Opinion
No. LLI CV 10 6002537S
August 30, 2011
MEMORANDUM OF DECISION
The issue before the court is whether to uphold the City of Torrington Planning and Zoning Commission's decision to repeal a city regulation. The Court holds that the commission's decision was not unreasonable, arbitrary, illegal or an abuse of discretion and the commission's decision is upheld.
I. PROCEDURAL FACTS
On May 19, 2010, the Torrington Planning and Zoning Commission (commission) published a legal notice in the Waterbury Republican American providing notice of proposed amendments to Torrington's zoning regulations, including repeal of § 5.3 which regulates the separation distance for package stores. A public hearing was held on May 26, 2010, and the proposed repeal of § 5.3 passed and became effective on May 30, 2010.
On June 2, 2010, the plaintiffs, Westside Package Store and MGZ Partnership, applied to the commission for a change of zoning regulation for a re-enactment of § 5.3. The commission held a hearing on the plaintiffs' application on August 25, 2010. The commission did not re-enact that regulation. On June 9, 2010, the plaintiffs filed the present appeal on the ground that the commission's decision to repeal § 5.3 was unreasonable.
An administrative hearing was held before the court on July 27, 2011. Additional facts will be presented as necessary.
II DISCUSSION A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). "[I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 889 A.2d 26 (2006).
Our "Supreme Court has consistently held that taxpayers in zoning appeals involving liquor outlets are automatically aggrieved." Colangelo v. Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 02 087922 (March 5, 2003, DiPentima, J.) ( 34 Conn. L. Rptr. 240) citing Alliance Energy Corp. v. Planing Zoning Board, 262 Conn. 393, 815 A.2d 105 (2003); see Wine Seller Spirits v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV 04 0411900 (March 1, 2006, Owens, J.T.R.) ( 40 Conn. L. Rptr. 814).
The plaintiffs have operated a licensed package store in Torrington for forty years. The plaintiffs argue that they are aggrieved by the actions of the commission because they are taxpayers of the city of Torrington. The defendant does not contest that the plaintiffs are aggrieved. The court finds that the plaintiffs are aggrieved. An aggrieved party may appeal decisions of the planning and zoning commission to the Superior Court pursuant to General Statutes § 8-9.
The plaintiffs also contend that they are aggrieved because the public entrance to their package store is located within 1,500 feet of the public entrance to the package store owned and operated by Paul A. Baudonin when measured along a city accepted right of way.
B Background
On or about October 18, 2009, Paul A. Baudouin applied to the commission for a change of use of property located at 211 High Street, Unit 4 in Torrington, Connecticut, from a retail video store to a wine and liquor retail outlet. Section 5.3.1 of Torrington's planning and zoning regulations regulates the location of liquor stores, requiring that "[t]he public entrance to a package store shall not (a) be within 1,500 feet as measured within a City accepted right of way of the public entrance to any other package store; (b) within 500 feet as measured within a City accepted right of way of any lot used for a place of worship, public or private school, hospital or library . . ." Return of Record (ROR) 1. Baudouin was asked to verify that the Faith Tabernacle Church located at 147 Water Street (church) met the required separating distance of 500 feet. ROR 2. Baudonin presented the commission with a letter from David J. Rode, P.L.S., Compass Engineering Group, indicating that Rode measured the shortest walking distance from the entrance of the video store to the church driveway and found the distance to be 591 feet. ROR 2, 3. In a memorandum to the commission dated November 17, 2009, the city planner, Martin J. Connor, noted that the only liquor store within the 1,500 feet requirement, S S Liquor, had been closed since May 2009, and no longer held a right to occupancy, as indicated by a notarized statement from the property owner. ROR 2. In that memorandum, the city planner recommended approval of Baudouin's application, noting that "[t]he proposal meets the required separating distances . . ." ROR 2.
On November 18, 2009, the commission entertained and granted Baudouin's application at its regularly scheduled meeting. ROR 6. The plaintiffs appealed the commission's decision on the ground that the commission illegally granted Baudouin's application because it failed to adhere to the measurement methodology set forth in § 5.3.1. Westside Package Store v. Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 10 6001242.
