848, LLC v. Zoning Board of Appeals of West Haven

• Decision Date: 02 June 2016
• Docket Number: NNHCV156055150S
• Parties: 848, LLC v. Zoning Board of Appeals of West Haven
• Court: Superior Court of Connecticut

848, LLC v. Zoning Board of Appeals of West Haven

No. NNHCV156055150S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

June 2, 2016

June 6, 2016, Filed

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Edward T. Krumeich, J.

This is an appeal from the decision of the West Haven Zoning Board of Appeals (" ZBA") that denied an appeal from the decision of the Zoning Enforcement Officer (" ZEO"), who had declined to issue a certificate of zoning compliance requested by 848, LLC (" LLC"). In his letter dated February 20, 2015, the ZEO opined a new special permit was required to add adult entertainment to a site which had already been approved as a café with a bar in a special permit issued by the West Haven Planning and Zoning Commission (" P& Z") on April 24, 2012 (" 2012 Special Permit").

For the reasons stated below the appeal is denied and the ZBA's decision is affirmed.

Standard of Review

In Anatra v. Zoning Board of Appeals of Madison, 307 Conn. 728, 737-38, 59 A.3d 772 (2013), the Supreme Court addressed the standard of review applicable to judicial review of a Zoning Board of Appeal's review of a decision by a zoning enforcement officer on an application for a certificate of zoning compliance. " Generally, it is the function of a zoning board . . . 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. The trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." 307 Conn. at 737-38 (ellipsis in original) quoting Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 408-09, 920 A.2d 1000 (2007).

" 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 the board] 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 [board] . . . The question is not whether the trial court would have reached the same conclusion but whether the record before the [board] supports the decision reached . . . If the trial court finds 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." Woodbury Donuts, LLC. v. Zoning Board of Appeals of Woodbury, 139 Conn.App. 748, 759-60, 57 A.3d 810 (2012) (citations omitted).

A zoning board's actions must be approved if even one of the board's stated reasons is sufficient to sustain the action. See Blakeman v. Planning & Zoning Com'n of Shelton, 82 Conn.App. 632, 647, 846 A.2d 950 (2004).

The Anatra Court also distinguished between issues based on the interpretation of statutes, which presents a question of law subject to plenary review, and the question of whether the board properly denied an application for a certificate of compliance, which is " subject to review only to determine whether the board 'acted unreasonably arbitrarily, illegally or in abuse of its discretion.'" Anatra, 307 Conn. at 738 quoting Alvord, 282 Conn. at 409.

The Court will review aggrievement and each of the rationales cited by the ZBA for its decision to deny the appeal.

I Aggrievement

Plaintiff LLC has leased the premises from its record owner, Sardar, LLC, to operate a nightclub with adult entertainment. The West Haven Zoning Regulations (the " Regulations"), § 83.2.5, allow a " tenant" to request a certificate of zoning compliance as to the " exact status" of " any conforming or nonconforming use already established . . ." Counsel for the LLC explained that he requested a certificate of zoning compliance to confirm the planned use conformed to the existing special permit.

C.G.S. § 8-3 provides " [n]o building permit or certificate of occupancy shall be issued for a . . . use . . . subject to the zoning regulations of a municipality without certification in writing by the official charged with enforcement of such regulations that such . . . use . . . is in conformity with such regulations or is a nonconforming use . . ."

The LLC, as lessee of the subject property, is aggrieved pursuant to C.G.S. § 8-8(a), (b) by the ZBA's decision to require a new special permit to open a nightclub with adult entertainment. See Gregorio v. ZBA Windsor, 155 Conn. 422, 424-27, 232 A.2d 330 (1967).

II. The Special Permit Was Not Timely Recorded in the Land Records

Section 80.4.3 of the Regulations provides, in pertinent part, " [t]he applicant shall immediately record an approval [of a special permit], together with any restrictions or conditions, on the Land Records of the City of West Haven. Failure to record such Certificate [of Decision] within ninety (90) days of its issuance shall automatically void the grant thereof."

Section 92.3.7 provides " [a]n application approval shall be effective upon recording of the Certificate of Decision for the zoning relief granted in the West Haven Land Records within 90 days from the Notice of Decision date. An approval for which a Certificate of Decision has been issued but not recorded within such time shall automatically be null and void."

The parties agree that the Certificate of Decision approving the 2012 Special Permit was not recorded in the West Haven Land Records within ninety days after issuance of the P& Z's Certificate of Decision on April 12, 2012 as required by § 80.4.3 of the Regulations, but was recorded nearly three years later on April 5, 2015, forty-three days after the ZEO had issued his decision.^[1]

The LLC contends that the 90-day recording requirement in the Regulations is illegal because it conflicts with state law. C.G.S. § 8-3(d) provides that " [n]o special permit granted . . . shall be effective until a copy . . . is recorded in the land records . . ." The statute is silent as to time limits for recording.

In Town of Rocky Hill v. Securecare Realty, LLC, 315 Conn. 265, 295-96, 105 A.3d 857 (2015), the Supreme Court reiterated standards for determining whether state law preempts local ordinances and regulations:

" '[A] local ordinance is preempted by a state statute whenever the legislature has demonstrated an intent to occupy the entire field of regulation on the matter . . . or . . . whenever the local ordinance irreconcilably conflicts with the statute . . . Whether an ordinance conflicts with a statute or statutes can only be determined by reviewing the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates the achievement of the state's objectives.' . . . '[T]hat a matter is of concurrent state and local concern is no impediment to the exercise of authority by a municipality through [local regulation], so long as there is no conflict with the state legislation . . . Where the state legislature has delegated to local government the right to deal with a particular field of regulation, the fact that a statute also regulates the same subject in less than full fashion does not, ipso facto, deprive the local government to act in a more comprehensive, but not inconsistent, manner.' . . . A regulation is not necessarily inconsistent because it imposes standards additional to those required by a statute addressing the same subject matter . . . Where local regulation 'merely enlarges on the provisions of a statute by requiring more than a statute there is no conflict unless the legislature has limited the requirements for all cases.' . . . As long as the local regulation does not 'attempt to authorize that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict.'" 315 Conn. at 295-96 (citations omitted).

The Supreme Court in Rocky Hill was asked to review the application of local zoning regulations to a state contracted nursing home for prisoners. The Court looked to the statute granting state officials authority to enter into such a contract and concluded the Legislature did not intend to preempt the subject of location of a nursing home for state prisoners. The statute was silent as to the application of zoning laws and, as the Court observed, " [w]hen the legislature intends for a statutory provision to apply exclusive both of other statutes, and of other type of law, it knows how to say as much." Id., 315 Conn. at 296.

" As a general matter, zoning regulations do not bar outright particular uses of land, but require that they be conducted in certain areas or subject to various conditions. Thus, a regulation requiring a nursing home facility to be located in a particular zone, or to have a permit that might impose conditions on its operation, does not 'attempt to . . . forbid that which the legislature has expressly authorized' . . . but rather, properly subjects what the legislature has authorized to additional requirements . . ." Id., 315 Conn. at 297 (citations omitted).

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