Nonconforming Use Determination Places Connecticut Liquor Permit at Risk

In a recent decision of the Superior Court of Connecticut, Fairfield Judicial District, captioned Urban Girls, Inc. v. Zoning Board of Appeals of Bridgeport, the Court was confronted with an interesting set of issues involving the intersection of the alleged lapse of a nonconforming use and the resulting loss of the right to utilize a liquor permit. The Court found that the Zoning Board of Appeals applied the incorrect standard by following the Bridgeport zoning regulations, which had not been amended to reflect amendments to the State’s zoning laws. Thus, the matter was remanded to the Zoning Board of Appeals to make a determination on whether there was an intent to abandon the nonconforming use, which would be determinative on the status of the liquor permit.

The case arose when the zoning enforcement officer refused to issue a certificate of noncompliance on the basis that the prior use, which involved a café, service of liquor, and adult entertainment, had been closed for much of the preceding 18 months. The certificate was important because a zoning signoff, either that the use was permitted under applicable zoning or was a legal nonconforming use, was needed in order to obtain an on-premises liquor permit. The denial was appealed to the Zoning Board of Appeals, which affirmed, on the basis that the record contained substantial credible evidence of non-use for more than the sixty-day period specified in the zoning regulations. Matters were further complicated by a radius restriction in the zoning regulations which prohibited a business utilizing a liquor permit from being located within 1,500 feet of another such business. There was another such business within the specified distance, so if the property’s nonconforming status had lapsed, the right to a liquor permit would have lapsed along with it and a variance would be required.

In their appeal, plaintiffs alleged that a bar or café with service of alcoholic beverages was legally ongoing for approximately 30 years, and that two prior variances had been granted by the Zoning Board of Appeals. As such, they asserted that operation of a café with liquor service constituted a legal nonconforming use. The dispute centered on Section 12-10(d) of the zoning regulations, which provides for termination of the right to serve liquor after sixty consecutive days of non-use if within 1,500 feet of another licensed premises. The Court reviewed the evolution of the law of nonconforming uses in Connecticut, including the decision of the Connecticut Supreme Court in Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595 (1988), which held that municipalities could provide for the termination of nonconforming uses through the passage of time, and the subsequent enactment of Public Act 89-277 in 1989, codified in Connecticut General Statutes Section 8-2, which provided that zoning regulations cannot provide for the termination of nonconforming uses solely as a result of non-use for a specified period of time.

The Court ruled that Section 12-10(d) of the zoning regulations, although not directly in conflict with Connecticut General Statutes Section 8-2(a), when applied to a building operating as a nonconforming use, would impermissibly cause the termination of that use and its right to a liquor permit based solely on non-use for a specified period of time. Therefore, the Court declared Section 12-10(d) illegal as applied to a nonconforming use, and remanded the matter to the Zoning Board of Appeals with direction to review plaintiffs’ submissions concerning the property’s alleged status as a nonconforming use. The Court indicated that a period of non-use would be evidential, but not determinative of the issue of abandonment. The Court also indicated that the prior owner’s intent, and any changes to the operation of the business which occurred over time, were to be considered by the Zoning Board of Appeals.

Howard D. Geneslaw is a Director in the Gibbons Real Property & Environmental Department.

Print