No. CV 05-4014343
August 14, 2006
MEMORANDUM OF DECISION
This matter is an appeal brought pursuant to § 8-8 of the general statues. The court will give a brief overview of the factual setting for the appeal and will discuss the facts in more detail as it becomes necessary during its opinion.
In May 2005 the defendant received a so-called change of use form from the plaintiffs. That form indicated the present use was a vacant barbershop and karate studio. The proposed use was to be a "retail-adult book and video store with video preview booths." In June 2005 the defendant commission received a site plan application for the proposed change of use. Several hearings were held before the defendant commission on the proposed application with reports submitted by town and state offices. The commission denied the application and gave two reasons (1) video preview booths are not a permitted use (2) there is not suitable or adequate parking for a use which included 15 such booths.
The court will address the validity of the denials based on the objections to each denial raised in the plaintiff's brief. Two issues are raised in that brief (1) the denial based upon the view that the booths were not a permitted use is illegal, arbitrary and an abuse of discretion (2) the denial based on lack of adequate parking for a use including 15 video booths "is illegal arbitrary and an abuse of discretion and violated the plaintiff's rights of fundamental fairness in administrative hearings (due process)." Claims made by the plaintiffs under the first and fourteenth amendments of the federal constitution were not briefed and will not be dressed by the court.
Preliminarily the court finds that the appeal was taken in a timely manner, it was filed within eight days of publication of the decision and proper service was made on the town clerk, see § 8-8(b) and § 8-8(2) respectively of the general statutes.
Also the court further concludes that the necessary aggrievement has been shown by the plaintiffs Dennis Loring and Velma Dell'Oro. Both plaintiffs are tenants of the property in question. They have a legally recognized interest in operating a business if town zoning regulations are met and interpreted and applied in a fair and nondiscriminatory manner. That interest has been affected by the actions of the defendant in denying their application to operate the business they desired to operate so they have standing to call into question the manner in which the zoning regulations have been enforced by the defendant; this is classic aggrievement, see cases cited by plaintiff King v. Sultar, 253 Conn. 429, 434 (2000), New England Cable Television Ass'n., Inc. v. DPUC, 247 Conn. 95, 103 (1998). Also see Primerica v. Planning Zoning Comm., 211 Conn. 85, 92-95 (1989).
The court will now try to address the two issues raised on appeal regarding the denial of the plaintiff's application. The court will first discuss the first reason given by the defendant commission — video preview booths are not a permitted use.
It is necessary to refer to the applicable zoning regulations which set forth the relevant regulatory language on this question.
The property is located in a commercial district which is identified as a CB-20 district. Section 6.1 of the zoning regulations sets forth the uses permitted in the town's commercial and industrial districts such as a CB-20 zone. Section 6.1.11 permits "Basic neighborhood stores, book and stationery, cigar, drug, dry goods and notions. Florists, including retail, bakery, haberdashery, hardware. Another section, § 6.1-71 is also important to a resolution of this matter. That section defines an "accessory use;" accessory use "is defined as "accessory uses customarily incidental to a permitted use on the same premises. If a use is accessory to a use already permitted in a CB-20 district it would seem to necessarily follow that such accessory use would be a permitted use. The defendant commission obviously interpreted these regulations in a manner adverse to the plaintiffs, that is why we are here. The question becomes whether that interpretation should be accepted by the court. A good place to begin with this question is Vol. 9A of the Connecticut Practice Series, Land Use Law and Practice, Robert Fuller at Section 34.13 "Extent of Agency Authority to Interpret Regulations," pp. 207-09. The court has read several of the cases Fuller cites.
As said in Baron v. Planning Zoning Commission, 22 Conn.App. 255, 257 (1990): "General Statutes § 8-6 entrusts the commission with the function of interpreting and applying its zoning regulations . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The plaintiff has the burden of showing that the commission acted improperly." Although a commission is entitled to the exercise of reasonable discretion, there is a limit to the exercise of that discretion. Doyen v. ZBA, 67 Conn.App. 597 (2002) states:
"A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it." New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, 615 A.2d 1054, cert. granted, 224 Conn. 921, 618 A.2d 528 (1992) (appeal withdrawn March 18, 1993). "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]," id. page 603.
Also see Vivian v. ZBA, 77 Conn.App. 340, 344 (2003). Cf. Plastic Distributors, Inc. v. Burns, 5 Conn.App. 219, 225 (1986). Both Doyen, id., p. 604 and Vivian, id., p. 344 say that "If a Board's time tested interpretation of a regulation is reasonable, however, that interpretation should be accorded great weight by others."
Farrior v. Zoning Board of Appeals, 70 Conn.App. 86, 89-90 (2002), sets forth the general method to be used to interpret a zoning ordinance and as importantly any policy considerations governing the method of interpretation:
The regulation is a local legislative enactment, and in its interpretation we seek to discern the intent of the legislative body as manifested in the words of the regulation . . . Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms . . . The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning . . . [W]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . [and] doubtful language will be construed against rather than in favor of a [restriction] . . .
Smith Bros Woodland Management LLC v. Planning Zoning Commission, 88 Conn.App. 79, 87 (2005), makes some of the same observations as noted in the foregoing discussion: "The issue becomes one strictly of the interpretation of a zoning regulation, to which we apply the same principles of construction as we apply to a statute. Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 234, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). Although we ordinarily defer to a planning and zoning commission's construction of its regulations, the regulation at issue in the present case has never been subjected to judicial scrutiny, and, therefore, the commission's construction is not entitled to special deference. Id., 233. Furthermore, "[w]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . [and] doubtful language will be construed against rather than in favor of a [restriction] . . ."
