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PARILLO FOOD GROUP, INC. v. BOARD

OF ZONING APPEALS OF THE

CITY OF NEW HAVEN

(AC 38023)

Alvord, Sheldon and Mullins, Js.

Argued October 5—officially released December 6, 2016

(Appeal from Superior Court, judicial district of New

Haven, Blue, J.)

Proloy K. Das, with whom were Roderick R. Williams, assistant corporation counsel, and, on the brief,

Sarah Gruber, for the appellant (defendant).

Brian F. Valko, with whom was Amy P. Blume, for

the appellee (plaintiff).
Opinion

ALVORD, J. The defendant, the Board of Zoning

Appeals of the City of New Haven, appeals from the

judgment of the trial court sustaining the appeal of the

plaintiff, Parillo Food Group, Inc., from the defendant’s

decision granting the plaintiff’s application for a special

exception to operate a restaurant serving liquor that

imposed a condition limiting its hours of operation. On

appeal, the defendant claims that the court improperly

concluded that it had no authority to limit the hours of

operation of the plaintiff’s restaurant.1 Specifically, the

defendant claims that the court (1) should have determined that municipal zoning boards have the authority

to place temporal restrictions on special exception

uses, (2) erroneously concluded that Connecticut’s

Liquor Control Act, General Statutes § 30-1 et seq.,

divests the defendant of its power to attach conditions

limiting the hours of operation of restaurants that serve

alcohol, and (3) erroneously concluded that the challenged condition was not integral to the defendant’s

approval of the special exception. We agree with the

defendant’s second claim and, accordingly, reverse the

judgment of the trial court.2

The record reveals the following facts and procedural

history. The plaintiff leases property on State Street in

New Haven, on which it operates a restaurant. The

property is situated in a BA zone, and the area surrounding the restaurant is used for both residential and

commercial purposes. Three dwelling units are located

above the restaurant, and there also is a separate twofamily dwelling located on the subject property. The

use of the property as a restaurant began in the 1990s.

In August, 2000, the defendant granted a special

exception to Amato Bernardo that permitted the service

of wine and beer in the then existing forty-two seat

restaurant. In September, 2011, the plaintiff leased the

restaurant portion of the property. In January, 2012, the

restaurant was severely damaged by fire. The plaintiff

expended approximately $15,000 to rebuild the restaurant, and, on January 25, 2013, it filed an application

for a special exception to operate a forty-seven seat

restaurant with a full restaurant liquor permit. Additionally, the plaintiff requested permission to allow three

on-site parking places instead of the twelve spaces ordinarily required for a forty-seven seat restaurant.

The defendant held a public hearing on the plaintiff’s

application on March 12, 2013. Several individuals

attended the hearing, some speaking in favor of the

proposal and others speaking against it. Exhibits were

submitted to the defendant, including an advisory

report prepared by the New Haven City Plan Department (department) and an advisory report prepared by

the New Haven City Plan Commission (commission).

At a voting session held on April 9, 2013, the defendant’s
board members discussed the plaintiff’s application and

the commission’s suggestions in its report. The members voted unanimously to approve the special exception subject to the five conditions stated in that report.

By letter dated April 12, 2013, the defendant notified

the plaintiff of its decision. The plaintiff appealed to

the Superior Court, challenging the authority of the

defendant to impose the conditions.

The trial court held a hearing on November 13, 2014.

The court heard testimony from Daniel Parillo, the president of the plaintiff corporation, and found that the

plaintiff was aggrieved.3 Following that determination,

the parties’ counsel presented their arguments to the

court. They agreed that the pivotal issue before the

court was whether the defendant had the authority to

impose a limitation on the hours of the restaurant’s

operation as set forth in the first condition attached to

the special exception. That condition provided: ‘‘Hours

of operation not to extend past 11:30 p.m. daily.(Consistent with conditions attached to similar requests in this

neighborhood.)’’ Although not expressly alleged in its

administrative appeal or argued in its pretrial brief,

plaintiff’s counsel claimed at the hearing that the provisions of the Liquor Control Act governed the hours

of operation for restaurants authorized to provide full

liquor service.4 According to the plaintiff, only a town,

by vote of a town meeting or by ordinance; see General

Statutes § 30-91 (b);5 could limit those hours of operation. The trial court allowed both parties to submit

supplemental briefs addressed to that particular issue.

