P.X. Restaurant, Inc. v. Town of Windsor
| Decision Date | 01 February 1983 |
| Citation | 189 Conn. 153,454 A.2d 1258 |
| Court | Connecticut Supreme Court |
| Parties | P.X. RESTAURANT, INC. v. TOWN OF WINDSOR. Anthony L. MARTORELLI, President, P.X. Restaurant, Inc. v. John H. PRATT, Acting Building Official, Town of Windsor. |
Aaron P. Slitt, Hartford, for appellant (plaintiff in each case).
Andrew G. Messina, Jr., Windsor, for appellee (defendants John H. Pratt et al.).
Wayne C. Gerlt, South Windsor, for appellees (defendants Mario Laiuppa et al.).
Before PETERS, HEALEY, PARSKEY, SHEA and SPONZO, JJ.
In this appeal the unchallenged facts are summarized as follows: In 1980 the plaintiffs, P.X. Restaurant, Inc., as backer and Anthony L. Martorelli as permittee applied to the department of liquor control for permission to remove their restaurant business having a restaurant liquor permit to another location. The plaintiffs sought permission to move their business from 422 Windsor Avenue, Windsor, where it had been operated for more than twenty years to a location at 425 Windsor Avenue, directly across the street. After a hearing before the liquor control commission, the department granted this application pursuant to the provisions of General Statutes § 30-52. 1 The commission found that the town of Windsor had acquired the premises located at 422 Windsor Avenue in 1975 through negotiations but under the threat of the exercise of the power of eminent domain. The commission also found that the new location was in a business zone and within a radius of 750 feet from the present location. Although the town of Windsor and the intervening defendants, Mario Laiuppa and Rejeanne Laiuppa, appealed from this action of the department of liquor control, the town of Windsor withdrew its appeal and the intervening defendants' appeal was dismissed because of a lack of aggrievement.
Shortly after the approval of their application to remove, the plaintiffs made application to the defendant, John H. Pratt, acting building inspector of Windsor, for a building permit to make alterations to the premises located at 425 Windsor Avenue. Pratt denied this application on the ground that there were numerous violations of the Windsor zoning ordinances and regulations. The plaintiffs concede that the size of the proposed building at 425 Windsor Avenue, the number of available spaces for parking cars and the lack of a buffer zone constitute violations of the zoning ordinances and regulations.
On July 22, 1980, the plaintiffs filed an action in the Superior Court in which they sought a writ of mandamus to compel Pratt to issue a building permit. At the same time there was pending an action for eviction in the Housing Session of the Superior Court in Hartford wherein the town of Windsor had obtained a stipulated judgment against the plaintiffs, which judgment provided for a stay of execution until July 31, 1980.
The plaintiffs then filed an action in the Housing Session of the Superior Court in which they sought a restraining order and a permanent injunction enjoining the town of Windsor from seeking execution of the summary process judgment. On July 29, 1980, the court granted a temporary injunction. Thereafter, on motion by the plaintiffs, the action for mandamus and the action for injunctive relief were consolidated for the purpose of trial.
The plaintiffs have appealed from the judgments rendered against them in both actions. They assign three claims of error, namely: (1) that the court exceeded the scope of permissive inquiry by interpreting General Statutes § 30-52 since the department of liquor control had decided the issue and the appellate process had been exhausted; (2) that the court was incorrect in its interpretation of § 30-52; and (3) that the court erred in permitting Mario and Rejeanne Laiuppa to be defendants in the mandamus action.
In the interest of brevity and clarity we shall consider the first two claims of error together because the resolution of the statutory construction issue will determine the disposition of the issue of estoppel. In support of their claim that the court erred in its interpretation of General Statutes § 30-52 the plaintiffs rely on the difference in wording of two clauses of § 30-52. The "hardship" or "eviction" provision reads as follows: (Emphasis added.)
The plaintiffs concede that, if this portion of the statute were applicable, they would not be entitled to a building permit from Pratt because the local zoning ordinances and regulations would prevail. These plaintiffs contend, however, that they are entitled to the building permit because of the "eminent domain" provision of this same statute, which reads as follows: "If the site of any permit premises is taken or threatened to be taken in the exercise of the power of eminent domain, the department may authorize the relocation of such permit premises to a new location, any local ordinance or general statute notwithstanding, provided such new location is zoned for business use and is within a radius of seven hundred fifty feet from the point, on the boundary of the overall site of the proposed taking, nearest to the site of such permit premises." (Emphasis added.)
It is conceded by the plaintiffs that the department of liquor control granted their application to relocate their liquor permit pursuant to § 30-52 of the General Statutes. In order to be entitled to a writ of mandamus the following essential conditions must exist: "(1) that the party against whom the writ is sought must be under an obligation imposed by law to perform some such duty, that is, a duty in respect to the performance of which he may not exercise any discretion; (2) that the party applying for the writ has a clear legal right to have the duty performed; and (3) that there is no other sufficient remedy." Bassett v. Atwater, 65 Conn. 355, 360, 32 A. 937 (1895); Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 534, 450 A.2d 369 (1982).
In determining whether the essential conditions exist, we must examine § 30-52 closely. If the words of a statute are clear, the duty of a reviewing court is to apply the legislature's directive since "where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended but what intention it expressed by the words that it used." Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980); Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982).
The meaning of the "hardship" provision that the "new location shall comply with all other provisions of the local zoning ordinances or general statutes" and the "eminent domain" provision that "any local ordinance or general statute notw...
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