford v. Werbiski, 274 Conn. 483, 494, 877
A.2d 749 (2005).
‘‘Determining the appropriate standard of review is
a question of law, and as a result, it is subject to plenary
review.’’ Crews v. Crews, 295 Conn. 153, 161, 989 A.2d
1060 (2010). We thus exercise plenary review of the
Appellate Court’s determination to apply a plenary stan-
dard of review to the trial court’s decision in the present
case. It is axiomatic that whether the trial court applied
an incorrect legal standard in deciding whether the
hotel’s concert series violated the Madison zoning regu-
lations is also a question of law subject to this court’s
plenary review. See, e.g., Hartford Courant Co. v. Free-
dom of Information Commission, 261 Conn. 86, 96–97,
801 A.2d 759 (2002).
In concluding that the hotel illegally had expanded
the nonconforming use of the hotel property, the trial
court cited just one case, Crabtree Realty Co., which
it determined stood for the proposition that it properly
could consider the use restrictions applicable to the
hotel in determining whether the hotel’s use of the
Grassy Strip violated those restrictions, ostensibly
under a theory that the concert series, in boosting the
business of the hotel, annexed the Grassy Strip to the
hotel. The plaintiffs similarly rely on Crabtree Realty
Co. for this proposition, citing no other case. We con-
clude that Crabtree Realty Co. is not persuasive author-
ity and that, even if it were, we agree with the Appellate
Court that it does not support the trial court’s determi-
nation. Because the trial court’s factual findings were
predicated on a misapprehension of the law, it did not
make the requisite findings necessary to conclude that
the concert series violated the Madison zoning regula-
tions.13 Accordingly, the trial court’s decision to grant
the permanent injunction cannot stand. See, e.g., Fran-
cis v. Fonfara, 303 Conn. 292, 301, 33 A.3d 185 (2012)
(‘‘misapplication of the law . . . constitutes an abuse
of discretion’’); Milford Paintball, LLC v. Wampus Mil-
ford Associates, LLC, 117 Conn. App. 86, 92, 978 A.2d
118 (2009) (remanding case for new trial when trial
court’s findings were dependent on erroneous view of
the law).
In Crabtree Realty Co., an automobile dealership
leased an adjacent parcel of land for the purpose of
constructing twenty additional parking spaces for its
customers and employees. Crabtree Realty Co. v. Plan-
ning & Zoning Commission, supra, 82 Conn. App. 561.
Both properties—the dealership property and the adja-
cent parcel—were located in a general business district
in which off-street parking was a permitted use, but an
automobile dealership was not. Id., 563. The defendant
planning and zoning commission denied the dealer-
ship’s site plan application on the ground that ‘‘con-
struction of parking spaces on adjoining property would
enlarge rather than intensify [the dealership’s] existing
nonconforming use of its own property.’’ Id., 562. After
the trial court affirmed the planning and zoning commis-
sion’s decision, the dealership appealed to the Appellate
Court, claiming that, under Zachs v. Zoning Board of
Appeals, 218 Conn. 324, 589 A.2d 351 (1991),14 the plan-
ning and zoning commission incorrectly had deter-
mined that the proposed parking lot constituted an ille-
gal expansion rather than a permissible intensification
of the dealership’s nonconforming use of the dealership
property.15 Crabtree Realty Co. v. Planning & Zoning
Commission, supra, 82 Conn. App. 561–63. Acknowl-
edging that ‘‘the case law governing expansion of non-
conforming uses is not entirely consistent’’; id., 564; the
court concluded that ‘‘this inconsistency can best be
addressed by heeding the oft-repeated observation that
[t]he legality of an extension of a nonconforming use
is essentially a question of fact. . . .
‘‘From this vantage point, [this court agreed] with
the trial court that the [planning and zoning] commis-
sion was entitled to deny the [dealership’s] application
because the proposed use of [the adjacent parcel] would
have added new land to the [dealership’s] nonconform-
ing use of [its own property].’’ (Citations omitted; inter-
nal quotation marks omitted.) Id. The court further rea-
soned that, ‘‘[b]ecause the proposed use of [the adjacent
parcel] would result in a physical change of the property
under the [dealership’s] control, the [planning and zon-
ing] commission reasonably could decide that granting
the [dealership’s] proposed use of [of the adjacent par-
cel] would result in the illegal expansion of its preex-
isting nonconforming use.’’ Id., 565–66.
