LLC v. Zoning Board of Appeals of Hamden et al. (2013)

MEMORANDUM OF DECISION

PROCEDURAL HISTORY AND STANDING

The plaintiff Phoenix Management Group One, LLC [“Phoenix”] appeals a decision of the defendant Zoning Board of Appeals of Hamden [“the ZBA”] which affirmed a cease and desist order issued on April 25, 2011 by its zoning enforcement officer, the defendant Holly Masi [“Masi”]. The appeal was heard on May 9, 2013.   The plaintiff's managing member, Dennis T. Dean testified, and the defendants do not contest, that the plaintiff is classically and statutorily aggrieved and has standing pursuant to General Statutes § 8–8(a)(1) and Brouillard v. Connecticut Siting Commission, 133 Conn.App. 851, 38 A.3d 174 (2012).   Based upon the testimony of Mr. Dean, the court finds aggrievement and, therefore, the court has subject matter jurisdiction over the appeal.¹

FINDINGS OF FACT

The court makes findings of fact based upon the return of record and an exhibit attached to the plaintiff's brief, as follows.

The plaintiff does business as “The Point After,” a sports bar located at 1349 Dixwell Avenue under a special permit issued in 2004 for use as a “pool hall/sports bar.”   On April 25, 2011, Masi issued a cease and desist order ² directed to the plaintiff, stating “that The Point After continues to be operated as a nightclub.”   Masi did not provide any basis for her conclusion that The Point After was operating as a nightclub.

In the cease and desist order, Masi cited language in Hamden zoning regulation Sec. 160, that “any activity not expressly permitted by the regulations is prohibited.”   Masi further stated, “No permit for a nightclub has ever been applied for, or issued.   This activity constitutes a violation of your Special Permit and therefore a violation of Section 718.6 of the Hamden Zoning Regulations.”   Masi did not articulate the “activity.”   It is presumed the activity is operation of a nightclub.   Again, Masi offered no basis for her conclusion that the plaintiff was conducting nightclub activities, although in her order, Masi stated, “You are hereby ordered to cease and desist ALL nightclub activities including, but not limited to[,] live entertainment with a dance floor at ‘The Point After’ Sports Bar at 1349 Dixwell Avenue.”  (Emphasis in original.)

While the Hamden zoning regulations formerly had a provision concerning nightclubs, such provision was no longer in effect at the time the cease and desist order was issued and no other provision had taken its place.   At the time, the term “nightclub” was not defined by the regulations.   At all relevant times herein, it is noted that Hamden zoning regulations do not define the term “nightclub” in the context of use or activity.

In addition to the two zoning sections previously cited, in the cease and desist order, Masi notified the plaintiff that it was in violation of Sec. 610 of the zoning regulations.   Neither party has provided the court with the content of that section, nor is it contained in the return of record.   Therefore, the court presumes it is irrelevant to the issues presented.

The Hamden zoning regulations provide for a fifteen-day appeal period and the plaintiff timely appealed to the ZBA. The public hearing was held on June 23, 2011.   The plaintiff, through counsel, was prepared to present its case that the appellation of “nightclub” was without merit.   However, during the course of the hearing and the discussion of the ZBA in the regular meeting which followed, the ZBA began to discuss the topic of alleged violation of restrictions on street parking and occupancy.

Nothing in the cease and desist order specifically refers to a claimed violation of the limitations of street parking or occupancy.   The articulated basis of Masi's cease and desist order was her assertion that the premises was being operated as a nightclub.

The court finds that the plaintiff had no advance notice that issues of street parking or occupancy would be raised or addressed.   The attorney for the plaintiff strenuously objected to the raising of such issues without notice, for which he was berated by members of the ZBA for being unprepared, return of record, p. 175;  that he “didn't do his homework,” return of record, p. 161;  and that he was “lazy.”   Return of record, p. 176.³

The ZBA unanimously upheld the cease and desist order, based, not upon the specific conduct claimed as a violation in the cease and desist order, but upon purported violations of the plaintiff's special permit as it pertained to limits on street parking and occupancy.   This appeal to the court followed.

STANDARD OF REVIEW

A zoning board of appeals “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.”  (Internal quotation marks omitted.)   Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988).  “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.”  (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).  “When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision.”  (Internal quotation marks omitted;  internal citations omitted.)   Fernandes v. Zoning Board of Appeals, 24 Conn.App. 49, 53, 585 A.2d 703, rev'd on other grounds, 218 Conn. 909, 591 A.2d 811 (1991).

