Opinion
CV196084928S
01-03-2020
Brookside Package, LLC et al. v. Planning & Zoning Commission, City of Bridgeport
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Radcliffe, Dale W., J.
MEMORANDUM OF DECISION
RADCLIFFE, JTR
FACTS
This appeal involves ongoing attempts to change portions of the Bridgeport Zoning Regulations which control the sale of liquor, and to thereby remove an impediment to the opening of a liquor store at 1044 Brooklawn Avenue, Bridgeport.
On February 25, 2019, by a vote of six (6) in favor and two (2) opposed (ROR 16, p. 8-9), the Bridgeport Planning and Zoning Commission enacted substantial revisions to Section 12-10 of the Bridgeport Zoning Regulations (ROR 2).
The Amended Regulation, presented and adopted on the Commission’s own motion (ROR 1), mandates an approval of location procedure, which must be satisfied before alcoholic beverages may be sold. The procedure does not apply to a full service restaurant.
Pursuant to the adopted procedure, all applicants for a certificate of location are required to submit a site plan, in accordance with the provisions of the Zoning Regulations. A Class A-2 survey of the property is required, showing all houses of worship, schools, hospitals and commercial day care centers within a 750-foot radius from the entrance of those uses, to the entrance of the uses seeking the certificate of approval of location (ROR 2).
The Bridgeport Planning and Zoning Commission is required to make six (6) fact based and site specific findings, before approving a certificate of location:
1. The use is compatible with and implements the policies of Bridgeport’s Master Plan of Conservation and Development;
2. The use will not impair the future development of the surrounding area;
3. The proposal includes adequate safeguards to protect adjacent property and the neighborhood in general from any detrimental impacts the proposed use might otherwise have;
4. In the case of a proposed use located in, or directly adjacent to, a residential district, the location and size of such use, the nature and intensity of operations involved in or conducted in connection therewith, the site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection therewith will not be incongruous with residential uses, and will not present any undue hazard or inconvenience to residents;
5. The proposed use will not adversely impact property values and the character and extent of development of adjoining properties; and
6. The use will not be disruptive to or cause conflicts with existing uses within the immediate vicinity.
The Amended Regulation also reduced the distance from within 1, 500 feet of a Lot containing certain identified uses, to within a 750-foot radius of the entrance to those uses, from the entrance to the use seeking a certificate of location.
The Revised Regulation also contains a "Remonstrance" provision, which informs members of the public of the right to voice objection to a proposed liquor permit when the issue is before the State Liquor Commission. This provision creates no additional rights or remedies, but is merely a recitation of state law.
Prior to the January 3, 2019 Text Amendment application (ROR 1), signed by Planning and Zoning Commission chairman Melville Riley, the Commission conducted extensive public hearings regarding a proposal submitted by Lynn M. Haig, on behalf of Bridgeport’s Office of Planning and Economic Development (OPED). That application was dated August 25, 2017, and followed months of research conducted by OPED personnel.
Following the public hearing process, the Commission approved a Text Amendment, which generated an appeal (Docket #CV-18-6078090 S). Although the appeal was sustained based upon a procedural issue, the Commission’s proceedings were incorporated by reference, and introduced at the February 25, 2019 public hearing (ROR 17, p. 1-2).
In support of the OPED proposal, a memorandum dated August 25, 2017, explaining the proposed changes to Section 12-10 of the Zoning Regulations, was presented. The proposed changes were described as "similar" to the special permit process. The proposal vested the power to grant a certificate of approval of location in the Bridgeport Zoning Board of Appeals.
It was explained that state law limits the number of package stores within a given municipality to one establishment, for every 2, 500 residents. Consistent with this formula, Bridgeport’s maximum is fifty-seven (57) package stores. In September of 2017, forty-two (42) package stores were operating within the City of Bridgeport.
Concerning establishments with a package store or a grocery beer permit, the OPED proposal reduced the 1, 500 foot required distance between the use and a house of worship, school, hospital or commercial day care center to 750 feet. According to OPED’s submission, which was presented by Lynn Haig, the required separation was:
within a 750 foot radius of a lot owned by or containing a house of worship, school or hospital, or a lot containing a commercial day care center ...
The regulation which OPED’s proposal sought to amend, read:
No use for which a package store permit is required ... may be located so that an entrance to such use is within a 1, 500 foot radius of a Lot containing a house of worship, school, hospital, commercial day care center, or other use requiring an all-alcohol liquor of package store permit ...
