Opinion
No. CV 09 4029903 S
July 28, 2011
MEMORANDUM OF DECISION
The plaintiff, Ephrem Medina, is a resident of Bridgeport who applied for a variance of § 12-10a b of Bridgeport Zoning Regulations in order to allow for a liquor permit at the address of 429 Barnum Avenue. On July 14, 2009 a public hearing was held and the defendant, the Bridgeport Zoning Board of Appeals (Board), denied Medina's application stating that he did not show that strict adherence to § 12-10a b would impose a hardship upon him. Medina appeals the Board's decision. He argues that the Board erred in its decision to deny the variance because the variance will not substantially affect the comprehensive zoning plan and that strict adherence to the ordinance would result in exceptional difficulty and unusual hardship. The Board argues that it properly rejected Medina's application because he presented no evidence that strict adherence to § 12-10a b would generate an unusual hardship upon his property.
Sections 12-10a b of Bridgeport's Zoning Regulations state that "(a) [n]o 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 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 another use requiring an all-alcoholic liquor package store permit. Notwithstanding this limitation, a use for which a package store permit was issued and valid at the time of the adoption of these Regulations may move to another building or premises within a 750-foot radius of the building or premises containing the use for which the package store permit was issued" and "(b) [n]o building or premises with a liquor permit issued by the State Liquor Control Commission, other than a full service restaurant as defined by the State Liquor Control Commission, shall be used either in whole or in part for the sale of alcoholic liquor if any entrance to such building or premises within the territorial limits of the city of Bridgeport shall be within 1,500 feet in any direction from the entrance to any other building or premises which shall be used for the sale of alcoholic liquor whether it is of the same or of a different class or permit."
"[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . ." Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547, 684 A.2d 735 (1996). Appeals from zoning board decisions are only decided on the record before the board, Vine v. Zoning Board of Appeals of Town of North Branford, 281 Conn. 553, 560, 916 A.2d 5 (2007), and upon appeal, the trial court reviews this record to determine whether the board has acted fairly or with proper motives or upon valid reasons . . ." Bloom v. Zoning Board of Appeals of City of Norwalk, 233 Conn. 198, 206, 658 A.2d 559 (1995), quoting Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). Thus, "where a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] should not attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision." DeMaria v. Planning Zoning Commission, 159 Conn. 534, 541, 217 A.2d 105 (1970). "Where the board states its reasons on the record, [courts] look no further." Jaser v. Zoning Board of Appeals, supra, 548. The decision of a zoning board will only be overturned if it is illegal, arbitrary, or an abuse of discretion. Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 532, 772 A.2d 624 (2001).
A variance constitutes a permission to act that is otherwise not allowed under a town's system of zoning laws, Bloom v. Zoning Board of Appeals of City of Norwalk, supra, 233 Conn. 206. The practice of granting variances "should be sparingly exercised." Dolan v. Zoning Board of Appeals, 156 Conn. 426, 429, 242 A.2d 713 (1968). Specifically, the 1500-foot minimum distance requirement for liquor stores, as is the ordinance at issue here, "is designed to prevent the undue concentration of liquor outlets in a zone where such outlets are allowed," Kallay's, Inc. v. Katona, 152 Conn. 546, 549, 209 A.2d 185 (1965), and "if the application of this regulation is varied in cases other than those which fall clearly within the specified requirements for a variance, the purpose of the regulation is thwarted." Dolan v. Zoning Board of Appeals, supra, 429-30.
General Statutes § 8-6(3) states that in order for a zoning board to grant a variance, two requirements must be met: "the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan." Grillo v. Zoning Board of Appeals, 206 Conn. 362, 268, 537 A.2d 1030 (1988). Therefore it is imperative that an applicant seeking a variance present evidence to show the existence of both elements. The failure to present evidence as to one element is fatal to any applicant's case.
"Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of zoning ordinance." Point O'Woods Ass'n., Inc., v. Zoning Board of Appeals, 178 Conn. 364, 368, 423 A.2d 90 (1979). This hardship must be unusual as it must arise out of some peculiar characteristic of the property, "as opposed to the general impact which the regulation has on other properties in the zone." Dolan v. Zoning Board of Appeals, supra, 156 Conn. 430.
After considering the arguments from both parties, this Court upholds the Board's decision to deny Medina's application for a variance of § 12-10a b. A review of the record that was before the Board at the time it made its decision indicates that Medina presented no evidence to show that strict adherence to § 12-10a b would effectuate an unusual hardship upon his property. Without evidence of unusual hardship, the Board could not have granted the variance. Therefore, the Court finds that the Board acted fairly and with correct rationale when it denied Medina's application.
Specifically, Medina presented nothing to show that because of a peculiar characteristic of his property that the ordinance produced an unusual hardship to him as opposed to the general impact upon other properties within that zone. The Supreme Court has stated that variances of liquor regulations like § 12-10a b are ordinarily denied because "[i]t would be a rare case where, owing to conditions especially affecting a given piece of property, a regulation which prescribes a minimum distance between certain types of liquor outlets would cause a hardship different in kind from that felt by other properties in the zone." Dolan v. Zoning Board of Appeals, supra 156 Conn. 430. Variances of regulations like § 12-10a b ordinarily only cause "a financial impact in the zones where [they apply], and therefore . . . are seldom sustained by the courts." Id.
Because of the lack of evidence presented to the Board and the considerable deference afforded to board decisions of this type, the Court denies Medina's appeal and affirms the Board's decision.