Calve Bros. Co. v. City of Norwalk

• Decision Date: 17 July 1956
• Citation: 124 A.2d 881,143 Conn. 609
• Court: Connecticut Supreme Court
• Parties: The CALVE BROTHERS COMPANY v. CITY OF NORWALK. Supreme Court of Errors of Connecticut

Page 881

124 A.2d 881

143 Conn. 609

The CALVE BROTHERS COMPANY v. CITY OF NORWALK.

Supreme Court of Errors of Connecticut.

July 17, 1956.

John Keogh, Jr., Norwalk, with whom, on the brief, were Walton Clark, Jr., Bridgeport, and John J. Relihan, Norwalk, for appellant (plaintiff).

C. Driscoll Grimes, Greenwich, with whom were Harry E. Peden, Jr., Greenwich, and, on the brief, John J. Sullivan, Greenwich, for appellee (defendant).

Before BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ., and COMLEY, Superior Court Judge.

BALDWIN, Associate Justice.

The plaintiff brought this action for an injunction to restrain the enforcement of an ordinance of the city of Norwalk regulating the removal of soil for sale or for use except on the premises and providing penalties for its violation, and for a declaratory judgment that the ordinance is not constitutionally valid. The court held the ordinance valid, sustained the action of the council of the city taken pursuant to it and refused to issue an injunction. The plaintiff has appealed.

The plaintiff has assigned errors in the finding. Our concept of the case renders of no avail any of the corrections in the finding suggested by the plaintiff, for reasons which will appear in the discussion of the claims made with respect to the validity of the ordinance and the action of the common council.

A summary of the facts is as follows: The plaintiff owns a tract of land, approximately 9.9 acres in extent, on the south side of Fillow Street and the west side of Five Mile River, in Norwalk. The land consists of an open field more or less level and high along its westerly boundary but with a gradual slope toward a north and south certer line, where it drops off steeply to another substantially level area which borders the river and is approximately 100 feet in width. On November 2, 1954, when the proceedings which culminated in this action began, the land was located in an AA residential zone under the zoning regulations of Norwalk. The general neighborhood is a well-established residential area. There is a public school about a mile and a half distant. A new grammar school is located half a mile south and an eighth of a mile west of the plaintiff's property. Fillow Street is used by a number of school busses and by many passenger and commercial vehicles. The only access to the plaintiff's land would be from Fillow Street just below the top of a rise in that highway and near a curve.

On June 18, 1952, the common council of Norwalk enacted an ordinance entitled 'An Ordinance to Regulate the Removal of Soil for Sale or for Use Other Than on the Premises and Providing Penalties for the Violation Thereof.' The pertinent portions of this ordinance appear in the footnote. ¹ On November 2, 1954, pursuant to § § 1, 2 and 3 of the ordinance, the plaintiff filed an application for permission to excavate and remove gravel from its land. The application was accompanied by a map showing a proposed subdivision of the land which complied with the Norwalk regulations for subdivisions, and also by further surveys and maps showing the existing contour of the land, the proposed contour after the removal of 80,000 to 90,000 yards of gravel, and the profiles of the grades of the streets in the proposed subdivision. The application was referred to the director of planning, which was the customary course. The director had been in the employ of the city for six years and had previously considered similar matters. As a result of his recommendations, the plaintiff filed a new set of plans which called, among other things, for the removal of 45,000 to 60,000 yards of gravel. These plans showed excavations on 4 of the 9.9 acres. After the completion of the proposed excavation, the contour of the land would be changed so that a slope which does not now exist would extend downhill from Fillow Street. The plaintiff proposed to cover this slope with six inches of topsoil which could, unless it was properly seeded, wash off and leave an unsightly condition.

