Dostmann v. Zoning Bd. of Appeals of Town of Glastonbury

• Decision Date: 27 March 1956
• Citation: 122 A.2d 19,143 Conn. 297
• Court: Connecticut Supreme Court
• Parties: Walter B. DOSTMANN et al. v. ZONING BOARD OF APPEALS OF the TOWN OF GLASTONBURY et al. Supreme Court of Errors of Connecticut

Page 19

122 A.2d 19

143 Conn. 297

Walter B. DOSTMANN et al. v. ZONING BOARD OF APPEALS OF the TOWN OF GLASTONBURY et al.

Supreme Court of Errors of Connecticut.

March 27, 1956.

Edward Olson, Jr., Hartford, with whom were Joseph Sarcia, Hartford, and, on the brief, Morris S. Falk, Hartford, for appellants (plaintiffs).

Walter F. Foley, Hartford, for appellee (defendant Leitao).

Edward C. Wynne, Glastonbury, for appellee (named defendant)

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

BALDWIN, Justice.

This appeal presents a question of the interpretation of provisions of the building zone regulations of the town of Glastonbury. The facts are as follows: The defendant Jack Leitao, who holds an option to purchase a parcel of land located in an industrial zone in Glastonbury, applied to the building inspector for a permit to construct on this parcel an outdoor drive-in theater. The inspector refused the permit and Leitao appealed to the defendant board of appeals. The board ordered the permit issued on the ground that a theater was a permitted use under article 3, § 7, of the regulations. The plaintiffs, aggrieved property owners, appealed to the Court of Common Pleas. The court dismissed the appeal, and from that judgment the plaintiffs have appealed to this court.

Article 3, § 7, of the regulations (1954) reads as follows: 'INDUSTRIAL ZONE A. Permitted Uses. Uses permitted in Business zone. * * * [Specific uses of an industrial nature are then listed.] Any other industry or business with characteristics similar to the above uses, which is not hazardous or offensive or detrimental to the neighborhood because of odors, fumes, dust, smoke, noise, vibration or other objectionable characteristics, when authorized by the Board of Appeals. In determining the appropriateness of the use, the Board of Appeals shall consider among other things the size of the plant, the number of employees, the incidents of the business or process employed and shall grant all permits subject to such conditions and safeguards as will carry out the purpose of these regulations. * * *'

Article 3, § 6, is entitled 'General Business Zone' and includes among permitted uses '[t]heatre and place of assembly, recreation and amusement, except roller coasters, carousels and penny arcades.' The defendants contend that this language is plain and unambiguous and that therefore a theater is clearly allowed in an industrial zone. The plaintiffs, however, point to article 6, § 5, which deals with the powers of the board of appeals. This section reads: 'A. The Board of Appeals shall have the following powers: * * * 2. Decide special questions as authorized in these regulations and hear and decide requests for special exceptions to the provisions herein as follows: * * * e. Permit additional uses in the Industrial Zone as specified in Article III, Section 6.' As has been previously stated, article 3, § 6, refers to uses in a general business zone. The plaintiffs claim that while under article 3, § 7, business uses are permitted in an industrial zone, they require the approval of the board of appeals acting under article 6, § 5(A)(2)(e). The plaintiffs argue that an industrial zone is not a catchall for uses permitted in other zones and that the intention of the regulations is to preserve industrial zones primarily for industrial uses and to allow business uses therein only subject to the approval of the board of appeals. In short, they claim that a business use in an industrial zone is permitted as an exception. See Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 531, 102 A.2d 316. They concede that §§ 6 and 7 of article 3, standing alone, appear to be unambiguous, but they argue that these sections are only two of the many provisions of the regulations, which must be regarded as an entire piece of legislation. In construing legislation, courts are required to reconcile apparently inconsistent provisions so far as that can be done. State ex rel. Chatlos v. Rowland, 131 Conn. 261, 265, 38 A.2d 785; Hutchison v. Board of Zoning Appeals, 140 Conn. 381, 385, 100 A.2d 839. Ordinarily, no legislative provision can be regarded as superfluous. State v. Cambria, 137 Conn. 604, 610, 80 A.2d 516; Hurlbutt v. Hatheway, 139 Conn. 258, 262, 93 A.2d 161.

It has been the general practice in zoning in the past to admit to districts of less restricted uses those uses permitted in the more restricted ones. Corthouts v. Town of Newington, 140 Conn. 284, 287, 99 A.2d 112, 38 A.L.R.2d 1136; 1 Yokley, Zoning Law & Practice (2d Ed.) §§ 47, 49. This, so to speak, is zoning in one direction only. A study of the Glastonbury regulations reveals, as claimed by the plaintiffs, in an effort to alter this policy. We cannot ignore article 6, § 5(A)(2)(e), completely, as urged by the defendants. On the other hand, we do not ascribe to this section the legislative intention claimed by the plaintiffs, because their claim overlooks an inconsistency which will appear from subsequent discussion.

There is a rule of statutory construction that when an ambiguity exists, manifest legislative intention must prevail over the literal meaning of the words used. State ex rel. Rourke v. Barbieri, 139 Conn. 203, 207, 91 A.2d 773; Brown ex rel. Gray v. Quintilian, 121 Conn. 300, 304, 184 A. 382; Litchfield v. City of Bridgeport, 103 Conn. 565, 579, 131 A. 560; Brown's Appeal, 72 Conn....