Opinion
NNHCV156055150S
06-02-2016
848, LLC v. Zoning Board of Appeals of West Haven
June 6, 2016, Filed
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
This is an appeal from the decision of the West Haven Zoning Board of Appeals (" ZBA") that denied an appeal from the decision of the Zoning Enforcement Officer (" ZEO"), who had declined to issue a certificate of zoning compliance requested by 848, LLC (" LLC"). In his letter dated February 20, 2015, the ZEO opined a new special permit was required to add adult entertainment to a site which had already been approved as a café with a bar in a special permit issued by the West Haven Planning and Zoning Commission (" P& Z") on April 24, 2012 (" 2012 Special Permit").
For the reasons stated below the appeal is denied and the ZBA's decision is affirmed.
Standard of Review
In Anatra v. Zoning Board of Appeals of Madison, 307 Conn. 728, 737-38, 59 A.3d 772 (2013), the Supreme Court addressed the standard of review applicable to judicial review of a Zoning Board of Appeal's review of a decision by a zoning enforcement officer on an application for a certificate of zoning compliance. " Generally, it is the function of a zoning board . . . 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 ha[s] to 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 liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." 307 Conn. at 737-38 (ellipsis in original) quoting Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 408-09, 920 A.2d 1000 (2007).
" In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached [by the board] 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 [board] . . . The question is not whether the trial court would have reached the same conclusion but whether the record before the [board] supports the decision reached . . . If the trial court finds there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Woodbury Donuts, LLC. v. Zoning Board of Appeals of Woodbury, 139 Conn.App. 748, 759-60, 57 A.3d 810 (2012) (citations omitted).
A zoning board's actions must be approved if even one of the board's stated reasons is sufficient to sustain the action. See Blakeman v. Planning & Zoning Com'n of Shelton, 82 Conn.App. 632, 647, 846 A.2d 950 (2004).
The Anatra Court also distinguished between issues based on the interpretation of statutes, which presents a question of law subject to plenary review, and the question of whether the board properly denied an application for a certificate of compliance, which is " subject to review only to determine whether the board 'acted unreasonably, arbitrarily, illegally or in abuse of its discretion.'" Anatra, 307 Conn. at 738 quoting Alvord, 282 Conn. at 409.
The Court will review aggrievement and each of the rationales cited by the ZBA for its decision to deny the appeal.
I. Aggrievement
Plaintiff LLC has leased the premises from its record owner, Sardar, LLC, to operate a nightclub with adult entertainment. The West Haven Zoning Regulations (the " Regulations"), § 83.2.5, allow a " tenant" to request a certificate of zoning compliance as to the " exact status" of " any conforming or nonconforming use already established . . ." Counsel for the LLC explained that he requested a certificate of zoning compliance to confirm the planned use conformed to the existing special permit.
C.G.S. § 8-3 provides " [n]o building permit or certificate of occupancy shall be issued for a . . . use . . . subject to the zoning regulations of a municipality without certification in writing by the official charged with enforcement of such regulations that such . . . use . . . is in conformity with such regulations or is a nonconforming use . . ."
The LLC, as lessee of the subject property, is aggrieved pursuant to C.G.S. § 8-8(a), (b) by the ZBA's decision to require a new special permit to open a nightclub with adult entertainment. See Gregorio v. ZBA Windsor, 155 Conn. 422, 424-27, 232 A.2d 330 (1967).
II. The Special Permit Was Not Timely Recorded in the Land Records
Section 80.4.3 of the Regulations provides, in pertinent part, " [t]he applicant shall immediately record an approval [of a special permit], together with any restrictions or conditions, on the Land Records of the City of West Haven. Failure to record such Certificate [of Decision] within ninety (90) days of its issuance shall automatically void the grant thereof."
Section 92.3.7 provides " [a]n application approval shall be effective upon recording of the Certificate of Decision for the zoning relief granted in the West Haven Land Records within 90 days from the Notice of Decision date. An approval for which a Certificate of Decision has been issued but not recorded within such time shall automatically be null and void."
The parties agree that the Certificate of Decision approving the 2012 Special Permit was not recorded in the West Haven Land Records within ninety days after issuance of the P& Z's Certificate of Decision on April 12, 2012 as required by § 80.4.3 of the Regulations, but was recorded nearly three years later on April 5, 2015, forty-three days after the ZEO had issued his decision.
Plaintiff explained that the Certificate was not timely recorded because the attorney for the applicant for the 2012 Special Permit never received a copy of the Certificate of Decision from the zoning staff. Section 80.4.3 of the Regulations states that the " Certificate of Decision shall be sent by certified U.S. Mail to the applicant." At oral argument plaintiff's counsel stated that the evidence of non-delivery in the record was provided for background purposes only and plaintiff was not seeking relief based on the alleged non-delivery. Counsel also abandoned any estoppel or due process arguments related to non-delivery. Defendants argued the Certificate had been delivered. The ZBA made no finding as to whether the Certificate had ever been delivered.
