LTD v. Zoning Board of the City of Stamford (2011)

Memorandum of Decision

In this administrative appeal, the plaintiff, East Coast Towing, Ltd., appeals from the decision of the defendant, the zoning board of the city of Stamford (Board), denying the plaintiff's application for a certificate of approval of location (CAL) for a used car dealers' license for premises located at 86 Elmcroft Road in Stamford.   The property at issue is owned by Stamford Forge & Metal Craft and leased to the plaintiff under a lease which has been, and remains, in effect at all relevant times.   The plaintiff proposes to use this property as a base of operations for his towing business.   Such businesses require a license issued by the department of motor vehicles of the state of Connecticut.

As applied to the city of Stamford, General Statutes § 14-54(a) provides:  “Any person who desires to obtain a license for dealing in or repairing motor vehicles in a municipality having a population of no less than twenty thousand shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired from the ․ zoning commission.”

The property at issue is located in the M-G general industrial zone, which apparently allows the plaintiff's proposed use without any requirement of obtaining a special exception or a special permit.¹  In April and July 2009, the plaintiff submitted requests to the Board for a CAL for a used car dealership at the 86 Elmcroft Road property.   The Board did not consider these requests.   Thereafter, on October 15, 2009, the plaintiff filed an application with the Board seeking a CAL for a used car dealership license to permit the storage and repair of vehicles and the storage of tow trucks at 86 Elmcroft Road.

The Board held a public hearing on November 16, 2009, to consider the plaintiff's application.   At the hearing, members of the public opposed the application claiming that the site being leased by the plaintiff was unsuitable for the proposed use.   On December 14, 2009, the Board voted to deny the plaintiff's application.  (ROR, Ex. 30).   Legal Notice of the decision was issued on December 21, 2009.  (ROR, Ex. 31).   Thereafter, the plaintiff filed this appeal pursuant to General Statutes §§ 14-57 ² and 4-183.³

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 (1996).  “Aggrievement is an issue of fact ․ and credibility is for the trier of the facts.”  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703 (2001).   A lessee of the property that is the subject of an application is aggrieved for the purpose of bringing an appeal.   Primerica v. Planning & Zoning Commission, 211 Conn. 85, 94 (1989).   At trial, the plaintiff's president authenticated a copy of the lease of the property by the owner to the plaintiff and testified that the lease remains in effect and that the plaintiff has sole possession of the property.   Accordingly, the court finds the plaintiff to have established aggrievement.

SCOPE OF REVIEW

“When considering the plaintiffs' application for approval of a certificate of location for its motor vehicle repair facility, the zoning board of appeals [acts] as a special agent of the state.”  Vicino v. Zoning Board of Appeals, 28 Conn.App. 500, 504 (1992).   For this reason, “[w]hen receiving, hearing and eventually deciding whether to grant the application, the zoning board of appeals does not act pursuant to either the municipal zoning ordinance or the zoning statutes.”  Id.⁴

Consequently, the court reviews the board's decision in accordance with General Statutes § 4-183(j) because “the trial court's scope of review of the zoning board of appeals' decision is governed by the Uniform Administrative Procedure Act, General Statutes § 4-183(j)(5).”  Id., 505.  “General Statutes § 4-183(j)(5) mandates that the trial court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.   The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ․ clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.   An administrative agency can find that substantial evidence exists if the administrative record affords a substantial basis of fact for which the fact in issue can be reasonably inferred ․ Substantial evidence exists when the evidence is sufficient for a trial court to deny a directed verdict if the trial had been brought before a jury to decide a question of fact.”  (Citation omitted;  internal quotation marks omitted.)  Id., 505-06;  see also New Haven College, Inc. v. Zoning Board of Appeals, 154 Conn. 540, 542-44 (1967).

