Opinion
LNDCV125042392S LNDCV146069681S; LNDCV156069680S; LNDCV156069678S; LNDCV156069679S; LNDCV166069690S; LNDCV166070689S
12-04-2017
STEROCO, INC. v. Joseph SZYMANSKI et al.
UNPUBLISHED OPINION
OPINION
Berger, J.
Presently before the court are seven intertwined cases that concern a bitter dispute between a commercial landlord, Steroco, Inc., and its former tenant, Joseph Szymanski.
These cases are:
Specifically, Steroco owns commercial property at 847 Forest Road in North Branford upon which a liquor store has operated for approximately fifty years. Steroco, Inc. v. Szymanski, 166 Conn.App. 75, 78, 140 A.3d 1014 (2016). For over twenty-five years, Steroco’s tenant, Szymanski, operated the liquor store. Id. In September of 2012, Szymanski moved his operation next door to 855 Forest Road. Id. The cases present a number of related land use issues including the legality of certain text amendments to the zoning regulations of the town of North Branford (regulations), the existence of a nonconforming use at 847 Forest Road, and the interpretation of the regulations relating to nonconforming use and the distance between 847 Forest Road and 855 Forest Road. The town of North Branford, the planning and zoning commission of North Branford (commission) and the zoning board of appeals of North Branford (board) are defendants in the various actions.
Northford Plaza Realty Group, LLC, owns 855 Forest Road, and is also a named party with Szymanski.
Before these cases were transferred to this docket, the parties litigated Steroco, Inc. v. Szymanski, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-12-5042392-S (the injunction action). On July 17, 2014, the trial court, Hadden, J., permanently enjoined Szymanski from operating his business at 855 Forest Road as it did not comply with a liquor distance regulation, i.e., 855 Forest Road is less than 500 feet from a church . On further appeal, the Appellate Court upheld the determination of the zoning violation, but reversed the decision on other grounds and remanded it to the trial court for a new trial applying the standard for issuance of a permanent injunction. Steroco, Inc. v. Szymanski, supra, 166 Conn.App. 91.
This court held trial on all seven cases on September 19, 2017. In light of the oral stipulations by the parties, this court finds that both Steroco and Szymanski are aggrieved as owners or tenants of the respective properties that are the subjects of the administrative determinations in these cases. See Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 527, 119 A.3d 541 (2015) (" [i]t is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner"); Walgreen Eastern Co. v. Zoning Board of Appeals, 130 Conn.App. 422, 425, 24 A.3d 27 (" [commercial entity’s] status as lessee established its aggrievement to pursue both appeals"), cert. denied, 302 Conn. 930, 28 A.3d 346 (2011); see also Douglas v. Planning & Zoning Commission, 127 Conn.App. 87, 99, 13 A.3d 669 (2011) (" the landed plaintiff is statutorily aggrieved under [General Statutes] § 8-8(a)(1) because his property falls within the particular zone to which the text amendment pertained").
I
A
The court first turns to the two text amendment appeals of Steroco, Inc. v. Planning & Zoning Commission of the Town of North Branford, Superior Court, land use litigation, Docket Nos. LND CV-15-6069678-S and LND CV-15-6069679-S. In Steroco, Inc. v. Planning & Zoning Commission of the Town of North Branford, supra, Superior Court, Docket No. LND CV-15-6069679-S, a law firm, Cohen and Acampora, filed the first application for a text amendment seeking, among other things, to change the separation distance between a liquor outlet and a church or other designated types of buildings from 500 feet to 400 feet where there is a state highway between the buildings.
The law firm represented several interested liquor establishments. (Return of Record [ROR]-79, Item 35, p. 7.) Steroco argues that the law firm did not have standing to file the application. Nevertheless, " [z]oning amendments and zone changes can be initiated either by the commission itself or by any interested party." R. Fuller, 9 Connecticut Land Use Law and Practice (4th Ed. 2015) § 4.1, p. 52.
To distinguish between the return of record in the cases, the court refers to them by the last two digits of the docket number, e.g., ROR-79, Item X.