Specifically, the plaintiffs argued that the commission should not have permitted Baudonin to measure "the shortest walking distance" rather than conducting a measurement along a city accepted right of way as required by § 5.3.1. According to the plaintiffs, if measured along a city accepted right of way, the public entrance to their package store is within 1,500 feet of the public entrance to Baudouin's package store. Furthermore, Baudouin's package store would be within 500 feet of a place of worship. Therefore, the commission should not have granted Baudouin's application.
While the plaintiffs' appeal was pending in the Superior Court, however, on May 19, 2010, the commission published a legal notice in the Waterbury Republican American providing notice of proposed amendments to Torrington's zoning regulations, including repeal of § 5.3. ROR 7. A public hearing was held on May 26, 2010. ROR 8. The commission found that the proposed repeal of § 5.3 would be consistent with the city's master plan of conservation and development. ROR 9. The proposed repeal of § 5.3 passed and became effective on May 30, 2010. ROR 9, 10. On June 2, 2010, the plaintiffs applied to the commission for a change of zoning regulation for a re-enactment of § 5.3. ROR 11.
On June 8, 2010, the liquor control division of the Connecticut department of consumer protection (DCP) issued a ninety-day provisional permit to Faith Yagar, allowing the operation of the package store at 211 High Street, Unit 4, in Torrington. Various residents of Torrington appealed that decision. Zanderigo v. Department of Consumer Protection, Liquor Control, Superior Court, judicial district of New Britain, Docket Number CV 10 6005550. The only defendant in that case is the DCP.
On August 10, 2010, the plaintiffs' appeal of the commission's decision to grant Baudouin's application was dismissed for lack of subject matter jurisdiction. Westside Package Store v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 10 6001242 (August 10, 2010, Danaher, J.). The court held that because § 5.3 was repealed, the matter originally in controversy was now moot. Id.
The plaintiffs' petition for certification to appeal was denied by the Appellate Court on December 8, 2010.
On August 25, 2010, a public hearing was held on the plaintiffs' application to re-enact § 5.3. ROR 17. The commission did not re-enact the regulation.
C Parties' Arguments
The plaintiffs appeal from the decision of the commission to repeal § 5.3 arguing that the commission's action was at the insistence, and for the benefit, of one applicant, not part of any general or comprehensive plan of development for the city, was illegal and arbitrary, and constituted an accommodation for a single applicant since only one additional package store would be permitted in the city based on the city's population. According to the plaintiffs, there is no evidence in the record that supports the commission's assertion that § 5.3 was repealed to comply with the city's comprehensive plan, nor is there any indication in the record that any events had occurred to trigger a review of the city's comprehensive plan with respect to § 5.3. As such, the plaintiffs contend that the commission's action was unreasonable and illegal because it was done to accommodate Baudonin and was not part of any comprehensive or general plan for the city. The plaintiffs ask that the court hold the commission's recision of § 5.3 to be invalid.
Moreover, the plaintiffs contend that the commission's decision to grant Baudouin's application was improper because the proposed use would violate § 5.3.1. Specifically, the plaintiffs argue that the commission illegally granted the application because Baudouin was permitted to measure the distance to the church by measuring "the shortest walking distance" rather than conducting a measurement along a city accepted right of way as required by § 5.3.1. According to the plaintiffs, if the commission made a legitimate interpretation of § 5.3.1 by permitting the measurement of the distances to be made by calculating the walking distance, then the action of the commission in revoking § 5.3 would not have been necessary. The plaintiffs argue that § 5.3.1 required a specific methodology be used in measuring the distance between the proposed site and the neighboring facilities. According to the plaintiffs, the commission was required to conduct the measurement along the city accepted right of way and it did not have authority to waive this requirement.