Finally as the court said in Doyer, supra at 67 Conn.App. Pages 604-05:
"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 . . . The words [employed] are to be interpreted according to their usual and natural meaning and Page 605 the regulations should not be extended, by implication, beyond their expressed terms . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant." (Citations omitted; internal quotation marks omitted.) Id., 335-36. "Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body."
The court will attempt to rely on these general principles in deciding the issue now being discussed.
As indicated the town regulations contain two sections that must be interpreted regarding certain permitted uses within a commercial and industrial zone.
Section 6.1.11 permits "Basic neighborhood stores, book and stationery, cigar, drug, dry goods and notions, florists, including retail, bakery, haberdashery, hardware.
As noted in 83 Am.Jur.2d § 160 page 176 (Zoning Planning) "an accessory use of property is, by definition, one that is not expressly permitted by the zoning ordinance itself." But if found to be an accessory use it will be allowed on the subject property.
Section 6.1.71 defines an accessory use. Such a use is defined as "accessory uses customarily incidental to a permitted use on the same premises."
The question is how should this language be interpreted in the factual context of this case. At the hearing held in this matter the attorney representing the plaintiffs represented that the primary business of this store for which the site plan application was being made would involve the sale and rental of adult videos, DVDs, book, magazines, clothing and related goods such as cards, notions, and gifts.
The commission in rejecting the application did not do so on the basis that the proposed store as above described was not a permitted use — that would be an odd resulting given the broad language of § 6.1.11. What the defendant commission seemed to say was that the 15 preview booths to be located in the store were not a permitted use and thus the store with this proposed component had to be considered a use that was not permitted. The commission in effect, also held that the video booths could not be considered to be an accessory use as defined in § 6.1-71. The briefs of both sides frame their argument around the issue as to whether the 15 preview boots could be considered an accessory use. The just quoted language of the regulations, as will be discussed, is commonly used throughout the country and has been discussed by our court in the leading case of Lawrence v. Zoning Board of Appeals of the Town of North Branford, 158 Conn. 509 (1969). Lawrence has recently been cited as authority in Morgenbesser v. Aquarion Water Co., 276 Conn. 825, 830 (2006).
In Lawrence the court said that "an accessory use under a zoning law is a use which is dependent on or pertains to the principal or main use, . . . The word `incidental' as employed in a definition of `accessory use' incorporates two concepts. It means that the use must not be the primary use of the property but rather one that is subordinate and of minor significance . . . But `incidental' when used to define an `accessory use' must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of `incidental' would be to permit any use which is not primary, no matter how unrelated it is to the primary use," id., at page 512. Lawrence then talks of the word "customarily" preceding the word "incidental" in the regulation before it as it does in the accessory use definition (§ 6.1.71) in this town's regulations. Lawrence, in perhaps an understatement says this word compared to "incidental" "is even more difficult to apply." The court then says that "customarily" means "the use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use." The court goes on to say where the town ordinances do not refer to the specific accessory use which as a matter of custom, the principal use comes with, "in the absence of a complete prohibition of the claimed incidental use in the ordinance, it will be deemed that the legislature intent was to include it" (court quoted from earlier 3d edition of Rathkopf at Vol. 1, p. 3-24) id., pp. 512-13.
As Fuller says at § 4.19, page 80, (Vol. 9) "The objectives of the comprehensive plan will be jeopardized if accessory uses are so broadly construed as to allow incompatible uses to invade the district and for that reason accessory uses are required to be on the same lot and must be subordinate and incidental to the principle use."
The definitions and discussion in Lawrence however, are quite general. And Lawrence at more than one point refers to Rathkopf's work on zoning and to an Am.Jur. article. This court will thus refer to the current Rathkopf's Law of Zoning and Planning authorized by Zeigler for a further definition of the terms at issue and relevant case law from other jurisdictions indicating how these authorities have interpreted language like that in the North Haven regulations. All of this must then be applied to the facts of this case developed at the hearing.
Rathkopf appears to agree with the Lawrence, definitions of "accessory use" and the concept contained therein of a use customarily incidental to the principal use, see § 33:1 and § 33:3, Vol. 2. Connecticut itself does not have many appellate cases explaining the appropriate understanding and practical application of these concepts, but Rathkopf cites several interesting cases which explain these concepts and the reasoning behind them in particular factual situations which although not strictly analogous to the facts of this case have a bearing on the issues before the court.
At § 33:58, pp. 33-87—33-88 (Vol. 2) Rathkopf states that:
A restaurant when located in a hotel or office complex is generally considered to be a lawful accessory use. The rational adopted is that since occupants of either principle use require provision of food service, a restaurant is customarily incidental thereto. Furthermore, since a restaurant is subordinate in size and purpose to the principle use, it does not itself constitute a principle use.
See Trolley North Office Center v. Streicher, 403 N.E.2d 1246, 1249-50 (the App.Ct. 1980).
In Landau Advertising Co., Inc. v. Zoning Bd., 128 A.2d 559 (1957) the Pennsylvania Supreme Court said that the erection of a general advertising sign on the roof of a drugstore in a commercial zone would not be accessory and incidental to the primary use and fact that zoning ordinance permits signs advertising business on the premises as an accessory use was not unconstitutional, illegal discrimination, id., pp. 560-62, cf. FWF Co., Inc. v. City of Gretna, 508 So.2d 897, 899 (La. Ct of App., 1987), electronic board near a restaurant was a prohibited billboard since it advertised off-site products and thus as the ordinance said "it is not an accessory sign relating to a business activity, use, or service undertaken on the premises on which it is placed."
