Steroco, Inc. v. Szymanski , 166 Conn. App. 75 ( 2016 )

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STEROCO, INC. v. JOSEPH J. SZYMANSKI, JR., ET AL.
(AC 37288)
DiPentima, C. J., and Lavine and Keller, Js.
Argued January 12, 2016—officially released June 14, 2016
(Appeal from Superior Court, judicial district of New
Haven, Hon. William L. Hadden, Jr., judge trial referee.)
E. James Loughlin, for the appellant (named
defendant).
Dominic Joseph DelVecchio, for the appellee
(plaintiff).
Opinion
KELLER, J. The defendant Joseph J. Szymanski, Jr.,1
appeals from the judgment of the trial court granting
a permanent injunction requested by the plaintiff, Ster-
oco, Inc., in its action seeking private enforcement of
the zoning regulations of the town of North Branford.
On appeal, the defendant claims that this court should
vacate the permanent injunction on the basis of the
following: (1) the court improperly found that the defen-
dant had committed a zoning violation; (2) the court
erred by applying an improper standard in deciding
whether to grant the permanent injunction; and (3) the
court improperly rejected the defendant’s special
defense of municipal estoppel. We agree with the defen-
dant on his second claim and reverse the judgment of
the trial court.2
On July 17, 2014, the court granted the plaintiff a
permanent injunction and issued a memorandum of
decision wherein it set forth the following facts and
procedural history: ‘‘The plaintiff is a Connecticut cor-
poration with a place of business in Durham . . . and
is the owner of commercial real estate located at 847
Forest Road in North Branford . . . . The [Zoning
Board of Appeals for the Town of North Branford
(board)] is a municipal board charged with hearing
and deciding appeals of decisions made by the [zoning
enforcement officer]. [The defendant] is the owner of
Village Wine and Spirits, a retail liquor package store
presently located at 855 Forest Road in North Branford
. . . . The plaintiff constructed 847 [Forest Road]
approximately [fifty] years ago and it has been used as
a liquor store since its construction. The defendant has
been a tenant at 847 [Forest Road], operating Village
Wine for over [twenty-five] years until September, 2012,
when he relocated the liquor store to premises located
at 855 Forest Road, next door to 847 [Forest Road].
‘‘In connection with relocating his retail liquor store,
[the defendant] was required to obtain the approval of
the Liquor Control Division of the State Department of
Consumer Protection [(liquor control division)]. The
application to the [liquor control division] required a
certificate from the [zoning enforcement officer] that
the new location was in compliance with the North
Branford Zoning Regulations. [The defendant] obtained
the certificate of zoning compliance from the [zoning
enforcement officer] on July 17, 2012, and filed the
application with the [liquor control division]. However,
that application was lost at the [liquor control division]
and was never acted upon by the [liquor control
division].
‘‘[The defendant] then filed a new removal applica-
tion, with a new certificate of zoning compliance dated
August 14, 2012, with the [liquor control division], which
approved the application. The [liquor control division]
accepted the certificate of zoning compliance and did
not question its accuracy. The [liquor control division]
requires that the applicant for a new retail liquor store
post a placard on the property providing notice of the
application for a liquor permit. The placard was posted
on August 15, 2012, which was the first time the plaintiff
became aware that [the defendant] planned to move
his retail liquor store from 847 [Forest Road] to 855
[Forest Road].
‘‘On August 22, 2012, the plaintiff contacted [the
liquor control division], was advised of the certificate
of zoning compliance on file, and that day contacted
the [zoning enforcement officer], who confirmed that
he had issued a zoning compliance certificate for 855
[Forest Road]. This was the first time that the plaintiff
knew of the issuance of the certificate of zoning com-
pliance.
‘‘On September 7, 2012, the plaintiff filed an applica-
tion with the board, pursuant to § 61.2.1 of the North
Branford Zoning Regulations, claiming that the certifi-
cate of zoning compliance filed by the [zoning enforce-
ment officer] was in error. Section 54.4.1 of the zoning
regulations of North Branford provides that ‘No liquor
outlet shall be located within 500 feet of any church
. . . .’ The plaintiff claimed that 855 [Forest Road] was
[fewer] than 500 [feet] from a local church.
‘‘On September 13, 2012, the plaintiff filed an
amended application with the board which was identi-
cal to the September 7, 2012 application except that
ten certified copies of a site plan were filed with the
September 13, 2012 application. On October 15, 2012,
the board found that the application filed by the plaintiff
was untimely and refused to hear the application.