In the second text amendment appeal, Steroco, Inc. v. Planning & Zoning Commission of the Town of North Branford, supra, Superior Court, Docket No. LND CV-15-6069678-S, Steroco filed an application seeking, among other things, to delete the regulatory requirement that there be 1, 500 feet between liquor establishments (1, 500-foot rule). (ROR-78, Item 1.) The two applications commenced separately, but were ultimately heard together by the commission. A public hearing was held on January 8, 2015, January 22, 2015, and February 5, 2015. (ROR-79, Items 34-35, 41-42, 47-48.) The Commission unanimously voted on March 5, 2015, to approve the law firm’s text amendment and to deny Steroco’s proposed amendment. (ROR-79, Items 58-59.) The adopted resolution provided:
SECTION 54- ALCOHOLIC BEVERAGES
54.1 General: The following regulations shall apply to the location of any business where alcoholic liquor, wine, beer and/or ale is sold at retail for consumption on or off premises under a permit issued by the Liquor Control Commission of the State of Connecticut, which business is hereinafter referred to as a " Liquor Outlet."
54.2 Measurement: All required distances shall be measured from the nearest corner of any building or space used as a Liquor Outlet to the nearest corner of any church, synagogue, or college building or from the nearest property line of any town-owned school, park, playground, or recreational facility. Measurement shall be a straight line measurement.
54.3 Discontinuance: If any existing Liquor Outlet, with a valid existing permit, which shall be located within the prescribed distance provided for in Section 54.4, shall be discontinued for a period of one (1) year, such Liquor Outlet shall not be resumed except in conformity with Section 54.4.
54.4 Location:
54.4.1 No Liquor Outlet shall be located within 500 feet of any church, synagogue, college, school, park or town-owned playground, except when a state highway separates the Liquor Outlet from any church, synagogue, college, school, park or town owned playground, then the required separating distance shall be reduced to 400 feet.
54.4.2 No Liquor Outlet for consumption off premises shall be located less than 1, 500 feet from an establishment with the same class permit. There is no required separation distance for establishments where alcoholic liquor, wine, beer and/or ale is sold at retail for consumption on premises. (ROR-79, Item 62.)
B
1.
" Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations ... The zone change must be sustained if even one of the stated reasons is sufficient to support it ... The principle that a court should confine its review to the reasons given by a zoning agency does not apply to any utterances, however incomplete, by the members of the agency subsequent to their vote. It applies where the agency has rendered a formal, official, collective statement of reasons for its action ... We have also stated, however, that the failure of the zoning agency to give such reasons requires the court to search the entire record to find a basis for the commission’s decision." (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991).
In adopting the law firm’s changes, the commissioners stated the following reasons when casting their vote:
Roll Call Vote:
[Charles] Gunn: Approve.
The changes clarify that the measurement is to be a straight line measurement, which was not clear in the original regulations.
It is consistent with the Plan of Conservation and Development, which encourages the growth in existing commercial centers. Allows for restaurants to exist near one another by right.
The new regulations enable two restaurants with the same class permit to exist within 1, 500 feet of one another, which " encourage[s] more intensive, pedestrian oriented development of commercial properties" and promotes economic development.
[Frances] Lescovich: Approve.
Agree with Gunn’s reasons.
[Ron] Sienna: Approve.
Agree with Gunn’s reasons and states these changes clarify the regulations.
[David] Hultgren: Approve.
Agree with Gunn’s reasons and these changes reduce the hardship additional restaurants would have when opening in a cluster of developed properties.
[Chairperson Harry] Dulak: Approve.
Agree with Gunn’s reasons. (ROR-79, Item 60.)
Gunn’s reasons, agreed with by all members when voting, are also the reasons articulated in the letter from the town planner, Carey Duques, to the law firm informing it of the approval. (ROR-79, Item 62.) Similarly, Lescovich moved to deny Steroco’s application stating that " the proposed change does not fulfill the goals and objectives of the Plan of Conservation and Development and it would not help promote the historic and natural character of the community." (ROR-78, Item 31.) These are the same reasons given in Duques’ letter to Steroco. (ROR-78, Item 33.) As the commission has formally stated its reasons for approval, the court cannot search out and speculate as to other reasons for the approval. See DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970) (" [W]here a zoning commission has formally stated the reasons for its decision the court should not go behind that official collective statement of the commission. It 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"); see also Woodford v. Zoning Commission, 147 Conn. 30, 31, 156 A.2d 470 (1959) (" [t]he vote of the commission may properly incorporate the statement of the reason or reasons for the change").
2.