The plaintiff is a general contractor and intends to use the gravel for sale to those with whom it has construction contracts. The removal of the gravel would require the use of power shovels, bulldozers and trucks. The operation could be completed, if necessary, in one year. The director of planning made recommendations for certain restrictions to be contained in any permit which might be issued to the plaintiff. The plaintiff's application and revised plans were referred to the soil removal committee of the council, which held a public hearing on March 2, 1955. The committee recommended that the plaintiff's application be denied. In considering the application, it took into account the amount of gravel to be removed, which an officer of the plaintiff stated would be 60,000 yards, the safety factors involved in the use of Fillow Street by trucks, the land contours, the safety of children, the noise and dust of the operation, drainage, the character of the neighborhood, the depreciation of the value of neighboring properties, as they all might affect the public health and welfare. On March 22, 1955, the mayor and common council held a public hearing. On that occasion there was evidence to support the following: The plaintiff's premises are located in a residential area; the granting of the permit would reduce land values there; the operation would produce health and safety hazards; the use of trucks and bulldozers in removing the gravel would create noise and dust; a definite traffic hazard would be created; the children in the neighborhood and passing the premises would be subjected to traffic and other hazards; there would be drainage problems; and the land after the operations were completed would slope too steeply to hold the topsoil even if it was replaced. The plaintiff was represented at both hearings. The entire membership of the council visited the location. The council voted unanimously, one of its fourteen members being absent, to deny the plaintiff's application.

The plaintiff's first claim is that the ordinance as the council has applied it to the facts of this case is an unreasonable exercise of the police power because the plaintiff is prevented from taking earth products from its land although it is willing to submit to any reasonable regulations if it is allowed to proceed; because the ordinance contains no standards of guidance to temper an uncontrolled exercise of power by the council; and because the action of the council is discriminatory and based upon no reasonable classification for the granting or refusal of a permit. The plaintiff also claims that if the ordinance is valid, the action of the council in denying the application is nevertheless arbitrary, unreasonable and in abuse of its discretion.

It is unquestionably true that any regulation under the police power, for the use of property must have a reasonable relation to the public health, safety and welfare and must operate in a manner which is not arbitrary, destructive or confiscatory. Corthouts v. Town of Newington, 140 Conn. 284, 288, 99 A.2d 112, 38 A.L.R.2d 1136; Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 671, 103 A.2d 535; Len-Lew Realty Co. v. Falsey, 141 Conn. 524, 529, 107 A.2d 403; Gionfriddo v. Town of Windsor, 137 Conn. 701, 704, 81 A.2d 266. We examine the ordinance to decide whether, in its purpose and operation generally, it satisfies the rule. The common council in adopting the ordinance included in a preamble a finding of facts that 'the unregulated and uncontrolled relocation, filling, excavation and removal of soil on a large scale has resulted in conditions detrimental to the public safety, health and general welfare, by interfering with surface water drainage, creating nuisances, creating dangerous open pits attractive to children, depleting natural resources, creating stagnant water pools dangerous to health and lowering the value of property generally.' The plaintiff has not challenged this finding, there is nothing in the record to overturn it, and the court must accept it as it stands. Franklin Furniture Co. v. City of Bridgeport, 142 Conn. 510, 514, 115 A.2d 435; Gionfriddo v. Town of Windsor, supra. Legislation designed to prevent what this ordinance purports to avoid has been sustained in the courts of Massachusetts, New York and New Jersey. Town of Burlington v. Dunn, 318 Mass. 216, 221, 61 N.E.2d 243, 168 A.L.R. 1181, certiorari denied, 326 U.S. 739, 66 S.Ct. 51, 90 L.Ed. 441; Fred v. Mayor & Council of Borough of Old Tappan, 10 N.J. 515, 524, 92 A.2d 473; Lizza & Sons, Inc., v. Town of Hempstead, Sup., 69 N.Y.S.2d 296, 299, affirmed, 272 App.Div. 921, 71 N.Y.S.2d 14.

The plaintiff argues, however, that the ordinance as applied to the plaintiff's situation is not regulatory but prohibitory. The fact that the end result was the denial of the application under the circumstances of this case does not make the ordinance...