***
‘‘The second count [is a private enforcement action
seeking injunctive relief and it] requests a permanent
injunction restraining [the defendant’s] operation of his
liquor store at 855 [Forest Road] because it violates the
zoning regulations. . . .
‘‘The plaintiff claims that the package store at 855
[Forest Road] is within 500 feet of Saint Andrew’s Epis-
copal Church at 1382 Middletown Avenue in North
Branford. The 500 [foot] measurement was conducted
in accordance with the North Branford Zoning Regula-
tion § 54.2, [which provides that] ‘[a]ll required dis-
tances shall be measured from the nearest corner of
any building or premises used as a liquor outlet to the
nearest corner of any church.’
‘‘The professional surveyor retained by the plaintiff
testified that he used the ‘straight line’ method and that
the distance from the nearest corner of the church to
the nearest corner of 855 [Forest Road] was 460.62 feet.
The [zoning enforcement officer] testified that when he
signed the certificate of zoning compliance, he had not
yet conducted any measurement of the distance from
the church to 855 [Forest Road]. It was after the plaintiff
discussed the matter with the [zoning enforcement offi-
cer] that he made a measurement. The [zoning enforce-
ment officer] then did a measurement using a pavement
wheel to travel the way a pedestrian or vehicle would
walk or drive from the front door of 855 [Forest Road]
to the front door of the church, resulting in a distance
of over 500 feet. There was no credible explanation
given by the [zoning enforcement officer] as to why he
measured the distance between the front doors of 855
[Forest Road] and the church, rather than the distance
between the [nearest] corners of the two buildings, as
is required in § 54.2.
***
‘‘The court finds that the ‘straight line’ method is to
be used in making the measurement in this case to
avoid the inconsistent and arbitrary results in the
method used by the [zoning enforcement officer]. Using
the ‘straight line’ method, the court finds that the dis-
tance from the nearest corner of the 855 [Forest Road]
building to the nearest corner of Saint Andrew’s Episco-
pal Church is 415.18 feet, and the distance from the
nearest corner of the unit that contains 855 [Forest
Road] to the nearest corner of the church is 460.62
feet. Both measurements are [fewer] than the 500 [feet
required] in Zoning Regulation § 54.4.1. The retail liquor
sales business at 855 [Forest Road] is in violation of
the zoning regulation. . . .
‘‘Section 54.4.2 of the North Branford Zoning Regula-
tions provides that ‘[n]o liquor outlet shall be located
less than 1500 feet from an establishment with the same
class permit.’ The presence of a liquor outlet at 855
[Forest Road] prevents the plaintiff from leasing 847
[Forest Road] as a liquor outlet because 847 [Forest
Road] is less than 1500 feet from the business presently
operating at 855 [Forest Road]. When the building which
includes 847 [Forest Road] was built [fifty] years ago
it was designed as a package store and has been oper-
ated as a retail liquor store ever since, with [the defen-
dant] as a tenant for [twenty-five] years.
‘‘The unlawful location of the retail liquor store at
855 [Forest Road] prevents the plaintiff from utilizing
his property at 847 [Forest Road] for the purpose for
which it was built and has been used for [fifty] years.
The inability of the plaintiff to use his property for the
purpose for which it was originally constructed and
used for [fifty] years results in a reduction in the value
of 847 [Forest Road]. Until the illegal relocation of [the
defendant’s] liquor store to 855 [Forest Road] rendered
the plaintiff unable to rent to a new liquor store opera-
tor, 847 [Forest Road] had no competition in the North-
ford Center area. That competitive advantage has been
taken away by [the defendant’s] illegal relocation. . . .
The plaintiff has proven that [the defendant] is
operating in violation of the zoning law and that said
operation has caused the plaintiff economic harm.’’
On August 4, 2014, the defendant filed a motion to
reargue pursuant to Practice Book § 11-12, claiming that
reargument was required because the court improperly
failed to balance the equities in granting the plaintiff’s
permanent injunction. On September 29, 2014, the court
denied the defendant’s motion and issued an order
wherein it stated that ‘‘[t]he order of permanent injunc-
tion may issue effective October 1, 2014.’’ This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
We first address the defendant’s claim that the trial
court erred by finding that the defendant had committed
a zoning violation by relocating his liquor store to 855
Forest Road. We begin our analysis by setting forth the
applicable standard of review. Given that this claim
requires us to interpret the North Branford Zoning Regu-
lations, we exercise plenary review because such inter-
pretation involves questions of law. Trumbull Falls,
LLC v. Planning & Zoning Commission, 97 Conn. App.
