Clark v. Town Council of Town of West Hartford

• Decision Date: 24 July 1958
• Citation: 144 A.2d 327,145 Conn. 476
• Court: Connecticut Supreme Court
• Parties: Everett A. CLARK et al. v. TOWN COUNCIL OF the TOWN OF WEST HARTFORD et al. Supreme Court of Errors of Connecticut

Page 327

144 A.2d 327

145 Conn. 476

Everett A. CLARK et al. v. TOWN COUNCIL OF the TOWN OF WEST HARTFORD et al.

Supreme Court of Errors of Connecticut.

July 24, 1958.

Peter B. Sullivan, Hartford, for appellant (named plaintiff).

Frederick U. Conard, Jr., Hartford, for appellee (defendant Five City Plaza, Inc.), with whom were Maurice J. Sponzo, Corp. Counsel, Hartford, and, on the brief, Samuel Freed, Asst. Corp. Counsel, Hartford, for appellees (named defendant and others).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

BALDWIN, Associate Justice.

The named plaintiff has appealed from a judgment of the Court of Common Pleas dismissing the plaintiffs' appeal from the action of the defendant town council of West Hartford in approving a change of zone of land of the defendant Five City Plaza, Inc., hereinafter referred to as the corporation. Its land is located on the southerly and easterly sides of New Britain Avenue as the avenue turns south at 'Corbin's Corner' in the southwestern part of West Hartford near the town lines of Newington and Farmington. The tract contains approximately thirty-seven acres, over three acres of which are already zoned for business. The remaining portion is zoned for residential purposes. The plaintiffs' properties are situated in adjacent areas zoned for residential purposes.

On March 8, 1956, the corporation petitioned the town plan and zoning commission for the approval of a subdivision development plan for a regional shopping center, and a map showing the proposed plan was submitted to the commission pursuant to § 15 of the zoning ordinance of the town. The commission held an extended public hearing, made modifications in the plan and imposed conditions upon the acceptance of it, all of which were noted upon the map submitted with the petition. On September 29, 1956, by a vote of three to one, with one member of the commission absent, it recommended approval of the plan as modified. In the course of its consideration of the plan, the commission had referred the question of the appropriate use of the land involved to the town development commission, and it had advised that the proposed development at the indicated location was 'the best possible use for this land.' The proceedings of the town plan and zoning commission show that a majority considered that the proposed use 'was an appropriate use.' They also record the commission's view that the traffic to and from the proposed shopping center would not place an undue burden upon local streets and that the opportunities for such a commercial development at other strategic locations in the town were lacking. The principal changes made by the commission were the elimination of a so-called tire and battery shop, which it felt would be a traffic hazard as well as unattractive in appearance, and the reduction of the floor area of the proposed buildings. Changes were also made in the location of the access roadways and the control of the traffic thereon, in the interests of traffic safety. Maximum building heights were fixed to control the number of stories. It can be assumed that these changes were made in the interests of the surrounding residential properties. One member of the commission reported his dissent, in which he stated that the proposed development was not in accord with 'a comprehensive plan for the general area involved.'

On October 3, 1956, the written recommendations of the commission, together with the map of the subdivision development plan showing the changes made by the commission, were submitted to the town council. The plan as submitted called for a commercial development consisting of one two-story and two one-story buildings with a paved parking area to accommodate about 2500 automobiles. The buildings were intended to house a large department store, a supermarket, and smaller shops. Portions of the land bordering on neighboring properties were set apart as buffer strips. Provision was made for planting these strips with trees and shrubs to screen the commercial buildings and activities from view at the sides and rear. The town council, after lengthy public hearings and consideration, approved the plan by a roll call vote of five to two. The effect of this action was to create a special commercial zone subject to regulations peculiar to that zone.