The LLC contends that the 90-day recording requirement in the Regulations is illegal because it conflicts with state law. C.G.S. § 8-3(d) provides that " [n]o special permit granted . . . shall be effective until a copy . . . is recorded in the land records . . ." The statute is silent as to time limits for recording.
In Town of Rocky Hill v. Securecare Realty, LLC, 315 Conn. 265, 295-96, 105 A.3d 857 (2015), the Supreme Court reiterated standards for determining whether state law preempts local ordinances and regulations:
" '[A] local ordinance is preempted by a state statute whenever the legislature has demonstrated an intent to occupy the entire field of regulation on the matter . . . or . . . whenever the local ordinance irreconcilably conflicts with the statute . . . Whether an ordinance conflicts with a statute or statutes can only be determined by reviewing the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates the achievement of the state's objectives.' . . . '[T]hat a matter is of concurrent state and local concern is no impediment to the exercise of authority by a municipality through [local regulation], so long as there is no conflict with the state legislation . . . Where the state legislature has delegated to local government the right to deal with a particular field of regulation, the fact that a statute also regulates the same subject in less than full fashion does not, ipso facto, deprive the local government to act in a more comprehensive, but not inconsistent, manner.' . . . A regulation is not necessarily inconsistent because it imposes standards additional to those required by a statute addressing the same subject matter . . . Where local regulation 'merely enlarges on the provisions of a statute by requiring more than a statute there is no conflict unless the legislature has limited the requirements for all cases.' . . . As long as the local regulation does not 'attempt to authorize that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict.'" 315 Conn. at 295-96 (citations omitted).
The Supreme Court in Rocky Hill was asked to review the application of local zoning regulations to a state contracted nursing home for prisoners. The Court looked to the statute granting state officials authority to enter into such a contract and concluded the Legislature did not intend to preempt the subject of location of a nursing home for state prisoners. The statute was silent as to the application of zoning laws and, as the Court observed, " [w]hen the legislature intends for a statutory provision to apply exclusive both of other statutes, and of other type of law, it knows how to say as much." Id., 315 Conn. at 296.
" As a general matter, zoning regulations do not bar outright particular uses of land, but require that they be conducted in certain areas or subject to various conditions. Thus, a regulation requiring a nursing home facility to be located in a particular zone, or to have a permit that might impose conditions on its operation, does not 'attempt to . . . forbid that which the legislature has expressly authorized' . . . but rather, properly subjects what the legislature has authorized to additional requirements . . ." Id., 315 Conn. at 297 (citations omitted).
Similarly here the ninety-day recording requirement for special permits in § 80.4.3 of the Regulations is not inconsistent with C.G.S. § 8-3d, which requires special permits to be recorded in the land records to be " effective." Special permits, like variances " run with the land" and are not specific to the owner of the subject property at the time they are granted. See R. Fuller, 9 Conn. Prac., Land Use Law & Practice, § 53:8 (4th ed. 2015) (" Fuller "). The statutory scheme requires recording of special permits in the land records to provide constructive notice of the use permitted on the subject property by special permit. C.G.S. § § 8-3c(b) and 8-3d. The statute is silent as to a deadline for recording.
Section 8-2, which authorized the P& Z to adopt zoning regulations, declares " [s]uch regulations may also provide for notice requirements in addition to those required by this chapter . . ." See also C.G.S. § 8-3(e) (" [t]he zoning commission shall provide for the manner in which zoning regulations shall be enforced"). The ninety-day period to perfect an approved special permit does not " frustrate the achievement of the state's objectives to an unacceptable degree, " id., 315 Conn. at 298-99, but rather implements the state objective of providing constructive notice of special permits in the land records by requiring timely record notice of the approved use before special permits become " effective." C.G.S. § § 8-3c, 8-3d.
The leading authority on Connecticut zoning law, former judge Robert Fuller, observed " [t]he statute does not contain a time limit for recording special permits or variances, and presumably, they may be recorded at any time. If the notice is not recorded, the use of the property would be a zoning violation, but more important, if the zoning regulations change before the copy was recorded, the property owner may lose the benefit of the variance or special permit." Fuller, § 24:7.
Judge Fuller's observation that a change in zoning regulations before a special permit becomes effective by recording in the land records undercuts plaintiff's contention that a special permit remains valid indefinitely. The use of conditions to limit the duration of special permits is discussed below.
West Haven's ninety-day recording deadline would encourage prompt recording of special permits and avoid inadvertent zoning violations and thus minimize the possibility that changes in the law or circumstances between the date of approval of a special permit and its recording would undermine the overriding objectives of the zoning laws, community uniformity and compliance with comprehensive plans of development. As such, it can hardly be said that the recording deadline that voids late-filed special permits " frustrates the achievement of the state's objectives, " id., 315 Conn. at 295, namely ensuring constructive notice to interested persons by requiring recordation of the certificate of decision in the land records for special permits to become " effective" under C.G.S. § § 8-3c and 8-3d.
In most cases the failure to timely record notice of a special permit would not be fatal, but would merely require the applicant to re-apply for the same special permit, which absent changes in law or material circumstances, presumably would be granted expeditiously because the commission would already have found the use to be in compliance with local zoning. See Fuller, § 5:4 (" [t]he agency cannot deny a special permit which meets the standards in the zoning regulations . . ."). See also id., § 21:9.