The court issued its memorandum of decision on

December 12, 2014. The court made the following determination: ‘‘Local authorities unquestionably have a general powerto regulate health, safety, and welfare factors

affecting establishments where liquor is sold. . . .

Such regulation must, however, be done in a comprehensive, but not inconsistent, manner. . . . When local

authorities seek to regulate the hours of operation of

establishments selling alcoholic beverages . . . § 30-

91 (b)tells them exactly how to do this. They must do so

by vote of a town meeting or by ordinance.’’ (Citations

omitted; internal quotation marks omitted.) Citing Bora

v. Zoning Board of Appeals, 161 Conn. 297, 302, 288

A.2d 89 (1971), and Greenwich v. Liquor Control Commission, 191 Conn. 528, 540, 469 A.2d 382 (1983), the

court concluded that the defendant could not limit the

hours of sale of alcohol under the guise of zoning.

Accordingly, the court found the condition limiting the

plaintiff’s hours of operation to be illegal. After finding

that the condition was not an integral component of

the defendant’s decision, the court modified that decision by removing that condition from the approval of

the special exception. The defendant filed the present

appeal after this court granted its petition for certification to appeal.
We first set forth the applicable legal principles and

standard ofreview that guide our analysis. ‘‘In reviewing

a decision of a zoning board, a reviewing court is bound

by the substantial evidence rule,6 according to which,

[c]onclusions reached by [a zoning] commission must

be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses

and the determination of issues of fact are matters

solely within the province of the [commission]. . . .

The question is not whether the trial court would have

reached the same conclusion, but whether the record

before the [commission] supports the decision reached.

. . . If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot

substitute its judgment for that of the board. . . . If

there is conflicting evidence in support of the zoning

commission’s stated rationale, the reviewing court . . .

cannot substitute its judgment as to the weight of the

evidence for that of the commission. . . . The agency’s

decision must be sustained if an examination of the

record discloses evidence that supports any one of the

reasons given.’’ (Citations omitted; footnote added;

internal quotation marks omitted.) Municipal Funding,

LLC v. Zoning Board of Appeals, 270 Conn. 447, 453,

853 A.2d 511 (2004).

With respect to special exceptions, ‘‘General Statutes

§ 8-2 (a) provides in relevant part that local zoning regulations may provide that certain . . . uses of land are

permitted only after obtaining a special permit or special exception . . . subject to standards set forth in

the regulations and to conditions necessary to protect

the public health, safety, convenience and property values. . . . The terms special permit and special exception are interchangeable. . . . A special permit allows

a property owner to use his property in a manner

expressly permitted by the local zoning regulations.

. . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as

well as the conditions necessary to protect the public

health, safety, convenience and property values. . . .

An application for a special permit seeks permission

to vary the use of a particular piece of property from

that for which it is zoned, without offending the uses

permitted as of right in the particular zoning district.

. . . When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity. . . . [Its] function . . . [is] to decide

within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section

of the zoning regulations applies to a given situation

and the manner in which it does apply. . . . We have

observed that the nature of special [permits] is such

that their precise location and mode of operation must

be regulated because of the topography, traffic problems, neighboring uses, etc., of the site. . . . Review of

a special permit application is inherently fact-specific,
requiring an examination of the particular circumstances of the precise site for which the special permit

is sought and the characteristics of the specific neighborhood in which the proposed facility would be built.’’

(Citations omitted; internal quotation marks omitted.)

Meriden v. Planning & Zoning Commission, 146 Conn.

App. 240, 244–45, 77 A.3d 859 (2013). When considering

an application for a special permit, a zoning board is

called upon to make a decision as to whether a particular proposal would be compatible with the particular

zoning district ‘‘underthe circumstances then existing.’’

Barberino Realty & Development Corp. v. Planning &

Zoning Commission, 222 Conn. 607, 614, 610 A.2d

1205 (1992).

‘‘The general conditions such as public health, safety

and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit.