The constitutional validity and the legality of the council's action under the statutes pertaining to zoning in West Hartford and under § 15 of its zoning ordinance are challenged. The council was both the legislative body and the zoning commission of the town. Sullivan v. Town Council of the Town of West Hartford, 143 Conn. 280, 288, 121 A.2d 630. It derived its zoning powers from special legislation. 19 Spec. Laws 934, §§ 1-6; 20 Spec. Laws 188; 22 Spec. Laws 473, §§ 172, 173. This legislation gave it power to create zoning districts and to regulate the use of buildings and lands in those districts. It is specifically stated that 'such regulations shall be uniform for each class or kind of buildings or structures throughout each district, but the regulations in one district may differ from those in another district.' 19 Spec. Laws 935, § 2. The following declaration of legislative policy and standards in the adoption of zoning regulations appears: 'Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such town.' Id., 935, § 3. The council was to provide for the manner in which regulations and zone boundaries were to be enforced and amended. 22 Spec. Laws 473, §§ 172, 173. The provisions of this special legislation closely parallel the general provisions relating to zoning contained in the General Statutes. General Statutes, § 837, as amended, Nov. 1955 Supp., § N10. Special legislation also authorized the appointment of a town plan and zoning commission. 22 Spec. Laws 470, § 157. The powers and duties of this commission included the power to 'prepare and adopt plans for the redevelopment and improvement of districts or neighborhoods which, in its judgment, contain special problems or show a trend toward lower land values.' 26 Spec. Laws 872, § 2; see 22 Spec. Laws 470, §§ 158, 159.

The council, having previously zoned the town, adopted the present zoning ordinance on August 6, 1945, upon recommendation of the town plan and zoning commission. Section 15 of this ordinance, as amended on December 12, 1950, is set forth in the footnote. ¹ It was by virtue of this section that the town plan and zoning commission recommended the plan for the development of the corporation's land at Corbin's Corner. The action of the council upon this recommendation is the subject of the present attack.

It is axiomatic that 'all private property is held subject to the police power of the state.' Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 671, 103 A.2d 535, 546. When and how that power will be exerted is for the legislative body to decide, and courts can interfere only where the action taken fails to serve a legitimate public purpose or interferes with private rights in an unreasonable, discriminatory or arbitrary fashion. State v. Gordon, 143 Conn. 698, 703, 125 A.2d 477. Zoning legislation, be it statute or ordinance, to be constitutionally valid must serve some phase of the public health, safety, convenience or welfare in a reasonable, impartial and considerate way. Corthouts v. Town of Newington, 140 Conn. 284, 288, 99 A.2d 112, 38 A.L.R.2d 1136; State v. Hillman, 110 Conn. 92, 100, 105, 147 A. 294. If the legislation is an ordinance, it must comply with, and serve the purpose of, the statute under which sanction is claimed for it. Fairlawns Cemetery Ass'n, Inc., v. Zoning Commission, 138 Conn. 434, 440, 86 A.2d 74. When the issue whether the zoning legislation does serve the public welfare is fairly debatable, courts cannot place their judgment above that of the legislative body which enacted it. State v. Hillman, supra; Poneleit v. Dudas, 141 Conn. 413, 418, 106 A.2d 479; Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303. The limit of the exercise of the police power is necessarily flexible. We must consider the constitutional validity of the present zoning legislation in the light of the development of the modern metropolitan area, with its growing population, its heavy traffic and the purchasing habits of its people.

It is charged specifically that § 15 of the ordinance is constitutionally invalid because it is a delegation of legislative power without proper standards to guide its exercise. Section 15 deals primarily with the power of the town plan and zoning commission to make a recommendation upon a proposed subdivision redevelopment plan. The council acts upon this recommendation. In so doing, it proceeds under the zoning ordinance and the special legislation pertaining to zoning. The standards are set forth in the special act. 19 Spec. Laws 935, § 3. The ordinance repeats these standards in its preamble, which states the authority and the legislative policy for the enactment of the ordinance. West Hartford Zoning Legislation & Regs., p. 1 (1945, as amended). 'The challenge of unconstitutional delegation of legislative power is successfully met if the [ordinance] declares a legislative policy, establishes primary standards for...