Parillo Food Grp., Inc. v. Bd. of Zoning Appeals of New Haven ( 2016 )

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PARILLO FOOD GROUP, INC. v. BOARD
OF ZONING APPEALS OF THE
CITY OF NEW HAVEN
(AC 38023)
Alvord, Sheldon and Mullins, Js.
Argued October 5—officially released December 6, 2016
(Appeal from Superior Court, judicial district of New
Haven, Blue, J.)
Proloy K. Das, with whom were Roderick R. Wil-
liams, assistant corporation counsel, and, on the brief,
Sarah Gruber, for the appellant (defendant).
Brian F. Valko, with whom was Amy P. Blume, for
the appellee (plaintiff).
Opinion
ALVORD, J. The defendant, the Board of Zoning
Appeals of the City of New Haven, appeals from the
judgment of the trial court sustaining the appeal of the
plaintiff, Parillo Food Group, Inc., from the defendant’s
decision granting the plaintiff’s application for a special
exception to operate a restaurant serving liquor that
imposed a condition limiting its hours of operation. On
appeal, the defendant claims that the court improperly
concluded that it had no authority to limit the hours of
operation of the plaintiff’s restaurant.1 Specifically, the
defendant claims that the court (1) should have deter-
mined that municipal zoning boards have the authority
to place temporal restrictions on special exception
uses, (2) erroneously concluded that Connecticut’s
Liquor Control Act, General Statutes § 30-1 et seq.,
divests the defendant of its power to attach conditions
limiting the hours of operation of restaurants that serve
alcohol, and (3) erroneously concluded that the chal-
lenged condition was not integral to the defendant’s
approval of the special exception. We agree with the
defendant’s second claim and, accordingly, reverse the
judgment of the trial court.2
The record reveals the following facts and procedural
history. The plaintiff leases property on State Street in
New Haven, on which it operates a restaurant. The
property is situated in a BA zone, and the area sur-
rounding the restaurant is used for both residential and
commercial purposes. Three dwelling units are located
above the restaurant, and there also is a separate two-
family dwelling located on the subject property. The
use of the property as a restaurant began in the 1990s.
In August, 2000, the defendant granted a special
exception to Amato Bernardo that permitted the service
of wine and beer in the then existing forty-two seat
restaurant. In September, 2011, the plaintiff leased the
restaurant portion of the property. In January, 2012, the
restaurant was severely damaged by fire. The plaintiff
expended approximately $15,000 to rebuild the restau-
rant, and, on January 25, 2013, it filed an application
for a special exception to operate a forty-seven seat
restaurant with a full restaurant liquor permit. Addition-
ally, the plaintiff requested permission to allow three
on-site parking places instead of the twelve spaces ordi-
narily required for a forty-seven seat restaurant.
The defendant held a public hearing on the plaintiff’s
application on March 12, 2013. Several individuals
attended the hearing, some speaking in favor of the
proposal and others speaking against it. Exhibits were
submitted to the defendant, including an advisory
report prepared by the New Haven City Plan Depart-
ment (department) and an advisory report prepared by
the New Haven City Plan Commission (commission).
At a voting session held on April 9, 2013, the defendant’s
board members discussed the plaintiff’s application and
the commission’s suggestions in its report. The mem-
bers voted unanimously to approve the special excep-
tion subject to the five conditions stated in that report.
By letter dated April 12, 2013, the defendant notified
the plaintiff of its decision. The plaintiff appealed to
the Superior Court, challenging the authority of the
defendant to impose the conditions.
The trial court held a hearing on November 13, 2014.