. . . [B]efore the zoning commission can determine

whether the specially permitted use is compatible with

the uses permitted as of right in the particular zoning

district, it is required to judge whether any concerns,

such as parking or traffic congestion, would adversely

impact the surrounding neighborhood. . . . Connecticut courts have never held that a zoning commission

lacks the ability to exercise discretion to determine

whether the general standards in the regulations have

been met in the special permit process. . . . If the special permit process were purely ministerial there would

be no need to mandate a public hearing.’’ (Internal quotation marks omitted.) Children’s School,Inc. v. Zoning

Board of Appeals, 66 Conn. App. 615, 619–20, 785 A.2d

607, cert. denied, 259 Conn. 903, 789 A.2d 990 (2001).

Where a special exception is involved, ‘‘the board may

impose conditions only to the extent allowed by the

zoning regulations themselves. . . . Without such a

grant of power, the board . . . would be unable to

impose a condition even where one was obviously desirable.’’ (Citations omitted.) Shulman v. Zoning Board

of Appeals, 154 Conn. 426, 429, 226 A.2d 380 (1967).

It is undisputed that the plaintiff is entitled to operate

a restaurant as a permitted use in the BA zone. In order

to serve alcoholic liquor, however, the plaintiff was

required to obtain a special exception pursuant to article V, § 42, of the New Haven Zoning Ordinance (regulations). Section 63 (d) of the regulations, pertaining to

special exceptions, provides the following statement of

purpose: ‘‘It is recognized . . . that there are certain

uses and features which, because of their unique characteristics, cannot be distinctly classified or regulated

in a particular district or districts, without consideration, in each case, of the impact of such uses and

features upon neighboring uses and the surrounding

area, compared with the public need forthem at particular locations. Such uses and features are therefore

treated as special exceptions.’’ (Emphasis omitted.)
Section 63 (d) (3) of the regulations provides the

defendant with the following guidelines in evaluating an

application for a special exception: ‘‘Special exceptions

shall be granted only where the [defendant] finds that

the proposed use or feature or the proposed extension

or substantial alteration of an existing use or feature

is in accord with the public convenience and welfare

after taking into account, where appropriate . . . (b)

[t]he resulting traffic patterns and adequacy of proposed off-street parking and loading . . . (c) [t]he

nature of the surrounding area and the extent to which

the proposed use or feature might impair its present

and future development . . . (d) [t]he proximity of

dwellings, churches, schools, public buildings and other

places of public gathering . . . (e) [a]ll standards contained in this ordinance . . . (f) [t]he comprehensive

plan of the City of New Haven, and other expressions

of the purpose and intent of this ordinance.’’ (Emphasis

omitted.) In addition to these general conditions, § 63

(d) (5) authorizes the defendant to impose specific conditions on a special exception when appropriate: ‘‘In

granting a special exception, the [defendant] may attach

such additional conditions and safeguards as are

deemed necessary to protect the neighborhood, such

as, but not limited to, those listed in paragraph 63 (c)

(3) of this ordinance. Failure to comply with any such

condition or safeguard shall constitute a violation of

this ordinance.’’ The conditions listed in § 63 (c) (3)

include, inter alia, ‘‘[l]imitation of size, number of occupants, method or time of operation, or extent of facilities . . . .’’ (Emphasis added.)

The applicable zoning regulations clearly authorize

the defendant to attach a condition limiting the hours

of operation when granting a special exception. In

reaching its decision that such a condition was warranted in the present case, the defendant had to rely

on the record of the proceedings before it, which

included the evidence presented at the public hearing

and the advisory reports of the department and the

commission.7 At the public hearing, the defendant was

apprised of the fact that the plaintiff had added a separate bar area to the restaurant with seven seats. The

dining area accommodated forty seats, for a total of

forty-seven seats. An opposition to the plaintiff’s application, titled ‘‘[a]pproval of this special exception would

intensify the present use and cause undue hardship to

neighboring residents and businesses due to the lack

of parking,’’ that was signed by approximately forty-five

people, was presented to the defendant. Additionally,

concerns were expressed that the addition of the bar

would change the nature of the restaurant’s former use.

Although only seven seats were in the bar area, one

speaker at the hearing noted that many people would

congregate in that area, standing behind the seats and

ordering drinks. Further, individuals who identified

themselves as living in the neighborhood for several
years stated that the parking situation was ‘‘awful’’ and

a ‘‘nightmare,’’ that there were many families with small

children living in the area, that there would be ‘‘more

bar action,’’ and that the traffic would increase if the

restaurant had a full liquor permit.

