Frank's Package Store v. Planning & Zoning Commission (2011)

MEMORANDUM OF DECISION

I

Procedural History

The plaintiffs in this land use appeal, Frank's Package Store and Shoreline Wine Merchant, Inc., are liquor stores in the town of Guilford.   They appeal a decision of the zoning and planning commission of the town of Guilford that granted a special permit to the applicant, 450 Boston Post Road Associates, LLC. On October 20, 2009, the applicant applied to the commission for a special permit for the retail sale of alcoholic beverages on the subject property, 450 Boston Post Road. On November 23, 2009, the commission held a public hearing on the application.

On October 21, 2009, the commission voted to approve the site plan for the project.  (R.7.) On November 29, 2009, the commission voted to approve a special permit for the sale of alcoholic beverages.  (R.17, p.2.) On December 3, 2009, the commission published notice of its issuance of the special permit.  (R.19.)

On December 28, 2009, the plaintiffs appealed the commission's decision to this court.   On May 24, 2010, the plaintiffs filed their trial memorandum.   On June 12, 2010, the applicant filed its trial memorandum.   On June 24, 2010, the commission filed its trial memorandum.   The court heard a trial on the merits on April 15, 2011.

II

Jurisdiction

General Statutes § 8–8 regulates an appeal from a zoning board of appeals to the Superior Court.   The parties must comply strictly with any provision governing a statutory right of appeal.  Bridgeport Bowl–O–Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).

A

Aggrievement

“It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved ․ Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399–400, 920 A.2d 1000 (2007).   A plaintiff may prove aggrievement by testimony at the time of trial;  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991);  or “by the production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).

“Two broad yet distinct categories of aggrievement exist, classical and statutory ․ Classical aggrievement requires a two part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share ․ Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest ․” (Internal quotation marks omitted.)  Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).

In this case, the plaintiffs pleaded in their complaint that they were taxpayers in the town of Guilford.  “[B]ecause public policy concerns about the adverse effects of liquor sales and consumption cause municipalities to devote numerous resources to monitor and police those activities, an action of a zoning board that involves the sale or use of liquor or that affects traffic in connection with the sale or use of liquor is presumed to have a negative effect on the pecuniary interest of each taxpayer in the community.   A taxpayer claiming aggrievement by such an action, therefore, is presumed to have successfully demonstrated a specific personal and legal interest in the subject matter of the zoning board's action, and such interest is presumed to have been specially and injuriously affected by that action.   Thus, a taxpayer claiming such aggrievement automatically satisfies the classical aggrievement test.”   Alliance Energy Corp. v. Planning & Zoning Board, 262 Conn. 393, 403, 815 A.2d 105 (2003).   At trial, the defendants stipulated that the plaintiffs are taxpayers in the town of Guilford.   It is therefore submitted that the plaintiffs are classically aggrieved.

B

Timeliness and Service of Process

Pursuant to General Statutes § 8–8(b), an “appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes ․

General Statutes § 8–8(f) provides in relevant part:  “Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows ․ (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52–57 ․” General Statutes § 52–57(b) provides:  “Process in civil actions against the following-described classes of defendants shall be served as follows ․ (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency ․

In this case, the commission published notice of its decision on December 3, 2009.  (R.19.) The plaintiff served process on the commission on December 11, 2009.   The plaintiff served process on the applicant on December 17, 2009.   It is submitted that this appeal is timely because it was commenced within fifteen days from the date that notice of the decision was published.

III

Scope of Review

“[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal.”  (Internal quotation marks omitted.)   Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).  “In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] 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 [commission] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached ․ If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission ․ The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”   (Citations omitted;  internal quotation marks omitted.)  Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).

“The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal ․ 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 [board] was required to apply under the zoning regulations ․ It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  (Citations omitted;  internal quotation marks omitted.)  R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).

IV

Discussion

“General Statutes § 8–2(a) provides in relevant part that local zoning regulations may provide that certain ․ uses of land are permitted only after obtaining a special permit or special exception ․ subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values ․ The terms special permit and special exception are interchangeable ․ A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations ․ The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values ․ An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district ․ When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity ․ [Its] function ․ [is] 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.”  (Internal quotation marks omitted.)  Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn.App. 17, 20–21, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).

A

Statutory Interpretation

The plaintiffs challenge the commission's grant of a special permit to the applicant.   They argue that the Guilford zoning regulations do not permit the commission to grant a special permit for a package store sited within five hundred feet of a school.   A day care center is located within five hundred feet of the subject property.   Under the regulation, a day care center is considered a school.   The name of the institution is not controlling, but rather the use of the property is.   Though the day care center in question may not be named a “school,” it still serves an educational purpose.   Furthermore, the concern expressed in the zoning ordinance, and by the Supreme Court indicate that the intent of the regulation was to protect children from the dangers of alcohol.   All day care centers in the state of Connecticut are required to have a plan for certain educational activities.   Other sections of the regulations refer to schools as including day care facilities, and that the commission therefore intended the word “school” to include day care facilities.

