Karp v. Zoning Board
Karp v. Zoning Board
Opinion of the Court
The intervening defendants filed an application with the zoning board of the city of Stamford to amend § 14 of the zoning regulations of the city entitled “Dispensing of Alcoholic Liquors” by adding a new subsection as follows: “H — The fifteen hundred foot restriction of this section shall not apply to removal of an existing (1) package store permit or (2) druggist permit issued by the Liquor Control Commission if the existing site or location is being taken or threatened to be taken in the exercise of eminent domain. No building or premises shall be approved in such case, however, if the new premises applied for shall be within 1000 feet radius from any building or premises then being used for the sale of alcoholic liquor under (1) a package store permit or (2) a druggist permit issued by the Liquor Control Commission.” The amendment was approved by vote of the board, and the plaintiffs took an appeal to the Court of Common Pleas, which sustained the action of the board and rendered judgment dismissing the appeal. This appeal is taken from that judgment.
The Stamford zoning regulations, inter alia, prohibit the use of premises for “the sale of alcoholic liquor, wine, beer or . . . [ale]” under package store and druggist permits “if any entrance to such
The plaintiffs claim that the action of the board is illegal, arbitrary and in abuse of its discretion because the amendment to the zoning regulations as adopted is in conflict with § 30-52 of the General Statutes and is not in accordance with the comprehensive plan of zoning and because the action of the board is a violation of the fourteenth amendment to the United States constitution and article first, §§ 1 and 20, of the Connecticut constitution in that the amendment creates a classification which is unreasonable and discriminatory in its application to package liquor stores or drugstores holding liquor permits and results in dissimilar treatment of persons or things similarly situated.
I
The zoning regulations in the city of Stamford may be amended from time to time by the zoning board, which thereby acts in a legislative capacity. Stamford Charter § 551; 26 Spec. Laws 1234. Zon
There is a distinction between the functions and powers of the liquor control commission and those of a zoning board. It is provided by statute, for example, that the liquor control commission shall refuse permits for the sale of alcoholic liquor where they are prohibited by the zoning ordinance of any city or town. General Statutes § 30-44. The extent to which a town has a voice in and control over the sale of alcoholic liquor is illustrated by the local-option statute, which gives a town the right to exercise its option to prevent the sale of alcoholic liquor within its boundaries. General Statutes § 30-9. The town has the power, through its zoning authority, to restrict the use of buildings for the sale of alcoholic liquor to certain zones or districts but cannot, on the other hand, limit the number of liquor outlets in a town since this authority has been delegated to the liquor control commission the state. General Statutes §§ 30-46—30-48; State ex rel. Haverback v. Thomson, 134 Conn. 288, 292, 57 A.2d 259.
Consideration of the amendment was occasioned by the taking, through eminent domain, of a large area in the city for the purposes of redevelopment. The relocation of liquor outlets which would be disturbed by the taking of land for urban redevelopment was a proper basis upon which the zoning board could act as it did, having in mind the flexibility which must exist to meet the demands of changing conditions. See Malafronte v. Planning & Zoning Board, 155 Conn. 205, 209, 230 A.2d 606. It has been recognized not only in General Statutes § 30-52, the statute which the plaintiffs claim is in
The authority over permits under General Statutes, title 30, chapter 545, “Liquor Control Act,” part 4, and particularly § 30-52, which is partially, quoted in the footnote,
II
The plaintiffs claim an infirmity in the amendment as adopted because it permits a removal to any district without restriction, whether or not it is zoned for business. The zoning regulations, however, permit the use of buildings for drugstores and package liquor stores only in certain districts, i.e., industrial or business districts. Such uses are not allowed in any of the residential districts. Stamford Zoning Regs., Land Use Schedule, table 1 and table 2 items (87) and (133) (amended to 1965). The regulations are to be construed as a whole, and the provisions of the amendment (§ 14 [H]) must be read together with the portion of the regulations which would limit the relocation of a drugstore or package liquor store to a district in which such a use is permitted by the land use schedules of the zoning regulations. Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 679, 236 A.2d 917. As a matter of construction it is proper to read the zonal use requirements or restric
In Stamford, the comprehensive plan is to be found in the master plan and the zoning regulations. Luery v. Zoning Board, 150 Conn. 136, 143, 187 A.2d 247. The amendment is one of general application, affecting all within a given class, namely, package liquor stores and drugstores. The locations in which such stores are permitted were established before the passage of the amendment we are considering, and the zoning regulations which divided the municipality into districts for purposes of zoning and which provided for the use of buildings and land within such districts have not been challenged in this action. Since the relocation of a liquor package store or a drugstore can only be made in a business or industrial zone as established by the restrictions in the zoning regulations, violence is not done to the comprehensive plan, and the effect of the amendment in its general application cannot be said to be spot zoning. Metropolitan Homes, Inc. v. Town Plan & Zoning Commission, 152 Conn. 7, 12, 202 A.2d 241.
