Urban Girls, Inc. v. Zoning Board of Appeals of Bridgeport (2012)

ORDER RE MOTION FOR ARTICULATION (Motion # 109.00)

The plaintiff, Urban Girls, Inc., is a tenant at 2060–2068 E. Main Street in Bridgeport.   The company applied for a café liquor permit with the state of Connecticut Department of Consumer Protection, Liquor Control Division, on November 16, 2009, and the defendant, Dennis Buckley, who is the Zoning Administrator for the City of Bridgeport, executed the necessary forms for approval of the plaintiff's proposed use.

The prior tenant of the building operated a liquor establishment and held a Café Liquor License for many years under a valid nonconforming use approved by the Bridgeport Zoning Board of Appeals.   The prior tenant was required to suspend operation for several months as a result of actions taken by the state of Connecticut.   The tenant never intended to terminate its use nor was any action ever taken to withdraw or modify that use.   On August 17, 2010, the defendant, Dennis Buckley, contacted the Department of Consumer Protection Liquor Control Division notified them that the plaintiff was required to seek a variance before the Bridgeport Zoning Board of Appeals in order to be properly zoned for the sale of alcohol beverages and withdrew his approval.

The basis for the defendant's action was Section 12–10d of the Bridgeport Zoning Regulations which provides for the termination of a Liquor Permit that has ceased operations for more than 60 days.   The defendant withdrew zoning approval of the plaintiff's Liquor License on the basis that the premises was not in use for more than 60 consecutive days.

The E. Main Street property had been granted a nonconforming use which runs with the land.

In L.R. & J. Builders v. Zoning Board of Appeals, No. CV 05 40002573S, Superior Court, judicial district of Ansonia–Milford at Milford (May 26, 2006 Moran, J.T.R.) [41 Conn. L. Rptr. 467], the plaintiff had obtained width and area variations for a vacant lot in 1992.   In 1994 he filed an application with the zoning enforcement officer for a certificate of zoning compliance.   The application was denied on the basis of an Ansonia Zoning Regulation which required an applicant complete construction one year after the granting of a variance and that “unless work is commenced and diligently prosecuted within one year of the date of the granting of a variance ․ such variance ․ shall become null and void.”   The plaintiff appealed the decision to the zoning board of appeals as well as applying for a renewal of the 1992 variances.   The Board dismissed the appeal and denied the application for renewal.

On appeal,¹

Connecticut General Statutes, Sec. 8–2 mandates that “zoning real regulations within the state of Connecticut shall not provide for the termination of any nonconforming use solely as a result of not use for a specific period of time without regard to the intent of the property owner to maintain said use.”

The history of the enactment of C.G.S. Sec. 8–2 is summarized by Robert Fuller in his excellent treatise “Land–Use Law and Practice, Connecticut Practice Book Series, Third Edition, volumes 9, 9a and 9b, section 52.5, published by Thompson.”   Judge Moran's finding that once a use variance is granted by the zoning board of appeals and recorded it is a legal status granted to the parcel of land without regard to ownership.   In the 1980s, two Appellate Court decisions did allow municipal regulations allowing cessation of use as the basis for extinguishing a nonconforming use.   The basis of those decisions was to accommodate the goal of abolishing nonconforming uses as quickly as justice would allow.   Those decisions created a possible problem of non-constitutional taking of property rights.

That concept was changed after Public Act 89–277 which was an amendment to C.G.S. 8–2.   It relied on the earlier cases that a failure to use a nonconforming use for a period of time is not enough to abandon it.   In addition to mere non-use of the property, there must be an intent by the owner to permanently cease the use in order to establish abandonment.   As summarized by Judge Fuller “to establish abandonment of a nonconforming use it must be proven that:  (1) there was a voluntary discontinuance of the use, and (2) the voluntary discontinuance was accompanied by an intent not to reestablish that use.”  Id., 227.   In the present case we have neither of the two requirements.

The defendants have filed a special defense claiming that the plaintiff has failed to exhaust its administrative remedies with respect to not appealing the denial of the application by the Zoning Enforcement Officer.   In this case, the plaintiff is seeking a declaratory judgment on the basis that section 12–10d of the Bridgeport zoning regulations is preempted by C.G.S. Sec. 8–2 and is therefore invalid.  “The validity or constitutionality of an ordinance or regulation should be challenged in a declaratory judgment action.”   Christofaro v. Burlington, 217 Connecticut 103, 109 (1991).  “A general attack on land-use regulations ․ should be the subject of a declaratory judgment action rather than an appeal of the denial of an application submitted pursuant to those regulations.”  Bombero v. Planning and Zoning Commission, 218 Conn. 737, 742 (1991) see also;  Cioffolitti v. Planning and Zoning Commission, 209 Conn. 544, 563 (1989).

For the foregoing reasons, the motion for summary judgment was granted.

GILARDI, J.T.R.

FOOTNOTES

FN1. “Once a variance is granted by the zoning board of appeals and recorded pursuant to [General Statutes] § 8–7 ․ it is a legal status granted to the parcel of land without regard for ownership and runs with the land ․ It is an authorization obtained from the zoning board of appeals to use the property in a manner otherwise forbidden by the zoning regulations.”  (Citation omitted.)   Adams v. Warren Planning and Zoning, Superior Court, judicial district of Litchfield, Docket No. CV 97 0074240 (December 19, 1997, Pickett, J.T.R.);  Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972)..  FN1. “Once a variance is granted by the zoning board of appeals and recorded pursuant to [General Statutes] § 8–7 ․ it is a legal status granted to the parcel of land without regard for ownership and runs with the land ․ It is an authorization obtained from the zoning board of appeals to use the property in a manner otherwise forbidden by the zoning regulations.”  (Citation omitted.)   Adams v. Warren Planning and Zoning, Superior Court, judicial district of Litchfield, Docket No. CV 97 0074240 (December 19, 1997, Pickett, J.T.R.);  Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972).

Gilardi, Richard P., J.T.R.