DISCUSSION

In their briefs and in oral arguments to the court, counsel for the parties relied on the assumption that General Statutes §§ 14-53 and 14-55 were repealed by the legislature via Public Acts 2002, No. 02-70 and Public Acts 2003, No. 03-183, respectively.   This assumption was particularly reasonable with respect to § 14-55 considering the fact that for the last seven years the compilations of the General Statutes published by the state have included the following:  “Sec. 14-55.   Hearing.  Section 14-55 is repealed, effective October 1, 2003.” ⁵

Prior to its purported repeal, § 14-55 had set forth mandatory standards for the municipal authorities to apply when considering an application for a CAL pursuant to § 14-54(a).   Those standards were stated in § 14-55 as follows:  “No such certificate shall be issued until the application has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel.”   Section 14-53 had further stated in relevant part:  “No place of business for the sale of new motor vehicles or used motor vehicles or for repairing shall be established or maintained unless the person establishing or maintaining such place of business has procured from the commissioner a certificate stating that ․ the location of such place of business would not imperil the safety of the public.”

The plaintiff contends that once the Board had determined that the plaintiff's proposed use was one permitted in the M-G general industrial zone, the Board was no longer permitted to consider the standards of the repealed § 14-55, and the Board was required to approve the application for a CAL. The plaintiff points out that, following the repeal of § 14-55, the Board might have amended the zoning regulations to impose special permit or special exception standards on uses formerly subject to the standards of § 14-55.   The plaintiff did not cite any judicial authority supporting its position.

However, the court has found some support for plaintiff's position in a 2006 decision by Judge Corradino.   In commenting on the fact that § 14-55 was ostensibly repealed by the legislature, Judge Corradino stated that “it would seem that in passing on these certificates no operative state-imposed criteria are to be applied but the zoning board merely considers appropriateness of the location under local zoning regulations-i.e, its suitability.   We have the perhaps odd situation where these local zoning boards are posited as agents of the state but do not apply state mandated criteria in deciding to issue certificates of location approval.   So the court does not specifically rely on the language in a case like Vicino [v. Zoning Board of Appeals, supra, 28 Conn.App. 500] which suggest that local boards act as state agents because state criteria are being, in part, utilized to decide whether these certificates should be issued.”   Glenn v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 05 4010376 (March 30, 2006, Corradino, J.) (41 Conn. L. Rptr. 140, 143).

The recitations in the resolution adopted by the Board in denying the plaintiff's application for a CAL included the following:

WHEREAS the Zoning Board has considered the suitability of the proposed use, the size and location of the parcel and buildings, existing and planned residential and commercial uses, traffic and on-street parking conditions, and pedestrian conditions ․

The resolution adopted by the defendant disapproving the plaintiff's application for a CAL made the following findings:

1.  The subject property is already intensively used for a 24/7 tow truck operation with the stated intention to keep ten (10) tow trucks on the property;

2.  David M. Emerson, Executive Director of the Environmental Protection Board, has recommended that a traffic operations and management plan be provided to demonstrate that tow trucks and vehicles will not be staged and queued on the city street.   Mr. Emerson concludes that the use will have a significant impact on the character of the site and surroundings resulting from the need to park tow trucks on call and to move and store cars awaiting release to their owners.

3. Howard J. Weissberg, P.E., Senior Transportation Engineer, Tighe & Bond, has submitted a review of traffic, parking and safety issues and notes that only one parking space is available to support used car inventory, customer parking and tow truck parking.   Mr. Weissberg further reports that due to the size of the lot and building there is limited traffic circulation and the potential for on-street parking and the back out of trucks and vehicles, creating a potential conflict with traffic flow and safety concerns on Elmcroft Road.

4. Significant concerns for safety of neighborhood children and nuisance conditions and diesel fumes from the 24/7 towing and repair operations was expressed by residents and owners of adjacent residential properties, elected officials and representatives of the South End Neighborhood Revitalization Zone.

5. The South End is rapidly becoming more residential in character, with an estimated 4,000 new housing units and major public parks planned immediately north and west of the subject property.

