Steroco, Inc. v. Szymanski

STEROCO, INC. v. Joseph SZYMANSKI et al.

Nos. LNDCV125042392S, LNDCV146069681S; LNDCV156069680S; LNDCV156069678S; LNDCV156069679S; LNDCV166069690S; LNDCV166070689S

Superior Court of Connecticut, Judicial District of Hartford, Hartford, Land Use Litigation Docket

December 4, 2017

UNPUBLISHED OPINION

OPINION

Berger, J.

Presently before the court are seven intertwined cases that concern a bitter dispute between a commercial landlord, Steroco, Inc. and its former tenant, Joseph Szymanski.^[1]

Specifically Steroco owns commercial property at 847 Forest Road in North Branford upon which a liquor store has operated for approximately fifty years. Steroco, Inc. v Szymanski, 166 Conn.App. 75, 78, 140 A.3d 1014 (2016). For over twenty-five years, Steroco’s tenant, Szymanski, operated the liquor store. Id. In September of 2012, Szymanski moved his operation next door to 855 Forest Road.^[2] Id. The cases present a number of related land use issues including the legality of certain text amendments to the zoning regulations of the town of North Branford (regulations), the existence of a nonconforming use at 847 Forest Road, and the interpretation of the regulations relating to nonconforming use and the distance between 847 Forest Road and 855 Forest Road. The town of North Branford, the planning and zoning commission of North Branford (commission) and the zoning board of appeals of North Branford (board) are defendants in the various actions.

Before these cases were transferred to this docket, the parties litigated Steroco, Inc. v. Szymanski, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-12-5042392-S (the injunction action). On July 17, 2014, the trial court, Hadden, J., permanently enjoined Szymanski from operating his business at 855 Forest Road as it did not comply with a liquor distance regulation, i.e., 855 Forest Road is less than 500 feet from a church [58 Conn.L.Rptr. 592]. On further appeal, the Appellate Court upheld the determination of the zoning violation, but reversed the decision on other grounds and remanded it to the trial court for a new trial applying the standard for issuance of a permanent injunction. Steroco, Inc. v. Szymanski, supra, 166 Conn.App. 91.

This court held trial on all seven cases on September 19, 2017. In light of the oral stipulations by the parties, this court finds that both Steroco and Szymanski are aggrieved as owners or tenants of the respective properties that are the subjects of the administrative determinations in these cases. See Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 527, 119 A.3d 541 (2015) (" [i]t is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner"); Walgreen Eastern Co. v. Zoning Board of Appeals, 130 Conn.App. 422, 425, 24 A.3d 27 (" [commercial entity’s] status as lessee established its aggrievement to pursue both appeals"), cert. denied, 302 Conn. 930, 28 A.3d 346 (2011); see also Douglas v. Planning & Zoning Commission, 127 Conn.App. 87, 99, 13 A.3d 669 (2011) (" the landed plaintiff is statutorily aggrieved under [General Statutes] § 8-8(a)(1) because his property falls within the particular zone to which the text amendment pertained").

I

A

The court first turns to the two text amendment appeals of Steroco, Inc. v. Planning & Zoning Commission of the Town of North Branford, Superior Court, land use litigation, Docket Nos. LND CV-15-6069678-S and LND CV-15-6069679-S. In Steroco, Inc. v. Planning & Zoning Commission of the Town of North Branford, supra, Superior Court, Docket No. LND CV-15-6069679-S, a law firm, Cohen and Acampora, filed the first application for a text amendment seeking, among other things, to change the separation distance between a liquor outlet and a church or other designated types of buildings from 500 feet to 400 feet where there is a state highway between the buildings.

The law firm represented several interested liquor establishments. (Return of Record [ROR]-79, ^[3] Item 35, p. 7.) Steroco argues that the law firm did not have standing to file the application. Nevertheless, " [z]oning amendments and zone changes can be initiated either by the commission itself or by any interested party." R. Fuller, 9 Connecticut Land Use Law and Practice (4th Ed. 2015) § 4.1, p. 52.