In Citizens Coalition v. Board of Zoning Adj., (Dist. of Col. Ct. of App. 1993), the court held a power plant was incidental and subordinate to university operations — it helped the college meet its utility demands. It was therefore a permissible accessory use, id., pp. 954-55. In Thomson Industries, Inc. v. Incorporated Village, 261 N.E.2d 260 (Ct. of App., NY, 1970), a village ordinance prohibited a heliport as a use in an industrial district. The court said, since the ordinance was in derogation of the common law, it must be strictly construed. Thus, it must be held to apply only to the carrying of the general public and could not bar the plaintiff business from using a portion of its parking lot for the landing and take off of its own helicopter which was used solely and only occasionally for business purposes.
The foregoing cases stand for the proposition then that a use is accessory if it is necessary or at least directly related to the primary use which is permitted under the zoning regulations. Again, a two-page case which illustrates the point is in the matter of Mar Mar Realty v. Board, 501 N.Y.S.2d 161 (1986) which upheld an order prohibiting the installation of 10 video games in a bowling alley. The court held the petitioner "did not establish that the installation of 10 video games in its bowling alley would be an accessory use to the bowling alley," id. p. 162. Or to put it simply what would the presence of video games have to do with the day-to-day operation of a bowling alley.
Rathkopf's discussion also highlights another aspect to this problem which must be discussed and which is reflected in the language of Lawrence. As noted the accessory use must be subordinate to and be of minor significance compared to the primary use according to Lawrence, 158 Conn. at page 512. As Rathkopf says in commenting on Township of Groveland v. Jennings, 308 N.W.2d 259, 262, 263 (Ct. of App. Mich., 1981):
When an accessory use attains such magnitude as to no longer be incidental to the principle use, it looses its status as an accessory use. In Township of Groveland v. Jennings, a corporation proposed to construct and operate, as an accessory use, a treatment plant to process hazardous waste and to utilize the finished product as a fill for mined cavities on the property. Mining and reclamation was a permitted use. The court, quoting this treatise on the above proposition, determined that the issue was whether the corporation was processing industrial waster so as to reclaim the land or whether it was reclaiming the land in order to be allowed to operate a hazardous waste disposal plant. It was noted that the corporation purchased the property for $1.8 million and intended to invest $10 million more for the processing equipment, and that the land would be reclaimed over a period of twenty-five years. The court concluded that the magnitude of the project indicated that the dominant purpose of the corporation's proposal was the disposal of industrial wastes for profit. Any reclamation was purely incidental to this main objective.
An interesting case to compare these observation with is Aim Rent A Car, Inc. v. ZBA of Village of Montebello, 548 N.Y.S.2d 275 (App.Div., N.Y., 1989). There the board denied an application to permit the operation of a car rental business as an accessory use to a hotel. The court noted that other hotels in the area did not operate such a business. But it seems obvious that a car rental business could be utilized by hotel guests; the court's main point in upholding the denial was that "the instant automobile rental business, however, derives only 15% to 20% of its business from hotel guests and is thus not incidental to the operation of the hotel, id., pp. 275-76. How could the operation of the car rental facility be subordinate and of minor significance, a la Lawrence, to the operation of the hotel — it was a separate business in itself which in itself was not a permitted use occupying as it did the same location as the hotel.
A rational way of dealing with these problems is illustrated by a case such as Amusing Sandwich v. City of Palm Springs, 211 Cal.Rptr 911 (1985). The plaintiff operated a video game and fast food establishment. The Appeals court upheld an ordinance that did not ban the presence of video games in the central business district but limited their number in any particular establishment.
The foregoing cases provide an interpretative basis for the language of the town's regulations and how this state and others apply those interpretations to particular factual settings.
But the mere reference to various definitions and requirements for finding an "accessory use" will not itself permit a trial court to decide an appeal based on a finding by a zoning authority that necessarily concedes that a particular use is not an "accessory use."
Lawrence itself said that . . . "it can be seen that the application of the concept (of `accessory use') to a particular situation may often present and depend upon questions of fact, or involve or be open to a legal exercise of discretion by the administrative officials . . ." Id., p. 513. On the following page the court went on to say (quoting from another case) that "in applying the law to the fact of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable arbitrary, or illegal," id., p. 514.
But the application of the appropriate definition of accessory use, which is a question of law for the court, must be done with proper regard for the definition given by the courts. It is true that the action of a planning and zoning commission must be sustained if even one of the stated reasons is sufficient to support its decision — here on the application of the regulations to the facts, Huck v. Inland Wetlands, 203 Conn. 525, 534 (1987), but the evidence to support the reason must be substantial, Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697 (1993). In other words, "when a zoning commission states the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations," Demairia v. Enfield PZ Commission, 159 Conn. 534, 540 (1970) cf. Freedman v. PZ Commission, 222 Conn. 262, 268 (1992).
The discretion exercised by a commission must not be unbridled and these just mentioned qualifications on the exercise of a commission's discretion in applying any zoning regulations cannot be used as a mechanism to circumvent the interpretation courts have given to those regulations.
What does the record indicate, then, about the commission's decision that the preview booths were not a permitted use? In testing the conclusion or conclusions reached by a zoning authority a court must review the facts in the record on which the conclusion is based, Goldberg v. Zoning Commission, 173 Conn. 23, 26 (1977). The court has read and re-read the record in this case searching for any reference to the installation of preview booths and the issue of accessory use" and "permitted use." None of the letters to the plaintiffs or their representatives from the staff of the defendant commission, R.O.R. 6, 7, 18, 20, 27, 28, 32, 33 make any reference to the video booth matter. A letter from the Department of Transportation likewise does not refer to the booths.
The minutes of the June 6, 2005 meeting of the commission where the application was discussed do not refer to video booths or the number of any such booths.
