Jack v. Torrant

• Decision Date: 21 February 1950
• Citation: 136 Conn. 414,71 A.2d 705
• Court: Connecticut Supreme Court
• Parties: JACK et al. v. TORRANT et al. ZONING COMMISSION OF TOWN OF LITCHFIELD v. TORRANT et al. Supreme Court of Errors of Connecticut

Page 705

71 A.2d 705

136 Conn. 414

JACK et al. v. TORRANT et al.

ZONING COMMISSION OF TOWN OF LITCHFIELD v. TORRANT et al.

Supreme Court of Errors of Connecticut.

Feb. 21, 1950.

Thomas F. Wall, Torrington, for appellants (defendants).

Hugh M. Alcorn, Jr., Hartford, with whom was H. Gibson Guion, Thomaston, for appellees (plaintiff Jack and others).

William M. Foord, Litchfield, for appellee (plaintiff Zoning Commission).

Before BROWN, JENNINGS, DICKENSON and BALDWIN, JJ., and INGLIS, Superior Court Judge.

BROWN, Judge.

These two cases were tried together. In the first, the plaintiffs sought to enjoin the defendants from using their property as an embalming and undertaking establishment, alleging in the first count that this use was violative of applicable zoning regulations, and in the second that it constituted a nuisance. In the second action, the plaintiff zoning commission sought similar injunctive relief against the defendants' violation of the zoning regulations. The court granted a permanent injunction against the defendants in each case and they have appealed from both judgments.

The attack on the finding has been abandoned. The facts are those found by the trial court. On October 8, 1946, the defendants purchased a four-acre tract of land, with an eighteen-room dwelling house thereon, located on the westerly side of North Street in Litchfield and bounded northerly by the property of the plaintiff Jack and southerly by that of the plaintiff Fisher. The defendant Francis L. Torrnat was a licensed undertaker and embalmer. The defendants purchased the property in part to rearrange it into living apartments, but mainly to provide a place where the defendant Francis could carry on his business as an embalmer and undertaker. Under the zoning regulations referred to in the next paragraph, all three properties were in a residence zone wherein the use of property for business purposes was not permissible.

Special Acts, 1939, No. 182, 23 Spec.Laws 127, which became effective May 2, 1939, authorized the town of Litchfield to adopt zoning and incorporated by reference the applicable provisions of chapter 29 of the General Statutes, Rev.1930, as amended. On August 18, 1939, the town of Litchfield effectively voted to adopt the provisions of Special Act No. 182 and thereafter, in pursuance of this vote and act, a zoning commission of seven members came into being. The commission held numerous meetings looking to the ultimate adoption of zoning regulations. On May 17, 1945, it held a meeting and unanimously approved a set of regulations for the town. None had previously been approved by the commission. On June 7, 1945, it again met, made certain slight changes in the regulations approved at the previous meeting, and added to them a provision for their becoming effective as of July 10, 1945. The regulations were published in full in the local newspaper on June 14, 1945. On June 21, 1945, pursuant to due notice given, a public hearing with reference to the proposed regulations was held at which six of the seven members of the commission were present. Many persons appeared and were heard. No objections to the proposed regulations of sufficient force, substance or persuasiveness were advanced, however, to inspire the commission or its members to reconsider them. The commission did not, therefore, again meet to adopt or change the regulations as approved at the meeting of June 7, 1945, and no member of it requested any further meeting.

The court concluded that the zoning regulations so submitted to the voters of the town at the public hearing on June 21, 1945, were properly and lawfully enacted and became effective on July 10, 1945. Whether this conclusion is correct is the first question for determination. It calls for the application to the above facts of § 132e of the 1939 Cumulative Supplement to the General Statutes, which is the pertinent amendment to chapter 29, entitled 'Zoning,' of the 1930 Revision. This section provides in part: 'No such regulation or boundary shall becomes effective or be established until after a public hearing in relation thereto, * * * at which parties in interest and citizens shall have an opportunity to be heard.' The question is: Does the statute require, in order to render the regulations valid and effective, that after the public hearing is had the commission shall vote to adopt them?