A good example of how a change of circumstances after issuance of an unrecorded special permit can undermine zoning compliance is the transformation of the subject property from a conforming site for retail liquor sales to a nonconforming site because two retail liquor establishments are now located within 1500 feet of the site in violation of § 45.2 of the Regulations. Recording the 2012 Special Permit would have made it effective before the other establishments received liquor permits thus avoiding the putative zoning violation cited by the ZBA as a reason to deny the appeal.
Under C.G.S. § § 8-3c and 8-3d a special permit does not become " effective" until recorded. As noted above, a change in zoning regulations prior to its recording may defeat the special permit. It follows that the property right to use the property under the special permit does not vest until notice is duly recorded and the special permit is perfected. Imposing a deadline for recording is not the same as inserting a condition into a special permit that " automatically would turn a permitted use into an illegal use after the time period expired . . ." Fuller, § 50.1.
The crux of plaintiff's argument about the illegality of the ninety-day recording period and the fire/police review period, two reasons cited by the ZBA to deny the appeal, is rooted in the open-ended nature of a special permit. Plaintiff rightly points out special permits, like variances, are not personal to the applicant, but run with the land. See Fuller, § 24:7. " Since land use regulation is concerned with the use of the land and not its ownership, a change in ownership of land for which vested rights exist, allowing continuation of the use or for which prior approvals or permits have been granted, does not affect the right to continue the same use or use the same approvals and permits, and the new owner stands in the same position as the prior owner . . . A special permit . . . run[s] with the land, so a transferee can complete any conditions imposed on the prior approval and then use the land as allowed by the special permit." Fuller, § 53:8.
The distinction here is that " vested" rights run with the land but there can be no vested rights unless and until the special permit becomes " effective" by recording in the land records. Section 80.4.3 of the Regulations voids any approvals before they become " effective" if not recorded within the first ninety days after issuance of the certificate of decision. Here, the special permit did not become effective before the approval was voided. When the special permit was recorded three years later the prior approval was no longer valid.
The Court is mindful that uses allowed by special permit are compliant with zoning regulations and a planning and zoning commission has no discretion to deny a special permit if the proposed use is in conformity with zoning regulations. See Beeman v. Guilford Planning and Zoning Commission, 2000 WL 1023579 *2 (Sup.Ct. 2000) [27 Conn.L.Rptr. 77, ], citing Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 56, 549 A.2d 1076 (1988). However, the P& Z does have discretion in reviewing special permit applications to consider existing circumstances, past history and knowledge of the community. See id., citing Irwin v. Planning & Zoning Commission of Litchfield, 244 Conn. 619, 628, 711 A.2d 675 (1998) and Fuller, § 21.5. Allowing stale permits to vest years later would undermine the effectiveness and benefits of engaging in contemporary special permit review.
Although special permits are not personal to the owner of the subject property they are issued based on the particular circumstances presented to the P& Z at the hearing. " The basic rationale for the special permit . . . is that while certain uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated." Smith-Groh, Inc. v. Planning and Zoning Com'n of Greenwich, 78 Conn.App. 216, 228, 826 A.2d 249 (2003), quoting T. Tondro, Connecticut Land Use Regulation, p. 175 (2d ed. 1992) (" Tondro"). " A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations as well as the conditions necessary to protect the public health, safety, convenience and property values . . ." Heithaus v. Planning & Zoning Com'n of Greenwich, 258 Conn. 205, 215-17, 779 A.2d 750 (2001). Accord, Irwin, 244 Conn. at 626-27 (" general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for denial of a special permit").
There is nothing in the zoning statutes which would lock in a use indefinitely for which a special permit had been approved but never became effective. Indeed, Judge Fuller pointed out that using the site without an effective special permit would be a zoning violation. Fuller, § 24:7.
The obvious goal of requiring recording under C.G.S. § § 8-3c, 8-3d is to protect interested persons not on notice of the special permit and to relieve the municipality of special permits which are not effectuated. Not only would the ninety-day period have the salutary purpose of providing timely record notice of the granting of special permits, but it would prevent recording of stale permits when neither the municipality nor public is on record notice of the permit granted and where circumstances may have changed materially since the P& Z had approved the permit.
" The agency cannot deny a special permit which meets the standards in the zoning regulations, but it has discretion to determine whether the proposal meets the standards contained in the regulations. It has reasonable discretion to decide whether a particular section of the zoning regulations applies in a given situation and how it applies, but it cannot construe the special permit regulations beyond the fair meaning of their language." Fuller, § 5:4 (footnotes omitted).
The ZBA properly denied the appeal for failure timely to record the certificate of decision approving the 2012 Special Permit in the land records.
III. The Planned Adult Entertainment Use Altered the Permitted Nightclub Use
The Regulations (§ 83.2.5) require the ZOE to issue a certificate of zoning compliance " certifying that the zoning . . . regulation has been complied with in full" if there is " a new use, extension or alteration of a use, or conversion from one use to another use . . ."