" We have often articulated the proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations. [T]he commission, acting in a legislative capacity, [has] broad authority to adopt the amendments ... In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached ... Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change ... The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function ... This legislative discretion is ‘wide and liberal, ’ and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally ... Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment ... The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion ... Within these broad parameters, [t]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan, General Statutes § 8-2 ... and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2." (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 542-44.
" [The courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions [that] create the problem and shape the solution." (Internal quotation marks omitted.) Konigsberg v. Board of Aldermen, 283 Conn. 553, 582, 930 A.2d 1 (2007). " [T]he plaintiffs bear the burden of establishing that [the legislative body] acted improperly." Id., 583.
In the present case, the collective information in the record supports the commission’s decisions. The commission exhaustively reviewed the proposed amendments as well as different draft versions for resolution during the course of its proceedings. (ROR-79, Items 4-5, 10-11, 17-18, 24-25, 34-35, 41- 42, 47-48, 53-54, 58-59.) The final decisions reflect a clarifying change prompted by the injunction action and a proposal to promote economic development in the town. Thus, the commission amended its regulations within the context of the comprehensive plan. See First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973) (" [t]he requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community").
It is noted that law firm’s text amendments were supported by hundreds of individuals and institutions in the town. (ROR-79, Item 36, Exhibits [exhs.] A-C.)
While the law firm’s text amendments assisted Szymanski, the changes applied throughout the town. See Morningside Ass’n v. Planning & Zoning Board, 162 Conn. 154, 162, 292 A.2d 893 (1972) (" [a]lthough the petitioner may receive an incidental benefit, so long as the change is in accordance with the comprehensive plan and the central purpose for the change is in benefitting the community as a whole as opposed to the owner of the property, the board cannot be said to have acted unreasonably or arbitrarily").
Further, as to the denial of Steroco’s amendment, the record demonstrates that the commission was concerned about the concentration of liquor stores if the 1, 500-foot rule was repealed. (ROR-79, Item 54.) " Zoning regulations may prohibit some uses under the police power which are otherwise allowed as a permitted use ... when located within a specified distance of another property where the same use exists ... A zoning commission can restrict liquor store outlets more severely than it restricts other uses ... Separation distances are the type of restriction most commonly employed to limit the number of liquor outlets in a zone where liquor sales are otherwise allowed, for the purpose of preventing undue concentration of liquor outlets." (Footnotes omitted.) 9 R. Fuller, supra, § 4:36, p. 158. " The separation distances for liquor outlets are a legitimate exercise of the police power." Id., p. 159.
The record demonstrates that the commission’s decisions on the text amendments are reasonably supported by the record. Furthermore, Steroco has not sustained its burden to prove that the commission’s actions were illegal or arbitrary. Thus, the legislative decisions of the commission in the text amendment appeals must be upheld. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 542-43 (" Conclusions reached by the commission must be upheld by the 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 before the agency supports the decision reached" [internal quotation marks omitted]).
III
One of the law firm’s text amendments, now § 54.4.1, changed the required distance between a liquor store and buildings like a church from 500 feet to 400 feet where there is a highway between the buildings. This regulatory change moots the issues in the injunction action and the first variance appeal, Steroco, Inc. v. Zoning Board of Appeals of the Town of North Branford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-14-6069681-S. See Batchelder v. Planning & Zoning Commission, 133 Conn.App. 173, 180, 34 A.3d 465 (" Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties ... Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties ... [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." [Internal quotation marks omitted.]) cert. denied, 304 Conn. 913, 40 A.3d 319 (2012). As no practical relief can be granted, these cases are dismissed.
IV
A
In the declaratory action, Steroco, Inc. v. Planning & Zoning Commission of the Town of North Branford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-16-6069690-S, Steroco seeks to have § 54.3 of the regulations declared invalid under General Statutes § 8-2(a). Szymanski filed a counterclaim on June 15, 2017. He seeks determinations that his prior use of 847 Forest Road as a liquor store did not establish a legal nonconforming use and that Steroco’s use of 847 Forest Road as a liquor store would violate the 1500-foot rule.
On July 10, 2017, Steroco filed an " amended complaint" deleting its two other prayers for relief which sought determinations that its use is legally nonconforming notwithstanding § 54.3 of the regulations and that the defendants be " estopped from recognizing [Steroco’s] proposed use ... as a valid non-conforming use."
