Jolly, Inc. v. Zoning Board of Appeals

BERDON, J.,

dissenting. The majority asserts two reasons for reaffirming this court’s interpretation of General Statutes § 8-8 that taxpayers are automatically aggrieved with respect to zoning decisions involving liquor outlets, thereby providing them with standing to appeal: (1) stare decisis; and (2) legislative silence. Under the circumstances of this case, neither of these reasons justifies reaffirmation of this anachronistic policy.

The plaintiffs Richard and Carman Tuliano (Tulianos), business competitors of the defendant Cyrco, Inc. (Cyrco), claim to be aggrieved and seek the benefit of the automatic aggrievement rule. The Tulianos are the owners and operators of the plaintiff Jolly, Inc., a corporation doing business as Jolly Time Package, a liquor store located appropriately 500 feet from the location of Cyrco’s liquor store. In November, 1993, Cyrco sought to move its business to a new location that was exposed to greater traffic and that would be 1430 feet away from the Tulianos’ store. For this reason, Cyrco filed two variance applications with the named defendant, the Bridgeport zoning board of appeals (board). The board granted both of Cyrco’s variances, one of which allowed a variance from the regulatory requirement that there be 1500 feet between liquor outlets. Subsequently, the Tulianos filed an appeal to challenge the board’s actions.

I agree that “[s]tare decisis gives stability and continuity to our case law”; Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955); and we therefore should follow our own precedent. But when the reasoning of that precedent is patently flawed or it has no contemporary relevance it must be set aside. “[PJrinciples of law which serve one generation well may, by reason of changing conditions, disserve a later one. . . . Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice bet*205ter.” (Citations omitted; internal quotation marks omitted.) Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 17-18, 448 A.2d 190 (1982). In overruling prior case law because of a change in public policy considerations, we recently had occasion to quote Justice Oliver Wendell Holmes: “ ‘It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.’ O. Holmes, ‘The Path of the Law,’ 10 Harv. L. Rev. 457, 469 (1897).” Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 554-55, 610 A.2d 1260 (1992).

The majority adheres to the rule of automatic aggrievement that is derived from the 1894 case of Beard’s Appeal, 64 Conn. 526, 30 A. 775 (1894). In that case, aggrievement was based upon an interpretation of a statute which gave “resident taxpayers” the right to appeal the granting of a license to sell liquor. Id., 533. In justifying its interpretation to allow resident taxpayers the right to appeal, the court noted certain concerns associated with the operation of a liquor outlet. “The expense of the local police of any town, as well as of criminal proceedings before its local tribunals, is largely dependent on the number of the liquor saloons and bar rooms within its limits, and the character of those who keep them. If licenses are granted with too free a hand, or without proper discrimination, the burdens of taxation are likely to be increased. Every taxpayer therefore has a certain, though it may be a small, pecuniary interest in having the license law well administered; and if he is also a resident in the town where he pays his taxes, he has an additional interest, common to every citizen, in promoting the general welfare of the community.” (Emphasis added.) Id., 534. Based upon that reasoning, this court deemed all resident tax*206payers to be automatically aggrieved with respect to zoning decisions that pertain to the sale of liquor. O’Connor v. Board of Zoning Appeals, 140 Conn. 65, 71-72, 98 A.2d 515 (1953). Subsequently, this court expanded the rule to include nonresident taxpayers, such as the Tulianos here. Zuckerman v. Board of Zoning Appeals, 144 Conn. 160, 164, 128 A.2d 325 (1956).