The defendants counter that the day care center in question is not a school.   It therefore does not affect the grant of the special permit to the applicant.   The dictionary definition of the term “school” does not include day care centers.   Other sections of the zoning regulations reference schools and day care centers as separate entities.   As a matter of policy, the plaintiffs' concerns over the danger of locating a package store near a day care center are misplaced.

“Because the interpretation of the regulations presents a question of law, our review is plenary ․ Additionally, zoning 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 ․ The process of statutory interpretation involves the determination of the meaning of the statutory language [or ․ the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply ․

“[O]rdinarily, this court affords deference to the construction of a [regulation] applied by the administrative agency empowered by law to carry out the [regulation's] purposes ․ [A]n agency's factual and discretionary determinations are to be accorded considerable weight ․ Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny ․ the agency is not entitled to special deference ․ [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law ․

“Finally, we note that a court that is faced with two equally plausible interpretations of regulatory language ․ properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation ․ Thus, in construing regulations, our function is to determine the expressed legislative intent ․ Moreover ․ the words employed therein are to be given their commonly approved meaning.”  Kraiza v. Planning & Zoning Commission, 121 Conn.App. 478, 483–84, 997 A.2d 583, cert. granted, 298 Conn. 904, 3 A.3d 70 (2010).

The regulation in question is § 273–86 of the Guilford Zoning Regulations.   (R.6.) That regulation provides:  “Retail sale of alcoholic beverages.  (A) Purpose.   The purpose of this section is the establishment of reasonable control over the retail sale of alcoholic beverages in the [t]own of Guilford so as to protect the public health and welfare and prevent adverse effects on public and semipublic properties.  (B) Distance standards.   No building or land shall be used and no building shall be erected or altered that is intended, arranged or designed to be used for a retail package store if any part of such building or land is situated:  (1) Within a radius of 1,500 feet of any other building or land used for a retail package store.  (2) Within a radius of 500 feet of any part of a lot used or approved by the Commission for a college, school, convent, church, hospital, library or any camp, barracks or training field of the armed forces.  (C) Special permits.   All requests for a retail package store shall be made by special permit in accordance with and under the standard established in Article X, Special Permit Requirements and under the procedures established by § 273–99, Special permit procedure, of these regulations, as amended.   Request for and approval of a special permit by the Commission will be required before applying to the Liquor Control Commission for a permit, but will in no way be assumed to abrogate, [a]ffect or imply any action by said Liquor Control Commission.  (D) Definitions.  “Retail package store” is defined as a store for the sale for use off the premises of beer, wine and liquors, which store has such products as its majority stock for sale.   It does not include restaurants, taverns, stores engaged chiefly in the sale of groceries or drug stores.”

The parties do not contest whether the applicant's proposed store is a “retail package store” under the regulation.   They also do not contest that Cradles to Crayons is less than five hundred feet away from the subject property.   See (Data Accumulation Plan Properties in the Vicinity of 450 Boston Post Road, R.16, p.4.) The plaintiffs and the defendants disagree about whether the day care center, Cradles to Crayons, is a “school” under § 273–86(B)(2).   That determination requires the court to interpret the regulation.

Section 1–2z provides:  “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.”  “If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.”  (Internal quotation marks omitted.)  Levine v. Sterling, 300 Conn. 521, 532 (2011).

Here, the regulation does not define the term “school.”   The court must therefore consider the common understanding of the term as expressed in a dictionary.   The dictionary definition of the term provides, in relevant part, that a school is “an organization that provides instruction:  as ․ an institution for the teaching of children.”   Merriam–Webster's Collegiate Dictionary (10th Ed.1998).   Conversely, a day care is defined as a “program, facility, or organization” offering “supervision of and care for children ․ that is provided during the day.”  Id. The terms are mutually exclusive.   Under the dictionary definitions, an organization whose purpose is “instruction” is a school, but an organization whose purpose is “supervision” is a day care.   There is overlap in those definitions:  schools may provide supervision and day cares may provide instruction.   That overlap, however, does not mean the terms are synonymous.   An institution primarily dedicated to supervising children would properly be considered a day care, while an institution primarily dedicated to instructing children would properly be considered a school.   The plaintiff's contention that the regulation's use of the term “school” should be read to include a day care is against the common understanding of those terms.