Section 85 of the Regulations governs the issuance of Special Permits. Section 85.1 declares " [t]he Planning and Zoning Commission . . . shall have exclusive jurisdiction over those matters involving the use of property for such uses are permitted by Special Permit only." Special Permits under § 85.1 are " regulated on a lot-by-lot basis to determine the particular suitability of the requested location for the proposed use." As Judge Fuller has observed: " . . . the review of a special permit application is fact-specific and considers the particular circumstances of the precise site and the characteristics of the neighborhood in which the proposed use would be built." Fuller, § 33:4 citing, Hayes Family Ltd. Partnership v. Planning & Zoning Com'n of Glastonbury, 115 Conn.App. 655, 659, 974 A.2d 61 (2009), and City of Meriden v. Planning and Zoning Com'n of Wallingford, 146 Conn.App. 240, 245, 77 A.3d 859 (2013).
Section 85.3.4 of the Regulations provides " [a] Special Permit Use may only be created, or if preexisting, . . . expanded, or enlarged upon application under the process provided herein."
" When a property owner or holder of a special permit wants to substantially intensify the use for which the special permit has been granted, it must obtain an additional or amended special permit in accordance with the provisions of the zoning regulations." Fuller, § 5:4 (footnotes omitted).
The ZBA concluded, as did the ZEO, that the addition of adult entertainment was an alteration of use from the café use approved by the 2012 Special Permit. The LLC argues that the nightclub use permitted under the 2012 Special Permit was broad enough to include adult entertainment, which was not an alteration of use regulated by the Regulations.
West Haven does not have a zoning regulation that specifically addresses nightclubs offering adult entertainment. As the ZEO noted in his February 20, 2015 letter: " [a]dult [o]riented business is not specified in the planning and zoning regulations as a use, only adult bookstores or similar facilities."
The appeal from the ZEO to the ZBA is a de novo appeal under C.G.S. § 8-7; the ZBA was not bound by the ZEO's interpretation of the Regulations. Neither is the Court bound in its interpretation of the Regulations and Ordinance, which are to be construed under rules of statutory construction by their plain and unambiguous language. See King's Highway Assoc. v. Planning & Zoning Com'n of North Haven, 114 Conn.App. 509, 513-14, 969 A.2d 841 (2009) (zoning regulations construed by principles of statutory construction according to their plain and unambiguous language).
Defendants seek to categorize the planned use for adult entertainment as falling within the regulation of " [a]dult [b]ookstore or similar facilities" under " Amusements" Key M in Table 39.2 of the Regulations summary table of uses, but it seems more consistent with the plain and unambiguous language of the Regulations to classify the planned use under " Food, Drink & Entertainment" in Key C of Table 39.2, which lists " Nightclubs, Taverns, Cafes and Bars" as uses permitted by special permit in the Regional Business (" RB") Zone. There is nothing in the Regulations which suggests that a nightclub offering adult entertainment was required to get a special permit as a nightclub and another to offer adult entertainment.
Section 20.3.1 of the Regulations provides " [w]henever an application is presented which might be categorized under more than one type of use . . . then the use which is more descriptive shall control . . ."
As a practical matter, use of the site as a café with bar and use as a nightclub would not be a significant change; both are permitted in the RB zone by special permit. Both are in the same category in Key C of Table 39.2 in the Regulations. The Regulations define " Night Club" as " [a] commercial enterprise whose primary function is to supply music or live entertainment or both and which may provide food and/or beverage for on-premises consumption." This is a more apt description of the LLC's planned use. It also aptly describes the Bistro Latina which operated on the site under the 2012 Special Permit until it closed in January 2013.
There is no definition in the Regulations of " Café, " the use permitted under the 2012 Special Permit, but the record discloses the P& Z knew the planned use was as a " nightclub"
The ZEO testified before the ZBA that he was not sure the planned use would come under the " similar" to adult bookstores regulations, but he pointed out there was nothing in the 2012 application that indicated adult entertainment was planned so he believed the P& Z should have the opportunity to review the new use in another special permit review. The ZBA agreed. The ZBA did not interpret the Regulations as requiring applicant to apply as an amusement rather than as a nightclub, merely that the addition of adult entertainment altered its use, which finding is supported by substantial evidence.
The plain language of the Regulations indicates the proposed use is as a " nightclub" not an " Amusement" that is " similar" to an adult bookstore, as defendants argued. However, not all nightclubs offer adult entertainment, which is the use planned by the LLC, and the record supports that the P& Z was not informed the planned nightclub would offer adult entertainment when it approved the 2012 Special Permit.
Although West Haven does not have a zoning regulation governing nightclubs with adult entertainment, Chapter 64 of the West Haven Ordinances (the " Ordinance") regulates " Adult-Oriented Establishments." Section 64-2 defines " Adult-Oriented Establishment" as including " any premises wherein an entertainer provides adult entertainment to a member of the public . . . when such adult entertainment is . . . operated for a profit . . ." " Adult Entertainment" is defined to include " live performance, display or dance of any type, which as a significant or substantial portion of such performance any actual or simulated performance of specified sexual activities or exhibition and viewing of specified anatomical areas, removal of articles of clothing, pantomime, modeling or any other personal services are offered customers."
