Gendron v. Borough of Naugatuck

• Decision Date: 27 March 1958
• Docket Number: No. 15088,15088
• Citation: 21 Conn.Supp. 78,144 A.2d 818
• Court: Connecticut Court of Common Pleas
• Parties: Joseph GENDRON v. BOROUGH OF NAUGATUCK et al.

Page 818

144 A.2d 818

21 Conn.Supp. 78

Joseph GENDRON v. BOROUGH OF NAUGATUCK et al.

No. 15088.

Court of Common Pleas of Connecticut, Judicial District of

Waterbury.

March 27, 1958.

Joseph N. Perelmutter and Donald J. Zehnder, Seymour, for plaintiff.

Leonard M. Caine, Naugatuck, for defendants.

MEYERS, Judge.

This is an action claiming a declaratory judgment determining whether or not the zoning ordinance of the borough of Naugatuck, passed and adopted on July 14, 1955, is 'legally operative and valid.' A request for certain injunctive relief was subsequently removed from consideration by stipulation of counsel.

The cause heard by this court on March 7, 1958, and in which briefs were filed on March 14, 1958, was brought on October 23 1956, against the borough of Naugatuck, the board of mayor and burgesses, the zoning board of appeals, and a former building inspector now deceased. The plaintiff is one aggrieved by the action of the latter board the legal existence of which is associated with the validity of the zoning ordinance of the defendant borough, the enactment of which is here questioned.

Since counsel have agreed that the question proposed is original that the complainant is a party in danger of loss of property rights and that there is a substantial uncertainty of the legal relations between the parties which requires settlement, and since all persons having an interest in the subject matter of the complaint, including residents, taxpayers, property owners and the general public of the defendant borough have had reasonable notice of the pendency hereof, this court acts in the instant cause. Practice Book, § 277; General Statutes, Cum.Sup.1955, § 3116d; Order of Notice, Return, & Affidavit of Publication (File Item 9).

The matter was submitted to this court on a stipulated statement of facts and an amendment thereto. Made part thereof were statements of authorized officials of newspapers as to the custom and usage in their business with particular reference to acceptance and treatment of notices required by statute to be published. See File Items 12 & 13. Also made part of the stipulations are copies of the zoning ordinance and the charter of the defendant borough. See File Items 14 & 15.

Contained in the stipulated facts are the following: At a session duly called and held on July 14, 1955, the predecessor board of the defendant board of mayor and burgesses adopted the zoning ordinance as stipulated (file item 14), declaring the effective date therefor to be July 19, 1955. No vote was ever taken and recorded by that body or its predecessors adopting the provisions of the statutory enabling act, 'Municipal Zoning and Planning,' General Statutes, chapter 43, as amended in 1953. Action by the defendant board of mayor and burgesses occurred under chapter 43 as if this enabling act had been properly adopted. Similarly, a review of the minutes of all meetings of the defendant board of mayor and burgesses and its predecessors reveals no vote of appointment of that group as the zoning commission in spite of the fact that it acted in the latter capacity. Officially, none of the defendants caused or requested publication of any notice to be placed in any newspapers concerning the public hearing on the proposed zoning ordinance so adopted on July 14, 1955. None of these defendants have knowledge of the actual composition of the mention in news stories of the hearing of January 25, 1955. These stories, it is agreed, contained some references to a public hearing on that date in the Naugatuck town hall and were carried on various pages in the 'Waterbury Republican' in its issues of January 10, 11, 15 and 22, 1955, and in the 'Naugatuck Daily News' in its issues of January 10, 15 and 22, 1955. There was never a paid advertisement inserted in these newspapers, nor was there a return made attesting to the exactness, accuracy or propriety of any notice in connection with the hearing. No publishing of the proposed zoning ordinance occurred prior to the public hearing. The transcript of the hearing of January 25, 1955, disclosed the announcement that further public hearings in connection with the subject matter would be held, but the minutes thereof are nowhere recorded, and there is no evidence that these meetings took place.

In this action, no claim is made that the authors or legislators of the zoning ordinance of the defendant borough either sponsored, proposed or adopted that which in content is impracticable, unreasonable or arbitrary. However, the plaintiff states that the asserted invalidity of the zoning ordinance is associated with the claimed impropriety of the procedural and jurisdictional phrases of its so-called adoption. The plaintiff's claims, applicable to these stipulated facts, may be stated as follows (1) The defendant borough, specifically and formally, failed both to adopt the available statutory enabling legislation and to appoint an official zoning commission, which resulted in an inability to pass a zoning ordinance. (2) A proper legal notice of the public hearing was never given, and, therefore, a jurisdictional defect was created resulting in the invalidity of this hearing.

