Vip of Berlin, LLC v. Town of Berlin

• Decision Date: 27 May 2008
• Docket Number: No. CV06-4012399S.,CV06-4012399S.
• Citation: 50 Conn.Sup. 542,951 A.2d 714
• Court: Connecticut Superior Court
• Parties: VIP OF BERLIN, LLC v. TOWN OF BERLIN et al.

951 A.2d 714

50 Conn.Sup. 542

VIP OF BERLIN, LLC v. TOWN OF BERLIN et al.

No. CV06-4012399S.

Superior Court of Connecticut, District of New Britain.

Memorandum filed July 11, 2007.^*

May 27, 2008.

Silver & Silver, LLP, New Britain, for the plaintiff.

Wiggin & Dana, LLP, Hartford, for the defendants.

ROBERT B. SHAPIRO, J.

I BACKGROUND

In its amended complaint, the plaintiff, VIP of Berlin, LLC, seeks a declaratory judgment to determine whether the locational restrictions found in § 14-291 of article six of the Berlin municipal code, the sexually oriented business ordinance (ordinance), §§ 14-241 through 14-295, are unenforceable. The plaintiff claims that the locational restrictions are an ultra vires act, constitute de facto zoning, and were not adopted by the Berlin planning and zoning commission (commission) pursuant to the town charter and General Statutes §§ 8-1 and 8-2. In addition, if the court determines that the locational restrictions are ultra vires and, therefore, are null and void, the plaintiff seeks an injunction restraining the defendants, the town of Berlin (town) and its town manager, from enforcing § 14-291, only, against the plaintiff.

The plaintiff alleges that it seeks to open a retail business on premises located at 717 Berlin Turnpike in Berlin (premises). The proposed business would sell "lingerie club wear, women's shoes, lotions, oils, greeting cards, gag gifts, as well as sexually explicit DVDs, books, magazines," and other products. There would be no on-site entertainment or facilities to preview merchandise.

The plaintiff also alleges that the premises are zoned for retail use and that its present building, with existing parking, constitutes a valid nonconforming use. The plaintiff further alleges that § 14-261 of the ordinance requires that all sexually oriented businesses obtain a license issued by the town manager, as the licensing authority, prior to commencing business. The plaintiff claims that the town manager has made public remarks in which he stated that he has determined that the plaintiff's proposed business constitutes a "sexually oriented business," which, under the ordinance, requires a license.¹

In addition, the plaintiff alleges that the § 14-291 of the ordinance provides for locational restrictions, including a 250 foot setback from residentially zoned property, which are not included with the town's zoning regulations. The plaintiff asserts that its proposed business location is located within 250 feet of a residential zone and, therefore, is ineligible to be licensed due to that locational restriction.²

In July, 2006, the plaintiff applied for a zoning certificate seeking to open an adult bookstore at the premises. After the town zoning enforcement officer denied the application, the plaintiff appealed to the town zoning board of appeals, which affirmed the denial. The plaintiff then appealed that denial to the Superior Court; that appeal is pending in this judicial district. See VIP of Berlin, LLC v. Berlin, Superior Court, judicial district of New Britain, Docket No. HHB CV06-4Q12398.

On March 1, 2007, the plaintiff filed its motion for summary judgment and a memorandum in support thereof, which was accompanied by an affidavit and exhibits. On April 11, 2007, the defendants filed their objection to the plaintiff's motion and their motion for summary judgment, which was accompanied by a memorandum of law, affidavits and exhibits. In their motion, the defendants seek a judgment upholding the validity of § 14-291 of the ordinance. The plaintiff then filed its memorandum of law in opposition to the defendants' cross motion, with exhibits, on May 1, 2007.

II STANDARD OF REVIEW

"To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favor-able to the nonmovant, the trier of fact could not reason-ably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

"[I]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006).

III DISCUSSION

A Plaintiff's Motion

The plaintiff contends that the action of the town council (council) in enacting the locational restrictions in the ordinance is an ultra vires act since it constitutes zoning, over which the commission retains exclusive authority. The defendants argue that the ordinance's locational restrictions represent a legitimate exercise of municipal police power, and that the council and the commission retain concurrent jurisdiction over the regulation of the placement of adult uses.

In 1997, the commission enacted zoning regulations that contain restrictions concerning adult uses, which are defined to include adult entertainment and cabarets, and adult minimotion picture theaters and adult motion picture theaters. Such uses are permitted only in the town's general commercial zoning district. See Berlin Zoning Regs., § XI, c. Y(3). No adult use is permitted within 1500 feet of another existing adult use. See Berlin Zoning Regs., § XI, c. Y(4)(a). Also, "[n]o adult use shall be located on a parcel of land within 250 feet of any residentially zoned land." Berlin Zoning Regs., § XI, c. Y(4)(b). In addition, "[n]o adult use shall be located on a parcel of land within 1,000 feet of any public or private school, church or place of worship." Berlin Zoning Regs., § XI, c. Y(4)(c).

The ordinance was adopted by the council in 2000. Section 14-241(2)(j) of the ordinance provides that the "[l]ocation and zoning regulations alone do not adequately protect the public health, safety and welfare and thus certain requirements with respect to the ownership, employees, facility, operation, advertising, hours of business and other aspects of the sexually oriented business are in the public interest." Section 14-241(4) of the ordinance refers to the state's grant to the town of powers, "especially the police power, to enact reasonable legislation and measures to regulate and supervise sexually oriented businesses in order to protect the public health, safety and welfare."

Section 14-291 of the ordinance lists several locational restrictions, including subsection (c), which provides that "[n]o sexually oriented business shall be permitted on a site that is less than 250 feet from any residentially zoned land as defined in the town zoning regulations."³ It is undisputed that the premises are within 250 feet of a residential zone. Sections 14-261 through 14-265 of the ordinance provide for an application process by which the town manager is authorized to issue a license to an applicant.

This matter presents a question of statutory interpretation. "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 413, 908 A.2d 1033 (2006).

"A court must interpret a statute as written ... and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation.... A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance." (Internal quotation marks omitted.) Pelliccione v. Planning & Zoning Commission, 64 Conn.App. 320, 335, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001).

An ordinance is presumed to be valid and "it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt." (Internal quotation marks omitted.) Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 23, 523 A.2d 467 (1987). In the present case, the plaintiff has the burden of proving that the ordinance is invalid. See Pollio v. Planning Commission, 232 Conn. 44, 49, 652 A.2d 1026 (1995).

"In determining whether the municipality had the authority to adopt [an] ordinance ... we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment." (Internal quotation marks omitted.) Norwich v. Housing Authority, 216 Conn. 112, 123, 579 A.2d 50 (1990).

The plaintiff acknowledges that the town, through the council, may exercise its police powers to license a sexually oriented business. The plaintiff contests the power of the council to utilize locational restrictions as part of an overall licensing...