Opinion
CV166054518S
09-28-2016
Success, Inc. v. Zoning Commission of the Town of Stratford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dale W. Radcliffe, J.
FACTS
The Plaintiff, Success, Inc., seeks to thwart the desire of the Defendant, J& R's Pub, LLC to reopen a restaurant at 590 Success Avenue, Stratford. The previous restaurant, known as The Village Pub, operated within a portion of a commercial building in the property for many years, before it was forced to close due to a fire.
Since The Village Pub had been closed for more than one year, a new application for special case (special permit) approval for a liquor location was filed with the Defendant, Stratford Zoning Commission.
590 Success Avenue is located in a Retail Commercial (RC) District, in which a restaurant with a liquor permit is a permitted use. However, Section 15.1 of the Stratford Zoning Regulations requires that any establishment selling alcoholic beverages must obtain special case approval from the Zoning Commission. Section 15.0 provides:
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 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 Zoning Commission may refuse to approve any location for the sale of alcoholic liquor, wine, beer, or ale, if it has reasonable cause to believe that the number of approved locations for all classes of permits in an immediate neighborhood is such that the approval of another location in the locality is detrimental to the public interest. In reaching a conclusion in this respect, the Commission may consider the character of, the population of, the number of approved permit locations in, the neighborhood concerned, and the effect which a new permit location may have on such neighborhood.
Unlike some municipalities, Stratford, in its Zoning Regulations, does not mandate a specific distance between liquor outlets (ROR 8).
On October 27, 2015, J& R's Pub LLC, acting through Richard Riordan, filed a special case petition (ROR 1) with the Stratford Zoning Commission. The application sought to establish a restaurant with a liquor permit, within the portion of a commercial building once used as The Village Pub. The area consists of approximately 1, 700 square feet (ROR 2), and is adjacent to a Central American restaurant which has a restaurant liquor permit (ROR 8). The building has approximately ten (10) tenants.
A public hearing concerning the special case application was noticed (ROR 12) for November 24, 2015. Prior to the hearing, neighboring property owners, including the Plaintiff, Success, Inc., were notified of the application to obtain approval for a Restaurant Liquor permit (ROR 6). An establishment operating with a Restaurant Permit, may be located in CA Zoning District, as a Class D permit.
Section 15.8--Stratford Zoning Regulations.
Richard Riordan told the Zoning Commission that he would be a partner in the business, along with Jon Redmond, who was a part owner of The Village Pub, before the fire forced its closure (ROR 14, p. 1). The proposal is to establish a neighborhood bar, and restaurant, which, according to the applicant, would not constitute a significant change in the use of the property prior to the fire.
In response to question concerning " schools, churches, playgrounds and the like, " Reardon replied " there's nothing there." (ROR 14, p. 2.)
In his review of the application, submitted as part of the record, (ROR 8) Planning and Zoning Administrator Gary Lorentson observed: " There are no schools, churches or parks nearby. There is ample parking in front and behind the restaurant."
The only opposition to the special case application was voiced by Nicholas Owen, on behalf of the Plaintiff, Success, Inc.
Owen, who describes himself as conducting a " real estate, building and consulting business from time to time on zoning issues, " (ROR 14, p. 3) immediately acknowledged that 520 Success Avenue, an abutting parcel owned by Success, Inc., is the site of a liquor location. After denying that Success, Inc.'s opposition to the special case petition was motivated by a desire to limit competition, Owen portrayed himself as the champion of unnamed residents of Success Village, a residential community located nearby.
While no letters or petitions were submitted in opposition to J& R's special case application, Owen maintained that " a number of people I have spoken to in the past week are opposed to a reissuance of a liquor permit at this location." (ROR 14, p. 3.) He declined to identify, either by name or by address, any of the individuals.
The advocate for Success, Inc., then alleged: " Next door to this particular application . . . there is a liquor store . . ." This claim was demonstrated to be false. There is no liquor store in the complex, only a restaurant with a liquor permit (ROR 14, p. 5).
Quoting the unnamed person with whom he had spoken, Owen attributed opposition to the fact that " . . . this is an area in town that abuts Bridgeport, and as far as I am concerned . . . this is a transitional area where it is highly populated by a residential community directly across the street which is Success Village." (ROR 14, p. 3.)
Finally, Owen submitted nine (9) police reports, at least two of which did not relate to 590 Success Avenue, or The Village Pub (ROR 9). All of the incidents, with the exception of a report of vandalism at 570 Success Avenue on May 8, 2013, appear to be minor in nature.
The applicant, in rebuttal, claimed that many residents of Success Village frequented The Village Pub and that both electronic security and " bouncers" would protect patrons from any potential harm (ROR 14, p. 5).
Following the close of the public hearing, the Zoning Commission voted, 5-0, to approve the special case application. The unanimous vote satisfied the " super majority" requirement contained in Section 15.0 of the Zoning Regulations.
