Dooley v. Town Plan and Zoning Commission of Town of Fairfield

• Citation: 151 Conn. 304,197 A.2d 770
• Court: Supreme Court of Connecticut
• Decision Date: 21 January 1964
• Parties: Frank J. DOOLEY v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD (78978). Thomas J. CARROLL et al. v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FRIRFIELD (79000). Frank J. DOOLEY v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD (79219). Thomas J. CARROLL et al. v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD (79251). Supreme Court of Errors of Connecticut

Page 770

197 A.2d 770

151 Conn. 304

Frank J. DOOLEY v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD (78978).

Thomas J. CARROLL et al. v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FRIRFIELD (79000).

Frank J. DOOLEY v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD (79219).

Thomas J. CARROLL et al. v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD (79251).

Supreme Court of Errors of Connecticut.

Jan. 21, 1964.

Hereward Wake, Westport, for appellant (plaintiff in first and third cases).

Philip Y. Reinhart, Fairfield, for appellants (plaintiffs in second and fourth cases).

John J. Darcy, Bridgeport, for appellee (defendant in each case).

Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.

SHEA, Associate Justice.

In February, 1961, the defendant, after notice and hearing, amended the zoning regulations of Fairfield by creating a new zone called flood plain district. ¹ Thereafter, the defendant changed the zonal classification of an area of about 404 acres from residence B to flood plain district. In the first case, the plaintiff, Frank J. Dooley, both owns and is under a contract of May, 1960, to purchase from Catherine A. Nemesky land which is within the area covered by this change of zone. In the second case, the plaintiffs, Thomas J. Carroll, Patrick L. Carroll, Jr., and Frank W. Carroll, are the owners of land included in the same area. Separate appeals from the action of the defendant in changing the zone were taken to the Court of Common Pleas. Subsequently, in May, 1961, the defendant amended the zoning regulations to forbid the excavation, filling and removal of soil, earth or gravel within the flood plain district except under a special exception. Fairfield Zoning Regs. § 22.3. Separate appeals from the adoption of this amendment were also taken to the Court of Common Pleas and constitute the third and fourth cases. By agreement, all of these appeals to the Court of Common Pleas were tried together. The court rendered judgments dismissing all of the appeals, and from the judgments the plaintiffs have appealed to us. On stipulation of the parties, the appeals to us have been combined.

All of the land included in the change of zone is in the Pine Creek area of Fairfield. Of the 404 acres in the new flood plain district, the town owns 206 acres, the United States government owns 28 acres, and private parties own the remaining 170 acres. South Pine Creek, a tidal stream with an opening about 100 feet wide on Long Island Sound, runs irregularly inland through a part of the area, and water from the creek has overflowed the surrounding land during abnormally high tides. ²

In September, 1960, the Fairfield flood and erosion control board, which had been created under authority of what is now § 25-84 of the General Statutes, declared the 404 acres a flood plain area. A record of the action of that board, including a map and legal description of the property, was sent to the defendant together with a proposal that the zone of the property be changed to a flood plain district. Thereafter, the defendant took the action of which the plaintiffs now complain.

Prior to the change of zone, the defendant, acting as a planning commission, had denied not less than two applications for approval of a subdivision of the Dooley property. The defendant, as a zoning commission, itself had proposed, in 1960 to upgrade the area which is now in the new flood plain district to R-3 residence. This proposal was opposed by the flood and erosion control board and the health department. From the reasons given by the defendant for changing the zone of the plaintiffs' property, it is evident that the report of the flood and erosion control board had a strong influence in the decision.

The plaintiffs claim that the application of the regulations to their property constitutes the taking of property without compensation and without due process of law in violation of the fifth and fourteenth amendments to the constitution of the United States and in violation of § 11 of article first of the Connecticut constitution.

The guiding principles were enunciated in State v. Hillman, 110 Conn. 92, 105, 147 A. 294, 299: 'All property is held subject to the right of government to regulate its use in the exercise of the police power, so that it shall not be injurious to the rights of the community, or so that it may promote its health, morals, safety, and welfare. The power of regulation by government is not unlimited; it cannot * * * be imposed unless it bears a rational relation to the subjects which fall fairly within the police power and unless the means used are not within constitutional inhibitions. The means used will fall within these inhibitions whenever they are destructive, confiscatory or so unreasonable as to be arbitrary.' Justice Holmes, in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322, elaborates on confiscation when he says of the police power: 'When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts.'

The important question to be decided then is whether the situation is one which allows regulation through the process of zoning under the exercise of the police power or whether the regulations adopted are so unreasonable and confiscatory as to constitute for all practical purposes a taking of private property for public use. Corthouts v. Town of Newington, 140 Conn. 284, 288, 99 A.2d 112, 38 A.L.R.2d 1136. Relevant to this determination is the extent to which property values are diminished by the zoning change and its relationship to the health, safety and welfare of the community. Vartelas v. Water Resources Commission, 146 Conn. 650, 654, 153 A.2d 822; Del Buono v. Board of Zoning Appeals, 143 Conn. 673, 677, 124 A.2d 915.

An analysis of the uses permitted under § 22.2 of the zoning regulations in a flood plain district clearly demonstrates that the use of the plaintiffs' land has been, for all practical purposes, rendered impossible. First, to restrict the use of privately owned property to parks and playgrounds bars the development of the land for residential or business purposes and raises serious questions as to the constitutionality of the restriction. See Dunham, 'Flood Control via The Police Power,' 107 U.Pa.L.Rev., 1098, 1108. The practical effect of this limitation on use is to restrict potential buyers of the property to town or governmental uses, thus depreciating the value of the property. Second, the property of the plaintiffs is about half a mile from Long Island Sound, and consequently, the property could not be used for a marina, a boathouse or a landing and dock. Third, the Fairfield zoning regulations contain no definition of a cluhouse. Generally, a clubhouse is defined as a house occupied by a club or commonly used for club activities. Webster, Third New International Dictionary. The definition includes fraternity houses, sorority houses and houses of secret societies and social clubs generally. See Dunkirk Aerie No. 2447, Fraternal Order of Eagles v. Dunkirk, 274 App.Div. 685, 87 N.Y.S.2d 202. Although the term 'clubhouse' may be construed broadly, the presence of one on the plaintiffs' land, considering the acreage involved, would have little effect in preventing substantial diminution in the value of the land. Fourth, paragraph 2 of § 22.2 of the regulations permits the use of the property for wildlife sanctuaries operated by governmental units or nonprofit organizations. Obviously, such a use does not provide the landowner with any reasonable or practical means of obtaining income or a return from his property. Again, this use contemplates a diminution in land value and subsequent acquisition by some governmental agency, either by purchase or by condemnation. Fifth, the regulations also permit farming, truck and nursery gardening. At the public hearing, a real estate expert testified that farming has long since been ruled out in this area. Finally, the regulations also permit motor vehicle parking as an accessory to a permitted use in the flood plain district or an adjacent district. But under § 22.3 of the regulations, the land cannot be filled or paved except by special exception granted by the defendant under stringent conditions, and then only for a limited time.

From this analysis of the regulations, it cannot be questioned that the testimony of the plaintiffs' real estate expert is based on sound observation. He stated that these regulations had a very substantial effect on the value of the property, causing a depreciation in value of at least 75 percent.

The plaintiff Dooley is under contract to purchase the Nemesky property for $80,000. Much of that property is on good high ground and was not under water in the 1938 hurricane. The land could be used for houses which would be readily salable in the price range of $15,000 to $17,000 per unit. Some borrowing and filling might be necessary to develop the property for building purposes; such work could be...