Edward Balf Co. v. Town of East Granby
| Citation | 207 A.2d 58,152 Conn. 319 |
| Parties | The EDWARD BALF COMPANY v. TOWN OF EAST GRANBY et al. Supreme Court of Errors of Connecticut |
| Decision Date | 20 January 1965 |
| Court | Connecticut Supreme Court |
David M. Shea, Hartford, with whom was Raymond J. Devlin, Jr., Hartford, for the appellant (plaintiff).
Edward H. Kenyon, Hartford, for the appellees (defendants town of East Granby et al.), and Morton C. Hansen, Jr., Simsbury, with whom was Thomas S. Whitman, Simsbury, for the appellees (defendants Adelaide M. Millea et al.).
Before KING, C. J., and MURPHY, ALCORN and COMLEY, JJ., and SHANNON, Superior Court Judge.
The plaintiff sought a declaratory judgment determining whether it had the right to use certain land owned by it in East Granby for the operation of a quarry and stone crushing plant. It has appealed from a judgment for the defendants.
The finding, which is subject to no material correction, may be summarized as follows: Between 1917 and 1955, the plaintiff acquired 336 contiguous acres of land at various times and from various owners. Running north and south through this land is a ridge which contains substantial quantities of rock suitable for quarrying. At some points, this ridge rises to a height of 200 feet, and at certain locations, its westerly face is extremely precipitous. For about six months in 1928 or 1929, the northerly end of the ledge was used as a quarry. No other use has been made of the land, and most of it is heavily wooded. In 1941, East Granby adopted zoning regulations, but no zoning districts were established. All business uses required a special permit. Under the 1941 ordinance, the plaintiff, on January 13, 1956, applied for a permit to operate a quarry and a stone crushing plant on its land. The application was denied on March 30, 1956, and no appeal was taken by the plaintiff. After a disastrous flood in 1955, there was agitation for a general, comprehensive plan of development and a new zoning ordinance. To that end a professional consultant was engaged, and there was much activity in the preparation of maps, plans and regulations as well as many meetings with various groups of citizens. The new ordinance was adopted at a town meeting on March 26, 1956. Most of the plaintiff's land was placed in an agricultural zone in which no industrial uses such as quarrying were permitted. Most of the central area of East Granby lies in this agricultural zone.
This action for a declaratory judgment was commenced on April 6, 1956. At about the same time, the plaintiff took an appeal from the action of the zoning and planning commission on March 26, 1956, in adopting the new ordinance, the plaintiff's claim being that the procedure then followed did not comply with the statutory requisites. The appeal and this action were tried together as companion cases. The appeal was sustained on the basis of the procedural defects claimed by the plaintiff, and no appeal was taken by the town from that judgment. Judgment in the present action was rendered for the defendants on the ground that the invalid ordinance had been cured by its readoption, with certain amendments and revisions, on May 31, 1956, September 23, 1957, and August 9, 1962. On June 12, 1957, the plaintiff applied to the zoning and planning commission for a change of zone and, at the same time, to the zoning board of appeals for a variance. Both applications were denied, and the plaintiff did not appeal.
It is the plaintiff's claim that since the ordinance in effect when this action was commenced was invalid, no subsequent readoption, however valid, could affect this pending action. It is true that the legislature is presumed to intend that statutes affecting substantive rights do not affect pending actions unless a contrary intent appears. Reese v. Reese, 136 Conn. 191, 194, 70 A.2d 123. In general, that rule also applies to municipal ordinances. See MacKenzie v. Town Planning & Zoning Commission, 149 Conn. 678, 683, 183 A.2d 619. On the other hand, in the case of actions praying for a declaratory judgment or injunctive relief, since the remedy sought is prospective, the right to such relief is determined by the situation which has developed at the time of trial and not by that existing at the time the action was begun. Holt v. Wissinger, 145 Conn. 106, 115, 139 A.2d 353; Town of Newington v. Mazzoccoli, 133 Conn. 146, 150, 48 A.2d 729.
That the court in an action for a declaratory judgment or a suit for injunctive relief will look at the facts existing at the time of trial is more just than unjust. The remedy of a judicial declaration of rights is to inform parties of their rights and duties so that there may be an orderly settlement of their disputes. The dispute should not be settled on the basis of a situation which no longer exists. Also, since zoning regulations are presumed to be for the welfare of the entire community, the mere institution of a legal proceeding to determine the plaintiff's rights should not be allowed to 'freeze' his rights and possibly upset the development of a community according to its comprehensive plan.
In at least three prior cases, this court has held that even the filing of an application for a permit did not restrict the right of a zoning and planning commission to amend an ordinance by changing the grounds for approval of the permit. In MacKenzie v. Town Planning & Zoning Commission, 149 Conn. 678, 183 A.2d 619, an ordinance restricting the approval of locations for the sale of liquor to those locations not within 1000 feet of other outlets was enacted after the plaintiff had made application for approval of a location within 1000 feet of another outlet. The court held that it is the law at the time of the denial and not that at the time of the filing of the application which applies when applications under zoning regulations are being considered. To the same effect is McCormick v. Stratford Planning & Zoning...
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