in
The guarantee of equal protection is “aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality, on the other.” Truax v. Corrigan, 257 U.S. 312, 332, 42 S. Ct. 124, 66 L. Ed. 254; 16 Am. Jur. 2d, Constitutional Law, § 335 p. 643, § 485 p. 846. Equal protection of the laws forbids all invidious discrimination but does not demand identical treatment for all persons without con
The taking of property in eminent domain for highway expansion, urban renewal and other governmental purposes has become quite common. The establishment of the regulation in question was within the legislative capacity of the zoning board, and we cannot say that the classification it approved was unreasonable. The board was aware of the taking, by eminent domain, of a large area in the business district of Stamford for the purposes of urban redevelopment. The relocation of individuals and business establishments and the economic impact on the municipality under such circumstances are of grave concern to the general welfare of the community. As a consequence, it is not uncommon, for example, for a governmental agency in the proper exercise of its powers to give reasonable consideration or assistance to businesses and persons in the path of urban renewal because of the general difficulties, hardship and economic disruption to the community created by such displacements. The property tax lists, as one illustration, are drastically and adversely affected, and a consequent loss of revenue may result because of such condemnation. Usually, such a condition, as far as a city is concerned, cannot be satisfactorily ameliorated unless there is an alternative possibility for relocation within a suitable district in the municipality. On the basis of such factors it cannot be said that the regulation in question did not bear
We have liberally treated and resolved the variegated problems arising from distance limitations. In a somewhat analogous situation involving § 14 of the Stamford zoning regulations concerning the dispensing of alcoholic liquors, we upheld as valid an amendment adopted in 1954 by the zoning board of the city of Stamford which was made to the board on a petition of a company which was the lessee of restaurant premises where intoxicating liquors were not sold and which was within 1500 feet of numerous restaurants and taverns where alcoholic liquors were sold for consumption. The amendment as adopted exempted a restaurant in
Zoning regulates the use of land irrespective of who may be the owner of such land at any given time and is defined “as a general plan to control and direct the use and development of property in a municipality or a large part of it by dividing it into districts according to the present and potential use of the properties.” State ex rel. Spiros v. Payne, 131 Conn. 647, 652, 41 A.2d 908; State National Bank
If the classification has a reasonable basis, the ordinance is not rendered unconstitutional. Watson
The fact that, as applied to the 1500-foot restriction, 114 (B) of the zoning regulations relative to package store and druggist permits allows a relo
There is no error.
In this opinion Thim and Ryan-, Js., concurred.
“See. 30-52. permit to specify location and revocability. removal to another location. ... If the site of any permit premises is taken or threatened to be taken in the exercise of the power of eminent domain, the commission may authorize the relocation of such permit premises to a new location, any local ordinance or general statute notwithstanding, provided such new location is zoned for business use and is within a radius of seven hundred fifty feet from the point, on the boundary of the overaE site of the proposed taking, nearest to the site of such permit premises.”
Dissenting Opinion
(dissenting). I cannot agree with the majority opinion in this case.