The commission, on the other hand, contends that it was acting within its administrative capacity when it interpreted § 5.3.1 and granted Baudouin's application, and that its actions were not unreasonable, arbitrary or illegal. According to the commission, it interpreted "public entrance" in § 5.3.1 "as the doorway allowing the public entrance into the package store." Moreover, the commission interpreted "city accepted right of way" in § 5.3.1 "to be the route that the public travels to access the properties." It is the commission's contention that, when measured such a manner, § 5.3.1 was properly followed and applied. According to the commission, an examination of the city's GIS map illustrated that there were no package stores within 1,500 feet of the proposed location "as the crow flies." Therefore, any walking distance would exceed 1,500 feet. Moreover, if the "public entrance" requirement of § 5.3.1 is interpreted as "public doorway or public entrance into the building," the plaintiffs are 2,640 feet away from the proposed location. The commission argues that it is afforded liberal discretion in interpreting its own regulations and because § 5.3 does not contain a definition of "city accepted right of way" or "public entrance," the commission's interpretation was reasonable.
Furthermore, the commission argues that it was acting within its legislative capacity when it repealed § 5.3 and its actions were reasonable. According to the commission, it determined that § 5.3 was no longer needed by the city, that it had out-lived its usefulness in the distribution of package stores and now served only an anti-competitive purpose, and that it spawned unwanted litigation for the city. The commission contends that the city had met its maximum number of allowed permitted establishments in accordance with General Statutes § 30-14a, that number being fourteen based on the city's population. If any package stores were to close allowing for future opportunity, General Statutes § 30-46 allows the State department of consumer protection the ability to regulate and consider proximity as part of its licensing process. Moreover, the commission was satisfied with its ability to control locations due to the remaining zoning regulations. Furthermore, the commission argues that § 5.3 historically resulted in the city's participation in litigation between package stores, "which had a spirit of anti-competitiveness as opposed to the best interests of the residents of the community."
Therefore, according to the commission, it used its legislative power to amend its regulations to be more fitting with the needs of the community. Moreover, as the State provides protection and oversight of alcohol retailers, the commission was not leaving the city vulnerable to alcohol peddlers. Accordingly, the commission contends that its legislative action was reasonable.
D Repeal of Section 5.3
"As to zoning regulations, it was the intent of the General Assembly to vest in a zoning commission the sole authority to make, amend or repeal regulations." (Internal quotation marks omitted.) VIP of Berlin, LLC v. Berlin, 50 Conn.Sup. 542, 558, 951 A.2d 714 (2007), aff'd, 287 Conn. 142, 951 A.2d 714 (2008); see General Statutes § 8-3.
In repealing § 5.3, the commission was acting in its legislative capacity. "Acting in such legislative capacity, the local [zoning] board is free to amend [or to refuse to amend] its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for [or the undesirability of] a change . . . 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 . . . These well established principles are reflected in the evidentiary rules governing appeals from zoning decisions. Appeals from legislative zoning decisions require a showing that the commission has acted arbitrarily . . . illegally . . . or in abuse of discretion . . . Legislative decisions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record . . . In accordance with these principles, in the appeal from the commission's decision, the commission's only burden before the trial court [is] to show that the record before the [commission] support[ed] the decision reached . . . and that the commission did not act arbitrarily . . . illegally . . . or in abuse of discretion." (Citations omitted; internal quotation marks omitted.) Cottle v. Planning Zoning Commission, CT Page 18345 100 Conn.App. 291, 294-95, 917 A.2d 1030 (2007).
"[I]t is not the function of the court to retry the case. Conclusions reached by the [zoning authority] 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." (Citations omitted; internal quotation marks omitted.) Konigsberg v. Board of Aldermen, 283 Conn. 553, 582, 930 A.2d 1 (2007).
"A local zoning authority acting within its legislative capacity is endowed with the freedom to act or not to act as it deems appropriate to meet the needs and demands of the body politic, as it determines those needs and demands . . . The discretion of a legislative body, because of its constituted role as a formulator of public policy, is much broader than that of an administrative board." (Internal quotation marks omitted.) Cottle v. Planning Zoning Commission, supra, 100 Conn.App. 296-97. "[T]he 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.) Lord Family of Windsor, LLC v. Planning Zoning Commission, 288 Conn. 730, 736, 954 A.2d 831 (2008).