Moreover, the use of the term “school” in other sections of the regulations indicate that the drafters of the regulation intended that schools and day care centers be considered separate entities.   For example, Table 2A of the regulations lists uses and whether those uses are permitted in various residential districts.   Line 22 of table 2A indicates that “[s]chools, colleges and universities, including schools for instruction in music, art, dance, drama, physical education, vocational training and instruction related to the handicapped” are permitted in all residential zones with a special permit.   Line 5 of table 2A, added in 2003, separately indicates that “[a]dult and child day-care facilities” are also permitted in all residential zones with a special permit.   If the term “schools,” as used in the regulations, included day cares, there would have been no reason to insert line 5 to separately allow day cares because line 22 already allowed schools.

The plaintiffs cite § 273–20 as an example of a section in which the regulations refer to schools as including day care facilities.   In that section, table 2B provides a list of permitted uses in Commercial, Marine Recreation and Industrial Districts.   In that table, Line 30 indicates that “Schools, colleges, and universities, including day-care facilities” are permitted as of right in C-l, C–2, C–3, and C–4 districts.   The plaintiffs argue that the drafters' inclusion of “day-care facilities” in the same sentence as “schools, colleges, and universities” indicates the drafters' intent to treat day cares and schools synonymously.

In fact, the opposite is true.   If the commission considered schools and day cares to be the same, there would be no reason to specify “including day-care facilities” in line 30 of table 2B. A reference to schools alone would suffice.   If the drafters intended that “schools” and “day-care facilities” be considered the same thing, then the inclusion of the term “including day-care facilities” in the ordinance would be surplusage, and the court should not interpret the regulation so as to render a term superfluous.  Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 197, 438 A.2d 1178 (1981).

It is clear from the plan language of the regulation, and the use of the term “school” in other sections of the regulations, that the term “school” is not to be read to include day cares.   Since the meaning of the regulation is clear from the plain text of the regulation itself, and is bolstered by the regulation's relationship to other regulations, the court need not address the plaintiffs' arguments regarding the public policy purpose served by the regulation's prohibition on siting package stores within five hundred feet of schools.

B

Substantial Evidence

Since the court has determined that, as a matter of law, the term “school,” as used in § 273–86, does not include day cares, the only remaining issue is whether the commission's decision to grant a special permit under that section to the applicant is supported by substantial evidence in the record.

In granting the special permit application of the applicant, the commission made a factual determination that the subject property was not within five hundred feet of a school.   The plaintiffs argue that the day care, Cradles to Crayons, should be considered a school as a matter of fact.   Notwithstanding this court's legal determination that the regulation's use of the word “school” does not include a day care, the court must also consider the question of whether the commission properly found that the Cradles to Crayons facility is not a school.

The plaintiffs argue that the commission made an improper factual determination.   They argue:  “The ultimate question therefor[e] is could the [commission] reasonably construe that Cradles to Crayons, a child day care center, is a school within the meaning of that term with regard to the ordinance in question.”   The plaintiffs argue that the facility should be characterized as a school because a regulation of the [c]ommissioner of [p]ublic [h]ealth, a regulation that affects Cradles to Crayons, requires that the facility meet the “health, educational, and social needs of children.”   They also argue that many other day care centers in Guilford include the word “school” in their names, notwithstanding the fact that the facility in question does not.

The defendants counter that the facility in question is regulated by the commissioner of public health, not the commissioner of education, who oversees schools.   The defendants also argue that the incidental educational function served by a day care does not mean that it is a school.   By that logic, they argue, any number of other facilities, including package stores themselves, could be characterized as schools.

There is substantial evidence in the record to support the Commission's finding that the facility in question, Cradles to Crayons, is not a school within the meaning of the Guildford zoning regulations.   The plaintiffs had submitted a letter to the board, prior to the hearing, indicating that the Cradles to Crayons facility was a “day-care facility.”  (R.16, p.1.) Furthermore, the Commission heard testimony from Guilford's zoning enforcement officer, Regina Reid, that the facility is a day care center and that it is not a school.  (R.21, 3:27.)   The Commission also considered the special permit granted to Cradles to Crayons in 1998.  (R.14, pp. 1–2;  R.21, 4:1–3.)   That permit states:  “Description of Premises:  Day Care Center.”  (R.14, p.2.) Taken together, and with no evidence presented to the contrary, it is submitted that there was substantial evidence in the record to support the Commission's finding that the Cradles to Crayons facility was not a school under the meaning of that term discussed above.

V

Conclusion

The court affirms the decision of the Commission to grant a special permit to the applicant.   The ordinary usage of the term “school” does not include day care centers.   The use of the terms “school” and “day care center” elsewhere in the regulations indicate that the drafters did not consider them synonymous.   There is substantial evidence in the record to support the Commission's finding that the proposed package store is not sited within five hundred feet of a school.

Woods, J.

Woods, Glenn A., J.