Opinion
No. CV 04-4001092-S
January 20, 2006
MEMORANDUM OF DECISION
The question presented in this administrative appeal is whether the Danbury zoning commission had discretion to retain a regulation that requires a distance of two thousand feet between package stores.
I
Under subsection c. of Danbury zoning regulation § 3.F.2 ("the regulation"), no building shall be used as a package store if it is (1) within a radius of two thousand feet of another package store on the same or an intersecting street or (2) within five hundred feet of a school, church, charitable institution or library. The plaintiff, STLJ, LLC, operates Stew Leonard's wine shop and rents space at 59-67 Federal Road in Danbury. The plaintiff also owns real property and runs a Stew Leonard's dairy store at 99 Federal Road in Danbury. The dairy store is within a two-thousand-foot radius, and on a street that intersects the location, of Discount Liquor, an existing package store. (ROR, Item 15, p. 12, Item 20.) The plaintiff seeks to relocate the wine shop to the dairy store property but the regulation prevents it from doing so.
Section 3.F.2(c) provides:
No building or premises shall be used and no building shall be erected which is arranged, intended or designed to be used for a package store if any part of such premises is situated as follows:
(1) Within a radius of two thousand feet (2,000) from the main entrance of any building on any such street or intersecting street used for the purpose of a package store. In the case of a package store located within a shopping center or complex of stores, within a radius of two thousand feet (2,000') shall be measured from building to building, using the front or main entrance as the starting and finishing points, instead of measuring along the center line of the street.
(2) Within five hundred (500) feet of any part of any lot or plot used, or reserved to be used, for the purpose of a school, church, charitable institution, hospital, or library.
The plaintiff filed a petition to amend the zoning regulations to eliminate the two-thousand-foot requirement. The defendant zoning commission of the city of Danbury ("commission"), denied the petition, and the plaintiff filed the present appeal. The appeal alleges that the commission acted illegally, arbitrarily and in abuse of discretion in that it (1) relied on reasons that are unsupported by the record and not rationally related to a legitimate purpose of zoning, (2) undervalued statutory and regulatory controls that already limit the number and location of package stores, and (3) denied plaintiff equal protection of the law by retaining the distance requirement between packages stores after having previously amended the regulations to eliminate similar distance requirements for taverns, cafes and restaurants. Upon review, the court dismisses the appeal.
The plaintiff's original petition requested that the commission amend the regulations by removing both the two-thousand-foot distance requirement between package stores and the five-hundred-foot distance requirement between package stores and schools, churches, charitable institutions or libraries. (ROR, Item 2.) The plaintiff later amended the petition to retain the five-hundred-foot distance requirement. (ROR, Item 9.)
The plaintiff also alleged that the commission disregarded evidence that the distance requirement between package stores restrains trade by protecting the economic interests of existing package stores. See note 8 infra.
II A
Pursuant to General Statutes § 8-8(b) an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date the notice of the decision was published as required by the general statutes." Subsection (f) provides that service of process "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and leaving a true and attested copy with the clerk of the municipality."
In this case, notice was published in the Danbury News-Times on October 17, 2004. (Return of Record ("ROR"), Item 12.) The appeal was commenced by service of process on the proper parties on October 22, 2004. (Marshal's Return.) Accordingly, the appeal was commenced in a timely manner.
B
Pleading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal. Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). At the court hearing, the plaintiff produced a quitclaim deed establishing ownership of the 99 Federal Road property. The court also heard testimony from Doug Hempstead, the plaintiff's vice president of property development, regarding the plaintiff's desire to move the existing wine shop next to the dairy store. According to Hempstead, a change in location would result in a substantial increase in profits, because the plaintiff must pay for the existing rental space at 59-67 Federal Road and because that space suffers from parking constraints and lack of convenient access from neighboring roads. The court, at the time of the hearing, found that the plaintiff's inability to increase profits and serve its customers at one convenient location demonstrated adverse consequences from the commission's denial of the petition that are different from those incurred by the public at large. Accordingly, the court determined that the plaintiff is sufficiently aggrieved to proceed with the present appeal.
