57 A.2d 259 | Conn. | 1948
This is an appeal from a judgment for the plaintiffs granting a peremptory writ of mandamus directing the defendant town clerk of West Hartford to certify to the liquor control commission that an application for the removal of the plaintiffs' package store to another location was not prohibited by the ordinances or by-laws of the town.
There is no finding. The case apparently was decided upon facts alleged and admitted in the pleadings. These are as follows: The plaintiffs conducted a package store in a building in an industrial zone on the corner of New Park Avenue and New Britain Avenue in West Hartford. The store was at 657 New Park Avenue. They wished to change its location to 1050 New Britain Avenue, in the same building. The location at 657 New Park Avenue had been used as a package store continuously since June 8, 1945. Before August 6, 1945, there were no zoning regulations limiting the location of package stores. The premises at 1050 New Britain Avenue, on August 6, 1945, and prior thereto were occupied and used by a wholesale liquor concern and were so arranged that they could have been used as a package store without alteration. The area of the store was larger than that of the store on New Park Avenue. *290
The defendant refused to certify that the sale of liquor at the new location was not forbidden, on the grounds that (1) the zoning ordinance, and (2) a decision of the zoning board of appeals against the plaintiffs on an application for such removal, forbade it. Section 633h of the 1945 Supplement provides that the liquor control commission shall refuse permits in locations where the sale of liquor is prohibited by the zoning ordinance of any town or city, and the certificate in question, which the commission requires as a part of an application for the removal of a liquor permit, recites that issuance of the permit would not be in violation of such an ordinance. That the zoning board of appeals rejected the plaintiffs' application for the use of the premises at 1050 New Britain Avenue as a package store would not in any way affect the duty of the town clerk as regards the certificate. The proceeding before us is independent of the appeal to the board; National Transportation Co. v. Toquet,
Section 8 of "Zoning Regulations of the Town of West Hartford" (an exhibit in the case), relating to business districts, permits the use therein of buildings for package stores. Section 9, relating to an industrial district, permits any use therein permitted in a business district. Package stores are permitted uses in these two districts and not elsewhere. Section 17(a) and (b) contains restrictions relating to the distance between such stores and between them and schools, churches and charitable institutions. The section then provides as follows: "The number of buildings or premises or portions thereof wherein alcoholic *291 liquors, beer, ale or wine are sold under either a restaurant, tavern, package store or club permit within the Town of West Hartford shall not hereafter exceed in the aggregate one for each fifteen hundred persons resident in the Town and for a determination of the number of persons resident in the Town at any time, the most recently completed Federal Census shall be the measure. The foregoing regulation shall not apply to buildings or premises used exclusively for the sale of alcoholic liquors, beer, ale or wine at wholesale, grocery stores selling canned or bottled beer or ale, or drug stores. The provisions of this regulation shall not be deemed to be retroactive, except that where a place existing for the selling of alcoholic beverages for consumption on the premises previously in use has been discontinued for a period of thirty days, such use shall not be resumed except in conformity with this regulation." When the zoning regulations were adopted on August 6, 1945, the location at 657 New Park Avenue was being used for a package store. At that time there were more outlets in the town than the number fixed by 17 on the basis of the 1940 population census, and it is admitted that there now are more than this provision permits.
In the absence of a finding, we turn to the memorandum of the trial court to ascertain the legal conclusions upon which it based its judgment. Metropolitan Life Ins. Co. v. Bassford,
Any town may by vote at an annual town meeting bar the sale of intoxicating liquors within its boundaries entirely, or in part as to spirituous liquors. General Statutes, Cum. Sup. 1935, 1022c, 1023c. The town of West Hartford has not exercised its option to prevent the sale of such liquors therein and comes within the regulatory provisions of the Liquor Control Act. The state has delegated to the liquor control commission authority to limit the number of liquor outlets in such towns. Sup. 1945, 634h; Biz v. Liquor Control Commission,
While the provision upon which the defendant seeks to justify his refusal to certify was a part of the zoning ordinance, it was not zoning and was not effective as such to characterize the location as restricted in its use for package stores. No zoning regulation, so far as appears from the admitted facts, forbade the use of the premises at the new location for a package store. The defendant should have so certified.
In reaching this conclusion we have not overlooked the decision of the Superior Court in State ex rel. Fense v. Gleason,
There is no error.
In this opinion the other judges concurred.