In the Ordinance the City Council found among its purposes the following:
" There are or may be adult-oriented establishments located in the City of West Haven . . . which will require special supervision from the city's public safety agencies in order to protect and preserve the health, safety and welfare of the patrons of such establishments, as well as the health, safety and welfare of the city's citizens. This is so because such businesses may and do generate secondary effects which are detrimental to neighborhoods." Ordinance, § 64-1A.
The Ordinance established a licensing and inspection system which provides for annual review of licensed adult-oriented establishments. Ordinance, § § 64-4-13. Similar ordinances have been upheld as within a municipality's police power noting that municipalities and zoning commissions have concurrent jurisdiction over adult use. See VIP of Berlin, LLC v. Town of Berlin, 50 Conn.Supp. 542, 560-61, 951 A.2d 714 (2008).
As Plaintiff pointed out, the Ordinance is not a zoning regulation, but it is equally clear the new nightclub will have to be licensed thereunder if it offers adult entertainment. Plaintiff conceded the planned adult nightclub would be an adult-oriented establishment subject to the Ordinance.
At oral argument Plaintiff's counsel admitted he agreed with the ZEO's conclusion in his letter that " [t]he ability to add adult entertainment to the use requires that you meet Chapter 64 Adult Oriented Establishments of the City ordinances . . ." Counsel made a similar concession to the ZBA.
Plaintiff argued that there was no zoning regulation governing adult entertainment at nightclubs so there is no basis in the zoning laws for requiring another special permit review. I disagree. The addition of adult entertainment to an approved nightclub use is the type of change in use that reasonably should trigger enhanced scrutiny from the commission because it brings unique factors for consideration not presented to the P& Z in 2012.
In Woodbury, 139 Conn.App. at 764, the Appellate Court quoted Cummings v. Tripp, 204 Conn. 67, 86 n.16, 527 A.2d 230 (1987), for rejection of the proposition that there need be an express regulation applicable to the proposed change: " [w]e disagree that such a provision in the zoning regulations is a prerequisite to a judicial finding that a change . . . [in] use is an extension of a nonconforming use." In Smith-Groh, Inc., 78 Conn.App. at 229, the Appellate Court held: " [as] a matter of law, general considerations enumerated in the zoning regulations are an adequate basis for denying an application for a special permit . . ." Id., quoting A. Aiudi & Sons, LLC v. Planning & Zoning Com'n, 72 Conn.App. 502, 507, 806 A.2d 77 (2002).
The Ordinance is relevant to the determination whether the addition of adult entertainment altered the use of the nightclub from that use approved by the P& Z in 2012, which implicates those matters addressed in the Regulations in compliance with C.G.S. § 8-2. The factors cited in the Ordinance relating to safety, health and general welfare are compatible with those cited in the Regulations and the zoning statutes as the reasons for requiring individualized special permit review and for imposing conditions. See Regulations § 85.6.1 and C.G.S. § 8-2. These factors support the ZBA's conclusion a new special permit review was required for the P& Z to assess the impact of such change in use on the neighborhood, public safety and conformity with the comprehensive plan of development.
Section 10.5 of the Regulations notes that " not every lot may be suited to accommodate every type of use, nonresidential uses are to be allowed only on a limited basis by Special Permit with appropriate safeguards for each individual case." Section 85.1 provides special permit uses " should be regulated on a lot-by-lot basis to determine the particular suitability of the requested location for the proposed use." Section 85.6.1 authorizes the imposition of conditions on special permits " to protect adjoining property values, to prevent encouragement of immoral behavior, and to have the Special Permit Use blend into the adjoining neighborhood as unobtrusively as possible." See also C.G.S. § 8-2 which authorizes special permits " subject to . . . conditions necessary to protect the public health, safety, convenience and property values."
In Woodbury, 139 Conn.App. at 761-62, the Appellate Court applied the test announced by the Supreme Court in Zachs v. Zoning Board of Appeals of Avon, 218 Conn. 324, 332, 589 A.2d 351 (1981), for determining whether a nonconforming use was impermissibly expanded: " 'A change in the character of a use . . . does constitute an unlawful extension of the prior use.' . . . 'In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property.'" (Citations omitted.)
The same analysis should apply here. The record discloses the ZBA considered the first and second factors in concluding that special permit review was required to approve use of the premises as a nightclub with adult entertainment subject to the Ordinance. The ZBA was well within its discretion in determining that the addition of adult entertainment is a significant change in use that requires special permit review by the P& Z.
In Town of Stonington v. Liberty Entertainment, 1999 WL 391341 *3-4 (Sup.Ct. 1999) [24 Conn.L.Rptr. 620, ], the Court was faced with an analogous situation in deciding whether the addition of adult entertainment to a non-conforming restaurant was an impermissible intensification in the scope of a valid nonconforming use. The Stonington Court held " the nature and character of the proposed entertainment is substantially different than that previously provided and, therefore, constitutes a change in use." Id. Among the factors cited for change of use was that " the form of entertainment proposed renders the premises subject to the Adult Business Ordinance which had not previously been applicable to the property.", 1999 WL 391341 *3. The same is true here.
