March 22, 1988.
ESSEX LEASING, INC.
ZONING BOARD OF APPEALS OF THE TOWN OF ESSEX ET AL.
The principal issue in this case is
whether a municipality is authorized to enact a zoning
regulation that terminates a nonconforming use solely
as a result of nonuse for a specified period of time without
regard to the intent of a property owner to relinquish
that use. The plaintiff, Essex Leasing, Inc., appealed
from the decision of the named defendant,*fn1
zoning board of appeals, terminating its nonconforming
use irrespective of intent. In sustaining the appeal,
the trial court interpreted the Essex zoning regulations
to require a showing of intent to relinquish a nonconforming
use. The Appellate Court reversed, concluding
that the regulations make it possible to abate a
nonconforming use for nonuse alone. Essex Leasing,
Inc. v. Zoning Board of Appeals, 9 Conn. App. 391,
518 A.2d 970
(1986). We affirm the judgment of the Appellate Court.
The relevant facts are undisputed. In early 1983, the
plaintiff began to explore the feasibility of purchasing
a building in Essex. A portion of the building, which
is situated in a residential zone, is a legal nonconforming
commercial use. The building had been leased to
a commercial tenant by the plaintiff's immediate
predecessors in title for a period of three years commencing
November 1, 1980. In 1981, the tenant ceased
[206 Conn. 597]
actual operation of its business on the premises. Unable
to find a suitable subtenant, the tenant continued
to pay rent and to maintain the premises with heat,
utilities and office furnishings until March, 1983. The
plaintiff, on March 28, 1983, in conjunction with its
impending purchase of the property, filed an application
for a permit to continue its nonconforming use of
the building in its leasing business. The plaintiff
acquired title to the property on May 2, 1983.
The Essex zoning enforcement officer denied the
plaintiff's application for a zoning permit for two
related reasons. He determined that the proposed use
would constitute a change from one nonconforming use
to another, in violation of 50C. 1 of the Essex zoning
regulations. Further, he found that the property had
not been in use for the period of one year and that
therefore, in accordance with 50E of the Essex zoning
regulations, its nonconforming use had been terminated
and could not be resumed. The latter regulation
provides, in relevant part, that no nonconforming use
may be resumed "[i]f such use or characteristic has not
existed for a period of one year from the date of cessation
. . . ." Essex Zoning Regulations 50E.1.
Upon the plaintiff's appeal to the zoning board of appeals
(board), that board upheld the decision of the officer
on the sole ground that the "subject property was
not in use as intended in the Essex Zoning Regulations
The plaintiff appealed to the Superior Court, claiming
that the zoning decision was in error because: (1) the
board had no authority under the zoning enabling act;
General Statutes 8-2; to terminate a nonconforming
use solely on the basis of nonuse; (2) the board had misconstrued
50E.1, as requiring no showing of intent
to discontinue a nonconforming use; and (3) the record
was factually insufficient to support the board's
finding that a one year period of nonuse had occurred.
[206 Conn. 598]
The trial court ruled only on the plaintiff's second
ground for appeal. It held that the term "cessation"
in 50E.1, in its ordinary meaning, was synonymous
with "discontinuance," a term that has been interpreted
to require a showing of intent. See Dubitzky v.
Liquor Control Commission, 160 Conn. 120, 123,
273 A.2d 876 (1970). Since the board concededly had not
considered intent in its deliberations, the trial court sustained
the plaintiff's appeal.
The defendants then sought further review by the
Appellate Court, which, after granting certification,
concluded that the trial court's construction of 50E.1
was erroneous. Holding that the general statutes permit
local zoning regulations to premise the termination
of a nonconforming use solely upon a period of
nonuse, the court determined that the town of Essex
had adopted such a regulation. The court based its conclusion
upon a close reading of the text of the applicable
regulations; Essex Leasing, Inc. v. Zoning Board
of Appeals, supra, 393-95; and upon the long-standing
policy of this state to abolish or to reduce nonconforming
uses as quickly as justice will permit. Id., 395.
