Murphy Inc. v. Town Of Westport

• Decision Date: 08 November 1944
• Citation: 131 Conn. 292,40 A.2d 177
• Court: Connecticut Supreme Court
• Parties: MURPHY, Inc., et al. v. TOWN OF WESTPORT et al.

131 Conn. 292

40 A.2d 177

MURPHY, Inc., et al. v. TOWN OF WESTPORT et al.

Supreme Court of Errors of Connecticut.

Nov. 8, 1944.

Appeal from Superior Court, Fairfield County; O'Sullivan, Judge.

Action by Murphy, Inc., and another against the Town of Westport and others for an injunction restraining defendants from enforcing a zoning ordinance and for other relief. The case was tried to the court. Judgment for plaintiffs, and defendants appeal. The appellants and both the appellees filed motions for reargument which were denied.

Error and new trial ordered.

John H. Mountain, of Westport, for appellants (defendants).

Irwin E. Friedman, of Bridgeport (Samuel E. Friedman, of Bridgeport, on the brief), for appellees (plaintiffs).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

The named plaintiff is a corporation engaged in the business of outdoor advertising, and the other plaintiff, Backiel, is the owner of land in the defendant town which the corporation had leased and upon which it proposed to erect a billboard. The town has adopted a zoning ordinance and the land leased to the plaintiff is in a ‘business district’ as defined in it. The plaintiffs brought the action to restrain the defendants from enforcing a provision in the ordinance forbidding in a business zone such a billboard as the corporation proposes to construct, and to compel the issuance of a building permit for its erection. The trial court held the provision of the ordinance in question void and gave judgment for the plaintiffs. The defendants have appealed.

The zoning ordinance divided the area of the town into residence districts and business districts. In the residence districts all advertising signs are forbidden except that, where the premises are used for certain home occupations or offices, signs giving notice of the use not exceeding two square feet in area may be displayed, and that signs not exceeding eight square feet in area may be erected for the purpose of advertising the particular land or premises upon which a sign stands. In business districts such signs are also permitted, but the ordinance provides that ‘Billboards or advertising signboards are prohibited in all business districts except as they refer to business conducted on the property on which the billboard stands.’

The Boston Post Road runs across the town from east to west for a distance of about five miles and the land on each side of it is zoned as a business district to a depth of two hundred feet except that at two or three places the district extends further from the highway; and there are two or three other small business districts within the town. It has a population of about 8250. It is primarily a community of homes and more than 90 per cent. of its area is devoted to residential purposes. There is no industrial zone under the ordinance, no manufacturing, except as nonconforming uses, is permitted and the only business enterprises allowed are those where goods are sold or services rendered primarily at retail. The Boston Post Road has four lanes of concrete and carries heavy traffic. When the ordinance took effect in 1930, the plaintiff corporation maintained along the Post Road within the town fifteen billboards, with forty panels, each approximately fifteen by twenty-five feet, and, except for some panels voluntarily withdrawn, these billboards have continued as nonconforming uses. While the corporation was engaged in moving the billboard in question from a tract of land on which it had stood to the Backiel property, the zoning enforcement officer stopped the work, and when the corporation applied for a permit to erect the billboard the permit was refused by the zoning authorities.

Since about 1905 there has been a considerable volume of litigation involving the right of a state or municipality to regulate or prohibit billboards, and generally speaking there has been a growing tendency to regard the power more broadly. See General Outdoor Advertising Co. v. City of Indianapolis, 202 Ind. 85, 172 N.E. 309, and note, 72 A.L.R. 453, with supplemental decisions. In the earlier cases, courts apparently did not realize as clearly as they do now, as the result of facts found upon various trials, that billboards may be a source of danger to travelers upon highways through insecure construction, that accumulations of debris behind and around them may increase fire hazards and produce unsanitary conditions, that they may obstruct the view of operators of automobiles on the highway and may distract their attention from their driving, that behind them nuisances and immoral acts are often committed, and that they may serve as places of concealment for the criminal. Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 529, 37 S.Ct. 190, 61 L.Ed. 472, L.R.A.1918A, 136, Ann.Cas.1917C, 594; Perlmutter v. Greene, 259 N.Y. 327, 331, 182 N.E. 5, 81 A.L.R. 1543; City of Chicago v. Gunning System, 214 Ill. 628, 639, 73 N.E. 1035, 70 L.R.A. 230, 2 Ann.Cas. 892; St. Louis Gunning Advertisement Co. v. St. Louis, 235 Mo. 99, 144, 155, 137 S.W. 929; General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 181, 193 N.E. 799; People v. Wolf, 220 App.Div. 71, 76, 220 N.Y.S. 656.

