Opinion
No. 566633
July 28, 2004
MEMORANDUM OF DECISION
This is an appeal from the action of the Zoning Board of Appeals of the Town of North Stonington in upholding, in part, the decision of the zoning enforcement officer of the Town of North Stonington in issuing a cease and desist order to plaintiff.
For reasons hereinafter stated, the action of the Board is affirmed.
Plaintiff has instituted this appeal under the provisions of Connecticut General Statutes § 8-8b. Section 8-8b limits appeals to persons aggrieved by the decision appealed from. Pleading and proof of aggrievement are essential to establish subject matter jurisdiction over an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996). The question of aggrievement is essentially one of standing. McNally v. Zoning Commission, 225 Conn. 1, 5-6 (1993). The evidence indicates that plaintiff has held title to the property which is the subject of this action. He has filed the appeal, the partial denial of which is the basis for the present action. It is therefore found that plaintiff is aggrieved and has standing to prosecute this action.
No questions have been raised as to any jurisdictional issues. All notices required to have been published appear to have been published in accordance with the law and no jurisdictional defects have been noted at any stage in the proceedings.
By letter dated March 12, 2003, plaintiff received a communication entitled "Notice of Violation from Craig Grimord, Zoning Officer" (hereinafter referred to as the zoning enforcement officer or ZEO). The notice informed plaintiff that the ZEO considered him in violation of §§ 401, 402 and 612 of the zoning regulations. The letter stated that a follow up inspection would take place to determine compliance with the notice.
Subsequently, plaintiff received a cease and desist order entitled Abatement Order from the same officer. The order indicated that plaintiff was still considered to be in violation of the same sections of the zoning regulations regarding the dispensation of alcoholic beverages. The order required that the following corrective action be taken. "CEASE THE SALE OF ALCOHOLIC BEVERAGES AT THE BAR. REMOVE THE BAR STOOLS FROM SAID BAR WHICH EXCEED THE SEATING CAPACITY APPROVED BY THE PLANNING AND ZONING COMMISSION."
On April 28, 2003, plaintiff appealed the action of the ZEO under the provisions of Connecticut General Statutes § 8-6(1) and § 207 of the North Stonington Zoning Regulations. A hearing on plaintiff's appeal was originally scheduled for June 10, 2003. The hearing was rescheduled for July 8, 2003 and properly advertised.
At that hearing, plaintiff and parties in interest were heard. After the hearing, the Board discussed the issues and then voted to uphold the ZEO's action with respect to § 612. The Board voted to uphold the appeal as to §§ 401 and 402 of the regulations.
Within the time allowed by statute, plaintiff appealed the decision of the Board to uphold the decision of the ZEO concerning § 612 of the regulations complaining that § 612 is impermissively vague in that it lacks definition of the term "service bar" and thus lacks standards sufficient to guide the town and its officers and to enable those affected by the regulations to know their rights and obligations.
The court is not bound to consider any claim of law not briefed. Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1985); Moulton Brothers, Inc. v. Lemieux, 74 Conn.App. 357, 363 (2002).
In deciding appeals such as we have here, the court operates under certain restrictions. The court is not at liberty to substitute its judgment for that of the administrative tribunal. Hall v. Planning Zoning Board, 153 Conn. 574, 577 (1966). The court may only determine whether the Board acted arbitrarily or in abuse of its discretion. Raybestos-Manhattan, Inc. v. Planning Zoning Board, 186 Conn. 466, 470 (1982). The decision of defendant Board may be reversed only if it is found that the Board's action was illegal, arbitrary or in abuse of its discretion. Cameo Park Home, Inc. v. Planning Zoning Commission, 150 Conn. 672, 677 (1963).
The plaintiff has the burden of proving that defendant Board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1982).
Here, the Board was required to determine the reasonableness of the decision of the zoning enforcement officer. It was acting administratively in a quasi-judicial capacity in applying the regulations. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 513-14 (1969). Since the issue before the Board was the propriety of the zoning enforcement officer's interpretation of § 612 of the North Stonington Zoning Regulations, it became the duty of the Board to decide, within prescribed limits and consistent with the exercise of a legal discretion, whether the regulation applied to the situation and the manner of its application. Connecticut Sand Stone Corp. v. Zoning Board of Appeals, 150 Conn. 439, 442 (1963).
Generally, it is the function of the Board to decide within prescribed limits and consistent with the exercise of its discretion whether a particular section of the zoning regulations applies to a given situation and in the manner in which it does apply. The court must then decide whether the Board correctly interpreted the section of the regulations and applied it with reasonable discretion. In applying the law to the facts of a particular case, the Board is endowed with a liberal discretion and its discretion and its exercise will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. The court reviews the record to determine whether it has acted fairly or with proper motives and upon valid reasons. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440 (1991).