At the July 11, 2005 meeting the chairman said the commission understood there would be booths present; counsel for the plaintiffs indicated this was so. The chairman then asked how many people would be allowed in a booth, counsel said one and his clients would have no problem with conditions being placed on the application in this regard. In response to another question counsel said a plan had not been developed as to the number of booths, a plan had not been developed yet in this regard. The chairman said he would like this information at the next meeting. Counsel said this would be done and the report back would include some of the conditions the plaintiffs would be looking for to meet "fair standards and standards that are adopted at other locations."
Another member of the commission stated "the viewing booths were certainly an issue and noteworthy of taking up" — he said the applicant should be aware "that we are looking into whether or not viewing booths are a permitted use."
A waiver of the 65-day requirement was then approved and tabled until the August meeting. The deliberation session made no reference to the plaintiffs' application.
Prior to the August meeting counsel for the plaintiffs sent two letters to Alan Frederickson, The Land Use Administrator of the town. The July 15, 2005 letter refers to the fact that at the July 11th meeting the commission requested more information on the preview booths which were part of his clients' application. He said the applicant seeks 15 preview booths which are an accessory use "customarily incidental to the permitted uses of retail book and video store under your existing regulation." He went on to say his clients would be willing to operate under certain requirements as regards to the booths:
(1) A light level of 2-foot candles at floor level
(2) A sign shall be put in a conspicuous place in the booths to the effect that only one person is allowed in a booth, and the video device could not be operated unless the door was locked.
Sign size and coloring to emphasize visibility were then discussed.
(3) A monitoring system for all common areas would be maintained, with a 60 second time span review.
(4) A light on the booths shall indicate whether it is in use.
(5) Booths were to be fully enclosed and be equipped with a locking system to prevent operation of the video unless the booth door was closed and locked.
A July 22nd letter to Mr. Frederickson indicated counsel had not received a response to the July 15th letter and it said that "I can only assume that staff have no questions or issues concerning the contents of that letter. (July 15 letter also referred to other matters not involved with the booths.)
The final meeting of the commission took place on August 1, 2005. Counsel for the plaintiffs and an engineer retained by them were present — both were there to answer any questions the commission might have. According to the minutes counsel addressed the commission in apparently lengthy remarks. He stated he'd been in practice for 35 years and had represented clients before Planning Zoning Commissions many times on First Amendment claims involving the same issue as that now before this commission. He said his letter (apparently the July 15th letter) contained language that was the subject of litigation in other communities and his clients knew any deviation from the conditions set forth would invite a swift reaction from the town.
Counsel explained that everything on preview in the booths would be subject to sale in the store or rental. Preview booths are essential to promoting video sales, there are no other preview facilities and newspapers do not give information on the videos subject to sale. One of the principal aspects of the business is the sale and rental of videos. Counsel went on to say that use of video booths are customary to the permitted use of the adult store being proposed — it's a national and usual phenomenon of this type of business.
The chairman wanted to know the size of the booths and one of the plaintiffs said 4' by 4.'
A member said he does not believe the application was for a theater, earlier counsel suggested an indoor theater would be a permitted use. "The problem" here is the video booths according to this commission member.
Counsel reiterated that it is customary in this adult store industry to have video booths. The same commission member said these adult stores are not specifically listed and preview booths are not customary for other video and news stores. Counsel said the regulations do not distinguish between an adult and a non-adult use. The minutes then say "they understand that."
Counsel reiterated he had represented these types of establishments for 35 years and preview booths are a customary part of such stores and their operation.
The same commission member said he hasn't seen these booths in Blockbusters. The chairman then said "that the real issue here is that they are taking a step beyond our regulations stating that an adult book store is customary and not unusual for a retail outlet in North Haven nor are video booths. We look at what is basic and normal in North Haven and it is hard for us to say or understand how you can include an adult book store or video booths that you just mentioned when they are probably triple X and say this is no different from basic uses.
Counsel then responded by addressing the video booth issue again saying he understood no such stores existed in the town but reiterated having video booths "is customary with facilities that market this product." He indicated that he could present testimony under oath as to the customary use of video booths within this industry.
Mr. Palumbo, the chairman, then said words to the effect that he doesn't doubt for that type of establishment it is (an incidental and customary use re video booths).
Another member of the commission said with 15 video booths there must be a lot of business and asked if there was a waiting room. Counsel for the plaintiffs stated there is no waiting room and no loitering. They would stipulate to these items "and yes they feel there is a market or we wouldn't be here." The same member said you feel you need 15 booths. And in response to the chairman, who said if the 15 booths are occupied would you ask them to leave, counsel said "absolutely" and the commission could make that a stipulation.
Counsel went on to say you can view one minute of the tape for a quarter. A segment could be seen not the whole tape. Counsel also said patrons could keep putting in quarters to possibly see the whole movie, but that was not the purpose of having the booths, as he said earlier their purpose was to create sales within the store.
The minutes of the deliberation indicate there was "a brief discussion." The application was unanimously denied and in making their decision the commission stated, as indicated.
1. Video preview booths are not a permitted use.
2. There is not suitable/adequate parking for a use including fifteen (15) video preview booths.
In light of the case law and the record the court will now try to address the propriety of the defendant commission's finding that the video booths were not a permitted use under the town's regulations. The Commission did not say that an adult bookstore as such was not a permitted use; it said only video booths were not a permitted use. In light of the regulation's provision for accessory uses to the primary use the issue here must be whether the video booths were an accessory use to the primary use which is an adult book store. This is how the defendant's brief addresses the problem, arguing as it does that video booths in the context of this case and record cannot be considered an accessory use.
As noted, the lawyer for the plaintiffs at the August 1st hearing made extensive remarks about the use made of video booths in adult bookstore establishments selling videos. He referenced by 35 years experience in the industry and indicated the reason for these booths in the type of store subject to this application is that by their nature the videos offered for sale are not reviewed in ordinary media outlets. Prospective customers can make marketing decisions only if they have some access to the contents of the videos which preview booths in these adult stores provide.