17, 21, 902 A.2d 706, cert. denied, 280 Conn. 923, 908
A.2d 545 (2006). Moreover, ‘‘zoning regulations are local
legislative enactments . . . and, therefore, their inter-
pretation is governed by the same principles that apply
to the construction of statutes. . . . [R]egulations must
be interpreted in accordance with the principle that a
reasonable and rational result was intended . . . . The
process of statutory interpretation involves the determi-
nation of the meaning of the statutory language [or . . .
the relevant zoning regulation] as applied to the facts of
the case, including the question of whether the language
does so apply.’’ (Internal quotation marks omitted.)
Id., 21–22.
The defendant claims that the court erred in its con-
clusion that his liquor store at 855 Forest Road was
within 500 feet of Saint Andrew’s Episcopal Church and
that its location violated the North Branford Zoning
Regulations as a result. Specifically, the defendant
argues that the court erred in this regard by adopting
the straight line method of measuring the distance
between the church and the defendant’s liquor store,
and that it should have adopted a walking or roadway
method of measurement, particularly in light of 1986
amendments to the North Branford Zoning Regulations
whereby the town amended § 54 by deleting the word
‘‘radius’’ from its text.3 In opposition, the plaintiff argues
that the court properly concluded that the defendant
had committed a zoning violation by relocating his
liquor store to its new location because the straight
line method of measurement is required by Connecticut
case law, the walking method is unworkable, and the
walking method would lead to arbitrary and unreason-
able results. We agree with the plaintiff.
This court previously analyzed the issue of what
method should be used to measure distances set forth
in legislative and regulatory language when the method
is not specified and when more than one construction
of the language is possible. Specifically, in Trumbull
Falls, LLC v. Planning & Zoning Commission, supra,
97 Conn. App. 24–25, this court adhered to the principle
that when a regulation does not specify a measurement
method and more than one construction of the regula-
tion is possible, a reviewing court should adopt the
construction that renders the enactment most workable
and effective and it should reject the construction that
would yield unreasonable results. Accord Graff v. Zon-
ing Board of Appeals, 277 Conn. 645, 653, 894 A.2d
285 (2006). Accordingly, this court concluded that the
minimum distance between certain development proj-
ects as set forth in a zoning regulation should be calcu-
lated using the straight line method instead of the
walking or roadway method. Trumbull Falls, LLC v.
Planning & Zoning Commission, supra, 24–25. Fur-
thermore, this court drew attention to the problems
inherent in the walking method: ‘‘Using the [walking]
method could involve inconsistencies in its application
that could result in impermissibly arbitrary enforce-
ment. For example, is distance measured ‘building to
building’ or property line to property line? Is it measured
using the center of the roadway, or the right or left
boundary of the roadway? Additionally, a bizarre result
could occur if a distance measured using the center of
the roadway is less than one mile, but measured on the
outside of the roadway, due to a curve, is greater than
one mile. As [a federal district court] has noted, adopt-
ing a method of measurement other than the straight
line method would create uncertainty, generate need-
less debate and thwart a readily ascertainable dis-
tance.’’ Id.4
We have reviewed the North Branford zoning regula-
tion at issue in the present case, and we note that it does
not specify a particular method to measure distance.
Accordingly, pursuant to Trumbull Falls, LLC v. Plan-
ning & Zoning Commission, supra, 97 Conn. App. 25–
29, we conclude that the straight line method is the
proper method to be used to measure distance. We
note, as the trial court did, that the plain language of
§ 54.4.1 of the North Branford Zoning Regulations (Rev.
to 2015) provides that ‘‘[n]o liquor outlet shall be located
within 500 feet of any church, synagogue, college,
school, park or town-owned playground.’’ Furthermore,
we note that the zoning regulation pertaining to the
measurement of such distance provides that ‘‘[a]ll
required distances shall be measured from the nearest
corner of any building or premises used as a liquor
outlet to the nearest corner of any church, synagogue,
college, school building, or park or town-owned play-
ground boundary, or to the nearest corner of any build-
ing or premises of any other liquor outlet.’’ North
Branford Zoning Regs. (Rev. to 2015) § 54.2. The defen-
dant argues that we can glean legislative intent to apply
the walking method instead of the straight line method
based upon the fact that the town of North Branford,
in 1986, amended § 54 of the zoning regulations by
removing the word ‘‘radius’’ from the provisions per-
taining to measuring proximity to a liquor store.5 We
are not persuaded.
