Pfister v. Madison Beach Hotel, LLC

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CECILIA PFISTER ET AL. v. MADISON BEACH
HOTEL, LLC ET AL.
(AC 41792)
Alvord, Moll and Bishop, Js.
Syllabus
The plaintiffs, residents of the town of Madison, brought an action seeking,
inter alia, a permanent injunction prohibiting the defendant H Co., a
hotel in Madison, and the defendant hotel property owner from hosting
public outdoor summer concerts. H Co. has been in operation since
before the adoption of the Madison zoning regulations in 1953 and,
therefore, its operation as a hotel and a restaurant was grandfathered
as a nonconforming preexisting use in a residential zone. In 2012, H Co.
began sponsoring a free public summer concert series on a strip of land
located immediately adjacent to the hotel property. This strip of land
is part of a town park, which has existed since 1896, and was also
grandfathered as a preexisting nonconforming use in a residential zone.
The concert series consists of one concert per week and was scheduled,
organized, and funded by H Co., which obtained the requisite permits
from the town to host the concerts. During the concerts, H Co. sold
food and beverages from its property to both hotel guests and concert
attendees. Since 2012, there have been numerous complaints by nearby
residents regarding the noise and traffic created by the concert series.
The plaintiffs thereafter brought the present action, claiming that the
defendants violated Madison zoning regulations by hosting the summer
concert series on the town park, thereby illegally extending and
expanding nonpreexisting, nonconforming uses of the hotel property.
On appeal, the defendants claimed that the trial court erred in concluding
that the zoning restrictions applicable to H Co., which would prohibit
it from hosting such concerts on its own property, also applied to H
Co.’s ability to host a concert series on town park property. Held:
1. The trial court erred in concluding that H Co.’s use of the town park to
host a public concert series violated the permissible uses of the park
under the Madison zoning regulations because the court improperly
considered the restrictions applicable to the hotel property in evaluating
the legality of H Co.’s use of the town park; H Co.’s permitted use of
the town park did not grant H Co. a possessory interest in the park,
and H Co.’s use of its own resources to support and sponsor a free
concert series, despite the commercial nature of such use, did not trans-
form the park into part of H Co.’s property or expand H Co.’s use of the
town park impermissibly, and there was no prohibition on commercial
events on town property in the Madison zoning regulations.
2. The plaintiffs could not prevail on their claim that the only permissible
uses of the town park are those that can be shown to have historically
occurred prior to the adoption of the zoning regulations in 1953 and,
therefore, because there was no evidence of concerts having occurred
in the park, their occurrence improperly expanded the nonconforming
use status applicable to the park; the property’s classification as a park
as a whole, and not merely the actual prior uses of the park, was what
was grandfathered into the zoning scheme and, therefore, permissible
uses of the park included all passive and recreational activities permitted
in any park in Madison, the use of the park to host a free public concert
series was within the bounds of the park’s nonconforming use, as the
town’s definition of a park has no enumerated list of permissible activi-
ties, and the park has been used continuously as a park since 1896.
Argued November 21, 2019—officially released May 12, 2020
Procedural History
Action seeking, inter alia, a permanent injunction,
and 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 this court.
Reversed; judgment directed.
Damian K. Gunningsmith, with whom were David
S. Hardy and, on the brief, Drew J. Cunningham, for
the appellants (named defendant et al.).
Scott T. Garosshen, with whom, on the brief, was
Karen L. Dowd, for the appellees (named plaintiff et al.).
Opinion
BISHOP, J. The defendants Madison Beach Hotel,
LLC, and Madison Beach Hotel of Florida, LLC, appeal
from the trial court’s judgment granting a permanent
injunction in favor of the plaintiffs Cecilia Pfister, Mar-
garet P. Carbajal, Katherine Spence, Emile J. Geisen-
heimer, Susan F. Geisenheimer, Henry L. Platt, Douglas
J. Crowley, and 33 MBW, LLC.1 Specifically, the defen-
dants claim that the trial court erred in holding that
their use of a town owned parcel of land to host public
concerts violates the zoning regulations of the town of
Madison. We agree with the defendants and, accord-
ingly, we reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. Madison Beach
Hotel, LLC, is the owner of the Madison Beach Hotel
(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
zone.2 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
restaurant, which otherwise is not a permitted use in
the residential zone in which it sits, was grandfathered
as a preexisting nonconforming use.3
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 just
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 applica-
tion. The terms of this variance, as approved by the
board, both expanded and reduced nonconformities
that existed on the hotel property.4 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
property.
