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Steroco, Inc. v. Szymanski

Court of Appeals of Connecticut

June 14, 2016

STEROCO, INC.
v.
JOSEPH J. SZYMANSKI, JR., ET AL.

          Argued January 12, 2016

         (Appeal from Superior Court, judicial district of New Haven, Hon. William L. Hadden, Jr., judge trial referee.)

          E. James Loughlin, for the appellant (named defendant).

          Dominic Joseph DelVecchio, for the appellee (plaintiff).

          DiPentima, C. J., and Lavine and Keller, Js.

          OPINION

          KELLER, J.

         The defendant Joseph J. Szymanski, Jr., [1]appeals from the judgment of the trial court granting a permanent injunction requested by the plaintiff, Ster-oco, Inc., in its action seeking private enforcement of the zoning regulations of the town of North Branford. On appeal, the defendant claims that this court should vacate the permanent injunction on the basis of the following: (1) the court improperly found that the defendant had committed a zoning violation; (2) the court erred by applying an improper standard in deciding whether to grant the permanent injunction; and (3) the court improperly rejected the defendant’s special defense of municipal estoppel. We agree with the defendant on his second claim and reverse the judgment of the trial court.[2]

         On July 17, 2014, the court granted the plaintiff a permanent injunction and issued a memorandum of decision wherein it set forth the following facts and procedural history: ‘‘The plaintiff is a Connecticut corporation with a place of business in Durham . . . and is the owner of commercial real estate located at 847 Forest Road in North Branford . . . . The [Zoning Board of Appeals for the Town of North Branford (board)] is a municipal board charged with hearing and deciding appeals of decisions made by the [zoning enforcement officer]. [The defendant] is the owner of Village Wine and Spirits, a retail liquor package store presently located at 855 Forest Road in North Branford . . . . The plaintiff constructed 847 [Forest Road] approximately [fifty] years ago and it has been used as a liquor store since its construction. The defendant has been a tenant at 847 [Forest Road], operating Village Wine for over [twenty-five] years until September, 2012, when he relocated the liquor store to premises located at 855 Forest Road, next door to 847 [Forest Road].

         ‘‘In connection with relocating his retail liquor store, [the defendant] was required to obtain the approval of the Liquor Control Division of the State Department of Consumer Protection [(liquor control division)]. The application to the [liquor control division] required a certificate from the [zoning enforcement officer] that the new location was in compliance with the North Branford Zoning Regulations. [The defendant] obtained the certificate of zoning compliance from the [zoning enforcement officer] on July 17, 2012, and filed the application with the [liquor control division]. However, that application was lost at the [liquor control division] and was never acted upon by the [liquor control division].

         ‘‘[The defendant] then filed a new removal application, with a new certificate of zoning compliance dated August 14, 2012, with the [liquor control division], which approved the application. The [liquor control division] accepted the certificate of zoning compliance and did not question its accuracy. The [liquor control division] requires that the applicant for a new retail liquor store post a placard on the property providing notice of the application for a liquor permit. The placard was posted on August 15, 2012, which was the first time the plaintiff became aware that [the defendant] planned to move his retail liquor store from 847 [Forest Road] to 855 [Forest Road].

         ‘‘On August 22, 2012, the plaintiff contacted [the liquor control division], was advised of the certificate of zoning compliance on file, and that day contacted the [zoning enforcement officer], who confirmed that he had issued a zoning compliance certificate for 855 [Forest Road]. This was the first time that the plaintiff knew of the issuance of the certificate of zoning compliance.

         ‘‘On September 7, 2012, the plaintiff filed an application with the board, pursuant to § 61.2.1 of the North Branford Zoning Regulations, claiming that the certificate of zoning compliance filed by the [zoning enforcement officer] was in error. Section 54.4.1 of the zoning regulations of North Branford provides that ‘No liquor outlet shall be located within 500 feet of any church . . . .’ The plaintiff claimed that 855 [Forest Road] was [fewer] than 500 [feet] from a local church.

         ‘‘On September 13, 2012, the plaintiff filed an amended application with the board which was identical to the September 7, 2012 application except that ten certified copies of a site plan were filed with the September 13, 2012 application. On October 15, 2012, the board found that the application filed by the plaintiff was untimely and refused to hear the application.

         ‘‘The second count [is a private enforcement action seeking injunctive relief and it] requests a permanent injunction restraining [the defendant’s] operation of his liquor store at 855 [Forest Road] because it violates the zoning regulations. . . .

         ‘‘The plaintiff claims that the package store at 855 [Forest Road] is within 500 feet of Saint Andrew’s Episcopal Church at 1382 Middletown Avenue in North Branford. The 500 [foot] measurement was conducted in accordance with the North Branford Zoning Regulation § 54.2, [which provides that] ‘[a]ll required distances shall be measured from the nearest corner of any building or premises used as a liquor outlet to the nearest corner of any church.’

         ‘‘The professional surveyor retained by the plaintiff testified that he used the ‘straight line’ method and that the distance from the nearest corner of the church to the nearest corner of 855 [Forest Road] was 460.62 feet. The [zoning enforcement officer] testified that when he signed the certificate of zoning compliance, he had not yet conducted any measurement of the distance from the church to 855 [Forest Road]. It was after the plaintiff discussed the matter with the [zoning enforcement officer] that he made a measurement. The [zoning enforcement officer] then did a measurement using a pavement wheel to travel the way a pedestrian or vehicle would walk or drive from the front door of 855 [Forest Road] to the front door of the church, resulting in a distance of over 500 feet. There was no credible explanation given by the [zoning enforcement officer] as to why he measured the distance between the front doors of 855 [Forest Road] and the church, rather than the distance between the [nearest] corners of the two buildings, as is required in § 54.2.

         ‘‘The court finds that the ‘straight line’ method is to be used in making the measurement in this case to avoid the inconsistent and arbitrary results in the method used by the [zoning enforcement officer]. Using the ‘straight line’ method, the court finds that the distance from the nearest corner of the 855 [Forest Road] building to the nearest corner of Saint Andrew’s Episcopal Church is 415.18 feet, and the distance from the nearest corner of the unit that contains 855 [Forest Road] to the nearest corner of the church is 460.62 feet. Both measurements are [fewer] than the 500 [feet required] in Zoning Regulation § 54.4.1. The retail liquor sales business at 855 [Forest Road] is in violation of the zoning regulation. . . .

         ‘‘Section 54.4.2 of the North Branford Zoning Regulations provides that ‘[n]o liquor outlet shall be located less than 1500 feet from an establishment with the same class permit.’ The presence of a liquor outlet at 855 [Forest Road] prevents the plaintiff from leasing 847 [Forest Road] as a liquor outlet because 847 [Forest Road] is less than 1500 feet from the business presently operating at855 [Forest Road]. When the building which includes 847 [Forest Road] was built [fifty] years ago it was designed as a package store and has been operated as a retail liquor store ever since, with [the defendant] as a tenant for [twenty-five] years.

         ‘‘The unlawful location of the retail liquor store at 855 [Forest Road] prevents the plaintiff from utilizing his property at 847 [Forest Road] for the purpose for which it was built and has been used for [fifty] years. The inability of the plaintiff to use his property for the purpose for which it was originally constructed and used for [fifty] years results in a reduction in the value of 847 [Forest Road]. Until the illegal relocation of [the defendant’s] liquor store to 855 [Forest Road] rendered the plaintiff unable to rent to a new liquor store operator, 847 [Forest Road] had no competition in the North-ford Center area. That competitive advantage has been taken away by [the defendant’s] ...


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