In Trumbull Falls, LLC, this court, relying on appel-
late authorities from our sister states, observed that a
legislative body such as a municipal zoning authority
can specify that a certain type of measurement method
be used for zoning purposes if it intends to do so. See
Trumbull Falls, LLC v. Planning & Zoning Commis-
sion, supra, 97 Conn. App. 27; see also Regs., Conn.
State Agencies § 19-13-B51m (b) (‘‘No water supply well
permit shall be given by the director of health: (1) To
premises used for human occupancy when a community
water supply system having at least fifteen service con-
nections or regularly serving at least twenty-five individ-
uals is deemed available if the boundary of the parcel
of property in which the premises is on or will be located
on is within two hundred feet, measured along a street,
alley or easement, of the approved water supply . . . .’’
[Emphasis added.]). In light of this court’s observations
in Trumbull Falls, LLC, and the reasoning of other state
appellate courts deciding similar issues, we conclude
that the straight line method is the proper measurement
method to be applied to the zoning regulation at issue
in the present appeal. Therefore, the court did not err in
determining that the defendant had violated the zoning
regulations by relocating his liquor store to 855 For-
est Road.
II
Next, we address the defendant’s claim that the court
applied an improper legal standard in granting the plain-
tiff its requested permanent injunction. We agree with
the defendant.
We begin our analysis by identifying the proper stan-
dard of review. Given that this claim requires us to
determine whether the trial court correctly applied the
law, we exercise plenary review. State v. Hill, 307 Conn.
689, 697 n.6, 59 A.3d 196 (2013); DiGiovanna v. St.
George, 300 Conn. 59, 70, 12 A.3d 900 (2011).
‘‘A party seeking injunctive relief has the burden of
alleging and proving irreparable harm and a lack of an
adequate remedy at law. . . . The extraordinary nature
of injunctive relief requires that the harm complained
of is occurring or will occur if the injunction is not
granted. Although an absolute certainty is not required,
it must appear that there is a substantial probability
that but for the issuance of the injunction, the party
seeking it will suffer irreparable harm.’’ (Citations omit-
ted; internal quotation marks omitted.) Tighe v. Berlin,
259 Conn. 83, 87–88, 788 A.2d 40 (2002). Additionally,
‘‘[a] decision to grant or deny an injunction must be
compatible with the equities in the case, which should
take into account the gravity and willfulness of the
violation, as well as the potential harm to the defen-
dant.’’ (Emphasis added.) Bauer v. Waste Management
of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481
(1996); accord Gelinas v. West Hartford, 225 Conn. 575,
595–96, 626 A.2d 259 (1993); Waterbury v. Phoenix Soil,
LLC, 128 Conn. App. 619, 627–28, 20 A.3d 1 (2011).
We note that due to the court’s failure to apply the
proper standard in its determination as to whether the
permanent injunction should issue, it improperly failed
to determine whether the plaintiff would suffer irrepara-
ble harm absent the injunction. The standard that the
court evidently applied to the plaintiff—requiring the
plaintiff to prove that the defendant had committed a
zoning violation and that it had suffered special dam-
ages as a result of such violation—is the standard that
courts traditionally have applied to a party’s ability to
bring a private action seeking to enforce a zoning regula-
tion without first exhausting administrative remedies.
‘‘[O]ur case law is clear that nearby property owners
specifically and materially damaged by the violation of
zoning regulations may bring private zoning enforce-
ment actions directly to the Superior Court, without
first applying to municipal zoning authorities . . . .’’
Reichenbach v. Kraska Enterprises, LLC, 105 Conn.
App. 461, 468, 938 A.2d 1238 (2008); accord Simko v.
