Court ruling backs Prospect in non-conforming use case


PROSPECT — A businesses’ growth cannot be hampered because it falls under a nonconforming use, according to a Waterbury Superior Court ruling issued late last year.

In a case that affirms the Prospect Planning and Zoning Commission’s decision, the court ruled in favor of the commission against plaintiff James Kollcinaku.

Kollcinaku, owner the shopping plaza at 22 Union City Road, claimed that the commission’s issuance of a special permit for an abutting property was an illegal expansion of a nonconforming use.

In 2002, the commission granted the owners of Prospect Service Center and Towing, Dominic and Franca DiLoreto, a special permit to repair and sell used cars with the stipulation that there be no outside storage of cars and that only one car be displayed for sale. In 2004, the commission granted a second special permit allowing a garage to house vehicles and six to eight cars to be stored outside, plus seven spaces for customer and employee parking. However, when the garage was built, it was a few feet bigger than the amount specified in the special permit and parking for customers in front of the business was used to store vehicles. Prospect issued a cease-and-desist order because the property was not in compliance with the special permit.

After granting the special permit, the commission amended its regulations to preclude special permits for gas stations and auto repair businesses within 1,500 feet of another such business or 500 feet from a church.

Since Prospect Service Center is within that distance of St. Anthony’s Church, it became a non-conforming use. Under zoning law, non-conforming uses are allowed to continue as long as they don’t become more non-conforming than they already are.

In 2008, the DiLoretos came before the board to amend their special permit to clarify it and bring it into compliance with the activity on the property. The commission approved a new site plan that allowed 28 outdoor parking areas, including 21 for vehicle storage and allowing the existing garage.

Kollcinaku charged that since the business was now a nonconforming use, the changes violated Prospect’s zoning regulations.

However, the commission viewed the changes as simply a clarification and extension of the existing use. The court sided with Prospect.

According to the court ruling, “Once it has been determined that a nonconforming use existed, natural development and growth cannot be paralyzed by an overly technical appraisement of the existing use. An ordinance which would allow the housing of a baby elephant cannot evict the animal when it has grown up.”

The court ruled that the expansion does not change the character of the neighborhood.

“This modest adjustment would not change the nature or use for which the garage was originally constructed and approved,” the document reads.

Land Use Inspector William Donovan said the case substantiates the commission’s long-standing principals and guidelines when it comes to non-conforming use.