The court heard testimony from Daniel Parillo, the pres-
ident of the plaintiff corporation, and found that the
plaintiff was aggrieved.3 Following that determination,
the parties’ counsel presented their arguments to the
court. They agreed that the pivotal issue before the
court was whether the defendant had the authority to
impose a limitation on the hours of the restaurant’s
operation as set forth in the first condition attached to
the special exception. That condition provided: ‘‘Hours
of operation not to extend past 11:30 p.m. daily. (Consis-
tent with conditions attached to similar requests in this
neighborhood.)’’ Although not expressly alleged in its
administrative appeal or argued in its pretrial brief,
plaintiff’s counsel claimed at the hearing that the provi-
sions of the Liquor Control Act governed the hours
of operation for restaurants authorized to provide full
liquor service.4 According to the plaintiff, only a town,
by vote of a town meeting or by ordinance; see General
Statutes § 30-91 (b);5 could limit those hours of opera-
tion. The trial court allowed both parties to submit
supplemental briefs addressed to that particular issue.
The court issued its memorandum of decision on
December 12, 2014. The court made the following deter-
mination: ‘‘Local authorities unquestionably have a gen-
eral power to regulate health, safety, and welfare factors
affecting establishments where liquor is sold. . . .
Such regulation must, however, be done in a compre-
hensive, but not inconsistent, manner. . . . When local
authorities seek to regulate the hours of operation of
establishments selling alcoholic beverages . . . § 30-
91 (b) tells them exactly how to do this. They must do so
by vote of a town meeting or by ordinance.’’ (Citations
omitted; internal quotation marks omitted.) Citing Bora
v. Zoning Board of Appeals, 161 Conn. 297, 302, 288
A.2d 89 (1971), and Greenwich v. Liquor Control Com-
mission, 191 Conn. 528, 540, 469 A.2d 382 (1983), the
court concluded that the defendant could not limit the
hours of sale of alcohol under the guise of zoning.
Accordingly, the court found the condition limiting the
plaintiff’s hours of operation to be illegal. After finding
that the condition was not an integral component of
the defendant’s decision, the court modified that deci-
sion by removing that condition from the approval of
the special exception. The defendant filed the present
appeal after this court granted its petition for certifica-
tion to appeal.
We first set forth the applicable legal principles and
standard of review that guide our analysis. ‘‘In reviewing
a decision of a zoning board, a reviewing court is bound
by the substantial evidence rule,6 according to which,
[c]onclusions reached by [a zoning] commission must
be upheld by the trial court if they are reasonably sup-
ported by the record. The credibility of the witnesses
and the determination of issues of fact are matters
solely within the province of the [commission]. . . .
The question is not whether the trial court would have
reached the same conclusion, but whether the record
before the [commission] supports the decision reached.
. . . If a trial court finds that there is substantial evi-
dence to support a zoning board’s findings, it cannot
substitute its judgment for that of the board. . . . If
there is conflicting evidence in support of the zoning
commission’s stated rationale, the reviewing court . . .
cannot substitute its judgment as to the weight of the
evidence for that of the commission. . . . The agency’s
decision must be sustained if an examination of the
record discloses evidence that supports any one of the
reasons given.’’ (Citations omitted; footnote added;
internal quotation marks omitted.) Municipal Funding,
LLC v. Zoning Board of Appeals, 270 Conn. 447, 453,
853 A.2d 511 (2004).
With respect to special exceptions, ‘‘General Statutes
§ 8-2 (a) provides in relevant part that local zoning regu-
lations may provide that certain . . . uses of land are
permitted only after obtaining a special permit or spe-
cial exception . . . subject to standards set forth in
the regulations and to conditions necessary to protect
the public health, safety, convenience and property val-
ues. . . . The terms special permit and special excep-
tion are interchangeable. . . . A special permit allows
a property owner to use his property in a manner
expressly permitted by the local zoning regulations.
. . . The proposed use, however, must satisfy stan-
dards set forth in the zoning regulations themselves as
well as the conditions necessary to protect the public
health, safety, convenience and property values. . . .
An application for a special permit seeks permission
to vary the use of a particular piece of property from
that for which it is zoned, without offending the uses
permitted as of right in the particular zoning district.