The defendant makes two quite appropriate procedural responses; it notes the testimony of plaintiffs' counsel was unsworn and argues the commission "undeniably questioned the representations made by Attorney Silver based on its personal knowledge of other businesses in town that offer adult videos for sale and rental. R.O.R. at 29, pp 8-9."
As Fuller notes in Volume 9, § 20.8, page 425 of his previously referenced works "since proceedings before an administrative agency are informal, evidentiary facts in statements by counsel can properly be considered by the commission and as part of the record in the event of an appeal." See Parsons v. Bd. of Zoning Appeals, 140 Conn. 290, 292-93 (1953); Coretta v. Zoning Board of Appeals, 42 Conn.App. 133, 138-39 (1996).
Fuller goes on to note that counsel's statements "are subject to question and contradiction by the opposition and are entitled to whatever weight and credence the agency wants to give them," Coretta and Parsons are cited again. Here Attorney Silver was subject to questioning by members of the Commission at various points in his presentation. Also, "statements of speakers (before zoning commission) . . . are rarely made under oath and witnesses are not required to be sworn," § 20.12, p. 434, Vol 9.
Also any evidence in the record that the commission members relied on their own personal knowledge of other businesses in town offering adult videos for sale and rental is scanty and confusing. The referenced record by way of the minutes states the following: Attorney Silver said use of video booths "is the customary part of this particular type of store. If you want to go into Blockbuster, Blockbuster does have videos going on at various times. Mr. Giuletti (Commission member) stated he has never seen a video preview booth yet in one of those facilities. Mr. Silver stated that he hasn't seen necessarily a booth but that doesn't mean it isn't customary as far as this industry is concerned," (emphasis by this court).
It is not clear that Mr. Giuletti was saying that he was aware of the fact that Blockbuster sold adult type videos or whether the Blockbuster was in North Haven.
In fact in the ensuing conversation between the lawyer and the commission, as previously noted, Attorney Silver said these video booths are a customary part of these types of store and incidental to its operation. The transcript is somewhat confusing but to this the chairman is transcribed as saying he "doesn't doubt for that type of establishment that it is." Based on the foregoing the court does not accept the defendant's two stated procedural type objections previously mentioned.
The court must address two other repeated procedural rubrics in cases of this type (1) a zoning authority "may act upon facts which are known to it even though they are not produced at the hearing," Parsons at 140 Conn. p. 292(2) statements of counsel can be given such weight in a commission's mind which the members conclude it merited, Coretta 42 Conn.App. at p. 139.
Parsons for the first proposition cites Jaffe v. State Dept. of Health, 135 Conn. 339, 349 (1949); Muroka v. Bd. of Zoning Appeals, 134 Conn. 149, 154 (1947). If those cases are read closely, they do not support the defendant's position here. In Jaffe all the court was referring to was the expertise it could assume members of the board being appealed from had in weighing the evidence before it; they were physicians passing on a recommendation to revoke a doctor's license to practice. In Muroka it was held proper for the Board of Zoning Appeals in deciding the matter "presumably familiar" to it — the zoning map and ordinance, they also had made observations of the location, traffic, and surrounding conditions of the place where an applicant wanted to put a gas station.
Here as the previous reference to the record shows the evidence therein is confusing and contradictory on what the commission was or could even speculatively be said to be relying upon to refute or question Attorney Silver's representations that video booths in an adult book store selling adult video's were an accessory use and customary and incident to the primary use. Related to this, at least in this case, is any argument that as to counsel's representations on customary use of video booths the commission could give them such weight they think the representations deserved. That is all well and good in a case where other evidence or reasons are given in the record contradicting the representations made. There is nothing in this record to permit the commission to completely ignore the lawyer's statements, since there is nothing in the record to provide a basis for not crediting what he had to say. In fact as indicated Chairman Palumbo's comment seems to indicate he understood use of video booths were an accessory use in this type of business.
If the representations of counsel for the plaintiffs are accepted it is difficult to reach any other conclusion that the video booths here were an accessory use. The proposed store here would be in the business of trying to sell other items besides videos; as to the sale of videos the booths would be subordinate to and incidental to that purpose under the reasoning of Lawrence — given the nature of the product and the buying public's access to it, video booths are necessary if sales are to be encouraged. Attorney Silver said in this adult store industry it is customary to have these booths — and common sense indicates that such booths are necessary to effectively market videos whose content is not otherwise advertised to the public. As Lawrence requires, video booths in this concept bear a "reasonable relationship to the primary use," id., p. 512.
In other words people who might be interested in buying these videos cannot read about them as they would standard movies in newspapers or hear of them in the standard media so these stores need the booths to effectively sell the product and to operate that component of their business involved with video sales, cf. Trolley North Office Center v. Streacher, supra. If the primary use is permitted this particular accessory use has to be allowed to ensure that the primary use can operate efficiently, if at all, Citizens Coalition v. Bd. of Zoning City, supra, Thomson Industries, Inc. v. Incorporated Village, supra.
This is not a case like Mar Mar Realty v. Board, supra where the court upheld an order prohibiting the installation of 10 video games in a bowling alley — video games have nothing to do with promoting and cannot be said to be incidental to a bowling alley operation.
It is true that the claimed accessory use must be subordinate and incidental to the primary use; as said in Township of Groveland v. Jennings, supra, "when an accessory use attains such magnitude as to no longer be incidental to the principal use, it looses its status as an accessory use," id., 308 N.W.2d at 262. Thus in Aim Rent A Car Inc. v. ZBA, supra, a car rental operation in a hotel derived only 15% to 20% of its business from hotel guests, it was not incidental to the hotel operation by providing a convenience to its guests, it was a separate business and not allowed. Here the videos that can be viewed in the booths are all subject to sale or rental.
