ITM v. Planning and Zoning Commission of the Town of Rocky Hill (2011)

MEMORANDUM OF DECISION

The plaintiff, ITM Retail Corporation (ITM), brings this appeal ¹ from a final decision of the defendant planning and zoning commission of the town of Rocky Hill (the commission).   The commission majority voted at a meeting of September 15, 2010 to deny an application by ITM for a special permit to sell beer under a grocery beer liquor permit.

The record shows as follows:  On June 30, 2010, ITM applied for a special permit seeking to sell beer at a convenience store located at 357 Cromwell Avenue, Rocky Hill. (Return of Record, ROR, Item 4.) The application alleged that the special permit criteria of Zoning Regulations § 8.3.7 had been satisfied as the granting of the special permit would not affect traffic, did not require exterior improvements, meant the addition of only one refrigerated cooler to the interior of the store, did not impact exterior lighting, and complied with the plan of conservation and development in a commercial zone.   (Id.)

Subsequently, the town planner received responses from the town engineering department, health department, police department, and building department.   (ROR, Items 9–12.)   None of these town agencies had any negative comments on the application.²  The application was placed on the agenda of the commission for a public hearing.

The relevant zoning regulations regarding the sale of beer under the requested permit are as follows.   By § 7.6.2, a grocery store beer permit requires a special permit which “shall not be issued if in the opinion of the Commission any one of the following conditions exists:  A. the sale of alcoholic beverages could have a detrimental effect on existing land uses in the area;  B. the applicant shall demonstrate that the number of existing and similar outlets in the area of the proposed new outlet appear sufficient to satisfy the demands of the general public;  or C. the applicant did not conclusively demonstrate how he proposes to insure the protection of the general health, safety, and welfare of the people in the community.”

The special permit regulations provide in part as follows.   By § 8.3.2:  “In evaluating a Special Permit application, the Commission shall take into consideration the health, safety, and welfare of the public, in general, and the immediate neighborhood in particular, and shall prescribe reasonable conditions and safeguards to insure the accomplishment of the following objectives.   A. Harmony with Development:  That the proposed use shall be of such location, size, and character that, in general, it will be in harmony with the appropriate and orderly development of the district in which it is proposed to be situated and shall not tend to depreciate the value of property in the neighborhood and shall not be detrimental to the orderly development of adjacent properties in accordance with zoning classifications of such properties ․ C. Conformity to Requirements:  Unless otherwise specified, a Special Permit use shall conform to all requirements of the district in which it is located ․”

In addition, by § 8.3.6. C., “Before the Commission approves a Special Permit Application, it shall determine that the application:  1. is in conformance with the applicable provisions of these Regulations, 2. has, in the sole discretion of the Commission, satisfied the Special Permit criteria in Section 8.3.7, and 3. is in harmony with the purposes and intent of these Regulations and the currently adopted Plan of Conservation and Development.”

Section 8.3.7 lists the special permit criteria.   These include as applicable to this permit application:  A. Suitable Location for Use, B. Location of streets, such that the proposed use is in harmony with orderly development of the district, C. Appropriate improvements, including keeping the development attractive and showing a concern for lighting, D. Transportation conditions, such as unsafe street traffic or parking hazards, I. Adequate Maintenance, and K. Facilitation of the Plan of Conservation and Development.

On August 18, 2010, the public hearing commenced.   ITM's attorney stated that the proposal to sell beer at the convenience store was in harmony with the area as it was commercially zoned.   Additionally, counsel alleged that the location was suitable, it was a permitted use, and did not require increased intensity of use;  there were no traffic or environmental issues.   Granting the permit application would be in keeping with the town plan of conservation and development.   The premises is well maintained.   The building department had raised some issue with signage on the property and this was being corrected.   (ROR, Item 25, pp. 1–3.)

The next to speak was a member of the public.   He had four points of concern.   The sale of beer would increase the sale of alcohol in the district, the use might not satisfy the harmony of development in the area, the traffic at the building site might increase, and the use might conflict with the plan of conservation and development for the site.  (Id., pp. 3–4.)

A commissioner asked two questions of ITM's attorney.   First, would his client agree to upgrade the condition of the building where the store was located and consider more landscaping?   Secondly, he asked about the liquor store located adjacent to his client's store.   The attorney answered that his client would act to fix up the building and add landscaping that did not restrict visibility by vehicles.   He stated that the adjacent liquor store justified the granting of the special permit as it demonstrated that the neighborhood was an appropriate area for the sale of beer.  (Id., pp. 4–5.)

A commissioner asked if ITM sought to sell wine on the premises.   He also asked for the proportion of gross sales ITM projected that the beer sales would constitute.   An officer of ITM replied that there was no intention to sell wine and that the beer sales would likely amount to 20–22% of total sales.  (Id., pp. 5–7.) ³  An alternate commissioner stated that his concern was the fact that a daycare center and a school were also in the area.   The children would enter the convenience store while beer was being sold.   He also noted that the liquor store next to ITM's store was a pre-existing use and had recently expanded.  (Id., pp. 8–9.)   The public hearing was continued while ITM responded regarding the recommended external upgrade.

