Husti v. Zuckerman Property Enterprises, Ltd.

• Decision Date: 13 May 1986
• Citation: 199 Conn. 575,508 A.2d 735
• Court: Connecticut Supreme Court
• Parties: Louis HUSTI et al. v. ZUCKERMAN PROPERTY ENTERPRISES, LTD., et al.

Page 735

508 A.2d 735

199 Conn. 575

Louis HUSTI et al. v. ZUCKERMAN PROPERTY ENTERPRISES, LTD., et al.

Supreme Court of Connecticut.

Argued Feb. 14, 1986.

Decided May 13, 1986.

Alan Neigher, with whom, on brief, was Judith M. Truitt, Westport, for appellants (defendants).

John H. Welch, Jr., with whom were Jean Maguire, Shelton, and John Bashar, Stratford, for appellees (plaintiffs).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, CALLAHAN and TAMBORRA, JJ.

PETERS, Chief Justice.

The issue in this case is whether enforcement of a zoning regulation prohibiting the use of a country club's property for outdoor concerts or theatrical performances violates rights to free speech protected by the federal and the state constitutions. The named plaintiff, Louis Husti, the acting zoning enforcement officer of the city of Shelton, and the planning and zoning commission of the city of Shelton sought injunctive and other equitable relief to compel the defendants, Zuckerman Property Enterprises, Ltd., and others doing business as the Pinecrest Country Club, ¹ to comply with an order of the zoning enforcement officer concerning the use of the defendants' property. That order, issued in 1979, was upheld in a decision of the Shelton zoning board of appeals. The defendants' appeal to the Superior Court, Glass, J., was, after a hearing, dismissed and this court denied certification. The trial court, Rottman, J., issued the injunction and the defendants have appealed.

The underlying facts are established by the memorandum of decision filed by Judge Glass in the original appeal. The defendants are the owners of a country club located in a part of Shelton that has been zoned as an R-1 residential zone since 1955. In 1970, the management and operation of the country club was taken over by the defendants Robert and Jonathan Zuckerman. They improved the facilities and, in 1975, decided to book outdoor musical events at the club. The concerts were widely advertised, and tickets were sold at the entrance to the club premises. Musical groups performed on a stage with large amplifiers stacked on top or alongside of each other on the stage. The concerts, some of which were held in the early evening and continued into the night, drew thousands of people to the country club. The concerts resulted in considerable traffic congestion and the noise they generated could be heard at great distances.

The Shelton planning and zoning commission concluded, at a special meeting on April 20, 1979, that the country club property "is subject to an existing nonconforming use for picnics and outings only, and does not include concerts or other activities and uses listed in Public Acts 1978, No. 78-202; said activities not being permitted by the current zoning and in violation of Section 41.4 of the zoning regulations." On May 21, 1979, the Shelton zoning enforcement officer issued an order to the defendants that: "You are hereby ordered to cease the use of the property for concerts and theatrical performances and to take such action as may be necessary to cancel any scheduled performances or activities which would be in violation of the Zoning Regulations." The zoning order was upheld by the zoning board of appeals, and by the Superior Court. This court denied certification on September 23, 1980. The order therefore definitively establishes that the activities therein described are beyond the scope of any existing nonconforming use.

Despite the order, the defendants continued to offer live entertainment at the country club. The plaintiffs unsuccessfully sought a temporary injunction prohibiting further concerts and theatrical performances, and the defendants unsuccessfully sought an immediate injunction against the plaintiffs in federal court. Both parties then pursued their claims for permanent injunctions in the trial court before Judge Rottman, who temporarily enjoined the defendants while the claims were pending.

In the hearing before Judge Rottman, the plaintiffs sought enforcement of the regulations whose validity had been established by Judge Glass. The trial court ruled that the plaintiffs were entitled to equitable relief to enforce the zoning regulations without a showing of irreparable harm. General Statutes § 8-12; Johnson v. Murzyn, 1 Conn.App. 176, 180, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). That matter is no longer at issue.