Because the trial court had not reached the factual issue
of whether a one year period of nonuse had occurred,
the Appellate Court remanded the case for further trial
court proceedings to resolve that question.
This court thereafter granted the plaintiff's petition
for certification on the following limited issue: "May a
town validly enact zoning regulations which provide for
the abatement of a nonconforming use as a result of
nonuse for a specified period of time, without regard
to the property owner's intent to maintain that use?"
In order to resolve that issue properly, we must, however,
first decide whether 50E.1 of the Essex zoning
regulations, as drafted, terminates a nonconforming
use without a showing of intent. Without a threshold
determination that intent is superfluous under the
[206 Conn. 599]
regulation, we might well not reach the ultimate question
of law because its resolution would not dictate the outcome
of the case. Cf. Ozyck v. D'Atri, 206 Conn. 473,
479, 538 A.2d 697 (1988); State v. Shashaty, 205 Conn. 39,
50, 529 A.2d 1308 (1987), cert. denied, ___ U.S.
___, 108 S.Ct. 753, 98 L.Ed.2d 766 (1988); Wu v.
Fairfield, 204 Conn. 435, 441, 528 A.2d 364 (1987).
Our determination of the proper construction of the
Essex zoning regulations must start with a review of
the reasons advanced by the Appellate Court for deciding
that "cessation" of a nonconforming use under
50E .1 extinguishes such a use regardless of intent.
In an appeal following certification, "the focus of our
review is not the actions of the trial court, but the
actions of the Appellate Court. We do not hear the
appeal de novo." State v. Torrence, 196 Conn. 430, 433,
493 A.2d 865 (1985); Fidelity Trust Co. v. Irick,
206 Conn. 484, 487, 538 A.2d 1027 (1988); Shelly Mutual
Ins. Co. v. Delia Ghelfa, 200 Conn. 630, 634,
513 A.2d 52 (1986).
The Appellate Court undertook a careful analysis of
50E in all its relevant parts. In its entirety, that
regulation states: "50E. TERMINATION. Except as provided
in 50F., no use of any land or improvement having
a non-conforming characteristic and no non-conforming
use or characteristic of land or improvement shall be
resumed or restored:
"50E.1. CESSATION. If such use or characteristic has
not existed for a period of one year from the date of
cessation or from the effective date of the applicable
regulation, whichever is later; or
"50E.2. ABANDONMENT. If it is abandoned.
"[U]nless such use conforms to these Regulations or
such use or characteristic has previously been
[206 Conn. 600]
authorized by the grant by the Zoning Board of Appeals of
a variance varying the application of the pertinent
regulations." Principally, the Appellate Court concluded
that 50E.1 could not be construed to include an intent
requirement without rendering 50E.2 superfluous. In
zoning law, "abandonment" has normally been understood
to require an intent permanently to cease the nonconforming
use. See Magnano v. Zoning Board of
Appeals, 188 Conn. 225, 228, 449 A.2d 148 (1982);
Dubitzky v. Liquor Control Commission, supra, 123.
Because 50E.2 authorizes termination, once there has
been an intent to discontinue the nonconforming use,
without regard to any particular period of nonuse, it
is illogical to interpolate an intent requirement into
50E.1. Essex Leasing, Inc. v. Zoning Board of
Appeals, supra, 394.
In addition, the Appellate Court discussed the inference
to be drawn from the fact that 50E.1 makes
nonuse for "a period of one year . . . from the effective
date of the applicable regulation" a separate
ground for abating a nonconforming use. That clause
in 50E.1 addresses the possibility of an amendment
to the town zoning regulations that would make a parcel
of then nonused property nonconforming, and
directs that the nonconforming use will be extinguished
by dint of the passage of the specified period of time,
without regard to intent. The Appellate Court could
find no justification for requiring intent when there was
a period of nonuse of one year because of a prior nonconformity
and not requiring intent when the same
period of nonuse followed a new nonconformity. Id.,
The plaintiff urges us, for two reasons, to reverse
the ruling of the Appellate Court and to hold that intent
continues to be a viable component of the termination
of a nonconforming use under 50E.1. It maintains
that: (1) in its ordinary definition, the term "cessation"
[206 Conn. 601]
is synonymous with "discontinuance," and therefore
requires proof of intent; and (2) nonuse for a one year
period creates only a presumption of relinquishment,
which an owner should be permitted to overcome with
appropriate proof of intent to maintain the use. We find
neither contention persuasive.