In reaching its decision, the court in Crabtree Realty
Co. relied on a line of cases in which it was held that the
addition of new property to a nonconforming property
expanded the existing nonconformity. See id., 564. In
the present case, however, as the Appellate Court
explained, under no reasonable construction of the law
can it be said that the hotel’s periodic use of the Grassy
Strip, under a permit granted to it by the town,16 added
to the hotel property within the meaning of those
cases.17 See Pfister v. Madison Beach Hotel, LLC, supra,
197 Conn. App. 338–39; see also, e.g., Clean Corp. v.
Foston, 33 Conn. App. 197, 203, 634 A.2d 1200 (1993)
(‘‘[u]nlike a lease, a license in real property is a mere
privilege to act on the land of another, which does not
produce an interest in the property’’). Accordingly, we
find no merit in the plaintiffs’ contention that Crabtree
Realty Co. ‘‘dealt with the precise issue here’’ and ‘‘held
that, as part of the factual Zachs test, a trier of fact
may consider the combined effects of activities on two
lots when deciding if a new activity illegally expands
a nonconforming use [on one of the lots].’’ The court
in Crabtree Realty Co. held no such thing. In deciding
whether the planning and zoning commission properly
had determined that the new parking lot illegally
expanded the dealership’s nonconforming use of its
own property, the Appellate Court accepted the plan-
ning and zoning commission’s finding that the newly
leased lot added to the property under the dealership’s
control and, on the basis of that finding, concluded that
the planning and zoning commission reasonably could
have found that the proposed parking lot would illegally
expand the nonconforming use of that property. See
Crabtree Realty Co. v. Planning & Zoning Commis-
sion, supra, 82 Conn. App. 564 (‘‘we agree with the trial
court that the [planning and zoning] commission was
entitled to deny the [dealership’s site plan] application
because the proposed use of [the adjacent parcel] would
have added new land to the [dealership’s] nonconform-
ing use’’ (emphasis added)); id., 565–66. (‘‘[b]ecause
the proposed use of [the adjacent parcel] would result
in a physical change of the property under the [dealer-
ship’s] control, the [planning and zoning] commission
reasonably could decide that granting the [dealership’s]
proposed use of [the adjacent parcel] would result in
the illegal expansion of its preexisting nonconforming
use’’ (emphasis added)).
Even if Crabtree Realty Co. were factually similar,
however, it is not persuasive authority. As the defen-
dants argue, the dealership’s sole contention in Crabtree
Realty Co. was that the planning and zoning commission
incorrectly determined, as a factual matter, that the
proposed parking lot constituted an illegal expansion
rather than a permissible intensification of the noncon-
forming dealership property.18 See id., 562. As a result,
the Appellate Court was not required to—nor did it—
consider whether the planning and zoning commission
had the legal authority to deny a site plan application
for a permitted use (parking) merely because it would
be used in connection with a nonconforming use. Two
years later, however, in Thomas v. Planning & Zoning
Commission, supra, 98 Conn. App. 748–51, the Appel-
late Court squarely addressed that question and con-
cluded that a planning and zoning commission could
not deny a permit for a permitted use on the ground
that the permit was sought in connection with a noncon-
forming use.
The facts of Thomas are nearly identical to those
of Crabtree Realty Co. In Thomas, a manufacturing
company operating as a nonconforming business in a
residential zoning district applied for permission to con-
struct twenty parking spaces behind its manufacturing
plant. Id., 744. An abutting landowner opposed the appli-
cation on the ground that the proposed additional park-
ing on the manufacturer’s property would constitute an
illegal expansion of the company’s nonconforming use
of that property, even though off-street parking was a
permitted use in the district. Id. Specifically, the land-
owner argued that, ‘‘because the parking lot is used in
connection with a nonconforming manufacturing use
on the property, the use of the parking lot itself is
nonconforming.’’ Id., 748. After the defendant planning
and zoning commission approved the application, the
landowner appealed to the trial court, which dismissed
the appeal. Id., 744. The Appellate Court subsequently
affirmed the trial court’s judgment, concluding that the
planning and zoning commission properly had approved
the application because the proposed parking lot was
a permitted use within the district. Id., 751; see id., 750
(‘‘The [landowner’s] argument fails for a number of
reasons. . . . [T]he existing parking lot conforms to
the town’s [zoning] regulations; it is not a nonconform-
ing use. The expansion of the existing parking lot is
not an expansion of a nonconforming use and, conse-
quently, [the applicable zoning regulation, which pro-
hibits the expansion of nonconforming uses], does not
apply.’’); see also Pfister v. Madison Beach Hotel, LLC,
supra, 197 Conn. App. 335 n.13 (‘‘[i]n Thomas, the court
held that the [zoning] regulation governing the illegality
of expanding nonconformities was inapplicable to an
alteration on a property that constitutes a permitted
use within the zoning code’’).
We are persuaded by the reasoning in Thomas, which
accords with several bedrock principles of land use law,
including that ‘‘[a] permitted use is not a nonconforming
use’’; Melody v. Zoning Board of Appeals, 158 Conn.
516, 519, 264 A.2d 572 (1969); ‘‘[z]oning is concerned
with the use of specific existing buildings and lots,
and not primarily with their ownership’’; Abbadessa v.
Board of Zoning Appeals, 134 Conn. 28, 32, 54 A.2d 675(1947); and ‘‘[t]he designation of a particular use of
property as a permitted use establishes a conclusive
presumption that such use does not adversely affect
the district and precludes further inquiry into its effect
on traffic, municipal services, property values, or the
general harmony of the district.’’ Beit Havurah v. Zon-
ing Board of Appeals, 177 Conn. 440, 443, 418 A.2d
82 (1979); see also R. Fuller, 9B Connecticut Practice
Series: Land Use Law and Practice (4th Ed. 2015) § 52:1,
p. 220 (‘‘[t]he prohibition of expansion of nonconform-
ing uses applies only to the aspect of the use or structure
which is nonconforming’’). We also agree with the
Appellate Court that ‘‘the import of [Thomas’] holding
is closer to the issue presented to us . . . than that of
Crabtree Realty Co.’’; Pfister v. Madison Beach Hotel,
LLC, supra, 197 Conn. App. 335 n.13; in that both cases
involve whether the owner of a nonconforming property
has the same right as any other taxpaying citizen who
files the appropriate application to utilize land for a
permitted use. The plaintiffs’ attempt to distinguish
Thomas is unavailing. Specifically, the plaintiffs argue
that Thomas is inapplicable because it is a ‘‘conforming
use case’’ involving a request to undertake a permitted
activity on a nonconforming property, whereas the pres-
ent case involves a request to undertake a prohibited
activity—the concert series—on a nonconforming prop-
erty. (Emphasis omitted.) The plaintiffs’ argument is
unpersuasive for the simple reason that it assumes the
very facts at issue in parts II and III of this opinion,
namely, whether the hotel’s concert series is a permit-
ted activity in West Wharf Beach Park. For the reasons
set forth hereinafter, we conclude that it is.