But here there is nothing in the record which would permit the court to uphold the commission's decision on some notion that were to run like this: (1) video booths showing videos for sale or rental in an adult book store is, however, an accessory use but (2) where the expected monies to be derived from the video booth operation are so substantial as to make clear that other operations of the store are purely incidental to the video booth operation, then the video booths would not be accessory to a permitted use and would therefore not itself be a permitted use, cf. Township of Groveland v. Jennings, supra. Then it could be said the adult book store operation is merely incidental to the operation of the video booths.
As indicated by the previous reference to Amusing Sandwich v. City of Palm Springs, supra, it might be permissible to pass a zoning ordinance that limited the number of video booths (the video games) in certain districts but the town has not done so. What it cannot do is have its zoning commission or the court, faced with an appeal, speculate that 15 booths is too much, maybe 5 would be okay when there is nothing suggested in the record by way of evidence from the applicants or reasons let alone questioning by the commission members to indicate that the number of booths presented the problem. The commission's denial flatly said the booths were not a permitted use — one, two, five or fifteen being irrelevant to that conclusion by the very wording of the denial.
Furthermore, in this case the defendant has not made any prior rulings interpreting § 6.1.1 or § 6.1-71 which would support its present interpretation of these ordinance sections and the conclusion that these video booths are a primary use not accessory to the proposed use of the site as an adult book store, Raymond v. ZBA, supra.
The court concludes that the interpretation it has given to § 6.1.1 and § 6.1-71 is based on a common sense reading of the ordinances giving their wording a natural meaning. Also that reading appears to conform to Lawrence and cases in other jurisdictions based as these cases are on a practical assessment of business reality, cf. generally Doyan v. ZBA, supra, Farrier v. ZBA. Neither do the factual matters that could reasonably be culled from this record forestall the application of those general interpretations so as to not permit the finding that the plaintiffs have met their burden of showing the video booths would be an accessory use.
Or to look at the problem from another perspective, if in fact an adult book store is a permitted use under § 6.1.1 of the town's regulations, North Haven cannot construe the accessory use section of its ordinances (§ 6.1-71) to ban a use which appears clearly accessory to the permitted primary use — this would be "in derogation of common law property rights." Farrior v. ZBA supra, because it limits or deleteriously affects the permitted use of operating an adult book store.
The court concludes the first reason for the denial of the plaintiff's application was illegal and arbitrary based on a proper construction of its own ordinances further concludes and there was no substantial evidence in the record permitting the commission to find that a legally acceptable interpretation of its ordinances would permit the first reason for denial based on the facts brought forth in the record.
The court is well aware of the strong feelings this matter has aroused and has read the letters and petitions in the record that register great opposition to this use in the town. Even if the court were to agree with those feelings, however, the posture in which the case was presented in the record and through the briefs does not allow the court to do anything else but try to give a neutral interpretation to the language of the town regulations; the defendant commission itself has not held that the operation of an adult book store is an unpermitted use and as of the date of this application did not have any regulations directed specifically at this type of adult entertainment use. In 83 Am.Jur.2d, "Zoning Planning," §§ 373-78, pp. 333-38, a variety of devices to control the activities of such establishments are discussed. Regulations can be passed and enforced if precisely drafted curtailing the use of property for distribution of adult materials, provisions can be passed restricting the location of such establishments or their concentration if all of this is done consistent with due process and First Amendment rights (§ 373), reasonable time, place, and manner restrictions can be passed and Am.Jur. notes the fact that or adult entertainment businesses "are not free to operate within certain distances of schools, residences, churches . . ." are not "exclusionary per se" (§ 375). Of course the legality of any such restrictions under our constitution is not before the court. But the point is that absent any specific regulations trying to enforce provisions like this, it would not be proper for this court to give what it concludes is a forced interpretation of commonly used regulatory language to accomplish by indirection what local zoning authorities have not ventured to do directly.
In any event in light of the concern expressed by people and the importance of the case to both litigants, the court has tried to set forth in some detail the basis of its decision so if error has been made it can be more readily corrected by the Appellate Court.
In any event, as noted the court finds that the first reason for the denial is not supported by the record and is illegal and arbitrary under the town's regulations.
The second reason given for the commissions' denial of the site plan was that "there is not suitable/adequate parking for a use including fifteen (15) video preview booths. The plaintiffs claim this reason was illegal, arbitrary, and an abuse of discretion and also violated the plaintiffs right to fundamental fairness in the hearings on his application.
Both sides thoroughly summarize the factual portion of the record that supports their respective positions with citation to relevant case law. The court will in part paraphrase each of the arguments, sometimes quoting them, and will start with the plaintiff.
The site plan regulations require a parking analysis to be submitted with the application which was done here. That analysis states 54 spaces were required but there were actually 59 existing parking spaces. There is reference to various pieces of correspondence from town staff submitted as part of the review process; the staff included the Land Use Administrator, the town engineer. None of this correspondence raises any question about the number of parking spaces.
It is interesting to note that at the July 11, 2005 hearing on the application counsel for the plaintiff was specifically asked how many viewing booths there would be by a commission member. Counsel indicated that at that time the number of booths had not been determined but would be provided to the commission. In fact four days later on July 15th he sent a letter to the Land Use Administrator notifying him that there would be 15 booths proposed. Several letters or reports from town staff cited in plaintiffs brief for the proposition that none of them contained any reference to number of parking space all predated the July 15th letter and its reference to 15 video booths.
On July 22 counsel wrote to the Land Use Administrator, Alan Frederickson, that he had not received a response to his July 15th letter.