On September 15, 2010, the public hearing reconvened.   ITM reported its agreement with the upgrade plan.   The only witness was the chairman of the board of education.   He objected to the granting of the special permit because it would not be in harmony with the area.  “I am personally concerned about the thought of a store that sells candy and other items to children close to an elementary school being allowed to sell beer as well.”  (ROR, Item 27, p. 3.) ⁴ The hearing was then closed.

The vice chairman of the commission moved that ITM's application be granted.   He stated regarding the special permit:  “You have a commercial zoning district and in the commercial zoning district you're going to have commercial uses that sell alcohol and you have this grocery store and they're looking to sell beer and ․ it is as close to being a permitted use as you can get to being a permitted use ․ And I can buy the argument that it's near the school but I'm more concerned with ․ that when you're selling candy you're going to sell beer with the candy or kids coming into the facility, you're going to sell them beer.   There's stringent regulations that preclude that from happening ․ I mean we approve restaurants on a regular basis and they sell alcoholic beverages where there is the consumption factor and people do drink and can cause some harm ․ [W]e've given the approval to other facilities in the same situation.   This facility's been there a number of years.   I think we would be acting in an objective manner if we approve this application.”  (Id., pp. 8–10.)

A vote was taken on the motion to grant the special permit and it lost with 2 commissioners voting in favor and 3 against.  (Id., p. 10.)   The planner asked that the reasons for the opposition be stated on the record.   One commissioner stated that he “was not comfortable that the proposed use was in harmony with the particular area.   I'm not comfortable with the service of beer in that area.”   Another commissioner stated that he would have liked to have seen the permittees notified as well as the property owner of the adjacent liquor store, as well as the restaurant across the street.   The third commissioner concurred with the reasons given by the other two commissioners.

One of the commissioners that had voted in the negative on the motion to approve then moved formally that the application be denied on the ground that “it's not in harmony with the neighborhood.”   Both this commissioner and the alternate commission member (referred to above) stated that there was a difference between selling alcohol at a restaurant and selling it at retail.   The commission then voted 3–2 to deny ITM's application for a special permit.   (ROR, Item 27, pp. 10–11.)   ITM's appeal followed.

As is clear from the above record, the commission did not supply a “formal, official and collective statement” of its reasons for denying ITM's application.   See Moon v. Zoning Board of Appeals, 291 Conn. 16, 25, 966 A.2d 722 (2009) (“[i]n this case, the individual members of the board discussed reasons for denying the plaintiffs a variance, but the board did not state a collective, official reason for its action”).   Therefore, the court “must search the entire record to find a basis for the commission's decision ․ [I]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision must be upheld.”  Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006).

“It is axiomatic that a [planning and zoning] commission, in passing on [applications as here], acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations ․ It is equally axiomatic that the trial court, in reviewing the actions of a ․ commission regarding [an] application, may not substitute its judgment on the facts for that of the ․ commission ․ The evidence, however, to support any [reason stated by the commission for its action] must be substantial ․ [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis in fact from which the fact at issue can be reasonably inferred ․ The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts ․ The trial court can sustain the [plaintiff's] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal.”  (Citation omitted.)  Azzarito v. Planning & Zoning Commission, 79 Conn.App. 614, 617–18, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003).

With regard to a standard of review for special permits, Kilburn v. Plan & Zoning Commission, 113 Conn.App. 621, 626–28, 967 A.2d 131 (2009) states, in part, as follows:  “When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity ․ Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.   The ․ trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ․ In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal ․ Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations and statutes ․ The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings ․” The special permit, or special exception, as it is also known, is authorized by General Statutes § 8–2.  [Section] 8–2 explicitly enables the use of special exceptions.   A special [exception] allows a property owner to use his property in a manner expressly permitted by 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 a special permit is issued, the affected property may be allowed an exception to the underlying zoning regulations, but it continues to be governed in the same manner as provided in the overall comprehensive plan ․ [The special permit] provides a local zoning agency with some flexibility while maintaining standards applicable to all members of the municipality.”  (Citations omitted;  quotation marks omitted.)

Turning to the specific grounds of appeal, the reason given by the commissioners on the record to deny the permit was that the proposed sale of beer by ITM was not in “harmony with the neighborhood.” ⁵  ITM first argues that the special permit regulations of the commission do not allow for a denial on that ground.   ITM is correct that the commission must rely on the “particular regulations at issue” to justify denial of a special exception.   See A. Aiudi & Son, LLC v. Planning & Zoning Commission, 267 Conn. 192, 208, 837 A.2d 748 (2003), citing Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994) (“in the case of a special permit, zoning regulations may authorize a planning and zoning commission to deny an application on the basis of enumerated general considerations such as public health, safety and welfare”).

ITM points out that zoning regulation § 8.3.2.A only mentions considerations of “harmony” in the context of the development of the district on such matters as property values and the orderly development of adjacent properties.   It contends that there is nothing in the special permit application regulations that requires harmony of the neighborhood.