II
The plaintiffs claim that the concerts are not a permit-
ted activity and that the Appellate Court misapplied
the ‘‘actual use’’ doctrine, an element of the test for
determining the existence of a nonconforming use, in
concluding that it was. Specifically, the plaintiffs argue
that ‘‘the Appellate Court wrongly held that these con-
certs could continue despite no evidence that concerts
of any kind had actually occurred on the nonconforming
Grassy Strip prior to the zone change, never mind com-
mercial concerts.’’ (Emphasis omitted.) Although the
plaintiffs concede that parks in Madison were used for
concerts prior to the adoption of the special permit
requirement, and continue to be used for them to this
day, they argue that the actual use doctrine required
the defendants to prove that West Wharf Beach Park
was actually used for concerts prior to 1979, which they
failed to do.
The defendants respond, inter alia, that the plaintiffs’
claim is predicated on a fundamental misunderstanding
of the law governing nonconforming uses. Specifically,
the defendants argue that, in all of the cases cited in
the plaintiffs’ appellate brief, the landowners were seek-
ing to use their property in a manner categorically pro-
hibited under the zoning regulations such that the
courts were required to identify and delineate the pre-
cise scope of the nonconforming use being claimed and
that, in the present case, by contrast, parks are not only
a permitted use in a residential zone, but the Madison
zoning regulations specifically define the type of activi-
ties that may occur in them. The defendants maintain
that, because concerts clearly fall within the scope of
those permitted activities, there was no need for them
to ‘‘catalogue each of the innumerable ways that the
public has recreated in [West Wharf Beach Park] in the
past to determine . . . the scope of [the] permissible
uses of the park . . . .’’ We agree with the defendants.
‘‘[T]he accepted policy of zoning . . . is to prevent
the extension of nonconforming uses . . . and that it
is the indisputable goal of zoning to reduce nonconform-
ing to conforming uses with all the speed justice will
tolerate. . . . Nevertheless, the rule concerning the
continuance of a nonconforming use protects the right
of a user to continue the same use of the property as
it existed before the date of the adoption of the zoning
regulations.’’ (Citations omitted; internal quotation
marks omitted.) Helbig v. Zoning Commission, 185
Conn. 294, 306, 440 A.2d 940 (1981). A nonconforming
use has been defined as ‘‘an ‘existing use’ the continu-
ance of which is authorized by the zoning regulations.’’
Melody v. Zoning Board of Appeals, supra, 158 Conn.
519. We previously have held that ‘‘[t]o be a noncon-
forming use the use must be actual. It is not enough
that it be a contemplated use [or] that the property was
bought for the particular use. The property must be so
utilized as to be irrevocably committed to that use.’’
(Internal quotation marks omitted.) Lebanon v. Woods,
153 Conn. 182, 197, 215 A.2d 112 (1965). ‘‘[T]o be irrevo-
cably committed to a particular use, there must have
been a significant amount of preliminary or preparatory
work done on the property prior to the enactment of
the zoning regulations which unequivocally indicates
that the property was going to be used for that particular
purpose.’’ Karls v. Alexandra Realty Corp., 179 Conn.
390, 399, 426 A.2d 784 (1980).
We have also held that, ‘‘[f]or a use to be considered
nonconforming under . . . Connecticut case law, [the]
use must possess two characteristics. First, it must be
lawful and second, it must be in existence at the time
that the zoning regulation making the use nonconform-
ing was enacted.’’ (Emphasis omitted.) Helicopter Asso-
ciates, Inc. v. Stamford, 201 Conn. 700, 712, 519 A.2d
49 (1986). ‘‘For there to be an existing use, premises
must be so utilized as to be known in the neighborhood
as employed for a given purpose. Such utilization com-
bines two factors: (1) the adaptability of the land for
the purpose; [and] (2) the employment of it within that
purpose. . . . [W]e have unequivocally stated that nei-
ther the extent, quantity nor quality of the use is pre-
scribed by the known in the neighborhood test.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
713. ‘‘[T]he party claiming the benefit of a nonconform-
ing use . . . [bears] the burden of proving a valid non-
conforming use in order to be entitled to use the prop-
erty in a manner other than that permitted by the zoning
regulations.’’ Cummings v. Tripp, 204 Conn. 67, 82–83,
527 A.2d 230 (1987).
In the present case, not only are parks a permitted
use in a residential zone by special exception; see Burl-
ington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338(1975) (explaining ‘‘the distinction among special per-
mits, exceptions and variances’’ and noting that ‘‘[a]
variance is authority extended to the owner to use his
property in a manner forbidden by the zoning enact-
ment, while an exception allows him to put his prop-
erty to a use which the enactment expressly permits
(emphasis added; internal quotation marks omitted));
9B R. Fuller, supra, § 52:1, p. 220 (‘‘[t]he prohibition of
expansion of nonconforming uses applies only to the
aspect of the use or structure which is nonconform-
ing’’); but the plaintiffs readily concede that West Wharf
Beach Park was known in the neighborhood as a park
and was utilized as such prior to the enactment of the
special permit requirement. The plaintiffs also concede
that Madison parks historically were and continue to
be used for holding outdoor concerts. Their sole con-
tention is that, even if concerts are a permitted use of
Madison parks generally, the actual use component of
the nonconforming use test required the defendants to
prove that concerts were actually held in West Wharf
Beach Park prior to 1979.