In 2012, the hotel began sponsoring a summer concert
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
and is not considered a permitted use under the zoning
regulations. Therefore, similar to the hotel property,
the park was grandfathered into the Madison zoning
scheme as a preexisting nonconforming use in an R-
4 district.5
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.6 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,7 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
attendees.
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 zoning regulations of Madison
by hosting outdoor concerts and, therefore, illegally
extending and expanding nonpreexisting nonconform-
ing uses of the hotel property.8 The defendants dis-
agreed, 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 court rendered
judgment for the plaintiffs, granting their request for a
permanent injunction that prohibits the defendants
from ‘‘organizing, producing, promoting, or sponsoring
the Grassy [Strip] Summer Concert Series . . . .’’9 This
appeal followed.
The defendants claim on appeal that the court erred
in (1) determining that their use of the Grassy Strip
violated the Madison zoning regulations, and (2) relying
on Crabtree Realty Co. v. Planning & Zoning Commis-
sion, 82 Conn. App. 559, 845 A.2d 447, cert. denied,
269 Conn. 911, 852 A.2d 739 (2004), to support that
determination. With regard to their first claim, the
defendants argue that the trial court erred in concluding
that the use restrictions applicable to the hotel property
are also binding on the actions taken by the hotel on
the Grassy Strip.10 We agree with the defendants that
the use restrictions that bind the hotel property, includ-
ing the 2008 variance and any remaining nonconforming
use,11 are irrelevant here, as they do not apply to the
activities permitted to be held by the defendants on the
Grassy Strip. We also agree with the defendants’ second
claim that Crabtree Realty Co. is inapplicable in the
present case. Because these two claims are intertwined,
we address them together.12
We first set forth the relevant legal principles in
reviewing a court’s decision to grant a request for a
permanent injunction. ‘‘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.) AvalonBay Communities, Inc. v. Orange, 256
Conn. 557, 566, 775 A.2d 284 (2001).
Given that the defendants’ claim requires us to inter-
pret the Madison zoning regulations, ‘‘we exercise ple-
nary review because such interpretation involves ques-
tions of law. . . . Moreover, zoning regulations are
local legislative enactments . . . and, therefore, their
interpretation is governed by the same principles that
apply to the construction of statutes. . . . [R]egula-
tions must be interpreted in accordance with the princi-
ple that a reasonable and rational result was intended
. . . . The process of statutory interpretation involves
the determination of the meaning of the statutory lan-
guage [or . . . the relevant zoning regulation] as
applied to the facts of the case, including the question of
whether the language does so apply.’’ (Citation omitted;
internal quotation marks omitted.) Steroco, Inc. v. Szy-
manski, 166 Conn. App. 75, 82, 140 A.3d 1014 (2016).
The essence of the defendants’ argument is that the
court’s ruling—that the restrictions applicable to the
hotel property also apply to their activities on the
Grassy Strip—violates a basic principle of land use law.
‘‘It is well established that the zoning power can be
exercised only to regulate land use and is not concerned
with ownership.’’ Lord Family of Windsor, LLC v. Plan-
ning & Zoning Commission, 288 Conn. 730, 740, 954
A.2d 831 (2008); see also Reid v. Zoning Board of
Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996) (‘‘zon-
ing power may only be used to regulate the use, not the
user of the land’’ (internal quotation marks omitted));
Verrillo v. Zoning Board of Appeals, 155 Conn. App.
657, 680, 111 A.3d 473 (2015) (‘‘[z]oning is concerned
with the use of property and not primarily with its
ownership’’ (internal quotation marks omitted)).
Accordingly, the defendants argue that the court erred
when it employed an analysis that considers the permis-
sible uses of both properties together in order to deter-
mine if the actual use of one parcel would violate the
restrictions imposed on the other parcel. Instead, the
defendants claim that the correct analysis for a court
to use in evaluating whether a violation has occurred
is as follows: ‘‘(1) [W]hat is the parcel at issue where
plaintiffs claim zoning violations are occurring, i.e., the
parcel being used?’’ ‘‘(2) [W]hat are the permissible uses
of the parcel at issue under the law?’’ ‘‘(3) [I]s the parcel
at issue being used for a permissible use under the law?