"The regulation is a local legislative enactment, and in its interpretation we seek to discern the intent of the legislative body as manifested in the words of the regulation. Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms. The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning; and any interpretation that would torture the ordinary meaning of the words to create ambiguity will be rejected. Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body." Spero v. Zoning Board of Appeals, 217 Conn. 435, 441 (1991) (citations omitted).
In Sonn. v. Planning Commission, 172 Conn. 156 (1976), considering the sufficiency of subdivision regulations, the court stated, "The subdivision regulations upon which the Commission acting administratively, should rule must contain known and fixed standards applying to all cases of a like nature, and must conform to the principle that a regulation, like a statute, cannot be too general in its terms. The test of a permissible subdivision regulation is whether the criteria contained in the Commission's regulations are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the Commission and to enable those affected to know their rights and obligations." Id. 159. (Citations omitted).
The section of the zoning regulations which plaintiff claims lacks sufficient standards is § 612 which provides as follows:
612. Alcoholic Beverages. Alcoholic beverages of all types may be sold in packaged form at licensed package stores. Beer may be sold in grocery stores. Alcoholic beverages of all types may be sold in restaurants for consumption on the premises, provided they are dispensed only from a service bar.
The term service bar is also found in the definition of restaurant in Appendix A of the regulations. This section is as follows:
Restaurant. An establishment primarily devoted to the serving of prepared foods and drinks, which, when licensed by the State Liquor Commission, may include the serving of alcoholic beverages to seated customers from a service bar.
Under these regulations, it could easily be understood that alcoholic beverages may be sold in restaurants provided that they are licensed by the State of Connecticut and dispensed from a service bar. The phrase "service bar" is not specifically defined in the regulations. Plaintiff claims that this lack of specificity constitutes the lack of a fixed standard and, therefore, the regulations do not constitute an adequate guide so as to enable zoning officials and members of the public, such as plaintiff, to know their rights and obligations.
The regulations of the Connecticut Liquor Control Commission describe a service bar. Section 30-6-B29, effective since 1984, and under which plaintiff's liquor sales are regulated, mentions a service bar and provides in part: ". . . a service bar only, in an area wherein patrons are not allowed to produce or obtain drinks in said service bar."
Restrictions on the sale of alcoholic liquor are often found in zoning regulations. It has long been recognized that ". . . 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 . . ." Miller v. Zoning Commission, 135 Conn. 405, 408 (1949). By its zoning regulations, the Town of North Stonington has sought to regulate the sale of liquor and restricted sale in restaurants to service bars. Anyone reading the regulation could easily determine that the word bar is modified by the word service and that the modification limits bars to a particular type. In determining what that limitation is, the dictionary definition of "service" is of some help, but the Liquor Control Commission's definition as an "area wherein patrons are not allowed to produce or obtain drinks is compelling . . . See also Jackson's, Inc. v. Zoning Board of Appeals, 21 Conn.Sup. 102, 104 (1958)." Where "service-bar" is understood to be a bar "with no stand up service directly with the customers."
At the public hearing, plaintiff expressed his understanding of a service bar as follows:
A service bar is where the waitresses get the bar, get the drinks from bartender, bring them out to the tables where the people are sitting. In other words, there is no direct serving from the bartender to some patron sitting at the bar.
The first sentence of plaintiff's comment makes sense and is in accord with the Liquor Control Commission's regulation. If by the second sentence, plaintiff means that patrons could be seated at the bar but that the waitress would have to go to the bartender, obtain the drinks, and then serve the patrons sitting at the bar is illogical.
Computer research allows the easy review of cases in which the term "service bar" appears. Both plaintiff and the Board have cited some of these cases. The consistent thing about these cases is that there is no confusion as to what is meant by the term "service bar." Kleinsmith v. Planning Zoning Commission, 157 Conn. 303 (1968); Lowthert v. Royal Order of Moose, 147 Conn. 529, 530 (1960); DeCaro, Inc. v. Zoning Board of Appeals, 2000 WL 966145, Superior Court, Judicial District of Fairfield (May 2, 2000); Caseria v. Zoning Board of Appeals, 14 Conn. L. Rptr. 407, 1995 WL 360794, Superior Court, Judicial District of Fairfield (June 5, 1995).
After a review of the record, it must be found that plaintiff has failed to prove that the zoning regulation in question lacks standards so as to guide the town and its officers and enable those affected by the regulation to know their rights and obligations or that in upholding the decision of the zoning enforcement officer, the Board abused its discretion. Accordingly, the decision of the Board to uphold the zoning enforcement officer is sustained.
Joseph J. Purtill Judge