As we have explained, however, to establish a valid
nonconforming use, the party claiming it need only
prove that the land was irrevocably committed to that
use prior to the enactment of the zoning regulations.
See Karls v. Alexandra Realty Corp., supra, 179 Conn.
399. By this, it is merely meant that the party must
prove that the claimed nonconformity was not merely
contemplated but actually existed when the change in
the zoning regulations occurred. See, e.g., Sherman-
Colonial Realty Corp. v. Goldsmith, 155 Conn. 175, 183,
230 A.2d 568 (1967). Applying this principle in Sherman-
Colonial Realty Corp., this court concluded that the trial
court correctly determined that the plaintiff landowners
failed to establish that their land was irrevocably com-
mitted to use as a subdivision when ‘‘[t]here [was] noth-
ing in the record to indicate that [they] actually used the
property or expended any money in physically changing
the nature of the undeveloped land [for that purpose]
. . . .’’ Id. This court stated that ‘‘[t]he mere filing of
maps for the subdivision of a parcel of real estate does
not necessarily immunize the subject property from the
operative effect of subsequent subdivision regulations.
Otherwise, a property owner, by the process of map
filing, could completely foreclose a zoning authority
from ever taking any action with respect to the land
included in the map, regardless of how urgent the need
for regulation might be.’’ (Internal quotation marks
omitted.) Id.; see also Corsino v. Grover, 148 Conn. 299,
314, 170 A.2d 267 (1961) (‘‘the filing of a map showing
lots in a proposed [subdivision] cannot create a noncon-
forming use’’).
Similarly, in Wallingford v. Roberts, 145 Conn. 682,
146 A.2d 588 (1958), this court concluded that the trial
court correctly determined that the defendant landown-
ers had failed to establish that their land, located in a
rural district, was actually used as a trailer park prior
to the effective date of the zoning regulations. Id., 684.
This court explained that the evidence established that
the landowners had purchased the land with full knowl-
edge that trailer parks were not a permitted use in the
district under the newly adopted zoning regulations and
that, ‘‘the day before the regulations were to become
effective, the [landowners] caused five trailers to be
moved onto the property.’’ Id., 683–84. This court con-
cluded that the trial court had correctly determined
that ‘‘the belated effort of the [landowners] in moving
the five trailers onto their land, within twenty-four
hours of the time when the regulations were to become
operative, did not create an existing nonconforming
use.’’ Id., 684; see also Wing v. Zoning Board of Appeals,
61 Conn. App. 639, 645, 767 A.2d 131 (keeping horses
on residential property was not valid nonconforming
use when ‘‘[t]here [was] no indication in the record that
horses were ever kept on the . . . property prior to
[the effective date of the relevant zoning regulations]
. . . [and a] horse was specifically brought onto the
property in an attempt to create a nonconforming use’’),
cert. denied, 256 Conn. 908, 772 A.2d 602 (2001).
As the Appellate Court concluded, however, there is
simply no question that West Wharf Beach Park was
irrevocably and indisputably committed to its use as a
park long before the enactment of the special exception
requirement. See Pfister v. Madison Beach Hotel, LLC,
supra, 197 Conn. App. 342–43. We further agree with
that court that the hotel’s use of the park to host a free
public concert series is well within the bounds of the
park’s permitted uses as defined in the Madison zoning
regulations. See id., 343; see also Bauer v. Waste Man-
agement of Connecticut, Inc., 234 Conn. 221, 237, 662
A.2d 1179 (1995) (‘‘because the [zoning] commission
enacted a ninety foot height limitation, [the defendant’s
nonconforming] use of [a] landfill to that height is express-
ly permitted by the . . . zoning regulations’’).
In arguing to the contrary, the plaintiffs cite several
cases that they contend ‘‘[define] actual use on a granu-
lar level, not via broad-brush analysis of what could
have been (but never was) done before.’’ All of the cited
cases, however, primarily involve whether a noncon-
forming use has been expanded, not whether it existed
in the first instance.19 Such a determination requires
application of the criteria set forth in Zachs v. Zoning
Board of Appeals, supra, 218 Conn. 332. To the extent
that the Zachs analysis strikes the plaintiffs as granular,
this undoubtedly is because it requires consideration
of a wide cross section of factors, including ‘‘(1) the
extent to which the current use reflects the nature and
purpose of the original use; (2) any differences in the
character, nature and kind of use involved; and (3) any
substantial difference in effect upon the neighborhood
resulting from differences in the activities conducted
on the property.’’ Id. Notably, the plaintiffs have not
requested that such an analysis be performed with
respect to West Wharf Beach Park and the concert
series.