If the third question is answered in the affirmative,
there is no zoning violation.’’ The defendants posit that
Thomas v. Planning & Zoning Commission, 98 Conn.
App. 742, 911 A.2d 1129 (2006), is factually on point with
the present case and supports their proposed analytical
framework. We disagree that Thomas is sufficiently
factually analogous as to dictate a clear line of interpre-
tation for us to follow.13 In the absence of factually
analogous case law to the contrary, and in conjunction
with traditional notions of land use law, however, we
agree that the defendants’ analysis in looking only to
the rules applicable to the particular parcel at issue
is proper.
In proposing this analysis, the defendants explicitly
reject the court’s application of Crabtree Realty Co. v.
Planning & Zoning Commission, supra, 82 Conn. App.
559, which held that, under the circumstances present
in that case, the court could look beyond parcel borders
to determine the legality of the use at issue. We conclude
that Crabtree Realty Co. is inapplicable in the present
case because the relationship between the landowners
and the parcels on which they seek to take action is
materially different.
In Crabtree Realty Co., a defendant landowner sought
to construct a parking lot on a vacant parcel of land
adjacent to his own property, which he was leasing for
that purpose. Id., 563. The defendant’s own property,
an auto dealership, was a preexisting nonconforming
use within the zoning district in which it was located.
Id. The defendant landowner filed a site plan application
with the local planning and zoning commission, seeking
approval to construct the parking lot on the leased
parcel of land. Id., 561–62. The commission denied the
request on the ground that his proposal would enlarge
his property’s preexisting nonconforming use in viola-
tion of the local zoning regulations. Id., 562. On appeal,
the Superior Court affirmed the decision of the commis-
sion, and the landowner thereafter appealed to this
court. Id., 561. In turn, this court affirmed the Superior
Court’s decision, holding that the landowner’s proposed
use of the leased parcel to add parking spots for the
nonconforming business it operated on its own parcel
would constitute an illegal expansion of the preexisting
nonconforming use. Id., 565–66.
In the present case, the plaintiffs argue that the court
did not err in concluding that the hotel’s actions on the
Grassy Strip violate restrictions placed on the hotel
property via the Madison zoning regulations. In its deci-
sion, the court here applied Crabtree Realty Co. as a
controlling authority. In applying Crabtree Realty Co.,
the court determined that, because the hotel would be
expanding its nonconforming use if it were to host the
concerts on its own property, it should not be allowed
to avoid that violation simply by hosting the concerts
on the adjacent Grassy Strip. It is undisputed, however,
that the Grassy Strip still is, and has been, owned and
operated as a park by the town of Madison since 1896.
In reaching its conclusion, the court considered the
facts that the hotel pays for and supplies electricity,
as well as produces, organizes, and benefits from the
concert series as evidence that the hotel has annexed
the Grassy Strip to its own property for purposes of
assessing its use of the land. We note, however, that
the court cited no authority, aside from Crabtree Realty
Co., to support this analysis. For the reasons we outline,
we conclude that Crabtree Realty Co. is inapposite.
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 commission
in that case was ‘‘entitled to deny the plaintiff’s applica-
tion because the proposed use of [the vacant second
parcel] would have added new land to the plaintiff’s
nonconforming use of [its own property].’’ (Emphasis
added.) Id., 564. The court in Crabtree Realty Co. also
stated that the trial court properly upheld the commis-
sion’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 plain-
tiff’s control . . . .’’ (Emphasis added.) Id., 565.
In the present case, the second parcel at issue, the
Grassy Strip, is not a vacant private lot leased by the
defendants for future use but, instead, is a public tract
of land operating as a park and owned by the town.14
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.15 ‘‘A lease is a contract under which
an exclusive possessory interest in property is con-
veyed.’’ Clean Corp. v. Foston, 33 Conn. App. 197, 201,
634 A.2d 1200 (1993). A ‘‘license [however] in real prop-
erty is a mere privilege to act on the land of another,
which does not produce an interest in the property.’’
Id., 203. Therefore, Crabtree Realty Co. is factually dis-
tinguishable from the present case because of the differ-
ences in control over the parcels at issue in each case.