The 750-foot standard did not apply to uses located in a Downtown Village District (DVD) Zone, or a Neighborhood Center Village District (NCVD) Zone.
The research, analysis, compilation of data, examination of regulations in other municipalities, and the drafting of an Amendment to the Bridgeport Regulations, was conducted by Bridgeport’s Office of Planning and Economic Development (OPED).
OPED’s investment of time and resources into proposing changes to Section 12-10 of the Regulations, followed an unsuccessful attempt to locate a package store at 1044 Brooklawn Avenue.
1044 Brooklawn Avenue consists of approximately one-third of an acre, and is located on the Bridgeport/Fairfield town line. The property is situated on an Office Retail (OR) Zone.
A liquor permit application aimed at utilizing 1, 880 square feet of 1044 Brooklawn Avenue as a package store was submitted to the Bridgeport Zoning Office, in order to obtain a zoning compliance "sign off." Because the proposed package store is considered a retail sales use, a permitted use in an Office Retail (OR) Zone which is not subject to the special permit process, (Table 2A, Bridgeport Zoning Regulations), no public hearing was required.
The zoning compliance "sign off" was provided over the counter, and the application for a permit was approved by the Connecticut Department of Liquor Control Licensing Division.
After the establishment opened for business, the zoning certification was challenged, because 1044 Brooklawn Avenue is within 1, 500 feet of two houses of worship, St. Margaret’s Shrine, and Congregation B’Nai Israel. The package store was, therefore, in violation of Section 12-10(a) of the Bridgeport Zoning Regulations.
Based upon this information, which was provided to the Bridgeport Zoning Office, the zoning certification was rescinded. The rescission prompted the owner of the package store to seek a variance of the 1, 500 foot rule, from the Bridgeport Zoning Board of Appeals.
Despite the absence of any legally cognizable hardship, the public hearing featured letters and testimonials from political leaders and elected officials in support of the variance. The Zoning Board of Appeals, by a 4-1 super majority, voted to grant the variance requested by Michael DeFillipo, the owner of 1044 Brooklawn Avenue
An appeal of the decision was filed, and the appeal was sustained (See Brooklawn Discount Liquor, LLC et al. v. Zoning Board of Appeals et al., 2015 WL 9920785, Docket #CV-15-6049833 S; J.D. of Fairfield at Bridgeport). The package store was closed in January of 2016.
On September 25, 2017, the first night of the public hearing concerning OPED’s proposed Citywide Text Amendment concerning Section 12-10 of the Bridgeport Zoning Regulations, three (3) persons addressed the Commission in support of the proposed Amendment.
After Lynn Haig explained the proposed changes (TR 9-25-17, p. 3-26), Thomas Kelly, a Bridgeport resident, spoke "semi in favor" of the Text Amendment (TR 9-25-17, p. 26-29).
The third and final speaker in support of the OPED proposal was Attorney Charles Willinger, who identified himself as representing Michael DeFillipo, the owner of 1044 Brooklawn Avenue (TR, 9-25-17, p. 29-30). Attorney Willinger expressed "98% agreement" with the Text Amendment, although he suggested a "technical clean up" which would benefit his client.
The attorney conceded that the entrance to 1044 Brooklawn Avenue was 738 feet from the Lot line of St. Margaret’s Shrine, and would violate the 750-foot rule advocated by Lynn Haig. He suggested an amendment which would measure the distance "entrance to entrance." The entrance to 1044 Brooklawn Avenue is 900 feet from the entrance to St. Margaret’s Shrine, and complies with the proposed distance standard (TR 9-25-17, p. 29-33).
The September 17, 2016 session ended, after a single speaker addressed the Commission in opposition to OPED’s proposal. When Commission members attempted to limit the time allotted to the speaker, observers accused the Commission of bias, and opposed any time limit (TR 9-25-17, p. 41-42). The hearing was continued until October 30, 2017, for the purpose of obtaining additional public input.
During the hearing, which resumed on October 30, 2017, the Commission listened to opposition from individual members of the Bridgeport community, including some elected officials.