. . . When ruling upon an application for a special per-
mit, a planning and zoning board acts in an administra-
tive capacity. . . . [Its] function . . . [is] to decide
within prescribed limits and consistent with the exer-
cise 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. . . . We have
observed that the nature of special [permits] is such
that their precise location and mode of operation must
be regulated because of the topography, traffic prob-
lems, neighboring uses, etc., of the site. . . . Review of
a special permit application is inherently fact-specific,
requiring an examination of the particular circum-
stances of the precise site for which the special permit
is sought and the characteristics of the specific neigh-
borhood in which the proposed facility would be built.’’
(Citations omitted; internal quotation marks omitted.)
Meriden v. Planning & Zoning Commission, 146 Conn.
App. 240, 244–45, 77 A.3d 859 (2013). When considering
an application for a special permit, a zoning board is
called upon to make a decision as to whether a particu-
lar proposal would be compatible with the particular
zoning district ‘‘under the circumstances then existing.’’
Barberino Realty & Development Corp. v. Planning &
Zoning Commission, 222 Conn. 607, 614, 610 A.2d
1205 (1992).
‘‘The general conditions such as public health, safety
and welfare, which are enumerated in zoning regula-
tions, may be the basis for the denial of a special permit.
. . . [B]efore the zoning commission can determine
whether the specially permitted use is compatible with
the uses permitted as of right in the particular zoning
district, it is required to judge whether any concerns,
such as parking or traffic congestion, would adversely
impact the surrounding neighborhood. . . . Connecti-
cut courts have never held that a zoning commission
lacks the ability to exercise discretion to determine
whether the general standards in the regulations have
been met in the special permit process. . . . If the spe-
cial permit process were purely ministerial there would
be no need to mandate a public hearing.’’ (Internal quo-
tation marks omitted.) Children’s School, Inc. v. Zoning
Board of Appeals, 66 Conn. App. 615, 619–20, 785 A.2d
607, cert. denied, 259 Conn. 903, 789 A.2d 990 (2001).
Where a special exception is involved, ‘‘the board may
impose conditions only to the extent allowed by the
zoning regulations themselves. . . . Without such a
grant of power, the board . . . would be unable to
impose a condition even where one was obviously desir-
able.’’ (Citations omitted.) Shulman v. Zoning Board
of Appeals, 154 Conn. 426, 429, 226 A.2d 380 (1967).
It is undisputed that the plaintiff is entitled to operate
a restaurant as a permitted use in the BA zone. In order
to serve alcoholic liquor, however, the plaintiff was
required to obtain a special exception pursuant to arti-
cle V, § 42, of the New Haven Zoning Ordinance (regula-
tions). Section 63 (d) of the regulations, pertaining to
special exceptions, provides the following statement of
purpose: ‘‘It is recognized . . . that there are certain
uses and features which, because of their unique char-
acteristics, cannot be distinctly classified or regulated
in a particular district or districts, without consider-
ation, in each case, of the impact of such uses and
features upon neighboring uses and the surrounding
area, compared with the public need for them at particu-
lar locations. Such uses and features are therefore
treated as special exceptions.’’ (Emphasis omitted.)
