Spero v. Zoning Bd. of Appeals of Town of Guilford

• Decision Date: 12 February 1991
• Docket Number: No. 14040,14040
• Court: Connecticut Supreme Court
• Parties: Richard SPERO v. ZONING BOARD OF APPEALS OF the TOWN OF GUILFORD.

Page 590

586 A.2d 590

217 Conn. 435

Richard SPERO v. ZONING BOARD OF APPEALS OF the TOWN OF GUILFORD.

No. 14040.

Supreme Court of Connecticut.

Argued Dec. 5, 1990.

Decided Feb. 12, 1991.

Roger Sullivan, Branford, for appellant (plaintiff).

Thomas P. Byrne, Farmington, for appellee (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

GLASS, Associate Justice.

The principal issue in this appeal is whether the defendant, the zoning board of appeals of the town of Guilford (board), unreasonably interpreted the meaning of a Guilford zoning regulation permitting the use of a "food and beverage take-out service from within [a restaurant] building" and excluding "take-out service windows" to prohibit the use of an outside ordering station for the placing of orders for take-out food and beverages. The trial court determined that the board's interpretation of the regulation was reasonable and upheld the board's decision denying the application of the plaintiff, Richard Spero, for a permit to construct such an ordering station outside of his restaurant. We affirm the judgment of the trial court.

The facts giving rise to this appeal are not in dispute. The plaintiff owns and operates a McDonald's restaurant located in a commercial zone in Guilford. In April, 1989, the plaintiff applied to the Guilford zoning enforcement officer for a permit to erect an ordering station outside the restaurant. The proposed ordering station consisted of an outside menu board and intercom system that would enable the plaintiff's patrons to drive up and place take-out orders while remaining in their vehicles. The patrons would then park their vehicles and retrieve the food and beverages ordered by entering and exiting the building through a "take-out" door that the plaintiff proposed to add to his existing facility. ¹

On May 3, 1989, the zoning enforcement officer denied the plaintiff's application for failure to comply with Article II, § 23, Table No. 2b, item 28(a) of the Guilford zoning regulations, which provides in pertinent part: "Restaurants and other Food and Beverage Service Establishments, as follows: a. where customers are served food and/or beverage only when they are seated at tables or counters and at least 75% of the customer seats are located within an enclosed building, which use may include a food and beverage takeout service from within the building (excluding take-out windows) when only incidental to the primary permitted use." (Emphasis added.) The zoning enforcement officer stated as his grounds for denial: "The taking of orders is a part of the service and the Regulation does not provide for any service outside the building."

The plaintiff appealed to the board from the denial of his application. The board conducted a public hearing regarding the appeal on May 24, 1989, and it was agreed that the appeal would be tabled pending receipt of advice from the town's legal counsel. Thereafter, the board submitted this question to counsel: "Whether the Guilford Zoning Regulations permit as part of a restaurant use the establishment of an outside drive-up ordering station where orders are placed from the customer's vehicle. The customer then parks and enters the restaurant to receive his or her order...." In response, counsel advised the board in a letter: "After reviewing the Zoning Regulations, I am of the opinion that the proposed use described herein is not permitted. I agree with the opinion rendered by the Zoning Enforcement Officer...." On June 19, 1989, the board reconvened to consider the plaintiff's appeal. The minutes of the meeting reveal that counsel's opinion letter was read and considered. At the conclusion of the meeting, the board issued a written denial of the plaintiff's appeal stating in pertinent part: "It is the opinion of this Board that the decision of the Zoning Enforcement Officer ... is correct and the Board concurs with this decision."

The plaintiff then appealed to the Superior Court, alleging in part: (1) that the board's determination that the regulation did not permit the use of his proposed ordering station was unreasonable; (2) that the board illegally delegated its decision-making authority to town counsel by allowing counsel to decide his appeal; and (3) that the regulation was impermissibly vague in violation of his federal and state constitutional rights to due process of law. The trial court decided each of these issues against the plaintiff and rendered judgment dismissing his appeal.

Thereafter, the plaintiff petitioned for and was granted certification to appeal from the judgment of dismissal to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023. The plaintiff now claims that the court improperly determined: (1) that the board reasonably interpreted the regulation to prohibit the use of his proposed ordering station; (2) that the board did not illegally delegate its decision-making authority to town counsel; and (3) that the regulation was not unconstitutionally vague. ²

I

The plaintiff's principal claim is that the board unreasonably interpreted the regulation's requirement that take-out service occur within a restaurant building to prohibit the use of his proposed ordering station. In support of his claim, the plaintiff notes that the regulations do not define the word "service," and that one dictionary definition of the word focuses upon the delivery aspect of restaurant service: "[T]he bringing of food and drink to diners seated at a table; the work or activity of waiting at table...." Webster's Third New International Dictionary. He therefore contends that accepting take-out orders, as distinguished from delivering the items ordered, is not part of the "take-out service" that is required by the regulation to occur within his restaurant building. Since the use of the proposed ordering station would not involve delivery of take-out orders outside the building, and the acceptance of such orders would not be accomplished by an impermissible "take-out window," the plaintiff concludes that the board's interpretation and application of the regulation was unreasonable. We are unpersuaded.

"Generally, it is the function of a zoning board or commission to decide 'within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 117, 186 A.2d 377 [1962]; Stern v. Board of Zoning Appeals, 140 Conn. 241, 244, 99 A.2d 130 [1953]....' Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1967)." Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. Id. " '[U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons.... We, in turn, review the action of the trial court.' Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964)." Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). The burden of proof is on the plaintiff to demonstrate that the board acted improperly. Id. Because the record discloses that the board correctly interpreted and applied the regulation, we conclude that the trial court properly determined that the board's decision denying the plaintiff's appeal was not unreasonable, arbitrary or illegal.

The regulation is a local legislative enactment, and in its interpretation we seek to discern the intent of the legislative body as manifested in the words of the regulation. Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823 (1988). Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms. Id.; Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 490-91, 547 A.2d 528 (1988). The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning; Silitschanu v. Groesbeck, 208 Conn. 312, 315, 543 A.2d 737 (1988); Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808 (1984); and any interpretation that would torture the ordinary meaning of the words to create ambiguity will be rejected. DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn.App. 590, 594, 501 A.2d 768 (1985). Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body. See Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 370-71, 585 A.2d 1210 (1991).

We first note that the dictionary definition relied upon by the plaintiff does not conclusively establish that the word "service" in the regulation means only the delivery of take-out food and beverages. That definition clearly concerns service rendered to restaurant patrons who consume food and beverages while seated at tables. The regulation, on the other hand, applies to "take-out" restaurant service. As demonstrated by the dictionary definition of the word "take-out," restaurant service of the take-out type is rendered in connection with "food not to be consumed on the premises." Webster's Ninth New Collegiate Dictionary. More instructive in this case, therefore, is the dictionary definition of the word "service" that is not primarily...