In addition, the Stonington Court concluded, based in part on the findings in the Adult-Oriented Business Ordinance, that the change in entertainment could have an adverse impact on the neighborhood. The findings in the Ordinance also invoke possible " secondary effects which are detrimental to neighborhoods" from adult-oriented business establishments. Compare, Ordinance, § 64-1A.
These same factors also support the ZBA's conclusion here that the addition of adult entertainment would alter the use of the site in ways not envisioned by the P& Z when the 2012 Special Permit was issued and should be reviewed in another special permit proceeding.
In Squillante v. Zoning Board of Appeals of Hartford, 1997 WL 614583 *4 (Conn.Sup. 1997), the court distinguished between " a café serving liquor" and " a café providing adult entertainment" in holding the latter was not a non-conforming use. The ZBA was within its discretion to determine the addition of adult entertainment was an alteration in the approved nightclub use.
There is nothing in the public record of the 2012 Special Permit review that would indicate the P& Z contemplated adult entertainment at the nightclub site under review. Compare Anatra, 307 Conn. at 754, 59 A.3d at 787. The application for liquor permit appended to the 2012 Special Permit application described the planned entertainment as " [b]ands, DJs and [k]araoke." There is also nothing in the record of the 2012 Special Permit review to indicate that the P& Z was on notice that adult entertainment would be offered on the premises. At the ZBA hearing plaintiff's counsel conceded the original applicant " probably didn't have the intention of opening a strip club." (Tr. 10).
There is no evidence that the nightclub which operated on the site in 2012 offered adult entertainment subject to the Ordinances. Postings from the Bistro Latina Facebook page, entered into the ZBA record, indicated the nightclub offered live entertainment, including dance and acrobatic exhibitions. There is no indication of adult entertainment, although advertisements for " Sexy Lady Night" and " Grown Sexy Fridays" are somewhat suggestive of adult themes. There is nothing in the record to implicate the need for regulation under the Ordinance. Presumably, the fire/police review called for as a condition to the 2012 Special Permit would have fleshed out the actual entertainment offered, but it had not occurred before the nightclub ceased operations in January 2013.
Nor would subjecting the premises to special permit review violate the First Amendment of the United States Constitution. It is well-settled that adult entertainment facilities, like an adult cabaret, are subject to zoning regulation provided " such regulation . . . occurs where the speech to be regulated has secondary effects and it is the secondary effects that the regulation is actually targeting." Damach, Inc. v. City of Hartford, 239 F.3d 155, 157 (2d Cir. 2000). Accord, TJS of New York, Inc. v. Town of Smithtown, 598 F.3d 17, 21 (2d Cir. 2010) (" . . . if a zoning ordinance serves a 'substantial governmental interest and allows for reasonable alternative avenues of communication ' the First Amendment is satisfied) (emphasis in original). The Regulations and Ordinance on their face would permit a nightclub with adult entertainment to operate in the RB zone by special permit so requiring applicants to apply for a special permit based on the addition of adult entertainment would not be unconstitutional.
Given the narrow scope of this appeal this decision would not foreclose an applicant from asserting violation of First Amendment rights in the application of the Regulations and Ordinance to an adult entertainment use in the proper case. See generally VIP of Berlin, LLC v Town of Berlin, 593 F.3d 179 (2d Cir. 2013).
IV. The Planned Special Liquor Use Would Violate the 1, 500 Feet Zoning Restriction for Retail Liquor Premises
Section 45 of the Regulations provides " [n]o building or premises . . . shall be used . . . for the sale of alcoholic liquor at retail for consumption . . . on premises under a . . . special liquor permit if any entrance to such . . . premises shall be within fifteen hundred (1, 500) feet from any entrances to any other building or premises that is legally being used for the sale of alcoholic liquor at retail for consumption off or on the premises under a valid package permit or special liquor permit."
When the 2012 Special Permit was issued the premises conformed to this regulation and a special liquor permit was issued by the Liquor Control Commission. By April 2015, however, two retail liquor establishments approved in the interim were located within 1500 feet of the entrance to the subject premises. The retail liquor use which was conforming in 2012 had become non-conforming by 2015.
A liquor permit issued on June 18, 2012 expired by its terms on June 17, 2013. There is no liquor permit presently in effect.
Because there is no evidence that the sale of liquor on the subject premises was still ongoing when the approved retail liquor use became nonconforming there is no basis for treating this as an " actual" nonconforming use protected under the zoning laws. See Squillante, 1997 WL 614583 *4, citing Francini v. Zoning Board of Appeals, 228 Conn. 785, 789, 639 A.2d 519 (1994).
The LLC proposed use of the site for retail liquor sale would contravene Section 45 of the Regulations and accordingly was a valid reason for declining to issue the requested certificate of zoning compliance.
V. The Special Permit Holder Failed to Satisfy The Fire and Police Review Condition
The 2012 Certificate of Decision imposed the following condition: " [t]he Commission will review the permit within one year with the [sic] both the Fire and Police Departments." All parties agree no such review ever occurred.