Ervin, 234 Conn. 498, 504, 661 A.2d 1018 (1995); Cum-
mings v. Tripp, 204 Conn. 67, 75, 527 A.2d 230 (1987);
Reynolds v. Soffer, 183 Conn. 67, 69–70, 438 A.2d 1163
(1981); Karls v. Alexandra Realty Corp., 179 Conn. 390,
401, 426 A.2d 784 (1980); Blum v. Lisbon Leasing Corp.,
173 Conn. 175, 180, 377 A.2d 280 (1977); Fitzgerald v.
Merard Holding Co., 106 Conn. 475, 482–83, 138 A. 483
(1927).6 It is important to note, however, that a plaintiff’s
demonstration of these elements is not sufficient to
obtain injunctive relief, but is only sufficient to confer
standing to seek such relief without first exhausting
administrative remedies. Therefore, once the plaintiff
in a land use injunction action has demonstrated that
it can seek injunctive relief without first exhausting
administrative remedies, it then must meet additional
requirements to obtain a permanent injunction. See,
e.g., Silitschanu v. Groesbeck, 12 Conn. App. 57, 64–65,
529 A.2d 732 (1987), aff’d, 208 Conn. 312, 543 A.2d 737
(1988); see also Lavitt v. Pierre, 152 Conn. 66, 76–77,
203 A.2d 289 (1964).
In addition to establishing standing to seek injunctive
relief in a private enforcement action, a plaintiff in such
an action must establish: ‘‘(1) that injury from failure
to grant an injunction is imminent; (2) the injury is
substantial; (3) the injury is irreparable and there is a
substantial probability that unless an injunction is
issued the party seeking it will suffer irreparable harm.’’
R. Fuller, 9A Connecticut Practice Series: Land Use Law
and Practice (4th Ed. 2015) § 41.6, p. 518; accord Karls
v. Alexandra Realty Corp., supra, 179 Conn. 401–403;
Silitschanu v. Groesbeck, supra, 12 Conn. App. 64–65;
see Koepper v. Emanuele, 164 Conn. 175, 177–78, 319
A.2d 411 (1972) (trial court’s refusal to issue injunction
was proper where plaintiff failed to provide evidence
of irreparable injury).
The trial court, in its memorandum of decision, stated
that ‘‘[i]n order to obtain injunctive relief from alleged
zoning violations, the applicant must establish the exis-
tence of such zoning violations and he must also prove
that he has suffered special damages caused by the
zoning violation.’’ The court iterated its impression of
the plaintiff’s burden later in its memorandum of deci-
sion, stating that ‘‘[t]he plaintiff must prove that a zoning
violation exists and that the violation has caused him
to suffer special damages.’’ The court then proceeded
to conduct its analysis of the defendant’s relocation
of his liquor store to 855 Forest Road by determining
whether the plaintiff had established a zoning violation
and whether the plaintiff had suffered special damages
as a result of the zoning violation. The court, however,
failed to indicate expressly or give any indication that
it had applied the appropriate standard in rendering its
decision granting the plaintiff’s requested permanent
injunction. Specifically, the court did not analyze
whether the plaintiff had established that it would suffer
irreparable harm absent a permanent injunction or
whether the plaintiff lacked an adequate remedy at law.
The court also gave no indication that it had balanced
the equities between the parties in determining whether
the permanent injunction should issue. This court pre-
viously has observed that ‘‘[t]here is a general principle
that a court of equity will balance the equities between
the parties in determining what, if any, relief to give.
The equities on both sides must be taken into account
in considering an appeal to a court’s equitable powers.
An equity court wisely considers the relative positions
of the parties and makes a decree that does substantial
justice to all. It is the duty of a court of equity to strike
a proper balance between the needs of the plaintiff
and the consequences of giving the desired relief. . . .
[C]ourts should not intervene unless the need for equita-
ble relief is clear, not remote or speculative. Thus, a
court of equity should not grant an award which would
be disproportionate in its harm to the defendant and
its assistance to the plaintiff.’’ (Internal quotation marks
omitted.) Gager v. Gager & Peterson, LLP, 76 Conn.
App. 552, 560 n.9, 820 A.2d 1063 (2003).
In the present case, the record furnishes no indication
that the court considered the needs and potential harms
suffered by both parties prior to issuing the permanent
injunction sought by the plaintiff; rather, it clearly
reflects that the court did not do so. Because the record
reveals that the court applied an incorrect legal stan-
dard prior to its issuance of the permanent injunction,
we reverse the court’s judgment and we conclude that
this case must be remanded to the court for a new trial
at which it should apply the proper standard for the
issuance of a permanent injunction as articulated in
this opinion.
