Opinion
No. CV04 041 19 00S
March 1, 2006
MEMORANDUM OF DECISION
The Plaintiffs, Wine Seller Spirits (hereinafter "Wine Seller") and Ann Reith, appeal from the decision of the Zoning Board of Appeals of the Town of Fairfield (hereinafter "ZBA"), granting the Defendant, Prakash S. Kewalramani, a variance from the 1,500-foot distance requirement as between liquor outlets of the same class or kind permitted under Section 30 of the Town of Fairfield Zoning Regulations (hereinafter "Regulations").
On March 1, 2004, the defendant filed an application with the ZBA requesting a variance from the required 1,500-foot distance requirement under Section 30 of the Regulations. The defendant's proposed site for the specialty wine and fine spirits store is located at 1201 Kings Highway Cutoff, Block No. 5, in a "Designated Commercial District." Section 30 of the regulations provides in pertinent part:
No building or premises shall be used either in whole or in part for the purpose of selling alcoholic liquors, beer, ale or wine, under any drug store permit, package store permit or tavern permit, cafe permit, if any entrance to such building or premises is within a radius of one thousand (1,500) fee from any entrance to another building or premises where any alcoholic liquors, beer, ale or wine are sold under any permit when of the same class or kind of permit.
The defendant testified before the ZBA on April 1, 2004 at the public hearing, stating that the proposed liquor outlet would be 1,475 feet away from the entrance to plaintiff's liquor establishment, which is of the same class or kind of permit as the defendant's proposed liquor store. The defendant also stated that his proposed store was not visible from the plaintiff's existing store due to the curvy nature of the road. The defendant presented to the ZBA his hardship in one sentence: "this is my first time, so this is my hardship." The ZBA granted the variance for the 25 feet that fell short of the required 1,500 feet. Notice of the decision was duly published, and the effective date of the decision was April 7, 2004.
General Statutes § 8-8 governs an appeal from the decision of a zoning board of appeals to the Superior Court.
Any taxpayer in a municipality has automatic standing to appeal from a zoning decision involving the sale of liquor in that community. Jolly, Inc. v. Zoning Board of Appeals of Bridgeport, 237 Conn. 184, 186-7 (1996). Tax payer status, alone, is sufficient to establish automatic aggrievement. Tyler v. Board of Zoning Appeals of Woodbridge, 145 Conn. 655, 660 (1958). There is no evidence in the record to establish that plaintiffs are taxpayers. However, at the hearing on January 13, 2005, plaintiff submitted unofficial copies of tax collector assessments for personal property located at the business address. This court may take judicial notice of a fact on its own initiative. Connecticut Bank Trust Co. v. Rivkin, 150 Conn. 618, 622 (1963). A judicially noticed fact must be one that is not subject to reasonable dispute in that it is either within the knowledge of people generally in the ordinary course of human experience or generally accepted as true and capable of ready and unquestionable demonstration. Connecticut Code of Evidence ("C.C.E.") § 2-1(c). As such, this court takes judicial notice of the fact that business owners and lessors pay personal property taxes on their business equipment to the town in which the business is located. Therefore this court considers plaintiffs to be taxpayers in the town of Fairfield who have automatic standing to appeal the decision of the ZBA. See generally Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184 (1996).
Any plaintiff who is automatically aggrieved need not prove classical aggrievement. Id. In Jolly, plaintiff, liquor store owner and taxpayer, appealed the granting of a variance allowing for the relocation of another liquor establishment and resulting in a 70-foot encroachment. While acknowledging that the plaintiff was automatically aggrieved, the trial court dismissed the appeal, refusing to follow the long-standing rule of automatic aggrievement. See id. at 190. The court upheld the rule, concluding that the plaintiff was automatically aggrieved, and therefore, it did not address the issue of classical aggrievement. Id. at 188 (footnote 4). Similarly here, we find that Plaintiff, Wineseller Spirits, is automatically aggrieved, and we need not reach the issue of classical or statutory aggrievement.
The applicable zoning regulation, Chapter 17 § 2 of the Bridgeport Zoning Regulations, provided that a distance of 1500 feet be maintained between liquor establishments.
Pursuant to § 8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes."
Notice of the ZBA's decision was duly published on April 7, 2004. Plaintiffs commenced this appeal on April 22, 2004. The defendants do not dispute timeliness or service of process.
It is well established that the granting of a variance must be reserved for unusual or exceptional circumstances. Dolan v. Zoning Board of Appeals, 156 Conn. 426, 429 (1968).
In reviewing the board's decision, the court must determine whether or not the board's action in granting the variance was arbitrary, illegal, or an abuse of discretion. Bloom v. Zoning Board of Appeals of Norwalk, 233 Conn. 198, 205-6 (1995). Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. Whittaker v. Zoning Board of Appeals of Trumbull, 179 Conn. 650, 654 (1980).
A review of the record reveals that the ZBA did not state its reasons for granting the defendant's variance application. "Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." (Internal quotation marks omitted) Municipal Funding, LLC v. Zoning Board of Appeals of Waterbury, 270 Conn. 447, 454 (2004). Thus, this court must search the record to determine whether there is evidence to support the ZBA's denial and whether the ZBA acted unreasonably, arbitrarily, or illegally.