“[A] commission's failure to state on the record the reasons for its actions ․ renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision.”   Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006).   The court then determines whether the record contains substantial evidence to support the commission's decision.  Id. “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.”  R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 470.

“[I]t is not the function of the court to retry the case.   Conclusions reached by the 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 agency.   The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached.”  (Citations omitted.)  Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 543–44, 600 A.2d 757 (1991).

ANALYSIS

The plaintiff asserts that the ZBA upheld Masi's cease and desist order on grounds which were not articulated in the order and of which the plaintiff had neither notice nor opportunity to prepare.   The court agrees.

A transcript of the hearing and meeting has been provided.   The court has reviewed the entire record, including the transcript, to find a basis for the denial of the application.  “[T]he failure of the zoning agency to give such reasons requires the court to search the entire record to find a basis for the commission's decision.”  (Citations omitted;  internal quotation marks omitted.)  Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 544.

The transcript reveals that enforcement action was commenced against the plaintiff at the request of the Hamden police.   The reason for the enforcement action against the plaintiff was posited by Hamden Assistant Town Planner Daniel W. Kops, Jr., who stated, “The reason this started was because wasn't there a shooting there?  ․ And the police came and complained about it.   So that's how we got involved in it.”   Return of record, p. 167.

One of the actions taken against the plaintiff was the issuance of the cease and desist order by Masi. The basis of the cease and desist order is Masi's assertion that the plaintiff's establishment was being “operated as a nightclub.”   See exhibit A attached to the brief of the plaintiff.

At the public hearing, the plaintiff, through counsel, was prepared to present its argument to the ZBA that the appellation of “nightclub” was incorrect.   However, the ZBA shifted its focus from the claimed violations of the cease and desist order to a newly asserted basis of violation of limits as to street parking and occupancy.   This change in focus took place because “nightclub” was undefined.

It is indisputable that the ZBA ultimately abandoned Masi's articulated ground of violation of operating a nightclub and denied the appeal on other bases.   The ZBA determined that violation of the special permit as to parking spaces and occupancy as a ground for denial was “cleaner.”   Commissioner Elaine Dove stated, “I mean, we don't even have a definition of nightclub.”   Return of record, p. 158.

Commissioner Jeff Vita stated, “My point is isn't [parking and occupancy] a cleaner violation than [that] people are dancing then the zoning enforcement officer runs over there and there's nobody dancing and they just stand there [?] Wouldn't it be easier to say your permit only allows a hundred and seventy-nine people in here [?] You're in violation, and therefore, the fire marshal does what he does.   Isn't that as opposed to saying there's a dance floor.   Is it a football field?   Is it a basketball court?   Is it a dance floor?   I mean it's probably a multiple use.”   Return of record p. 164.   Masi then replied that she could “write a new letter of violation that specifically calls out the occupancy ․” Id.

Commissioner Wayne Chorney stated, “I think it's clearer to go after the parking and the original occupancy rather than going after this nightclub, whether it is a nightclub or not a nightclub ․ There's dancing;  there's milling around.   And I think that this whole nightclub thing is just too ambiguous.”   Return of record p. 164–65.

The defendant argues that the plaintiff was in violation of a 2004 site plan as to parking spaces and occupancy.   It is the defendant's position that there is language in the cease and desist order about compliance and adherence to conditions imposed by the commission in issuance of the special permit which was based on the site plan.

The order states that “Phoenix Management Group One, LLC dba ‘The Point After’ Sports Bar continues to be operated as a nightclub.   A nightclub is not a permitted use under the Hamden Zoning Regulations ․ This activity constitutes a violation of your Special Permit and therefore a violation of Section 718.6 of the Hamden Zoning Regulations, which requires compliance with all conditions and safeguards attached to the granting of a Special Permit by the Planning and Zoning Commission.”

“[W]hen a landowner obtains a clear and definite interpretation of zoning regulations applicable to the landowner's current use of his or her property, the landowner properly may appeal that interpretation to the local zoning board of appeals.”  (Emphasis added.)  Piquet v. Town of Chester, 306 Conn. 173, 186, 49 A.3d 977 (2012).   It was the interpretation of Masi that the premises was being operated as a nightclub which the plaintiff properly appealed.   Masi ordered cessation of the operation as a nightclub be ceased, not a cessation of over utilization of parking spaces or overload of occupancy.

“Hearings before administrative agencies, such as this agency, although informal and conducted without regard to the strict rules of evidence, must be conducted so as not to violate the fundamental rules of natural justice.   Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.”  (Citations omitted;  internal quotation marks omitted.)  Huck v. Inland Wetlands & Watercourses Agency, 203 Conn, 525, 536, 525 A.2d 940 (1987).