Section 63 (d) (3) of the regulations provides the
defendant with the following guidelines in evaluating an
application for a special exception: ‘‘Special exceptions
shall be granted only where the [defendant] finds that
the proposed use or feature or the proposed extension
or substantial alteration of an existing use or feature
is in accord with the public convenience and welfare
after taking into account, where appropriate . . . (b)
[t]he resulting traffic patterns and adequacy of pro-
posed off-street parking and loading . . . (c) [t]he
nature of the surrounding area and the extent to which
the proposed use or feature might impair its present
and future development . . . (d) [t]he proximity of
dwellings, churches, schools, public buildings and other
places of public gathering . . . (e) [a]ll standards con-
tained in this ordinance . . . (f) [t]he comprehensive
plan of the City of New Haven, and other expressions
of the purpose and intent of this ordinance.’’ (Emphasis
omitted.) In addition to these general conditions, § 63
(d) (5) authorizes the defendant to impose specific con-
ditions on a special exception when appropriate: ‘‘In
granting a special exception, the [defendant] may attach
such additional conditions and safeguards as are
deemed necessary to protect the neighborhood, such
as, but not limited to, those listed in paragraph 63 (c)
(3) of this ordinance. Failure to comply with any such
condition or safeguard shall constitute a violation of
this ordinance.’’ The conditions listed in § 63 (c) (3)
include, inter alia, ‘‘[l]imitation of size, number of occu-
pants, method or time of operation, or extent of facili-
ties . . . .’’ (Emphasis added.)
The applicable zoning regulations clearly authorize
the defendant to attach a condition limiting the hours
of operation when granting a special exception. In
reaching its decision that such a condition was war-
ranted in the present case, the defendant had to rely
on the record of the proceedings before it, which
included the evidence presented at the public hearing
and the advisory reports of the department and the
commission.7 At the public hearing, the defendant was
apprised of the fact that the plaintiff had added a sepa-
rate bar area to the restaurant with seven seats. The
dining area accommodated forty seats, for a total of
forty-seven seats. An opposition to the plaintiff’s appli-
cation, titled ‘‘[a]pproval of this special exception would
intensify the present use and cause undue hardship to
neighboring residents and businesses due to the lack
of parking,’’ that was signed by approximately forty-five
people, was presented to the defendant. Additionally,
concerns were expressed that the addition of the bar
would change the nature of the restaurant’s former use.
Although only seven seats were in the bar area, one
speaker at the hearing noted that many people would
congregate in that area, standing behind the seats and
ordering drinks. Further, individuals who identified
themselves as living in the neighborhood for several
years stated that the parking situation was ‘‘awful’’ and
a ‘‘nightmare,’’ that there were many families with small
children living in the area, that there would be ‘‘more
bar action,’’ and that the traffic would increase if the
restaurant had a full liquor permit.
The advisory reports both recommended granting the
special exception with conditions. The department’s
report contained the following statement: ‘‘The pro-
posed change from beer and wine to full alcohol service
(including a bar) does change the nature of the restau-
rant. Practically speaking, the question is whether or
not it is apparent (or even just likely) that . . . this
change . . . will result in an establishment that can
operate ‘in accordance with the public convenience
and welfare’ as was determined to be the case for the
previous restaurant in 2000. In the view of staff, much
of what could be viewed as additional impact is mitiga-
ble. For example, while it is unlikely that extending full
liquor service to diners would in any way affect existing
neighborhood conditions, the addition of a bar might.
In many cases, bar service continues far past dining
hours into early morning hours, occasionally disturbing
nearby residents. Staff suggests that the imposition of
hours of operation reflecting dining hours is not only
appropriate but is reflective of recent policy in respect
to restaurants located not only on State Street but also
in other neighborhood business districts within the
City.’’ The department suggested adding a condition to
the approval of the special exception that the ‘‘[h]ours
of operation [are] not to extend past 11:30 p.m. daily.’’
The commission’s report expressed similar concerns.
In reviewing the criteria in the regulations pertaining
to the granting of special exceptions, the commission
noted: ‘‘The Plan’s Housing and Neighborhood Planning
section advises that neighborhoods be protected
against potentially deleterious and/or nuisance influ-
ences. Any approval of this application should provide
some assurances of that protection.’’ The commission
recommended that the application be approved with
five conditions, including the following: ‘‘Hours of oper-
ation not to extend past 11:30 p.m. daily. (Consistent
with conditions attached to similar requests in this
neighborhood.)’’8 At the defendant’s voting session on
April 9, 2013, it followed the recommendation of the
commission and approved the plaintiff’s special excep-
tion with the five conditions listed in the commission’s
advisory report.
