Loring v. Planning and Zoning Com'n

• Decision Date: 15 July 2008
• Docket Number: No. 17886.,No. 17887.,17886.,17887.
• Citation: 950 A.2d 494,287 Conn. 746
• Parties: Dennis LORING et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF NORTH HAVEN.
• Court: Connecticut Supreme Court

950 A.2d 494

287 Conn. 746

Dennis LORING et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF NORTH HAVEN.

No. 17886.

No. 17887.

Supreme Court of Connecticut.

Argued November 27, 2007.

Decided July 15, 2008.

Jennifer N. Coppola, with whom was Jeffrey M. Donofrio, North Haven, for the appellant (defendant).

Daniel A. Silver, New Britain, for the appellee (named plaintiff).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

KATZ, J.

The defendant, the planning and zoning commission of the town of North Haven (commission), appeals from the judgment of the trial court sustaining the appeal of the named plaintiff, Dennis Loring,¹ from the commission's decision denying the plaintiff's site plan application seeking to locate an adult, sexually oriented book and video store in a shopping plaza in North Haven (town). The commission's principal claim is that the trial court improperly substituted its judgment for that of the commission in determining that the plaintiff's proposed accessory use of fifteen video preview booths is customarily incidental to his proposed primary use of an adult book and video store, and hence a valid accessory use. The commission further contends that the trial court improperly ordered it to approve the application rather than remand the case back to the commission for further proceedings. We affirm the trial court's judgment.

The record reveals the following undisputed facts and procedural history. Dell'Oro Plaza is a shopping plaza located on Washington Avenue in a commercially zoned district in the town. Prior to May, 2005, approximately 1576 square feet of the plaza had been leased for use as a barber shop and a karate studio. In May, 2005, the plaintiff submitted an application to the commission seeking permission to change the use of that part of the plaza to: "Retail—Adult Book and Video Store with Video Preview Booths." The plaintiff cited § 6.1.11 of the North Haven zoning regulations as authority for the proposed use; that regulation lists "[b]asic neighborhood stores" as a permitted use in commercial zones.² There was significant opposition to the application from town residents.

On July 11, 2005, the plaintiff first appeared before the commission on the application through his attorney Daniel Silver, and his professional engineer, Gordon Bilides. Because the plaintiff had submitted a revised site plan in response to initial comments from the town's land use administrator, Alan Fredricksen, that neither the commission nor the town's land use staff had been able to review prior to the meeting, the plaintiff agreed to waive the requisite time limitation for acting on an application and to postpone further discussions until August 1, 2005. Before adjourning, however, there was a brief discussion on the video preview booths. Specifically, commission chairman Dominic Palumbo asked how many people would be able to use a booth at one time and how many booths would be on site. Silver responded that only one person per booth could view at a time and that, although the number of booths had not yet been determined, this information would be made known to the commission at or before the next meeting. Commission member James Giulietti then noted to Palumbo that, "in terms of preparation, [Giulietti] would like the [plaintiff] to be aware that [the commission is] looking into whether or not viewing booths are a permitted use," a statement with which Palumbo concurred.

On July 18, 2005, Fredricksen received a letter from Silver providing further information about the video preview booths. Silver indicated therein that the plaintiff "is seeking to provide fifteen ... video preview booths which [constitute] an accessory use and [are] customarily incidental to the permitted uses of a retail book and video store under [the town's] existing [z]oning [r]egulations." Silver further indicated various steps that the plaintiff would undertake to ensure that only one person would be able to view a video in a booth at a time. Although Silver indicated his willingness to address any problems or concerns with the application and accompanying site plan, he did not hear from the town's land use officials prior to the August 1, 2005 commission meeting.

At the August 1 meeting, Silver began his statements to the commission by noting that the revised site plan application had dealt with all but two issues that had been raised by the town's land use staff in its previous review of the application: the adequacy of landscaping around the dumpster and lighting. After Bilides addressed those issues, the commission raised questions regarding the irrigation system and the lighting plan. Silver assured the commission that, if the application was approved, the plaintiff would work with the town's staff to address the commission's concerns.

After addressing those issues, Silver turned to the issue that had been raised the previous month regarding the video preview booths. Silver asserted at the outset that the booths were a valid accessory use to the permitted use under the town's regulations. He then provided the following information in response to questions by commission members. The fifteen video booths each would be four feet square, with a door that locked. Only one person would be permitted to enter a booth at a time, and no loitering would be permitted outside the booths if all fifteen were occupied. The booths were coin operated with the cost of viewing one quarter per minute. Beyond eliciting information about the booths, various commission members expressed concerns as to whether the booths were a customary part of the video business when facilities like Blockbuster video stores have no preview booths and as to whether a customer could watch more than one minute of a video. Silver responded to these concerns by explaining that, although there was no mechanism to preclude a patron from paying to view for an unlimited period of time, the booths were not provided for that purpose. Rather, the sale of the videos "depends on the ability to have these preview booths" because, unlike mainstream media products for which there are preview facilities or reviews, "adult sexually oriented materials" had no such outlets. Silver further asserted, citing his extensive experience representing clients similar to the plaintiff, that these booths were customary in adult book and video stores. Two commission members, Palumbo and Giulietti, responded with statements indicating that they accepted Silver's statement that the booths were customary in adult book and video stores.³ After a brief discussion off the record, the commission unanimously voted to deny the site plan application. The two stated reasons were: (1) "[v]ideo preview booths are not a permitted use"; and (2) "[t]here is no suitable/adequate parking for a use including fifteen ... video preview booths."

Pursuant to General Statutes § 8-8, the plaintiff appealed from the commission's decision to the Superior Court, contesting both grounds as arbitrary, illegal and an abuse of discretion. The plaintiff further contended that the commission's decision as to the adequacy of the parking violated fundamental fairness, because the commission never had indicated that there was any issue with the number of parking spaces and therefore had provided the plaintiff with no opportunity to respond to such a concern. The trial court sustained the plaintiff's appeal.

With respect to the first reason for the denial, the court noted that both sides had framed the issue "as to whether the fifteen preview booths could be considered an accessory use." More specifically, the court noted: "The commission did not say [in its decision] that an adult bookstore as such was not a permitted use; it said only [that] video booths were not a permitted use. In light of the regulation's provision for accessory uses to the primary use [North Haven Zoning Regs § 6.1.71]⁴ the issue here must be whether the video booths were an accessory to the primary use which is an adult bookstore. This is how the [commission's] brief addresses the problem, arguing as it does that video booths in the context of this case and record cannot be considered an accessory use."

The court cited this court's seminal case on accessory uses, Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511-13, 264 A.2d 552 (1969), for the following guiding principles: "[An] accessory use [is] a use which is customary in the case of a permitted use and incidental to it.... An accessory use under a zoning law is a use which is dependent on or pertains to the principal or main use.... The word incidental as employed in a definition of accessory use incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance. ... But incidental, when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of incidental would be to permit any use which is not primary, no matter how unrelated it is to the primary use....

"Although [the word customarily] is used in this and many other ordinances as a modifier of incidental, it should be applied as a separate and distinct test. Courts have often held that use of the word customarily places a duty on the board or court to determine whether it is usual to maintain the use in question in connection with the primary use of the land.... In examining the use in question, it is not enough to determine that it is incidental in the two meanings of that word as discussed [previously]. The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use.... In situations where there is no ... specific provision in the ordinance,...