Peter Fuller et al. v. Watertown Planning and Zoning Commission et al. (2013)

MEMORANDUM OF DECISION

This is an appeal of the approval by the defendant, Planning and Zoning Commission of the Town of Watertown (“the Commission”), of a special permit and site plan application for permanent improvements at property owned by the applicant, Cercemaggiore Community Club, Inc. (“the Club”).   The Club owns a 20–acre piece of property at 550 Silvan Lake Road in the Oakville section of Watertown (“the Club property”).   The plaintiffs, Peter Fuller, Patricia Bates, Paula Bates, Bohdan Wasiutynski and Elizabeth Wasiutynski, are neighbors who object to the improvements.

I. Procedural History

On June 6, 2012 the court sustained the appeal:  “for the limited purpose of remanding the matter and directing the Commission to consider whether the Club's use of the property is as a membership club not conducted as a business or for profit.   The Commission must decide if it has enough evidence to make this determination.   If so, it should make a formal finding and then re-vote on the special permit.   If the Commission determines that it does not have enough evidence to decide if the Club's current use of the property is as a membership club ‘not conducted as a business or for profit,’ it should open the public hearing to consider additional evidence on this issue and then to make a formal finding on this issue, before re-voting on the special permit.”

On June 18, 2012, the Commission held a special meeting during which it approved the following motion:  “In accordance with the decision of Judge John W. Pickard in the matter of Fuller versus Watertown Planning and Zoning Commission has determined that the evidence is sufficient to determine whether the Cercemaggiore Club is a membership club ‘not conducted as a business or for profit,’ and further the Watertown Planning and Zoning Commission finds that the Cercemaggiore Club is in fact a membership club ‘not conducted as a business or for profit’ within the meaning of Watertown Zoning Regulations, Section 23.3.5.   Special Permit # 303 is hereby amended accordingly and reaffirmed.”

The appeal is now before the court again following the action of the Commission.   In addition, the plaintiffs filed a new separate appeal (“second appeal”) from the decision of the Commission (CV 12–6007086–S).  The plaintiffs say they filed this new appeal “out of an abundance of caution” and that:  “If the defendants agree that the issue can be joined and decided in the initial appeal, this appeal can be withdrawn.”   The defendants have not made this explicit agreement but did not object when the two appeals were companionized for trial and then argued together as if they were one appeal.   The first appeal has not been withdrawn.   This memorandum of decision will be filed in both cases and will have the effect of dismissing both appeals.

II. Aggrievement

The plaintiffs were found to be aggrieved in the first appeal.   They still own their properties and are still aggrieved.

III. Facts

The court will not repeat the facts of the case as set forth in the original memorandum of decision.   There is substantial evidence in the file to support the following additional facts.

The Club does not make any profit from its activities.   The money raised from use of the property is used to pay the mortgage and property taxes, to provide scholarships and support charitable causes.

The site plan of the property shows a “Club House” to which the pavilions are attached which are the subject of the special permit application at issue in this appeal.   Although the “Club House” was originally used to hold meetings of the members of the Club, the “Club House” is no longer used for that purpose.   It holds about 100 people and is rented with the pavilions and band stand to the public on a per-event basis.   At the time of the public hearing, it was booked for rental almost every weekend for the coming year.

The larger building shown on the site plan as “Club Building” is where the principal use of the property is carried out.   That building is used as a banquet hall as well as a club facility.   The banquet hall was constructed pursuant to a special permit approved in 1990 from which there was no appeal.   The part of the banquet hall reserved for Club use includes a club room and a bar room that have nothing to do with the banquet facility.   There are two liquor permits issued for the banquet hall, one in the name of Michael Distasi for a restaurant known as Grand Oak Villa, and one for Distasi Catering.   The Club leases the banquet facility to Mr. Distasi or his catering company.   Mr. Distasi manages the kitchen, rents the banquet facility to the public and provides the cooking and catering services.   Although the record is a bit unclear, the Commission could have found that the banquet hall is also used by community organizations and other clubs such as the Elks, the Deep Sea Fishermen of Waterbury and the Fire Department of Watertown who do their own cooking and are not required to pay for the services of Mr. Distasi.