Requests to amend the counterclaim were filed on July 19, 2017, and on September 15, 2017. No requests for adjudication were filed regarding Steroco’s " amended complaint" or Szymanski’s requests to amend the counterclaim. Nevertheless, the amendments do not impact the court’s decision.
Steroco moved to dismiss Szymanski’s counterclaim on the grounds of lack of subject matter jurisdiction. Steroco argued before the court that the issues presented by the counterclaim were for the board to decide. The board had, of course, decided the issues and are the subject of Szymanski’s appeal, Szymanski v. Zoning Board of Appeals of North Branford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-16-6070689-S, which was commenced in July of 2016- a year before he filed his counterclaim.
Steroco’s argument is technically correct. See Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979) (" when a party has a statutory right of appeal from the decision of an administrative officer or agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test"). Nevertheless, Practice Book § 17-55 provides: " A declaratory judgment action may be maintained if all of the following conditions have been met: (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party’s rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure." " The remedy by means of declaratory judgments is highly remedial, and the statute and rules should be accorded a liberal construction to carry out the purposes underlying such judgments. One great purpose is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits." Sigal v. Wise, 114 Conn. 297, 301, 158 A. 891 (1932).
Here, both parties have commercial interests in the outcome of these proceedings. Steroco’s ability to operate its liquor store depends on whether the liquor store is a nonconforming use. There is little doubt that Szymanski’s operation may be impacted by Steroco’s use in such close proximity. Since the claims involve uncertainty about the status of Steroco’s use, " [t]here is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties." See Practice Book § 17-55(2). Thus, the court will address the issues of the counterclaim in the declaratory action- and it was invited to do so by the parties - in order to address equitable considerations as explained herein. See Practice Book § 17-55; see also 9A R. Fuller, supra, § 38.4, p. 458 (commenting that Practice Book § 17-55(3) " gives more flexibility to the trial court to allow the use of a declaratory judgment where appropriate and in the interests of judicial economy even though some other remedy might be possible").
In Szymanski’s appeal, he argues in his brief on page six that his appeal should be dismissed and the court should determine the issues in the declaratory action. Steroco’s complaint in the declaratory action is based on the factual allegations that " its proposed use of the property at 847 Forest that was occupied as a retail package store for selling alcoholic liquor to the public for 52 years uninterrupted has not lapsed, and therefore cannot be terminated under [General Statutes § ]8-2 ... merely because of the result of non-use for a specific period of time without regard to the intent of the property owner to maintain said use." These allegations impliedly require this court to determine the nonconforming issue.
" In an action seeking a declaratory judgment, the sole function of the trial court is to ascertain the rights of the parties under existing law ... While we have characterized the proceeding as a special statutory action and therefore distinct from one seeking the imposition of equitable relief ... the trial court may, in determining the rights of the parties, properly consider equitable principles in rendering its judgment ... This conclusion not only harmonizes the rule that actions in law and equity may be combined in this state ... it is also in accord with our position favoring liberal construction of the declaratory judgment statute in order to effectuate its ‘sound social purpose.’ " (Citations omitted.) Middlebury v. Steinmann, 189 Conn. 710, 715-16, 458 A.2d 393 (1983).
Under the specific circumstances of this case, it is not equitable to countenance Szymanski’s primarily semantic argument that Steroco had no legal nonconforming use existing prior to the enactment of the 1, 500-foot rule because Szymanski did not move next door and open a liquor store within 1, 500 feet until 2012. Szymanski should not be able to use its variance- which apparently did not include consideration of the 1, 500-foot rule - as a sword simply because Steroco was not operating a liquor store once Szymanski took his operation and left. Further, it is disingenuous to argue that Steroco was not irrevocably committed to its use. The use existed for more than fifty years and there is no question Steroco wanted to continue to use the property for operation of a liquor store. As the cases and the records reflect, Steroco was a part of each administrative proceeding and has been litigating the issues since 2012- at each step fighting to keep the use.
When Szymanski’s variance was considered, § 54.4.2 of the regulations provided that " [n]o liquor outlet shall be located less than 1, 500 feet from an establishment with the same class permit." (ROR-81, Item 20, p. 5-13.)
See, e.g., pleading # 131.00 in the injunction action.
