Agenda - Planning Commission - 04/05/2007

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March 1, 20071 Volume 11 No, 5 Adult Entertainment-Town claims business does not meet all zoning requirements Business O"Wller challenges licensing process Citation: Gold Diggers, LLC v. Town of Berlin, 2007 WL 430658 (Conn. Super. Ct.20G7) CONNECTICUT (Ol/24/07)-Gold Diggers, LLC, entered into an agree- ment to buy a business in the town of Berlin. The agreement was contin-. gent on Gold Diggers obtaining a liquor license. The business had been used previously for adult entertainment purposes, and Gold Diggers wanted to continue that use. Gold Diggers applied to the tovm for a liquor permit, which required ap- proval from the town's zoning enforcement officers. Ultimately, the permit was denied. The town stated that it could not certify that the use was a permitted use under the zoning regulations. One of the reguJ.ations required 250 feet of separation between adult businesses and residential areas, but Gold Diggers claimed that it was exempt from that regulation because it was passed after the former business was established. In other words, Gold Diggers claimed it was a valid nonconforming use due to its grandfathered status. Gold Diggers asked the court to intervene and grant the liquor license. It argued that its business was lawful under the zoning regulations, and, there- fore, the town .was required to grant the license. Gold Diggers stated that it had no other remedy than pursuing the matter in court. '\ The town asked the court to dismiss the case, in part because Gold Dig- gers had not exhausted its aclministrative remedies. It also contended that Gold Diggers did not have a dear legal right to the license and that it was not required to grant it; DEOSION: Request to dismiss denied. The town argued that the court did not have jurisdiction over the case be- cause of the exhaustion of administrative remedies doctrine. Generally, an ap- plicant had to appeal zoning decisions through the administrative process be- fore turning to the courts for a remedy. However, the court found that there were two issues at work here: one was a zoning regulation, the other was a licensing regulation set forth under the sexually oriented business ordinance. The to\V11 had a system by which a zoning enforcement officer had to ap- prove the application for a liquor license, but the regulations under the sexu- ally oriented business ordinance did not all relate to zoning matters. The court found that-despite the fact that the building was less than 250 feet from a residential zone-appealing to the board of zoning appeals would not address the part of the process controlled by the sexually oriented business ordinance. Because administrative relief was not available to Gold Diggers through the zoning board of appeals, the court had jurisdiction, and allowed the case to proceed. editorial QuestionsorCotnments: west~quirilah@th6niSOn~Fo.m: 8 106