Karp v. Zoning Bd. of City of Stamford

• Decision Date: 02 April 1968
• Citation: 156 Conn. 287,240 A.2d 845
• Court: Connecticut Supreme Court
• Parties: Charles M. KARP et al. v. ZONING BOARD OF the CITY OF STAMFORD et al.

Page 845

240 A.2d 845

156 Conn. 287

Charles M. KARP et al. v. ZONING BOARD OF the CITY OF STAMFORD et al.

Supreme Court of Connecticut.

April 2, 1968.

Isadore M. Mackler, Stamford, for appellants (plaintiffs).

E. Gaynor Brennan, Jr., Stamford, for appellees (defendants Coppola et al.).

Theodore Godlin, Asst. Corp. Counsel, for appellant (named defendant).

Before ALCORN, HOUSE, COTTER, THIM and RYAN, JJ.

COTTER, Associate Justice.

The intervening defendants filed an application with the zoning board of the city of Stamford to amend § 14 of the zoning regulations of the city entitled 'Dispensing of Alcoholic Liquors' by adding a new subsection as follows: 'H-The fifteen hundred foot restriction of this section shall not apply to removal of an existing (1) package store permit or (2) druggist permit issued by the Liquor Control Commission if the existing site or location is being taken or threatened to be taken in the exercise of eminent domain. No building or premises shall be approved in such case however, if the new premises applied for shall be within 1000 feet radius from any building or premises then being used for the sale of alcoholic liquor under (1) a package store permit or (2) a druggist permit issued by the Liquor Control Commission.' The amendment was approved by vote of the board, and the plaintiffs took an appeal to the Court of Common Pleas, which sustained the action of the board and rendered judgment dismissing the appeal. The appeal is taken from that judgment.

The Stamford zoning regulations, inter alia, prohibit the use of premises for 'the sale of alcoholic liquor, wine, beer or * * * (ale)' under package store and druggist permits 'if any entrance to such building or premises shall be within 1500 feet radius from any other building or premises being used for the sale of alcoholic liquor's under such permits. Any permittee, however, may 'move said place of business to another building or premises within the 1500 feet at a radius above described, provided said other building or premises is not more than 750 feet from the building or premises formerly occupied by said permittee' and provided 'the new location is in a district where such use is permitted.' Stamford Zoning Regs., § 14(B) (amended to 1965). The validity of this regulation is not under attack in this case, nor was it questioned in Neuger v. Zoning Board, 145 Conn. 625, 627, 145 A.2d 738, or Winslow v. Zoning Board, 143 Conn. 381, 384, 122 A.2d 789.

The plaintiffs claim that the action of the board is illegal, arbitrary and in abuse of its discretion because the amendment to the zoning regulations as adopted is in conflict with § 30-52 of the General Statutes and is not in accordance with the comprehensive plan of zoning and because the action of the board is a violation of the fourteenth amendment to the United States constitution and article first, §§ 1 and 20, of the Connecticut constitution in that the amendment creates a classification which is unreasonable and discriminatory in its application to package liquor stores or drug stores holding liquor permits and results in dissimilar treatment of persons or things similarly situated.

I

The zoning regulations in the city of Stamford may be amended from time to time by the zoning board, which thereby acts in a legislative capacity. Stamford Charter § 551; 26 Spec.Laws p. 1234. Zoning in Stamford is governed by charter provisions. Luery v. Zoning Board, 150 Conn. 136, 146, 187 A.2d 247.

There is a distinction between the functions and powers of the liquor control commission and those of a zoning board. It is provided by statute, for example, that the liquor control commission shall refuse permits for the sale of alcoholic liquor where they are prohibited by the zoning ordinance of any city or town. General Statutes § 30-44. The extent to which a town has a voice in and control over the sale of alcoholic liquor is illustrated by the local-option statute, which gives a town the right to exercise its option to prevent the sale of alcoholic liquor within its boundaries. General Statutes § 30-9. The town has the power, through its zoning authority, to restrict the use of buildings for the sale of alcoholic liquor to certain zones or districts but cannot, on the other hand, limit the number of liquor outlets in a town since this authority has been delegated to the liquor control commission by the state. General Statutes §§ 30-46-30-48; State ex rel. Haverback v. Thomson, 134 Conn. 288, 292, 57 A.2d 259.