There is a document time stamped July 29, 2005 apparently from the town engineer which under "informative" states there are a number of conditions that do not meet current standard/requirements." There is no mention of the number of parking spaces. There is another document in the record dated July 29, 2005 for the final August 1st meeting from Mr. Frederickson. In this document there is no reference to the number of parking spaces let alone any relationship between the number of video booths and the need for a certain number of parking spaces.
The parties have very different views about the August 1st final commission meeting and whether it references the issue of parking.
Attorney Silver for the plaintiff begins his remarks by addressing the concerns raised by staff by their comments during the application review process. As noted none of these comments reference the number of parking spaces. The plaintiff's expert Gordon Bilides then spoke addressing various staff concerns and he had no comments on parking and commission questions to him did not raise that issue.
Attorney Silver then addressed the issue of the 15 preview booths explaining why he believed they were an accessory use under the regulations and made no reference to the number of parking spaces in relation to the video booths.
Commission members then asked a series of questions which mainly were concerned with the accessory use issue regarding the video booths. There are no specific references to the number of parking spaces. But at one point a commission member did pursue a line of inquiry which the defendant commission claims in its brief is related to the parking issue.
The court will quote from the supplemental record and the approved minutes of the August 1st meeting which were forwarded to Attorney Silver.
Mr. Carlson stated you have these video preview booths that are 4x4 do you have one in the store? Mr. Silver stated no fifteen (15) viewing booths and that was stated in the letter that was given to the Commissioners. Mr. Carlson said there must be a lot of business coming and asked if you had a waiting room for people. Mr. Silver stated no there is no waiting room and no loitering on the premises. They are willing to stipulate to all those items and yes they feel there is a market or we wouldn't be here. Mr. Carlson stated but when you have fifteen (15) booths, you feel that you need fifteen booths obviously; there is only one person at a time. Mr. Silver stated that one (1) person is absolutely restricted. Mr. Carlson stated so if you are full you must have some place in the store for them to be waiting. Mr. Silver stated again there is no waiting room. Mr. Palumbo stated so if anyone walks in and fifteen (15) were full would you say you have to leave. Mr. Silver stated absolutely and the Commission can make that a stipulation.
In his brief plaintiff's counsel comments that he and plaintiff's engineer were prepared to answer any questions and present evidence about parking if they had been so asked. Referencing Section 7 of the town regulations concerning offsite parking in the site plan application, as previously noted, on page 4 of R.O.R. 24 it was estimated 54 spaces were required while 59 spaces actually existed.
Plaintiff's brief also states: "If parking were to be an issue . . . alternative arrangements for additional parking could have been considered . . ." referring to § 7.2 of the town planning and zoning commission regulations. Reading the technical requirements of that section the court on the basis of this record cannot say § 7.2 could have been satisfied but counsel appears to be arguing he was not given the chance to resort to this section of the regulations if there were issues as to parking. That section provides that under certain circumstances parking can be provided on a separate lot from the lot where, for example, a business such as the one proposed here is located.
Finally the defendant refers to the zoning regulations which it argues supports the commission's consideration of and decision on the adequacy of parking issue. Section 3.27.1 provides:
The Planning and Zoning Commission shall not approve a duly submitted site plan unless it shall find that such plan conforms to the requirements of these Regulations. In reviewing the site plan, the Planning and Zoning Commission shall also take into consideration the public health, safety and general welfare, and shall set appropriate conditions and safeguards which are in harmony with the general purpose and intent of these regulations, particularly in regard to achieving the following:22.214.171.124
An adequate, convenient, and safe vehicular and pedestrian circulation system, so that traffic generated by the development will be properly handled both within the site and in relation to the adjoining street system.
Section 3.27.216 (p. 2-15c) is also referred to. It is one of the requirements for a site plan application and that section says the application must indicate the "location, layout, and numbers of proposed off street parking and loading spaces where provided."
The court will now try to discuss the legal issues presented by the plaintiff on the issue of parking (1) the decision was illegal and arbitrary, (2) it was arrived at by violating principles of fundamental fairness. It is true as Rathkopf observes that "rather minimal standards generally have been upheld with regard to the exercise of administrative discretion in determining the required parking for a particular development application," Vol. 5, § 83.7, page 83-14, also see Mirschel v. Weissenberger, 200 N.Y.S.2d 452 (1950). But there must be some basis in the record to save a zoning agency's decision on parking or traffic from being characterized as illegal or arbitrary.
In this regard the court, at least, believes the North Haven parking regulations, like the provisions for primary and accessory uses in commercial and industrial zones, proceed by way of generalities not addressing problems that might be presented by particular uses within general categories.
Fuller at Vol. 9, § 4.38, pp. 116-17 notes that:
Parking is directly related to preventing overcrowding of land, traffic and other safety considerations which may be controlled by zoning. Parking requirements with special permits and site plans are often geared to the nature of the permitted use proposed for the subject property, with uses having a higher volume of customers requiring more parking spaces. Municipal zoning regulations generally contain a schedule as to the number of parking spaces which are allowed for particular uses. As a result, even within the same commercial or business zone there are different parking requirements for specific commercial and business uses.
In fact the only "specifity" in the regulations on the subject of parking would lead a site plan applicant to conclude they did not contemplate an unbridled discretion on the part of the commission. Page 2-47 posits a general category of "retail stores, personal services shops, pet grooming establishments" and says as to these operations there shall be one space for each 200 sq. ft. The proposed floor space here is 1576 sq. ft. which translates into a requirement of 7.9 spaces which this site plan application satisfies.