Superintendent of Schools Aresta Johnson urged retention of the 1, 500 foot standard. She was joined in her opposition by Bridgeport Board of Education members Joseph Larcheveque, Maria Pereira, and Sauda Baraka (TR 10-30-17, p. 8-21). At one point, board member Pereira was interrupted by the Commission’s chair, who stated that the OPED proposal "requires a special permit for each and every liquor store," even though the certificate of location is not, strictly speaking, a special permit (TR 10-30-17, p. 15-16). The chair then informed those assembled that he was "not debating."
A real estate planning and development specialist, Deborah McNally, urged the Commission to "scrap" the OPED proposal, and proceed with a comprehensive review of the zoning regulations (TR, 10-30-17, p. 22-28). She argued that particular attention should be paid to existing nonconforming uses.
Additional opponents of the OPED proposal addressed the Commission on November 27, 2017. A letter was read on behalf of Bridgeport’s Neighborhood Revitalization Zone (NRZ) leadership committee, a body composed of the executive officers of the eight (8) Bridgeport NRZs (TR 11-27-17, p. 3-4). The group unanimously urged rejection of the OPED proposal.
The final opposition speaker was Anna Greer, a Bridgeport resident who described herself as a professor and a researcher (TR 11-27-17, p. 20-29). She pointed out that liquor outlets were concentrated in the poorer areas of Bridgeport, and that the disparity had developed while the existing 1, 500 foot rule was in effect. While pointing out some advantages and positive features in the OPED proposal, she suggested that more work needed to be done in order to protect the "most vulnerable" of Bridgeport’s residents.
The hearing was closed to additional opposition speakers. However, instead of presenting any immediate rebuttal, Lynn Haig requested a continuance in order to review the testimony, before offering rebuttal evidence (TR 11-27-17, p. 31-32). The Commission assented to Haig’s request.
On January 29, 2018, Lynn Haig again requested a continuance. This time, the request was based upon a perceived need for additional testimony. The OPED representative explained: "we (OPED) are seeking outside counsel to review my proposal and there hasn’t been adequate time for them- for that review to be completed" (TR 1-29-18, p. 1-2).
The Commission granted Haig’s request, and also granted another continuance on February 26, 2018.
When the public hearing finally resumed on March 26, 2018, four (4) months after opposition to the OPED proposal concluded, and six (6) months after the initial public hearing date, Lynn Haig did not offer rebuttal testimony. Instead, she presented a "modification" of the proposal which had been before the Commission throughout the public hearings in 2017 (TR, 3-26-18, p. 3-12).
The proposed Amendment retained the reduction from 1, 500 feet to 750 feet from certain uses, as proposed in the original submission. However, the Amendment computed the 750 foot standard from the entrance of the use, to the entrance of a building containing a house of worship, school, hospital or commercial day care center, rather than from the Lot line (TR 3-26-18, p. 8-10). This change was originally suggested by counsel for Michael DeFillipo in September of 2017, and was immediately embraced by the attorney when Lynn Haig concluded her presentation (TR 3-26-18, p. 13-14).
Another suggested change was not substantive. The Amended Proposal included mention of the "remonstrance" process, a procedure incorporated into state statutes, which permits members of the public to voice opposition to the issuance of a permit, before the State Liquor Commission. The change is cosmetic, and provides no rights in addition to those already available by state statute.
Opposition to the "modification" was entertained on April 30, 2018 (Supplemental ROR; TR 4-30-2018). Five (5) members of the Bridgeport City Council addressed the Commission in opposition to the modified proposal. Testimony was also received from the principal of Dunbar School, and a member of the Bridgeport Board of Education.
City Council member Ernest Newton declared that the area of Bridgeport he represents, the "East End," does not need additional liquor stores. He also questioned the relationship between additional liquor stores, and meaningful economic development (TR, 430-18, p. 24-26). Similar sentiments were expressed by council members Rev. Mary McBride-Lee, Eneida Martinez, Karen Jackson and Kyle Langan.
Attorney Joel Green, counsel for the Bridgeport Package Store Owners Association, addressed the changes suggested by Lynn Haig on behalf of OPED, including the "entrance to entrance" criteria, which, he argued constitutes a dramatic change, particularly in instances where measuring to the entrance of a school building, would leave school playgrounds within the 750 foot area. Playground areas would be protected, if a "Lot line" measurement was employed (TR, 4-30-18, p. 8-10).
He also pointed out that the "remonstrance" provision was irrelevant, and meaningless.
