Opinion
No. 566556
July 28, 2004
MEMORANDUM OF DECISION
This is an appeal by the Planning and Zoning Commission of the Town of North Stonington and Craig Grimord, Senior Planner and Zoning Official of the Town of North Stonington from the action of the Zoning Board of Appeals of the Town of North Stonington granting an appeal filed by defendant, John Zelepos d/b/a Mystic Pizza II from an order issued by plaintiff, Grimord.
For reasons hereinafter stated, the action of the Zoning Board of Appeals is reversed.
Plaintiffs have appealed under the provisions of C.G.S. § 8-8(b) which provides that "any person aggrieved by any decision of a board may take an appeal to the Superior Court." To establish the aggrievement required by statute, so as to be entitled to an appeal a zoning board's decision, a party must allege facts which, if proven, would constitute aggrievement as a matter of law and prove the truth of those factual allegations. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996).
The Planning and Zoning Commission (hereinafter "Commission") has alleged aggrievement and claims it is charged with enforcement of the zoning regulations of the Town of North Stonington as a part of the duties imposed upon it and the powers granted by C.G.S. Chapters 124 and 126 and by Zoning Regulations of the Town of North Stonington. The Commission claims to be further aggrieved because of its obligations and powers and because the Board's decision was not in harmony with the general purpose and intent of the zoning regulations and was not in conformity with the comprehensive plan of the Town of North Stonington and had the effect of modifying a site plan approved by the Commission.
Plaintiff Grimord alleges that he is the zoning enforcement officer of the Town of North Stonington and as such is in charge of the enforcement of the town's zoning regulations. He alleges that he has authority under C.G.S. § 8-12 and under the North Stonington Zoning Regulations to enforce provisions of such regulations. He claims to be aggrieved because the actions of the Board were not in harmony with the general purpose and the intent of the zoning regulations, were not in conformity with the comprehensive plan of the town, and the decision overturned an order issued by himself under his authority as the town's zoning enforcement officer.
Defendants do not specifically contest the allegations of aggrievement and have agreed that the Commission and the ZEO have existed in their present capacities at all times relevant to this appeal.
C.G.S. § 8-8(1) includes within the definition of "aggrieved persons" as "any officer, department, board or bureau of the municipality charged with the enforcement of any order, requirement or decision of the board." Section 8-8(2) includes a Planning and Zoning Commission within the definition of "Board."
Section 8-3(e) provides that: "the zoning commission shall provide for the manner in which zoning regulations are enforced."
Section 8-12 entitled "Procedure When Regulations are Violated," provides in effect that if any land is being used in violation of any provision of any regulation made "under authority conferred hereby, any official having jurisdiction in addition to other remedies, may institute an action or proceeding to prevent, restrain, correct or abate such violation." The section further provides that the regulation shall be enforced by the "officer or official board or authority designated therein."
Section 201 of the North Stonington Regulations, which derives its authority from the general statutes, enacted by the plaintiff, Commission, provides that "regulations are to be enforced by the ZEO." This section authorizes the ZEO to issue orders including cease and desist orders and upon vote by the Commission to seek injunctive relief from the Superior Court. This appeal involves the issuance of a cease and deist order.
It is found that the Commission and the ZEO are statutorily aggrieved, it is further found that both are classically aggrieved in that they have a specific personal and legal interest in the subject matter of the decision in question as distinguished from the general interest such as may be the concern of all members of the community and such interest has been specifically and injuriously affected by the decision of the Board. Schwartz v. Town Planning and Zoning Commission, 168 Conn. 20, 25 (1975); North Stonington Planning and Zoning Commission v. North Stonington Zoning Board of Appeals, 23 Conn. L. Rptr. 131, 1998 W.L. 55436, Superior Court, Judicial District of New London (August 24, 1998).
The evidence indicates that defendant, John Zelepos, is the owner of real property at 207 Providence-New London Turnpike upon which he operates a business known as Mystic Pizza II.
By letter dated March 12, 2003, Mr. Zelepos received a communication from the ZEO entitled "NOTICE OF VIOLATION." The notice informed Mr. Zelepos that the ZEO considered him in violation of §§ 401, 402 and 612 of the Zoning Regulations. The letter stated that a follow up investigation would take place to determine compliance.
