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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, nonconforming 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 reasoned 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 improperly considered the restrictions applicable to the hotel property in evaluating 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 correctly 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 plaintiffs’ 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. Crowley, 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 permanent 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 concluded 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 Appellate Court.

The opinion of the Appellate Court sets forth the

following relevant facts and procedural history. ‘‘Madison 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 restaurant, 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 difficulties 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 application. 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 modifications’ on the hotel’s operation and use of the hotel
property. For example, the variance limited amplification 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 approximately 9:30 p.m. In sponsoring the concert series, the

hotel would schedule, organize, fund, and host the concerts 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 appropriate facilities request form and pays the corresponding 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 concert 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 beverages, and the hotel restaurant is open for business during 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 concert 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 defendants, alleging, among other things, that the defendants

had violated § 12.3 of the [Madison] [Z]oning [R]egulations . . . by hosting outdoor concerts and, therefore,

illegally extending and expanding nonpreexisting, nonconforming 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 omitted.) 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 performance . . . on an adjacent property does not change

the undeniable reality that the concert series substantially 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 adjacent 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 permanent 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 regulate 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 Appellate Court stated that the trial court ‘‘erred in considering 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 zoning] 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 otherwise 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 omitted; emphasis omitted; footnote in original; internal quotation marks omitted.) Id., 337–38. The Appellate Court

additionally explained that, ‘‘[c]ontrary to the conclusion 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 concerts 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 qualifying as a nonconforming use refers to the use of the

parcel as a whole in the manner intended to be grandfathered’’; (emphasis omitted) id.; and that it is undisputed 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 grandfathered into the zoning scheme.’’ (Emphasis omitted; footnote omitted.) Pfister v. Madison Beach Hotel, LLC,

supra, 197 Conn. App. 343.
This court granted the plaintiffs’ petition for certification 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 ‘recreational 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 compounded 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 nonconformity 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 analysis. 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 defendants 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 omitted.) 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 standard 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 regulations is also a question of law subject to this court’s

plenary review. See, e.g., Hartford Courant Co. v. Freedom 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 conclude that Crabtree Realty Co. is not persuasive authority and that, even if it were, we agree with the Appellate

Court that it does not support the trial court’s determination. 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 regulations.13 Accordingly, the trial court’s decision to grant

the permanent injunction cannot stand. See, e.g., Francis 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 Milford 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. Planning & Zoning Commission, supra, 82 Conn. App. 561.

Both properties—the dealership property and the adjacent 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 dealership’s site plan application on the ground that ‘‘construction 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 commission’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 planning and zoning commission incorrectly had determined that the proposed parking lot constituted an illegal 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. Acknowledging that ‘‘the case law governing expansion of nonconforming 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] commission 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] nonconforming use of [its own property].’’ (Citations omitted; internal quotation marks omitted.) Id. The court further reasoned 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 zoning] commission reasonably could decide that granting

the [dealership’s] proposed use of [of the adjacent parcel] would result in the illegal expansion of its preexisting 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 planning 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 Commission, 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] nonconforming 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 [dealership’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 defendants 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 nonconforming 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 Appellate Court squarely addressed that question and concluded 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 nonconforming 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 construct twenty parking spaces behind its manufacturing

plant. Id., 744. An abutting landowner opposed the application on the ground that the proposed additional parking 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 landowner 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 nonconforming use. The expansion of the existing parking lot is

not an expansion of a nonconforming use and, consequently, [the applicable zoning regulation, which prohibits 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. Zoning 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 nonconforming 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 present case involves a request to undertake a prohibited

activity—the concert series—on a nonconforming property. (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 permitted 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 permitted 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 concerts 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 commercial 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 seeking to use their property in a manner categorically prohibited under the zoning regulations such that the

courts were required to identify and delineate the precise 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 activities 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 nonconforming 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 continuance 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 nonconforming 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 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.’’ 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 nonconforming was enacted.’’ (Emphasis omitted.) Helicopter Associates, 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 combines 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 neither the extent, quantity nor quality of the use is prescribed by the known in the neighborhood test.’’ (Citations omitted; internal quotation marks omitted.) Id.,

713. ‘‘[T]he party claiming the benefit of a nonconforming use . . . [bears] the burden of proving a valid nonconforming use in order to be entitled to use the property 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 Burlington 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 enactment, while an exception allows him to put his property 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 nonconforming’’); 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 contention 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., ShermanColonial Realty Corp. v. Goldsmith, 155 Conn. 175, 183,

230 A.2d 568 (1967). Applying this principle in ShermanColonial Realty Corp., this court concluded that the trial

court correctly determined that the plaintiff landowners

failed to establish that their land was irrevocably committed to use as a subdivision when ‘‘[t]here [was] nothing 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 nonconforming 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 landowners 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 knowledge 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 concluded 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 Management 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 expressly permitted by the . . . zoning regulations’’).

In arguing to the contrary, the plaintiffs cite several

cases that they contend ‘‘[define] actual use on a granular 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 nonconforming 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 amusement 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. Similarly here, then, because West Wharf Beach Park was

grandfathered into the zoning scheme as a park, a citizen 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 regulations. ‘‘[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 Appellate Court incorrectly concluded that the Madison zoning 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 perspective of the hotel, and, as such, they are not a permitted

recreational use of West Wharf Beach Park. The plaintiffs 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 commercial and noncommercial recreational activities; they

simply provide that parks may be used for any recreational purpose, passive or active. The defendants further 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 defendants.

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 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 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 dict[um], 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.21 The [trial] 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 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 commercial 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 analysis,’’ 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 Regulations, 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 concert 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 Regulation (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 zoning). 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 Appellate Court concluded, and we agree, that such a standard 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 encroachments 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 facilities 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 showmobile is a long rectangular trailer with retractable panels. It can be transformed 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 injunction 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 nonconforming 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 permissible 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 defendants 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 misunderstand 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 permissible 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 Recreational 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.