Torrington ZBA overturns zoning officer and allows existing driveway to serve new home at 246 Mountain Road

The Torrington Zoning Board of Appeals voted 4-1 on April 13 to overturn a zoning enforcement officer's denial of a permit for a proposed single-family home at 246 Mountain Road, finding that an existing steep driveway is a legal preexisting nonconforming use and may be intensified to serve the new lot.

The decision, made after a continued public hearing, directs the zoning enforcement official to reopen the permit application and review it consistent with the board's determination. The appeal challenged the ZEO's conclusion that using the historic access to serve a second residence would constitute an impermissible expansion of the nonconforming driveway rather than an allowed intensification.

The board's ruling centered on competing legal interpretations. Zoning enforcement official Nate Nardi Cyrus presented site plans and a written memo describing the portion of driveway from Mountain Road up to the fork as preexisting and nonconforming, and said engineers had indicated portions of the proposed profile would reach a 17% grade near the top while attempts were made to meet the 12% standard at the bottom. "The issue that we're focused on is the preexisting nonconformity," Nardi Cyrus told commissioners while showing the original and revised site plans.

Appellant counsel Jim Strube and other attorneys argued that longstanding court precedent permits intensification of a nonconforming use where the character and effect of the use remain the same. Strube invoked a three-pronged test from case law (sometimes cited as the Zacks line of analysis) asking whether the proposed use reflects the original nature and purpose, differs in character or kind, or causes a substantial difference in neighborhood effect. "We're proposing to use the driveway as a residential driveway in a residential zone," Strube said, arguing that the use would be "more of the same" rather than a new use.

Several members of the public and neighbors supported the applicant. Raymond Dezik, who offered to meet city staff at the site with measuring instruments, said the segment above the fork was already at or within the 12% requirement. Russ and Gail Doolittle, family members of the property owners, described multi-generation ownership and historical use of the driveway dating to the 19th century, and urged the board to allow the family to develop the parcel.

Attorney Franklin Pillace (who addressed the board in support of the applicants' legal position) and other counsel submitted citations to Connecticut cases they said authorize intensification of preexisting nonconforming uses and argued that doubtful regulatory language should be construed in favor of the landowner.

After deliberation the board concluded the evidence and submitted case law supported treating the existing access as a lawful preexisting nonconforming driveway and that permitting its continued use to serve the new single-family lot would be an intensification rather than an unauthorized expansion. The board's motion reverses the ZEO denial and orders the zoning enforcement official to reopen the permit application for additional review consistent with that finding.

The vote was recorded as four in favor and one opposed. The board did not adopt a new engineering determination about exact grades on the site; the ruling concerns the legal status of the driveway and the scope of review. The decision allows the applicants to continue the permitting process but does not itself grant a building permit; further technical review of zoning compliance and site engineering will occur when the ZEO reopens the application.

The ZBA meeting adjourned following the vote.