A vague condition is not void if the record discloses the limitations placed on the use of the land to all interested persons. See Anatra, 307 Conn. at 748-50. The recording requirement to effectuate a special permit under C.G.S. § 8-3d puts interested parties on record notice and imposes a duty of inquiry into the record of decision, including meeting minutes and transcripts, to ascertain a full understanding of a special permit and its conditions. See Anatra, 307 Conn. at 749-50 (" due diligence requires . . . interested persons to investigate the public record in order to obtain a full understanding of the scope of the variance").
The minutes of the P& Z's April 10, 2012, meeting indicate that the approval was for a " probationary period" and that the approval was " with the condition that this commission review it in one year with both fire and police departments . . ."
The record does not disclose who is to initiate the public safety review, but it is clear the P& Z did not intend the special permit to continue beyond a year unless the review occurred " within one year" and the commission was satisfied with the results of the fire/police review. This condition was never met, presumably because the Bistro Latina went out of business before the end of the permit review period.
There is nothing in the record to suggest that either the owner or the land use staff sought to initiate the fire/police review. By law the owner or its transferee may complete conditions to special permits. See Fuller, § 53:8. The LLC did not enter into its lease until January 23, 2015, long after the review period ended.
Plaintiff argues that the condition is illegal because it would terminate the use approved under the 2012 Special Permit as being compliant with the Regulations.
Plaintiff also argues that the condition runs afoul of the prohibition against open-ended conditions which would permit " officials to impose arbitrary conditions at a later date" citing City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769-72, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). To the contrary, the condition was imposed from the inception and would not permit arbitrary termination of the special permit.
In Mazziotti v. Planning and Zoning Commission of Fairfield, 2016 WL 1099194 *7 (Sup.Ct. 2016), in concluding plaintiff had standing, the Court quoted Fuller, § 50.1 for the proposition that special permits do not expire: " Former Judge Robert Fuller has explained that special permits cannot be limited as to time, or personalized to any individual: 'When a special permit is issued by the zoning commission . . . it remains valid indefinitely, since the use allowed under it is a permitted use, subject to conditions in the zoning regulations. The agency cannot put an expiration date on and require renewal of special permits . . . because that automatically would turn a permitted use into an illegal use after the time period expired . . . If the conditions of the special permit are violated, the remedy is a zoning enforcement proceeding because there is no statutory provision allowing revocation or expiration of special permits.'"
In East Windsor Sportsmen's Club v. Planning and Zoning Com'n of East Windsor, Conn.Sup.Ct.Rpt. 15 CLT 35 (Sup.Ct. 9/4/89), the Court held the commission lacked authority to restrict uses permitted under an existing special permit. " There is nothing in the record before the court that the . . . grant was conditioned on periodic review nor was there anything in the grant of authority under C.G.S. § 8-3 nor in the zoning regulations . . . which gives the defendant authority to restrict a preexisting use of undisputed legality."
In Durham Rod and Gun Club, Inc. v. Durham Planning & Zoning Com'n, D.N. 07-21-89 (Middlesex J.D.), an unpublished decision, the Court struck down as illegal conditions imposing time limitations on the use of the clubhouse and restricting hours of operation.
" Nowhere in the regulations . . . is the Commission specifically authorized to impose time limits on special permits or limitations regarding hours of operation. Further, the Commissioner has failed to direct the Court to either a state statute or an appellate court decision authorizing the Commission to impose such condition on the grant of a special exception. But see Tondro, Connecticut Land Use Regulation (2d Ed.), at p. 461 (indicating that, under certain circumstances, the duration of special permits . . . may be limited in order to provide an effective means of enforcing a condition, and to give the Commission an opportunity to review the activity after a period of time to determine whether circumstances have changed sufficiently to warrant a changed condition)." Id., p.27.
In East Windsor Sportsmen's Club v. Planning & Zoning Com'n of East Windsor, 15 CLT 35 (Sup.Ct. 1989), cited by plaintiff, the Court observed " [t]here is nothing in the record . . . that the . . . grant was conditioned on periodic review . . ."
Here, the Regulations do permit placing a time limitation on a special permit. Section 85.3.3 provides: " [w]here appropriate, the Commission may limit any special permit use for a term of years, provided it states on the record its reasons therefore."
The condition imposed by the P& Z on the 2012 Special Permit is ambiguous and does not explicitly impose a one-year term, but it does establish a one-year probationary period in response to public safety concerns stated in the record of the 2012 Special Permit review.
There is evidence in the 2012 record that the P& Z intended the fire/police review to operate as a probationary period. The minutes of the P& Z meeting on April 10, 2012, when the 2012 Special Permit was approved, reflect that Commissioner Posey asked about a " probationary period" and then successfully moved to approve the application subject to the fire/police review condition. Although defendants characterized the condition as calling for annual review, as opposed to a probationary period, there is no support for this in the record and that was not the ZBA's interpretation of the condition.