Attorney Green also questioned the standing of Lynn Haig, and/or OPED, to propose changes to the Bridgeport Zoning Regulations, pursuant to Section 14-9-1 of those Regulations. That section reads:
These Regulations and/or the Zoning Map may be amended from time to time by the Planning and Zoning Commission on its own initiative or by a private application made by any person having a legal property interest, including, but not limited to, owners, lessees, and holders of development rights, in property located within the city ...
Lynn Haig is not the owner of real or personal property in the City of Bridgeport, and OPED, a city agency, does not hold title to real property.
Prior to adopting the proposed Amendment on July 30, 2018, the Commission changed the agency charged with issuing the certificate of location from the Bridgeport Zoning Board of Appeals, to the Bridgeport Planning and Zoning Commission.
The Planning and Zoning Commission approved OPED’s Amended Petition on July 30, 2018, by a vote of six (6) in favor, and two (2) opposed.
A timely appeal of that decision, following publication in The Connecticut Post, was prosecuted. However, no decision was rendered concerning the merits of that appeal.
The appeal was sustained as "moot" on March 26, 2019, following the adoption by the Planning and Zoning Commission of a nearly identical Text Amendment on February 25, 2019.
That Amendment, unlike the Amendment adopted on July 30, 2018, was submitted by the Bridgeport Planning and Zoning Commission on its own initiative, thus curing any failure to comply with Section 14-9-1 of the Bridgeport Zoning Regulations.
Six (6) members of the Commission (Morton, Cordero, Fedele, Gravina, Walker and Riley) voted in favor, while two (2) commissioners (Filotei and Moreno) were opposed.
Although the motion to approve did not contain reasons for the decision (ROR 17, p. 26-30), reasons were stated on the record, and in the letter of decision. The reasons stated are (ROR 15):
1. Additional Text is consistent with the Master Plan of Conservation and Development.
2. The Master Plan supports the establishment of small businesses and strengthens the commercial centers.
3. The current regulations are outdated, as well as the most restrictive in most municipalities.
4. The State of Connecticut controls the number of package store permits in Bridgeport.
5. The amended 750-foot distance between sensitive uses is still more restrictive than most large cities in Connecticut.
6. The new regulations require applicants to comply with Site Plan Review Standards and Special Permit Standards in order to receive an approval of location.
7. The new process ensures there will be no adverse impact to properties near proposed liquor establishments.
8. The proposed regulations now require grocery beer permits to seek an approval of location.
Notice of the February 25, 2019 decision (ROR 14) was published in The Connecticut Post, and this timely appeal followed.
AGGRIEVEMENT
This appeal was instituted on behalf of twelve (12) named Plaintiffs, all of whom are liquor store owners in the City of Bridgeport.
Four (4) of the Plaintiffs testified on the issue of aggrievement: Richard Ledger, the owner of Bridgeport Discount Wine and Liquor; Suryakand Mistry, the owner of SSUN, LLC, d/b/a Price Break Liquor; Samir Bidja, owner of Omsai, LLC, d/b/a Grand Package Store, and Vishnu Baji, owner of Main Wine and Liquor.
All of the businesses operate in the City of Bridgeport, and each Plaintiff testified that he is a Bridgeport taxpayer. Each has operated a liquor store for many years, and all of the establishments have been open for business throughout the course of this appeal.
Pleading and proof of aggrievement are a prerequisite to a trial court’s jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996); Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307 (1991). The question of aggrievement is one of fact, to be determined by the trial court. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93 (1989).
Aggrievement falls into two basic categories- statutory aggrievement, and classical aggrievement.
Statutory aggrievement exists by virtue of legislative fiat, rather than through an analysis of the facts of a particular case. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665 (2006); Weill v. Lieberman, 195 Conn. 123, 124-24 (1986). One claiming statutory aggrievement must show that a particular statute grants to a party standing to pursue an appeal, without the necessity of demonstrating actual injury based upon the particular facts at hand. Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, ‘56 (2005); Fort Trumbull Conservancy v. Alves, 262 Conn. 480, 485-87 (2003).
Section 8-8(1) of the General Statutes defines "aggrieved person" to include: "... any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board ..."