In this resolution, the Board obviously applied the suitability standards of § 14-55 and, perhaps, the public safety standards of § 14-53 to the plaintiff's application.   The Board did not identify any alternative legislative or administrative source for the standards it applied in denying the application.

The Board claims that, notwithstanding the apparent repeal of §§ 14-53 and 14-55, the court must engage in the process of statutory construction to determine the standards that a municipal authority must apply in considering an application pursuant to § 14-54(a).   The defendant invites the court to refer to the legislative history of Public Act 03-184, which ostensibly repealed § 14-55.   The relevant portion of the legislative history consists of comments by certain legislators.   These comments included the following:

REP. STONE:  (9th)

․ the goal here was to streamline the application process where either one commission or another had to deal with the same issues that would be considered as part of a site location approval under Title 14.   That commission could also and would also be the body that would consider a special permit or special exception under local zoning ordinances.   This enables the applicant to, in effect, one stop shop, so to speak, so there's only one commission to deal with, all the same criteria, conditions, and consideration would apply regardless of which commission or board the applicant went to and all the concerns that might come from an application, either concerns of the neighbors, concerns of other business or concerns of the municipality would still be addressed.

(Emphasis added by the Board.)   46 H.R. Proc., Pt. 8, 2003 Sess., p. 2667.⁶

The Board claims that this legislative history “makes it abundantly clear that the Connecticut legislature did not envision ․ [that] the legislature's enactment of P.A. 03-184 [would] deprive municipal land use boards from considering traditional [CAL] criteria ․” The “traditional criteria” that the Board has in mind are the exact criteria that were set forth in §§ 14-53 and 14-55 prior the purported repeal of those statutes.

In support of this contention, the Board relies on Gibson v. Plan Commission, Superior Court, judicial district of New Haven, Docket No. CV 074027997 (October 27, 2008, Silbert, J.) and LTD Realty Associates, LLC v. Planning and Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 08 4034519 (February 22, 2010, Berdon, J.T.R.).   Gibson was an administrative appeal from a hearing held in August 2007, nearly four years after the repeal of §§ 14-53 and 14-55.   In that case, the court found that, contrary to the plaintiff's claims, the property on which the plaintiff wanted to repair automobiles was not an existing non-conforming use.   The court found that there was sufficient evidence in the record to show that the plaintiff's predecessor in title had abandoned his non-conforming use of the property in writing in 2002 prior to conveying it to the plaintiff.   The court found that the defendant's subsequent approval of an application for a CAL filed by the plaintiff's predecessor in title in 2005 did not prevent the defendant from denying the plaintiff's application based on the 2002 abandonment.   The court also noted that the defendant urged an additional grounds on which the plaintiff's appeal might be denied, that of unsuitability.   In addressing this second ground, the court noted that “the record in this case thus contains substantial evidence to support the decision of the NHCPC, acting as the agent of the State under Gen. Stats.  Sec. 14-54 and 14-55 to deny the application for a [certificate of approval.]”

After analyzing Judge Silbert's decision in Gibson, the court finds that, contrary to the Board's claim, the Gibson court did not actually decide that the criteria formerly set forth in § 14-55 would continue to apply despite that statute's apparent repeal.   In addressing its second ground for dismissal of the plaintiff's appeal, the Gibson court relied on New Haven College, Inc. v. Zoning Board of Appeals, supra, 154 Conn. 540, a case decided thirty-six years before the passage of Public Act 03-184.   The Gibson court confirmed its belief that the defendant board was “acting as an agent of the State under Gen. Stats.  Sec. 14-54 and 14-55.”   It is inconceivable that the Gibson court would knowingly approve of an administrative agency's application of standards set forth in a repealed statute without noting that it was taking such an unusual step and explaining a rationale for such an action.   Similarly, an analysis of the short memorandum of decision in LTD Realty Associates, LLC, supra, Superior Court, Docket No. CV 08 4034519, shows that the court in that case gave no consideration to the legitimacy of the standards applied by the commission in denying the plaintiff's application for a CAL.

