Fox v. Zoning Bd. of Appeals of Town of West Hartford

• Citation: 147 A.2d 472,146 Conn. 70
• Court: Supreme Court of Connecticut
• Decision Date: 24 December 1958
• Parties: Frank W. FOX et al. v. ZONING BOARD OF APPEALS OF TOWN OF WEST HARTFORD et al. Supreme Court of Errors of Connecticut

Page 472

147 A.2d 472

146 Conn. 70

Frank W. FOX et al. v. ZONING BOARD OF APPEALS OF TOWN OF WEST HARTFORD et al.

Supreme Court of Errors of Connecticut.

Dec. 24, 1958.

Arthur M. Lewis, Hartford, for appellants (plaintiffs).

Peter B. Sullivan, Hartford, for appellee (defendant Bailey-Gates), with whom was Samuel Freed, Assistant Corporation Counsel, Hartford, for appellee (named defendant).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

KING, Associate Justice.

Dr. Charles S. Bailey-Gates, a dentist, desired to erect a building in West Hartford. He intended to use the first floor for dental offices, at least in part for his own practice, and the second floor as a four or five-room residence apartment which he did not intend personally to occupy. A two-family dwelling house, presently on the property, is a nonconforming use in a residence B zone ¹ and is to be demolished, and the new building is to be erected in its place. The plaintiffs own property one lot away. Dr. Bailey-Gates applied to the zoning board of appeals for a special exception to permit the erection of the proposed structure. The board granted the application 'in accordance with plot plans, floor plan of proposed dental offices, and front elevation of building on file,' stating in its decision: 'After viewing these premises, the Board feels that granting this exception will be in the interest of public convenience and welfare, and will not substantially injure the surrounding property.' The plaintiffs appealed from the action of the board in granting the special exception.

At the outset it must be borne in mind that this case involves, not a variance, but an exception. '[T]he conditions permitting an exception must be found in the [zoning] regulations themselves, and these conditions, if any, may not be altered.' Service Realty Corporation v. Planning & Zoning Board of Appeals, 141 Conn. 632, 636, 109 A.2d 256, 259. '[A] variance is authority extended to the owner to use his property in a manner forbidden by the zoning enactment, while an exception allows him to put his property to a use which the enactment expressly permits.' Ibid.; Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 531, 102 A.2d 316. The authority of the defendant board to grant exceptions is found in § 18(A) of the zoning ordinance, which provides: 'When in its judgment the public convenience and welfare will be substantially served and the appropriate use of neighboring property will not be substantially or permanently injured, the Board of Appeals may in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, authorize special exceptions to the regulations herein established as follows: * * *.' Of the five listed subdivisions, but two are pertinent. These are subdivision (3), under which the board acted, and subdivision (5), which the plaintiffs claim precluded action under subdivision (3). ²

The zoning ordinance, including, of course, § 18(A) thereof, providing for special exceptions, is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed to make its intention manifest. The actual intention, as a state of mind, of the members of a legislative body is immaterial, even if it were ascertainable. Park Regional Corporation v. Town Plan and Zoning Commission, 144 Conn. 677, 682, 136 A.2d 785. An ordinance 'ought to be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.' State ex rel. Rourke v. Barbieri, 139 Conn. 203, 211, 91 A.2d 773, 776.

The plaintiffs claim that § 4 of the ordinance, relating to permitted uses in a residence zone, controls § 18(A), relating to the granting of special exceptions. In the first place, there would be no occasion to apply for an exception if a use was in conformity with the general regulations governing permitted uses in the zone in question. Secondly, subsection (B) of § 4, by its express terms, applies only to residence zones other than 'AAA,' 'AA,' 'A' and 'B,' and since the property in this case is located in a residence B zone, subsection (B) can have no application to this case. Even if that subsection is susceptible of an interpretation which in certain factual situations might lead to a result inconsistent with that reached under subdivision (3) of § 18(A), we would not be warranted in adopting a construction which would distort the clear meaning of § 18(A). The remedy, if any is needed, is in a clarification of the language of the ordinance.

The plaintiffs' main claim seems to be that if subdivision (3) of § 18(A) is construed as authorizing the granting of an exception to permit an office building in any zone, then any exception which could be authorized under subdivision (5) could also be authorized under subdivision (3), so that subdivision (5) would serve no purpose whatsoever. This claim involves a patent non sequitur and is unsound. Section (5) applies only to a building of which the main, principal and dominant use is residential but which has an accessory use as an office of a professional person who resides in the building. The subject matter of subdivision (5) is not professional uses of an office building but professional accessory uses of a residence building. 58 Am.Jur. 969, § 46. An accessory use is a use which is customary in the case of a permitted use and incidental to it. 1 Yokley, Zoning Law & Practice (2d Ed.) § 64 & Ann.Cum.Sup. An accessory use under a zoning law is a use which is dependent on or pertains to the principal or main use. 58 Am.Jur. 969, § 46, & Ann.Cum.Sup. In other words, subdivision (5) is applicable only where the permitted use of the building involved is residential and the accessory use is made by a resident of the building. It has no application to this case, and the board could not have legally acted under it, since Dr. Bailey-Gates has no intention of residing in the building. On the other hand, an office building has not, and in its inherent nature cannot have, as its main, principal and dominant use, that of a residence building. Its main, principal and dominant use must be for offices. Otherwise, it would not be an office building. An office building, not a residence building, is embraced within the provisions of subdivision (3). Whether a building is an office building or a residence building is a question of fact, and under certain circumstances may be a close question. But the mere fact that a building contains both offices and an occupied residential apartment does not, alone, conclusively establish that the building is not an office building. See note, 55 A.L.R.2d 398, 408. The main, principal and dominant use of a building determines its character.

The basic issue before the court below was whether the plaintiffs proved that the action of the board of appeals was illegal. Guerriero v. Galasso, 144 Conn. 600, 606, 136 A.2d 497; Jaffe v. State Department of Health, 135 Conn. 339, 353, 64 A.2d 330, 6 A.L.R.2d 664. Necessarily involved in the board's decision was its finding that the proposed structure, notwithstanding the second-floor residence apartment, was an office building. Since Dr. Bailey-Gates had no intention of living in the proposed building, clearly it was to be erected as a business venture. There was no evidence as to the fair rental value of the...