Like the Appellate Court, we conclude that the term
cessation" does not, in and of itself, interpose an
intent standard into the regulation. In construing a zoning
regulation, it is our primary goal to ascertain and
give effect to the intent of the local legislative body as
expressed in the regulation as a whole. Talarico v.
Conkling, 168 Conn. 194, 198, 362 A.2d 862 (1975);
McCrann v. Town Planning & Zoning Commission,
161 Conn. 65, 73, 282 A.2d 900 (1971); Lawrence v. Zoning
Board of Appeals, 158 Conn. 509, 511,
264 A.2d 552 (1969). "It is a standard rule of construction that,
`whenever feasible, the language of an ordinance will
be construed so that no clause is held superfluous, void
or insignificant.' "Melody v. Zoning Board of Appeals,
158 Conn. 516, 521, 264 A.2d 572 (1969). Taken as a
whole, 50E evinces a clear design for the termination
of nonconforming uses by two distinct and independent
means. Since 50E.2 extinguishes nonconforming uses
that have been abandoned intentionally, 50E.1, in
order to avoid superfluity, must be interpreted as having
adopted a different standard, the passage of time.
In the service of flexibility in attaining the goal of
diminishing nonconforming uses "`"as quickly as the
fair interest of the parties will permit"'"; Weyls v.
Zoning Board of Appeals, 161 Conn. 516, 520,
290 A.2d 350 (1971); the town of Essex has adopted a bifurcated
system that provides for the co-existence of a traditional
standard of abandonment and an alternate standard
of nonuse for a stated period of time. In context,
the term "cessation" in the Essex zoning regulations
[206 Conn. 602]
does not include a requirement of intent.*fn2 For a similar
interpretation of a bifurcated system, see Bartlett
v. Board of Appeals, 23 Mass. App. 664, 670,
505 N.E.2d 193 (1987).
Failing on its principal argument, the plaintiff's
secondary position is that 50E.1 should be interpreted
to create no more than a rebuttable presumption of
relinquishment of a nonconforming use. The plaintiff
concedes that nothing in the text of 50E.1 expressly
creates such a presumption. It relies instead upon the
proposition, established in some other jurisdictions, that
such a presumption must be implied to save the regulation
from the constitutional jeopardy that attaches
to arbitrary deprivations of property. See Minot v.
Fisher, 212 N.W.2d 837, 841 (N. D. 1973); California
Car Wash, Inc. v. Zoning Hearing Board, 98 Pa. Commw. 209,
510 A.2d 931, 933 n. 1 (1986). These cases
are not directly on point because they purport to interpret
terminology that has traditionally been associated
with the requirement of owner intent. One deals with
regulations that employ a "discontinuance" standard;
Minot v. Fisher, supra, 839; while the other construes
a regulation that uses an "abandonment" standard.
California Car Wash, Inc. v. Zoning Hearing Board,
supra. By contrast, the use of "cessation" in the Essex
zoning regulations manifests an intent to employ a
different standard. In these circumstances, to interpose
a presumption into 50E.1 would be contrary to the
established rule that "`[w]here the language of the
[regulation] is clear and unambiguous, the courts> cannot,
by construction, read into [regulations] provisions
[206 Conn. 603]
which are not clearly stated.'" Harlow v. Planning &
Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808
(1984). Accordingly, we hold that the term "cessation"
