Helbig v. Zoning Commission of Noank Fire Dist.

• Citation: 440 A.2d 940,185 Conn. 294
• Court: Connecticut Supreme Court
• Decision Date: 18 August 1981
• Parties: Robert HELBIG v. ZONING COMMISSION OF the NOANK FIRE DISTRICT. Robert HELBIG v. ZONING BOARD OF APPEALS FOR the NOANK FIRE DISTRICT.

Page 940

440 A.2d 940

185 Conn. 294

Robert HELBIG v. ZONING COMMISSION OF the NOANK FIRE DISTRICT.

Robert HELBIG v. ZONING BOARD OF APPEALS FOR the NOANK FIRE DISTRICT.

Supreme Court of Connecticut.

Argued April 10, 1981.

Decided Aug. 18, 1981.

Emmet L. Cosgrove, New London, with whom, on the brief, was Suzanne D. Kitchings, New London, for appellant (defendant).

Frank N. Eppinger, Groton, with whom, on the brief, was Peter N. Bartinik, Groton, for appellee (plaintiff).

Before BOGDANSKI, C. J., and HEALEY, PARSKEY, ARMENTANO and WRIGHT, JJ.

ARTHUR H. HEALEY, Associate Justice.

This case presents two appeals by Robert Helbig from zoning authorities of the town of Noank. The first appeal, instituted in April, 1976 ¹ (the April appeal), arose out of the decision of the zoning commission of the Noank fire district that Helbig's use of his Bayside Avenue property as a commercial boatyard violated the zoning ordinance of the Noank fire district, and the commission's consequent order to its zoning enforcement officer to undertake action seeking a warrant for Helbig's arrest for violating the zoning regulations. This order was issued after the commission, following a hearing, rejected Helbig's claim, inter alia, that his use was a valid nonconforming use. The April appeal, in challenging the commission's action as illegal, arbitrary and in abuse of its discretion, also attacked the zoning ordinance. ²

Thereafter, on April 19, 1976, Helbig appealed to the zoning board of appeals from the zoning enforcement officer's decision that a nonconforming use did not exist on his property. On May 26, 1976, the zoning board of appeals held a public hearing, at which the plaintiff appeared and presented his case. Due to a recorder malfunction, a rehearing was scheduled on July 17, 1976. The plaintiff appeared and presented additional evidence in support of his claim of a "valid, pre-existing, continuous non-conforming use." On July 30, 1976, the zoning board of appeals denied his appeal and affirmed the decision of the zoning enforcement officer and of the commission. On August 17, 1976, Helbig appealed from the decision of the zoning board of appeals (the August appeal). Both the April and August appeals were presented at the same time for determination by the Superior Court, which consolidated the two appeals. The Superior Court sustained the April appeal and determined that the August appeal was moot because of its decision on the April appeal. ³

In deciding the April appeal, the Superior Court permitted the plaintiff to attack the constitutionality of § 13.7 of the zoning ordinance of the Noank fire district, which section pertains to the establishment of nonconforming uses. ⁴ The court concluded that § 13.7 was "invalid due to its total lack of evidentiary standards and due to insufficient guidelines for the commission and the affected property owners." In reaching this conclusion, the court stated that "(t)he language of Section 13.7 which requires 'sufficient proof as the Zoning Commission may require' to prove ... the existence of a nonconforming use must necessarily result in unequal and arbitrary application of the section to affected property owners." ⁵ On this appeal, the defendants ⁶ claim that the trial court erred: (1) in concluding that the plaintiff "could attack the constitutionality of the subject zoning ordinance in the same action in which he sought the benefits of the ordinance" and (2) in "declaring that the subject zoning ordinance section requiring registration of pre-existing nonconforming uses lacks sufficient evidentiary standards to guide the zoning commission and affected property owners."

The defendants state their claim in the August appeal as follows: "Did the trial court err in declaring the plaintiff's appeal from the action of the zoning board of appeals moot because of its decision in the plaintiff's zoning commission appeal when the defendant board of appeals not only ruled on the zoning commission's action based on the ordinance later held to be invalid, but also ruled on a separate issue unrelated to that ordinance-i.e., the zoning enforcement officer's prior issuance of a violation notice to the plaintiff."