In the present case, a public hearing was held on May 26, 2010, concerning the commission's proposed repeal of § 5.3. ROR 8. At this hearing, Baudouin's attorney, Tom Welch, spoke in favor of the proposal, stating that the "language of the regulation was not being used to promote the moral health of the community, but was being used to restrict competition and restrict business." ROR 8. The chairman of the commission noted that § 5.3 "is virtually the only business that has an anti-competition clause and it makes no sense to keep that regulation." ROR 8. Martin Conner, the city planner, "explained two lawsuits have been filed in recent years citing the regulation regarding the location of package stores. Mr. Conner noted the restrictions that had been placed on restaurants and the serving of alcohol beverages was unfair to new business owners." ROR 8. The commission found that the proposed repeal of § 5.3 would be consistent with the city's master plan of conservation and development. ROR 9. The proposed repeal of § 5.3 passed and became effective on May 30, 2010. ROR 9, 10.
On June 2, 2010, the plaintiffs applied to the commission for a change of zoning regulation for a re-enactment of § 5.3. ROR 11. A public hearing was held on August 25, 2010. ROR 17. At the hearing, the plaintiffs' attorney, Charles Brower, spoke, noting that "many problems caused for churches and schools start when too many liquor outlets are located in close proximity to one another. The previous elimination of [§ 5.3] was requested by an out of town liquor store." ROR 17. Brower also noted that other towns have distance regulations and that the commission "eliminated their ability to stop a liquor store from locating near a school or hospital." ROR 17. Finally, Brower stated that "the initial approval to the package store on High Street did not comply with the distancing requirements." ROR 17.
Welch, Baudonin's attorney, stated that Baudouin's liquor store is currently operating and that the State permits one liquor store per 2,500 people in the city, thereby permitting Torrington to have fourteen liquor stores, which is the number it currently has. ROR 17. Moreover, Welch stated that the department of liquor control has the right to grant a permit as well as to suspend or revoke a liquor permit. ROR 17.
In addition to the attorneys representing the differing interests, many members of the public also attended the hearing and spoke: (1) a special education teacher spoke of the bad influence of alcohol and alcohol sales on children; (2) a priest spoke of his dismay that the 500-foot regulation distance from schools, hospitals and churches was removed, noting his belief that there are enough liquor stores in the city; and (3) several owners of package stores in the city expressed their discontent with the repeal of § 5.3 noting that the 1,500-foot regulation protects small business owners, the change is not good and it was done for only one person, package stores near schools and hospitals will promote underage drinking, and the 500-foot regulation should stay in effect for schools, hospitals and churches. ROR 17.
In response, the commission noted the following: (1) the commission does not determine how many liquor stores are in the city; the State makes that determination and the State has a similar set of guidelines which it can enforce as far as proximity to schools, churches and hospitals; (2) the commission can determine which zones, general business or local business, a liquor store can be located; (3) the State liquor commission makes the final determination concerning licensing of package stores; (4) the city has licenses for fourteen liquor stores, currently has fourteen liquor stores and cannot exceed that number, and the State makes this determination based on population; (5) the commission felt that § 5.3 was "unnecessary" because the city has fourteen liquor stores; and (6) State law preempts the municipal regulations and the city's location requirements have been addressed by State law and "may be unnecessary."
"When a zoning agency, acting in its legislative capacity, has rendered a formal, collective statement of reasons for its action, a court should not reach beyond those stated reasons to search the record for other reasons supporting the commission's decision." STLJ, LLC v. Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 04 4001092 (January 20, 2006, Schuman, J.). In the present case, the record contains evidence sufficient for the commission to conclude, as it did, that a distance requirement for package stores was no longer needed by the city, that it had out-lived its usefulness and now served only an anti-competitive purpose. Thus, the record adequately supports the commission's decision to repeal § 5.3. Therefore, because the commission's action was not unreasonable, arbitrary, illegal or an abuse of discretion, it is held that the commission's decision is upheld.
As to the plaintiffs' argument that the commission improperly interpreted § 5.3.1 when it granted a site location permit to Baudouin, it is unnecessary for the court to re-visit this argument and the court defers to the Honorable John A. Danaher's order dismissing the plaintiffs' earlier action for mootness. Westside Package Store v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 10 6001242 (August 10, 2010, Danaher, J.)