Bottone v. Town of Westport

• Citation: 553 A.2d 576,209 Conn. 652
• Decision Date: 17 January 1989
• Docket Number: No. 13370,13370
• Court: Supreme Court of Connecticut
• Parties: Lester BOTTONE, Jr. v. TOWN OF WESTPORT et al. *

Page 576

553 A.2d 576

209 Conn. 652

Lester BOTTONE, Jr. v. TOWN OF WESTPORT et al. ^*

No. 13370.

Supreme Court of Connecticut.

Argued Oct. 13, 1988.

Decided Jan. 17, 1989.

Keith D. Dunnigan, with whom, on the brief, was Stephen L. Savarese, Bridgeport, for appellants (named defendant).

Lawrence P. Weisman, Westport, for appellee (plaintiff).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, GLASS and COVELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The sole issue in this case is whether General Statutes § 7-147, as it existed on January 12, 1988, ¹ was unconstitutional. On January 12, 1988, the trial court, Fuller, J., found that the statute lacked sufficient standards to guide municipalities in enacting waterway protection ordinances under it and thus held the statute to be an unconstitutional delegation of legislative authority. We disagree.

Lester Bottone, Jr., is the record title owner of two building lots in the town of Westport. The two parcels of land abut the town of Norwalk on their westerly side, and a stream passes through one of the lots and near the other. Both lots have frontage on Belaire Drive and slope downhill from the road toward the stream. Although the parcels contain soils designated as inland wetlands under the Inland Wetlands and Watercourses Act; General Statutes §§ 22a-36 through 22a-45; the subdivision in which the lots are located was approved prior to the effective date of the inland wetlands regulations and, therefore, the lots are exempt from those regulations. The town, however, claims that the lots are subject to Westport's Waterway Protection Lines Ordinance (WPLO), Westport Code §§ 148-1 through 148-17, as amended January 14, 1983.

Westport Code § 148-1 sets forth the purpose of the waterway protection lines. ² The ordinance was designed to protect the town's waterways "from activities that would cause hazards to life and property and/or activities having adverse impact upon the flood-carrying and water storage capacity of the waterways, the flood heights and the natural resources and ecosystems of the Town of Westport." Westport Code § 148-1. Section 148-2 of the code defines "waterway" as "[a]ny river, stream, brook watercourse or tributary...." The protection lines under the ordinance are set at the twenty-five year storm flood elevation. Westport Code § 148-3. To protect the waterways, the code prohibits the following activities: "dumping, filling and transferring of any materials and the encroachment by any construction, building or portion of building or other permanent structure(s) within said waterway protection lines." Westport Code § 148-5.

Sections 148-7 through 148-12 control the application and review process for a party who desires to conduct otherwise prohibited activity. In overview, the process involves an application that is reviewed by the flood and erosion control board and the conservation commission. Westport Code § 148-7. The applicant must supply information to show that the proposed conduct will not cause conditions hazardous to life or property and will not have an adverse impact on the town's waterways and natural resources. Westport Code §§ 148-8, 148-9. Without review by a representative town meeting, the decision of the flood and erosion control board and the conservation commission is deemed approved by the representative town meeting. The representative town meeting, however, does have authority to review and reverse a decision by the board and commission. Westport Code § 148-10. An appeal can be taken from a decision of the flood and erosion control board, the conservation commission or the representative town meeting in the manner provided for appeals from a municipal zoning board of appeals pursuant to General Statutes § 8-8. Westport Code § 148-13.

It is undisputed that the plaintiff cannot construct a residence on his property with the required primary and secondary reserve area for the septic system without infringing on the waterway protection lines. The plaintiff applied to the defendant conservation commission for permission to construct a single-family residence on each of his two lots. On November 4, 1986, the commission denied the plaintiff's application "with prejudice" because the proposed construction was inconsistent with the WPLO. The plaintiff filed this action for declaratory relief and simultaneously filed two other actions. In one action, the plaintiff appealed the commission's decision to the Superior Court; Bottone v. Conservation Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV86-0084838S; pursuant to Westport Code § 148-13. The other action was one for monetary damages claiming an unconstitutional taking of property. Bottone v. Westport, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV86-0084910S. At this point, only the action for declaratory relief has been heard. ³