The only evidence arguably supporting a denial based on the lack of "suitable or adequate parking for a use which included 15 (video preview) booths" are the observations of a commission member, Mr. Carlson, which have been referred to previously — 15 booths, "there must be a lot of business coming," he also asked if there would be a waiting room. Plaintiff's counsel said if the booths were full, people coming in to use them would be told to leave, no loitering would be allowed, and there is no waiting room — he was prepared to have his clients enter into a stipulation on these matters. Of course it is true, as defense counsel argues in its brief that the staff's failure to mention parking does not limit the commission's own consideration of the issue. And it is also true that the suggestion of 15 preview booths was put forth late in the application procedure arguably limiting the amount of time for the staff and the commission to review that part of the proposal. The commission itself, however, did not request more time or added information to consider the effect of 15 booths on parking.
Based on the portions of the record that have been reviewed by the court, the court cannot conclude that the denial based on parking is "reasonably supported by the record," Zeiky v. Town Planning Zoning Comm., 151 Conn. 265, 267 (1963) let alone by "substantial evidence," Property Group Inc. v. Planning Zoning Comm., 226 Conn. 684, 697-98 (1993).
Even if these observations are incorrect and the defendant can rely on broad discretion coupled with some notion of the need to draw every favorable inference to support its position from very limited and oblique comments in the record, there remains the problem of fairness.
In regards to this "due process" argument that the defendant characterizes as being made by the plaintiff, the defendant says the plaintiff was afforded a full and fair hearing — this was not a case where the commission refused to hear evidence or received evidence after the close of the hearing. But this is not the main thrust of the plaintiff's claim of denial of fundamental fairness.
Grimes v. Conservation Comm., 243 Conn. 266 (1997) indicates that although a constitutional right to due process may not exist in all administrative hearings it is the law that "the conduct of the hearing shall not violate the fundamentals of natural justice," id., p. 273 (quoting from an earlier case). When acting on a site plan application a local commission does not act in a quasi-judicial capacity but fundamental rights still govern hearings on such matters, Wasicki v. Zoning Board, 163 Conn. 166, 172-74 (1972) (site plan).
Turning to this case and the issues it raises as to fairness, it is of course true that the courts have "permitted lay members of commissions to rely on their personal knowledge concerning matters readily within their competence, such as traffic congestion and street safety," Feinson v. Conservation Comm., 180 Conn. 421, 427 (1980), Dram Assoc. v. Planning Zoning Comm., 21 Conn.App. 538, 542 (1990); Central Bank for Savings v. PZ Comm., 13 Conn.App. 448, 454-56 (1988). But in Dram Associates and Central Bank, the subject matter of the considerations before the zoning agency which were held to be properly addressed by the members personal knowledge were clearly the subject of the hearings before the commissions, Dram Associates, id., p. 541, see also Brookfield Plaza Ltd. Partnership, 21 Conn.App. 489, 493 (1990).
This underlines that aspect of fundamental fairness that the court, at least finds wanting here. An aspect of due process or more properly fundamental fairness discussed in the cases is the notion that parties have the right, among other procedural rights, to present relevant evidence and rebut evidence if they so choose, Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 536 (1987); Conn. Fund for the Environment v. Stamford, 192 Conn. 247, 249 (1984); Welch v. Zoning Board of Appeals, 158 Conn. 208, 212-13 (1969).
A hearing cannot be considered fair if nothing in the prior concerns and communications from the town staff or anything brought up by the commissioners at the hearing gives fair warning that a particular issue might be determinative. Three hearings were held in this case and the issue of parking never was explicitly raised. It is simply not fair to refer to the cryptic remarks of one commissioner near the end of the final August 1st hearing as a basis to say the applicant should have guessed parking was on the table. If the applicant is not apprised of the matter of concern, only revealed as such by the post evidentiary decision, how can the applicant be said to have had the opportunity to present relevant or rebuttal evidence?
This is not to say that given these regulations the commission must not concern itself with parking issues, § 3.27.1 and § 7.2 of the regulations belie the possibility of any such argument. Nor is it to say that in the area of traffic or parking, for example, a commission reviewing a site plan application cannot rely on its own analysis, observations, and conclusions and act with broad discretion. But fairness requires that as in Dram Associates or Brookfield, supra, an issue which figures in a local agency's decision after a hearing, be a subject of that hearing. Hearings before zoning agencies need not be conducted with a full entourage of due process rights but zoning authorities act in two parts — the hearing, then the decision. A hearing, fundamental to due process, would be pointless if the decision can be based on unannounced after the fact conclusions.
In ICC v. Louisville Nashville R.R. Co., 227 U.S. 88, 93 (1912), the court was dealing with the right to cross-examine witnesses before a federal agency. It was cited on this issue and quoted from in a zoning case by our court in Wadell v. Bd. Of Zoning Appeals, 136 Conn. 1, 9 (1949), but its language has general significance for the concept of fundamental fairness as it is presented in this case. The federal Supreme Court said:
All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense. In no other way can a party maintain its rights or make its defense. In no other way can it test the sufficiency of the facts to support the finding; for otherwise, even though it appeared that the order was without evidence, the manifest deficiency could always be explained on the theory that the Commission had before it extraneous, unknown but presumptively sufficient information to support the finding.
Or perhaps more to the point, Fuller at § 20.12, page § 433 of Vol. 9 says:
The agency proceedings do not have to be run like a trial, and the basic issue is whether those present had the opportunity to present germane evidence, if evidence was restricted whether there was a valid reason for it, and whether the proposed evidence may have affected the outcome, i.e., was it on an important issue.
Counsel for the plaintiff, as indicated, would have been prepared to answer any questions about the parking issue as would his engineer, who was present, and would have exercised the right to explore their options under § 7.2 of the regulations which has been referred to and provides for off-lot parking. They were not given the opportunity. In any event the court concludes that the second reason for the denial failed to afford the plaintiff fundamental fairness in the manner in which it was arrived at.
For the foregoing reasons the plaintiff's appeal is sustained.