The advisory reports both recommended granting the

special exception with conditions. The department’s

report contained the following statement: ‘‘The proposed change from beer and wine to full alcohol service

(including a bar) does change the nature of the restaurant. Practically speaking, the question is whether or

not it is apparent (or even just likely) that . . . this

change . . . will result in an establishment that can

operate ‘in accordance with the public convenience

and welfare’ as was determined to be the case for the

previous restaurant in 2000. In the view of staff, much

of what could be viewed as additional impact is mitigable. For example, while it is unlikely that extending full

liquor service to diners would in any way affect existing

neighborhood conditions, the addition of a bar might.

In many cases, bar service continues far past dining

hours into early morning hours, occasionally disturbing

nearby residents. Staff suggests that the imposition of

hours of operation reflecting dining hours is not only

appropriate but is reflective of recent policy in respect

to restaurants located not only on State Street but also

in other neighborhood business districts within the

City.’’ The department suggested adding a condition to

the approval of the special exception that the ‘‘[h]ours

of operation [are] not to extend past 11:30 p.m. daily.’’

The commission’s report expressed similar concerns.

In reviewing the criteria in the regulations pertaining

to the granting of special exceptions, the commission

noted: ‘‘The Plan’s Housing and Neighborhood Planning

section advises that neighborhoods be protected

against potentially deleterious and/or nuisance influences. Any approval of this application should provide

some assurances of that protection.’’ The commission

recommended that the application be approved with

five conditions, including the following: ‘‘Hours of operation not to extend past 11:30 p.m. daily. (Consistent

with conditions attached to similar requests in this

neighborhood.)’’8 At the defendant’s voting session on

April 9, 2013, it followed the recommendation of the

commission and approved the plaintiff’s special exception with the five conditions listed in the commission’s

advisory report.

The plaintiff claims, however, that even if temporal

conditions relating to a business’ operation may be

appropriate under certain circumstances, the defendant

could not limit the plaintiff’s hours of operation because

the provisions of the Liquor Control Act grant only

the city of New Haven, and not its zoning board, the

authority to restrict the hours during which its restaurant can sell liquor. The plaintiff argues, and the trial
court agreed, that § 30-91 (a) sets forth the permissible

hours of operation for a restaurant with a full liquor

permit and that § 30-91 (b) allows a municipality to

restrict those hours by vote of a town meeting or by

ordinance.In other words, as argued, although a municipality has the authority to restrict the hours of sale, a

zoning board has no such authority. We disagree.

The plaintiff maintains that the defendant erroneously construes the trial court’s decision as holding that

the preemption doctrine precludes the defendant from

restricting the plaintiff’s hours of operation. We conclude that the preemption doctrine does factor into our

analysis because the trial court essentially has determined that a local zoning board is precluded, by virtue

of § 30-91 (b), from restricting the hours of operation

of a restaurant that possesses a full liquor permit. Even

though the regulations expressly authorize the defendant to impose such a condition in granting a special

exception, the court, in adopting the reasoning of the

plaintiff, determined that zoning boards are preempted

by the provisions of the Liquor Control Act from

restricting the hours of service because only a municipality is expressly authorized to do so by § 30-91 (b).

Accordingly, we look to the legal principles involved

in the determination of when a local ordinance is preempted by a state statute.

‘‘The authority to engage in zoning is drawn from

the police power, which is the source of all zoning

authority.’’ (Internal quotation marks omitted.) VIP of

Berlin, LLC v. Berlin, 50 Conn. Supp. 542, 549, 951 A.2d

714 (2007), aff’d, 287 Conn. 142, 946 A.2d 1246 (2008).

‘‘There is overlap in the General Statutes between the

authority of a zoning commission and the exercise of

the municipal police power through the adoption of

ordinances by a town’s legislative body. Many of the

subjects over which the municipality is given the power

to regulate by [General Statutes] § 7-148 are traditionally the subject of zoning and planning regulations as

well. . . . Where the language and purpose of two statutes overlap, they are to be read in concert.’’ (Citation

omitted; internal quotation marks omitted.) Id., 551.

‘‘The State may regulate any business or the use of

any property in the interest of the public welfare or the

public convenience, provided it is done reasonably.