Additionally, " [a] lawfully established nonconforming use is a vested right and is entitled to constitutional protection." (Internal quotation marks omitted.) Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484, 408 A.2d 243 (1979). " A nonconforming use runs with the land and is like a variance in that it is not personal in nature." Parslow v. Zoning Board of Appeals, 110 Conn.App. 349, 362, 954 A.2d 275 (2008).
" A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted ... For a use to be considered nonconforming ... that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted ... The party claiming the benefit of a nonconforming use bears the burden of proving that the nonconforming use is valid." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 627-28, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).
In the present case, there is no dispute that the use of 847 Forest Road as a liquor store is lawful. The issue is whether it was in existence at the time the 1, 500-foot rule was enacted . In a stipulation of facts filed on July 26, 2017, the parties agree that Steroco " has enjoyed use of the property as a retail package store since sometime during the 1960s." Although the parties could not agree on the exact date of the promulgation of the 1, 500-foot rule, they stipulate that the 1, 500-foot rule was first enacted sometime before 2012. The parties seem to agree and evidence in the record of Szymanski’s appeal indicates that the regulation likely became effective in 1986. (ROR-89, Item 15C.)
Zoning regulations seem to have existed as far back as 1956. (ROR-89, Item 15D, p. 34.) Regulations around the time of the establishment of Steroco’s use do not contain a 1, 500-foot rule. (ROR-89, Item 15D.) Specifically, § 14 of the regulations effective in 1962 prohibited buildings used for onsite consumption from being within 500 feet of each other or from a package store. (ROR-89, Item 15D.) Additionally, package stores could not be within 500 feet of buildings used for onsite consumption or from churches or other designated types of buildings. (ROR-89, Item 15D.) Zoning regulations from 1962 to 1967 are the same except that the section number changed to thirty-nine. (ROR-89, Item 15D.)
Moreover, " [f]or there to be an existing use, premises must be so utilized as to be known in the neighborhood as employed for a given purpose. Such utilization combines two factors: (1) the adaptability of the land for the purpose; (2) the employment of it within that purpose. In addition, the use must be actual and not merely contemplated ... Moreover, we have unequivocally stated that neither the extent, quantity nor quality of the use is prescribed by the ‘known in the neighborhood’ test ... The court is not generally required to speculate as to the number of acts or business transactions necessary to constitute an existing use." (Citations omitted; internal quotation marks omitted.) Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 713, 519 A.2d 49 (1986).
Steroco’s use had been adapted for use as a liquor store for over fifty years and was used as such. See Steroco, Inc. v. Szymanski, supra, 166 Conn.App. 78. Therefore, the use of 847 Forest Road was in existence at the time the regulation was enacted. See Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988) (" [a] nonconformity is a use or structure prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations are adopted"); 83 Am.Jur.2d 518, Zoning and Planning § 524 (2013) (" A ‘nonconforming use’ is a use of property that lawfully existed prior to the enactment of a zoning ordinance, and continues after the effective date of the ordinance, even though it no longer complies with current zoning restrictions. In other words, it is a use prohibited by the zoning regulations but permitted because of its existence at the time the regulations were adopted. A nonconforming use is often referred to as a ‘grandfather right’ and is allowed to continue only to avoid injustice" [footnotes omitted]). As a result, the prior use of 847 Forest Road as a liquor store established a legal nonconforming use and is not subject to the 1, 500-foot rule. These determinations are bolstered by and harmonize with the board’s findings that are the subjects of Szymanski’s appeal.
Steroco’s remaining allegation is that § 54.3 of the regulations is invalid under General Statutes § 8-2(a). Section § 54.3 of the regulations, entitled " Discontinuance, " provides: " If any existing Liquor Outlet, with a valid existing permit, which shall be located within the prescribed distance provided for in Section 54.4, shall be discontinued for a period of one (1) year, such Liquor Outlet shall not be resumed except in conformity with Section 54.4." General Statutes § 8-2(a), in relevant part, provides that zoning regulations " shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations" and " shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use ..." Insofar as the regulation seeks to end legal, nonconforming uses, it is invalid under General Statutes § 8-2(a) because it does not take into account an owner’s intent to maintain or abandon such uses. See Cioffoletti v. Planning & Zoning Commission, 24 Conn.App. 5, 9, 584 A.2d 1200 (1991) (holding that trial court properly held that regulation was illegal as applied to plaintiffs’ property because it attempted to prohibit established nonconforming use); Urban Girls, Inc. v. Zoning Board of Appeals of Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV-10-6014593-S (March 13, 2012, Owens, J.) (holding that similar regulation was illegal under § 8-2(a) as applied to nonconforming use).
