After the hearing of this cause, it was assigned to me to prepare an opinion reversing the decision of the trial court. After an intensive study of the record, including the comprehensive and persuasive oral opinion pronounced by the trial judge at the close of the trial, I found myself unable to write an opinion to reverse, and accordingly prepared an opinion affirming the judgment appealed from. This opinion did not meet the approval of my associates, and the preparation of the opinion *Page 123 of the court was reassigned to another member thereof, which reassignment resulted in the foregoing opinion. I cannot concur therewith.
The gist of the majority opinion is found in the following two arbitrary conclusions:
"The conduct of such a business violates the terms of the applicable zoning ordinance. The evidence discloses, beyond question, that respondents' business is not a `home occupation,' which may be carried on pursuant to the provisions of the ordinance."
Having carefully read all of the evidence after the hearing before the court, upon reading the first of the above determinative sentences, I was at once compelled to query: What terms of the ordinance are violated? For, having read the entire record before preparing the opinion which was rejected by my fellow judges, I was unable to recall any evidence supporting that sentence, and, after a second careful examination of the ordinance and the oral evidence adduced at the trial, I am now unable to find any evidence which discloses a violation of any terms of the ordinance.
Unlike the usual zoning ordinance, the ordinance here involved contains but few specific prohibitions. The ordinary zoning ordinance achieves the purpose intended by reciting a long list of prohibited uses. Resolution No. 6494, as amended, contains scarcely any other prohibition than an incidental prohibition of "The commercial raising of animals and fowls." Clearly, those terms are not violated by the operation of a restaurant. Instead of specifically forbidding certain uses in a residential district, the framers of resolution No. 6494 merely listed such uses as would be permitted in such a district. At this point, I find it necessary to requote, in part, portions of the ordinance which are quoted in the majority opinion:
"SECTION 6. R-1 RESIDENCE DISTRICT REGULATIONS.
"(A) USES PERMITTED:
"1. One- and two-family dwellings.
"2. Art galleries, libraries, museums. . . .
"5. Churches, schools, colleges, non-commercial playgrounds, . . .
"6. Golf courses." *Page 124
There are seventeen subparagraphs listing "Uses Permitted." We are here primarily concerned with the following paragraph, since the decision of this case turns upon the interpretation and application of its provisions:
"7. Home occupations, (excluding the commercial raising of animals and fowls) offices and studies for any vocation, avocation, trade or profession carried on within a dwelling or in an accessory building by the inhabitant of the main building where only electric power not exceeding one horse power in one unit is used, where no merchandise, equipment, or other articles are displayed or advertised, and where not more than two assistants are employed. Only one (1) sign, not greater than seventy-two (72) square inches in area bearing only the name and occupation shall be allowed where the office of physician, doctor, dentist or other professional health practitioner is located in his or her dwelling or accessory building. The renting of rooms for lodging purposes only for the accommodation of not to exceed four (4) persons in a one-family dwelling, provided no sign for this use is displayed."
As has been hitherto stated, the commercial raising of animals and fowls is about the only use which the ordinance prohibits in "terms." Again, the pertinent query is: What terms of the applicable zoning ordinance are violated by operating a restaurant? I cannot find any such terms; for, certainly, the operation of the restaurant by the respondents does not violate the prohibition of the commercial raising of animals and fowls. There are no terms prohibiting the operation of a restaurant. If the operation of a restaurant be prohibited, it is by inference only, from the fact that it was not specifically listed as a permitted use.
The appellants, in their brief, relied largely upon the case ofDevaney v. Board of Zoning Appeals, 132 Conn. 537,45 A.2d 828, a case where a restaurant use was enjoined. That case is also cited by the majority, but it is not apposite, as the following lines from the opinion in the case show:
"When he bought the property he voluntarily took a chance that he would be permitted to use it for a purpose expresslyprohibited by ordinance." (Italics mine.) *Page 125
In the instant case, a restaurant use is not "expressly prohibited," and no violation of the "terms" of the ordinance is shown.
There is no evidence to the effect that the respondents are employing more than two assistants or using electric power exceeding one horse power in one unit, or that they are displaying or advertising merchandise, equipment, or other articles. These terms of the ordinance were in no way violated.
In delivering his oral opinion at the close of the evidence, the trial judge read subparagraph 7 of § 6 of the ordinance, above quoted, and went on to say:
"Now, I'm forced to the conclusion that the words `home occupation' as used there with the expression in brackets `excluding the commercial raising of animals and fowls' refers to something different than doctor's offices and dentists and other health practitioners. It's a general term. I think you could read that, leave out those words about offices and studios, and it makes sense. `Home occupations . . . for any vocation, avocation, trade or profession carried on within a dwelling or in an accessory building by the inhabitant of the main building where only electric power not exceeding one horse power in one unit is used, where no merchandise, equipment, or other articles are displayed or advertised, and where not more than two assistants are employed.' In other words, you're allowed to have a home occupation that doesn't violate those restrictions.