III
Finally, we address the defendant’s claim that the
court improperly rejected his special defense of munici-
pal estoppel. Specifically, the defendant claims that
there was evidence in the record which established that
on two occasions, the zoning enforcement officer had
given him confirmation that his liquor store’s location
at 855 Forest Road would not be in violation of the
North Branford Zoning Regulations. In opposition, the
plaintiff argues that the court did not err in rejecting the
defendant’s municipal estoppel special defense because
the evidence established that the defendant had not
exercised due diligence in ascertaining whether his
liquor store’s location at 855 Forest Road was in viola-
tion of the North Branford Zoning Regulations.7 We
conclude that the special defense of municipal estoppel
is not applicable in this case, and therefore, we need
not address the court’s analysis of it in this case. ‘‘Where
the trial court reaches a correct decision but on mis-
taken grounds, this court has repeatedly sustained the
trial court’s action if proper grounds exist to support
it. . . . We may affirm the court’s judgment on a dis-
positive alternate ground for which there is support in
the trial court record. . . . Affirmance on alternate
grounds is possible, however, only when the result is
required by law.’’ (Citations omitted; internal quotation
marks omitted.) Blacker v. Crapo, 112 Conn. App. 795,
808–809, 964 A.2d 1241, cert. denied, 291 Conn. 915,
970 A.2d 727 (2009).
We begin our analysis with the proper standard of
review for this claim. Because this claim challenges the
court’s legal conclusions concerning the defendant’s
special defense, we must exercise plenary review. See
Empire Paving, Inc. v. Milford, 57 Conn. App. 261, 265,
747 A.2d 1063 (2000) (‘‘trial court’s legal conclusions
are subject to plenary review’’).
The following additional facts are relevant to this
claim. In his August 29, 2013 answer to the plaintiff’s
complaint, the defendant asserted as his first special
defense that the plaintiff’s private enforcement action
was barred by the doctrine of honest error because
the defendant ‘‘complied with proper procedure in his
conduct complained of in the plaintiff’s complaint.’’ In
its memorandum of decision, the court rejected the
defendant’s special defense, which it labeled as sound-
ing in municipal estoppel.8 After setting forth the law on
the doctrine of municipal estoppel, the court concluded
that the defendant could not invoke the special defense
because he had ‘‘failed to prove that he had exercised
due diligence’’ with respect to whether his liquor store’s
location at 855 Forest Road violated the 500 foot rule
set forth in the North Branford Zoning Regulations.
The court also concluded that the defendant could not
prevail on the municipal estoppel special defense
because he failed to prove both that he had lacked
knowledge of the fact that his liquor store’s location at
855 Forest Road violated North Branford Zoning Regu-
lations and that he did not have the means to discover
whether that was the case.
Although the court analyzed what the defendant
needed to prove to invoke a municipal estoppel defense
and determined that he had failed to prove the neces-
sary elements,9 the court engaged in that analysis unnec-
essarily. A municipal estoppel special defense bars only
a municipality from enforcing its own zoning regula-
tions. In the present case, the defendant has raised his
special defense of municipal estoppel in order to bar
a private party, the plaintiff, from enforcing a munici-
pality’s zoning regulations. Our Supreme Court, in Pas-
cale v. Board of Zoning Appeals, 150 Conn. 113, 186
A.2d 377 (1962), noted the distinction with respect to
how municipal estoppel applies only to municipalities
and not to private parties. In Pascale, the plaintiff, after
having been granted a permit from the municipal build-
ing inspector, built a multifamily house which had side
yards that were noncompliant with municipal zoning
regulations. Id., 115–16. Another private property
owner, who owned an adjoining lot, appealed to the
municipal zoning board and contested the building
inspector’s decision to grant a permit to the plaintiff
on the grounds that the side yards of the plaintiff’s
building were noncompliant with the regulations. The
board sustained the other property owner’s appeal and
the plaintiff subsequently appealed to the court of com-
mon pleas, which overruled the zoning board’s decision.
Id., 116. On appeal from that judgment, the plaintiff
claimed that the other property owner’s appeal should
not have been sustained because of municipal estoppel.
Id., 119. Our Supreme Court rejected the plaintiff’s
claim, stating: ‘‘If we assume, without deciding, that the
city could be estopped in the manner claimed, that
estoppel could not defeat [the other property owner’s]
right as an aggrieved property owner to seek and obtain
relief from the board.’’ Id.; see 9A R. Fuller, supra,
§ 41.5, p. 514 (‘‘[e]ven if a municipality is estopped from
claiming a zoning violation after a building permit is
issued, that does not preclude revocation where
another private property owner brings a successful,
timely appeal to the zoning board of appeals even if
construction occurred based on the permits’’). We con-
clude that the defendant’s municipal estoppel defense
properly was rejected by the trial court because the
special defense was applicable to the defendant only
in the context of an enforcement action brought by the
board, not to the defendant in an action brought by
another private property owner.
