130 Conn. App. 422
Conn. App. Ct.2011Background
- Walgreen Eastern Company, Inc. lessee sought to open a pharmacy on a site formerly used as a grocery store; no exterior changes planned, only interior alterations.
- Site lies partially in a Neighborhood Designed Business District and partially in Residence District A in Fairfield.
- Zoning board denied Walgreen a certificate of zoning compliance, deeming a change of use to a pharmacy; zoning commission later denied the certificate itself.
- Appeals were consolidated and dismissed by the trial court for procedural and substantive reasons; Walgreen appealed.
- Court held Walgreen failed to establish that the zoning enforcement officer made an appealable decision and failed to establish a consistent pattern of prior approvals supporting its arguments.
- Final judgments sustaining the zoning board and zoning commission were affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Walgreen's zoning board appeal was properly dismissed under § 8-6(a)(1). | Walgreen contends the designated enforcement officer’s silence or the administrator’s actions show an appealable decision. | Record lacked a definitive decision by the enforcement officer or a proper basis to appeal. | Yes; court properly dismissed the appeal. |
| Whether the proposed pharmacy constitutes a change in use under the Neighborhood Designed Business District regulations. | Change in use a basis to require a certificate of zoning compliance. | Record supports that a change in use was required to obtain a certificate. | The court upheld the zoning commission’s denial; Walgreen failed to prove error. |
| Whether prior CVS approval in the same district compelled the commission to approve Walgreen’s request. | CVS approval shows a pattern of past practice requiring approval. | Record did not establish a procedural basis or evidentiary pattern; Alvord does not control. | Not controlling; no evidentiary basis for a pattern of practice. |
| Whether the court properly denied Walgreen’s motion to reargue regarding CVS precedent evidence. | Motion to supplement record and reconsider based on CVS file should be entertained. | Reargument inappropriate; no control of law overlooked or facts misapprehended. | Court correctly denied the motion to reargue. |
Key Cases Cited
- Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282 (Conn. 2008) (substantial evidence standard governs zoning decisions)
- Harris v. Zoning Commission, 259 Conn. 402 (Conn. 2002) (scope of review limited to whether grounds are supported by record)
- Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393 (Conn. 2007) (distinguishes Alvord when regulations comprehensively regulate district; pattern of past practice not shown)
- Chartouni v. DeJesus, 107 Conn.App. 127 (Conn. App. 2008) (rearguard to be used to show controlling law or overlooked facts)