Jennings v. Connecticut Light & Power Co.

• Decision Date: 09 February 1954
• Court: Connecticut Supreme Court
• Parties: JENNINGS et al. v. CONNECTICUT LIGHT & POWER CO. et al. Supreme Court of Errors of Connecticut

Page 535

103 A.2d 535

140 Conn. 650

JENNINGS et al. v. CONNECTICUT LIGHT & POWER CO. et al.

Supreme Court of Errors of Connecticut.

Feb. 9, 1954.

Hereward Wake, Westport, for plaintiff The Greater Norwalk Improvement ass'n.

John H. Mountain, Westport, for plaintiff City of Norwalk.

John R. Cuneo, Norwalk, for plaintiffs Wilson Point Property Owners' Ass'n, Inc. and others.

Robert B. Seidman, New York City, for named plaintiff and others.

Walter F. Torrance and Walter F. Torrance, Jr., Waterbury, for named defendant.

Leon K. Paris, Norwalk, for defendants The Harbor View Co. and others.

Robert B. Devine, Norwalk, for defendants Stursberg and others.

Before INGLIS, C. J., and BALDWIN, WYNNE, O'SULLIVAN and QUINLAN, JJ.

BALDWIN, Associate Justice.

This is an action for a declaratory judgment. The individual plaintiffs, Herbert Jennings and Priscilla B. Sheldon, are resident taxpayers and property owners in Norwalk. The plaintiffs Wilson Point Property Owners' Association, Inc., and Village Creek Homeowners' Association, Inc., are Connecticut corporations, without capital stock, whose members are owners of real property located at Wilson Point and at Village Creek in Norwalk. The plaintiff The Greater Norwalk Improvement Association is an unincorporated association composed of residents of Norwalk and is devoted to various public purposes, among which is opposition to the encroachment of industry into residential area. The named defendant, a corporation chartered by the legislature, is engaged in generating and distributing electricity throughout the state. 11 Spec.Laws, 158, 17 Sp.Laws, 833, 18 Sp. Laws, 106. The defendants Herbert J. Stursberg, Russell Frost, III, John Canevari, George Brazil and Robert B. Douglas are members of the zoning commission of Norwalk. After the action was instituted, The Harbor View Company, a nonprofit Connecticut corporation whose members are the owners of real estate at Harbor View, and Charles D. Steurer, Jr., a resident taxpayer and property owner at Harbor View, were joined as parties defendant. The city of Norwalk moved to intervene and was made a party plaintiff. The named defendant filed a counterclaim against the defendants The Harbor View Company and Charles D. Steurer, Jr., in which it also asked for a declaratory judgment.

After the pleadings were closed, the parties entered into a stipulation reserving the cause to this court for its advice on the questions set forth in the footnote. ¹ It was further stipulated that the facts should be those admitted in the pleadings and contained in exhibits designated A to J inclusive. These exhibits, in substance, comprise the record of the proceedings before the zoning commission of Norwalk and include a transcript of the testimony taken at the hearing and the order issued by the commission.

The facts are as follows: The defendant The Connecticut Light and Power Company, hereinafter called the company, purchased a substantial area of land in the southern part of Norwalk. A portion of this land, known as Manresa Island, is a peninsula jutting into Long Island Sound and is almost completely surrounded by water. Most of the land owned by the company, including Manresa Island, is zoned as residence B under the zoning regulations of Norwalk. It is bordered on the north and east by residence B zones and on the west by a light industrial zone. Jennings owns a residence which is located in the industrial zone adjacent to the company's property. Sheldon owns a residence at Wilson Point. The Wilson Point Property Owners' Association, Inc., represents the owners of property at Wilson Point, which is designated under the zoning regulations as a residence A zone. Wilson Point is West of Manresa Island and approximately half a mile distant, measured across the waters of the sound. The members of the Village Creek Homeowners' Association, Inc., own property located at Village Creek, so-called, which is in an area, zoned in part as light industrial and in part as heavy industrial, lying directly west and adjacent to the northerly part of the company's property. The southern end of it is slightly less than a quarter of a mile from Manresa Island. The city of Norwalk owns a public park at Calf Pasture Beach, which lies approximately one mile east of Manresa Island, across the mouth of Norwalk Harbor.