"Does the running of the kind of an eating place that the defendants are conducting come within those restrictions? Had they stopped with the words `Home occupations,' I would answer no and would be inclined to agree with Mr. Grinstead's point that the tail is wagging the dog. And to say that home occupations means something incidentally done where the main business of the property or the main use of the property is as a dwelling, but the drafters of this ordinance attempted to do something more than that. They attempted to prescribe limitations and say `Home occupations . . . for any vocation, avocation, trade or profession carried on within a dwelling or in an accessory building by the inhabitant of the main building where only electric power not exceeding one horse power in one unit is used, where no merchandise, equipment, or other articles are displayed or advertised, and where not more than two *Page 126 assistants are employed.' It seems to me that the ordinance, itself, gives the test of when the occupation violates the ordinance. If these people were to put out a case of cigarettes and candy bars and chewing gum and pop, or if they didn't live in the building, or if they had more than two assistants, they would be violating the ordinance.
"But in view of the rather loose language of this definition and the fact that restrictions such as these should be liberally interpreted in favor of the property owner, I'm compelled to hold that the operation of this business as the defendants are now operating it and say they intend to operate it is not a violation of the ordinance, that `Abbie's' is a home occupation as contemplated by the ordinance."
Strangely enough, the person most interested in the result of this case is not a party to the action. I refer to Abbie Lunn, who is called, in the majority opinion, "a professional cook." Her life savings are invested in the restaurant venture, and she is a part owner of the eight-acre tract upon which the restaurant is operated. I quote from her testimony:
"Q. Will you state your name, please? A. Abbie Lunn. Q. And do you live out at this place that's just mentioned? A. I do. Q. In the testimony here. And how old a woman are you? A. Fifty. Q. And what's your normal occupation? A. Cooking. Q. How long have you been following that occupation? A. I practiced cooking for 30 years. Q. I see, and when did you come tk Seattle? A. It's just a year ago. Q. Have you any other occupation apart from cooking that you follow? A. No, I do not. Q. Have no other training but that, is that right? A. That's right. Q. And, as a matter of fact, relative to this property that's involved out here, are you a partner of that property? A. I am. Q. And who are the various parties who are interested financially in that property in the family? A. My brother, Walter and my sister, Myrtle. THE COURT: And your sister, who? THE WITNESS: My sister, Myrtle. Q. And yourself, is that right? A. And myself, yes."
On cross-examination, she testified, in part, as follows:
"Q. What was your proportion of expenditure, Miss Lunn, in buying this extra equipment to establish this restaurant; what was your contribution? A. Well, my brother and sister took care of that. Q. Well, you know how much you expended, didn't you, of your own money? A. Oh, yes, I *Page 127 mean I did put some money into it, surely. Q. Well, was that in the purchase of the property? A. The purchase of the property. Q. Was it in rehabilitation of this place in converting it into a restaurant, or was it both? A. Well, I imagine it would be for whatever use they — they had to have it for. Q. Well, how much did you personally expend in your contribution towards this, establishing this restaurant? MR. HORSWILL: You mean — Q. And buying the property? MR. HORSWILL: The whole property? A. You mean how much in — in money? Q. Yes. A. My life's savings. Q. Give us the amount. A. Two thousand. Q. Two thousand dollars. Now, what proportion of that went into the purchase of the property, and what proportion went into the rehabilitation of the property? A. I couldn't tell you that; I don't know. Q. You entrusted that to Mr. Lunn? A. I sure did. MR. BRODBECK: I think that's all.
"REDIRECT EXAMINATION "BY MR. HORSWILL: Q. To get that point straight, Miss Lunn, as I understand the effect of your testimony about what happened is this, that the family had a conversation and decided to buy this piece of property; is that right? A. That's right. Q. And then at that time you also had the purpose in mind of serving meals, is that right? A. Well, yes. They had — they — they felt that it was a — nice for the family to be together, and they wanted some means for which I might make my living out here and be with them. They have their own income, and all they're interested in I being able to make my income off of this. Q. All right. So then did you go into any financial details on what was going to have to be bought apart from the real property, or did you just turn a lump sum over to your brother to let him handle the details on it? A. I did, yes. Q. And he, in other words, handled what that money was spent for whether it went into a refrigerator or whether it went into the purchase of the property, itself? A. That's right. MR. HORSWILL: That's all. THE COURT: From the year's operation did you determine whether it was possible to operate there as you were doing at a profit or whether you could make a living at it? THE WITNESS: Well, no, I haven't so far been able to make what I call a fair living out of it. THE COURT: That's all."
After a second study of the complete record, I am still inclined to the view taken by the trial court, and the more so because the majority opinion in no way refutes it or cites *Page 128 any evidence to support the arbitrary conclusions upon which the overruling of the trial court is based, to wit:
"The conduct of such a business violates the terms of the applicable zoning ordinance. The evidence discloses, beyond question, that respondents' business is not a `home occupation,' which may be carried on pursuant to the provisions of the ordinance."
Again, I query, with respect to the second conclusion: What evidence?
The record does not support either of the above conclusions.
For the foregoing reasons, I dissent from the majority opinion. In my opinion, the disposition of the case as made by the trial court should be affirmed.
January 26, 1949. Petition for rehearing denied.