. . . The limit of the exercise of the police power is

necessarily flexible, because it has to be considered in

the light of the times and the prevailing conditions.’’

(Internal quotation marks omitted.) Modern Cigarette,

Inc. v. Orange, 256 Conn. 105, 118, 774 A.2d 969 (2001).

‘‘[I]n determining whether a local ordinance is preempted by a state statute, we must consider whether

the legislature has demonstrated an intent to occupy

the entire field of regulation on the matter or whether

the local ordinance irreconcilably conflicts with the

statute.’’ Id., 119.
In the present case, when reviewing various provisions of the Liquor Control Act, it becomes apparent

that the legislature intended municipalities and local

zoning boards to have some input regarding, inter alia,

the location of establishments that sell alcohol and conditions relating to the operation of those businesses.

As already noted, § 30-91 (b) authorizes a town, by

vote of a town meeting or by ordinance, to reduce the

number of hours during which sales of alcoholic liquor

are permissible. Further, a town may vote to prohibitthe

sale of alcoholic liquor within its boundaries. General

Statutes § 30-9. Additionally, the Department of Consumer Protection must refuse to grant permits for the

sale of alcoholic liquor in no-permit towns and where

prohibited by the zoning ordinance of any city or town.

General Statutes § 30-44.

We next examine the relevant statutes and the New

Haven Zoning Ordinance to determine whether there

is a conflict that precludes the defendant from imposing

the hours of operation condition authorized by the local

zoning regulation. ‘‘Whether an ordinance conflicts with

a statute or statutes can only be determined by

reviewing the policy and purposes behind the statute

and measuring the degree to which the ordinance frustrates the achievement of the state’s objectives. . . .

Therefore, [t]hat a matter is of concurrent state and

local concern is no impediment to the exercise of

authority by a municipality through the enactment of

an ordinance, so long as there is no conflict with the

state legislation. . . . Where the state legislature has

delegated to local government the right to deal with a

particular field of regulation, the fact that a statute also

regulates the same subject in less than full fashion does

not, ipso facto, deprive the local government of the

powerto act in a more comprehensive, but not inconsistent, manner.’’ (Citations omitted; internal quotation

marks omitted.) Modern Cigarette, Inc. v. Orange,

supra, 256 Conn. 119.

‘‘Therefore, merely because a local ordinance,

enacted pursuant to the municipality’s police power,

provides higher standards than a statute on the same

subject does not render it necessarily inconsistent with

the state law. Whether a conflict exists depends on

whether the ordinance permits or licenses that which

the statute forbids, or prohibits that which the statute

authorizes. If, however, both the statute and the ordinance are prohibitory9 and the only difference is that

the ordinance goes further in its prohibition than the

statute, but not counter to the prohibition in the statute,

and the ordinance does not attempt to authorize that

which the legislature has forbidden, orforbid that which

the legislature has expressly authorized, there is no

conflict. . . . Where a municipal ordinance merely

enlarges on the provisions of a statute by requiring

more than a statute, there is no conflict unless the
legislature has limited the requirements for all cases.’’

(Footnote added; internal quotation marks omitted.)

Id., 120.

Our resolution of this appeal requires us to construe

provisions of state statutes, i.e., provisions in the Liquor

Control Act, and the local zoning regulations. ‘‘This

analysis entails the construction of the relevant [zoning]

regulations and [state] statutes, and is therefore a matter of law over which we exercise plenary review of the

trial court’s decision.’’ Zimnoch v. Planning & Zoning

Commission, 302 Conn. 535, 547, 29 A.3d 898 (2011).

The parties do not dispute that, under certain circumstances, a zoning board may impose conditions relating

to a business’ hours of operation in granting a special

exception. Decisions regarding applications for special

exceptions are particularly fact bound. A zoning board

must consider ‘‘the particular circumstances of the precise site,’’ including whether the ‘‘mode of operation

must be regulated because of the topography, traffic

problems [and] neighboring uses . . . of the site.’’

(Internal quotation marks omitted.) Meriden v. Planning & Zoning Commission, supra, 146 Conn. App.

245. The defendant in this case concluded that a change

from the plaintiff’s service of beer and wine to full

alcohol service, including a bar, would adversely affect

the public convenience and welfare of the neighboring

residential uses unless a condition limiting the hours

of operation was imposed. This decision involves a particular use of a particular business in a particular zone.