As noted above, the Board invites the court to consider the legislative history of Public Act 03-184 to determine whether the General Assembly intended the criteria formerly set forth in §§ 14-53 and 14-55 to remain applicable.   The court's interpretation and construction of statutes is governed by General Statutes § 1-2z, which mandates that:  “The meaning of a statute shall, in the first instance be ascertained from 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.”

In this case, following the apparent repeal of §§ 14-53 and 14-55, the court has no text left to consider.   If the court were to accept the Board's invitation to impose the standards formerly set forth in that statute to the plaintiff's application for a CAL, the effect would be to reinstate an apparently repealed statute.   Such an action might well be viewed as an inappropriate usurpation of legislative authority.

However, after extensive research and analysis, this court has concluded that, despite the passage of Public Act 03-184 and the absence of § 14-55 from the last several official compilations of the General Statutes, that statute has not, in fact, been repealed.   The court's analysis supporting this conclusion follows.

Starting in 2002, the General Assembly began changing the long-standing statutory scheme for considering applications for CALs. As of July 1, 2002, § 14-53 was repealed in its entirety.   See Public Act 02-70 § 87.   In 2002, the legislature also slightly modified the wording of § 14-55.   See Public Act 02-70 § 25.

In 2003, the General Assembly made a series of changes to § 14-55.   The first of these, Public Act 03-184 § 10, simply indicates that “Sections 14-55, 14-67k and 14-322 of the general statutes are repealed.”   The effective date of this Public Act is October 1, 2003, and this law was signed by the governor on June 26, 2003.   Despite the fact that it ostensibly repealed § 14-55 under § 10 of Public Act 03-184, the legislature passed two more Public Acts in regard to § 14-55 in 2003.   Public Acts 2003, No. 03-265 § 9 states:  “Section 14-55 of the general statutes is repealed and the following is substituted in lieu thereof ․ In any town, city or borough the local authorities referred to in section 14-54 shall, upon receipt of an application for a certificate of approval referred to in said section, assign the same for hearing within sixty-five days of the receipt of such application.   Notice of the time and place of such hearing shall be published in a newspaper having a general circulation in such town, city or borough at least twice, at intervals of not less than two days, the first not more than fifteen, nor less than ten days, and the last not less than two days before the date of such hearing and sent by certified mail to the applicant not less than fifteen days before the date of such hearing.   All decisions on such certificate of approval shall be rendered within sixty-five days of such hearing.   The applicant may consent to one or more extensions of any period specified in this section, provided the total extension of any such period shall not be for longer than the original period as specified in this section.   The reasons for granting or denying such application shall be stated by the board or official.   Notice of the decision shall be published in a newspaper having a general circulation in such town, city or borough and sent by certified mail to the applicant within fifteen days after such decision has been rendered.   Such applicant shall pay a fee of ten dollars, together with the costs of publication and expenses of such hearing, to the treasurer of such town, city or borough.   No such certificate shall be issued until the application has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel.   In any case in which such approval has been previously granted for any location, the local authority may waive the requirement of a hearing on a subsequent application.   In addition, the local authority may waive the requirement of a hearing on an application wherein the previously approved location of a place of business is to be enlarged to include adjoining or adjacent property.” ⁷  Public Act 03-265 was signed by the governor on July 9, 2003, and the effective date of the law was October 1, 2003.