The plaintiff claims, however, that even if temporal
conditions relating to a business’ operation may be
appropriate under certain circumstances, the defendant
could not limit the plaintiff’s hours of operation because
the provisions of the Liquor Control Act grant only
the city of New Haven, and not its zoning board, the
authority to restrict the hours during which its restau-
rant can sell liquor. The plaintiff argues, and the trial
court agreed, that § 30-91 (a) sets forth the permissible
hours of operation for a restaurant with a full liquor
permit and that § 30-91 (b) allows a municipality to
restrict those hours by vote of a town meeting or by
ordinance. In other words, as argued, although a munici-
pality has the authority to restrict the hours of sale, a
zoning board has no such authority. We disagree.
The plaintiff maintains that the defendant errone-
ously construes the trial court’s decision as holding that
the preemption doctrine precludes the defendant from
restricting the plaintiff’s hours of operation. We con-
clude that the preemption doctrine does factor into our
analysis because the trial court essentially has deter-
mined that a local zoning board is precluded, by virtue
of § 30-91 (b), from restricting the hours of operation
of a restaurant that possesses a full liquor permit. Even
though the regulations expressly authorize the defen-
dant to impose such a condition in granting a special
exception, the court, in adopting the reasoning of the
plaintiff, determined that zoning boards are preempted
by the provisions of the Liquor Control Act from
restricting the hours of service because only a munici-
pality is expressly authorized to do so by § 30-91 (b).
Accordingly, we look to the legal principles involved
in the determination of when a local ordinance is pre-
empted by a state statute.
‘‘The authority to engage in zoning is drawn from
the police power, which is the source of all zoning
authority.’’ (Internal quotation marks omitted.) VIP of
Berlin, LLC v. Berlin, 50 Conn. Supp. 542, 549, 951 A.2d
714 (2007), aff’d, 287 Conn. 142, 946 A.2d 1246 (2008).
‘‘There is overlap in the General Statutes between the
authority of a zoning commission and the exercise of
the municipal police power through the adoption of
ordinances by a town’s legislative body. Many of the
subjects over which the municipality is given the power
to regulate by [General Statutes] § 7-148 are tradition-
ally the subject of zoning and planning regulations as
well. . . . Where the language and purpose of two stat-
utes overlap, they are to be read in concert.’’ (Citation
omitted; internal quotation marks omitted.) Id., 551.
‘‘The State may regulate any business or the use of
any property in the interest of the public welfare or the
public convenience, provided it is done reasonably.
. . . The limit of the exercise of the police power is
necessarily flexible, because it has to be considered in
the light of the times and the prevailing conditions.’’
(Internal quotation marks omitted.) Modern Cigarette,
Inc. v. Orange, 256 Conn. 105, 118, 774 A.2d 969 (2001).
‘‘[I]n determining whether a local ordinance is pre-
empted by a state statute, we must consider whether
the legislature has demonstrated an intent to occupy
the entire field of regulation on the matter or whether
the local ordinance irreconcilably conflicts with the
statute.’’ Id., 119.
In the present case, when reviewing various provi-
sions of the Liquor Control Act, it becomes apparent
that the legislature intended municipalities and local
zoning boards to have some input regarding, inter alia,
the location of establishments that sell alcohol and con-
ditions relating to the operation of those businesses.
As already noted, § 30-91 (b) authorizes a town, by
vote of a town meeting or by ordinance, to reduce the
number of hours during which sales of alcoholic liquor
are permissible. Further, a town may vote to prohibit the
sale of alcoholic liquor within its boundaries. General
Statutes § 30-9. Additionally, the Department of Con-
sumer Protection must refuse to grant permits for the
sale of alcoholic liquor in no-permit towns and where
prohibited by the zoning ordinance of any city or town.
General Statutes § 30-44.