Classical aggrievement, on the other hand, requires a party claiming to be aggrieved to satisfy a well-established two-fold test: 1) that party must show a specific personal and legal interest in the subject matter of the decision, as distinct from a general interest such as a concern of all members of the community as a whole, and 2) the party claiming to be aggrieved must prove that the personal and legal interest has been specifically and injuriously affected by the decision which generated the appeal. Cannavo Enterprises v. Burns, 194 Conn. 43, 47 (1984); Hall v. Planning Commission, 181 Conn. 442, 444 (1980). The threat of business competition as a consequence of a zoning action, is not sufficient to establish classical aggrievement, absent a showing of an injury to a property right. Fuller, Robert A. "Land Use Law and Practice" (4th ed., 2015), S. 32.5, p. 193.
None of the four (4) Plaintiffs who testified claim to be either statutorily or classically aggrieved by the adoption of the Text Amendment by the Bridgeport Planning and Zoning Commission.
Their only basis for claiming aggrievement is the "automatic standing" rule, which holds that a municipal taxpayer appealing a zoning decision involving the sale of liquor is a priori an aggrieved person for purposes of an appeal. The Connecticut Supreme Court has consistently affirmed this rule. Alliance Energy Corp. v. Planning & Zoning Commission, 262 Conn. 393, 403 (2003); M&R Enterprises, Inc. v. Zoning Board of Appeals, 155 Conn. 280, 281-82 (1967); O’Connor v. Zoning Board of Appeals, 140 Conn. 65, 71-72 (1953); Beard’s Appeal, 64 Conn. 526, 534 (1894).
The Plaintiffs Brookside Package, LLC, Omsai, LLC, Main Wine and Liquor, LLC, and SSVN, LLC, are all Bridgeport taxpayers. It is therefore found, that each has satisfied the "automatic standing rule" and is aggrieved by the decision of the Bridgeport Planning and Zoning Commission which generated this appeal.
Because these four (4) Plaintiffs are aggrieved, the court has jurisdiction, and it is unnecessary to consider the status of the remaining Plaintiffs.
STANDARD OF REVIEW- CHANGE IN ZONING REGULATIONS
When a planning and zoning commission acts to amend its zoning regulations, it acts in a legislative capacity, rather than in an administrative or quasi-judicial capacity. Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 79-80 (2007).
When exercising a legislative function, a planning and zoning commission has wide and liberal discretion, and is free to amend its regulations whenever time, experience, and reasonable planning for contemporary or future conditions reasonably indicate the need for a change. Campion v. Board of Aldermen, 278 Conn. 500, 526-27 (2006); West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 505 n. 10 (1994); Dutko v. Planning & Zoning Board, 110 Conn.App. 228, 231 (2008). Such discretion is vested in a municipal zoning authority, because it is closer to the circumstances and conditions which create the problem and shape the solution. Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 conn. 466, 470 (2006); Stiles v. Town Council, 159 Conn. 212, 219 (1970).
Conclusions reached by the commission must be upheld by a trial court, if they are reasonably supported by the record. The question is not whether the trial court would have reached the same conclusion, but whether the record supports the decision reached. Harris v. Zoning Commission, 259 Conn. 402, 415-16 (2002); Calandro v. Zoning Commission, 176 Conn. 439, 440 (1976). Courts will not interfere with a commission’s exercise of legislative discretion, unless the action taken is contrary to law, arbitrary, illegal, or an abuse of discretion. Burnham v. Planning & Zoning Commission, 159 Conn. 261, 265 (1983). Zoning must be sufficiently flexible to meet the demands of increased population, and evolutionary changes in such fields as architecture, transportation and redevelopment. Under our law, the responsibility for meeting these demands resides with the municipal zoning authority. Roncari Industries, Inc. v. Planning & Zoning Commission, supra, 81. Questions concerning the credibility of witnesses, and the determination of issues of fact, are matters within the province of the zoning agency. Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 679 (1993).
Conclusions reached by a commission must be upheld, if they are supported by substantial evidence in the record. Substantial evidence is enough evidence to justify, if the trial were to a jury, the refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Huck v. Inland Wetlands Agency, 203 Conn. 525, 541 (1987). The substantial evidence standard is highly deferential, and permits less judicial scrutiny than a "clearly erroneous" or "weight of the evidence" standard. Sams v. Department of Environmental Protection, 308 Conn. 359, 374 (2013). The possibility of drawing two (2) inconsistent conclusions does not prevent a decision from being supported by substantial evidence. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
When a municipal land use agency has stated collective reasons for its decision, a court should not go beyond the collective reasons, but should only determine whether any reason given is supported by substantial evidence. Gibbons v. Historic District Commission, 285 Conn. 755, 770-71 (2008).