We note, finally, that the granularity of any actual
use analysis necessarily depends on the nature and
scope of the use being claimed. If the preexisting use
were an amusement park, for example, it is the amuse-
ment park and all that an amusement park entails that
would be grandfathered into the zoning scheme. In such
a case, the court would not be required to inventory
the buildings, amusement rides, and entertainment
offerings in determining whether the use exists. Simi-
larly here, then, because West Wharf Beach Park was
grandfathered into the zoning scheme as a park, a citi-
zen wanting to use the park is not required to prove
that any park activity within the realm of possibility
that is commonly known to take place in parks occurred
in this park prior to the enactment of the zoning regula-
tions. ‘‘[I]n defining the words ‘existing use,’ [what] we
mean [is] a utilization of the property so that it may be
known in the neighborhood as being employed for a
given purpose; that neither the extent nor the quantity
nor the quality of the use which may be permitted to
continue is prescribed by those words; and that it is
only required that the use must have existed. The court
is not generally required to speculate as to the number
of acts or business transactions necessary to constitute
an existing use.’’ (Emphasis added.) Melody v. Zoning
Board of Appeals, supra, 158 Conn. 520–21. To the
extent that a town or neighboring landowner contends
that a particular activity on the property is not within
the scope of the original nonconforming use because
the activity is inconsistent with the nature and purpose
of such use, the burden is on the town or landowner
to prove that an illegal expansion of the nonconformity
has occurred, which is done through application of the
Zachs factors.20 See Cummings v. Tripp, supra, 204
Conn. 95 (‘‘plaintiffs bore the burden of establishing
that the defendants’ activities amounted to an illegal
extension of a nonconforming use’’). As we have
explained, the plaintiffs have failed to do so.
To summarize, the right asserted by the hotel was
the right to use West Wharf Beach Park as a park within
the meaning of the Madison zoning regulations. For
the reasons previously set forth, we conclude that the
Appellate Court correctly determined that West Wharf
Beach Park was irrevocably and actually committed to
its use as a park prior to 1979 and that the permissible
uses of the park necessarily include all of the permitted
active and passive recreational uses of a park under the
Madison zoning regulations, including a free summer
concert series.
III
We turn, then, to the plaintiffs’ claim that the Appel-
late Court incorrectly concluded that the Madison zon-
ing regulation that limits the use of a park to all passive
and active recreational purposes allows the concerts
at issue in this appeal. See footnote 7 of this opinion.
The plaintiffs contend that the trial court unequivocally
found that, although the concerts may be free to the
public, they are commercial activities from the perspec-
tive of the hotel, and, as such, they are not a permitted
recreational use of West Wharf Beach Park. The plain-
tiffs maintain that the dictionary definition of the word
‘‘recreational’’ supports the trial court’s interpretation
of the zoning regulations and, by extension, its finding
that the concerts are not recreational in nature and,
therefore, are not permitted in West Wharf Beach Park.
The defendants respond that the plaintiffs’ argument
fails on a number of fronts, including that the Madison
zoning regulations make no distinction between com-
mercial and noncommercial recreational activities; they
simply provide that parks may be used for any recre-
ational purpose, passive or active. The defendants fur-
ther contend that the plaintiffs’ interpretation of the
zoning regulations is untenable because it makes the
permissibility of a free concert in West Wharf Beach
Park turn on the subjective intent or motives of the
person or persons hosting the concert, in violation of
the principle that zoning may be used to regulate only
the use of land, not the user. We agree with the defen-
dants.
The following additional facts and procedural history
are relevant to our analysis of this claim. In rejecting
the plaintiffs’ claims on appeal, the Appellate Court
explained that the commercial intent behind the concert
series was irrelevant and that the trial court’s focus on
that issue was misguided: ‘‘The fact that the hotel stands
to benefit, financially or otherwise, from the concerts
held on the Grassy Strip has no bearing on the legal
determination regarding the permissible uses of the
Grassy Strip by a Madison citizen under the zoning
regulations. The [trial] court states in its memorandum
of decision that, ‘[w]ith each concert . . . the hotel
. . . generates goodwill, and draws to its doorstep hun-
dreds of potential future customers for the hotel’s lodg-
ing, banquet, and other services. Whatever other inter-
ests may be served by the concert series (promoting
town spirit, supporting arts and entertainment, and so
forth), the event is plainly a commercial activity, which
generates direct and indirect economic benefits for the
hotel as a business enterprise.’ . . .
‘‘The [trial] court additionally states, albeit in dic-
t[um], that the commercial nature of the concerts cre-
ates an illegal nonconformity on the Grassy Strip. Nota-
bly, there is no prohibition of commercial events on
town property codified anywhere in the Madison zoning
regulations.21 The [trial] court’s determination, how-
ever, is not rooted in the permissible uses of a town
owned park under the zoning regulations; rather, the
court explains that, even if other Madison citizens
would be permitted to hold a musical performance on
the Grassy Strip, the hotel cannot do so ‘in a manner
that temporarily annexes the town’s property to extend
[its own] (nonconforming) commercial activities using
the town’s land.’ The [trial] court’s emphasis on the
commercial nature of the defendants’ events, however,
serves only to prevent a specific citizen, the hotel, from
using a town owned space in a manner available to
other citizens.’’ (Footnote in original; footnote omitted.)
Pfister v. Madison Beach Hotel, LLC, supra, 197 Conn.
App. 339–341. The Appellate Court further observed
that ‘‘the [trial] court’s assertion that the hotel’s use of
the Grassy Strip violates the nonconforming use of the
park [separate and apart from its nonconforming use
of the hotel property] is only discussed briefly in [a
footnote at the end of] the memorandum of decision.