The minutes of the meeting (ROR 11, p. 4) indicate that discussion centered around the lack of significant past problems at the location, and that the applicant seemed serious about doing a good job.
Notice of the decision was published in the December 2, 2015 edition of The Connecticut Post (ROR 13), and Success, Inc. filed this timely appeal.
AGGRIEVEMENT
The Plaintiff, Success, Inc., is the record owner of a ninety-five percent (95%) interest in the property known as 520 Success Avenue, having obtained title via a quitclaim deed (Ex. 1A), recorded on December 18, 2000 at Volume 1663, page 44, of the land records of the Town of Stratford. A corrective deed (Ex. 1B), recorded on March 6, 2007, at Volume 3012, page 337-38 of the land records, placed title into the name of Success, Inc.
On October 28, 2009, Success, Inc., conveyed a five percent (5%) interest in the property to each of the following entities--Outlaw Boxing Kats, Inc., Cell Phone Club, Inc., City Streets, Inc., and Millionaire Club, Inc. by warranty deeds (Ex. 1C, Ex. 1D, Ex. 1E, and Ex. 1F).
In February of 2002, Cell Phone Club, Inc., Millionaire Club, Inc., and Outlaw Boxing Kats, Inc., each reconveyed its interest in the property to Success Inc. (Ex. 1 G, Ex. 1H and Ex. I), leaving Success Inc., with a ninety-five (95%) percent interest in the parcel, and City Streets, Inc., with a five percent (5%) recorded interest.
520 Success Avenue abuts a portion of the property known as 590 Success Avenue, the parcel where the area subject to the special case application is located (Ex. 3; ROR 6).
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (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, 558 A.2d 646 (1989). The burden of proving aggrievement is upon the party claiming to be aggrieved. London v. Zoning Commission, 149 Conn. 282, 284, 179 A.2d 614 (1962).
Two broad categories of aggrievement have been recognized: 1) statutory aggrievement, and 2) classical aggrievement.
Statutory aggrievement exists by virtue of legislative flat, rather than through an analysis of the facts of a particular case. Weill v. Lieberman, 195 Conn. 123, 124-25, 486 A.2d 634 (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, 156, 953 A.2d 1 (2008); Fort Trumbull Conservancy v. Alves, 262 Conn. 480, 485-87, 815 A.2d 1188 (2003).
Section 8-8(a)(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 .concern of all members of the community as a whole, and 2) the party claiming to be aggrieved must show 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, 478 A.2d 601 (1984); Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980).
As the owner of a ninety-five percent (95%) interest in 520 Success Avenue, the Plaintiff, Success, Inc., is the owner of real property which abuts 590 Success Avenue, Strafford.
It is therefore found, that Success Inc. is statutorily aggrieved by the decision of the Defendant, Stratford Zoning Commission, which prompted this appeal.
In addition, because the Zoning Commission's decision involves the sale of alcoholic beverages, as a Stratford taxpayer, the Plaintiff would satisfy the " automatic standing rule." This rule, which dates back to the nineteenth century, 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. Alliance Energy Corp. v. Planning & Zoning Board, 262 Conn. 393, 403, 815 A.2d 105 (2002); Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 186-87, 676 A.2d 831 (1996), M& R Enterprises, Inc. v. Zoning Board of Appeals, 155 Conn. 280, 281-82, 231 A.2d 272 (1967); Cowles v. Zoning Board of Appeals, 153 Conn. 116, 214 A.2d 361 (1965); O'Connor v. Board of Zoning Appeals, 140 Conn. 65, 71-72, 98 A.2d 515 (1953); Beard's Appeal, 64 Conn. 526, 534, 30 A. 775 (1894).
Because the Plaintiff has proven statutory aggrievement, the court has jurisdiction to entertain this appeal.
STANDARD OF REVIEW--SPECIAL PERMIT (SPECIAL CASE)
A special permit, or special case as it is designated in the Stratford Zoning regulations, allows a property owner to use his property in a manner which is expressly permitted by the zoning regulations. A.P.& W Holding Corporation v. Planning & Zoning Commission, 167 Conn. 182, 185, 355 A.2d 91 (1984); Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, 169-70, 852 A.2d 826 (2004). A permit must be obtained, because the nature of the use is such that the exact location and operation must be regulated, due to unique conditions, such as traffic problems and neighborhood uses. Barberino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 612, 610 A.2d 1205 (1992).
The terms " special permit" and " special exception" (special case) have the same meaning, and may be used interchangeably. Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160 (1962).
Since Beard's Appeal, supra, was decided in 1894, Connecticut courts have consistently recognized that in liquor traffic, there is a potential source of danger to the public, which is not inherent in other businesses. Alliance Energy Corp. v. Planning & Zoning Board, supra, 401. Section 15.0 recognizes the enhanced scrutiny demanded of liquor outlets, and requires a super majority, four (4) votes, in order to approve a special case application involving the sale of liquor.