Under General Statutes § 8-3(c), "petitions requesting a change in the regulations . . . shall be considered at a public hearing within the period of time permitted under section 8-7d." Section 8-7d(a) provides: "Notice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing." (Emphasis added.) In this case, the file copy of the legal notice for the public hearing of September 14, 2004, indicates that it was published on August 27, 2004 and September 3, 2004 (ROR, Item 10). The first publication date is more than fifteen days before the hearing.
Ordinarily, compliance with § 8-7d(a) as to notice is a prerequisite to any valid action by the board and failure to give proper notice constitutes a jurisdictional defect. Smith v. F.W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955). When ten full days do not intervene between publication of the first notice and the public hearing, failure to comply with the notice requirements renders an amendment of zoning regulations invalid. Treat v. Town Plan Zoning Commission, 145 Conn. 136, 139, 139 A.2d 601 (1958). Neither actual knowledge nor an absence of prejudice can cure such a jurisdictional defect. See Farr v. Eisen, 171 Conn. 512, 515, 370 A.2d 1024 (1976) (plaintiff has right to submit a new application when commission's action is ultimately declared null and void). Moreover, under General Statutes § 8-26, a statute with similar notice requirements pertaining to resubdivision plans, a commission's failure to publish prehearing notice at least eleven days before the hearing renders its subsequent doings void ab initio because defective prehearing notice means there was nonaction from the outset. Koskoff v. Planning Zoning Commission, 27 Conn.App. 443, 451, 607 A.2d 1146, cert. granted, 222 Conn. 912, 608 A.2d 695 (1992) (appeal withdrawn November 10, 1992).
The court, nevertheless, is unaware of any appellate authority declaring a zoning authority's action null and void or void ab initio when the first notice of the public hearing is published before the statutory time period. The plaintiff claims no prejudice and, in fact, does not raise or even mention this issue on appeal. These considerations weigh strongly against negating the commission's action. Further, when, as here, a zoning authority is acting in its legislative capacity and lawfully exercising its broad discretion, a rule requiring automatic approval of an application for newly proposed legislation merely because of premature publication of notice of a hearing would constitute an unwarranted diminution of the authority's ability to function as a legislative body. See Coastal Suburban Builders, Inc. v. Planning Zoning Commission, 2 Conn.App. 489, 493, 479 A.2d 1239 (1984) (plaintiff is not entitled to automatic change of zone when commission failed to take any action within the time provided by zoning regulations and § 8-7d(b)). Therefore, the court will proceed to the merits of the plaintiff's appeal.
III A
Under General Statutes § 8-2(a), a municipal zoning commission is authorized to regulate the "location and use of buildings, structures and land for trade, industry, residence or other purposes . . ." The regulations may provide that "certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values." Id. Such regulations shall be designed, among other things, to "lessen congestion in the streets . . . and to promote health and the general welfare." Id. The regulations must also be made with "reasonable consideration as to the character of the district" with a view to "conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality." Id.
When an administrative appeal involves a decision on an application for a change in zoning regulations, the trial court is required to review a decision made by the zoning commission in its legislative capacity. Primerica v. Planning Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989). In such circumstances, the court must uphold the commission's conclusions if they are reasonably supported by the record and sustain the action if even one of the stated reasons is sufficient to support it. Id. "[A] zoning authority acting in its legislative, as opposed to its administrative or quasi-judicial, capacity, has a very broad discretion that courts should be extremely wary of disturbing." Connecticut Resources Recovery Authority v. Planning Zoning Commission, 225 Conn. 731, 751 n. 26, 626 A.2d 705 (1993).
Moreover, "a court should be particularly hesitant to conclude that a zoning authority abused its discretion by declining to delete its own presumptively valid regulation." Id. Indeed, neither the plaintiff nor the commission has cited to a single case in which a court has sustained an appeal from a zoning authority's refusal to amend an existing zoning regulation.