We next examine the relevant statutes and the New
Haven Zoning Ordinance to determine whether there
is a conflict that precludes the defendant from imposing
the hours of operation condition authorized by the local
zoning regulation. ‘‘Whether an ordinance conflicts with
a statute or statutes can only be determined by
reviewing the policy and purposes behind the statute
and measuring the degree to which the ordinance frus-
trates the achievement of the state’s objectives. . . .
Therefore, [t]hat a matter is of concurrent state and
local concern is no impediment to the exercise of
authority by a municipality through the enactment of
an ordinance, so long as there is no conflict with the
state legislation. . . . Where the state legislature has
delegated to local government the right to deal with a
particular field of regulation, the fact that a statute also
regulates the same subject in less than full fashion does
not, ipso facto, deprive the local government of the
power to act in a more comprehensive, but not inconsis-
tent, manner.’’ (Citations omitted; internal quotation
marks omitted.) Modern Cigarette, Inc. v. Orange,
supra, 256 Conn. 119.
‘‘Therefore, merely because a local ordinance,
enacted pursuant to the municipality’s police power,
provides higher standards than a statute on the same
subject does not render it necessarily inconsistent with
the state law. Whether a conflict exists depends on
whether the ordinance permits or licenses that which
the statute forbids, or prohibits that which the statute
authorizes. If, however, both the statute and the ordi-
nance are prohibitory9 and the only difference is that
the ordinance goes further in its prohibition than the
statute, but not counter to the prohibition in the statute,
and the ordinance does not attempt to authorize that
which the legislature has forbidden, or forbid that which
the legislature has expressly authorized, there is no
conflict. . . . Where a municipal ordinance merely
enlarges on the provisions of a statute by requiring
more than a statute, there is no conflict unless the
legislature has limited the requirements for all cases.’’
(Footnote added; internal quotation marks omitted.)
Id., 120.
Our resolution of this appeal requires us to construe
provisions of state statutes, i.e., provisions in the Liquor
Control Act, and the local zoning regulations. ‘‘This
analysis entails the construction of the relevant [zoning]
regulations and [state] statutes, and is therefore a mat-
ter of law over which we exercise plenary review of the
trial court’s decision.’’ Zimnoch v. Planning & Zoning
Commission, 302 Conn. 535, 547, 29 A.3d 898 (2011).
The parties do not dispute that, under certain circum-
stances, a zoning board may impose conditions relating
to a business’ hours of operation in granting a special
exception. Decisions regarding applications for special
exceptions are particularly fact bound. A zoning board
must consider ‘‘the particular circumstances of the pre-
cise site,’’ including whether the ‘‘mode of operation
must be regulated because of the topography, traffic
problems [and] neighboring uses . . . of the site.’’
(Internal quotation marks omitted.) Meriden v. Plan-
ning & Zoning Commission, supra, 146 Conn. App.
245. The defendant in this case concluded that a change
from the plaintiff’s service of beer and wine to full
alcohol service, including a bar, would adversely affect
the public convenience and welfare of the neighboring
residential uses unless a condition limiting the hours
of operation was imposed. This decision involves a par-
ticular use of a particular business in a particular zone.
As such, we conclude that the exercise of such
authority pursuant to the regulations does not conflict
with the purpose and intent of § 30-91 (b). The provi-
sions of § 30-91 (b) permit a town to limit the hours of
service in all types of businesses selling alcohol in all
of the zoning districts in that town. It is a legislative
decision, expressing a policy that service of alcohol
should be restricted. Unlike a zoning board’s adminis-
trative decision relating to an application for a special
exception, a town, when it acts by vote of a town meet-
ing or by ordinance pursuant to § 30-91 (b), has deter-
mined that everyone within its boundaries must limit
the hours of sale because of a general determination
that such a limitation is in the best interests of the town.
The purposes for limiting the hours of operation in
connection with a special exception and the purposes
for restricting the hours of sale of liquor on a town-
wide basis are separate and distinct, and both the local
zoning regulation and the state statute can coexist with-
out conflict.