The [trial] court [states]: ‘Due to the commercial nature
of the concerts as they are produced by the hotel, this
activity also violates the Madison zoning regulations
applicable to West Wharf [Beach] Park, because com-
mercial activities of this nature are not a permitted use
in [a residential] zone, park or no park.’ ’’ (Emphasis
in original.) Id., 340 n.16. The Appellate Court concluded
that, because this statement by the trial court was ‘‘not
supported by any case law, regulation, or legal analy-
sis,’’ it was ‘‘mere dictum.’’ Id.On appeal, the plaintiffs argue that the trial court’s
statement was not dictum and that the Appellate Court
erred in failing to conclude that it constituted a separate
and independent basis for sustaining the trial court’s
legal determination that the concert series violated the
prohibition against the expansion of nonconforming
uses contained in § 12.3 of the Madison Zoning Regula-
tions, albeit as applied to the park rather than the hotel
property. We are not persuaded.
We agree fully with the Appellate Court’s analysis of
this issue. We would only add that, even if a single
sentence in a footnote at the end of the trial court’s
forty-four page memorandum of decision, addressing
an entirely new question pertaining to the lawful uses
of the park, reasonably could be construed as more than
dictum, the analysis contained therein is untenable, as
it would make the permissibility of hosting a free con-
cert in West Wharf Beach Park turn on the subjective
intent of the host, in clear violation of ‘‘[t]he basic zoning
principle that zoning regulations must directly affect
land, not the owners of land . . . .’’ (Citation omitted;
internal quotation marks omitted.) Reid v. Zoning
Board of Appeals, supra, 235 Conn. 857; see also id.(‘‘the identity of a particular user of land is irrelevant
to zoning’’ (internal quotation marks omitted)); id.(‘‘zoning power may only be used to regulate the use,
not the user of the land’’ (internal quotation marks
omitted), quoting T. Tondro, Connecticut Land Use Reg-
ulation (2d Ed. 1992) p. 88; Dinan v. Board of Zoning
Appeals, 220 Conn. 61, 66–67 n.4, 595 A.2d 864 (1991)
(identity of particular user of land is irrelevant to zon-
ing). Not only would this standard require that courts
become mind readers, but it would also likely spell the
end of many free recreational activities across the state,
such as yoga in the park, if the individual or group
sponsoring the event did so in the hope of generating
good will and attracting new clients to their brick and
mortar studios, classrooms, or businesses. The Appel-
late Court concluded, and we agree, that such a stan-
dard is not compelled by any reasonable construction
of the Madison zoning regulations or case law.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* January 5, 2022, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Schutt Realty, LLC, was a named plaintiff in this action but subsequently
withdrew its claims. We therefore refer in this opinion to Pfister, Carbajal,
Spence, Emile J. Geisenheimer, Susan F. Geisenheimer, Platt, Crowley, and
33 MBW, LLC, as the plaintiffs.
2
The town of Madison also was named as a defendant in this action, but
the trial court dismissed the plaintiffs’ claims against it for failure to exhaust
administrative remedies. The plaintiffs did not appeal that ruling to the
Appellate Court, and, as a result, the town of Madison did not participate
in that appeal and is not a participant in this appeal. We therefore refer in
this opinion to Madison Beach Hotel, LLC, and Madison Beach Hotel of
Florida, LLC, as the defendants and individually by name when appropriate.
3
‘‘An R-5 district is a residential zoning district established by the Madison
zoning regulations. The purpose of all residential zoning districts, according
to the zoning regulations, is to ‘set aside and protect areas to be used
primarily for single family dwellings. It is intended that all uses permitted
[in residential districts] be compatible with single family development
. . . .’ Madison Zoning Regs., § 3.1.’’ Pfister v. Madison Beach Hotel, LLC,
197 Conn. App. 326, 329 n.2, 232 A.3d 52 (2020).
4
‘‘Under the Madison zoning regulations, a nonconforming use is defined
as ‘a [u]se of land, [b]uilding or [p]remises which is not a [u]se permitted
by these [r]egulations for the district in which such land, [b]uilding or
[p]remises is situated.’’ Madison Zoning Regs., § 19. The zoning regulations
also specify that ‘[a]ny non-conforming use or building lawfully existing at
the time of the adoption of these regulations . . . may be continued . . .
subject to the following regulations . . . [n]o non-conforming use shall be
extended or expanded.’ Id., §§ 12 and 12.3.’’ Pfister v. Madison Beach Hotel,
LLC, 197 Conn. App. 326, 329 n.3, 232 A.3d 52 (2020).
5
‘‘The variance certificate states in relevant part: ‘The proposal would
provide zoning-related benefits in that it would reduce nonconformities
relating to coverage and to setbacks . . . reduce the number of hotel guest
rooms and restaurant/lounge/bar seats, and remove unauthorized encroach-
ments onto [t]own property. . . . Approval of the proposal as presented,
and as modified by the conditions established herein, would provide a
comprehensive means to defining and controlling the existing commercial
use in a residential neighborhood.’ ’’ Pfister v. Madison Beach Hotel, LLC,
197 Conn. App. 326, 330 n.4, 232 A.3d 52 (2020).
6
Section 4.1 of the Madison Zoning Regulations provides in relevant part:
‘‘Special [e]xception uses are those permitted by regulations as appropriate,
harmonious, and desirable within a district so long as certain criteria are
met. . . .’’
7
‘‘The Madison zoning regulations define a park as ‘a tract of land reserved
for active or passive recreational purposes and open to the public.’ Madison
Zoning Regs., § 19.