The earlier cases were more prone to regard esthetic considerations as the predominating motive of the restrictions or prohibitions and for that reason to condemn the regulations as not within the police power of the state; and there are a number of fairly recent decisions which hold that, where esthetic considerations afford the sole ground for the enactment of laws or ordinances affecting the individual's use of his land, they are void. Crawford v. City of Topeka, 51 Kan. 756, 33 P. 476, 20 L.R.A. 692, 37 Am.St.Rep. 323; Passaic v. Paterson Bill Posting Co., 72 N.J.Law 285, 287, 62 A. 267, 111 Am.St.Rep. 676, 5 Ann.Cas. 995; Varney & Green v. Williams, 155 Cal. 318, 320, 100 P. 867, 21 L.R.A.,N.S., 741; State v. Whitlock, 149 N.C. 542, 544, 63 S.E. 123, 128 Am.St.Rep. 670, 16 Ann.Cas. 765; Curran Bill Posting & Distributing Co. v. City of Denver, 47 Colo. 221, 227, 107 P. 261, 27 L.R.A., N.S., 544; Anderson v. Shackleford, 74 Fla. 36, 43, 76 So. 343, L.R.A.1918A, 139; Dowsey v. Village of Kensington, 257 N.Y. 221, 230, 177 N.E. 427, 86 A.L.R. 642; Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 442, 94 N.E. 920, 34 L.R.A., N.S., 998; Chicago Park District v. Canfield, 370 Ill. 447, 457, 19 N.E.2d 376, 121 A.L.R. 557; General Outdoor Advertising Co. v. Indianapolis, supra, 202 Ind. at page 94, 172 N.E. 309, 72 A.L.R. 453. That the field of esthetics in itself is, or at least will remain, without the scope of the proper exercise of the police power has not, however, gone unquestioned. In re Wilshire, 9 Cir., 103 F. 620, 623; State ex rel. Civello v. City of New Orleans, 154 La. 271, 283, 97 So. 440, 33 A.L.R. 260; Cochran v. Preston, 108 Md. 220, 229, 70 A. 113, 23 L.R.A.,N.S., 1163, 129 Am.St.Rep. 432, 15 Ann.Cas. 1048; Parkersburg Builders Material Co. v. Barrack, 118 W.Va. 608, 612, 191 S.E. 368, 192 S.E. 291, 110 A.L.R. 1454; State ex rel. Carter v. Harper, 182 Wis. 148, 159, 196 N.W. 451, 33 A.L.R. 269; Walnut & Quince St. Corporation v. Mills, 303 Pa. 25, 34, 154 A. 29, concurring opinions in Hav-a-Tampa Cigar Co. v. Johnson, 149 Fla. 148, 168, 5 So.2d 433, and People v. Sterling, 267 App.Div. 9, 12, 45 N.Y.S.2d 39, dissenting opinions in Mid-State Advertising Corporation v. Bond, 274 N.Y. 82, 87, 8 N.E.2d 286, and Wolverine Sign Works v. City of Bloomfield Hills, 279 Mich. 205, 209, 271 N.W. 823.

Indeed, as is pointed out in some of these decisions, such esthetic considerations as are involved in the regulation or prohibition of signboards cannot be divorced from material and economic factors; the presence of signboards near property may definitely affect its value and the comfort of those who may be living upon it. In General Outdoor Advertising Co. v. Department of Public Works, supra, at page 164 of 289 Mass., 193 N.E. 806, the Supreme Judicial Court of Massachusetts upheld a regulation of the defendant forbidding billboards near highways where, in the opinion of the authorities, ‘having regard to the health and safety of the public, the danger of fire and the unusual scenic beauty of the territory, signs would be particularly harmful to the public welfare,’ and the court, after citing some recent decisions of the Supreme Court of the United States, said (at page 188 of 289 Mass., at page 817 of 193 N.E.): ‘These authoritative pronouncements justify, in our opinion, the extension of the police power to the prohibition of billboards and advertising devices in places where they deface natural scenery and places of historic interest.’ Whether or not esthetic considerations in themselves would support the exercise of the police power, there can be no question that, if a regulation finds a reasonable justification in serving a generally recognized ground for the exercise of that power, the fact that esthetic considerations play a part in its adoption does not affect its validity. State v. Kievman, 116 Conn. 458, 465, 165 A. 601, 88 A.L.R. 962; St. Louis Poster Advertising Co. v. City of St. Louis, 249 U.S. 269, 274, 39 S.Ct. 274, 63 L.Ed. 599; General Outdoor Adv. Co. v. Indianapolis, supra, at page 94, of 202 Ind., 172 N.E. 309, 72 A.L.R. 453; Chicago Park District v. Canfield, supra, 370 Ill. at page 455, 19 N.E.2d 376, 121 A.L.R. 557. As stated by the Court of Appeals of New York: ‘Beauty may not be queen, but she is not an outcast beyond the pale of protection or respect. She may at least shelter herself under the wing of safety, morality,or decency.’ Perlmutter v. Greene, supra, 259 N.Y. 332, 182 N.E. 6, 81 A.L.R. 1543.

The police power is not to be confined narrowly within the field of public health, safety or morality. In sustaining the right of the legislature to require that...