Great Atlantic & Pacific Tea Co. v. Katona

• Decision Date: 25 February 1964
• Citation: 198 A.2d 711,151 Conn. 417
• Court: Connecticut Supreme Court
• Parties: , 7 A.L.R.3d 804 The GREAT ATLANTIC AND PACIFIC TEA COMPANY, Inc. v. Mary A. KATONA et al. Supreme Court of Errors of Connecticut

Page 711

198 A.2d 711

151 Conn. 417, 7 A.L.R.3d 804

The GREAT ATLANTIC AND PACIFIC TEA COMPANY, Inc. v. Mary A. KATONA et al.

Supreme Court of Errors of Connecticut.

Feb. 25, 1964.

John J. Darcy, Bridgeport, on the brief for the appellant (named defendant).

James J. O'Connell and Daniel D. McDonald, Bridgeport, on the brief for the appellants (defendants Grella et al.).

E. Gaynor Brennan and E. Gaynor Brennan, Jr., Stamford, on the brief for the appellee (plaintiff).

Before KING, C. J., and SHEA, ALCORN, COMLEY, and MURPHY, JJ.

ALCORN, Associate Justice.

This is an action in the nature of mandamus. The defendants appeal from a judgment directing the town clerk of Fairfield to certify that the plaintiff's premises are in a location in which the sale of alcoholic liquor is not prohibited by § 3, division 5, subsection 2 of the Fairfield zoning ordinance. ¹ The case was presented on an agreed statement of facts. The named defendant is the town clerk. The plaintiff intends to apply to the liquor control commission for a package store liquor permit. A certificate by the town clerk stating that the sale of alcoholic liquor at the proposed location is not prohibited by the zoning ordinance is customarily required as a prerequisite to action by the liquor control commission on the application. The premises are in a zone in which a package liquor store is a permitted use. There is a restaurant having a full liquor permit, but no package store, within 1500 feet of the entrance to the plaintiff's premises. The town clerk refused to certify the plaintiff's application because of the existence of this restaurant within 1500 feet of the entrance to the plaintiff's proposed location.

The only question on the appeal is the correctness of the town clerk's action. In deciding that the town clerk should issue the certification, the court below relied on Great Atlantic & Pacific Tea Co. v. Scheuy, 148 Conn. 721, p. 723, 167 A.2d 862, p. 863, which construed language in a New Britain zoning ordinance, described as 'far from a model of good draftsmanship.' The phraseology of the ordinance, quoted in the footnote on page 722 of the Scheuy case in 148 Conn., on page 863 of 167 A.2d, is, however, materially different from that of the Fairfield ordinance with which we are now concerned.

The meaning of the word 'such' in the phrase 'sold under any such permit,' as used in the quoted paragraph of the Fairfield ordinance, is the decisive issue. Relying on the Scheuy case, the plaintiff claims that 'such' refers only to a permit of like kind, so that the use of premises for the sale of liquor under a package store permit within 1500 feet of the entrance to premises used under a restaurant liquor permit does not violate the ordinance. The defendants claim, however, that the reference is to all types of permit previously named in the paragraph and that, therefore, a use of premises under a package store permit within 1500 feet of the entrance to premises used under any of the named types of permit, including a restaurant permit, violates the ordinance.

The meaning of 'such' is not to be determined solely by resort to the dictionary definition; we must consider the language of the entire paragraph, the mischief it was designed to remedy and the policy underlying it. Giammattei v. Egan, 135 Conn. 666, 668, 68 A.2d 129; Bania v. Town of New Hartford, 138 Conn. 172, 176, 83 A.2d 165. As a zoning regulation, the paragraph is concerned with the use of land and buildings. Its purpose is not to control competition. On the contrary, its...