The judgment is reversed and the case is remanded
to the trial court for further proceedings in accordance
with this opinion.
In this opinion the other judges concurred.
1
In the original complaint, the plaintiff asserted claims against the follow-
ing defendants: Joseph J. Szymanski, Jr.; Anthony Beccia, the zoning enforce-
ment officer of the town of North Branford; and Bonnie Therrien, acting
town manager of the town of North Branford. With respect to Szymanski,
the plaintiff sought a temporary and permanent injunction. With respect to
the latter two defendants, the plaintiff sought a writ of mandamus. There-
after, the trial court granted the plaintiff’s motion to cite in the Zoning Board
of Appeals of the Town of North Branford (board) as a party defendant.
On May 20, 2013, the plaintiff withdrew the action against Beccia and Ther-
rien and, in addition to the counts brought against Szymanski, amended its
complaint to seek a writ of mandamus against the board. The trial court
subsequently denied the plaintiff’s request for a writ of mandamus. Because
none of the other defendants are parties to this appeal, we refer to Szymanski
as the defendant in this opinion.
2
In this opinion, we conclude that the court properly determined that the
defendant had violated the zoning regulations of the town of North Branford,
and we further conclude that his municipal estoppel defense did not apply
in this case. Because we reverse the judgment of the trial court on a different
ground, namely, that it applied the improper standard for whether a perma-
nent injunction should issue, the court, on remand, need not revisit the
issues of whether the defendant violated the zoning regulations or whether
his municipal estoppel defense has merit. Instead, on remand, the court
should hold a new hearing to determine whether, in accordance with the
analysis set forth in this opinion, a permanent injunction should issue.
3
Section 54 of the North Branford Zoning Regulations (Rev. to 2015),
entitled ‘‘Alcoholic Beverages,’’ provides in relevant part:
‘‘54.1 General: The following regulations shall apply to the location of
any business where alcoholic liquor, wine, beer or ale is sold at retail for
consumption on or off premises under a permit issued by the Liquor Control
Commission of the State of Connecticut, which business is hereinafter
referred to as a ‘Liquor Outlet.’
‘‘54.2 Measurement: All required distances shall be measured from the
nearest corner of any building or premises used as a liquor outlet to the
nearest corner of any church, synagogue, college, school building, or park
or town-owned playground boundary, or to the nearest corner of any building
or premises of any other liquor outlet.
***
‘‘54.4 Location:
‘‘54.4.1 No liquor outlet shall be located within 500 feet of any church,
synagogue, college, school, park or town-owned playground.
‘‘54.4.2 No liquor outlet shall be located less than 1500 feet from an
establishment with the same class permit.’’
4
In Trumbull Falls, LLC, this court also noted that other courts similarly
had concluded that where a statute or regulation provides ambiguous lan-
guage as to what distance measurement method should be used, the straight
line method is preferred. See Trumbull Falls, LLC v. Planning & Zoning
Commission, supra, 97 Conn. App. 25–29; see also People v. Robbins, 5
N.Y.3d 556, 558–59, 840 N.E.2d 1020, 807 N.Y.S.2d 7 (2005) (rejecting criminal
defendant’s argument on appeal that distance for purposes of enhancing
criminal penalty for sale of illegal drugs when such sale occurred within
certain proximity of school area should be calculated by walking method
and concluding that uncertainty would be obviated by using straight line
method); Restaurant Row Associates v. Horry County, 335 S.C. 209, 220–21,
516 S.E.2d 442, cert. denied, 528 U.S. 1020, 120 S. Ct. 528, 145 L. Ed. 2d 409
(1999) (concluding that adult entertainment establishment’s proximity to
residential district, to determine whether establishment’s location was vio-
lative of zoning ordinance, should have been measured using straight line
method, or as crow flies). This court briefly referred to an Indiana appellate
decision where the appellate court in that case discussed an issue that was
strikingly similar to the issue in the present appeal. See Taylor Drug Stores,
Inc. v. Indiana Alcoholic Beverage Commission, 497 N.E.2d 932, 936 (Ind.
Ct. App. 1986) (concluding that distance for purposes of liquor store’s prox-
imity to church should be measured using straight line method). Most nota-
bly, the Indiana Court of Appeals stated the following: ‘‘In interpreting the
appropriate means of measurement, we are guided by the terms within the
statute. A statute may specify the precise terminal points to be used in a
measurement, but in the absence of an express provision, the general rule
is that measurement should be along the shortest straight line connecting
a church and the proposed premises, regardless of intervening obstacles.’’ Id.