The court disagrees.   Section 8.3.2 gives as an objective for the commission in evaluating a special permit application that “commission shall take into consideration the health, safety, and welfare of the public, in general, and the immediate neighborhood in particular ․” In addition § 8.3.6.C.3 states that “[b]efore the Commission approves a Special Permit Application, it shall determine that the application ․ is in harmony with the purposes and intent of these Regulations ․” Thus, the regulations adequately set forth a requirement that ITM's application be in harmony with the neighborhood before approval might be granted.   See A. Aiudi & Son, LLC v. Planning & Zoning Commission, supra, 267 Conn. 203.

The second argument raised by ITM questions whether there was substantial evidence to support the given reason, that the use was not in harmony with the particular area.   ITM's convenience store is located in a commercial district.   By zoning regulation § 4.1.2, sales of alcoholic beverages are permitted in a commercial district, as long as the special permit is obtained.   The evidence relating to “harmony” before the commission consisted of a neighbor who pointed out that the granting of the permit would increase liquor sales in the area ⁶ and the chairman of the board of education and a commission alternate who stated that children would enter the store where beer was being sold.

This evidence lacks sufficiency.   See Anastasi v. Zoning Commission, 163 Conn. 187, 302 A.2d 258 (1972) (absence of substantial evidence for special exception to erect liquor store building).   As pointed out by ITM, and a commissioner as well, the sale of alcohol is permitted in the commercial district.   As our Appellate Court has stated:  “If the town desires a neighborhood to have a particular character in the future, it should zone the area accordingly ․ The plaintiff's ․ plan cannot be at odds with the present character of the neighborhood when it falls within all relevant requirements of the zoning regulations.”  Irwin v. Planning & Zoning Commission, 45 Conn.App. 89, 99–100, 694 A.2d 809 (1997), rev'd on other grounds, 244 Conn. 619, 711 A.2d 675 (1998).

The objection that children frequent the convenience store also does not support the conclusion of disharmony.   If the special permit were granted, ITM would be regulated by the state statutes and local ordinances that control the sale of alcohol, including the prohibitions on sales to minors.

The court concludes that the commission's decision to deny the plaintiff's application for a special permit was not supported by substantial evidence in the record.   See Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 73 Conn.App. 442, 465, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002).   Rather than order the commission to grant the permit, however, the court remands for further proceedings by the commission.   See Toll Brothers, Inc. v. Inland Wetlands Commission, 101 Conn.App. 597, 602, 922 A.2d 268 (2007):  “Normally when agency action is overturned ․ because of invalid or insufficient findings, we have held that a court must ordinarily remand the matter under consideration for further consideration.”   (Brackets omitted;  citation omitted.)

The appeal is sustained and the case is remanded to the commission for further proceedings.

Henry S. Cohn, Judge

FOOTNOTES

FN1. ITM is aggrieved as it is the applicant for the permit and introduced a purchase agreement dated September 18, 2006 as exhibit 1..  FN1. ITM is aggrieved as it is the applicant for the permit and introduced a purchase agreement dated September 18, 2006 as exhibit 1.

FN2. The building department mentioned “signage issues” that were subsequently addressed by ITM..  FN2. The building department mentioned “signage issues” that were subsequently addressed by ITM.

FN3. The ITM official mentions “4 walk-in coolers” for the beer (Id., p. 7), while the application states that the beer will be held in “one refrigerated cooler.”   ITM's position on the size of the beer storage containers is thus contradictory, but this does not affect the court's ruling..  FN3. The ITM official mentions “4 walk-in coolers” for the beer (Id., p. 7), while the application states that the beer will be held in “one refrigerated cooler.”   ITM's position on the size of the beer storage containers is thus contradictory, but this does not affect the court's ruling.

FN4. An issue raised at the public hearing was whether the liquor store adjacent to the ITM store received notice, because no one from the liquor store had appeared at the public hearing to state a position.   The planner indicated that the notice had been appropriately sent.  (Id., p. 5.).  FN4. An issue raised at the public hearing was whether the liquor store adjacent to the ITM store received notice, because no one from the liquor store had appeared at the public hearing to state a position.   The planner indicated that the notice had been appropriately sent.  (Id., p. 5.)

FN5. An additional reason given by a commissioner—that ITM should have given notice to the permittees of the adjoining properties as well as the owners of these businesses—cannot justify the commission's denial.   There was no question that the adjoining liquor store and the restaurant across the street had been notified.   The commissioner admitted that notice to the permittees was not required by the zoning regulations, but believed that the regulations should be amended in this regard.  (ROR, Item 25, p. 6.).  FN5. An additional reason given by a commissioner—that ITM should have given notice to the permittees of the adjoining properties as well as the owners of these businesses—cannot justify the commission's denial.   There was no question that the adjoining liquor store and the restaurant across the street had been notified.   The commissioner admitted that notice to the permittees was not required by the zoning regulations, but believed that the regulations should be amended in this regard.  (ROR, Item 25, p. 6.)

FN6. He also speculated that traffic might increase and that the sale of beer at the store might conflict with the plan of conservation of development.   There was no evidence of record on these topics..  FN6. He also speculated that traffic might increase and that the sale of beer at the store might conflict with the plan of conservation of development.   There was no evidence of record on these topics.

Cohn, Henry S., J.