‘‘The Beach and Recreation Commission is in charge of issuing permits
for use of the town owned West Wharf Beach Park. The Administrative
Procedures for the Use of Recreation Facilities states: ‘Taxpaying Madison
residents and [Madison] business owners (not employees of) are eligible to
utilize the [town’s recreation facilities, of which West Wharf Beach Park is
one]. Permission for the use of all Beach and Recreation Department facili-
ties must be obtained from the [b]each and [r]ecreation [d]irector . . . .
All requests are to be submitted in writing on a ‘Facility Request Form’ with
a live signature . . . by a Madison resident.’ Rental fees and deposits are
also required.’’ Pfister v. Madison Beach Hotel, LLC, supra, 197 Conn. App.
331 n.6.
8
‘‘In its memorandum of decision, the [trial] court found that ‘[t]he show-
mobile is a long rectangular trailer with retractable panels. It can be trans-
formed hydraulically into an attractive, functional, open sided stage. The
showmobile used by the hotel for the . . . [c]oncert [s]eries was purchased
by the town in 2015. The hotel pays the town a rental fee for use of the
showmobile on concert nights.’ ’’ Pfister v. Madison Beach Hotel, LLC,
supra, 197 Conn. App. 331 n.7.
9
‘‘Section 12.3 of the Madison [Z]oning [R]egulations provides that ‘[n]o
nonconforming use shall be extended or expanded.’ ’’ Pfister v. Madison
Beach Hotel, LLC, supra, 197 Conn. App. 332 n.8.
10
The trial court denied all other injunctive relief sought by the plaintiffs
and dismissed the plaintiffs’ claim for a declaratory judgment as to the
enforceability of the variance with respect to certain hotel operations
and functions.
11
‘‘The defendants [also claimed] that the [trial] court’s permanent injunc-
tion prohibiting them from organizing, producing, promoting, or sponsoring
the concert series constitute[d] a violation of their rights under the first
and fourteenth amendments to the United States constitution.’’ Pfister v.
Madison Beach Hotel, LLC, supra, 197 Conn. App. 333 n.12. Because the
Appellate Court was able to resolve the appeal on the basis of the Madison
zoning regulations and general principles of land use law, it declined to
reach the merits of this claim. Id. On appeal to this court, the defendants
renew their constitutional claim as an alternative basis for affirming the
Appellate Court’s judgment. Because we too resolve this appeal on the basis
of the Madison zoning regulations and land use principles, we need not,
and therefore do not, address this claim.
12
‘‘From June 13, 2012, to June 13, 2013, the defendants had a reciprocal
license agreement with the town during which time the town licensed the
Grassy Strip . . . to the hotel. Throughout the trial court proceedings in
this case, this agreement was referred to as a lease. The agreement, however,
functioned as a license and did not convey actual ownership of the Grassy
Strip to the hotel. [A] license in real property is a mere privilege to act on
the land of another, which does not produce an interest in the property.
. . . [It] does not convey a possessory interest in land . . . . Murphy, Inc.
v. Remodeling, Etc., Inc., 62 Conn. App. 517, 522, 772 A.2d 154, cert. denied,
256 Conn. 916, 773 A.2d 945 (2001). The agreement between the hotel and
the town was for a term of one year and did not terminate the town’s
ongoing ownership of the Grassy Strip. In fact, the agreement itself expressly
stated that the town retained ownership in the land and merely granted
exclusive rights of use to the hotel for a set term. The agreement terminated
in 2013 [before the commencement of this action] and, accordingly, is no
longer operative.’’ (Internal quotation marks omitted.) Pfister v. Madison
Beach Hotel, LLC, supra, 197 Conn. App. 338 n.14.
13
In part III of this opinion, we consider and reject the plaintiffs’ contention
that the trial court’s finding that the commercial nature of the concert series
violated the Madison zoning regulations applicable to West Wharf Beach
Park is an independent basis for sustaining the trial court’s decision to grant
the permanent injunction and that the Appellate Court incorrectly concluded
that the trial court’s analysis in this respect was mere dictum not supported
by any case law, regulation, or legal analysis. See Pfister v. Madison Beach
Hotel, LLC, supra, 197 Conn. App. 340 n.16.
14
In Zachs, this court held that, in deciding whether an activity illegally
expands the scope of a nonconforming use, consideration should be given
to three factors: ‘‘(1) the extent to which the current use reflects the nature
and purpose of the original use; (2) any differences in the character, nature
and kind of use involved; and (3) any substantial difference in effect upon
the neighborhood resulting from differences in the activities conducted on
the property.’’ Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332.
15
‘‘We have previously held that a mere increase in the amount of business
done pursuant to a nonconforming use is not an illegal expansion of the
original use. Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 716,
519 A.2d 49 (1986); Guilford v. Landon, 146 Conn. 178, 183, 148 A.2d 551(1959). There must be a change in the character of the existing use in order
to bring it within the prohibition of the zoning ordinance.’’ (Internal quotation
marks omitted.) Zachs v. Zoning Board of Appeals, supra, 218 Conn. 331.
16
As previously indicated; see footnote 12 of this opinion; the town
licensed the Grassy Strip to the hotel from June 13, 2012, to June 13, 2013.
The concerts at issue in this appeal, however, were held pursuant to a town
issued permit allowing the hotel to utilize the park for a specified number of
hours on the day of the concerts in accordance with all rules and regulations
applicable to such use.
