Success, Inc. v. Zoning Comm'n of Stratford
| Decision Date | 28 September 2016 |
| Docket Number | CV166054518S |
| Court | Connecticut Superior Court |
| Parties | Success, Inc. v. Zoning Commission of the Town of Stratford et al |
UNPUBLISHED OPINION
The Plaintiff, Success, Inc., seeks to thwart the desire of the Defendant, J& R's Pub, LLC to reopen a restaurant at 590 Success Avenue, Stratford. The previous restaurant, known as The Village Pub, operated within a portion of a commercial building in the property for many years, before it was forced to close due to a fire.
Since The Village Pub had been closed for more than one year, a new application for special case (special permit) approval for a liquor location was filed with the Defendant, Stratford Zoning Commission.
590 Success Avenue is located in a Retail Commercial (RC) District, in which a restaurant with a liquor permit is a permitted use. However, Section 15.1 of the Stratford Zoning Regulations requires that any establishment selling alcoholic beverages must obtain special case approval from the Zoning Commission. Section 15.0 provides:
No building or lot or any portion thereof shall be used for the sale, of alcoholic liquor, beer, ale or wine unless such building or lot is located in a district appropriate for the class of permit sought in accordance with section 15.8 of these regulations and shall have been approved by the Zoning Commission. Such approval shall be given only after public hearing and upon the affirmative vote of four or more members of said Commission. In determining whether or not an application shall be approved, the Commission shall take into consideration the proximity of the premises to churches schools, libraries, public playgrounds or any places frequented by minors, together with the number of premises having permits of any class allowing the sale or consumption of alcoholic beverages in the immediate neighborhood. The Zoning Commission may refuse to approve any location for the sale of alcoholic liquor, wine, beer, or ale, if it has reasonable cause to believe that the number of approved locations for all classes of permits in an immediate neighborhood is such that the approval of another location in the locality is detrimental to the public interest. In reaching a conclusion in this respect, the Commission may consider the character of, the population of, the number of approved permit locations in, the neighborhood concerned, and the effect which a new permit location may have on such neighborhood.
Unlike some municipalities, Stratford, in its Zoning Regulations does not mandate a specific distance between liquor outlets (ROR 8).
On October 27, 2015, J& R's Pub LLC, acting through Richard Riordan, filed a special case petition (ROR 1) with the Stratford Zoning Commission. The application sought to establish a restaurant with a liquor permit, within the portion of a commercial building once used as The Village Pub. The area consists of approximately 1, 700 square feet (ROR 2), and is adjacent to a Central American restaurant which has a restaurant liquor permit (ROR 8). The building has approximately ten (10) tenants.
A public hearing concerning the special case application was noticed (ROR 12) for November 24, 2015. Prior to the hearing neighboring property owners, including the Plaintiff Success, Inc., were notified of the application to obtain approval for a Restaurant Liquor permit (ROR 6). An establishment operating with a Restaurant Permit, may be located in CA Zoning District, as a Class D permit.[1]
Richard Riordan told the Zoning Commission that he would be a partner in the business, along with Jon Redmond, who was a part owner of The Village Pub, before the fire forced its closure (ROR 14, p. 1). The proposal is to establish a neighborhood bar, and restaurant, which, according to the applicant, would not constitute a significant change in the use of the property prior to the fire.
In response to question concerning " schools, churches, playgrounds and the like, " Reardon replied " there's nothing there." (ROR 14, p. 2.)
In his review of the application, submitted as part of the record, (ROR 8) Planning and Zoning Administrator Gary Lorentson observed:
The only opposition to the special case application was voiced by Nicholas Owen, on behalf of the Plaintiff, Success, Inc.
Owen, who describes himself as conducting a " real estate, building and consulting business from time to time on zoning issues, " (ROR 14, p. 3) immediately acknowledged that 520 Success Avenue, an abutting parcel owned by Success, Inc., is the site of a liquor location. After denying that Success, Inc.'s opposition to the special case petition was motivated by a desire to limit competition, Owen portrayed himself as the champion of unnamed residents of Success Village, a residential community located nearby.