Given that the present appeal concerns a zoning regulation regulating the sale of alcohol, the commission in this instance is entitled to an even greater degree of discretion. "The power of the state, or any subdivision thereof authorized to act in the matter, to regulate and restrict the business of the sale of liquor is far broader than a power to regulate or restrict ordinary lawful business; the use of property for the sale of liquor may well be deemed by the legislative authority to have a far more harmful effect upon the health and welfare of the community than ordinary business; and to hold that a zoning ordinance may properly restrict the number of places used for the sale of liquor within a zone differs vitally from holding that it might similarly restrict other kinds of business." Miller v. Zoning Commission, 135 Conn. 405, 408, 65 A.2d 577 (1949). The evils of alcohol abuse that justify this approach persist to the present day. See Alliance Energy Corp. v. Planning Zoning Board, 262 Conn. 393, 402-03, 815 A.2d 105 (2003). Thus, because this case involves legislative decisions concerning the sale of alcohol, the court must review the commission's decision with considerable deference.
When a zoning agency, acting in its legislative capacity, has rendered a formal, collective statement of reasons for its action, a court should not reach beyond those stated reasons to search the record for other reasons supporting the commission's decision. Harris v. Zoning Commission, 259 Conn. 402, 416, 420, 788 A.2d 1239 (2002). In this case, the commission cited the following reasons for denying the plaintiff's petition:
1. The Commission finds that the existing separation requirement has served the City well by preventing the undue concentration of package stores in close proximity to one another and has resulted in the convenient distribution of package stores throughout the City.
2. Notwithstanding restrictions of the State of Connecticut, the existing separation limits the number of properties engaged in liquor sales within zoning districts where otherwise permitted.
3. Elimination of the separation requirement could result in the location or relocation of additional package stores in the downtown or near residential neighborhoods in the urban core, resulting in an environment that is not conducive to the health, safety or welfare of the resident population.
4. The purpose of package stores is solely for the sale of liquor. Comparisons with different land uses (e.g. restaurants, grocery stores) that may sell alcoholic beverages along with meals or other products is not a valid reason in itself to eliminate restrictions to package stores because the primary function, emphasis and operation of these different land uses differ.
5. Testimony by the applicant before the Zoning Commission at its public hearing emphasized the desire of the applicant to sell alcoholic beverages at its main store, even though it operates a package store elsewhere in the City. Special favor for the desires of one property owner is not sufficient cause to amend regulations affecting the needs of the entire City.
6. Regulation of the sale of alcohol is a legitimate exercise of the police powers of the City.
(ROR, Item 11.)
B
The regulation that the plaintiff petitioned the commission to delete has been in effect since it was enacted in 1936. "It is entitled, therefore, to a presumption of validity; that is, in the absence of evidence to the contrary, [the court] presume[s] that the commission fulfilled, when it adopted the regulation, its statutory obligations pursuant to the statute authorizing the regulation." (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, supra, 225 Conn. 751 n. 26. As it read in 1936, the regulation prohibited taverns, grills, hotels and package stores from situating within one thousand feet of any other such business. Danbury v. Corbett, 139 Conn. 379, 380-81, 94 A.2d 6 (1953).
At the time, the regulations permitted taverns, grills, hotels and package stores to operate in commercial districts as a matter of right, subject only to the distance requirements; they were not required to obtain a special permit. The city adopted its first comprehensive zoning ordinance in 1971, wherein it continued the distance requirement for taverns and grills, but increased the required distance between package stores to two thousand feet. In 1982, the commission eliminated the distance requirements for restaurants, taverns and gills, but required them to obtain a special permit. The 1982 amendment did not change the distance requirements for package stores. In 2003, the commission again amended the regulations to change package stores from permitted uses to special permit uses in certain zones. Nevertheless, package stores remained, as they are today, subject to the two-thousand-foot distance requirement between other package stores. (See generally ROR, Item 15 pp. 4-7.)
To obtain a special permit in a zone where package stores are permitted, the zoning commission must conduct a public hearing and review the petition for the requirements of approval, which include, inter alia, findings that the proposed use is compatible with the character of the neighborhood and will not create a nuisance having a detrimental effect on adjacent properties or jeopardize public health and safety. Danbury zoning regulation § 10.C.
