Garbaty v. Norwalk Jewish Center, Inc.

• Decision Date: 04 May 1961
• Citation: 148 Conn. 376,171 A.2d 197
• Court: Connecticut Supreme Court
• Parties: Eugene L. GARBATY et al. v. NORWALK JEWISH CENTER, INC. Supreme Court of Errors of Connecticut

Page 197

171 A.2d 197

148 Conn. 376

Eugene L. GARBATY et al. v. NORWALK JEWISH CENTER, INC.

Supreme Court of Errors of Connecticut.

May 4, 1961.

George F. Lowman, Stamford, with whom, on the brief, were Francis J. McNamara, Jr., and George G. Vest, Stamford, for the appellant (named plaintiff).

Robert A. Slavitt and Leonard S. Hermann, Norwalk, with whom, on the brief was Abraham D. Slavitt, Norwalk, for the appellee (defendant).

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

KING, Associate Justice.

This action was originally instituted by some fourteen owners of property in the Shorehaven area of Norwalk. The complaint was in two counts, the first claiming that the use being made by the defendant of its property was a common-law nuisance, and the second claiming that it was a violation of the Norwalk zoning ordinances. The complaint was apparently framed in the light of cases such as Jack v. Torrant, 136 Conn. 414, 416, 71 A.2d 705. Prohibitory injunctive relief was sought. A claim for damages was also included but was not pressed. After a trial in the Superior Court, a regulatory injunction was issued under the first count and the issues were found for the defendant under the second count. The named plaintiff, alone, has appealed, and his assignments of error are directed solely to the issues involved in the second count. In other words, the sole question before this court is whether the plaintiff sustained his burden of proving that the defendant is using its property, in whole or in part, in violation of the zoning ordinances of Norwalk. The plaintiff makes two principal claims. The first is that the former Brush residence, now known as the main building, cannot legally be used other than as a one-family detached dwelling. The second is that the uses which the defendant is making of its property are otherwise in violation of the zoning regulations.

The defendant purchased the property, which then was and still is in an AAA residence zone, on December 30, 1957, from the Brush estate. The property comprises one tract of a little less than three acres on the southerly side of Shorehaven Road, adjoining the plaintiff's property, and another tract of about eight acres on the northerly side of Shorehaven Road, opposite the first tract. The main building on the southerly tract had been solely and continuously used as a residence by Mrs. Brush for over ten years immediately prior to the defendant's purchase of the property. The defendant made alterations in this building to convert it for use as a community center and is now so using it. There is no question that it is not being used as a residence of any kind.

Section II of the zoning regulations was enacted in 1929, but no AAA or AA residence zones were listed in that section, or created, until an amendment in 1946 added them to the original list of zones. Norwalk Zoning Regs. § 2 (1929 as amended). Section II, as so amended in 1946, provides for a total of twelve zones, of which the first six are residence zones. The section at all times has provided that '[n]o building or premises shall be used, and no building shall be erected or altered, except in conformity with the regulations herein prescribed for the zone in which such buildings or premises is [sic] located.' The highest residence zone is the AAA zone, in which what is now the defendant's property was placed in June, 1956.

Section III of the regulations enumerates permitted uses in residence zones. Material portions, in effect both before and after 1946, are quoted in the footnote. ¹ An amendment of § III in 1946 added two paragraphs, covering permitted uses in the new AAA and AA residence zones. ² It will be noted that these paragraphs followed the language already used with respect to A and B residence zones as distinguished from that used with respect to C and D residence zones.

Section III, both prior and subsequent to the 1946 amendment, listed eight numbered types of uses which alone were permitted in residence zones of any class. Following this enumeration were special provisions as to dwellings; these applied, respectively, to particular residential zones. In other words, from the general limitation on permitted uses in all residence zones were carved out certain special limitations as to dwelling houses. Antinozzi v. D. V. Frione & Co., 137 Conn. 577, 579, 79 A.2d 598, involved a strikingly similar problem of statutory construction in connection with an over-all Statute of Limitations for actions sounding in tort and a shorter one for actions sounding in negligence. The special limitations in the regulations in the instant case are of two kinds. One kind was made applicable to A and B residence zones and, after the 1946 amendment, to AAA and AA residence zones. It provided that 'no dwelling shall be erected, altered or used except as a one-family detached house.' The other kind was made applicable to C and D residence zones. It provided that 'no dwelling shall be erected, altered or used for the housing of more' than a prescribed number of families, the limitation on the number varying somewhat in C and D residence zones.

The plaintiff points to the difference in the wording employed in stating the restrictions applicable to dwellings in AAA, AA, A and B residence zones from that employed in stating the restrictions applicable to dwellings in C and D residence zones. He claims that the obvious meaning of the provision applicable to AAA, AA, A and B residence zones is that any dwelling, whether newly built or already existing, can be erected or altered, as the case may be, and can be used, only as a one-family detached house. He concedes that the fair meaning of the provision applicable to C and D residence zones is that if a dwelling is to be built, altered or used 'for housing,' it must be limited to use by not more than a designated number of families, but that if it is not used for housing, it may be altered or used for any 'one or more' of the uses enumerated in § III.

The regulations in question are basically legislative enactments, and in their construction the question is as to the expressed intent. Park Regional Corporation v. Town Plan & Zoning Commission, 144 Conn. 677, 682, 136 A.2d 785. This expressed intent is the intent of these regulations construed as a whole. McAdams v. Barbieri, 143 Conn. 405, 418, 123 A.2d 182, 188. 'Legislative intent * * * is not to be found in an isolated sentence. The enactment must be examined in its entirety and its parts reconciled and made operative so far as possible.' Ibid.

In § III, the special restrictions applicable to the six residential zones are obviously concerned solely with housing. This is particularly emphasized by the use of the word 'dwelling' as distinguished, for instance, from the words 'residence' or 'house.' The special restrictions are...