HOCAP, Corp. v. Planning and Zoning Commission of City of Bridgeport
| Decision Date | 22 March 2016 |
| Docket Number | CV156049623S |
| Court | Connecticut Superior Court |
| Parties | HOCAP, Corp. v. Planning and Zoning Commission of the City of Bridgeport et al |
UNPUBLISHED OPINION
The Defendant, 500 North Avenue, LLC, is the owner of property known as 500, 472 and 436 North Avenue, in the City of Bridgeport. The parcels collectively form a triangular parcel, consisting of .8133 acres, which has 356 feet of frontage along North Avenue.
This appeal involves a decision of the Planning and Zoning Commission of the City of Bridgeport, concerning a certificate of Zoning Compliance, issued to 500 North Avenue LLC, on May 6, 2013. On March 30, 2015, the Commission granted a second extension of the Certificate of Zoning Compliance, through May 19, 2016.
The extension was approved on March 30, 2015, by the Planning and Zoning Commission, as part of a " Consent Agenda." (ROR 6, p. 18.) The Commission provided no collective reasons in support of its action.
The Plaintiff, HOCAP Corporation, instituted this appeal claiming that the Planning and Zoning Commission lacked the authority, either under the General Statutes or the Bridgeport Zoning Regulations, to grant an extension of the Certificate of Zoning Compliance.
Although this appeal involves the narrow issue surrounding the Certificate of Zoning Compliance, a review of the history concerning attempts by 500 North Avenue, LLC, to develop the subject property is necessary, in order to provide context.
In November of 2006, 500 North Avenue, LLC applied to the Bridgeport Zoning Board of Appeals, seeking six (6) variances. At the time, 500 North Avenue, LLC, contemplated using the property as a restaurant.
Among the variances sought by the property owner, was a waiver of the so-called " 1, 500 foot rule, " regarding the sale of alcoholic beverages. At the time of the application the Bridgeport Zoning Regulations, S. 12-10b read:
No building or premises shall be used either in whole or in part for the sale of alcoholic liquor under any tavern, restaurant, druggist or all alcohol liquor package store permit . . . if any entrance to such building . . . shall be within 1, 500 feet in any direction from the entrance to any other building or premises which shall be used for the sale of alcoholic liquor.
The Bridgeport Zoning Board of Appeals granted some of the requested variances, including the waiver of the 1, 500-foot rule.
The Plaintiff, HOCAP Corporation, appealed from the granting of the variances, and the appeal was sustained (CV-07-4021351 S).
Effective January 1, 2010, S. 12-10b of the Zoning Regulations was amended. The new regulation stated:
No building or premises with a liquor permit issued by the State Liquor Control Commission, other than a full service restaurant as defined by the State Liquor Commission, shall be used, in whole or in part, for the sale of alcoholic liquor if the entrance to such building or premises within the territorial limits of the City of Bridgeport, shall be within 1, 500 feet in any direction of the entrance to any other building or premises which shall be used for the sale of alcoholic liquor which is of the same or different class or permit. (Emphasis added.)
On February 25, 2010, following the adoption of the amendment to the Bridgeport Zoning Regulations, 500 North Avenue, LLC submitted a petition to the Planning and Zoning Commission, seeking a special permit. The special permit asked for a restaurant with a full service liquor license, and billiard parlor.
A restaurant is a permitted use in a Mixed Use Light Industrial (MULI) Zone, the zoning classification applicable to the property. The proposal envisioned demolishing an existing 3, 533-square-foot building, and replacing it with a package store and a restaurant.
Given the recently adopted amendment to S. 12-10b, no variance was required from the Zoning Board of Appeals.
On August 6, 2010, the special permit application was approved by the Bridgeport Planning and Zoning Commission, subject to six (6) conditions.
HOCAP Corporation appealed the approval of the special permit application. The appeal (CV-10-6012247 S) was dismissed.
500 North Avenue, LLC also instituted suit in United States District Court for the District of Connecticut (Case 3: 10-CV-01281-JBA). Named as Defendants in the action were the City of Bridgeport, and Dennis Buckley, the Zoning Enforcement Officer of the City of Bridgeport.
The action claimed, pursuant to 42 U.S.C. S. 1983, that provisions adopted as part of an Adult Entertainment Facilities ordinance adopted by the City of Bridgeport, violated rights, guaranteed under the First and Fourteenth Amendments of the Constitution of the United States.
The parties to the Federal action entered into a " Consent Agreement" while the suit was pending. The agreement encompassed several properties, including the parcel which is the subject of this appeal.
Under the agreement, the use of the property for the use contemplated by the property owner would be deemed a pre-existing nonconforming use of the property. A clause in the " Consent Agreement" (Par. 2) required Zoning Enforcement Officer Dennis Buckley to issue a certificate of zoning compliance for 500 North Avenue, as a prerequisite to applying for a building permit, permitting the construction of the restaurant, consistent with the special permit approved in 2010.
Following the approval of the " Consent Agreement, " which is dated January 5, 2013, 500 North Avenue, LLC applied for and received a certificate of zoning compliance.
The certificate, which was approved by Dennis Buckley on May 6, 2013, described the work to be performed as " renovate for proposed restaurant" (7.766 sq. ft.) and for " retail space" (1, 800 sq. ft.). The proposed use of the vacant property was " Full service restaurant with liquor, pool tables and Adult Entertainment (Exotic Dancers)."
The Certificate of Zoning Compliance contained the following language:
EXPIRATION : The application for Certificate of Zoning Compliance approval shall expire 12 months from the date of approval, unless a building permit has been issued and construction has commenced and is being diligently pursued."
An initial one-year extension, according to 500 North Avenue, LLC, was obtained on May 14, 2014. (ROR 2.) On February 12, 2015, a second extension was sought (ROR 1) from the Bridgeport Planning and Zoning Commission. The proposed use mirrored the initial certificate of zoning compliance:
The approval of the one-year extension was placed on the March 30, 2015 (ROR 3) agenda of the Bridgeport Planning and Zoning Commission, under the " Consent Agenda." An extension of the Certificate of Zoning Compliance was approved (ROR 3; ROR 5), after brief discussion (ROR 7). No collective reasons of the commission were given in support of the action.
Notice of the decision was published in the Connecticut Post (ROR 4), and this timely appeal by HOCAP Corporation followed.
HOCAP Corporation claims that the Bridgeport Planning and Zoning Commission lacked the authority to grant the extension voted on Mach 30, 2015. It argues that the Certificate of Zoning Compliance is null and void, because a building permit did not issue, and construction did not commence, within one year. During the pendency of this appeal, and following trial, 500 North Avenue, LLC completed an Application for Certificate of Zoning Compliance, which mirrored in its essential terms, the Application for Certificate of Zoning Compliance dated April 13, 2013. (ROR 1.) The application was made on December 15, 2015.
The application was approved on December 15, 2015, by the Zoning Department of the City of Bridgeport, acting through Zoning...
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