as used in 50E.1 of the Essex zoning regulations
allows the termination of a nonconforming use after
a specified period of nonuse without regard to owner
We turn now to the plaintiff's claim that Essex
exceeded its authority under the zoning enabling act
by enacting 50E.1 of its zoning regulations. This claim
is purely one of statutory dimension. Although the
plaintiff asserts in its brief that enforcement of 50E .1
results in a taking of property without just compensation,
this alleged constitutional infirmity was not "distinctly
raised at trial" as required by Practice Book
4185. Holbrook v. Casazza, 204 Conn. 336, 354,
528 A.2d 774 (1987), cert. denied, ___ U.S. ___, 108 S.Ct.
699, 98 L.Ed.2d 651 (1988); Farrell v. St. Vincent's
Hospital, 203 Conn. 554, 567-70, 525 A.2d 954 (1987);
Jefferson Garden Associates v. Greene, 202 Conn. 128,
140, 520 A.2d 173 (1987). Furthermore, the plaintiff's
analysis of this claim, only one paragraph in length,
is not sufficiently detailed so as to facilitate the "study
and reflection" ordinarily required for constitutional
adjudication. Scheyd v. Bezrucik, 205 Conn. 495, 505,
535 A.2d 793 (1987). Instead, its claim comes to us as
a sidelight to its primary allegation of statutory error.
Under these circumstances, we conclude that the plaintiff
has not preserved a constitutional claim for our
review at this juncture.
Our statutory analysis begins with the settled rule
that the town of Essex and its agency, the zoning board
of appeals, may "exercise only such powers as are
expressly granted to [the town], or such powers as are
necessary to enable it to discharge the duties and carry
[206 Conn. 604]
into effect the objects and purposes of its creation."
Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428
(1965); Arnold Bernhard & Co. v. Planning & Zoning
Commission, 194 Conn. 152, 159, 479 A.2d 801 (1984);
Board of Police Commissioners v. White, 171 Conn. 553,
559, 370 A.2d 1070 (1976); James J. F. Loughlin
Agency, Inc. v. West Hartford, 166 Conn. 305, 307,
348 A.2d 675 (1974). The zoning enabling act "delegates
broad authority to municipalities to enact local zoning
regulations." Arnold Bernhard & Co. v. Planning &
Zoning Commission, supra
On its face, General Statutes 8-2*fn3 expressly authorizes
a municipality to regulate the "density of population
and the location and use of buildings, structures
and land for trade, industry, residence or other purposes."
[206 Conn. 605]
See Kallay's, Inc. v. Katona, 152 Conn. 546,
548-49, 209 A.2d 185 (1965). With respect to nonconforming
uses, however, this broad grant of power is
limited by the penultimate sentence in 8-2: "Such
regulations shall not prohibit the continuance of any
nonconforming use, building or structure existing at
the time of the adoption of such regulations." The plaintiff
argues that this limitation prohibits Essex from
extinguishing nonconforming uses without regard to
owner intent. We disagree.
The plaintiff's principal argument for the proposition
that 8-2 does not permit a town to abate a nonconforming
use without proof of intent to abandon is that
this court has consistently so held. Relying on our precedents
interpreting regulations concerning abandonment
[206 Conn. 606]
or discontinuance of a nonconforming use to
require proof of intent; Point O'Woods Assn., Inc. v.
Zoning Boards of Appeals, 178 Conn. 364, 369,
423 A.2d 90 (1979); Blum v. Lisbon Leasing Corporation,
173 Conn. 175, 181-82, 377 A.2d 280 (1977); State ex rel.
Eramo v. Payne, 127 Conn. 239, 241, 16 A.2d 286
(1940); the plaintiff infers that intent is a mandated element
under the scheme devised by Essex for the abatement
of nonconforming uses. Such an inquiry into
intent is further justified, according to the plaintiff, by
a policy against the arbitrary termination of property
We are not persuaded that our prior cases stand for
the principle urged by the plaintiff. We have twice suggested,
albeit in dicta, that municipalities are authorized
to terminate nonconforming uses solely on the
ground of nonuse for a specified period. Magnano v.