Paragraph seven of the plaintiff's complaint alleged that General Statutes § 7-147, the enabling statute for the WPLO, was unconstitutional in that it violated his rights to due process under the fifth and fourteenth amendments to the United States constitution. Specifically, the plaintiff claimed that the statute "fail[ed] to provide standards or criteria sufficient to guarantee its uniform and consistent application and administration and [was] impermissibly vague." In addition, in paragraph eight of his complaint, the plaintiff challenged the statute on the following grounds: (a) the enabling act was unconstitutional because it was vague, overbroad and devoid of standards; (b) the delegation of power to the town was unconstitutional because it did not define the limits of the authority delegated; (c) the statute amounted to a taking without just compensation; (d) the jurisdiction of the department of environmental protection and inland wetlands agencies preempted regulation of all such waterways and watercourses; and (e) the statute failed to provide for adequate notice and for a public hearing. The plaintiff also challenged the WPLO on these same grounds. The only issue before this court is whether § 7-147 was constitutional. The trial court did not address the legality of the ordinance because it found a more fundamental defect in the enactment of the ordinance--a constitutional defect in the enabling act. See Santoro v. Rockwell, 14 Conn.Sup. 379, 383 (1947). Therefore, we will confine our review to the constitutionality of § 7-147.

Our examination of § 7-147 is guided by the maxim that "[i]n passing upon the constitutionality of a legislative act, we will make every presumption and intendment in favor of its validity...." New Milford v SCA Services of Connecticut, Inc., 174 Conn. 146, 148, 384 A.2d 337 (1977); Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 112, 273 A.2d 880 (1970); Edwards v. Hartford, 145 Conn. 141, 145, 139 A.2d 599 (1958). This strong presumption of validity is particularly applicable to police power legislation. 6 E. McQuillin, Municipal Corporations § 24.31 (3d Ed.Rev.); see also 1 R. Anderson, American Law of Zoning § 3.14 (3d Ed.Rev.1986); 1 P. Rohan, Zoning and Land Use Controls § 1.02 n. 60 (1988 Rev.).

The party challenging a statute's constitutionality has a heavy burden of proof; the unconstitutionality must be proven beyond all reasonable doubt. State Management Assn. of Connecticut, Inc. v. O'Neill, 204 Conn. 746, 758, 529 A.2d 1276 (1987); State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987); University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 390, 512 A.2d 152 (1986); Keogh v. Bridgeport, 187 Conn. 53, 60, 444 A.2d 225 (1982); 1 R. Anderson, supra, § 3.22. Additionally, in a vagueness challenge, such as this, civil statutes can be less specific than criminal statutes and still pass constitutional muster. See State Management Assn. of Connecticut, Inc. v. O'Neill, supra, 204 Conn. at 757, 529 A.2d 1276. To prove that a statute is unconstitutionally vague, the challenging party must establish that an ordinary person is not able to know what conduct is permitted and prohibited under the statute. Id., at 758, 529 A.2d 1276; Gunther v. Dubno, 195 Conn. 284, 297-98, 487 A.2d 1080 (1985). The fact that the meaning of the language is fairly debatable is not enough to satisfy the burden of proof. See Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 23, 523 A.2d 467 (1987); see also 1 R. Anderson, supra, § 3.20.

In order for municipalities to have local control over waterways within their boundaries, the state legislature had to enact a statute authorizing such control. In the absence of an express grant of power from the state, municipalities do not have authority to legislate. Buonocore v. Branford, 192 Conn. 399, 402, 471 A.2d 961 (1984); City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980); see 6A E. McQuillin, supra, § 24.35. There is no question that a state legislature can delegate its authority to municipalities, particularly for local matters pertaining to health, safety and general welfare. Blue Sky Bar, Inc. v. Stratford, supra, 203 Conn. at 19-20, 523 A.2d 467; State v. Gordon, 143 Conn. 698, 706, 125 A.2d 477 (1956); Redevelopment Agency v. Shepard, 75 Cal.App.3d 453, 459, 142 Cal.Rptr. 212 (1977); People v. Moreira, 70 Misc.2d 68, 69, 333 N.Y.S.2d 215 (1972); Treants Enterprises, Inc. v. Onslow County, 320 N.C. 776, 778, 360 S.E.2d 783 (1987); Southern Valley Grain Dealers v. Board of County Commissioners, 257 N.W.2d 425, 434 (N.D.1977); DePetrillo v. Coffey, 118 R.I. 519, 376 A.2d 317 (1977); 6A E. McQuillin, supra, § 24.37. We must now determine what level of specificity is required in a delegation of legislative authority by a civil statute from the state to a municipality, and whether § 7-147 met that standard.

The most often cited rule governing the constitutionality of legislative delegations in Connecticut comes from the 1940 case of State v. Stoddard, 126 Conn. 623, 13...