The authority granted to Stamford to adopt zoning regulations (Stamford Charter §550; 26 Spec. Laws 1234) is similar to that prescribed in § 8-2 of the General Statutes. That authority is, in general, to zone the municipality so as to promote the general welfare and to encourage the most appropriate use of land, not to accord recognition to the status or the identity of the individual user. Del Buono v. Board of Zoning Appeals, 143 Conn. 673, 679, 124 A.2d 915; State ex rel. LaVoie v. Building Commission, 135 Conn. 415, 419, 65 A.2d 165; Abbadessa v. Board of Zoning Appeals, 134 Conn. 28, 32, 54 A.2d 675; see Rhyne, Municipal Law § 32-1, p. 811. Section 14 (H) of the regulations attempts to control the use of property in the city, not on the basis of the appropriate use of the land,
The regulation also purports to encroach upon the statutory authority of the state liquor control commission. It provides that “[n]o building or premises shall be approved” for the relocation of package store or druggist permits except under conditions laid down by the regulation. The General Assembly has vested in the liquor control commission broad supervisory powers over the location of permit premises and its effect on the community. General Statutes § 30-46. It has granted the liquor control commission sole authority to approve the relocation of liquor permit premises under circumstances, among others, such as this zoning regulation would recognize. General Statutes § 30-52; Stapleton v. Zoning Board of Appeals, 149 Conn. 706, 711, 183 A.2d 750. A municipality may by zoning ordinance prescribe zones or areas in which the location of liquor outlets is prohibited; Kallay’s, Inc. v. Katona, 152 Conn. 546, 549, 209 A.2d 185; and, where the statute so provides, the liquor control commission, acting pursuant to the mandate of the statute, is required to comply with such a restriction. It is, however, only in this manner that the municipality may restrict the location of permit premises. State ex rel. Haverback v. Thomson, 134 Conn. 288, 293, 57 A.2d 259. It cannot by ordinance legislate any limitation upon the exercise of the statutory author
Of more serious import is the rejection in the majority opinion of the plaintiffs’ contention that the regulation violates the provisions of article first, ^ 1 and 20, of the Connecticut constitution that “no man or set of men are entitled to exclusive public emoluments or privileges from the community” and that “[n]o person shall be denied the equal protection of the law” and the provision in the fourteenth amendment of the constitution of the United States that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” It is to be noted that the Stamford regulation differs significantly from the statute which empowers the liquor control commission to authorize the relocation of permit premises in cases of hardship, in cases caused by reason of the commencement of an eviction action against a permittee from the premises specified in his permit and in cases where the site of the permit premises is taken or threatened to be taken in the exercise of eminent domain. G-eneral Statutes § 30-52. This statute is one of general application and applies to “any permit premises.” ^In contrast, the Stamford regulation grants its benefits to but two of the many types of liquor permits, package store and druggist permits. Within these two categories, special exemption from the operation of the 1500-foot restriction is given only to hold
“Legislation cannot arbitrarily divide a class into two parts and constitute a different rule of law governing each of the parts of the severed class. The basis for a reasonable classification must show such a difference as to justify the division. ‘A proper classification . . . must embrace all who naturally belong to the class — all who possess a common disability, attribute or qualification and there must be some natural and substantial difference germane to the subject and purposes of the legislation between those within the class included and those whom it leaves untouched.’ ” St. John’s Roman Catholic Church Corporation v. Darien, 149 Conn. 712, 723, 184 A.2d 42 (quoting from State v. Cullum, 110 Conn. 291, 295, 147 A. 804); State v. Hurliman, 143 Conn. 502, 505, 123 A.2d 767; State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 107, 90 A.2d 862; Warner v. Gabb, 139 Conn. 310, 314, 93 A.2d 487; Lyman v. Adorno, 133 Conn. 511, 520, 52 A.2d 702. Nothing in this record suggests any legitimate purpose of zoning which is to be served by treating two classes of liquor permit differently from any other of the many types of permit. Nor is any basis suggested to justify this
In my opinion § 14 (H) of the zoning regulations is not a valid and constitutional exercise of the zoning authority granted to Stamford in its charter.
In this dissenting opinion Alcorn, J., concurred.
Reference
- Full Case Name
- Charles M. Karp Et Al. v. Zoning Board of the City of Stamford Et Al.
- Cited By
- 35 cases
- Status
- Published