REGULATION DOES NOT VIOLATE UNIFORMITY PROVISION OF GENERAL STATUTES SECTION 8-2
The Plaintiffs maintain that the Amended Regulation adopted by the Bridgeport Planning and Zoning Commission on February 25, 2019, is invalid, in that it violates the "uniformity" requirement contained in general Statutes section 8-2.
Section 8-2 provides, concerning municipal zoning regulations: "... All such regulations shall be uniform for each class or kind of buildings, structures, or uses of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings structures or uses of land are permitted only after obtaining a special permit or special exception ..."
The Plaintiffs claim that the certificate of location established by the Bridgeport Regulation is similar to, but not identical to, a special permit under the Regulations. Therefore, they argue, the Bridgeport Planning and Zoning Commission lacks the authority to enact the Regulation it adopted in February of 2019.
This claim, although creative, is not persuasive.
The State of Connecticut has given to municipalities, through a local option, the ability to prohibit the sale of alcoholic liquor within their respective municipal boundaries. Section 30-9 of the General Statutes provides:
The sale of alcoholic liquor under the provisions of this chapter shall be permitted in any town in the state until by vote of the town, taken as provided in section 30-10, a contrary preference has been indicated, and nothing contained in this chapter shall be construed to permit the sale of alcoholic liquor in any town which has voted to the contrary.
Since Beard’s Appeal, supra, in 1894, Connecticut court have recognized that in liquor traffic, a possible danger to the public is present, which is not inherent in other businesses, and which justifies distinctive and particular treatment by municipal authorities. Alliance Energy Corp. v. Planning & Zoning Board, supra, 401.
In Jolly v. Zoning Board of Appeals, supra, a Bridgeport case, the Connecticut Supreme Court reaffirmed the "automatic standing" rule, while finding that the sale and use of alcohol poses significant risks of criminal activity, and an increased risk to the wellbeing of the entire community. Jolly v. Zoning Board of Appeals, supra, 198-99.
Other municipalities, through their zoning regulations, have recognized that the sale and use of alcoholic liquor should receive unique consideration. For example, Section 15.1 of the Stratford Zoning Regulations distinguishes the sale of alcoholic liquor from other retail uses. The Stratford Regulation reads, in part:
No building or lot or any portion thereof shall be used for the sale of alcoholic liquor, beer, ale or wine unless such building or lot is located in a district appropriate for the class of permit sought in accordance with section 15.8 of these regulations, and shall have been approved by the Zoning Commission. Such approval shall be given only after a public hearing and upon the affirmative vote of four or more members of said commission. In determining whether or not an application shall be approved, the commission shall take into consideration the proximity of the premises to churches, schools, libraries, public playgrounds or any places frequented by minors, together with the number of premises having permits of any class allowing the sale or consumption of alcoholic beverages in the immediate neighborhood ...
The Stratford Regulation, while requiring "special case" (special permit) approval, mandates a super majority standard for approval, a standard which is not applicable to other retail uses.
Stratford does not require any minimum distance between outlets. However, like Bridgeport, it requires consideration of sensitive uses in the immediate area of a proposed liquor outlet. The analysis required, in both Bridgeport and Stratford, is inevitably case-by-case, and is site and neighborhood specific.
The Bridgeport Regulation adopted on February 25, 2019, like its Stratford counterpart, recognizes and respects that the sale of liquor differs from other commodities, and must be treated accordingly.
At trial, it was represented that the City of Bridgeport requires that a public hearing be held by the Planning and Zoning Commission, before an approval of location can be issued. The six (6) fact-based and site-specific finding required by the Regulation, are determined following the public hearing process, according to the parties.
The Amended Regulation also requires the filing of a site plan, and an A-2 Survey by the party seeking a certificate of location.
Although a review of the provisions of the Amended Regulation does not reveal any specific requirement for a public hearing, the policy adopted by Bridgeport provides for transparency, and is consistent with the requirements of state law, when applied to special permits. The documentation required of an applicant, and the requirement of specific findings, also mitigate in favor of transparency.
Pursuant to Section 30-14 of the General Statutes, a liquor permit is a personal privilege, not a property right. Therefore, unlike a special permit, it does not run with the land, and is not subject to recording on the municipal land records.