Zoning Board of Appeals, 188 Conn. 225, 228,
449 A.2d 148 (1982); State ex rel. Eramo v. Payne, supra. More
important, none of our cases squarely deal with a regulation,
such as 50E.1, that forthrightly extinguishes
the property right for nonuse alone. We therefore
approach the question presented in this case as one of
Turning to the governing statute, the plaintiff maintains
that 8-2, by providing that municipalities may
not "prohibit the continuance" of nonconforming uses,
explicitly withholds the power to abate such uses without
regard to owner intent. We have held, on the basis
of this language, that municipalities may not amortize
nonconforming uses. James J. F. Loughlin Agency, Inc.
v. West Hartford, supra, 310-11. In Loughlin, the town
of West Hartford enacted a regulation that unconditionally
required all nonconforming advertising signs
to conform within five years to the more stringent sign
regulations of its new ordinance. We held that, by
[206 Conn. 607]
virtue of the limiting language in 8-2, such compulsory
amortization fell outside the scope of municipal power.
Drawing upon the holding in Loughlin, the plaintiff
argues that terminating its nonconforming use without
regard to intent runs afoul of the prohibition set
forth in 8-2. We fail to see, however, in what manner
the statute supports this claim. The town of Essex
clearly has not attempted to "prohibit the continuance"
of the plaintiff's property right. The zoning regulation
merely enables the town to seize upon an owner's lack
of "continuance." Although we affirm that 8-2 "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"; Helbig v. Zoning Commission,
185 Conn. 294, 306, 440 A.2d 940 (1981); we
see no basis for concluding that this right to continue
the use of property cannot be forfeited by nonuse. Such
nonuse differs markedly from the criteria that triggered
abatement under the ordinance we struck down
in Loughlin, which purported to authorize the town to
abolish vested property rights without any regard to
the conduct of the owner.
We therefore conclude that 8-2 encompasses, within
the range of broad powers that it delegates to municipalities,
the power to terminate nonconforming uses
solely because of nonuse for a specified period. This
result is not only consistent with the familiar goal of
zoning to abolish nonconforming uses as quickly as justice
will tolerate; Helbig v. Zoning Commission, supra,
306; Blum v. Lisbon Leasing Corporation, supra, 181;
T. Tondro, Connecticut Land Use Regulation (1979)
pp. 73-77; but also finds support in the decisions of
numerous other courts>. These decisions hold that local
governments are authorized to fashion zoning regulations
that terminate nonconforming uses after a specified
period of nonuse without regard to intent. Wyatt
v. Board of Adjustment, 622 P.2d 85, 86 (Colo. App. 1980);
[206 Conn. 608]
Chicago v. Cohen, 49 Ill. App.3d 342, 344,
364 N.E.2d 335 (1977); Fuller v. New Orleans, 311 So.2d 467,
468 (La. App. 1975); Canada's Tavern, Inc. v.
Glen Echo, 260 Md. 206, 210-11, 271 A.2d 664 (1970);
Prudco Realty Corporation v. Palermo, 93 App. Div.2d 837,
461 N.Y.S.2d 58, aff'd, 60 N.Y.2d 656,
455 N.E.2d 483, 467 N.Y.S.2d 830 (1983); State ex rel.
Brizes v. DePledge, 162 N.E.2d 234, 237 (Ohio App. 1958);
Maguire v. Charleston, 271 S.C. 451, 452-54,
247 S.E.2d 817 (1978); Longwell v. Hodge,
297 S.E.2d 820, 823-24 (W. Va. 1982); State ex rel. Peterson v.
Burt, 42 Wis.2d 284, 288-91, 166 N.W.2d 207 (1969);
see also 4 A N. Williams, American Land Planning Law
(1986) 115.14; contra M. B. T. Construction Corporation
v. Edwards, 528 A.2d 336, 338-39 (R.I. 1987).
We therefore affirm the judgment of the Appellate
Court, including its remand of this case for further trial
court proceedings to determine whether the record factually
supports the decision of the zoning board of the
appeals that the plaintiff did not use the property for
a period of one year within the meaning of 50E.1 of
the Essex zoning regulations.
In this opinion the other justices concurred.