C 1
Contrary to the plaintiff's first claim, the record in the present appeal contains ample support for the commission's decision to deny the plaintiff's petition. The commission, for example, heard testimony that the distance requirements between package stores maintain the quality of life in the city's neighborhoods by allowing neighborhoods to have a package store while preventing neighborhoods from being overwhelmed by a number of package stores in the same area. (ROR, Item 15 pp. 15-16, 21.) There was testimony that distance requirements protect the health, safety and welfare of the community more effectively than the special permit process, which is susceptible to arbitrary and capricious decision making. (ROR, Item 15 pp. 15-16.) Members of the public testified that they had witnessed people who bought liquor from package stores congregating outside on the street while drinking and sharing alcohol with others who may have been under age. (ROR, Item 15 p. 17.) Others complained of the trash left by people who consume alcohol while standing outside a package store or walking down the street. (ROR, Item 15 p. 19.)
In addition, a planning and zoning department report responding to the plaintiff's petition warned that the elimination of the distance requirement could result in the proliferation of liquor stores downtown, a result not in best interests of the city. (ROR, Item 6 p. 2.) The commission members were also entitled to view the regulation as it now stands and determine, on the basis of their personal knowledge, that it has served the city well. (ROR, Item 11.) See Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980). Finally, as the testimony also revealed, taverns, cafes and restaurants are inherently different from package stores because the former establishments, unlike the latter, can serve alcohol onsite, control the number of drinks they serve customers, and verify the age of the people actually consuming the alcohol. (ROR, Item 15 pp. 17, 19, 21.) The record, therefore, contains evidence sufficient for the commission to conclude, as it did, that a distance requirement for package stores tends to improve the quality of life and address concerns not present in the case of taverns and restaurants. (ROR, Item 11.)
The plaintiff suggests that a critical reason for the commission's action in 1982 to maintain the distance requirement between package stores while eliminating it for other businesses selling alcohol was that the state had imposed a five-year moratorium on the issuance of new liquor store permits and thus it was unnecessary to deregulate package stores at the time. (ROR, Item 17, Tab 2, part I. p. 3.) It is speculation, however, to say that the commission would have deleted the distance requirement for package stores if there had been no moratorium. In any event, the commission, in deciding whether to repeal the regulation in 2003, was clearly entitled to examine its current merits, regardless of whether the regulation survived as a result of happenstance or design.
2
The plaintiff next argues that the distance requirement between package stores is unnecessary and duplicative in light of other statutory and regulatory controls. These controls include the state limit of one package store permit for every twenty-five hundred residents; see General Statutes § 30-14a; the authority of the department of consumer protection to suspend, revoke or refuse to grant or renew a permit if it reasonably believes that the number of permit premises in the locality would be detrimental to the public interest; see General Statutes § 30-46(a)(3); and the town special permit process. See Danbury zoning regulations § 3.F.1.
In general, it is of dubious importance for the court to weigh the effectiveness of alternative methods of regulating the sale of alcohol. The distance requirement at issue is a matter of policy within the wide legislative discretion of the local commission. When, as here, "the issue whether the zoning legislation does serve the public welfare is fairly debatable, courts cannot place their judgment above that of the legislative body which enacted it." Clark v. Town Council, 145 Conn. 476, 483, 144 A.2d 327 (1948).
Further, notwithstanding the authority of the state, the zoning commission maintains a vital interest in regulating factors influencing the health, safety and welfare of the city. "Where the legislature has delegated to the local government the power to deal with a particular field of regulation, i.e., zoning, the fact that a statute regulates the same subject in a limited way does not by that very fact deprive the local government of the power to act in a more comprehensive, but not inconsistent manner." P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 160-61, 454 A.2d 1258 (1983). "[T]here maybe additional health, safety and welfare factors unrelated to the fact that liquor will be sold at the location. These are zoning matters of local concern and thus are within the expertise of local authorities." Id., 160. A commission may properly express a policy that the location of liquor stores within city bounds substantially affects the general welfare of the community, regardless of any increase or decrease in the number of liquor stores in the aggregate. See Jolly Inc. v. Zoning Board of Appeals, 237 Conn. 184, 200, 676 A.2d 831 (1996).