While no letters or petitions were submitted in opposition to J& R's special case application, Owen maintained that " a number of people I have spoken to in the past week are opposed to a reissuance of a liquor permit at this location." (ROR 14, p. 3.) He declined to identify, either by name or by address, any of the individuals.
The advocate for Success, Inc., then alleged: " Next door to this particular application . . . there is a liquor store . . ." This claim was demonstrated to be false. There is no liquor store in the complex, only a restaurant with a liquor permit (ROR 14, p. 5).
Quoting the unnamed person with whom he had spoken, Owen attributed opposition to the fact that " . . . this is an area in town that abuts Bridgeport, and as far as I am concerned . . . this is a transitional area where it is highly populated by a residential community directly across the street which is Success Village." (ROR 14, p. 3.)
Finally, Owen submitted nine (9) police reports, at least two of which did not relate to 590 Success Avenue, or The Village Pub (ROR 9). All of the incidents, with the exception of a report of vandalism at 570 Success Avenue on May 8, 2013, appear to be minor in nature.
The applicant, in rebuttal, claimed that many residents of Success Village frequented The Village Pub and that both electronic security and " bouncers" would protect patrons from any potential harm (ROR 14, p. 5).
Following the close of the public hearing, the Zoning Commission voted, 5-0, to approve the special case application. The unanimous vote satisfied the " super majority" requirement contained in Section 15.0 of the Zoning Regulations.
The minutes of the meeting (ROR 11, p. 4) indicate that discussion centered around the lack of significant past problems at the location, and that the applicant seemed serious about doing a good job.
Notice of the decision was published in the December 2, 2015 edition of The Connecticut Post (ROR 13), and Success, Inc. filed this timely appeal.
The Plaintiff, Success, Inc., is the record owner of a ninety-five percent (95%) interest in the property known as 520 Success Avenue, having obtained title via a quitclaim deed (Ex. 1A), recorded on December 18, 2000 at Volume 1663 page 44, of the land records of the Town of Stratford. A corrective deed (Ex. 1B), recorded on March 6, 2007, at Volume 3012, page 337-38 of the land records, placed title into the name of Success, Inc.
On October 28, 2009, Success, Inc., conveyed a five percent (5%) interest in the property to each of the following entities--Outlaw Boxing Kats, Inc., Cell Phone Club, Inc., City Streets, Inc., and Millionaire Club, Inc. by warranty deeds (Ex. 1C, Ex. 1D, Ex. 1E, and Ex. 1F).
In February of 2002, Cell Phone Club, Inc., Millionaire Club, Inc., and Outlaw Boxing Kats, Inc., each reconveyed its interest in the property to Success Inc. (Ex. 1 G, Ex. 1H and Ex. I), leaving Success Inc., with a ninety-five (95%) percent interest in the parcel, and City Streets, Inc., with a five percent (5%) recorded interest.
520 Success Avenue abuts a portion of the property known as 590 Success Avenue, the parcel where the area subject to the special case application is located (Ex. 3; ROR 6).
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). The question of aggrievement is one of fact, to be determined by the trial court. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989). The burden of proving aggrievement is upon the party claiming to be aggrieved. London v. Zoning Commission, 149 Conn. 282, 284, 179 A.2d 614 (1962).
Two broad categories of aggrievement have been recognized: 1) statutory aggrievement, and 2) classical aggrievement.
Statutory aggrievement exists by virtue of legislative flat, rather than through an analysis of the facts of a particular case. Weill v. Lieberman, 195 Conn. 123, 124-25, 486 A.2d 634 (1986). One claiming statutory aggrievement must show that a particular statute grants to a party standing to pursue an appeal, without the necessity of demonstrating actual injury, based upon the particular facts at hand. Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008); Fort Trumbull Conservancy v. Alves, 262 Conn. 480, 485-87, 815 A.2d 1188 (2003).
Section 8-8(a)(1) of the General Statutes defines " aggrieved person" to include:
. . . any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board . . .
Classical aggrievement, on the other hand, requires a party...
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