Additionally, unlike Crabtree Realty Co., the hotel’s
use of the Grassy Strip to host a public concert once
a week does not constitute a physical change of the
hotel’s own property in the way that adding a parking
lot for use by patrons of the auto dealership would have
altered the property in Crabtree Realty Co. Although
we agree that, in the particular factual scenario at issue
in Crabtree Realty Co., the commission was correct
in determining that permitting the construction of a
parking lot would constitute an illegal expansion of the
auto dealer’s nonconforming use, we disagree with the
court in the present case that the facts of Crabtree
Realty Co. are parallel to those that we confront in this
matter. Contrary to the conclusion of the 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’s property, nor does it expand
the hotel’s use of its own property impermissibly.
Accordingly, we do not agree with the court’s reliance
on Crabtree Realty Co.
The defendants also challenge the court’s consider-
ation of the nature of their use of the Grassy Strip
in determining whether the zoning regulations were
violated. The court stated that, because the hotel’s use
of the property is ‘‘commercial’’ in nature, the hotel has
effectively executed an end run around the restrictions
limiting the business it may conduct on its property
and, therefore, it has violated the zoning regulations.
We agree with the defendants that the court’s reliance
on the alleged ‘‘commercial nature’’ of the concert series
was incorrect.
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 citi-
zen under the zoning regulations. The court states in
its memorandum of decision that, ‘‘[w]ith each concert
. . . the hotel also generates goodwill, and draws to
its doorstep hundreds of potential future customers
for the hotel’s lodging, banquet, and other services.
Whatever other interests may be served by the concert
series (promoting town spirit, supporting arts and enter-
tainment, and so forth), the event is plainly a commer-
cial activity, which generates direct and indirect eco-
nomic benefits for the hotel as a business enterprise.’’
The court then goes on to say that, with the commer-
ciality of the concerts in mind, the activity is clearly
illegal because it undeniably exceeds the nonconform-
ing use limitations on the hotel property under § 12.3
of the Madison zoning regulations. As noted previously
in this opinion, we disagree with the court’s focus on
the restrictions applicable to the hotel property, as we
do not think such an analysis is germane to the pivotal
issue presented for adjudication.
The court additionally states, albeit in dicta,16 that
the commercial nature of the concerts creates an illegal
nonconformity on the Grassy Strip. Notably, there is
no prohibition of commercial events on town property
codified anywhere in the Madison zoning regulations.17
The court’s determination, however, 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 can-
not 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
court’s emphasis on the commercial nature of the defen-
dants’ events, however, serves only to prevent a specific
citizen, the hotel, from using a town owned space in a
manner available to other citizens.
On the basis of the foregoing, we agree with the
defendants that the court erred in considering the
restrictions applicable to the hotel property when evalu-
ating the legality of the hotel’s use of the Grassy Strip.
In its memorandum of decision, the court cites no basis,
either in the zoning regulations or in precedent, to jus-
tify disregarding the use-user distinction that serves as
a cornerstone of land use law. Accordingly, we conclude
that the proper inquiry for determining the legality of
a use of a parcel of land is that set forth by the defen-
dants: (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 permissi-
ble use under the law? This analytical framework prop-
erly focuses on the use of the parcel in question and
not on the identity of the user of the parcel. In order
to conduct this analysis on appeal, we must first deter-
mine the permissible uses of West Wharf Beach Park.
As is previously discussed in this opinion, the parcel
on which the subject use is occurring is the Grassy
Strip. The Grassy Strip is located in a parcel classified
as a park, which the Madison zoning regulations ordi-
narily do not permit in residential zones. Accordingly,
the Grassy Strip, as part of West Wharf Beach Park,
was grandfathered into the zoning regulations as a pre-
existing nonconforming use as a park. The plaintiffs
assert, and the trial court agreed, that the only permitted
uses of the grandfathered Grassy Strip are those uses of
the Grassy Strip that can be shown to have historically
occurred prior to the adoption of the zoning regulations
in 1953, and not the uses permitted in parks generally.
The defendants, however, argue that, because West
Wharf Beach Park was grandfathered into the zoning
scheme as a park, the available uses of the park are
not limited to merely those activities that have actually
happened in West Wharf Beach Park prior to the zoning
regulations, but instead include all of the permitted uses
of a park under the Madison zoning regulations. We
agree with the defendants.
