Toffolon v. Zoning Bd. of Appeals of Town of Plainville
| Decision Date | 21 November 1967 |
| Citation | 236 A.2d 96,155 Conn. 558 |
| Court | Connecticut Supreme Court |
| Parties | Louis TOFFOLON v. ZONING BOARD OF APPEALS OF the TOWN OF PLAINVILLE et al. |
James H. Throwe, Hartford, with whom was Samuel H. Teller, East Hartford, for appellant (plaintiff).
Walter H. Scanlon, Plainville, for appellee (named defendant).
Wallace R. Burke, Hartford, appeared for appellee (defendant Hayden).
Before ALCORN, HOUSE, THIM, RYAN and COVELLO, JJ.
The plaintiff is the owner of premises located in an industrial zone on Neal Court in the town of Plainville. The building inspector of the town, who is the zoning enforcement officer, made an investigation of the plaintiff's activities and determined that the plaintiff was manufacturing explosives on his premises in violation of the zoning regulations. On December 27, 1965, the building inspector issued an order directing the plaintiff to cease the illegal manufacturing process immediately. The plaintiff appealed from the order of the building inspector to the zoning board of appeals, hereinafter referred to as the board, and, from the action of the board sustaining the order of the building inspector, he appealed to the Court of Common Pleas, which dismissed his appeal.
The plaintiff makes two claims: (1) The board in sustaining the action of the building inspector acted illegally and arbitrarily. (2) The vote of the board sustaining the order of the building inspector was not validly taken. Section 6 of the zoning regulations of the town of Plainville prohibits in an industrial zone the use of any building or premises for the manufacture or storage of explosives. Section 19 of the regulations provides that the board, after public notice and hearing, may hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the building inspector in the enforcement of the regulations. Accordingly, the zoning regulations, as well as § 8-6 of the General Statutes, entrust to the board the function of deciding, within prescribed limits and consistent with the exercise of 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 and applied it with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 117, 186 A.2d 377, 94 A.L.R.2d 414; Stern v. Zoning Board of Appeals, 140 Conn. 241, 244, 99 A.2d 130. In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594.
From the evidence the board could have found that the plaintiff's process consists of the assembling of small arms ammunition. The plaintiff manufactures the cartridge shells. He purchases in bulk the necessary powder and, without modifying it other than by dividing it into small quantities, loads the cartridge shells with the powder and projectiles. The powder was identified as 'improved military rifle' powder by a witness for the plaintiff. He characterized it as a highly combustible propellant not within the explosive class. At the hearing, the building inspector maintained that the powder used by the plaintiff was an explosive and supported his opinion by an encyclopedia article on explosives, which discussed high and low degrees or classes of explosives. Prior to the hearing, the board had viewed the plaintiff's premises and operations on Neal Court. The board members also knew that five months earlier the board had upheld a determination by the building inspector classifying the same material as a class B explosive and had granted to the plaintiff a variance permitting the storage of that material. The board was not required to accept the highly technical distinction of the plaintiff's witness between a propellant and an explosive. The board could reasonably have concluded that the rapid burning of the powder and gas expansion, which produced the propelling force inside the cartridge, brought the powder within the classification of an explosive. Its action in sustaining the order of the building inspector cannot be held to have been illegal or arbitrary.
The plaintiff claims that the board, in determining whether the use to which he put his premises constituted the manufacture of explosives, was bound to employ the definition of explosives set forth in § 29-83 of the General Statutes. Section 29-83 defines 'explosive' as 'any chemical compound or any mechanical mixture that contains oxidizing and combustible units or other ingredients in such proportions, quantities or packing that ignition by fire, friction, concussion, percussion or detonator may cause such a sudden generation of highly heated gases that the resultant gaseous pressure is capable of destroying life or limb or of producing destructive effects to contiguous objects'. The statute further provides that manufactured articles shall not be held to be explosive when the individual units contain explosives in such limited quantity, of such nature or in such packing that it is impossible to produce a simultaneous or a destructive explosion of such units to the injury of life, limb or property, including fixed ammunition for small arms. The plaintiff claims that, because the end product of his operation is within the statutory exception, the board could not have found that he was using his premises for the manufacture of explosives. With this claim we do not agree. Section 29-83 expressly limits the application of the definition to General Statutes §§ 29-84 to 29-89, inclusive. These statutes are intended to regulate the manufacture, sale, storage, transportation or use of explosives and to minimize the danger to persons and property from the improper storage and use of explosives. Murphy v. Ossola, 124 Conn. 366, 374, 375, 199 A. 648; Currelli v. Jackson, 77 Conn. 115, 122, 58 A. 762. They regulate, not every type of explosive, but only those defined. The exception in the statute does not mean that cartridges are not explosives but only that cartridges are not subject to the provisions of those statutes. This definition is applicable only...
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...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......
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