Only parenthetically is it here stated that the issue testing the legality of the zoning ordinance of the defendant borough, as adopted on July 14, 1955, was raised, inter alia, in a recent action before this court. Nixon v. Gniazdowski, Court of Common Pleas, Jud.Dist. of Waterbury, No. 14825 (Swain, J., Feb. 25, 1957), affirmed 145 Conn. 46, 138 A.2d 796. There was no need, in that particular cause, to dwell at length on other than the determinative issue of nuisance. However, it was of at least portentous significance that the trial judge in that action included in his opinion the following: 'The defendant claims that the zoning regulations are invalid. He introduced evidence in support of his claim. In view of the court's conclusions in this action, it is not necessary to pass on the question of the validity of the regulations. It appears from the evidence that there is a very serious question as to their validity. They were adopted in 1955, and it would seem wise if the Borough gave serious considerations to the question of the validity of the regulations before things become involved.' A-360 Rec. & Briefs 241.

Zoning may be defined as 'a general plan to control and direct the use and development of property in a municipality * * * by dividing it into districts according to the present and potential use of the properties.' State ex rel. Spiros v. Payne, 131 Conn. 647, 652, 41 A.2d 908, 911; Bettman, 'Constitutionality of Zoning,' 37 Harvard L.Rev. 834; Maltbie, 'The Legal Background of Zoning,' 22 Conn.B.J. 2, 5. The justification for zoning in a municipality is that it serves to promote public health, safety, welfare and the prosperity of the community. Devaney v. Board of Zoning Appeals, 132 Conn. 537, 539, 45 A.2d 828. The legal basis of zoning, therefore, is police power, inhering as it does in every sovereignty. It is within the domain of the legislature to announce how and when this force should be brought into use for the protection or advancement of the public good.

Towns, cities and boroughs have no inherent police power. 8 McQuillin, Municipal Corporations (3d Ed.) §§ 25.34, 25.35; 1 Yokley, Zoning Law & Practice (2d Ed.) § 18, n. 9; Florentine v. Town of Darien, 142 Conn. 415, 422, 115 A.2d 328; Strain v. Mims, 123 Conn. 275, 285, 193 A. 754. Authority to originate zoning is not absolute in a municipality. Similarly, when established, it is not without limits. Miller v. Town Planning Commission, 142 Conn. 265, 268, 113 A.2d 504. The prerequisite to any effective municipal zoning action is legislation by the state delegating such power. Other methods exist to effect this end, such as constitutional provisions, charter amendments and special acts. 8 McQuillin, op. cit., § 25.37. However, zoning in a given area usually is originated by benefit of our enabling legislation. General Statutes, c. 43, as amended, Cum.Sup.1953, §§ 280c et seq. By these statutes the granting of this power to a town, city or borough carries its own circumstances and limitations.

This court is mindful that there exist in our law presumptions in favor of the validity of municipal zoning ordinances. Strain v. Mims, supra; Murphy, Inc. v. Town of Westport, 131 Conn. 292, 40 A.2d 177, 156 A.L.R. 568; Hills v. Zoning Commission, 139 Conn. 603, 608, 96 A.2d 212. As it has been observed, the enactment of the zoning regulations with which we are here concerned finds its authority in police power, and because the latter is delegated by the state of Connecticut, it is axiomatic that the defendant borough should have literally complied in the adoption and enactment of zoning with the provisions of the statutes which delegated that power, the so-called enabling legislation. General Statutes, c. 43, as amended, Cum.Sup.1953, §§ 280c et seq.; Alderman v. Town of West Haven, 124 Conn. 391, 397, 200 A. 330; Jack v. Torrant, 136 Conn. 414, 419, 71 A.2d 705; 1 Yokley, Municipal Corporations, pp. 435, 436.

A pertinent provision of § 280c follows: 'Any municipality may, by vote of its legislative body, as defined in section 391c, adopt the provisions of this chapter and exercise through a zoning commission the powers granted hereunder.' Section 391c defines 'legislative body' in a borough to be the board of burgesses.

It must be considered that the clerk of the defendant borough has always had the duty of recording and keeping records of votes and proceedings of the defendant board of mayor and burgesses and its predecessors. It is further provided in the borough's charter that such records are competent evidence. See 'An Act Establishing the Borough of Naugatuck,' 11 Spec.Laws 190, § 12 (Jan., 1893). There is no evidence that this duty of this office was not properly performed. As previously stated, a complete review of all...