C. White and Son, Inc. v. Town of Rocky Hill

• Decision Date: 03 June 1980
• Citation: 434 A.2d 949,181 Conn. 114
• Court: Connecticut Supreme Court
• Parties: C. WHITE AND SON, INC. v. TOWN OF ROCKY HILL et al.

Page 949

434 A.2d 949

181 Conn. 114

C. WHITE AND SON, INC. v. TOWN OF ROCKY HILL et al.

Supreme Court of Connecticut.

Argued March 12, 1980.

Decided June 3, 1980.

Richard P. Heffernan, West Hartford, with whom, on the brief, were Joseph A. Hourihan and Stephen J. Duffy, West Hartford, for appellant (plaintiff).

Robert F. Stengel, Hartford, for appellees (defendants).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

COTTER, Chief Justice.

The plaintiff, C. White & Son, Inc., appeals from a judgment of the Superior Court, denying a permanent injunction against the defendant town of Rocky Hill. The plaintiff, which is engaged primarily in the petroleum hauling business, sought to enjoin the defendants from enforcing a town ordinance restricting a designated class of commercial truck traffic from using Forest Street in Rocky Hill except while on a trip with a point of origin or destination on Forest Street. The sole issue raised by the plaintiff on this appeal is whether the town of Rocky Hill had the statutory authority to enact the town ordinance.

The trial court's memorandum of decision, together with its finding of facts; see Karls v. Alexandra Realty Corporation, 179 Conn. 390, 394, 426 A.2d 784; New Haven Water Co. v. North Branford, 174 Conn. 556, 562, 392 A.2d 456; disclose the following facts which are not disputed: On April 3, 1978, the town of Rocky Hill adopted Ordinance # 68-78, ¹ effective May 10, 1978, which prohibited trucks weighing over 6000 pounds from using Forest Street. The plaintiff is located two blocks from Forest Street, a local public residential street four-tenths of a mile in length, on which there are twenty homes. The street, 31.7 feet wide from shoulder to shoulder, has no sidewalks and there is one lane for traffic in each direction.

The plaintiff's equipment includes numerous tractor-trailer trucks which have a gross weight well in excess of 6000 pounds. These trucks, which used Forest Street more than ninety times a week as a route to Rocky Hill's Main Street, caused the residents of Forest Street to complain to city officials because of the trucks' noise, the danger to children and the rattling of houses. A commission was created to study the problem and in 1970 reported that it could not arrive at a recommendation for an alternate route. The only act by the town at that time was the lowering of the speed limit on Forest Street to twenty-five miles per hour.

Subsequently, the defendant municipality developed an industrial park adjacent to the plaintiff's place of business and constructed a new road known as Old Forge Road with two lanes of traffic in each direction which was separated by a median divider. Old Forge Road, which has no residences on it, was specially designed to accommodate commercial traffic.

The plaintiff's trucks have easy access to Old Forge Road, but in using that road as an alternative to Forest Street, the trucks must travel nine-tenths of a mile further to reach the corner of Main and Forest Streets. At the time of the trial court's judgment, the cost to the plaintiff of operating its tractor-trailer trucks was $1.30 per mile.

It is well settled that, as a creation of the state, a municipality can only exercise those powers expressly granted to it by the state. City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481; Pepin v. Danbury, 171 Conn. 74, 83, 368 A.2d 88; New Haven Water Co. v. New Haven, 152 Conn. 563, 566, 210 A.2d 449. The defendant town successfully contended in the trial court that it had authority to enact Ordinance # 68-78 pursuant to General Statutes § 7-194 which provides in part that "all towns, cities or boroughs which have a charter ... shall have the following specific powers in addition to all powers granted ... under the constitution and general statutes: ... (8) to ... control and operate streets ...; (17) to regulate and prohibit the ... use or opening of streets ...; (20) to keep the streets ... free from undue noises and nuisances ...; (21) to regulate and prohibit, in a manner not inconsistent with the general statutes, the operation of vehicles on streets and highways."

