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PZC Will Seek To Overturn Appellate Court Decision


KENT—The Connecticut Appellate Court has supported Highwatch Recovery Center, Inc., in its appeal of a Planning and Zoning Commission decision denying it the right to build a greenhouse on property it owns on Carter Road. 

The appellate court is the first court of appeals for all decisions made by Connecticut’s Superior Courts. The Superior Court had concurred with the Planning and Zoning Commission’s action in denying Highwatch’s application.

The issue is not yet settled, however.

The PZC met in executive session Jan. 24 to discuss further litigation and emerged into open session to authorize Town Counsel Michael Zizka to file a Petition of Certification with the state’s Supreme Court, appealing the Appellate Court’s decision.

The issue arose out of the rehabilitation center’s desire to build a hoop greenhouse, thereby intensifying the use of a special exception permit it received in 2018.

In 2017, Highwatch purchased a 70-acre farm across the road from its residential campus on Carter Road. At the time it purchased the property, the town’s zoning regulations allowed special permits for the operation of privately operated hospitals, clinics, nursing homes or convalescent homes. 

Highwatch asked for and received permission to use the farmland for therapeutic activities in conjunction with the residential treatment program, including equine therapy, a ropes course and climbing wall, and a therapeutic agricultural program.

Early in 2020, the zoning regulations were amended to prohibit such facilities in rural residential zones, making Highwatch’s use of the farm nonconforming.

In August 2020, Highwatch asked for permission to construct the greenhouse, saying it would allow it to grow more fruits and vegetables to feed its population. It did not argue that it would be consistent with the therapeutic agricultural use of the property. 

After a 2020 public hearing, the PZC denied the application as “an impermissible expansion of a nonconforming use” and Highwatch appealed to the Superior Court, stating that the greenhouse would be a permissible intensification of the prior use, and that evidence in the record did not support the PZC’s stated reasons for its denial.

The Superior Court did not agree and dismissed the appeal.

It asserted that the nonconforming use was limited to the precise terms of the 2018 special permit and the site plan submitted at that time, which did not detail any additional structures.

The court further found that a “reasonable interpretation” of Highwatch’s stated reason for building the greenhouse was an “impermissible expansion of the nonconforming use.” 

But the Appellate Court determined that “the trial court erred as a matter of law in concluding that the plaintiff’s valid nonconforming use of the farm property could not be intensified … because it arose from a special permit.”

The Appellate Court also concluded that “the use of the proposed greenhouse reflected the nature and purpose of the existing, original use of the farm property, given that it would be placed on the existing garden and pasture area on the farm property where plants were already grown …”

It was noted that it would be near the existing house and barn on the farm property and it would permit Highwatch to continue to grow fruits and vegetables to feed and support the residents and staff living on the residential property.

“This court concluded that the proposed greenhouse simply provided an improved and more efficient way to grow fruits and vegetables and to provide therapeutic agricultural services,” Judges Eliot Prescott, Robert Clark and Hope Seeley concluded.

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