Accordingly, it appears that the legislature passed two contradictory Public Acts that were scheduled to take effect on the same date.   One of these Public Acts wholly repealed § 14-55 and the other simply added two sentences to the end of the statute.   Furthermore, also on July 9, 2003, the governor signed Public Acts 2003, No. 03-278 § 40, which made the following technical corrections to § 14-55:  “In any town, city or borough, the local authorities referred to in section 14-54 shall, upon receipt of an application for a certificate of approval referred to in said section, assign the same for hearing within sixty-five days of the receipt of such application.   Notice of the time and place of such hearing shall be published in a newspaper having a general circulation in such town, city or borough at least twice, at intervals of not less than two days, the first not more than fifteen [, nor] or less than ten days, and the last not less than two days, before the date of such hearing and sent by certified mail to the applicant not less than fifteen days before the date of such hearing.   All decisions on such certificate of approval shall be rendered within sixty-five days of such hearing.   The applicant may consent to one or more extensions of any period specified in this section, provided the total extension of any such period shall not be for longer than the original period as specified in this section.   The reasons for granting or denying such application shall be stated by the board or official.   Notice of the decision shall be published in a newspaper having a general circulation in such town, city or borough and sent by certified mail to the applicant within fifteen days after such decision has been rendered.   Such applicant shall pay a fee of ten dollars, together with the costs of publication and expenses of such hearing, to the treasurer of such town, city or borough.   No such certificate shall be issued until the application has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel.”   This Public Act took effect immediately upon passage.   It would have made little sense for the legislature to have passed technical corrections to § 14-55 that were to take immediate effect if the General Assembly had simply intended to repeal the statute in whole less than three months later.

As such, the court is left with the confusing situation where the official state statute books indicate that a statute was repealed in whole, whereas a close reading of the applicable Public Acts indicate that it might not have been.   In order to resolve the contradictory language of Public Act 03-184 § 10, which ostensibly repealed the entirety § 14-55, and Public Act 03-265 § 9, which merely added two sentences to the end of § 14-55, the court is guided by General Statutes § 2-30b, which provides:  “(a) When two or more acts passed at the same session of the General Assembly amend the same section of the general statutes, or the same section of a public or special act, and reference to the earlier adopted act is not made in the act passed later, each amendment shall be effective except in the case of irreconcilable conflict, in which case the act which was passed last in the second house of the General Assembly shall be deemed to have repealed the irreconcilable provision contained in the earlier act, except as provided in subsection (b) of this section.”   Our Supreme Court has specifically ruled that § 2-30b applies to all acts that change existing legislation, including Public Acts. State v. Kowalski, 199 Conn. 667, 676 (1986).   Public Act 03-265 § 9 was passed by both houses of the legislature and signed by the governor after Public Act 03-184 § 10.⁸  There is no mention of Public Act 03-184 § 10 in Public Act 03-265 § 9. As one of these Public Acts purports to repeal a statute in whole and the other adds two sentences to an existing version of the statute, it is clear that there is an “irreconcilable conflict” between the two Public Acts, and, as such, the later one repeals the older.

The only exception to this rule is set out by subsection (b) of § 2-30b, which provides:  “In the case of an irreconcilable conflict between an act adopted earlier in the same session and an amendment in the legislative commissioners' revisor's bill to a section of the general statutes or to a section of any public or special act made solely for the purposes of correcting a clerical defect or imperfection such as, but not limited to, a grammatical, spelling or computer or data processing error or mistake as to form, and which amendment does not alter the substance of the section, such amendment shall not be deemed to have repealed the irreconcilable provision in the earlier act, and the conflicting provision in the legislative commissioners' revisor's bill shall not be effective.”   The court finds that Public Acts 03-265 § 9 makes more than a simple technical correction to § 14-55 because it adds two sentences authorizing the waiver of a hearing requirement in some situations.   Consequently, subsection (b) of § 2-30b is not applicable.