B
In Szymanski’s appeal, Szymanski v. Zoning Board of Appeals of the Town of North Branford, supra, Superior Court, Docket No. LND CV-16-6070689-S, Szymanski seeks to overturn the board’s determination that the zoning enforcement officer was incorrect in denying Steroco’s certificate of zoning compliance based upon the 1, 500-foot rule. On May 16, 2016, a public hearing was held on Steroco’s appeal of the zoning enforcement officer’s denial of its certificate of zoning compliance. The board sustained Steroco’s appeal on June 20, 2016, finding that its use was legally nonconforming.
The board was served on July 8, 2016, and Steroco was served on July 18, 2016. Steroco and the board filed motions to dismiss based on untimely service of process. According to the marshal’s affidavit (pleading # 115.00), the papers were delivered to him within fifteen days and served within thirty. See General Statutes § 52-593a(a) (" a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal, constable or other proper officer within such time and the process is served, as provided by law, within thirty days of the delivery"); see also Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 688, 986 A.2d 290 (2010). Steroco and the board also indicated to the court on September 19, 2017, that they were not pursuing the motions.
In Szymanski’s appeal, he alleges that his prior operation of a liquor store at 847 Forest Road was not a nonconforming use. The town and Szymanski both argue that the use of 847 Forest Road was never nonconforming, but was always conforming since it was the only liquor store. Steroco asserts that the prior use as a liquor store at 847 Forest Road created a nonconforming use that Steroco has not abandoned and, thus, its use is not subject to the 1, 500-foot rule.
Szymanski initially alleges that the zoning enforcement officer had not rendered an appealable decision. The appeal was taken, however, pursuant to General Statutes § 8-6(a). The statute, in relevant part, provides: " The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter ..." Indeed, " [a]ppeals are often taken from actions of zoning enforcement officers that involve interpretation of regulations, the issuance of cease and desist orders ... or the granting or denying of building permits and certificates of zoning compliance." (Internal quotation marks omitted.) Piquet v. Chester, 306 Conn. 173, 184, 49 A.3d 977 (2012). It is further noted that the board unquestionably proceeded under the assumption that the zoning enforcement officer had made an appealable decision. (ROR-89, Item 14, p. 10.)
In other words, it was not until 2012 when Szymanski moved to 855 Forest Road that the 1500-foot rule become an issue for the use at 847 Forest Road. Arguably, this never should have been an issue for 847 Forest Road, but was instead a problem that should have been apparent as to Szymanski’s certificate of zoning compliance at 855 Forest Road and his subsequent request for a variance, particularly given Steroco’s participation in the administrative processes.
It was noted on July 27, 2017, before the court that this case was not fully briefed. The board had not filed a brief, but the parties were offered the opportunity to brief the issues and the parties acknowledged that the issues had been briefed in other cases.
" [F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board. We also are mindful that the zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer ...
" In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal ... The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision ... [A] zoning board of appeals hears and decides an appeal de novo ... It is the board’s responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts ... In doing so, the board is endowed with a liberal discretion ... Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing ... Upon an appeal from the board, the court must focus on the decision of the board and the record before it ...
" It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing ... The court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings." (Citation omitted; internal quotation marks omitted.) Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 757-58, 57 A.3d 310 (2012).
" Generally, it is the function of a zoning [commission] ... to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court ha[s] to decide whether the [commission] correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ...
" A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it ... Although the position of the municipal land use agency is entitled to some deference ... the interpretation of provisions in the ordinance is nevertheless a question of law for the court ... The court is not bound by the legal interpretation of the ordinance by the [commission] ...
" [Z]oning regulations are local legislative enactments ... and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes ... Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended ... Therefore, we employ our well established tools of statutory construction.
" When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case. In seeking to determine that meaning ... [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes: If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Citations omitted; internal quotation marks omitted.) Kobyluck Bros., LLC v. Planning & Zoning Commission, 167 Conn.App. 383, 389-91, 142 A.3d 1236, cert. denied, 323 Conn. 935, 151 A.3d 383 (2016).
