Opinion
No. CV 04 40001072
July 7, 2006
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Worthington Pond Farm, LLC, appeals from the decision of the defendant, the town of Somers zoning board of appeals (ZBA). The ZBA denied the plaintiff's appeal from a cease and desist order issued by James R. Taylor, the Somers zoning enforcement officer (ZEO), that directed the plaintiff to cease the sale and/or service of alcoholic liquors for on-site consumption on its property.
II BACKGROUND
The plaintiff is the owner of the subject property consisting of approximately 143 acres located within the A-1 residential district in the town of Somers. (Return of Record [ROR], Exhibit 1.) In 2000, the Plaintiff obtained a special use permit from the Somers zoning commission for "outdoor recreation." The permit was approved with the following condition: "Approval is granted with the understanding that private parties and events, corporate meetings, and wedding parties are to remain an accessory and subordinate use to the primary use of outdoor recreation area." (ROR, Exh. 7a.)
On August 2, 2004, the ZEO issued a cease and desist order to the plaintiff stating that the "sale and/or service of alcoholic liquors for on site consumption without a Special Use Permit" is a violation of § 214.87(D) of the Somers zoning regulations" and ordered the plaintiff to "[c]ease and desist all activities in violation of this order." (Emphasis added.) (ROR, Exh. 1.) The plaintiff appealed from this order to the ZBA. (ROR, Exh. 1.) Following a public hearing, the ZBA denied the appeal, reasoning that "the intent of the Somers Zoning Regulations is to not allow for the sale and/or service of alcoholic liquors for on-site consumption without a Special Use Permit in a residential district in the town of Somers, Connecticut." (ROR, Exh. 4d.) The plaintiff appealed this decision to the Superior Court and the appeal was heard on March 24, 2006.
Section 214.87(D) of the Somers zoning regulations provides, in relevant part, that "[i]n residential districts, the sale of alcoholic liquors for consumption on the premises is permitted . . . only be special use permit issued by the Zoning Commission . . ." (ROR, Exh. 9.)
III JURISDICTION
General Statutes § 8-8 regulates appeals from a zoning board of appeals to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." (Internal quotation marks omitted.) Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). General Statutes 8-8(a)(1) provides, in relevant part, that an "`aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
The plaintiff alleges that it is statutorily aggrieved because it owns the property that is the subject of the order. The parties stipulated as such at the time of trial. Accordingly, the court finds aggrievement.
B Timeliness and Service of Process
General Statutes § 8-8(b) provides, in relevant part, that 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." General Statutes § 8-8(f)(2) further provides, in relevant part, that "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." General Statutes § 52-57(b)(5) provides, in relevant part, that process shall be served "upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
The plaintiff alleges that notice of the ZBA's decision was published in the Journal Inquirer on October 29, 2004. (Complaint, ¶ 12.) The ZBA admits this in its answer. (Defendant's Answer, ¶ 8.) The appeal was commenced on November 10, 2004, when the marshal served two copies of process upon the town clerk of the town of Somers, one of which was to be forwarded to the ZBA. (Marshal's Return.) Accordingly, the court finds that the appeal is timely and that service was made upon the proper parties.
IV SCOPE OF REVIEW
"Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "[This] applies where the agency has rendered a formal, official, collective statement of reasons for its action." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).
"Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly . . .
"Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law . . . These principles apply equally to [zoning] regulations as well as to statutes . . . However, a court that is faced with two equally plausible interpretations of regulatory language properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation." (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697-99, 784 A.2d 354 (2001).
"A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it . . . Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court . . . The court is not bound by the legal interpretation of the ordinance by the [board] . . . If a board's time-tested interpretation of a regulation is reasonable, however, that interpretation should be accorded great weight by the courts." Cunningham v. Planning Zoning Commission, 90 Conn.App. 273, 283, 876 A.2d 1257, cert. denied, 276 Conn. 915, 888 A.2d 83 (2005).