‘‘A nonconforming use is merely an existing use the
continuance of which is authorized by the zoning regula-
tions. . . . To be a nonconforming use the use must
be actual. It is not enough that it be a contemplated
use nor that the property was bought for the particular
use. The property must be so utilized as to be irrevoca-
bly committed to that use. . . . [T]o be irrevocably
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.’’ (Citations omitted; internal quotation marks
omitted.) Wing v. Zoning Board of Appeals, 61 Conn.
App. 639, 644–45, 767 A.2d 131, cert. denied, 256 Conn.
908, 772 A.2d 602 (2001).
The plaintiffs argue that, because there is no evidence
of concerts having ever occurred on the Grassy Strip,
their occurrence improperly expands the nonconform-
ing use status applicable to the park. As is established
by our case law, however, the ‘‘actual use’’ requirement
for qualifying as a nonconforming use refers to the use
of the parcel as a whole in the manner intended to be
grandfathered. We repeat for clarity that West Wharf
Beach Park, including the Grassy Strip, has been a town
owned parcel of land continuously used as a park since
1896, and that the zoning regulations were enacted in
1953. Accordingly, the property had been continuously
and actually used as a park for more than fifty years
prior to the adoption of the zoning regulations and,
therefore, had undoubtedly been irrevocably commit-
ted to its particular use as a park. It makes no difference
whether a particular recreational use—in this case, con-
certs—has occurred in this particular park before,
because Madison’s definition of a ‘‘park’’ has no enumer-
ated list of permissible activities.18 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 grandfathered into the
zoning scheme.
Therefore, in applying the analytical framework
appropriate here, we determine that (1) the land being
utilized is the Grassy Strip, which is a part of the long-
standing West Wharf Beach Park (2) the permissible
uses of West Wharf Beach Park include all of those
passive and active recreational activities permitted in
parks in Madison, regardless of whether they have ever
taken place in West Wharf Beach Park before, and (3)
the recreational Grassy Strip Concert Series—a free,
passive recreational activity—constitutes a permitted
use of the Grassy Strip in West Wharf Beach Park. In
viewing the use of the Grassy Strip for the concert
series through the analysis proposed by the defendants,
we conclude that the hotel’s use of the Grassy Strip
does not violate the permissible uses of a park under
the zoning regulations in the manner asserted by the
plaintiffs on appeal. Accordingly, we reverse the judg-
ment of the court to the extent that it determined that
the defendants’ use of the Grassy Strip to host the
concert series violated the Madison zoning regulations.
The judgment is reversed and the case is remanded
with direction to deny the plaintiffs’ request for a perma-
nent injunction.
In this opinion the other judges concurred.
1
The town of Madison was a named defendant in the present action but
the trial court dismissed the plaintiffs’ claim against it for failure to exhaust
administrative remedies. The plaintiffs have not cross appealed from that
ruling, and the town of Madison is not otherwise participating in this appeal.
We refer to Madison Beach Hotel, LLC, and Madison Beach Hotel of Florida,
LLC, by name or as the defendants for purposes of this appeal.
Additionally, Schutt Realty, LLC, was a named plaintiff in the present
action, but it subsequently withdrew its claims. Accordingly, we refer to
Cecilia Pfister, Margaret P. Carbajal, Katherine Spence, Emile J. Geisen-
heimer, Susan F. Geisenheimer, Henry L. Platt, Douglas J. Crowley, and 33
MBW, LLC, as the plaintiffs for purposes of this appeal.
2
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.
3
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 . . . No non-conforming use shall be
extended or expanded.’’ Id., §§ 12 and 12.3.
4
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.’’
5
As of 1974, parks were a permitted use of property in residential zones
under the Madison zoning regulations. Since that time, the zoning code has
been revised to add the requirement that, in order to establish a park in a
residential zone, the land owner must obtain a special exception. Because
West Wharf Beach Park existed in the R-4 zone prior to the special exception
requirement, it was grandfathered into this requirement.
6
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 Park is one].
Permission for the use of all Beach and Recreation Department facilities
must be obtained from the Beach and Recreation Director . . . . 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.
7
In its memorandum of decision, the court found that ‘‘[t]he showmobile
is a long rectangular trailer with retractable panels. It can be transformed
hydraulically into an attractive, functional, open sided stage. The show-
mobile used by the hotel for the Grassy Strip Summer Concert Series was
purchased by the town in 2015. The hotel pays the town a rental fee for
use of the showmobile on concert nights.’’
8
Section 12.3 of the Madison zoning regulations provides that ‘‘[n]o non-
conforming use shall be extended or expanded.’’