" It is a fundamental zoning precept in Connecticut ... that zoning regulations cannot bar uses that existed when the regulations were adopted ... It is readily apparent that the rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations." (Citation omitted; emphasis in original; internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 65 Conn.App. 687, 694, 783 A.2d 526 (2001).
" Once a nonconforming use is established, the only way it can be lost is through abandonment. The sale of the property will not destroy the right to continue in the nonconforming use ... General Statutes § 8-2 restricts the ability of a town to eliminate a nonconforming use through its zoning regulations ... There is nothing in the zoning regulations ... which gives the defendant commission any authority to require the discontinuance of a preexisting use of undisputed legality." (Citations omitted; internal quotation marks omitted.) Id., 695.
Section 5.2 of the regulations provides: " A nonconforming use, building or other structure, or lot, is one which existed lawfully, whether by a variance or otherwise, on the date of these Regulations or any amendment hereto became effective, and which fails to conform to one or more of the provisions of these Regulations or such amendment hereto. No nonconforming use, building or other structure, or lot shall be deemed to have existed on the effective date of these Regulations unless (1) it was actually in being on a continuous basis on such date, and (2) if such nonconformity is a use, such use had not been discontinued within the meaning of Par. 5.6.4." (ROR-89, Item 15H, p. 1-6.)
Section 5.6.4 of the regulations provides: " No nonconforming use of land, buildings or other structures which shall have been discontinued with intent to abandon said use shall thereafter be resumed or replaced by any other nonconforming use. No nonconforming use of buildings or other structures which shall have been discontinued for a continuous period of one (1) year shall thereafter be resumed or replace[d] by any other nonconforming use." (ROR-89, Item 15H, p. 1-7.)
The board had evidence of the actual, continuous use of 847 Forest Road as a liquor store since 1965. (ROR-89, Item 14, p. 11.) The record also indicates that the 1, 500-foot rule did not exist in or around 1965. (ROR-89, Items 15C-15D.) Szymanski’s interpretation of the regulations- i.e., that a long-time business could be rendered illegal because the liquor store’s tenant moves down the street and opens another liquor store while the landlord’s store is temporarily not in operation- leads to a bizarre result. See Kobyluck Bros., LLC v. Planning & Zoning Commission, supra, 167 Conn.App. 391 (" [c]ommon sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body" [internal quotation marks omitted]). Furthermore, it ignores the undisputed fact that Steroco did not intend to abandon its use permanently. See Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 230 (1987) (" ‘Abandonment’ is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances ... The mere discontinuance of a use where there is no intent to abandon is not enough ... To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use ... Because the conclusion as to the intention of the landowner is an inference of fact, it is not reviewable unless it was one which the trier could not reasonably make." [Citations omitted; emphasis in original; internal quotation marks omitted.])
Similarly, the Appellate Court, adopting the recitation of facts of the trial court in the injunction action, stated, " The plaintiff constructed 847 [Forest Road] approximately [fifty] years ago and it has been used as a liquor store since its construction. The defendant has been a tenant at 847 [Forest Road], operating Village Wine for over [twenty-five] years until September 2012, when he relocated the liquor store to premises located at 855 Forest Road, next door to 847 [Forest Road]." (Internal quotation marks omitted.) Steroco, Inc. v. Szymanski, supra, 166 Conn.App. 78. Additionally, as previously stated, the parties’ stipulation of facts in the declaratory judgment action stated, " Steroco has enjoyed use of the property as a retail package store since sometime during the 1960s." Nevertheless, the stipulation of facts only applied to that case.
Again, there is no evidence that the 1500-foot rule was promulgated prior to 1986. (ROR-89, Item 15C.)
Indeed, the parties stipulated as such in the declaratory action. (Pleading # 147.00, paragraph 14.)
Consequently, Szymanski has not sustained his burden to prove that the board improperly sustained Steroco’s appeal of the zoning enforcement officer’s denial of its certificate of zoning compliance and affirmed the legal, nonconforming use at 847 Forest Road. As an implicit result, the 1, 500-foot rule does not apply to Steroco’s continued legal, nonconforming use. Accordingly, Szymanski’s appeal is dismissed.