We conclude that the condition imposed by the defen-
dant on the plaintiff’s special exception, which limited
the hours of operation with respect to the sale of alco-
holic liquor, was authorized by a regulation that was
not in conflict with the provisions of § 30-91 (b). The
defendant’s restriction of hours merely went further in
its prohibition on sales as set forth in § 30-91 (a). For the
reasons stated in this opinion, the trial court improperly
determined that the defendant was precluded from
imposing the condition restricting the plaintiff’s hours
of operation and improperly determined that the condi-
tion at issue was illegal.10
The judgment is reversed and the case is remanded
to the trial court with direction to dismiss the plain-
tiff’s appeal.
In this opinion the other judges concurred.
1
The defendant granted the special exception subject to five conditions,
two of which were not challenged by the plaintiff and two of which the
defendant conceded were advisory and not integral to the decision. The
only condition at issue is the first condition: ‘‘Hours of operation not to
extend past 11:30 p.m. daily. (Consistent with conditions attached to similar
requests in this neighborhood.)’’
2
With respect to the defendant’s first claim, the plaintiff does not challenge
the authority of municipal zoning boards to impose temporal conditions, in
certain situations, on special exception uses. Nevertheless, the defendant
urges this court to ‘‘clarify that municipal zoning authorities may place
reasonable hours of operation restrictions on local businesses when consid-
ering applications for special exceptions.’’ Because this issue is not in contro-
versy between the parties, we decline to address it. ‘‘This court does not
render advisory opinions. . . . As our Supreme Court explained more than
a century ago, [s]uch action on our part would be clearly extrajudicial. It
would be a case purely of advice and not of judgment.’’ (Citations omitted;
internal quotation marks omitted.) National Amusements, Inc. v. East Wind-
sor, 84 Conn. App. 473, 485, 854 A.2d 58 (2004).
We also do not address the defendant’s third claim. Because we conclude
that the defendant had the authority to impose the condition limiting the
hours of operation, it is not necessary to determine whether that condition
was integral to the defendant’s approval of the special exception.
3
The court’s finding of aggrievement has not been challenged on appeal.
4
General Statutes § 30-91 (a) provides in relevant part: ‘‘The sale or the
dispensing or consumption or the presence in glasses or other receptacles
suitable to permit the consumption of alcoholic liquor by an individual in
places operating under . . . restaurant permits . . . shall be unlawful on:
(1) Monday, Tuesday, Wednesday, Thursday and Friday between the hours
of one o’clock a.m. and nine o’clock a.m.; (2) Saturday between the hours
of two o’clock a.m. and nine o’clock a.m.; (3) Sunday between the hours
of two o’clock a.m. and eleven o’clock a.m. . . .’’
5
General Statutes § 30-91 (b) provides in relevant part: ‘‘Any town may,
by vote of a town meeting or by ordinance, reduce the number of hours
during which sales under subsection (a) of this section, except sales pursuant
to an airport restaurant permit, airport bar permit or airport airline club
permit, shall be permissible. . . .’’
6
‘‘This so-called substantial evidence rule is similar to the sufficiency of
the evidence standard applied in judicial review of jury verdicts, and evidence
is sufficient to sustain an agency finding if it affords a substantial basis of
fact from which the fact in issue can be reasonably inferred. . . . [I]t must
be enough to justify, if the trial were to a jury, a refusal to direct a verdict
when the conclusion sought to be drawn from it is one of fact for the jury.
. . . The substantial evidence rule is a compromise between opposing theo-
ries of broad or de novo review and restricted review or complete abstention.
It is broad enough and capable of sufficient flexibility in its application to
enable the reviewing court to correct whatever ascertainable abuses may
arise in administrative adjudication. On the other hand, it is review of such
breadth as is entirely consistent with effective administration. . . . The
corollary to this rule is that absent substantial evidence in the record, a
court may not affirm the decision of the board.’’ (Internal quotation marks
omitted.) Meriden v. Planning & Zoning Commission, 146 Conn. App. 240,
247, 77 A.3d 859 (2013).