9
The court’s memorandum of decision additionally denied all other injunc-
tive relief sought in the plaintiffs’ operative complaint and dismissed the
plaintiffs’ claim for a declaratory judgment as to the enforceability of the
variance with regard to certain hotel operations and functions.
10
The defendants also argue in support of their first claim that (1) even
if the 2008 variance were applicable to its use of the Grassy Strip, the
Madison zoning regulations still were not violated by the use, and (2) the trial
court exceeded its jurisdiction by determining that the activities occurring
on the hotel property were not permitted under the terms of the variance.
Because we find in favor of the defendants on other grounds, we decline
to address these additional arguments.
11
We offer no opinion as to the defendants’ claim that the approval of
the 2008 variance by the board eliminated, as a matter of law, any remaining
nonconforming use of the property.
12
The defendants raise as a third claim on appeal that the court’s perma-
nent injunction prohibiting them from organizing, producing, promoting, or
sponsoring the concert series constitutes a violation of their rights under
the first and fourteenth amendments to the United States constitution. Pursu-
ant to the canon of constitutional avoidance, we decline to reach the merits
of this claim. ‘‘[I]f a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of statutory con-
struction or general law, the [c]ourt will decide only the latter.’’ Ashwander
v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L. Ed.
688 (1936) (Brandeis, J., concurring); see also State v. Graham S., 149 Conn.
App. 334, 343, 87 A.3d 1182, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014).
Because we are able to resolve this matter on the basis of the text of the
Madison zoning regulations and general principles of land use law, we
decline to reach the merits of the defendants’ constitutional claim on appeal.
13
In Thomas, an abutting neighbor brought an action against a local
planning and zoning commission for approving a site application filed by a
landowner to construct a parking lot in the rear of the landowner’s property.
Thomas v. Planning & Zoning Commission, supra, 98 Conn. App. 744–45.
The property itself was a nonconforming use within its residentially zoned
district. Id., 744. The plaintiff neighbor argued that the commission was
permitting the illegal expansion of the landowner’s nonconforming use by
allowing the parking lot to be constructed. Id. The court affirmed the commis-
sion and held that the expansion of the parking lot did not expand the
nonconforming use because the applicant was merely modifying an existing
parking lot, and parking lots are a permitted use in that district. Id., 744–45.
The defendants in the present case cite Thomas in support of the notion
that the regulation limiting expansion of nonconforming uses does not apply
to uses that are consistent with the zoning code.
With respect to Thomas, we agree that the import of its holding is closer
to the issue presented to us today than that of Crabtree Realty Co., which
we discuss later in this opinion. In Thomas, the court held that the regulation
governing the illegality of expanding nonconformities was inapplicable to
an alteration on a property that constitutes a permitted use with the zoning
code. Thomas v. Planning & Zoning Commission, supra, 98 Conn. App.
751. However, because Thomas involved the building of a parking lot on
the same parcel of land as that owned by the landowner, we acknowledge
that the application of Thomas in this instance is limited. To the extent that
Thomas recognizes that developments consistent with the zoning code are,
by their nature, not nonconformities, we agree. However, in the present
case, the concerts are not held on the hotel property but, instead, are held
on the Grassy Strip. Therefore, Thomas can be factually distinguished.
14
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 property 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 . . . .’’
(Internal quotation marks omitted.) 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 and, accordingly,
is no longer operative.
15
We acknowledge that, since 1979, the hotel has retained exclusive
responsibility for the landscaping and maintenance of the Grassy Strip. This
has included cutting the grass and managing its overall appearance. This
maintenance responsibility is the result of an agreement with the town.
16
The court’s assertion that the hotel’s use of the Grassy Strip violates
the nonconforming use of the park is only discussed briefly in the memoran-
dum of decision. The court writes: ‘‘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 Park, because commer-
cial activities of this nature are not a permitted use in an R-4 zone, park or
no park.’’ The court’s statement is not supported by any case law, regulation,
or legal analysis, and we therefore conclude that this language is mere
dictum.
17
Within the Madison Administrative Procedures for the Use of Recreation
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 . . . .’’ (Emphasis added.) 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.
18
In addition, the evidence at trial revealed that other parks in town,
including Salt Meadow Park, have had musical outdoor events hosted by
citizens and organizations. These parks, too, exist in residential zones.