In the second text amendment appeal, Steroco, Inc. v. Planning & Zoning Commission of the Town of North Branford, supra, Superior Court, Docket No. LND CV-15-6069678-S, Steroco filed an application seeking, among other things, to delete the regulatory requirement that there be 1, 500 feet between liquor establishments (1, 500-foot rule). (ROR-78, Item 1.) The two applications commenced separately, but were ultimately heard together by the commission. A public hearing was held on January 8, 2015, January 22, 2015, and February 5, 2015. (ROR-79, Items 34-35, 41-42, 47-48.) The Commission unanimously voted on March 5, 2015, to approve the law firm’s text amendment and to deny Steroco’s proposed amendment. (ROR-79, Items 58-59.) The adopted resolution provided:

SECTION 54- ALCOHOLIC BEVERAGES

54.1 General: The following regulations shall apply to the location of any business where alcoholic liquor, wine, beer and/or ale is sold at retail for consumption on or off premises under a permit issued by the Liquor Control Commission of the State of Connecticut, which business is hereinafter referred to as a " Liquor Outlet."

54.2 Measurement: All required distances shall be measured from the nearest corner of any building or space used as a Liquor Outlet to the nearest corner of any church, synagogue, or college building or from the nearest property line of any town-owned school, park, playground, or recreational facility. Measurement shall be a straight line measurement.

54.3 Discontinuance: If any existing Liquor Outlet, with a valid existing permit, which shall be located within the prescribed distance provided for in Section 54.4, shall be discontinued for a period of one (1) year, such Liquor Outlet shall not be resumed except in conformity with Section 54.4.

54.4 Location:

54.4.1 No Liquor Outlet shall be located within 500 feet of any church, synagogue, college, school, park or town-owned playground, except when a state highway separates the Liquor Outlet from any church, synagogue, college, school, park or town owned playground, then the required separating distance shall be reduced to 400 feet.

54.4.2 No Liquor Outlet for consumption off premises shall be located less than 1, 500 feet from an establishment with the same class permit. There is no required separation distance for establishments where alcoholic liquor, wine, beer and/or ale is sold at retail for consumption on premises. (ROR-79, Item 62.)

B

1.

" 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 authority was required to apply under the zoning regulations ... The zone change must be sustained if even one of the stated reasons is sufficient to support it ... The principle that a court should confine its review to the reasons given by a zoning agency does not apply to any utterances, however incomplete, by the members of the agency subsequent to their vote. It applies where the agency has rendered a formal, official, collective statement of reasons for its action ... We have also stated, however, that the 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. 527, 544, 600 A.2d 757 (1991).

In adopting the law firm’s changes, the commissioners stated the following reasons when casting their vote:

Roll Call Vote:

[Charles] Gunn: Approve.

The changes clarify that the measurement is to be a straight line measurement, which was not clear in the original regulations.

It is consistent with the Plan of Conservation and Development, which encourages the growth in existing commercial centers. Allows for restaurants to exist near one another by right.

The new regulations enable two restaurants with the same class permit to exist within 1, 500 feet of one another, which " encourage[s] more intensive, pedestrian oriented development of commercial properties" and promotes economic development.

[Frances] Lescovich: Approve.

Agree with Gunn’s reasons.

[Ron] Sienna: Approve.

Agree with Gunn’s reasons and states these changes clarify the regulations.

[David] Hultgren: Approve.

Agree with Gunn’s reasons and these changes reduce the hardship additional restaurants would have when opening in a cluster of developed properties.

[Chairperson Harry] Dulak: Approve.

Agree with Gunn’s reasons. (ROR-79, Item 60.)

Gunn’s reasons, agreed with by all members when voting, are also the reasons articulated in the letter from the town planner Carey Duques, to the law firm informing it of the approval. (ROR-79, Item 62.) Similarly, Lescovich moved to deny Steroco’s application stating that " the proposed change does not fulfill the goals and objectives of the Plan of Conservation and Development and it would not help promote the historic and natural character of the community." (ROR-78, Item 31.) These are the same reasons given in Duques’ letter to Steroco. (ROR-78, Item 33.) As the commission has formally stated its reasons for approval, the court cannot search out and speculate as to other reasons for the approval. See DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970) (" [W]here...