We take up first the defendants' claims on the April appeal. Referring to the right of a party to raise the issue of the constitutionality of an ordinance or statute, we have held that a party cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality. See Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 567, 409 A.2d 1020 (1979); Holley v. Sutherland, 110 Conn. 80, 85, 147 A. 300 (1929). Cf. Bruno v. Civil Service Commission, --- Conn. ---, ---, 440 A.2d 155 (1981). This is the rule extant in our zoning cases. See, e.g., J & M Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534 (1968); St. John's Roman Catholic Church Corporation v. Darien, 149 Conn. 712, 717-18, 184 A.2d 42 (1962); Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); Strain v. Zoning Board of Appeals, 137 Conn. 36, 38-39, 74 A.2d 462 (1950), and cases cited therein. Mr. Justice Brandeis, concurring in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936), formulated the rule as follows: "The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits." See Fahey v. Mallonee, 332 U.S. 245, 255, 67 S.Ct. 1552, 1557, 91 L.Ed 2030 (1947); United Fuel Gas Co. v. Railroad Commission, 278 U.S. 300, 307-308, 49 S.Ct. 150, 151-152, 73 L.Ed. 390 (1929).

There are, however, exceptions to such a rule at both the federal and state level. Where compliance with the statute under attack is under compulsion, compliance can hardly be deemed voluntary, and one will not be estopped to challenge the statute. See Begin v. Inhabitants of the Town of Sabattus, 409 A.2d 1269, 1272 (Me.1979); Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass'n, Inc., 245 So.2d 625, 629 (Fla.1971); Donoho v. O'Connell's, Inc., 18 Ill.2d 432, 435, 164 N.E.2d 52 (1960); People v. Arthur Morgan Trucking Co., 16 Ill.2d 313, 317, 157 N.E.2d 41 (1959); 16 Am.Jur.2d, Constitutional Law § 211; 16 C.J.S. Constitutional Law § 89. Stated another way, estoppel will not prevent a challenge to the validity of a statute where there is compliance with a statute that requires a duty mandatory in form, accompanied by penalties for failure to obey its provisions, or which is otherwise coercive; in such cases, the element of voluntary action (or embracing the benefits of such a statute) essential to waiver or estoppel is absent. 16 Am.Jur.2d, Constitutional Law § 211. The unique circumstances of the April appeal with the plaintiff looking directly at a clear and present threat of criminal liability for a visible use of his property which he seriously urged predated zoning, leads us to conclude that he may properly mount his constitutional attack. This matter hardly falls within the aphorism "(u)ndoubtedly, men may not take advantage of a law when it suits them, and then attack it when it does not." See Owens v. Corporation Commission of State of Oklahoma, 41 F.2d 799, 803 (W.D.Okl.1930), and cases cited therein.

Moreover, we note that our estoppel doctrine does not preclude a party from attacking the constitutionality of a statute or ordinance in an independent proceeding. St. John's Roman Catholic Church Corporation v. Darien, supra, 149 Conn. 718, 184 A.2d 42; Florentine v. Darien, supra, 142 Conn. 430, 115 A.2d 328; Strain v. Zoning Board of Appeals, supra, 137 Conn. 40, 74 A.2d 462. The record in this case indicates that the plaintiff has filed an independent declaratory judgment action concerning the constitutionality of § 13.7. ⁷ No action has been taken on this case pending a resolution of the present appeals. We agree with the claim made by the defendants in their reply brief that "these appeals present a situation where further litigation could be avoided by deciding the issue of the constitutionality of § 13.7." Thus, we reach that issue.

Certain circumstances demonstrating the posture of these matters before and during the activities of the zoning commission and the zoning board of appeals may be appropriately set out at this point. The plaintiff maintains that a predecessor in title had purchased the property in question in 1954 and had established a boatyard thereon before the adoption of zoning by the Noank fire district on July 17, 1956. With the passage of zoning in 1956, the premises lay partly in a residential zone and partly in an industrial zone. The plaintiff claims that because of this zoning, the portion used as a boatyard was in a residential zone, and thus became a nonconforming use, while the portion of the premises in the new industrial zone became a conforming use.

Some time later, in 1967, the industrial zone, within which a portion of the premises was located, was eliminated and zoned residential. The plaintiff maintains that the entire use of the property thus became a nonconforming use. On May 1, 1972, the plaintiff entered into a lease-option agreement to purchase this property from the Watrous estate, and he subsequently purchased it on March 3, 1976. ⁸

On June 22, 1974, the zoning ordinance of the Noank fire district was again amended in several respects: (1) the subject premises were designated as "village residential"; (2) § 13.7, concerning the establishment of nonconforming uses, was added to the zoning ordinance; and (3) § 13.2.2 was also added to the regulations. ⁹

After several requests for information regarding the claimed preexisting nonconforming use of the parcel as a commercial boatyard, on November 27, 1974, the zoning enforcement officer sent notices of violation to the plaintiff and the Watrous estate. The zoning enforcement officer stayed action on his violation notices upon the...