PARILLO FOOD GROUP, INC.
BOARD OF ZONING APPEALS OF THE CITY OF NEW HAVEN
October 5, 2016
from Superior Court, judicial district of New Haven, Blue, J.
K. Das, with whom were Roderick R. Williams, assistant
corporation counsel, and, on the brief, Sarah Gruber, for the
F. Valko, with whom was Amy P. Blume, for the appellee
Alvord, Sheldon and Mullins, Js.
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. 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.
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.
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.
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.
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. 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. According to the plaintiff, only a town,
by vote of a town meeting or by ordinance; see General
Statutes § 30-91 (b); could limit those hours of operation.
The trial court allowed both parties to submit supplemental
briefs addressed to that particular issue.
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.
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,  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).
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).
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 ...