Phoenix Management Group One LLC v. Zoning Board of Appeals of Hamden
If a plaintiff appeals a municipal zoning enforcement officer's order to cease and desist operating as a nightclub, the zoning board of appeals may not be allowed to consider allegations about whether the plaintiff followed rules and regulations concerning parking and occupancy, without prior notice to the plaintiff. In April 2011, in response to a purported police complaint about a shooting, a zoning enforcement officer inspected and issued a cease-and-desist order against "The Point After," a sports bar, to cease and desist nightclub activities, including live entertainment with a dance floor. The plaintiff appealed to the zoning board of appeals. At a hearing the ZBA discussed allegations concerning street parking and occupancy that were not included in the ZEO's April 2011 cease-and-desist order. The plaintiff's attorney objected to the discussion about street parking and occupancy. Members of the ZBA allegedly criticized the attorney as being unprepared. The ZBA upheld the cease-and-desist order. The plaintiff appealed to Superior Court and argued that the ZBA upheld the ZEO's order based on claims that were not articulated in the order and without furnishing notice to the plaintiff. The court found that the ZBA abandoned the ZEO's claim that the plaintiff operated a nightclub and proceeded to conclude that the plaintiff violated the special permit's restrictions concerning parking and occupancy. "While the plaintiff may have been in violation of the existing site plan as to parking spaces and occupancy," wrote the court, "no fair reading of the cease and desist order could reasonably apprise the plaintiff or his attorney that these alleged violations would be the topic of the hearing or basis of the denial." Also, the ZEO's cease-and-desist order did not adequately indicate which activities qualify as operating a nightclub. "The plaintiff," wrote the court, "faces fines for noncompliance with an order to refrain from activity which is undefined." The ZBA's decision was arbitrary, unreasonable and an abuse of discretion, and the court sustained the plaintiff's appeal and vacated the board's decision.