The company purchased its property for the purpose of erecting a steam plant on Manresa Island for generating electricity. It claims that the great increase in population in southwestern Connecticut and the consequent demand for electric current require the expansion of the company's generating facilities. It alleges that electricity can be produced at a lower cost if the generating facilities are located near the area of demand, and a steam plant on Manresa Island is the most feasible and economical method of supplying the increased demand for electric current in southwestern Connecticut. It states that current is presently supplied to customers in this area from the steam generating plant located at Devon in Milford on the Housatonic River by means of cables over a right of way and that it would not be economically feasible to increase these cables or to enlarge the right of way to bring the needed additional current from Devon. The zoning regulations of Norwalk contain no provisions relating to public utilities except as they may be comprehended by the use regulations for the several kinds of zones prescribed by the zoning regulations.

On November 24, 1952, the company, purporting to act pursuant to the provisions of General Statutes, § 5646, brought a petition to the zoning commission reciting that it proposed to erect a steam plant on Manresa Island and that public necessity and convenience required the erection of such a plant. It requested the commission to enter an order regulating and restricting the location of the plant. After a hearing, at which the plaintiffs were represented, the commission found that there was a need for additional electric power in southwestern Connecticut which could be met by the proposed steam generating plant. It entered an order approving Manresa Island as the location for the plant and imposed twenty-three separate specific regulations upon the construction and operation of it. It is not necessary to set forth these regulations in detail. It suffices to state that they dealt precisely with the size, location and landscaping of the plant, the height of the stack, the handling and storage of coal, the prevention of fly ash and smoke, the control of noise, the disposal of waste material and the construction of cables connecting the plant with the inland system, in a manner calculated, in the opinion of the commission, to keep the objectionable features of the plant to a minimum. The plaintiffs claim that a steam plant on Manresa Island will be a source of danger and a nuisance, that it will be deleterious to health, and that it will greatly depreciate the value of their respective properties. They charge that the action of the zoning commission was in violation of the zoning regulations of the city and that the commission is without power to make any order respecting the location of the plant. The defendants The Harbor View Company and Charles D. Steurer, Jr., appealed from the order of the zoning commission to the public utilities commission.

At the threshould of the case, we meet a question of statutory construction. The company's application to the zoning commission of Norwalk for permission to erect a steam plant on its property at Manresa Island purported to invoke the power of that commission, under § 5646 of the General Statutes, to regulate and restrict the location of the proposed plant. The commission conducted its hearing and issued its order as though it had special authority under that statute to do so. The plaintiffs claim that the commission had no special powers to act and that the regulation and restriction of the location of the proposed steam plant was a matter solely within the cognizance of the zoning authorities of the city acting under their general powers and should have been treated as such.

To resolve this issue, it is necessary to determine the legislative intent expressed in § 5646. Mad River Co. v. Town of Wolcott, 137 Conn. 680, 686, 81 A.2d 119; State ex rel. City of Stamford v. Board of Purchase and Supplies, 111 Conn. 147, 161, 149 A. 410. To this end, we look to the wording of the statute, its history and its basic policy, as they may be disclosed by pre-existing legislation and the circumstances that brought about the enactment of the law under consideration. State v. Cambria, 137 Conn. 604, 606, 80 A.2d 516; Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70. The statute is set forth in full in the footnote. ² It first gives the selectmen of any town, the common council of any city and the warden and burgesses of any borough, within their respective jurisdictions, 'full direction and control over the placing, erection and maintenance of any * * * wires, conductors, fixtures, structures of apparatus' of any public service company, including the power of designating the 'kind, quality and finish thereof'. It authorizes these municipal authorities to make all orders necessary to carry out their powers. This portion of the statute originated with the advent of telegraphy and the use of the highways for the erection of poles carrying wires for its transmission. Amendments from time to time adapted the section to telephone, electric and electric railway companies. The statute was legislative recognition of the control over public highways given to local authorities very early in the history of this state. New York, N. H. & H. R. Co.'s Appeal, 80 Conn. 623, 627, 70 A. 26; see State v. Towers, 71 Conn. 657, 666, 42 A. 1083. The language quoted appears in substantially its present form in § 3823, Rev.1930; in § 3889, Rev.1918; in § 3905, Rev.1902;...