Walgreens had leased a former supermarket building and adjacent parking lot with plans to switch the use of the site from “food market” to “pharmacy.” The company proposed making only interior changes to the building. However, when the company requested a change in property use, local zoning authorities allegedly refused to authorize the change, informing Walgreens that it was required to apply for a certificate of zoning compliance. Walgreens submitted the certification application, but it was denied. The company challenged the zoning board’s procedural decision that a certificate of zoning compliance was required in their case, as well as the board’s substantive decision to deny the certification.
First, the appellate court upheld the lower court’s finding that Walgreens had failed to establish Fairfield officials had made an appealable decision on whether or not a certificate of zoning compliance would be required. While the designated zoning enforcement officer “represented” to Walgreens at a meeting that a certificate would be required for its project, the lower court declined to find an appealable action on the part of the zoning officer. Therefore, Walgreens’ contention that it was denied an opportunity to appeal the recommendation was properly dismissed, according to the appellate court, because there was no action upon which to base an appeal.
Next, the court declined to find that the zoning board of appeals had acted in an arbitrary, unreasonable, or otherwise illegal manner in denying Walgreens’ certificate of zoning compliance. The zoning board had given three reasons for its denial of the certificate: (1) the proposed use did not comply with the established purpose of the district, (2) the proposed use was not a permitted retail use, and (3) the proposed use would not harmonize with the neighborhood and “preserve and protect property values” therein.
Plaintiff argued that many of the items it proposed to sell at the location were not substantially different from those that had been sold at the location when it was a supermarket, and that these items fell within the permitted retail uses for that district. Further, plaintiff contended that its conversion of the property’s use from grocery store to pharmacy was not a “change in use” for zoning purposes, and that denying a certificate to allow Walgreens to build a pharmacy in the district was inconsistent with the zoning commission’s prior approval of a CVS pharmacy in the same district.
The substantial evidence rule was applied to this case to determine whether the record before the zoning board of appeals supported the decision it reached. The court held that such record existed, and upheld the zoning board’s determination that there were enough differences between the operation of a grocery store and the operation of a pharmacy to justify requiring a certificate of zoning compliance. Further, the appellate court upheld the trial court’s determination that plaintiffs had failed to allege enough facts to show the zoning commission’s eventual denial of the certificate application was unreasonable or arbitrary.
On the question of whether the zoning board of appeals had acted in an inconsistent manner by allowing a CVS pharmacy to locate in the district, the court held that the plaintiff had failed to establish a factual basis for this claim. The court noted that the record of zoning commission proceedings did not contain any reference to the CVS approval, and that the plaintiff had failed to supplement this record in the case before the trial court by adding further materials or evidence to establish the comparison. Therefore, the plaintiff did not establish a sufficient factual basis for the inconsistency contention, and the contention was properly dismissed.
Walgreen Eastern Company, Inc. v. Zoning Board of Appeals of the Town of Fairfield, 24 A.3d 27 (Conn. App. Ct. 8/2/2011)
The opinion can be accessed at: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP130/130AP506.pdf