5
Specifically, prior to the 1986 amendment, § 54 of the North Branford
Zoning Regulations (Rev. to 1985) provided the following:
‘‘54.1 General: All uses for on premises and off premises consumption of
any Alcoholic Beverage shall be located no closer than 500 [feet] in radius
from any church, synagogue, college, school, park or playground.
‘‘54.1.1 All required distances shall be measured from the nearest corner
of any building or premises used for sale of Alcoholic Beverages.
‘‘54.1.2 Location of establishments with existing permits may move once
up to 500 [feet] within the 1000 [feet] radius required from their previously
permitted business premises.
‘‘54.2 Location of on premises consumption of Alcoholic Beverages other
than Restaurant Beer permit shall be located not less than 1000 feet in
radius from any other such business.
‘‘54.2.1 Location of on premises consumption for Restaurant Beer permit
shall be located not less than 1000 feet in radius from any other such
business.’’
6
We observe that in the more recent cases cited for this principle, our
Supreme Court has stated that a plaintiff must prove that it has been ‘‘specifi-
cally and materially damaged’’ by the defendant’s conduct in order to have
standing to bring a private action to enforce a zoning regulation without
exhausting administrative remedies. See Simko v. Ervin, supra 234 Conn.
504; Cummings v. Tripp, supra, 204 Conn. 75; Reynolds v. Soffer, supra,
183 Conn. 69–70; Karls v. Alexandra Realty Corp., supra, 179 Conn. 401.
In the older cases, specifically, Blum and Fitzgerald, our Supreme Court
stated that a plaintiff must show that it has suffered ‘‘special damages’’ in
order to have standing to seek private enforcement of a zoning regulation
without exhausting administrative remedies. See Blum v. Lisbon Leasing
Corp., Inc., supra, 173 Conn. 180; Fitzgerald v. Merard Holding Co., supra,
106 Conn. 482–83. Nevertheless, this court, in Miskimen v. Biber, 85 Conn.
App. 615, 617 n.3, 858 A.2d 806 (2004), cert. denied, 272 Conn. 916, 866 A.2d
1287 (2005), articulated the standard by using both phrases: ‘‘Although the
primary responsibility for enforcing zoning regulations rests with the zoning
commission, when a violation results in special damage to an individual,
the injured party has a right to seek relief. . . . The requirement of special
damages serves to differentiate individuals specifically and materially dam-
aged by a zoning ordinance violation from members of the general public
who do not have standing.’’ (Citation omitted; emphasis added.)
7
The plaintiff also contends that the evidence established that the defen-
dant went about seeking administrative approval for his liquor store’s reloca-
tion in a manner that suggested that he knew that his liquor store’s new
location was in violation of the North Branford Zoning Regulations.
8
As the trial court did in its memorandum of decision, we note that the
special defense that the defendant pleaded, the doctrine of honest error, is
more commonly viewed as a subcategory of municipal estoppel, and we
shall refer to the defendant’s special defense as one sounding in municipal
estoppel for purposes of this opinion. See 9A R. Fuller, supra, § 41.5, p. 511
(‘‘[o]ne of three situations may exist [with respect to municipal estoppel]:
. . . (3) when the municipal official in good faith and within the scope of
his duties makes an erroneous and debatable interpretation of the ordinance
and the property owner in good faith relies upon it, there is estoppel against
later revocation of the permit; this is called the doctrine of honest error’’).
9
‘‘[I]n order for a court to invoke municipal estoppel, the aggrieved party
must establish that: (1) an authorized agent of the municipality had done
or said something calculated or intended to induce the party to believe that
certain facts existed and to act on that belief; (2) the party had exercised
due diligence to ascertain the truth and not only lacked knowledge of the
true state of things, but also had no convenient means of acquiring that
knowledge; (3) the party had changed its position in reliance on those facts;
and (4) the party would be subjected to a substantial loss if the municipality
were permitted to negate the acts of its agents.’’ (Internal quotation marks
omitted.) Cortese v. Planning & Zoning Board of Appeals, 274 Conn. 411,
418, 876 A.2d 540 (2005); Bauer v. Waste Management of Connecticut, Inc.,
234 Conn. 221, 247, 662 A.2d 1179 (1995).