Presumably, this is exactly what the board determined in sustaining Steroco’s appeal; (ROR-89, Item 17); as the board’s discussion indicates that the members were focusing on this semantic conundrum. (ROR-89, Item 14, pp. 10-16.) The court notes, however, that the board did not collectively state its reasons for the decision. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 544 (" The principle that a court should confine its review to the reasons given by a zoning agency does not apply to any utterances, however incomplete, by the members of the agency subsequent to their vote. It applies where the agency has rendered a formal, official, collective statement of reasons for its action ... We have also stated, however, that the failure of the zoning agency to give such reasons requires the court to ‘search the entire record to find a basis for the commission’s decision.’ " [Citation omitted.])
C
Finally, Steroco appeals the board’s denial of a variance from the 1, 500-foot rule in the second variance appeal, Steroco, Inc. v. Zoning Board of Appeals of the Town of North Branford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-15-6069680-S. This appeal has been rendered moot by the facts underlying Szymanski’s appeal. Specifically, the board overturned the zoning enforcement officer’s denial of Steroco’s zoning permit based upon the 1, 500-foot rule. Thus, the second variance appeal is dismissed as moot. See Batchelder v. Planning & Zoning Commission, supra, 133 Conn.App. 180.
This court observes, without deciding, that Steroco could use the facility for a number of other legal uses.
V
In the final analysis, a complete review of all of these cases clearly indicates that the town decided to allow both liquor stores to continue to exist. The commission changed the zoning regulations while the board granted a variance and overturned a decision of the zoning enforcement officer to allow for both; those actions were imperfect, but not improper. These land use decisions control this matter and not the obvious enmity between the two businesses, which has driven this procedural morass.
In summary, the injunction action, the two variance appeals, the two text amendment appeals and Szymanski’s appeal are dismissed. In Steroco’s declaratory action, judgment is entered for Steroco as discussed previously.
(1) the injunction action, Steroco, Inc. v. Szymanski, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-12-5042392-S (July 17, 2014, Hadden, J.), reversed and remanded in part, 166 Conn.App. 75, 140 A.3d 1014 (2016), in which Steroco contests Szymanski’s certificate of zoning compliance based on the failure to comply with a regulation requiring a liquor store to be 500 feet away from a church among other places (500-foot rule);
(2) the first variance appeal, Steroco, Inc. v. Zoning Board of Appeals of the Town of North Branford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-14-6069681-S, in which Steroco appeals the board’s granting of Szymanski’s application for a variance from the 500-foot rule;
(3) the first text amendment appeal, Steroco, Inc. v. Planning & Zoning Commission of the Town of North Branford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-15-6069678-S, in which Steroco appeals the board’s denial of Steroco’s application to change the regulations to eliminate the requirement that there be 1, 500 feet between liquor outlets (1, 500-foot rule);
(4) the second text amendment appeal, Steroco, Inc. v. Planning & Zoning Commission of the Town of North Branford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-15-6069679-S, in which Steroco appeals the commission’s approval of a text amendment, which among other things, changed the 500-foot rule to 400 feet where there is a highway between the liquor store and the church or other designated types of buildings;
(5) the second variance appeal, Steroco, Inc. v. Zoning Board of Appeals of the Town of North Branford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-15-6069680-S, in which Steroco appeals the denial of its application for a variance from the 1, 500-foot rule;
(6) the declaratory action, Steroco, Inc. v. Planning & Zoning Commission of the Town of North Branford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-16-6069690-S, in which Steroco seeks to have a regulation- disallowing a liquor outlet to resume its use after a year of nonuse- declared invalid; and
(7) Szymanski’s appeal, Szymanski v. Zoning Board of Appeals of the Town of North Branford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-16-6070689-S, in which Szymanski appeals a decision by the board overturning the zoning enforcement officer’s denial of Steroco’s certificate of zoning compliance based upon the 1, 500-foot rule.Counsel have not inappropriately brought and defended these cases; our administrative process created this situation. Nevertheless, Steroco and Szymanski have compounded this complex procedural and substantive quagmire by excessively litigating the individual cases. Each case viewed independently from the others contains a number of issues; yet collectively the seven cases revolve around just a couple of specific issues which control the outcome of all of the cases. Accordingly, this court will focus on those central issues to determine the disposition of all of the cases; see Practice Book § § 1-8 and 23-14; it will not review each case independently in a vacuum. Counsel have agreed to the consolidation and the prioritization of cases and issues; they have reserved their right to prosecute certain issues.