Subsequently, Mr. Zelepos received a cease and desist order entitled "ABATEMENT ORDER" from the ZEO. The order indicated that Mr. Zelepos was still considered to be in violation of the same sections regarding the use of his property and in particular the dispensation of alcoholic beverages. The order contained the following requirement "REQUIRED CORRECTIVE ACTION: CEASE THE SALE OF ALCOHOLIC BEVERAGES AT THE BAR. REMOVE THE BAR STOOLS FROM SAID BAR WHICH EXCEED THE SEATING CAPACITY APPROVED BY THE PLANNING AND ZONING COMMISSION."
Mr. Zelepos was ordered to correct said violation and that a reinspection would be conducted on or about May 8, 2003 to determine compliance with the order.
On April 28, 2003, Mr. Zelepos appealed the action of the ZEO under the provisions of C.G.S. § 8-6(1) and § 207 of the North Stonington Zoning Regulations. A hearing on this appeal was originally scheduled for June 10, 2003. The hearing was rescheduled for July 8, 2003 and properly advertised.
At that hearing, parties in interest were heard. After the hearing, the Board discussed the issues and then voted to uphold the ZEO's action with respect to § 612 of the Zoning Regulations. The Board voted to reverse the ZEO's action and to uphold the appeal as to §§ 401 and 402 of the regulations.
Within the time allowed by statute, the Commission and the ZEO appealed the decision of the Board to uphold the appeal as to §§ 401 and 402 of the regulations complaining that the Board acted illegally, arbitrarily and in abuse of its discretion.
The court is not bound to consider any claim of law not briefed. Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1985); Moulton Brothers, Inc. v. Lemieux, 74 Conn.App. 357, 363 (2002).
In deciding appeals such as we have here, the court operates under certain restrictions. The court is not at liberty to substitute its judgment for that of the administrative tribunal. Hall v. Planning Zoning Board, 153 Conn. 574, 577 (1966). The court may only determine whether the Board acted arbitrarily or in abuse of its discretion. Raybestos-Manhattan, Inc. v. Planning Zoning Board, 186 Conn. 466, 470 (1982). The decision of defendant Board may be reversed only if it is found that the Board's action was illegal, arbitrary or in abuse of its discretion. Cameo Park Home, Inc. v. Planning Zoning Commission, 150 Conn. 672, 677 (1963).
The plaintiff has the burden of proving that defendant Board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).
Here, the Board was required to determine the reasonableness of the decision of the zoning enforcement officer. It was acting administratively in a quasi-judicial capacity in applying the regulations. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 513-14 (1969). Since the issue before the Board was the propriety of the zoning enforcement officer's interpretation of §§ 401 and 402 of the North Stonington Zoning Regulations, it became the duty of the Board to decide, within prescribed limits and consistent with the exercise of a legal discretion, whether the regulations applied to the situation and the manner of their application. Connecticut Sand Stone Corp. v. Zoning Board of Appeals, 150 Conn. 439, 442 (1963).
Generally, it is the function of the Board to decide within prescribed limits and consistent with the exercise of its discretion whether a particular section of the zoning regulations applies to a given situation and in the manner in which it does apply. The court must then decide whether the Board correctly interpreted the section of the regulations and applied it with reasonable discretion. In applying the law to the facts of a particular case, the Board is endowed with a liberal discretion and its discretion and its exercise will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. The court reviews the record to determine whether it has acted fairly or with proper motives and upon valid reasons. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440 (1991).
The sections of the Zoning Regulations at issue here, §§ 401 and 402, are set forth as follows:
401. Applicability. No building, structure, or land in the Town of North Stonington shall be used or occupied except for the purposes permitted in the district, as prescribed in this section. Only one principal structure and shall be allowed on one lot within the Town of North Stonington, except as follows:
402. Use Designation. In the Table of Use Regulations, uses permitted by right in each district are designated by the letter "P." Uses allowed by Special Permits are designated by the letter "S." Any use not listed shall be construed to be prohibited; where no letter designation is indicated, the use is not permitted in the district and is so signified by a minus (-) sign. Uses set forth by right or by Special Permit are subject to all provisions of these Regulations, with the procedures and conditions for Special permits delineated in Sections 200 and 700.