The crucial issue before Judge Rottman, and this court, is a constitutional question concerning federal and state constitutional guarantees of free speech. The defendants claim that the right of free speech encompasses live entertainment such as the concerts that they have staged at the country club, and that Shelton's zoning regulations unconstitutionally infringe on their right of free speech. The trial court upheld the validity of the zoning regulations. It concluded that while the Shelton zoning regulations forbade outdoor live entertainment as a principal use, it permitted such concerts in some zones as an accessory use. It determined that the adoption of the zoning regulations was the result of a substantial concern for adequate land use regulation and that the regulations were not intended to impair free speech in general or the content of a protected form of expression in particular. The court found the zoning regulations to be content-neutral, and a valid "time, place and manner" restriction. It held that the regulations had been narrowly drawn and that they were no more extensive than necessary to serve legitimate zoning interests. On the basis of all of these considerations, the court concluded that "the application of the zoning regulations under the circumstances of this case to the Defendants' property is not unconstitutional."

I

The first issue that we must resolve is the defendants' claim of a violation of their federal first amendment right to free speech. This claim involves an inquiry into the defendants' own constitutional rights and into the claimed facial invalidity of the Shelton zoning regulations. We do not find it persuasive.

A

In reviewing the defendants' federal claim, we first note that there is little question that local governments possess the constitutional authority to regulate the use of land. We have held on numerous occasions that zoning restrictions, so far as they reasonably promote public health, safety, and welfare without depriving landowners of all economically viable use of their property, are constitutional even though the effect of the restrictions may be to limit the exercise of private property rights. See, e.g., Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151, 365 A.2d 387 (1976); St. John's Roman Catholic Church Corporation v. Darien, 149 Conn. 712, 722-23, 184 A.2d 42 (1962); Poneleit v. Dudas, 141 Conn. 413, 417-18, 106 A.2d 479 (1954); see also Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). When zoning law constricts the realm of permissible expression, however, we employ a heightened level of scrutiny to determine whether the law is valid under the first amendment to the United States constitution. The parties in this case agree that entertainment, including concerts and theatrical productions, is constitutionally protected speech that may be regulated only in certain circumstances and with sufficient justification. See Schad v. Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Erznoznik v. Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). We must decide whether constitutional justification exists in this case for Shelton's exclusion of outdoor entertainment from a residential area.

We begin our inquiry by observing that the Shelton zoning plan does not regulate speech on the basis of its content. The regulations prohibit all outdoor entertainment, regardless of its message, in the residential zone that contains the defendants' club. Nothing in the record indicates that the city government is using zoning to stifle expression that it deems distasteful. Instead, the zoning restriction represents an attempt by the zoning board to confine the presentation of outdoor concerts to sections of the city that are well suited to accommodate the secondary effects of such activities. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984).

The United States Supreme Court has recently held that a content-neutral zoning regulation that restricts the permissible time, place, and manner of protected speech is constitutional under the first amendment if the regulation "is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication." Renton v. Playtime Theatres, Inc., --- U.S. ----, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); see also Clark v. Community for Creative Non-Violence, supra; Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 807, 104 S.Ct. 2118, 2130, 80 L.Ed.2d 772 (1984); Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 649, 654, 101 S.Ct. 2559, 2564, 2567, 69 L.Ed.2d 298 (1981); Friedson v. Westport, 181 Conn. 230, 235-36, 435 A.2d 17 (1980). Our review of the trial court's findings, and of the underlying record convinces us that both criteria were satisfied in this case.

A city has undeniably important interests in protecting the character of its residential neighborhoods and in promoting the health, safety, and welfare of its citizens. See Belle Terre v. Boraas, 416 U.S. 1, 5-6, 94 S.Ct. 1536, 1539, 39 L.Ed.2d 797 (1974); Berman v. Parker, 348 U.S. 26, 31 -33, 75 S.Ct. 98, 101-02, 99 L.Ed. 27 (1954). As Justice Marshall has observed, "[zoning] may indeed be the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes...