Shulman v. Zoning Bd. of Appeals of City of Stamford

• Decision Date: 17 January 1967
• Parties: Rebecca SHULMAN v. ZONING BOARD OF APPEALS OF the CITY OF STAMFORD et al.
• Court: Connecticut Supreme Court

Page 380

226 A.2d 380

154 Conn. 426

Rebecca SHULMAN v. ZONING BOARD OF APPEALS OF the CITY OF STAMFORD et al.

Supreme Court of Connecticut.

Jan. 17, 1967.

Julius B. Kuriansky, Stamford, with whom was Joseph P. Zone, Stamford, for appellant (plaintiff).

Theodore Godlin, Asst. Corp. Counsel, with whom, on the brief, was W. Patrick Ryan, Corp. Counsel, for appellee (named defendant).

Franklin Melzer, Stamford, with whom was James F. Simon, Stamford, for appellee (defendant Twin Lakes, Inc.).

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

KING, Chief Justice.

The defendant zoning board of appeals of the city of Stamford, hereinafter referred to as the board, granted an application of the defendant Twin Lakes, Inc., for a special exception to permit the operation of a swim or tennis club on a tract of land on Haviland Road in Stamford. This appeal was taken by the plaintiff as the owner of property adjoining the premises for which the special exception was granted.

In § 3(A)(87) of the Stamford zoning regulations, a swim or tennis club is defined as '(a) voluntary or corporate association owned solely by its members, the objectives, pursuits and purposes of which are social or recreational, operating or formed for the purposes of operating a club on a membership basis and not operated for profit, the principal facilities of which shall be a swimming pool or pools and/or tennis court or courts owned by it and maintained on land owned or leased by it, and which may maintain and operate on the same premises such accessory facilities owned by it as are usually provided by a swim or tennis club. Accessory facilities shall not include bowling alleys.'

Under the provisions of § 19(A)(2) of the regulations, the board is required to hear and decide applications for special exceptions in general, which it may grant under certain conditions set forth in § 19(A)(2)(a). Under § 19(A)(2) (f), the board may permit as a special exception the establishment of a swim or tennis club under the conditions applicable to special exceptions in general together with additional conditions, set forth in fourteen paragraphs of subdivision (f), which apply only to the granting of special exceptions for the establishment of such clubs. These additional conditions fix minimum and maximum acreage, numerical limitations on membership, minimum parking facilities, and setback and side yard requirements for buildings and for activity, longing, and parking areas. They limit overnight accommodations, lights and loudspeakers, and they prohibit the sale of alcoholic beverages and the rental of the facilities to outside organizations and individuals.

Paragraph 12 of subdivision (f) provides that '(t)he Zoning Board of Appeals may impose any other reasonable conditions with regard to the operation of a swim or tennis club including limitation on hours of operation and restriction of commercial facilities.'

The only claim briefed in this court which was raised in the trial court is that, under the quoted provisions of paragraph 12 of subdivision (f), the board was required to impose restrictions on the club's hours of operation, and that its failure so to do invalidated its grant of the special exception.

The use of the word 'may', in paragraph 12 of subdivision (f), is in itself a clear indication that a discretionary power, rather than a mandatory duty, was intended. Throughout the fourteen paragraphs of conditions comprising subdivision (f), the word 'shall' appears frequently, while the word 'may' appears but twice. The words 'shall' and 'may' must be assumed to have been used with discrimination and with a full awareness of the difference in their ordinary meanings. Blake v. Meyer, 145 Conn. 612, 616, 145 A.2d 584; Rubin v. Lipson, 96 Conn. 281, 283, 114 A. 86. Moreover, there is nothing in the regulations as a whole expressive of any contrary legislative intent. See cases such as Miller v. Phoenix State Bank & Trust Co., 138 Conn. 12, 16, 81 A.2d 444.

Although paragraph 12 is placed in a series of standards or conditions which all swim or tennis clubs must meet, it does not itself establish or constitute any standard. Whereas the other paragraphs specify, in precise terms, definite requirements and limitations, paragraph 12 provides that '(t)he Zoning Board of Appeals may impose any other reasonable conditions'. This is not, as claimed by the plaintiff, a standard. Rather, it is a delegation of power to the board to impose reasonable conditions as incident to a grant of a special exception. The purpose of this provision is clear. Where, as here, a special exception, rather than a variance, is involved, the board may impose conditions only to the extent allowed by the zoning regulations themselves. Huhta v. Zoning Board of Appeals, 151 Conn. 694, 697, 202 A.2d 139; Service Realty Corporation v. Planning & Zoning Board of Appeals, 141 Conn. 632, 636, 109 A.2d 256. Without such a grant of power, the board, in allowing a special exception, would be unable to impose a condition even where one was obviously desirable. But the mere fact that the board was given such a power does not require an exercise of that power in every application coming before the board. Nor can the mere fact that this grant of power was placed among a series of mandatory standards change its plain meaning from a grant of power into a mandatory standard. Indeed, as previously pointed out, its language...