This conclusion that § 14-55 was not repealed presents potentially troubling consequences.   It is manifestly reasonable for attorneys and the public at large to rely on the representations found in the official blue statute books published by the Legislative Commissioners' Office and to accept, without question, that they accurately reflect the laws of this state.   Nevertheless, the Appellate Court has recently held that compilations of public acts published by the Legislative Commissioners' Office do not constitute the actual law of this state.  Figueroa v. Commissioner of Correction, 123 Conn.App. 862 (2010), cert. denied, 292 Conn. 926 (2011).   In that case, a prisoner convicted of murder applied for a writ of habeas corpus claiming that the statute under which he was convicted was enacted in violation of Article Third, § 1, of the constitution of the state of Connecticut.⁹  On appeal from the dismissal of the writ, the issue presented was whether it was unconstitutional that the constitutionally mandated enactment clause was omitted from the compilations of the Public Acts published by the Legislative Commissioners' Office.¹⁰  The Appellate Court determined that the deletion of the enactment clause from the published public acts did not pose a constitutional problem.   The court states:  “the compilations of the public acts are not published on the day a law effective on passage is approved by both houses and signed by the governor, allowed to become law without signature of the governor or repassed by a two-thirds majority of the legislature following a gubernatorial veto.   Our point is that it is not the publication of these acts in the Public Acts compilations that makes them effective against members of the public, but their lawful passage by the General Assembly.”   Id., 870.

The court further noted that “the original copies of the pertinent public acts on file with the secretary of the state's office contained the enactment clause in full.   A member of the public encountering the published public acts in question here and desiring confirmation that the publication reflected a duly enacted law of the General Assembly would therefore be directed by the prefaces to these original copies, where such confirmation would be evident.”  Id., 871.   This decision makes it clear that the official statute books are not the law per se.   The only “true” law is that which is passed by the General Assembly and either approved by the governor or passed over the governor's veto.

Under these circumstances, the court considers it appropriate for it to conclude, after construing the conflicting public acts, that § 14-55 was actually not repealed in whole and that the statute remains in effect reading as follows:  “In any town, city or borough the local authorities referred to in section 14-54 shall, upon receipt of an application for a certificate of approval referred to in said section, assign the same for hearing within sixty-five days of the receipt of such application.   Notice of the time and place of such hearing shall be published in a newspaper having a general circulation in such town, city or borough at least twice, at intervals of not less than two days, the first not more than fifteen, nor less than ten days, and the last not less than two days before the date of such hearing and sent by certified mail to the applicant not less than fifteen days before the date of such hearing.   All decisions on such certificate of approval shall be rendered within sixty-five days of such hearing.   The applicant may consent to one or more extensions of any period specified in this section, provided the total extension of any such period shall not be for longer than the original period as specified in this section.   The reasons for granting or denying such application shall be stated by the board or official.   Notice of the decision shall be published in a newspaper having a general circulation in such town, city or borough and sent by certified mail to the applicant within fifteen days after such decision has been rendered.   Such applicant shall pay a fee of ten dollars, together with the costs of publication and expenses of such hearing, to the treasurer of such town, city or borough.   No such certificate shall be issued until the application has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel.   In any case in which such approval has been previously granted for any location, the local authority may waive the requirement of a hearing on a subsequent application.   In addition, the local authority may waive the requirement of a hearing on an application wherein the previously approved location of a place of business is to be enlarged to include adjoining or adjacent property.”

In light of the court's finding that § 14-55 remains in effect, the arguments raised in the plaintiff's brief are moot.   Those arguments were limited to the claim that the Board improperly imposed the standards of repealed statutes to the plaintiff's application for a CAL. Given the continued existence of § 14-55, the Board was required to hold a public hearing on the plaintiff's CAL application in order to determine whether the plaintiff's tow truck business would be suitable for the neighborhood.   The allegations of the plaintiff's complaint ¹¹ do not include claims that the record does not contain substantial evidence supporting the reasons set forth in the Board's decision rejecting the plaintiff's application.

“General Statutes § 4-183(j)(5) mandates that the trial court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.   The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusion, or decisions are ․ clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.   An administrative agency can find that substantial evidence exists if the administrative record affords a substantial basis of fact for which the fact in issue can be reasonably inferred ․ Substantial evidence exists when the evidence is sufficient for a trial court to deny a directed verdict if the trial had been brought before a jury to decide a question of fact.”  (Internal quotation marks omitted.)   Vicino v. Zoning Board of Appeals, supra, 28 Conn.App. 505.   Based on this standard of review, the court finds it appropriate to determine whether the reasons given by the Board for rejecting the plaintiff's CAL application are supported by substantial evidence in the record.