In construing a statute where the wording is plain, 'we are not at liberty to speculate upon any supposed intention not expressed in an appropriate manner or to restrict the ordinary import of words used in order to effectuate such supposed intent but 'which the statute in its native form does not express." McManus v. Jarvis, 128 Conn. 707, 711, 22 A.2d 857, 859; State ex rel. Board of Education v. D'Aulisa, 133 Conn. 414, 422, 52 A.2d 636. The word 'effective' is defined as 'able to produce an effect,' but as used here 'emphasizes the actual production of an effect, whose continuance it often suggests; as the law becomes effective at once.' Webster's Collegiate Dictionary (3d Ed.). 'Establish' means 'to * * * enact, or ordain for permanence, as * * * laws, etc.' Id. Applying these definitions, the provision that no zoning regulation 'shall become effective or be established until after a public hearing' can only mean that the action by the zoning commission which actually gives to a regulation its validity and enacts it into law must be taken after the commission has held the prescribed public hearing. This requirement renders action subsequent to the hearing mandatory and of the essence of the procedure prescribed, so that a vote before the hearing cannot be effective. The employment of the negative or prohibitive language and form of the act, expressive of a condition precedent and appropriate to the creation of a limitation of power, confirms the interpretation we have stated. Spencer's Appeal, 78 Conn. 301, 303, 61 A. 1010; Nielsen v. Board of Appeals on Zoning, 129 Conn. 285, 287, 27 A.2d 392. So also does the practical consideration, which must be held to have been within the legislative intent, of affording property owners the protection of the exercise of the composite deliberative consideration and judgment of the commission, formally registered, after its members had the benefit of considering all the claims made and information afforded at the public hearing. See Strain v. Mims, 123 Conn. 275, 280, 193 A. 754. Otherwise such a hearing could serve no purpose.

'The fundamental rule relating to municipal legislation is that an ordinance must be enacted in the manner provided by law.

* * * The rule applicable to the corporate authorities of municipal bodies is that, when the mode in which their power is to be exercised is prescribed * * * that mode must be followed.' Glens Falls v. Standard Oil Co., 127 Misc. 104, 111, 215 N.Y.S. 354, 363. This principle, which is supported by many authorities, is also exemplified in a number of decisions of this court, among which are: Keegan v. Town of Thompson, 103 Conn. 418, 425, 130 A. 707; Sullivan v. Mortensen, 132 Conn. 289, 295, 43 A.2d 731; Rule v. City of Stamford, 121 Conn. 447, 451, 185 A. 178. The plaintiffs contend, however, that upon the facts found the continuing acquiescence by the members of the commission, after the hearing in the votes of approval cast prior thereto obviated the need of a subsequent vote of adoption to make the regulations valid.

This contention cannot prevail. 'It is a well-settled rule that when municipal councils or boards of any kind are called upon to perform legislative acts or acts involving discretion and judgment in administering the public affairs, they can only act at authorized meetings duly held. The council or board must meet and act as a board or council. The members cannot make a valid determination binding upon the corporation by their assent separately and individually expressed.' 2 Dillon, Municipal Corporations (5th Ed.) p. 825, § 501, and see p. 904, § 575; Martin v. Lemon, 26 Conn. 192, 193; Herrington v. District Township, 47 Iowa 11, 13; Forcum v. District of Montezuma, 99 Iowa 435, 439, 68 N.W. 802; Aikman v. School District, 27 Kan. 129, 130; McNolty v. Board of School Directors, 102 Wis. 261, 263, 78 N.W. 439; Kleimenhagen v. Dixon, 122 Wis. 526, 533, 100 N.W. 826; Cleveland Cotton Mills v. Commissioners, 108 N.C. 678, 688, 13 S.E. 271; note, L.R.A. 1915F, 1047; see Attorney-General v. Remick, 73 N.H. 25, 27, 58 A. 871, 111 Am.St.Rep. 594. As the court said in Paola & F. R. Ry. Co. v. Commissioners, 16 Kan. 302, 309, 'Wherever a matter calls for the exercise of deliberation and judgment, it is right that all parties and interests to be affected by the result should have the benefit of the counsel and judgment of all the persons to whom has been intrusted the decision. * * * All the benefit, in short, which can flow from the mutual consultation, the experience and knowledge, the wisdom and judgment of each and all the members, is endangered by any other rule.' Since the zoning commission failed and neglected to pass a vote adopting the proposed zoning regulations after the public hearing of June 21, 1945, as required by law, they never became valid regulations for the town of Litchfield. The court's judgment for the plaintiff zoning commission in the second case is predicated upon the validity of the regulations and is therefore erroneous. The same is true of its judgment in the first case in so far as it relates to the cause of action alleged in the first count.

The remaining question is whether the court erred in rendering judgment in favor of the plaintiffs upon the second count in the first case, which declares that the conduct by the defendants of the embalming and undertaking business, as alleged, constituted a nuisance in fact. An undertaking establishment is not a nuisance per se. Whether it constitutes a nuisance depends upon the facts in the particular case. These...