As indicated by the trial court in this case, every reason that has been advanced for granting taxpayers automatic standing to challenge decisions of zoning boards regarding the traffic of liquor has long ceased to exist. The liquor control commission has replaced the taxpayer in policing the character of those who dispense liquor and the manner in which a liquor outlet is operated, and other zoning regulations control the number of establishments. Indeed, as Judge Fuller wrote in his trial court memorandum of decision: “The interlocking scheme of controls by the municipal zoning ordinance and the department of liquor control mitigate possible harm to the public interest expressed in the cases upholding the liquor exception. Under the present scheme of liquor control there are many kinds of permits, and as a practical matter many of them create no danger to the public or result in turning intoxicated drivers or criminals loose in the municipality. . . . Maintaining an automatic appeal for any taxpayer in the municipality where a liquor permit is granted for any type of sale is unrealistic under the modem scheme of liquor regulation. Many if not most businesses conducted under one or more of the categories of liquor permits pose no greater danger to the public safety, morals or welfare than other businesses, including many types of retail stores, warehouses, garages, service stations and adult book stores.”1

*207Secondly, the majority asserts that the legislature has impliedly consented to this court’s interpretation of § 8-8 that grants automatic aggrievement to taxpayers who wish to challenge zoning decisions pertaining to a liquor outlet. In this case, for the reasons mentioned previously, the automatic aggrievement rule has ceased to have any contemporary purpose. Therefore, unlike Union Trust Co. v. Heggelund, 219 Conn. 620, 627, 594 A.2d 464 (1991), which is relied upon by the majority, or Hansen v. Gordon, 221 Conn. 29, 35-36, 602 A.2d 560 (1992), both of which had contemporary purposes supporting the court’s respective statutory interpretations, the legislature’s silence in this matter should not be construed as an implicit approval of the rule.

This distinction is clearly demonstrated in the recent case of Brunswick v. Inland Wetlands Commission, supra, 222 Conn. 541, which was authored by Chief Justice Peters. In Brunswick, this court overruled the 1879 case of Doolittle v. Clark, 47 Conn. 316 (1879), which interpreted the mesne process statute to prohibit an attorney, who is a commissioner of the Superior Court, from signing a writ in his own case. General Statutes (1875 Rev.) title 19, chapter 1, § 1, the statute at issue in Doolittle, now General Statutes § 52-45a, was amended at least six times after Doolittle was decided. At no time, however, did the legislature reverse the Doolittle holding by enacting an appropriate amendment to the statute. Nevertheless, the Brunswick court held that “ [ajbsent the public policy reasons that existed in 1879 . . . adherence to [that] rule ... no longer serves any purpose.” Brunswick v. Inland, Wetlands Commission, supra, 554. Similarly, this court’s statutory interpretation that taxpayers are automatically *208aggrieved when challenging a zoning decision relating to the sale of liquor should be abandoned.

In addition to determining that the Tulianos were not automatically aggrieved, the trial court also determined that they were not classically aggrieved. To be classically aggrieved, an appellant must satisfy a two part test: (1) the appellant must have a specific, personal and legal interest in the subject matter of the decision; and (2) this interest must have been specially and injuriously affected by the board’s decision. Walls v. Planning & Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252 (1979). The trial court found that “the [Tulianos] have not met their burden of proof that they are specially and injuriously affected by the shifting of [Cyrco’s] package store .... There is no evidence of any adverse affect from an increase in traffic, change in traffic patterns or any physical impact upon the [Tulianos’] property by the opening of a package store in an existing building 1430 feet away.”

Rather, the trial court determined that “[t]he impact claimed by the [Tulianos] amounts to a speculative fear of loss of economic advantage, or more specifically, [a] concern that the proposed package [store] . . . will cut into the [Tulianos’] liquor business. However, a business competitor of a successful applicant for a variance, zoning permit or special exception is not classically aggrieved without a showing of injury to his property rights, and merely being a business competitor is insufficient.” The Tulianos do not challenge the trial court’s classical aggrievement analysis and I do not find it to be erroneous. Therefore, I would affirm the trial court’s finding that the Tulianos have proven neither statutory aggrievement nor classical aggrievement.

In my view, the automatic aggrievement rule should be abandoned and the trial court’s decision affirmed *209on the ground that the Tulianos were not classically aggrieved.

Accordingly, I dissent.

The majority unfairly states that “neither the board nor Cyrco has presented any evidence to suggest that these problems have abated.” As Cyrco clearly states in its brief, “[sjince the trial court thoroughly researched and examined the issues [regarding the obsolescence of the automatic *207aggrievement rule], it would serve no purpose to simply reiterate the court’s reasoning . . .