As previously noted, the reasons stated by the Board for denying the plaintiff's application relate to the suitability and safety of the plaintiff's proposed location.   The public safety standards, formerly set forth in § 14-53, cannot be applied directly to the plaintiff's application.   The only standards which the Board could properly consider were the suitability standards of § 14-55.   However, those standards expressly imply the suitability of the proposed site from a safety view point.¹²  Accordingly, the court finds that it was appropriate for the Board to deny the plaintiff's application on the grounds set forth in the resolution adopted by the Board.

The court has examined the record and determines that there is substantial evidence to support the reasons stated by the Board for its denial of the plaintiff's application.¹³  Based on the foregoing, the plaintiff's appeal is dismissed.

David R. Tobin, J.

FOOTNOTES

FN1. The zoning regulations of the city of Stamford were not included as an exhibit to the return of record.   However, the Board does not contradict the plaintiff's claims of zoning compliance..  FN1. The zoning regulations of the city of Stamford were not included as an exhibit to the return of record.   However, the Board does not contradict the plaintiff's claims of zoning compliance.

FN2. General Statutes § 14-57 provides:  “Any person aggrieved by the performance of any act provided for in this subpart (D) by such local authority may take an appeal therefrom to the superior court for the judicial district within which such town or city is situated, or in accordance with the provisions of section 4-183.   Any such appeal shall be privileged.”.  FN2. General Statutes § 14-57 provides:  “Any person aggrieved by the performance of any act provided for in this subpart (D) by such local authority may take an appeal therefrom to the superior court for the judicial district within which such town or city is situated, or in accordance with the provisions of section 4-183.   Any such appeal shall be privileged.”

FN3. The plaintiff initially claimed that its appeal was also taken pursuant to General Statutes § 8-8, but the plaintiff now agrees that the Board was acting solely as a special agent of the department of motor vehicles when considering its application and not in any zoning capacity..  FN3. The plaintiff initially claimed that its appeal was also taken pursuant to General Statutes § 8-8, but the plaintiff now agrees that the Board was acting solely as a special agent of the department of motor vehicles when considering its application and not in any zoning capacity.

FN4. At the time of the Appellate court's decision in Vincino, CAL applications were heard by a municipality's zoning board of appeals.   The law has since been changed such that CAL applications in municipalities with populations of 20,000 or more are now brought before the zoning commission..  FN4. At the time of the Appellate court's decision in Vincino, CAL applications were heard by a municipality's zoning board of appeals.   The law has since been changed such that CAL applications in municipalities with populations of 20,000 or more are now brought before the zoning commission.

FN5. Pursuant to General Statutes § 2-56(g), the Legislative Commissioners' Office is charged with compiling and publishing the official state statute books..  FN5. Pursuant to General Statutes § 2-56(g), the Legislative Commissioners' Office is charged with compiling and publishing the official state statute books.

FN6. For reasons set forth herein, the court does not deem it appropriate to consider the legislative history of Public Act 03-184.   Nevertheless, the court notes that nowhere in Representative Stone's comments is it suggested that the “suitability” and “public safety” standards required under §§ 14-53 and 14-55 would continue to apply if they were not included in local special permit-special exception criteria under local zoning regulations..  FN6. For reasons set forth herein, the court does not deem it appropriate to consider the legislative history of Public Act 03-184.   Nevertheless, the court notes that nowhere in Representative Stone's comments is it suggested that the “suitability” and “public safety” standards required under §§ 14-53 and 14-55 would continue to apply if they were not included in local special permit-special exception criteria under local zoning regulations.

FN7. The underlined sentences indicate the portions that were added to the 2002 version of § 14-55..  FN7. The underlined sentences indicate the portions that were added to the 2002 version of § 14-55.

