Chudnov v. Board of Appeals of Town of Bloomfield

• Decision Date: 06 April 1931
• Court: Connecticut Supreme Court
• Parties: CHUDNOV v. BOARD OF APPEALS OF TOWN OF BLOOMFIELD et al.

154 A. 161

113 Conn. 49

CHUDNOV v. BOARD OF APPEALS OF TOWN OF BLOOMFIELD et al.

Supreme Court of Errors of Connecticut.

April 6, 1931

Appeal from Court of Common Pleas. Hartford County; Thomas J Molloy, Judge.

Suit by Morris Chudnov against the Board of Appeals of the Town of Bloomfield and others. From a judgment of the court of common pleas affirming a decision of the Board of Appeals of the Town of Bloomfield and dismissing plaintiff's appeal plaintiff appeals.

Affirmed.

AVERY J., dissenting.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

Where property owner utilized zoning regulations, he could not attack their constitutionality.

Max Adelson, of Hartford, for appellant.

W. Arthur Countryman, Jr., of Hartford, for appellees.

HINMAN J.

On April 12, 1929, the town of Bloomfield, under and pursuant to chapter 242 of the Public Acts of 1925 (now chapter 29 of the General Statutes 1930 [section 423-432]), adopted comprehensive zoning regulations, dividing the town into districts; one, in which the appellant's property is located, being designated as " C Residence Zone." The regulations contain a provision (section II) that " in a Residence Zone, subject to the provisions of Section VI [which allows the continuance of existing nonconforming uses and buildings devoted thereto and certain changes or extensions no building or premises shall be used and no building shall be erected or altered which is arranged, intended or designed to be used except for one or more of the following uses: (1) Dwellings *** (8) Farming, truck gardening, nurseries or greenhouses." Other provisions deemed germane to the present discussion will be mentioned hereafter.

Subsequent to the enactment of these regulations, the appellant made application for a permit for the erection, on his land, of a dwelling house and a poultry house for the accommodation of 800 to 1000 hens. The building inspector refused to grant a permit for the proposed poultry house, and was sustained, after hearing, by the board of appeals: the regulation above quoted being interpreted as precluding the raising of poultry as a business, unconnected with other farming activities, as proposed by the appellant, in a residence zone.

On the appeal from this ruling, the court of common pleas, upon the facts found, some of which are mentioned in the course of this opinion, held that the raising of chickens, as proposed, did not constitute " farming" within the meaning of the regulation above quoted, and that therefore the appellant was not entitled to a permit for the erection of the poultry house, that the action of the board of appeals was not illegal, arbitrary, or unreasonable, and that the regulation in question is constitutional and valid. Judgment was rendered dismissing the appeal. The appeal to this court attacks these several conclusions.

The first question presented is whether, as the appellant claims, the use which he contemplates making of his land constitutes farming, and therefore is permissible in a residence zone under subsection (8) of section II. It is apparent, upon examination of the available definitions of " farming," that the dominant and distinguishing characteristic of this occupation, in both the popular and the legal sense of the term, is the cultivation of the soil for the production of crops therefrom. Corpus Juris (volume 25, p. 674) defines it as " the business of cultivating land, or employing it for the purposes of husbandry; the cultivation and fertilization of the soil as well as caring for and harvesting the crops." Most of the judicial definitions have been evolved by the federal courts in the course of determination of the scope, and application to varying sets of facts, of the exemption, under the bankruptcy acts, from adjudication as an involuntary bankrupt, of " a person engaged chiefly in farming or the tillage of the soil." Banker Acts § 4 b (11 USCA § 22 (b). Both in this and other connections a farm has been held to denote a considerable tract of land devoted, at least in part, to cultivation of crops and produce, with suitable buildings. Kendall v. Miller, 47 How. Prac. (N. Y) 446, 448; In re Drake (D. C.) 114 F. 229, 231; 2 Bouvier (3d Rev.) 1190; 3 Words and Phrases. First Series, page 2697. " A farm is, both by the standards and in common acceptation, defined to be a body of land, *** devoted to agriculture, either to the raising of crops or pasturage or both." People ex rel. Rogers v. Caldwell, 142 Ill. 434, 436, 32 N.E. 691, 693.