17
In Crabtree Realty Co., the court cited Hyatt v. Zoning Board of Appeals,
163 Conn. 379, 383–84, 311 A.2d 77 (1972), and Raffaele v. Planning &
Zoning Board of Appeals, 157 Conn. 454, 457, 462, 254 A.2d 868 (1969), as
support for its conclusion that the planning and zoning commission properly
had determined that the addition of the adjacent parcel to the dealership
property constituted an illegal expansion of the dealership’s nonconforming
use of the dealership property. See Crabtree Realty Co. v. Planning &
Zoning Commission, supra, 82 Conn. App. 564–66. Both of those cases,
however, unlike the present case, involved an actual physical enlargement
of the aspect of the use or structure that was nonconforming. Specifically,
in Hyatt, a nonconforming grocery store sought to construct an entirely
new store on its property to be used in addition to the existing nonconform-
ing store. See Hyatt v. Zoning Board of Appeals, supra, 381. In Raffaele, a
nonconforming country club sought to extend an existing nonconforming
parking lot ‘‘by constructing retaining walls of rock in what is now Long
Island Sound and filling behind such retaining walls’’; (internal quotation
marks omitted) Raffaele v. Planning & Zoning Board of Appeals, supra,
456; so that ‘‘the land reclaimed by filling behind the proposed retaining
walls would enlarge and become a part of the club’s land . . . .’’ Id., 457.
Suffice it to say that these cases bear no resemblance to the present case
and do not support the trial court’s conclusion that the Grassy Strip could
be treated as hotel property for purposes of its nonconforming use analysis.
18
See Zachs v. Zoning Board of Appeals, supra, 218 Conn. 331 (whether
nonconforming use has been illegally expanded is question of fact for fact
finder); id. (‘‘[w]e have previously held that a mere increase in the amount
of business done pursuant to a nonconforming use is not an illegal expansion
of the original use’’ (internal quotation marks omitted)).
19
See, e.g., Bauer v. Waste Management of Connecticut, Inc., supra, 234
Conn. 236 (whether vertical expansion of nonconforming landfill was permis-
sible intensification or illegal expansion of landfill’s nonconforming use);
Helicopter Associates, Inc. v. Stamford, supra, 201 Conn. 716–18 (whether
using heliport for unlimited number of flights illegally expanded heliport’s
preexisting, nonconforming use); DeFelice v. Zoning Board of Appeals, 130
Conn. 156, 158, 32 A.2d 635 (1943) (‘‘whether the erection and utilization of
[a] wet sand classifier would amount to an extension of [the nonconforming]
use’’); Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn. App.
748, 754, 57 A.3d 810 (2012) (whether year-round use of nonconforming
seasonal restaurant constituted illegal expansion of nonconforming use).
20
The plaintiffs cite Wing for the proposition that, ‘‘although the defen-
dants seek a broader framing of actual use, existing law is that the granular
framing controls’’ because, in that case, the fact that the property was used
for some livestock prior to the enactment of the new zoning regulations
‘‘did not open the door to any and all livestock after.’’ The plaintiffs misunder-
stand the analysis employed in Wing, which clearly supports the analysis
employed herein. In Wing, the landowners claimed a preexisting right to
keep a horse on one tenth of an acre of nonwetlands property when the
zoning regulations required three acres of such property per horse. Wing
v. Zoning Board of Appeals, supra, 61 Conn. App. 641 n.2, 642–43. The
Appellate Court held that the trial court properly had determined that no
such right existed because there was no evidence that a horse had ever
been kept on the property prior to the date the zoning regulations took
effect. Id., 645–46. Because they could not establish an actual prior use of
horses on the property, the landowners claimed that horses were a permissi-
ble extension of their preexisting nonconforming right to keep a sheep and
a pygmy goat on the property. Id., 646–47. Applying a Zachs analysis, the
Appellate Court rejected the landowners’ claim, stating that they were ‘‘not
merely seeking an intensification of a legal nonconforming use, but a change
in the character of the use. . . . [T]he animals that were deemed legal
nonconforming uses can be kept on the [landowners’] property. The addition
of other kinds of large animals, including the horses, constitutes an unlawful
extension of the prior use.’’ (Citation omitted.) Id., 647. As we indicated,
however, the plaintiffs in the present case do not claim that the concert series
constitutes an unlawful extension of West Wharf Beach Park’s preexisting,
nonconforming use as a park under Zachs, undoubtedly because concerts
fall comfortably within the permitted uses of a park set forth in the Madison
zoning regulations. Knowing that such a claim would be unavailing, and
having failed to convince us that the trial court properly treated the park
as hotel property for purposes of determining whether the concerts violated
the hotel’s nonconforming use of the hotel property, the plaintiffs now argue
that the defendants, as part of their burden, were required to prove that
concerts actually occurred in West Wharf Beach Park prior to the enactment
of the special exception requirement in order for concerts to have been
grandfathered into that requirement. For the reasons previously discussed,
however, we are not persuaded by this argument.
21
‘‘Within the Madison Administrative Procedures for the Use of Recre-
ational Facilities, which are not a part of the zoning regulations, it states
that ‘Madison facilities cannot be used for individual or corporate personal
enterprise where admission fees are charged or where selling a product/
service is the purpose of the gathering [(i.e., investment seminars)] . . . .’
. . . As the undisputed record reflects, no admission fees were charged for
entry to the concerts, and the defendants’ stated purpose for the concert
series was to provide a form of free recreational entertainment to the public
on the Grassy Strip.’’ (Emphasis omitted.) Pfister v. Madison Beach Hotel,
LLC, supra, 197 Conn. App. 340 n.17.