Given the long-established recognition that special treatment is appropriate where the sale of liquor is involved, the adopted Bridgeport Regulation does not violate the "uniformity" provision found in General Statutes Section 8-2.
Furthermore, minor distinctions between Bridgeport’s special permit process and the procedure required for a certificate of location, do not render the Regulation invalid, or contrary to law.
Cases cited by the Plaintiffs in support of their claim, are not availing.
In MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406 (2013), the Appellate Court determined that a commission could not vary the application of specific buffer and landscape requirements on a case by case basis, when considering a special permit application. MacKenzie v. Planning & Zoning Commission, supra, 431.
Here, the certificate of location does not allow for the variation by the Commission of clear and definite standards. Instead, the Commission is asked to apply all regulations while considering general standards regarding public health, safety, welfare and property values.
St. Joseph’s High School, Inc. v. Planning & Zoning Commission, 176 Conn.App. 570, 585-86 (2017), recognized the ability of a planning and zoning commission, in its discretion, to deny a requested special permit, even when all technical standards in a regulation have been satisfied, based upon general standards involving public health, safety and welfare. The Appellate Court determined that such discretion did not violate the uniformity provision of Section 8-2, notwithstanding compliance with all objective criteria. The use of general standards, along with site-specific conditions, does not violate the rule of uniformity, because complete uniformity is not mandated. Roncari Industries, Inc. v. Planning & Zoning Commission, supra, 81.
The failure of the Bridgeport Regulation to adhere to the special permit process in every respect does not violate concepts of uniformity, and does not render it subject to attack, based on the flexibility enjoyed by planning and zoning commissions when regulating the sale and consumption of alcohol.
MEASUREMENT FROM ENTRANCE TO ENTRANCE NOT ARBITRARY OR ILLEGAL
The Plaintiffs next point out that the Regulation adopted by the Bridgeport Planning and Zoning Commission in February of 2019 measures the distance between uses for which a package store permit or a grocery store permit is required from the entrance to such use, to the entrance of a building containing a house of worship, school, hospital or commercial day care center. This represents a change from the existing language of Section 12-10a of the Regulations relating to package stores. The language superseded by the Amended Regulation reads:
a. Package Stores: No use for which a package store permit is required under Chapter 545, Section 30-1 through 30-115 of the Connecticut General Statutes may be located so that the entrance to such use is within a 1, 500-foot Radius of a Lot containing a house of worship, school, hospital, commercial day care center or another use requiring an all-alcohol liquor package store permit ...
The OPED proposal unveiled as part of the August 25, 2017 application, amended the 1, 500-foot standard to 750 feet, but retained the "entrance to Lot" standard applicable to the existing regulation. During the first night of public hearings, September 25, 2017, counsel for Michael DeFillipo and the Intervening Plaintiff in this action, Vitros, LLC, suggested that an "entrance to entrance" criteria be adopted, in lieu of the existing "entrance to Lot" standard.
He acknowledged that the "entrance to entrance" approach would allow his client to meet the 750-foot mandate, while an "entrance to Lot" approach would disqualify 1044 Brooklawn Avenue from operating an establishment under a package store permit.
Six months later, on March 26, 2018, in her "modification" of the original OPED proposal, Lynn Haig advocated for the "entrance to entrance" standard initially advanced by counsel for Vitros, LLC (TR, 3-26-18, p. 8-10).
The "entrance to entrance" measurement standard was included in the Amendment adopted by the Planning and Zoning Commission on July 28, 2018, and was retained in the February 25, 2019 version. The Plaintiffs claim that the "entrance to entrance" standard is ambiguous and arbitrary, and is therefore illegal. This claim is not persuasive.
The record clearly establishes why Attorney Willinger suggested the "entrance to entrance" approach. He candidly admitted that the change from "entrance to Lot" was in the interest of his client, and the longstanding desire to locate a package store liquor outlet at 1044 Brooklawn Avenue.
The record is less clear, concerning the rationale of the Planning and Zoning Commission for adopting the change, or the motivation of OPED, acting through Lynn Haig, for proposing the new standard as part of the March of 2018 "modification."
However, while the merits of adopting an "entrance to entrance" measurement standard is open to debate, the method has been employed by municipalities, including Bridgeport, in the regulation of the sale and use of alcoholic liquor. The use of the standard in February of 2019 was neither novel, nor unprecedented.
