LLC v. Planning and Zoning Commission of the Town of Newington et al. (2012)

MEMORANDUM OF DECISION

The plaintiff, Hayes Properties–Newington, LLC, appeals ¹ from a July 27, 2011 approval by the defendant Newington planning and zoning commission (the commission) of a special permit for the sale of liquor, issued to the applicant-defendant Plaza Wine & Liquor, d/b/a Shivam Enterprises, LLC (Shivam).

The record shows as follows:  On June 21, 2011, Shivam applied for a special permit under § 6.6 of the commission's regulations to operate a retail liquor store.   The application indicated that the property was located in the B–BT zone on the Berlin Turnpike, and the store was “part of Hartford Plaza,” owned by Kaye Properties, LLC. A public hearing was noticed for July 27, 2011 and proceeded on that date.

Shivam's attorney, Vincent Sabatini, spoke on behalf of his client's application.   Sabatini first stated that Shivam was not claiming a permit under § 6.6 of the commission's regulations that require anyone who wants to apply for a retail liquor store “to come before the Commission to seek waivers of distance requirements.”   That was not necessary in this instance because Shivam's store was not within 500 hundred feet of any other liquor store or of a college, school, church or hospital.  “So, in essence, we meet the requirements of 6.6.   You also have to take into consideration the [general] Special Exception requirements that are outlined in 5.2 and 5.3, the site plan.”

Regarding commission regulations §§ 5.2 and 5.3, Sabatini stated:  “This is an established retail shopping plaza, been there for many years, all of the considerations that you are required to consider, this is traffic, circulation, landscaping, neighborhood use, compatibility, sewer, water, lighting, that's already been resolved when the owner obtained approval.   The applicant in this case is not contemplating any changes what so ever to the exterior of the building.   He's merely renting one of the stores.   I believe you have ․ a schematic floor plan to show what store he is going to utilize and how the interior of the retail store is going to look.   So in terms of the Special Exception, the Site Plan regulations, we meet each and every one of those criteria's.”

The town planner spoke next.   He first furnished the commission with his report.   Dated July 27, 2011, the report stated that the property in which the liquor store was to do business was located in the Berlin Turnpike Business District (B–BT).  “This property is improved with a 15,750 square foot commercial building with multiple tenants.   Site development plan for an addition to this building was approved Petition 22–92, August 1992.   The site plan shows the required number of spaces at 87.”   The report also stated that under § 6.6 of the commission's regulations “[t]he proposed package store use ․ is not within the 500 foot radius of the nearest similar use A & P Liquor Store at 2400 Berlin Turnpike.”

In his remarks at the public hearing, the town planner stated that Shivam met the standard for distance as required by § 6.6. He also addressed a letter sent by the plaintiff's attorney objecting to Shivam's permit because the plaintiff already had received a permit from the commission two weeks before.   This “protest” stemmed from rules of the Connecticut department of consumer protection (DCP) regarding the number of permits for liquor stores each town might issue.²  The plaintiff contended that the DCP erroneously gave a provisional permit to Shivam, and the commission should find Shivam was ineligible for its special permit.³  Shivam's attorney denied that the DCP permit was given in error.   The commission decided that it did not have to consider this issue as it was one to be resolved by DCP. No other persons asked to present evidence at the hearing and it was closed.

Later that evening, on July 27, 2011, a commissioner moved that Shivam's petition for a special permit under § 6.6, Liquor Sales, be approved.   The motion recited that the “location of the proposed retail package store ․ complies with Section 6.6.3(B), 500 foot separation distance from an existing similar class of permit ․ the A & P Liquor Store.”   The motion was seconded, the vote was unanimously in favor, “with seven voting YES.” The plaintiff has appealed from Shivam's approval.

Before addressing the merits of the plaintiff's appeal, the court rules on a matter that the court raised after oral argument in a February 9, 2012 order.   This appeal was brought under the court's “e-filing” protocol.   The official record is entirely electronic.   This record shows that the notice of the commission's decision was published in the New Britain Herald on August 9, 2011, and the commission and Shivam were served on August 23, 2011 with a summons, notice, citation and appeal.   The electronic record entry for August 25, 2011, however, sets forth that service was made and the documents served, but the entry does not include the appeal document itself.   No motion to dismiss was filed by either the commission or Shivam.   The court in its order pointed out that the appeal was not filed and allowed the parties to brief the matter further, which they have done.