It is generally recognized, however, that stock raising, dairying, and kindred activities are legitimately to be considered as a part of and included within farming when carried on in connection with and incidental and subordinate to tillage of the soil. " In the vast majority of cases the keeping of a dairy is a mere incident, or, at most, a branch, of farming business; and in such cases it is a misdescription to classify the man as a dairyman, and not as a farmer. The general name of the latter includes the former. *** Doubtless a man might be a dairyman, and not be a farmer, as if he were to build a barn, buy a held of cows, and buy from others the grain and other forage to feed them, and sell their milk or other produce; and if this was his principal business he would not be exempt from proceedings in bankruptcy because he was a farmer. But if, while farming, he establishes, as one of the departments of his industry, a dairy to utilize the products of his farm and convert them to profitable uses, he is none the less a farmer." Gregg v. Mitchell (C. C. A.) 166 F. 725, 727, 20 L.R.A. (N. S.) 148, 16 Ann.Cas. 510. In Re Thompson (D. C.) 102 F. 287, one who used an extensive tract of land for production of small grains and bay and for pasturage, and had thereon a large number of cattle which he fattened for sale by feeding to them the products of his land, buying from others what was needed over and above that produced by himself, was held to be engaged in farming. The general trend of decisions is to this effect. Hart-Parr Co. v. Barkley (C. C. A.) 231 F. 913; Wulbern v. Drake (C. C. A.) 120 F. 493; In re Drake (D. C.) 114 F. 229; In re Brown (D. C.) 251 F. 365; In re Hoy (D. C.) 137 F. 175; Rise v. Bordner (D. C.) 140 F. 566; Flickinger v. First National Bank (C. C. A.) 145 F. 162; Note, 20 L.R.A. (N. S.) 148; Dorsett v. Watkins, 59 Okl. 198, 158 P. 608, 9 A.L.R. 278; 3 Words and Phrases, Third Series, page 550.

This conception of the significance and scope of the term " farming" appears to be practical and fair and, as well, consistent with the recognized and established nature and purpose of zoning regulations-to " promote the morals, safety, welfare and prosperity of the community for which they were adopted and aid in its community development." State v. Hillman, 110 Conn. 92, 107, 147 A. 294. They are to be made " with a view to conserving the value of buildings and encouraging the most appropriate use of land." General Statutes 1930, § 424. " Zoning does no more than apply the rules of good housekeeping to public affairs. It keeps the kitchen stove out of the parlor, the book-case out of the pantry, and the dinner table out of the bed-room." Metzenbaum Law of Zoning, p. 6.

It is apparent that, as a general rule, the limitation of such activities as the raising or keeping of live stock or poultry to subservience to and an incident of the main characteristic of the occupation of farming-the cultivation and production of crops-will obviate, in large measure, or reasonably ameliorate the results, detrimental to the paramount interests and uses of a community or neighborhood of a residential character, which are to be anticipated from such activities when independently conducted. A reasonable coincidence between the quantity of the products of a tract of land and the stock kept thereon involves and assures a reasonable limitation and regulation of conditions injuriously affecting the appropriate use and occupation of adjacent and neighboring properties for residential purposes. For example, as in Gregg v. Mitchell, supra, the keeping of cattle in such numbers, in relation to the size and productivity of the owner's land, as to render such keeping merely an incident of the general operation of the farm, by dissemination of the livestock in pastures, natural distance and comparative isolation of the barns, stables, and yards from neighboring homes, and other similar considerations, obviously would be much less objectionable and inconsistent with the general purposes and uses of a residential community, than the keeping of a like number of cattle upon a lot only large enough to accommodate the stables and their appurtenances and in corresponding relations of proximity to residence properties of others. The same distinction obtains between the maintenance of a poultry house of the size, and a flock of the number contemplated by the appellant, upon a farm of such area and characteristics as to make the poultry operations incidental to the conduct of the farm, as a whole, and the same activities carried on, as proposed, as a sole or principal business on a lot alleged, in the appeal, to be about 200 feet wide in front and 132 feet in the rear, and found to contain less than 3 acres, an area manifestly inadequate and unadapted to farming in any accepted sense of that term.

The limitations inherent in the term " farming" as employed in these and many other zoning ordinances and regulations are indicated and emphasized by the enumeration, with it, of other permitted uses. Here, as in most, are mentioned, " truck gardening, nurseries or greenhouses," all of which, in a degree, involve the tillage of the soil and production of crops, and in that respect are not...