V DISCUSSION CT Page 12512
The plaintiff alleges and argues the following grounds for its appeal: (1) "The ZBA incorrectly constructed and interpreted [§ 214.87 (D) of the Somers zoning regulations] to prohibit the service of alcoholic liquors for on-site consumption without a special use permit"; (2) The ZBA's decision "essentially vitiates the effect" of the special use permit for outdoor recreation issued to the plaintiff in 2000; (3) "Pursuant to the doctrines of equitable and municipal estoppel, the ZBA is estopped from claiming that the service of alcohol is not permitted because [the plaintiff] expended substantial sums of money in reliance on both [the 2000 special use permit] and a clear reading of [§ 214.87 (D)]"; (4) "The ZBA is in violation of the Equal Protection Clauses of both the United States Constitution and the Connecticut State Constitution because the ZBA's selective enforcement of [§ 214.87 (D)] treats [the plaintiff] differently than others similarly situated for no justifiable reason"; and (5) "The ZBA's ruling is in violation of both the United States Constitution and the Connecticut State Constitution because the language of the ZBA's decision to prohibit the ` sale and/or service' of alcoholic beverages does not provide notice or fair warning as to its specific prohibition and thus is void for vagueness." The plaintiff also alleges, but does not argue in its brief, that "[t]he ZBA's ruling is in violation of both the United States Constitution and the Connecticut State Constitution because it amounts to a condemnation of [the plaintiff's] property without just compensation. As the court sustains the appeal on the first ground, it will not address the remaining grounds for appeal."[Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Thus, in construing regulations, our function is to determine the expressed legislative intent . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . and the words employed therein are to be given their commonly approved meaning." (Citations omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 699.
The plaintiff argues that the ZBA incorrectly interpreted the zoning regulations as prohibiting the "service" of alcohol in a residential district. Noting that the zoning regulations expressly prohibit only the "sale" of alcohol in a residential district, it maintains that the ZBA impermissibly extended the regulations beyond their expressed terms. It further argues that the ZBA's interpretation leads to an irrational and unreasonable result, namely, that residents of Somers are prohibited from serving alcoholic beverages to their guests on their own residential property.
The defendant counters that its interpretation was reasonable because "service" of alcohol is prohibited by the regulations. It contends that, while the regulations do not include the word "service," on-site consumption, following an exchange of money, such as would be permitted only with a restaurant, tavern or cafe permit, constitutes the "service" of alcohol. It also argues that the practice of a customer renting the plaintiff's property for an event and hiring a caterer from the plaintiff's list of "preferred caterers" to provide food and alcohol constitutes a "sale" of alcoholic liquors even though payment for the liquors is not exchanged on the premises.
"Because zoning regulations are in derogation of common-law property rights, they must be strictly construed and not extended by implication . . . Whenever possible, the language of zoning regulations will be construed so that no clause is deemed superfluous, void or insignificant . . . The regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible . . . When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results." (Citation omitted; internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 653, 894 A.2d 285 (2006).
"Where a statute does not define a term it is appropriate to look to the common understanding expressed in the law and in dictionaries." (Internal quotation marks omitted.) Cimochowski v. Hartford Public Schools, 261 Conn. 287, 307, 802 A.2d 800 (2002).
In upholding the ZEO's cease and desist order, the ZBA, without further explanation, "decided that the intent of the Somers zoning regulations is to not allow for the sale and/or service of alcoholic liquors for on-site consumption without a Special Use Permit in a residential district in the town of Somers, Connecticut." (Emphasis added.) (ROR, Exh. 4d.) The court finds this interpretation of the zoning regulations to be overly broad. Section 214.87(D) of the Somers zoning regulations expressly prohibits only the " sale of alcoholic liquors for consumption on the premises" without a special use permit in residential districts. (Emphasis added.) (ROR, Exh. 9.) The term "sale" is not defined by the regulations. The American Heritage Dictionary (2d Ed. 1985) defines "sale" as "[t]he exchange of goods or services for an amount of money or its equivalent." Service, on the other hand, can take place without an exchange of money or its equivalent. See id. (defining the verb "serve" as "[t]o prepare and offer (food for example)" or "[t]o place food before (someone); wait on"). Under the ZBA's interpretation, any person who "served" an alcoholic beverage to a guest on his or her residential property without a special use permit would violate the Somers zoning regulations; accordingly, the court finds the ZBA's interpretation of the regulation to be unreasonable. The ZBA argues that its interpretation is reasonable because, while the regulations do not include the word "service," the sale of alcohol followed by "on-site consumption," constitutes the "service" of alcohol. The cease and desist order and the ZBA's interpretation, however, state that the "sale and/or service" of alcoholic liquors are prohibited by the zoning regulations in a residential zone without a special use permit. This suggests that there can be a violation of the regulation without a "sale" or an exchange of money. The court finds this suggestion to be unreasonable.
CONCLUSION
As the ZBA's decision to uphold the cease and desist order was based on an overly broad interpretation of the zoning regulations, the appeal is sustained.