The zoning board of appeals is vested with wide discretion in granting or denying a variance and will be disturbed only upon a showing of abuse. Rommell v. Walsh, 127 Conn. 272 (1940). However, the statute providing the zoning board of appeals with the power to grant variances does not allow for the granting of a variance where it is inconsistent with the intent of the ordinance or adversely affects public health, safety, or welfare. AF Const. Co., Inc. v. Zoning Bd. Of Appeals of West Haven, 60 Conn.App. 273 (2000); see also C.G.S. § 8-6(a)(3).
The defendant urges this court to uphold the variance because the 25-foot encroachment is de minimis. The de minimis doctrine is a narrow exception to the heavy burden of proof involved in seeking a variance. Appletree Land Development v. Zoning Hearing Board of York Township, 834 A.2d 1214, 1216 (Pa.Commw.Ct. 2003). The doctrine applies only where: (1) a minor deviation from the dimensional uses of a zoning ordinance is sought, and (2) rigid compliance with the zoning ordinance is not necessary to protect the public policy concerns inherent in the ordinance. Id. The determination of whether the de minimis doctrine applies requires consideration of both factors. Id. No Connecticut court has addressed, adopted or recognized the de minimis doctrine. For our reasons stated below, this court declines to recognize the doctrine in this case.
The defendant argues that he should not have to bear the burden of proving exceptional difficulty or unnecessary hardship because the variance sought is for 25 feet, or a deviation of less than 2%. The cases upon which the defendant relies involve similar minor deviations. See Gilmartin v. District of Columbia Board of Zoning Adjustment, 579 A.2d 1164 (D.C. 1990) (property owner's application for 1-foot parking space variance would not be harmful to public good); Tall Trees Const Corp. v. Zoning Board of Appeals of Huntington, 97 N.Y.2d 86 (2001) (a variance had a de minimis detrimental effect on the community and neighborhood where it allowed for that parcel to be minimally smaller than the requisite 1 acre); Bailey v. Zoning Board of Adjustment of Pennsylvania, 569 Pa. 147 (2002) (removal of parking spaces or addition of hedges to the side of a building are de minimis changes when considered in light of the Master Plan). These cases, however, are distinguishable in that they did not require consideration of the policies underlying the regulation of liquor outlets.
Regulating the proximity of liquor outlets segregates and restricts the location of the buildings which can be used for the sale of alcohol liquor in a zone. Kallay's, Inc. v. Katona, 152 Conn. 546, 549 (1965). The underlying policy for this regulation is that the sale and use of alcohol, and its concomitant abuse and significant role in criminal activity, result in an increased risk to the general well-being of the community. Jolly, Inc., v. Zoning Board of Appeals of Bridgeport, 237 Conn. 184, 199 (1996). This court is not persuaded by defendant's argument that there is virtually no impact on public policy.
Asking the court to uphold the variance based on the de minimis exception will ultimately place the courts on a slippery slope with little guidance as to when deviations cease to be de minimis. Straying away from the hard-fast rule of the required 1500-foot distance between liquor outlets will leave the rule susceptible for courts to chip away at. This is not the function of the ZBA. Power to modify or amend [the ordinance] rests in the town council, which had the power to adopt the ordinance. O'Connor v. Board of Zoning Appeals of Stratford, 140 Conn. 65, 68 (1953).
The ZBA failed to state a reason supporting the granting of the variance. Where there are no reasons articulated in the decision, the court is directed to examine the record. Stankiewicz v. Zoning Board of Appeals of Montville, 15 Conn.App. 729, 733 (1988). This court has examined the record and finds no valid reason was articulated to support this variance.
Since the de minimis exception is inapplicable in this case, the defendant bears the burden of proving hardship. The law governing variances is well-settled. Section § 8-6(3) provides that a zoning board of appeals may "determine and vary the application of the zoning . . . regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such . . . regulations would result in exceptional difficulty or unusual hardship . . ." (Emphasis added.) The power [to grant variances] shall be exercised only if there is difficulty or unreasonable hardship in carrying out the strict letter of the ordinance and so that the spirit of the ordinance shall be observed, public welfare and safety secured, and substantial justice done. Delaney v. Zoning Board of Appeals of Hartford, 132 Conn. 240, 242 (1947).
In this case, the record fails to demonstrate a valid hardship. A review of the public hearing transcript reveals that the defendant's offered explanation for his hardship was that "this was [his] first time." The defendant failed to offer any evidence of his hardship necessitating the variance. Furthermore, the record fails to indicate the reasons for which the ZBA granted the variance. At most, the defendant's hardship is one of financial difficulty, and it is well established that financial loss is not a proper basis for a variance.
See Garibaldi v. Zoning Board of Appeals of Norwalk, 163 Conn. 235 (1972).
The Fairfield ZBA decision to grant defendant's application for a variance from the 1500 feet distance requirement between liquor outlets is void because the defendant failed to establish unreasonable hardship or exceptional difficulty pursuant to C.G.S. § 8-6.
The appeal is sustained.