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Parillo Food Group, Inc. v. Board of Zoning Appeals of city of New Haven

Court of Appeals of Connecticut

December 6, 2016

PARILLO FOOD GROUP, INC.
v.
BOARD OF ZONING APPEALS OF THE CITY OF NEW HAVEN

          Argued October 5, 2016

         Appeal from Superior Court, judicial district of New Haven, Blue, J.

          Proloy K. Das, with whom were Roderick R. Williams, assistant corporation counsel, and, on the brief, Sarah Gruber, for the appellant (defendant).

          Brian F. Valko, with whom was Amy P. Blume, for the appellee (plaintiff).

          Alvord, Sheldon and Mullins, Js.

          OPINION

          ALVORD, J.

         The defendant, the Board of Zoning Appeals of the City of New Haven, appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Parillo Food Group, Inc., from the defendant's decision granting the plaintiff's application for a special exception to operate a restaurant serving liquor that imposed a condition limiting its hours of operation. On appeal, the defendant claims that the court improperly concluded that it had no authority to limit the hours of operation of the plaintiff's restaurant.[1] Specifically, the defendant claims that the court (1) should have determined that municipal zoning boards have the authority to place temporal restrictions on special exception uses, (2) erroneously concluded that Connecticut's Liquor Control Act, General Statutes § 30-1 et seq., divests the defendant of its power to attach conditions limiting the hours of operation of restaurants that serve alcohol, and (3) erroneously concluded that the challenged condition was not integral to the defendant's approval of the special exception. We agree with the defendant's second claim and, accordingly, reverse the judgment of the trial court.[2]

         The record reveals the following facts and procedural history. The plaintiff leases property on State Street in New Haven, on which it operates a restaurant. The property is situated in a BA zone, and the area surrounding the restaurant is used for both residential and commercial purposes. Three dwelling units are located above the restaurant, and there also is a separate two-family dwelling located on the subject property. The use of the property as a restaurant began in the 1990s.

         In August, 2000, the defendant granted a special exception to Amato Bernardo that permitted the service of wine and beer in the then existing forty-two seat restaurant. In September, 2011, the plaintiff leased the restaurant portion of the property. In January, 2012, the restaurant was severely damaged by fire. The plaintiff expended approximately $15, 000 to rebuild the restaurant, and, on January 25, 2013, it filed an application for a special exception to operate a forty-seven seat restaurant with a full restaurant liquor permit. Additionally, the plaintiff requested permission to allow three on-site parking places instead of the twelve spaces ordinarily required for a forty-seven seat restaurant.

         The defendant held a public hearing on the plaintiff's application on March 12, 2013. Several individuals attended the hearing, some speaking in favor of the proposal and others speaking against it. Exhibits were submitted to the defendant, including an advisory report prepared by the New Haven City Plan Department (department) and an advisory report prepared by the New Haven City Plan Commission (commission). At a voting session held on April 9, 2013, the defendant's board members discussed the plaintiff's application and the commission's suggestions in its report. The members voted unanimously to approve the special exception subject to the five conditions stated in that report. By letter dated April 12, 2013, the defendant notified the plaintiff of its decision. The plaintiff appealed to the Superior Court, challenging the authority of the defendant to impose the conditions.

         The trial court held a hearing on November 13, 2014. The court heard testimony from Daniel Parillo, the president of the plaintiff corporation, and found that the plaintiff was aggrieved.[3] Following that determination, the parties' counsel presented their arguments to the court. They agreed that the pivotal issue before the court was whether the defendant had the authority to impose a limitation on the hours of the restaurant's operation as set forth in the first condition attached to the special exception. That condition provided: ‘‘Hours of operation not to extend past 11:30 p.m. daily. (Consistent with conditions attached to similar requests in this neighborhood.)'' Although not expressly alleged in its administrative appeal or argued in its pretrial brief, plaintiff's counsel claimed at the hearing that the provisions of the Liquor Control Act governed the hours of operation for restaurants authorized to provide full liquor service.[4] According to the plaintiff, only a town, by vote of a town meeting or by ordinance; see General Statutes § 30-91 (b);[5] could limit those hours of operation. The trial court allowed both parties to submit supplemental briefs addressed to that particular issue.

         The court issued its memorandum of decision on December 12, 2014. The court made the following determination: ‘‘Local authorities unquestionably have a general power to regulate health, safety, and welfare factors affecting establishments where liquor is sold. . . . Such regulation must, however, be done in a comprehensive, but not inconsistent, manner. . . . When local authorities seek to regulate the hours of operation of establishments selling alcoholic beverages . . . § 30-91 (b) tells them exactly how to do this. They must do so by vote of a town meeting or by ordinance.'' (Citations omitted; internal quotation marks omitted.) Citing Bora v. Zoning Board of Appeals, 161 Conn. 297, 302, 288 A.2d 89 (1971), and Greenwich v. Liquor Control Commission, 191 Conn. 528, 540, 469 A.2d 382 (1983), the court concluded that the defendant could not limit the hours of sale of alcohol under the guise of zoning. Accordingly, the court found the condition limiting the plaintiff's hours of operation to be illegal. After finding that the condition was not an integral component of the defendant's decision, the court modified that decision by removing that condition from the approval of the special exception. The defendant filed the present appeal after this court granted its petition for certification to appeal.

         We first set forth the applicable legal principles and standard of review that guide our analysis. ‘‘In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, [6] according to which, [c]onclusions reached by [a zoning] commission 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 [commission]. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached. . . . If a trial court finds that 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.'' (Citations omitted; footnote added; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).

         With respect to special exceptions, ‘‘General Statutes § 8-2 (a) provides in relevant part that local zoning regulations may provide that certain . . . uses of land are permitted only after obtaining a special permit or special exception . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. . . . The terms special permit and special exception are interchangeable. . . . 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 themselves as well as the conditions necessary to protect the public health, safety, convenience and property values. . . . An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district. . . . When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity. . . . [Its] function . . . [is] 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. . . . We have observed that the nature of special [permits] is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site. . . . Review of a special permit application is inherently fact-specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed facility would be built.'' (Citations omitted; internal quotation marks omitted.) Meriden v. Planning &Zoning Commission, 146 Conn.App. 240, 244-45, 77 A.3d 859 (2013). When considering an application for a special permit, a zoning board is called upon to make a decision as to whether a particular proposal would be compatible with the particular zoning district ‘‘under the circumstances then existing.'' Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 614, 610 A.2d 1205 (1992).

         ‘‘The general conditions such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. . . . [B]efore the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood. . . . Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process. . . . If the special permit process were purely ministerial there would be no need to mandate a public hearing.'' (Internal quotation marks omitted.) Children's School, Inc. v.Zoning Board of Appeals, 66 Conn.App. 615, 619-20, 785 A.2d 607, cert. denied, 259 Conn. 903, 789 A.2d 990 (2001). Where a special exception is involved, ‘‘the board may impose conditions only to the extent ...


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