7
The department’s advisory report was submitted pursuant to § 63 (e)
(2) of the regulations, and the commission’s advisory report was submitted
pursuant to § 63 (d) (6) of the regulations.
8
The plaintiff challenges the defendant’s statement that similar conditions
relating to hours of operation have been imposed on similar establishments
in the area, noting that the restaurant across the street has a full liquor
permit and has no restriction on its hours of operation. The competitor
restaurant, however, secured its liquor permit twenty-eight years prior to
the public hearing on the plaintiff’s application. As previously noted, a zoning
board must consider the circumstances ‘‘then existing’’ when it acts upon
an application for a special exception. Barberino Realty & Development
Corp. v. Planning & Zoning Commission, supra, 222 Conn. 614. Neighbor-
hood conditions may have changed substantially within those twenty-
eight years.
9
Section 30-91 (a), which provides that sales of alcoholic liquor shall be
unlawful during certain hours, is a prohibitory statute. The condition
imposed by the defendant on the plaintiff’s special exception also is prohibi-
tory in that it extends the hours during which the plaintiff’s sale of alcoholic
liquor would be prohibited.
10
The trial court also relied on the cases of Bora v. Zoning Board of
Appeals, supra, 161 Conn. 297, and Greenwich v. Liquor Control Commis-
sion, supra, 191 Conn. 528, in reaching its conclusion that the condition
was illegal.
In Bora, a 1971 decision by our Supreme Court, the defendant zoning
board of appeals granted the application for a variance from the off street
parking regulations so that the applicant could operate a cafe without provid-
ing the requisite eight parking spaces. Bora v. Zoning Board of Appeals,
supra, 161 Conn. 299. The board attached a condition to the variance that
limited the hours of the applicant’s operation of the cafe. Our Supreme
Court determined that the zoning board exceeded its powers, as granted to
it by the zoning ordinance, and concluded that the board had acted illegally.
Id., 302. This was not a case involving a special exception, with the authority
to impose a condition limiting the hours of operation as set forth in the
zoning ordinance. The condition in Bora was attached to a variance of
parking space regulations. The special exception in the present case was
required in order for the plaintiff to sell alcoholic liquor.
In Greenwich, our Supreme Court determined that the plaintiff town had
improperly refused to certify that an applicant’s request for an issuance of
a night club liquor permit from the Liquor Control Commission did not
violate the town’s zoning ordinance. Greenwich v. Liquor Control Commis-
sion, supra, 191 Conn. 539–40. The applicant’s restaurant already had a valid
restaurant liquor permit, and the applicant wanted to remain open one hour
longer as permitted by a night club liquor permit. Id., 535–36. Our Supreme
Court stated that the town had failed to point to any zoning laws that
prohibited the applicant’s certification for a night club liquor permit. Id.,
539. Further, ‘‘[w]hat they did attempt, without any basis in their zoning
laws and without having employed the legitimate legislative option of lim-
iting the hours of sale afforded by § 30-91 (a), was to prohibit the issuance
of this permit under the guise of zoning.’’ (Emphasis added.) Id., 540. We
do not find the holding of this case to be applicable to the present situation.
We also note that the Supreme Court case of P. X. Restaurant, Inc. v.
Windsor, 189 Conn. 153, 454 A.2d 1258 (1983), contains language that is
supportive of our decision. Our Supreme Court stated: ‘‘It is also reasonable
. . . to imply that liquor premises are subject to local zoning ordinances
which involve matters other than location. Once a liquor location is approved
there may be additional health, safety and welfare factors unrelated to the
fact that liquor will be sold at that location. These are zoning matters of
local concern and thus are within the expertise of local authorities.’’ Id., 160.