FN8. Public Act 03-265 § 9 was passed by both houses of the legislature on June 4, 2003, and signed by the governor on July 9, 2003.   Public Act 03-184 § 10 was passed by the House of Representatives on May 13, 2003, and the Senate on June 2, 2003.   The governor signed it into law on June 26, 2003..  FN8. Public Act 03-265 § 9 was passed by both houses of the legislature on June 4, 2003, and signed by the governor on July 9, 2003.   Public Act 03-184 § 10 was passed by the House of Representatives on May 13, 2003, and the Senate on June 2, 2003.   The governor signed it into law on June 26, 2003.

FN9. Article Third, § 1, of the constitution of the state of Connecticut provides:  “The legislative power of the state shall be vested in two distinct houses or branches;  the one to be styled the senate, the other the house of representatives, and both together the general assembly.   The style of their laws shall be:  Be it enacted by the Senate and House of Representatives in General Assembly convened.”.  FN9. Article Third, § 1, of the constitution of the state of Connecticut provides:  “The legislative power of the state shall be vested in two distinct houses or branches;  the one to be styled the senate, the other the house of representatives, and both together the general assembly.   The style of their laws shall be:  Be it enacted by the Senate and House of Representatives in General Assembly convened.”

FN10. General Statutes § 2-58 provides the authority for the Legislative Commissioners' Office to publish compilations of Public Acts passed by the legislature..  FN10. General Statutes § 2-58 provides the authority for the Legislative Commissioners' Office to publish compilations of Public Acts passed by the legislature.

FN11. Paragraph twenty-three of the plaintiff's complaint alleges that:  “The Defendant Zoning Board acted illegally, arbitrarily and in abuse of its discretion in denying the Plaintiff's application for the reasons that:i.  The Defendant Zoning Board had no authority to require that the Plaintiff file a formal application requesting location approval for its intended use.ii. The Defendant Zoning Board had no authority to require that the Plaintiff submit to a public hearing in considering Plaintiff's request for location approval.iii. The proposed use of the Plaintiff is a permitted ‘as of right’ use in the M-G Zone as defined in the Zoning Regulations.iv. The Defendant Zoning Board has neither the authority nor the discretion to deny the Plaintiff's request for location approval as the Premises is zoned M-G and, as such allows the Plaintiff's use ‘as of right’ as defined in the Stamford Zoning Regulations..  FN11. Paragraph twenty-three of the plaintiff's complaint alleges that:  “The Defendant Zoning Board acted illegally, arbitrarily and in abuse of its discretion in denying the Plaintiff's application for the reasons that:i.  The Defendant Zoning Board had no authority to require that the Plaintiff file a formal application requesting location approval for its intended use.ii. The Defendant Zoning Board had no authority to require that the Plaintiff submit to a public hearing in considering Plaintiff's request for location approval.iii. The proposed use of the Plaintiff is a permitted ‘as of right’ use in the M-G Zone as defined in the Zoning Regulations.iv. The Defendant Zoning Board has neither the authority nor the discretion to deny the Plaintiff's request for location approval as the Premises is zoned M-G and, as such allows the Plaintiff's use ‘as of right’ as defined in the Stamford Zoning Regulations.

FN12. “No such certificate shall be issued until the application has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel.”.  FN12. “No such certificate shall be issued until the application has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel.”

FN13. See General Statutes § 4-183(j)(5) (the trial court shall affirm an agency's decision unless the agency's findings are “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record”);  accord, Mohican Valley Concrete Corp. v. Zoning Board of Appeals, 75 Conn.App. 45, 60 (2003)..  FN13. See General Statutes § 4-183(j)(5) (the trial court shall affirm an agency's decision unless the agency's findings are “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record”);  accord, Mohican Valley Concrete Corp. v. Zoning Board of Appeals, 75 Conn.App. 45, 60 (2003).

Tobin, David R., J.