The plaintiff claims that an accidental failure to file the complaint does not affect subject matter jurisdiction and also seeks the protection of § 8–8(p) (court directed to liberally construe procedure to appeal) and § 8–8(q) (plaintiff may file over within fifteen days for an accident of service or matter of form).   The commission and Shivam contend that the court should dismiss the appeal because statutorily-imposed time deadlines to take a zoning appeal are issues that call into question the court's subject matter jurisdiction.   They also deny that §§ 8–8(p) or (q) provide relief to the plaintiff.

The court notes that § 8–8(b) states that “[t]he appeal shall be commenced by service of process ․ within fifteen days from the date that notice of the decision was published ․” The plaintiff has met this deadline.   The e-filing of the appeal to the court was not completed here, but the return of service was properly e-filed.   This is no different from the case of Green v. Law, Superior Court, judicial district of New Britain, Docket No. 08–4017132 (December 12, 2008, Cohn, J.) [46 Conn L. Rptr. 804].   There the plaintiff accidentally failed to return the served complaint to court six days before the return date in violation of § 52–46a.   The Green appeal was a tax appeal, with a one-month deadline to file the appeal in court;  at the time of filing the motion to dismiss, several months had passed beyond the file date.   The court held this failure to be one of personal, not subject matter, jurisdiction.   The defendants, to prevail on a motion to dismiss, would therefore have to demonstrate prejudice.

Here the papers were timely served so that the statutory deadline of § 8–8(b) was met,⁴ the defendants had copies of the plaintiff's appeal and knew its allegations and responded by filing briefs.   The court declined to issue the plaintiff a stay pending appeal, and the defendant Shivam continues to operate its business.   The defect in failing to e-file the appeal properly is one of personal jurisdiction where no prejudice has been shown.   Therefore the appeal may proceed on the basis of the supplemental appeal that was filed on March 2, 2012.⁵

Turning to the merits, as is clear from the above record, the commission did not supply a “formal, official and collective statement” of its reasons for granting Shivam'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.)

The plaintiff makes three contentions.   The first claim begins with the undisputed requirement that commission regulation § 6.6 on liquor sales also requires the applicant to meet the general special exception requirements of regulation §§ 5.2 and 5.3.   The plaintiff points to §§ 5.2.5 and 5.3 requiring a site plan to be submitted before the commission may grant the exception.   Here, a site plan for the shopping plaza had been approved by the commission in 1992, but no new site plan was submitted with Shivam's application.   The plaintiff argues that the commission regulations require a new site plan on the application for a liquor permit, while the commission and Shivam contend that the existing site plan is sufficient.

The court recognizes that in zoning cases “[t]he words used in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms.”  Mountain Brook Assn., Inc. v. Zoning Board of Appeals, 133 Conn.App. 359, 371, 37 A.3d 748 (2012).   Here, the regulations merely state that a site plan is required.   The regulations do not require that a tenant of a plaza owner, who had previously obtained site plan approval, must obtain a new site plan when the tenant seeks a liquor permit.

Moreover, where an “honest judgment” has been made by a commission, as here, the court will not overturn its construction of its own regulations.   The concept of “honest judgment” has been in place for over fifty years.   See Kutcher v. Town Planning Commission, 138 Conn. 705, 710, 88 A.2d 538 (1952);  Baron v. Planning & Zoning Commission, 22 Conn.App. 255, 576 A.2d 589 (1990) (trial court erred in sustaining appeal from zoning commission;  court cannot substitute its interpretation of regulation for reasonable interpretation of the commission);  Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn.App. 17, 23, 902 A.2d 706 (2006) (court faced with two equally plausible interpretations of regulatory language may defer to agency construction).   The commission had the discretion to approve Shivam's application without requiring the filing of a new site plan.

The second contention of the plaintiff is that the commission erred in accepting the statements of Shivam's attorney as providing the necessary evidence to justify approval.   The plaintiff cites the case of Anastasi v. Zoning Commission, 163 Conn. 187, 302 A.2d 258 (1972), also involving a special exception for a package store, where the Supreme Court affirmed the trial court's sustaining an appeal from the Bristol zoning commission.   The Supreme Court approved the trial court's finding that the commission acted improperly, because it did not “have before it sufficient evidence and did not state on the record sufficient reasons to support granting of the application.”  Id., 191.