A planning and zoning commission's authority to issue a special permit, is derived from Section 8-2 of the General Statutes. The authorizing statute does not permit a commission, in the exercise of its discretion, to vary the application of its regulations on a case by case basis. Mackenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 428-29, 77 A.3d 904 (2013). While Section 8-2 permits the imposition of conditions upon the approval of a special permit application, those conditions must be authorized by the zoning regulations themselves, and must be necessary to protect the public health, safety, convenience and property values. Housatonic Terminal Corporation v. Planning & Zoning Board, 168 Conn. 304, 307, 362 A.2d 1375 (1975).
Section 8-2, C.G.S.--" . . . the regulations . . . 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 from a zoning commission, planning commission, combined planning and zoning commission, or zoning board of appeals . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values . . ."
When passing upon a proposed special permit, a municipal planning and zoning commission sits in an administrative capacity, rather than in a legislative or quasi-judicial capacity. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1988); Goldberg v. Zoning Commission, 173 Conn. 23, 29, 376 A.2d 385 (1977). The commission has no independent discretion beyond determining whether an application as presented, satisfies standards set forth in the regulations. Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn.App. 533, 537, 738 A.2d 1157 (1999).
In applying the law to the facts of a particular case, a zoning commission is endowed with liberal discretion, and its actions are subject to review by a court only to determine whether the challenged action was unreasonable, arbitrary or illegal. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); Raczkowski v. Zoning Commission, 53 Conn.App. 636, 639, 733 A.2d 862 (1999). A commission has discretion, within proscribed limits, to decide whether a given regulation applies, and the manner in which it applies. Torrington v. Zoning Board Commission, 261 Conn. 759, 770, 806 A.2d 1020 (2002). On factual issues, a court cannot substitute its judgment for that of the municipal land use body. Timber Trails Corporation v. Planning & Zoning Commission, 222 Conn. 380, 401, 610 A.2d 620 (1992).
Conclusions reached by the commission must be upheld, if 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 when the conclusion sought to be drawn is on of fact. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987). The possibility of drawing two inconsistent conclusions does not prevent a decision from being supported by substantial evidence. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993).
Where a municipal land use agency has stated collective reasons for its decision, a court should not go beyond the collective reasons of the agency, but should determine whether any of the reasons given is supported by substantial evidence in the record. Gibbons v. Historic District Commission, 285 Conn. 755, 770-71, 941 A.2d 917 (2008). However, the failure to state reasons is not fatal. When no collective reasons are given in support of a decision, a reviewing court must search the record to determine whether it provides a basis to support the decision reached. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544-45, 600 A.2d 757 (1991); Parks v. Planning & Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979).
THE ZONING COMMISSION FAILED TO STATE COLLECTIVE REASONS FOR ITS DECISION
Success, Inc., posits that the Defendant, Stratford Zoning Commission, gave collective reasons for its approval of the special permit application. It points to the minutes of the November 24, 2015 Administrative Session (ROR 11, p. 3), which state: " Commissioners noted there does not seem to be a past problem with the liquor permit and the petitioner seems serious about doing a good job."
This observation was made prior to a motion to approve being offered by Commissioner Henrick, and was not included in the body of the motion (ROR 11, p. 3).
The principle that a court should confine its review to the reasons given by a zoning agency applies only when the agency has rendered a formal, official, collective statement of reasons for its action. Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). Individual reasons given by certain members of the agency do not amount to a formal, collective statement by the zoning board. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 545. The statements of individual commission members cannot be used to demonstrate the reasons for, or the grounds for, the commission's action. Welch v. Zoning Board of Appeals, 158 Conn. 208, 214, 257 A.2d 795 (1969); Smith-Groh, Inc. v. Planning & Zoning Commission, 78 Conn.App. 216, 226-27, 826 A.2d 249 (2003).
Here, the minutes do not reveal that the Zoning Commission, as a body, stated reasons for its decision. The motion to approve contained no reasons for the action, and neither the number of commissioners mentioned in the minutes, or their identity, can be gleaned from the record. The minutes (ROR 11), do not reveal that individual commission members stated the reasons for their votes, either before or after the vote. Therefore, there is no record from which collective reasons can be inferred. Harris v. Zoning Commission, supra, 421-22.
Because no collective reasons were given by the Zoning Commission, regarding its approval of the special case application, the court is obligated to search the record, in order to determine whether substantial evidence supports the decision reached. West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 514, 636 A.2d 1342 (1994).