Consideration of the amendment was occasioned by the taking through eminent domain, of a large area in the city for the purposes of redevelopment. The relocation of liquor outlets which would be disturbed by the taking of land for urban redevelopment was a proper basis upon which the zoning board could act as it did, having in mind the flexibility which must exist to meet the demands of changing conditions. See Malafronte v. Planning & Zoning Board, 155 Conn, 205, 209, 230 A.2d 606. It has been recognized not only in General Statutes § 30-52, the statute which the plaintiffs claim is in conflict with the amendment, but in our case law that the taking of permit premises by eminent domain is an 'exceptional circumstance'; that it may be a proper consideration upon which to base a determination to permit a new location to be used for the sale of alcoholic liquor; and that the action of the board in reaching such a decision has been found to have been reasonable so as not to warrant judicial interference. Nielsen v Board of Appeals on Zoning, 129 Conn. 285, 289, 27 A.2d 392; Mabank Corporation v. Board of Zoning Appeals, 143 Conn. 132, 136, 120 A.2d 149. Although the cases cited concern variances based upon so-called hardship, a board acting as the one did in a legislative capacity certainly may consider such an obvious and precedent-established distinction in its treatment of an amendment concerning a use so circumstanced.

The authority over permits under General Statutes, title 30, chapter 545, 'Liquor Control Act,' part 4, and particularly § 30-52, which is partially quoted in the footnote, ¹ applies generally throughout the state, but the statutes do not preempt the power of the local legislative zoning authority in the area of zoning vis a vis those provisions delegated to the liquor control commission under the Liquor Control Act to regulate the liquor industry. The zoning authority may adopt a more liberal standard in a situation such as this where an existing site may be taken of threatended to be taken in the exercise of eminent domain. The amendment adopted by the zoning board is not in conflict with General Statutes § 30-52, and as a zoning regulation it is compatible with it. The statute may have particular application to those situations in other communities throughout the state in which a local zoning authority has failed to make any provisions for a hardship situation created by a taking in eminent domain. In such cases, the 750-foot rule promulgated in § 30-52 will, to that extent, provide a remedy to a permittee from the consequences of a set of circumstances not of his own making. Stapleton v. Zoning Board of Appeals, 149 Conn. 706, 709-712, 183 A.2d 750.

II

The plaintiffs claim an infirmity in the amendment as adopted because it permits a removal to any district without restriction, whether or not it is zoned for business. The zoning regulations, however, permit the use of buildings for drugstores and package liquor stores only in certain districts, i.e., industrial or business districts. Such uses are not allowed in any of the residential districts. Stamford Zoning Regs., Land Use Schedule, table I and table 2 items (87) and (133) (amended to 1965). The regulations are to be construed as a whole, and the provisions of the amendment (§ 14(H)) must be read together with the portion of the regulations which would limit the relocation of a drugstore or package liquor store to a district in which such a use is permitted by the land use schedules of the zoning regulations. Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. --, 236 A.2d 917. As a matter of construction it is proper to read the zonal use requirements or restrictions into the amendment. ,' premises may be used for the sale of liquor in certain zones only.' Miller v. Zoning Commission, 135 Conn. 405, 408, 65 A.2d 577, 9 A.L.R.2d 873.

In Stamford, the comprehensive plan is to be found in the master plan and the zoning regulations. Luery v. Zoning Board, 150 Conn. 136, 143, 187 A.2d 247. The amendment is one of general application, affecting all within a given class, namely, package liquor stores and drugstores. The locations in which such stores are permitted were established before the passage of the amendment we are considering, and the zoning regulations which divided the municipality into districts for purposes of zoning and which provided for the use of buildings and land within such districts have not been challenged in this action. Since the relocation of a liquor package store or a drug store can only be made in a business or industrial zone as established by the restrictions in the zoning regulations, violence is not done to the comprehensive, plan, and the effect of the amendment in its general application cannot be said to be spot zoning. Metropolitan Homes, Inc. v. Town Plan & Zoning Commission, 152 Conn. 7, 12, 202 A.2d 241.

III

The guaranty of equal protection is 'aimed at undue favor and individual of class privilege, on the one hand, and at hostile discrimination or the oppression of inequality, on the other.' Truax v. Corrigan, 257 U.S. 312, 332, 42 S.Ct. 124, 129, 66 L.Ed. 254; 16 Am.Jur.2d, Constitutional Law, § 335 p. 643, § 485 p. 846. Equal protection of the laws forbids all invidious discrimination but does not demand identical treatment for all persons without consideration of differences in relevant circumstances. Norvell v. State of Illinois, ...