The evidence in Anastasi had been presented by the applicants' attorney.   The attorney told the zoning commission the type of proposed structure to be built, that the applicants were tenants seeking to build their own store, that there would be open space between the proposed building and an existing one, that their present location was inadequate, that there would be off-street parking and provision made for truck unloading, that sidewalks would be built and traffic control would be improved;  and that the new location was more remote from a local school.

The plaintiff asserts that, as in Anastasi, the statements of Shivam's attorney do not provide any facts upon which the commission could have properly based its approval of the application.  Anastasi, however, is not relevant.   Numerous new facts were presented to the commission by the attorney in Anastasi.   Here, the attorney related that Shivam was renting a store in an established retail shopping plaza, not building a new structure.   As Shivam argues, the commission could base its decision on the fact that all of the considerations that the commission was required to consider had already been resolved when the owner of the plaza obtained approval.  (Shivam brief, p. 12.)

Moreover, the issue of the attorney's testimony has been resolved in Loring v. Planning & Zoning Commission, 287 Conn. 746, 950 A.2d 494 (2008).   In that case, our Supreme Court stated that “[a]n unsworn statement of a party's counsel is competent evidence before a zoning board.”   Although the commission was free to give “[counsel's] testimony the weight and credence it merited ․ it was not entitled to reject it arbitrarily.”  Id., 758–59.   See also Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293, 99 A.2d 149 (1953) (statement of facts made at hearing by counsel for defendants;  board was entitled to accept statement in lieu of sworn testimony);  Paige v. Town Plan & Zoning Commission, 35 Conn.App. 646, 661, 646 A.2d 277 (1994), rev'd on other grounds, 235 Conn. 448, 668 A.2d 340 (1995) (university's attorney responded to questions from commission;  this provided other evidence).   The attorney for Shivam gave an uncontradicted presentation to the commission that was competent evidence for its consideration.

The final contention of the plaintiff is that the commission's decision was not supported by substantial evidence.   The court disagrees.   The regulations of the commission required proof that Shivam met the distance requirement of § 6.6.3, the further requirement of § 6.6.4 that the commission consider “the effect of any individual permit on the maintenance of public order, safety and the protection of property,” and the §§ 5.2 and 5.3, the site plan requirement with all that entails.   While the commission did not state its reasons, it clearly voted to approve based upon the presentations of Shivam's attorney and the town planner.   As summarized above, the record shows that there was substantial evidence to support the commission's decision.

Therefore the appeal is dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. At the oral argument in this matter the plaintiff introduced without objection its real estate tax bill from Newington.   It is therefore aggrieved.  Jolly, Inc. v. Zoning Board, 237 Conn. 184, 199–200, 676 A.2d 831 (1996)..  FN1. At the oral argument in this matter the plaintiff introduced without objection its real estate tax bill from Newington.   It is therefore aggrieved.  Jolly, Inc. v. Zoning Board, 237 Conn. 184, 199–200, 676 A.2d 831 (1996).

FN2. It was represented by the plaintiff at the oral argument in this case that under DCP rules, the town may only issue one new permit, so that DCP will only recognize either the plaintiff or Shivam..  FN2. It was represented by the plaintiff at the oral argument in this case that under DCP rules, the town may only issue one new permit, so that DCP will only recognize either the plaintiff or Shivam.

FN3. This issue has now become part of another pending case, Hayes Properties–Newington, LLC v. Dept. of Consumer Protection, HHB CV 12–6013797..  FN3. This issue has now become part of another pending case, Hayes Properties–Newington, LLC v. Dept. of Consumer Protection, HHB CV 12–6013797.

FN4. The failure to meet this deadline would raise subject matter jurisdictional issues.   See Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 850 A.2d 1032 (2004)..  FN4. The failure to meet this deadline would raise subject matter jurisdictional issues.   See Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 850 A.2d 1032 (2004).

FN5. The court does not address §§ 8–8(p)or (q)..  FN5. The court does not address §§ 8–8(p)or (q).

Cohn, Henry S., J.