The record indicates that on June 5, 2002, Mr. Grimord's predecessor as ZEO performed an inspection at Mystic Pizza II. She discovered a total of 109 seats on the upper level of the restaurant. Five of these seats were bar stools located at a bar or counter. She also saw two men consuming beverages only at this bar, or counter.
Subsequently, Mr. Grimord, as ZEO, having been instructed by the Commission to enforce the regulations, inspected the premises in which he observed nine bar stools at the bar with one patron seated at the bar. This inspection was followed by a notice of violation dated March 12, 2003. This letter was followed by the cease and desist order. After receipt of this directive, Mr. Zelepos appealed to the defendant, Board, under the provisions of C.G.S. § 8-6(1) and § 207 of the Zoning Regulations.
The board upheld the action of the ZEO concerning § 612 which limited the sale of alcoholic beverages in restaurants to service bars. It was Mr. Zelepos' position that since the term "service bar" was not specifically defined in the regulations, there were no standards to guide the ZEO or himself. Mr. Zelepos concluded that he was then free to serve patrons seated at the bar. This argument was rejected in Docket No. 0566633 and it is found that Mr. Zelepos had on the premises a service bar. A service bar was described by Mr. Zelepos at the public hearing as follows:
Mr. Zelepos appealed the action of the Board in upholding the ZEO's order concerning § 612 to the Superior Court. Motions to consolidate Mr. Zelepos' appeal, Docket No. 0566633 with the present action were filed and denied. The cases, however, were heard together. By separate memorandum of decision, the action of the Board concerning § 612 was upheld.
A service bar is where the waitresses get the drinks from the bartender, bring them out to the tables where the people are sitting. In other words, there is no direct serving from the bartender to someone sitting at the bar.
The position of plaintiffs is that § 401 restricts uses to those that are permitted and that § 402 provides that any use not listed on the accompanying table is prohibited.
The claim is that in accordance with these zoning regulations, Mystic Pizza II has a service bar at which patrons are not to be seated or served. Mr. Zelepos was in violation of the regulations because he had placed bar stools at the service bar and was serving patrons seated there. There is the further claim that the bar stools caused the seating capacity to exceed that allowed by the regulations.
On the date of the hearing before the Board, the ZEO sent to the Board a memorandum which stated that Mystic Pizza II was a planned business development located in the highway commercial zone district and was the recipient of a special permit. This permit authorized a restaurant with 102 seats. Also enclosed was an approved floor plan showing dining areas each with a 60 and 42 seat capacity. This site plan dated September 24, 1997 shows a "bar sink" "wait staff station" but no bar. A modified plan dated March 1, 1999 was also filed with no bar shown. It is unclear as to whether or not the modified plan was approved. It is clear, however, that no site plan with a bar was ever approved and seating capacity was limited to 102 seats.
Section 401 of the Regulations provides that "no building, structure or land in the Town of North Stonington shall be used or occupied except for the purposes permitted in the district." Section 402 refers to the table of use regulations and provides that "any use not listed shall be construed to be prohibited." Under the regulations, Mr. Zelepos was required to obtain a special permit for his business. The special permit required a site plan. A site plan for the restaurant was approved. This site plan limited seating to 102 seats and did not provide for a sit down bar which was not allowed under the regulations.
In its deliberations, the members of the Board appeared to have been under the impression that the Commission was attempting to regulate the type of seats which could be used in the restaurant. This is not the case. Mr. Zelepos was free to use any type of seating he might choose. He could have any mix of stools and chairs that he desired. He could not, however, exceed the number of seats authorized by the site plan (102) and such seats could not be located at the service bar.
The cease and desist order issued by the ZEO properly addressed the violations of the regulations. In failing to uphold the actions of the ZEO, the Board acted illegally and in abuse of its discretion.
Accordingly, the action of the Board in failing to uphold the action of ZEO with respect to § 401 and 402 of the Regulations is reversed.
Joseph J. Purtill, JTR