The plaintiff argues that the issue in this appeal is controlled by our decisions in Adley Express Co. v. Darien, 125 Conn. 501, 7 A.2d 446, and Darien v. Stamford, 135 Conn. 71, 60 A.2d 764. In Adley, we were confronted with the validity of an ordinance which closed Noroton Avenue in Darien to through truck traffic. Adley Express Co. v. Darien, supra, 125 Conn. 502-503, 7 A.2d 446. In that opinion we determined that there was no other reasonable and practical route through town for certain of the express company's trucks, which would as a result be required to make a considerable detour. Id. The Adley court read General Statutes (Rev.1930) § 1635, the predecessor of present General Statutes § 14-162, ² in conjunction with General Statutes (Rev.1930) § 390, the forerunner of present § 7-148, ³ and determined that "while the state delegated to its municipalities the power to make traffic rules applying to all vehicles alike (presumably in both General Statutes (Rev.1930) §§ 390 and 1635), the special power to regulate motor vehicles was retained by the state with the specific exceptions noted in the statute, § 1635." Id., 505, 7 A.2d 446. The court concluded that the ordinance banning through truck traffic was invalid as contrary to statutory authority. Id., 506, 7 A.2d 446, 447. See General Statutes (Rev.1930) §§ 390, 1635 (Rev.1949 §§ 619, 2485).

Similarly, in Darien v. Stamford, supra, this court held invalid certain regulations of the town of Stamford which sought to restrict through truck traffic within its town limits to two routes. Darien v. Stamford, supra, 135 Conn. 72, 60 A.2d 764. Chief Justice Maltbie, writing for the court, determined that the Adley Express Co. case was controlling because no relevant provisions of the General Statutes had been altered so as to authorize municipalities to establish through truck routes and to exclude those trucks from other routes through such municipalities, and thus to make inapplicable the court's decision nine years earlier in Adley. Id., 74, 60 A.2d 764. The Darien v. Stamford opinion also emphasized that the effect of the Stamford regulations was to leave through truck traffic with no reasonably available alternative route and concluded that "(i)n the absence of a clear expression to the contrary, we would hesitate to attribute to the General Assembly an intent to authorize municipalities to establish through ways for motor trucks which might well interfere so seriously with the normal flow of traffic of that kind." Id., 76-77, 60 A.2d 766-767.

The plaintiff's argument is that the basis for this court's decision in Adley Express Co. v. Darien, supra, was that there exists a distinction between the authority to make traffic rules for all vehicles and the authority to regulate motor vehicles, which is reserved to the state under § 14-162, and that the latter encompasses the power to close a street to a designated class of vehicles. In other words, the plaintiff contends that Adley Express Co. v. Darien, supra, holds that any town ordinance creating a rule of traffic that does not apply to all vehicles alike would be an unauthorized regulation of motor vehicles. The plaintiff further claims that the Adley Express Co. case and its successor, Darien v. Stamford, supra, have not been restricted by the enactment of General Statutes § 7-194, albeit promulgated in 1957; Public Acts 1957, No. 465; nine years after Darien v. Stamford, supra, because that statute grants municipalities no greater power to close streets to a designated class of vehicles than does General Statutes § 7-148, whose forerunner was considered in Adley and Darien. We cannot agree with the position taken by the plaintiff.

Although we concede that the Adley Express Co. decision is susceptible to the broad reading the plaintiff would give to it, ⁴ it is equally apparent that Adley involved a situation where an ordinance sought to prohibit only through truck traffic without giving that traffic a reasonable and practical route through the town. Adley Express Co. v. Darien, supra, 125 Conn. 503, 7 A.2d 446. More significantly, it is also apparent that the ratio decidendi of this court's decision in Darien v. Stamford, supra, involved both the fact that no reasonable alternative route existed and the fact that the traffic and motor vehicles restricted were through trucks. The Darien v. Stamford court, after noting that the Adley Express Co. case was applicable to the situation before it; Darien v. Stamford, supra, 135 Conn. 74, 60 A.2d 764; then went on in detail to describe that situation and concluded: "There is no reasonably available route by which through trucks which are proceeding westerly and which leave the Boston Post Road because they are not able to use the underpass can return to that road other than by the use of Noroton Avenue or some of the streets close to them by the regulations of the town or the city of Stamford. In the absence of a clear expression to the contrary, we would hesitate to attribute to the General Assembly an intent to authorize municipalities to establish through ways for motor trucks which might well interfere so seriously with the normal flow of traffic of that kind." Id., 76-77, 60 A.2d 766-767. In light of the quoted language, Chief Justice Maltbie's opinion in Darien v. Stamford must be accepted as restricting the Adley Express Co. decision to its facts. Thus, since the case before us involves the existence of a reasonable alternative route and traffic other than "through trucks," ⁵ whatever arena of hegemony § 14-162 reserves to the state with regard to the regulation of motor vehicles must be viewed in light of the facts of this case, other pertinent statutes and the relevant principles of statutory construction. See Bahre v. Hogbloom, 162 Conn. 549, 558, 295...