In this case, the record reveals that, after obtaining a special permit, package stores in Danbury are allowed in a number of neighborhood commercial zones and many of these locations are in close proximity to older residential neighborhoods. (ROR, Item 6; Item 15 p. 26.) Protection of these neighborhoods is a legitimate concern of the commission. It is not clearly arbitrary or unreasonable for a zoning authority to preserve the residential character of a town, so long as the business and industrial needs of its inhabitants are supplied by other accessible areas in the community at large. See Cadoux v. Planning Zoning Commission, 162 Conn. 425, 429, 294 A.2d 582, cert. denied, 408 U.S. 924 (1972).
Unlike the statutory control on the number of liquor permits available to a town, which can fluctuate over time depending on the latest census, and in contrast to the discretionary judgments of the department of consumer protection under § 30-46 and the subjective analyses of the zoning commission when it reviews special permit applications, the distance requirement between package stores offers the town complete protection against the proliferation of liquor stores. (ROR, Item 15 p. 24.) The city will likely become eligible under state law for more permits as it grows in population. Thus, the fact that package stores may be adequately dispersed at the current time does not mean they will not relocate and concentrate in downtown areas and neighborhoods in the future if they are no longer subject to distance requirements. (ROR, Item 15 pp. 13, 25.) Although, as the plaintiff argues, granting the plaintiff's petition would not change the requirement that package stores could not locate within five hundred feet of a school, church, charitable institution or library, and the current arrangement of such buildings within the city would help to prevent package stores from concentrating in any one area, these institutions may also relocate over time. (ROR, Item 15 p. 25.) Thus, there is a strong basis for the commission's decision to enact a uniform rule, free from the effects of societal change and the arbitrary valuations of independent commissioners.
Because it is not clear that Danbury has reached the maximum number of liquor stores allowed under state law, elimination of the distance requirement may result in an immediate increase in the number of package stores in the town. The commission could reasonably seek to avoid this result.
3
Finally, the plaintiff claims a violation of the principle of equal protection of the law stemming from the disparate treatment of package stores and businesses that serve alcohol for immediate consumption. Although a party challenging the constitutionality of a zoning regulation is no longer required to seek a declaratory judgment instead of pursuing a zoning appeal; Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 582, 715 A.2d 46 (1998); the plaintiff's claims are nonetheless unavailing. "Acting in [a] legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change." (Internal quotation marks omitted.) Protect Hamden/North Haven From Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 543, 600 A.2d 757 (1991). "Legislatures may implement their program step by step . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations." (Citations omitted; internal quotation marks omitted.) Jolly Inc. v. Zoning Board of Appeals, supra, 237 Conn. 203.
Thus, even if the plaintiff were correct that the risks associated with businesses that serve alcohol onsite are as great as those associated with package stores, the commission acting in its legislative capacity was permitted to address those concerns in its own time. Its failure to address all problems at once does not constitute impermissible discrimination. Id. More specifically, although the town has authority to ban alcohol sales altogether under our local option laws, see General Statutes § 30-9 et seq., the town also has discretion to address the problem in the more limited fashion that it has chosen here. Furthermore, as discussed, there are in fact important distinctions between package stores and businesses that serve alcohol on the premises that justify a distance requirement for one but not the other. See also Miller v. Zoning Commission, supra, 135 Conn. 408-09 (upholding distance requirement that did not apply to drugstores selling liquor); State ex rel. Wise v. Turkington, 135 Conn. 276, 279, 63 A.2d 596 (1948) (upholding distance requirement that did not apply to grocery stores selling beer). Thus, there is no merit to the plaintiff's equal protection challenge.
Although the plaintiff briefed the claim that the commission acted in violation of the antitrust laws, at oral argument the plaintiff abandoned that argument in favor of the more general one that the commission retained the distance requirement for the improper purpose of limiting competition rather than to promote a legitimate objective of zoning. While the commission did hear objections to the plaintiff's petition from competing liquor stores (ROR, Item 15 pp. 14-15, 21-23), there is no basis to conclude that the commission sought to limit competition rather than advance its stated objective of protecting the general welfare of the community. See Benson v. Zoning Board of Appeals, 129 Conn. 280, 284-85, 27 A.2d 389 (1942).
IV
Because the commission's action was not unreasonable, arbitrary, illegal or an abuse of discretion, the court dismisses the appeal.
It is so ordered.