While the plaintiff may have been in violation of the existing site plan as to parking spaces and occupancy, no fair reading of the cease and desist order could reasonably apprise the plaintiff or his attorney that these alleged violations would be the topic of the hearing or basis of the denial.   A generic reference in the order of the requirement of prior approval before changing site development under Sec. 718.6 is not adequate notice.   To deny an appeal of the cease and desist order on a basis different from that articulated in the order without notice is unreasonable and an abuse of discretion.

In addition to the issue of fair notice, Masi, herself, stated that the issue of defining “nightclub” was necessary to a determination of violation of occupancy:  “The first site plan went along with the special permit which was for commercial, recreation ․ [W]e issued him the permit to continue and use it as a sports bar.   The question [that] still remains is whether or not the activities that we saw constitute nightclub versus commercial ․” Return of record, pp. 162–63.   To the question, “Isn't that related to that issue [of] occupancy,” Masi replied, “Absolutely.”  Id., p. 163.

“The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings.”  (Internal quotation marks omitted.)  Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 138 (1996).   Here, the zoning officer informed the ZBA that identifying the operation as a nightclub was necessary to the determination of occupancy.   The ZBA never made that determination.   Neither did the ZBA define “nightclub.”   There was no evidence as to what constitutes a nightclub.   At the regular meeting, it was roundly debated by the ZBA as to the criteria in defining a nightclub and whether the Plaintiff was operating a nightclub.   The ZBA abandoned the attempt to make such determinations and instead went with an alternative ground to deny the appeal.   To find that the plaintiff was in violation of a special permit or site plan without ever making the prerequisite determination that the premises was operating as a nightclub as deemed necessary by the zoning enforcement officer renders the ZBA's decision arbitrary and an abuse of discretion.

Based upon the decision of the ZBA upholding the cease and desist order, the plaintiff remains ordered to refrain from operating a nightclub without being informed what a nightclub is or what activity constitutes operating a nightclub.   The plaintiff faces fines for noncompliance with an order to refrain from activity which is undefined.   This is fundamentally unfair.

ORDER

The court finds that the defendant ZBA's decision was both unreasonable and arbitrary and, therefore, an abuse of discretion.   Therefore, pursuant to General Statutes Sec. 8–8(1), the plaintiff's appeal is sustained.   The decision of the board denying the appeal is hereby ordered vacated.⁴

Robert E. Young, Judge

FOOTNOTES

FN1. “[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.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007)..  FN1. “[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.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).

FN2. The cease and desist order is not contained in the return of record (105.00) or amended return of record (106.00) but is attached as “Exhibit A” to the plaintiff's brief (109.00) and its authenticity is not contested by the defendants..  FN2. The cease and desist order is not contained in the return of record (105.00) or amended return of record (106.00) but is attached as “Exhibit A” to the plaintiff's brief (109.00) and its authenticity is not contested by the defendants.

FN3. To be sure, the transcript reveals that the attorney for the plaintiff was only one of several persons subject to indecorous remarks made by commissioners and other town officials in the regular meeting of the ZBA that evening, none of which are relevant here..  FN3. To be sure, the transcript reveals that the attorney for the plaintiff was only one of several persons subject to indecorous remarks made by commissioners and other town officials in the regular meeting of the ZBA that evening, none of which are relevant here.

FN4. “The court upon concluding that the action taken by the administrative agency was illegal, arbitrary or in abuse of its discretion should go no further than to sustain the appeal taken from its action.   For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority.”   Rogue v. Zoning Board of Appeals, 165 Conn. 749, 753–54, 345 A.2d 9 (1974).The court makes no determination that the plaintiff is in compliance with the restrictions on parking and occupancy or any other conditions or safeguards of the special permit or site plan.   Nothing in the decision of the court should be deemed to preclude the zoning enforcement officer from issuing any future cease and desist order which fairly apprises the plaintiff of the violation or violations claimed therein..  FN4. “The court upon concluding that the action taken by the administrative agency was illegal, arbitrary or in abuse of its discretion should go no further than to sustain the appeal taken from its action.   For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority.”   Rogue v. Zoning Board of Appeals, 165 Conn. 749, 753–54, 345 A.2d 9 (1974).The court makes no determination that the plaintiff is in compliance with the restrictions on parking and occupancy or any other conditions or safeguards of the special permit or site plan.   Nothing in the decision of the court should be deemed to preclude the zoning enforcement officer from issuing any future cease and desist order which fairly apprises the plaintiff of the violation or violations claimed therein.

Young, Robert E., J.