Section 12-10b of the Regulation which was amended, utilized an "entrance to entrance" standard when measuring the distances between buildings other than full service restaurants used for the sale of alcoholic liquor. The Commission chose to retain the standard, in the February 25, 2019 Amended Regulation.
Both the "entrance to lot" and "entrance to entrance" standards employ a straight line method of measuring. Our Appellate Court has found the straight line approach preferable to the use of a "roadway" method, which could involve bizarre results and inconsistencies in application. Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn.App. 17, 24-25 (2006).
Bridgeport has utilized the "entrance to entrance" measurement between liquor outlets for many years; Santini v. Zoning Board of Appeals, 149 Conn. 290, 291-92 (1962); and this court cannot say that the standard is arbitrary or unreasonable.
Furthermore, if, in a given situation, a sensitive use, such as a school playground, is situated close to a liquor outlet, the Commission is not required to approve a certificate of location. It is free to consider whether the location is disruptive to the neighborhood, or causes conflict with existing uses in the immediate vicinity. The issue can be appropriately addressed when evaluating the character of a given neighborhood, and the effect of a liquor outlet on existing uses.
SUBSTANTIAL EVIDENCE SUPPORTS ACTION OF PLANNING AND ZONING COMMISSION
The public hearing process drew a chorus of opposition to OPED’s proposal from citizens, including members of the Bridgeport City Council and the Bridgeport Board of Education.
Five (5) members of the City Council, one-quarter of the membership of that body, testified in opposition to the OPED proposal. They were joined by three (3) members of the Board of Education, all of whom were united in their opposition.
Other than the Intervening Defendant, Vitros, LLC, no potential liquor store operator provided testimony in favor of the OPED revisions.
However, it is not the province of this court to sit as a member of the Bridgeport Planning and Zoning Commission, or to examine the Commission’s 6-2 decision based upon principles of de novo review. Decisions relating to public policy and the contents of municipal zoning regulations are left to the sound discretion of municipal land use officials. Where substantial evidence supports the decision of a land use body, courts must resist the temptation to interfere, even if the court believes a decision to be unwise, or ill considered.
City Council members raised questions regarding the use of city resources and OPED personnel to advance the possibility of additional liquor outlets in the City of Bridgeport. Questions were also raised, concerning the relationship between more liquor outlets, and economic development which would enhance the tax base, and provide permanent jobs.
These are appropriate issues for members of a municipal legislative body to consider, particularly during the annual budget process. During that process, the expenditure of city funds, the allocation of resources by departments such as OPED, and the determination of priorities, are areas of inquiry which members of the Bridgeport City Council are free to explore.
Members of the Planning and Zoning Commission are appointed by the Mayor. However, the City Council, by Charter, exercises a function in the nature of advice and consent. It is entirely appropriate to question potential land use commissioners, concerning their general land use philosophy, and their belief in the necessity of listening to public input. The City Council may also insist that appointments be made in a timely fashion, and that commissioners not "hold over" long after their terms have expired.
The issue before this court, however, is whether the decision of the Commission satisfies the "substantial evidence" standard.
The Regulation adopted includes criteria which must be satisfied, if a liquor outlet is to obtain a certificate of location. Fact-based and site-specific findings of fact are required, thus avoiding the use of "over the counter" approvals, in lieu of findings based on evidence, and site plan criteria.
The fact that the Regulation may permit the Intervening Defendant, Vitros, LLC, to benefit, does not counteract substantial evidence, in support of the Commission’s action. The Commission’s action is supported by substantial evidence, and therefore must be upheld.
CONCLUSION
The Plaintiffs’ appeal is DISMISSED, in its entirety, with a single exception.
The City of Bridgeport, at trial, argued that the right to a public hearing is implicit in the Regulation adopted, even though the certificate of location process does not explicitly require a public hearing. The City also represented, that public hearings have been held, whenever a certificate of location has been requested from the Planning and Zoning Commission.
Therefore, this matter is remanded to the Planning and Zoning Commission, for the sole purpose of explicitly providing, within the body of the Regulation, for the public hearing process it claims is implicit in the adopted Regulation.
Including a specific public hearing requirement will prevent a future applicant from claiming, notwithstanding the representations of the City during trial, that no public hearing is necessary, and that findings can be made solely on the basis of materials submitted. The court believes that this result is not intended by the Commission, and should be specifically foreclosed.
Judgment may enter accordingly.