The condition to the 2012 Special Permit did not automatically terminate the special permit within one year, but rather provided for withdrawal of approval if the commission was not satisfied with the fire/police review within the first year. Compare Lurie v. Planning & Zoning Com'n of Westport, 160 Conn. 295, 307, 278 A.2d 799 (1971) (" where . . . [a] special permit is granted and the grant is otherwise valid except that it is made reasonably conditional on favorable action by another agency or agencies over which the zoning authority has no control its issuance will not be held invalid solely because of the existence of any such condition"). See also Fuller, § 5:4. Significantly, the condition was imposed as part of the initial issuance; it was not imposed after the permit had become effective. Nor would a zoning enforcement proceeding achieve the same objective, to permit the special permit to issue subject to a probationary period.
Defendants cite Spectrum of Connecticut, Inc. v. P& Z of Ellington, 13 Conn.App. 159, 162-63, 535 A.2d 382 (1988), for the proposition that plaintiff could not challenge a condition after the time for compliance has expired. In that case, the owner accepted the condition when the special permit was issued but challenged it only after its renewal was denied for noncompliance with the condition. Here, given the vagueness of the condition and issues relating to service of the certificate of decision and the lack of clarity relating to the consequences of the P& Z's failure to conduct the review, I conclude this was not a collateral attack as in Spectrum and that plaintiff has standing to contest and/or seek interpretation of the condition despite the applicant's failure to appeal the initial imposition of the fire/police review condition.
There is authority for limiting the duration of a special permit. See Cole v. Cornwall Planning and Zoning Commission, 1994 WL 149326 *7 (Conn.Sup. 1994) (" the court sees no reason why the duration of a special permit cannot be limited"). Defendants cited various cases where special permits had expired and appeals became moot. See e.g., Bakerville Lumber & Const. Co. v. Planning & Zoning Com'n, 38 Conn.App. 212, 213-4, 659 A.2d 758 (1995); Smith-Groh, Inc. v. Planning & Zoning Com'n of Greenwich, 78 Conn.App. 216, 222, 826 A.2d 249 (2003). See also Fuller § 36.2.
In Cole the Court noted: " [t]he reasons for limiting the duration of a special permit are to provide an effective means of enforcing a condition, and to give the commission an opportunity to review the activity after a period of time to determine whether circumstances have changed sufficiently to warrant a changed decision." 1994 WL 149326 *7 quoting Tondro, p. 461.
In Vanghel v. Planning & Zoning Com'n of Thompson, 2012 WL 4122915 *8-10 (Sup.Ct. 2012) [54 Conn.L.Rptr. 589, ], the Court enforced a zoning regulation which imposed a two-year deadline for non-completion of improvements authorized by special permit. Judge Fuller criticized this decision as " questionable because special permits run with the land and General Statutes § 8-3(i) allows five years to complete work under an approved site plan . . ." Fuller, § 50:1.
Recently, the Court in Marzziotti v. Planning and Zoning Com'n of Fairfield, 2016 WL 1099194 *7 (Sup.Ct. 2016), in finding standing for the property owner to proceed with an appeal from the granting of a special permit to its former tenant, the Court cited Fuller (§ 50:1) for the proposition that a zoning commission " cannot put an expiration date on and require renewal of special permits because that automatically would turn a permitted use into an illegal use after the time period expired . . ."
The fire/police condition here does not automatically terminate the nightclub use, or turn on matters personal to the owner/applicant, but it retains the P& Z's discretion to withdraw approval based on the public safety review after the nightclub commenced operation. The fire/police review condition would operate like the condition envisioned by Professor Tondro: " to give the Commission an opportunity to review the activity after a period of time to determine whether circumstances have changed sufficiently to warrant a changed condition." Tondro, p. 461.
Nor is there anything in the zoning law or regulations that would curb the P& Z's discretion to impose a fire/police review condition. " When acting upon a special permit, the commission is authorized to impose conditions necessary to protect public health, safety, convenience and property values based on General Statutes § 8-2." Fuller, § 5:3.
Clearly, the fire/police review condition was motivated by a concern for public safety, which may appropriately be considered in acting on a special permit. See A. Aiudi and Sons, LLC v. Planning and Zoning Commission of Plainville, 267 Conn. 192, 837 A.2d 748 (2004). The fire/police review condition allowed the P& Z in its discretion to grant the special permit for a probationary period which it might otherwise have rejected. The ZBA's decision to require special permit review of the addition of adult entertainment, in effect, would address the P& Z's public safety concerns in imposing the fire/police review condition in the 2012 Special Permit so the P& Z could evaluate the planned use based on the most up-to-date information.
The ZBA was within its discretion to deny the appeal for failure to satisfy the Fire/Police review condition.
Conclusion
The West Haven Zoning Board of Appeals did not act arbitrarily, illegally or in abuse of its discretion in denying the appeal from the ZEO's denial of a certificate of zoning compliance to the LLC. See Verney v. Planning and Zoning Board of Appeals of Greenwich, 151 Conn. 578, 580, 200 A.2d 714 (1964) (decisions by zoning authorities are to be overruled only when they have not acted fairly, with proper motives and upon valid reasons).
The appeal is denied.