IV. Discussion

The issue before the court is whether there was substantial evidence in the record from which the Commission reasonably could have concluded that the Club is using the property as a membership club not conducted as a business or for profit.

The Commission made a finding that “the Cercemaggiore Club is in fact a membership club ‘not conducted as a business or for profit’ within the meaning of Watertown Zoning Regulations, Section 23.3.5.”   There is no real dispute about the fact that the Club is a membership club.   Also, the record contains substantial evidence that the Club is not being operated for profit.   There was testimony that the Club only attempts to cover its costs and never makes a profit for distribution to the members.   The Commission was justified in believing that testimony.

The more difficult issue is whether there is substantial evidence in the record that the Club is not operating a business;  in other words, that the predominate use of the property is for club purposes, not business purposes.   The lack of profit does not answer the question.   A business does not need to make a profit.   There are many non-profit businesses.   The issue relates to the use of the property by the Club or by others who use the property with the permission of the Club.

Clearly, Club's own use by and for its own members is not a business use.   Also, the Commission would have been justified in finding that use of the property by other clubs, fraternal organizations and community organizations would not be a business use.   On the other hand, the rental of the property to the public including the sale of alcohol, food and other catering services are business uses.   The profit, if any, generated by Mr. Distasi is business income under any definition.   There is no evidence in the record as to the amount of rent paid by Mr. Distasi or the amount of profit which he generates from his banquet business.   There is no evidence in the record as to the number of days of the year that the property is put to use by club members and other community organizations as opposed to the number of days it is used to generate a profit for Mr. Distasi.

After studying the record, I conclude that there is enough—and just enough—evidence in the record to support a finding that the principal use of the property is not for business.   I come to this conclusion somewhat reluctantly because I believe that it would have been preferable for the Commission to have opened the public hearing to new evidence which could have explored the nature and extent of the banquet business being operated by Mr. Distasi to determine whether it was still an accessory use, and not the principal use of the property.   However, the court is respectful of its role in a special permit appeal.  “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 the 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.”   Municipal Funding v. Zoning Board of Appeals, (Citations omitted;  internal quotation marks omitted.)  270 Conn. 447, 453 (2004).

The record contains evidence that the buildings on the property have been constructed pursuant to special permits which have been granted over many years.   There have been no appeals from these special permit approvals.   According to the testimony of John Vitone, the president of the Club, the special permits were granted “with the expressed understanding that the Club was leasing certain portions of the public facilities to supplement the tax difference.”   He also testified that there has been no change in the hours of operation or type of operation.   The Commission was entitled to believe this testimony in order to conclude that the banquet hall was approved with the understanding that a portion of it would be leased to a caterer and that nothing has changed since that approval.¹  This constitutes substantial evidence to entitle the Commission to conclude that the Club's use of the property remains as a membership club not conducted as a business.   “Conclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record.   The credibility of witnesses and the determination of issues of fact are matters solely within the province of the [Commission].”  West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513 (1994).

For these reasons, the appeal must be dismissed in both cases.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The neighbors who objected to this special permit were under the disadvantage of not being able to conduct discovery to obtain records which might support their contention that the banquet business has grown over the years and now predominates over the Club uses.   This is not the case in a suit seeking private enforcement of the zoning regulations.   See, for example, Miskimen v. Biber, 85 Conn.App. 615 (2004)..  FN1. The neighbors who objected to this special permit were under the disadvantage of not being able to conduct discovery to obtain records which might support their contention that the banquet business has grown over the years and now predominates over the Club uses.   This is not the case in a suit seeking private enforcement of the zoning regulations.   See, for example, Miskimen v. Biber, 85 Conn.App. 615 (2004).

Pickard, John W., J.