Schwab v. Zoning Bd. of Appeals of Town of Darien

• Decision Date: 25 January 1967
• Citation: 154 Conn. 479,226 A.2d 506
• Parties: Albert J. SCHWAB v. ZONING BOARD OF APPEALS OF the TOWN OF DARIEN.
• Court: Connecticut Supreme Court

Page 506

226 A.2d 506

154 Conn. 479

Albert J. SCHWAB v. ZONING BOARD OF APPEALS OF the TOWN OF DARIEN.

Supreme Court of Connecticut.

Jan. 25, 1967.

George B. Smith III, with whom was Sidney Vogel, Norwalk, for appellant (plaintiff).

Warren W. Eginton, Stamford, with whom, on the brief, was Edward R. McPherson, Jr., Stamford, for appellee (defendant).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

ALCORN, Associate Justice.

The plaintiff has appealed from a judgment of the Court of Common Pleas sustaining a decision of the Darien zoning board of appeals, which in turn had sustained the Darien zoning and building inspector in notifying the plaintiff that he was violating § 220.18 of the zoning regulations by maintaining a dog kennel on his property.

The plaintiff leases property located in what is designated as an R-1/3 residence zone. At the time the notice was served on him by the building and zoning inspector, he owned and kept six dogs within the confines of this property. He had owned some of these dogs for about three years and, during the last year, had sold five puppies from a single litter of eight. The plaintiff claims that he keeps the dogs as a hobby to exhibit at dog shows and that the five puppies were sold, not as a commercial transaction, but because he did not wish to retain all of the litter. No evidence to the contrary is before us.

The R-1/3 zone permits a one-family residence on one-third of an acre of land. Darien Zoning Regs. § 300 (1957, as amended). It is next to the least restricted of five residential zones. The zoning regulations provide that no building shall be erected and no land shall be used for any purpose except in conformity with the regulations for the zone in which it is located. § 403. Section 424 provides that any use not specifically permitted by the regulations is prohibited. Under these regulations no use is permissible within a given zone unless it is expressly authorized. Park Regional Corporation v. Town Plan & Zoning Commission, 144 Conn. 677, 682, 136 A.2d 785.

The uses which are permitted in an R-1/3 zone include all those allowed in the three more restricted residential zones, including enumerated principal uses requiring special permits and enumerated accessory uses. Without listing these, it is sufficient to note that none of them, in express terms, permit the maintenance of a dog kennel either under a special permit or as an accessory use. Farming, as defined in the regulations, is however, permitted in an R-1/3 zone, either as a principal or an accessory use. The plaintiff does not claim to be engaged in farming, but he does rely on that permitted accessory use to justify his maintenance of a kennel on his property. Likewise, it is that accessory use which the zoning and building inspector claimed had been violated. That section of the ordinance reads as follows: 'Section 220.18 Farming: Farming shall include the use of a lot, either as a principal use or an accessory use, for the purpose of producing agricultural, horticultural, floricultural, vegetable, and fruit products of the soil, and shall include the raising of horses and other domestic farm animals. Riding academies, livery stables, dog kennels, the breeding, raising or habitation of furbearing animals, commercial poultry farms, stands for the sale of produce or the commercial processing of the products of the farm, shall not be included.'

The question to be decided is whether that language permits the plaintiff to continue the use which he is making of his property. The adoption of the zoning regulations by the town planning and zoning commission, although local in scope, was basically a legislative process, and in interpreting the language of the regulations, our function is to determine the expressed legislative intent. Park Regional Corporation v. Town Plan & Zoning Commission, supra. The intent of the legislative body is to be found, not in what it meant to say, but in the meaning of what it did say. Connecticut Light & Power Co. v. Sullivan, 150 Conn. 578, 581, 192 A.2d 545; Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn. 341, 344, 170 A.2d 883; Mad River Co. v. Town of Wolcott, 137 Conn. 680, 688, 81 A.2d 119; Lee Bros, Furniture Co. v. Cram, 63 Conn. 433, 438, 28 A. 540.

It is immaterial, for present purposes, whether the word 'kennel' means a collection of dogs or the quarters in which they are housed. State v. Tripp, 84 Conn....