From Season to Season: Connecticut Supreme Court Bars Year-Round Expansion of Seasonal Non-Conforming Uses

Introduction

In High Watch Recovery Center, Inc. v. Planning & Zoning Commission (May 27, 2025), the Connecticut Supreme Court issued a landmark clarification on the perennial tension between a landowner’s right to continue a pre-existing non-conforming use and a municipality’s goal of ensuring eventual conformity with current zoning regulations.

High Watch Recovery Center (“High Watch”), a substance-abuse treatment provider in rural Kent, sought a special permit to erect a 2,100 sq. ft. “hoop-house” greenhouse on its 70-acre farm parcel. The Town’s Planning and Zoning Commission (“the Commission”) denied the application, finding the structure would unlawfully expand, rather than merely intensify, the Center’s recently-created non-conforming use for agricultural therapy. After procedural detours through the Superior Court and a reversal in the Appellate Court, the Supreme Court reinstated the Commission’s decision, articulating a clear doctrinal rule:

Extending a seasonal non-conforming use into a year-round operation constitutes a change in the character, nature, or kind of use and therefore is an impermissible expansion, even if the physical footprint remains the same and the new structure is otherwise permitted in the zone.

This commentary examines the decision’s reasoning, the precedents it reconciles, and the practical implications for land-use practitioners, municipalities, and property owners across Connecticut.

Summary of the Judgment

The Court (Ecker, J.) unanimously reversed the Appellate Court and directed reinstatement of the trial court’s dismissal of High Watch’s administrative appeal. Key holdings include:

Substantial evidence showed the proposed greenhouse would extend a seasonal agricultural therapy program into a year-round program, thereby altering the “character, nature and kind” of the original use—a prohibited expansion under the Zachs test.
The Zachs three-factor framework remains the primary analytical tool for distinguishing intensification from expansion but must be applied alongside earlier Connecticut cases that specifically prohibited seasonal-to-year-round shifts (Beerwort, Weyls, Cummings, etc.).
Where multiple non-conforming activities occur on a parcel, each use must be evaluated independently; the existence of other year-round therapies (e.g., equine) does not convert a seasonal agricultural therapy use into a year-round entitlement.
Courts reviewing agency action must scour the entire record for any valid basis supporting the decision; the Commission’s focus on seasonality satisfied substantial-evidence review.

Analysis

Precedents Cited and Their Influence

1. Zachs v. Zoning Board of Appeals, 218 Conn. 324 (1991)

Provides the tripartite test: (i) similarity of current to original use, (ii) differences in character/nature/kind, and (iii) differences in neighborhood impact.
The Court reaffirmed Zachs as the governing analytical structure but emphasized it supplements—not supplants—older case law defining per se expansions.

2. Beerwort v. Zoning Board of Appeals, 144 Conn. 731 (1958)

Prohibited converting seasonal trailer-park use to year-round.
Cited as the seminal authority for treating seasonality change as a change in character, not just intensity.

3. Cummings v. Tripp, 204 Conn. 67 (1987)

Rejected owners’ attempt to convert seasonal cottage rentals to year-round occupancy, even where improved “instrumentalities” (insulation, heating) were installed.
Informative analogy: a greenhouse is the functional equivalent of insulation/heating—facilitating winter operation.

4. Weyls v. Zoning Board of Appeals, 161 Conn. 516 (1971)

Declared that increasing use from summer-only to year-round “is clearly a type of enlargement” of a non-conforming use.

5. Other Authorities

Woodbury Donuts, LLC, Jobert v. Morant, and academic treatises confirming per se prohibition of seasonality changes.

By integrating these cases, the Court closed any perceived doctrinal gap left by the Appellate Court’s more permissive reading of Zachs.

Legal Reasoning Elaborated

Character vs. Intensity Dichotomy
The Court reiterated that while mere quantitative increases (more customers, more throughput) may qualify as “intensification,” qualitative changes in character are forbidden. Seasonality, like spatial boundaries, defines the essence of a use’s character.
Seasonality as an Objective, Measurable Attribute
Seasonal operation is concrete and susceptible to factual determination. Turning a use that naturally shuts down in winter into an indoor, climate-controlled activity “changes the nature and purpose” of the operation, analogous to moving from outdoor to indoor cultivation.
Independence of Multiple Uses
High Watch argued the farm already hosted other year-round therapies, so upgrading the garden was just one more strand in a bundled use. The Court rejected that “bundling” approach, holding each non-conforming activity must stand or fall on its own.
Substantial Evidence Review
The Commission’s minutes contained uncontroverted statements by High Watch’s representatives that the greenhouse would “help us grow in January.” That admission alone provided a substantial evidentiary basis; courts need not find additional explicit agency findings.
Role of Special Permits
Although High Watch voluntarily applied for a special permit, the Court stressed municipalities cannot authorize an illegal expansion through permit issuance. A special permit is procedural, not substantive, protection when non-conforming use rules are implicated.

Impact and Future Significance

The decision introduces a bright-line principle with broad practical effect:

Municipal Enforcement
Zoning officials now have clear appellate authority to deny structures (e.g., greenhouses, heated sheds, enclosed patios) that convert inherently seasonal non-conformities into year-round operations.
Developers & Property Owners
Owners must carefully audit the temporal dimension of their non-conforming activities. A simple “more efficient” upgrade can cross the expansion line if it lengthens the annual operating window.
Land-Use Litigation
Practitioners should separately plead and prove each discrete non-conforming use, with factual support for seasonality, intensity, spatial footprint, and neighborhood impact. The Court signaled it will not allow amalgamation of multiple uses to mask an otherwise prohibited expansion.
Policy Direction
The ruling reinforces the statutory goal of zoning conformity and may prompt municipalities to audit existing non-conforming uses, especially agritourism, hospitality, and recreational facilities seeking weather-proofing upgrades.

Complex Concepts Simplified

Non-Conforming Use: A lawful use that existed before a zoning change but would not be allowed if newly started today.
Intensification vs. Expansion: Intensification: Doing “more of the same” (e.g., more customers, longer hours within same season). Expansion: Qualitative change in nature, purpose, or an increase in area/time (e.g., adding winter operations, new buildings off the original footprint).
Seasonality: The portion of the calendar year during which a particular use historically occurs. In Connecticut land-use law, shifting from seasonal to year-round is a disallowed expansion.
Zachs Factors: A three-part test to judge permissible changes to non-conforming uses: (1) fidelity to original nature/purpose; (2) changes in character, nature, kind; (3) neighborhood impact.
Special Permit vs. Non-Conforming Right: A special permit authorizes certain uses prospectively under specified conditions; it cannot legitimize what zoning law otherwise prohibits. A non-conforming right is a vested constitutional protection tied to historic, actual use.

Conclusion

High Watch confirms and clarifies an important doctrinal boundary: a property owner may not rely on upgraded technology or new structures to stretch a historically seasonal non-conforming use into all twelve months. By intertwining Zachs with its earlier seasonality jurisprudence, the Supreme Court provides municipalities with predictable enforcement tools and signals to landowners that the passage of time will not dilute the fundamental policy of phasing out non-conformities. The decision thus stands as a cautionary precedent for any enterprise contemplating “weather-proofing” expansions in Connecticut’s evolving zoning landscape.