ANY DEFECT OR DEFICIENCY IN THE SPECIAL CASE APPLICATION DOES NOT IMPACT THE COMMISSION'S ABILITY TO HEAR AND DECIDE THE APPLICATION
Success, Inc. argues that the special case application submitted by J& R's Pub, LLC, was deficient, in that it did not contain information concerning a liquor location required by the Town of Stratford, including a Class A-2 survey of the property (ROR 1). It maintains that the failure to submit the information along with the application requires the Zoning Commission to reject the application as incomplete.
This claim is not well taken.
At no time, either before or during the public hearing process, was the sufficiency of the special case application questioned, either by the Zoning Commission on its own motion, or by the solitary opponent of the proposal. No staff member who commented on the proposal requested additional information, or argued that the failure to provide information on the check list (Ex. 1) was a material deficiency in the application (ROR 8).
Had this issue been raised at or before the hearing, the Commission could have decided to refuse to hear the special case proposal, or required that the application be supplemented with additional data. Ball v. Town Plan & Zoning Commission, 146 Conn. 397, 402, 151 A.2d 327 (1959). As the plaintiff conceded at trial, any failure to comply with the check list did not destroy the jurisdiction of the Zoning Commission to act on the proposal. Failure to raise an issue in a timely fashion, constitutes a waiver of the right to attack the application after it has been heard and decided. Chesson v. Zoning Commission, 157 Conn. 520, 527, 254 A.2d 864 (1969).
Furthermore, no creditable claim of prejudice can be advanced. Shailer v. Planning & Zoning Commission, 26 Conn.App. 17, 23, 596 A.2d 1336 (1991). The Commission, in the exercise of its discretion, was justified in proceeding to hear and decide the special case application. Woodburn v. Conservation Commission, 37 Conn.App. 166, 179, 655 A.2d 764 (1995).
SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTS THE APPROVAL OF THE SPECIAL CASE APPLICATION
J& R's Pub LLC, seeks to re-establish a restaurant with a liquor permit, at 590 Success 12 Avenue, Stratford. The proposed use is a permitted use, in a Retail Commercial (CA) District (ROR 8). It is subject to the special case procedure, only because of the proposed sale of alcoholic liquor.
Section 15.1 requires the Commission to consider various criteria, as outlined by Gary Lorentson, in his memo of October 30, 2015 (ROR 8). Lorentson reviewed the " general language" in Section 15.1, including the portion of the Regulation which requires the Commission to consider the proximity of the proposed location to " churches, schools, libraries, public playgrounds or other places frequented by minors."
The review of the application (ROR 8) noted that the location is in a commercial building, and that " there are no schools, churches or parks nearby." The issue of schools, parks, churches and playgrounds was also raised during the public hearing, prompting the applicant to explain: " there's nothing there." (ROR 14, p. 2.)
The Zoning Commission had ample evidence before it, to enable a full consideration of the criteria set forth in Section 15.1.
It was explained to the Commission that a restaurant was located next door, and that another liquor outlet was present at 520 Success Avenue, the property owned by the Plaintiff, Success, Inc. The Commission had information concerning other liquor outlets in the immediate neighborhood, and applied the 15.1 general language in light of that information (ROR 8, ROR 14, p. 3).
It cannot be said that the Zoning Commission abused its discretion, when it approved the special case application, which its proponent, Richard Riordan, claimed would re-establish a " neighborhood bar and restaurant" with a proven track record (ROR 14, p. 1).
The Commission was aware of the prior use of the property, and the location of Success Village, a residential complex in the immediate area. Security concerns were also addressed, and the Planning Administrator opined: " there is ample parking in front of and behind the restaurant" (ROR 8).
Nicholas Owen, in an attempt to torpedo the special case application, attempted to make a public safety argument, by presenting nine (9) police reports, some of which did not involve the property in question, or The Village Pub. The spokesman for Success, Inc., in his zeal to undermine the special case application, has succeeded only in reinforcing the claims made by the applicant.
Those incidents involving The Village Pub can best be described as minor, and manageable. The one incident in December of 2009, involved an intoxicated individual who was taken to the hospital. Patrons at The Village Pub reported to police that the man was already intoxicated when he arrived at the restaurant.
A vandalism complaint involved a broken window at 570 Success Avenue, and one report involved a man sleeping on the sidewalk in front of 520 Success Avenue (ROR 9). Two complaints dealing with loud music were dealt with expeditiously.
Nor did the members of the Zoning Commission seem disturbed or impressed, when Owen raised the spectre of residents of the City of Bridgeport frequenting the establishment. The Commission, in its discretion and using its good judgment, failed to be swayed by that appeal.
The record provides overwhelming support for the approval of the special case application, and easily exceeds the threshold of substantial evidence.
The decision of the Stratford Zoning Commission, unanimously approving the special case application, are re-establishing a permitted use at 590 Success Avenue, is unambiguously supported by the record compiled at the public hearing (ROR 14).
CONCLUSION
The Plaintiff's appeal is DISMISSED.