As such, we conclude that the exercise of such

authority pursuant to the regulations does not conflict

with the purpose and intent of § 30-91 (b). The provisions of § 30-91 (b) permit a town to limit the hours of

service in all types of businesses selling alcohol in all

of the zoning districts in that town. It is a legislative

decision, expressing a policy that service of alcohol

should be restricted. Unlike a zoning board’s administrative decision relating to an application for a special

exception, a town, when it acts by vote of a town meeting or by ordinance pursuant to § 30-91 (b), has determined that everyone within its boundaries must limit

the hours of sale because of a general determination

that such a limitation is in the best interests of the town.

The purposes for limiting the hours of operation in

connection with a special exception and the purposes

for restricting the hours of sale of liquor on a townwide basis are separate and distinct, and both the local

zoning regulation and the state statute can coexist without conflict.

We conclude that the condition imposed by the defendant on the plaintiff’s special exception, which limited

the hours of operation with respect to the sale of alcoholic liquor, was authorized by a regulation that was

not in conflict with the provisions of § 30-91 (b). The

defendant’s restriction of hours merely went further in
its prohibition on sales as set forth in § 30-91 (a). Forthe

reasons stated in this opinion, the trial court improperly

determined that the defendant was precluded from

imposing the condition restricting the plaintiff’s hours

of operation and improperly determined that the condition at issue was illegal.10

The judgment is reversed and the case is remanded

to the trial court with direction to dismiss the plaintiff’s appeal.

In this opinion the other judges concurred.

1 The defendant granted the special exception subject to five conditions,

two of which were not challenged by the plaintiff and two of which the

defendant conceded were advisory and not integral to the decision. The

only condition at issue is the first condition: ‘‘Hours of operation not to

extend past 11:30 p.m. daily. (Consistent with conditions attached to similar

requests in this neighborhood.)’’

2 With respect to the defendant’s first claim, the plaintiff does not challenge

the authority of municipal zoning boards to impose temporal conditions, in

certain situations, on special exception uses. Nevertheless, the defendant

urges this court to ‘‘clarify that municipal zoning authorities may place

reasonable hours of operation restrictions on local businesses when considering applications for special exceptions.’’ Because this issue is not in controversy between the parties, we decline to address it. ‘‘This court does not

render advisory opinions. . . . As our Supreme Court explained more than

a century ago, [s]uch action on our part would be clearly extrajudicial. It

would be a case purely of advice and not of judgment.’’ (Citations omitted;

internal quotation marks omitted.) NationalAmusements,Inc. v. East Windsor, 84 Conn. App. 473, 485, 854 A.2d 58 (2004).

We also do not address the defendant’s third claim. Because we conclude

that the defendant had the authority to impose the condition limiting the

hours of operation, it is not necessary to determine whether that condition

was integral to the defendant’s approval of the special exception.

3 The court’s finding of aggrievement has not been challenged on appeal.

4 General Statutes § 30-91 (a) provides in relevant part: ‘‘The sale or the

dispensing or consumption or the presence in glasses or other receptacles

suitable to permit the consumption of alcoholic liquor by an individual in

places operating under . . . restaurant permits . . . shall be unlawful on:

(1) Monday, Tuesday, Wednesday, Thursday and Friday between the hours

of one o’clock a.m. and nine o’clock a.m.; (2) Saturday between the hours

of two o’clock a.m. and nine o’clock a.m.; (3) Sunday between the hours

of two o’clock a.m. and eleven o’clock a.m. . . .’’

5 General Statutes § 30-91 (b) provides in relevant part: ‘‘Any town may,

by vote of a town meeting or by ordinance, reduce the number of hours

during which sales under subsection (a) ofthis section, except sales pursuant

to an airport restaurant permit, airport bar permit or airport airline club

permit, shall be permissible. . . .’’

6

‘‘This so-called substantial evidence rule is similar to the sufficiency of

the evidence standard applied in judicialreview ofjury verdicts, and evidence

is sufficient to sustain an agency finding if it affords a substantial basis of

fact from which the fact in issue can be reasonably inferred. . . . [I]t must

be enough to justify, if the trial were to a jury, a refusal to direct a verdict

when the conclusion sought to be drawn from it is one of fact for the jury.

. . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention.

It is broad enough and capable of sufficient flexibility in its application to

enable the reviewing court to correct whatever ascertainable abuses may

arise in administrative adjudication. On the other hand, it is review of such

breadth as is entirely consistent with effective administration. . . . The

corollary to this rule is that absent substantial evidence in the record, a

court may not affirm the decision of the board.’’ (Internal quotation marks

omitted.) Meriden v. Planning & Zoning Commission, 146 Conn. App. 240,

247, 77 A.3d 859 (2013).

7 The department’s advisory report was submitted pursuant to § 63 (e)

(2) of the regulations, and the commission’s advisory report was submitted

pursuant to § 63 (d) (6) of the regulations.

8 The plaintiff challenges the defendant’s statement that similar conditions

relating to hours of operation have been imposed on similar establishments
in the area, noting that the restaurant across the street has a full liquor

permit and has no restriction on its hours of operation. The competitor

restaurant, however, secured its liquor permit twenty-eight years prior to

the public hearing on the plaintiff’s application. As previously noted, a zoning

board must consider the circumstances ‘‘then existing’’ when it acts upon

an application for a special exception. Barberino Realty & Development

Corp. v. Planning & Zoning Commission, supra, 222 Conn. 614. Neighborhood conditions may have changed substantially within those twentyeight years.

9 Section 30-91 (a), which provides that sales of alcoholic liquor shall be

unlawful during certain hours, is a prohibitory statute. The condition

imposed by the defendant on the plaintiff’s special exception also is prohibitory in that it extends the hours during which the plaintiff’s sale of alcoholic

liquor would be prohibited.

10 The trial court also relied on the cases of Bora v. Zoning Board of

Appeals, supra, 161 Conn. 297, and Greenwich v. Liquor Control Commission, supra, 191 Conn. 528, in reaching its conclusion that the condition

was illegal.

In Bora, a 1971 decision by our Supreme Court, the defendant zoning

board of appeals granted the application for a variance from the off street

parking regulations so that the applicant could operate a cafe without providing the requisite eight parking spaces. Bora v. Zoning Board of Appeals,

supra, 161 Conn. 299. The board attached a condition to the variance that

limited the hours of the applicant’s operation of the cafe. Our Supreme

Court determined that the zoning board exceeded its powers, as granted to

it by the zoning ordinance, and concluded that the board had acted illegally.

Id., 302. This was not a case involving a special exception, with the authority

to impose a condition limiting the hours of operation as set forth in the

zoning ordinance. The condition in Bora was attached to a variance of

parking space regulations. The special exception in the present case was

required in order for the plaintiff to sell alcoholic liquor.

In Greenwich, our Supreme Court determined that the plaintiff town had

improperly refused to certify that an applicant’s request for an issuance of

a night club liquor permit from the Liquor Control Commission did not

violate the town’s zoning ordinance. Greenwich v. Liquor Control Commission, supra, 191 Conn. 539–40. The applicant’s restaurant already had a valid

restaurant liquor permit, and the applicant wanted to remain open one hour

longer as permitted by a night club liquor permit. Id., 535–36. Our Supreme

Court stated that the town had failed to point to any zoning laws that

prohibited the applicant’s certification for a night club liquor permit. Id.,

539. Further, ‘‘[w]hat they did attempt, without any basis in their zoning

laws and without having employed the legitimate legislative option of limiting the hours of sale afforded by § 30-91 (a), was to prohibit the issuance

of this permit under the guise of zoning.’’ (Emphasis added.) Id., 540. We

do not find the holding of this case to be applicable to the present situation.

We also note that the Supreme Court case of P. X. Restaurant, Inc. v.

Windsor, 189 Conn. 153, 454 A.2d 1258 (1983), contains language that is

supportive of our decision. Our Supreme Court stated: ‘‘It is also reasonable

. . . to imply that liquor premises are subject to local zoning ordinances

which involve matters otherthan location. Once a liquorlocation is approved

there may be additional health, safety and welfare factors unrelated to the

fact that liquor will be sold at that location. These are zoning matters of

local concern and thus are within the expertise of local authorities.’’ Id., 160.