De Palma v. Town Plan Com'n of Greenwich
| Decision Date | 22 July 1937 |
| Citation | 193 A. 868,123 Conn. 257 |
| Court | Connecticut Supreme Court |
| Parties | DE PALMA et al. v. TOWN PLAN COMMISSION OF GREENWICH. v. SAME v. TOWN OF GREENWICH et al. |
Appeal from Superior Court, Fairfield County; Arthur F. Ells, Judge.
Proceeding on appeal by Felix De Palma to review the action of the Town Plan Commission of Greenwich in granting a petition of the Town of Greenwich changing the zoning regulations; and an action by Felix De Palma and others against the Town of Greenwich and others for an injunction restraining the town and others from using certain land for garbage disposal which were tried to the court. Judgment for the defendants in both cases, and the plaintiffs appeal.
No error.
Raymond E. Baldwin, of Bridgeport, for appellants.
H. Allen Barton, of Greenwich, for appellees.
Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.
On May 27, 1936, the town plan commission of Greenwich amended the zoning ordinance of the town by designating, as a zone for the municipal purpose of garbage and refuse incineration and the deposit of the residue therefrom, an area of about fifteen acres composed of the Adsit tract of ten and one-half acres and the Tesei tract of four and one-half acres, being adjoining tracts situated in a district known as Chickahominy and located three or four hundred feet south of the Boston Post Road and about three-quarters of a mile from the New York State line. Numerous residents of the vicinity brought the above entitled actions, the two cases were tried together in the superior court, and both appeals have been presented in this court upon a single finding which includes the following facts:
A zoning ordinance had been adopted by the zoning commission predecessor of the town plan commission, in 1926, under which the Chickahominy district was placed in a class C residence zone, except a strip along the Post Road zoned for business purposes. The Adsit tract was not residential property but was a nonconforming use as it has been used by the town for over twenty years as a municipal dump for the disposal of garbage and other refuse collected in the entire town. The board of health, which had the power and duty of providing for the disposal of garbage, had long been considering the problem of garbage and refuse disposal and had made a thorough study both of methods used and of possibilities for the location of an incineration plant. In 1914, the town, on the recommendation of that board, purchased a tract of land in Chickahominy, a few hundred feet away from the Adsit property, as a site for an incineration plant. At that time the money was not available for the cost of construction and the plant was not erected. This property is still owned by the town but is now too small for the purpose. In 1926 the Adsit property had been recommended by the board and submitted to the town, but the proposition to erect a plant on that site was rejected.
The board of health made a careful investigation of possible sites throughout the town between 1934 and 1936, giving special consideration to areas zoned for industrial use, but found the industrial zones unsuitable in regard to area and location and finally recommended the purchase of a tract about a mile north of the Post Road, known as the Jaeger tract, comprising about seventy acres located in undeveloped residential territory in a class A residence zone. In 1935 the board secured an option to purchase this property and applied to the board of zoning appeals for a variance in the application of the zoning ordinance to permit the use of it for an incineration plant, but the board of appeals rejected the application. Later the board submitted to the board of estimate and taxation a list of all vacant industrial property that could possibly be used and requested that board to make a choice, but the latter refused to recommend any of these sites and suggested one known as the Sperco site in Cos Cob. This site is in a class B residence zone in the neighborhood of a large development of dwelling houses. It is very limited in area and can be reached only by proceeding about a mile through a residential district. While the Sperco property was being considered, it was discovered that an act of the Legislature of 1931 (Gen. St. Supp. 1935, § 89c et seq.) had removed the question from the jurisdiction of the board of health and transferred it to the selectmen. The selectmen then undertook to locate a site, considered the various ones that had been suggested, and came to the conclusion that the Chickahominy site now involved was preferable to any of the others. Options to purchase the Adsit and Tesei sites were obtained and an application was made to the board of estimate and taxation to recommend to the town their purchase for a price of $26,500. The finance board approved that application and the acquisition of this property, made the recommendation to the town, and a town meeting subsequently gave its approval to the proposal of the selectmen and appropriated the money for the purchase.
On or about May 7, 1936, the selectmen presented to the town plan commission a petition for the amendment of the zoning ordinance so as to permit the use of the Adsit and Tesei tracts as a site for an incineration plant, setting forth the obtaining of the option and the appropriation, that the use of the Adsit tract as a municipal dump had been ordered terminated as to putrefactive waste by the board of health that there existed an emergency and a public necessity to acquire land for the purpose of establishing an incineration plant, that the acquisition and use of these tracts for the purpose was approved by the selectmen, the board of estimate and taxation, and that the purposes of zoning could be best accomplished by amending the ordinance as requested. A public hearing was held by the commission on May 25, 1936, at which the selectmen presented evidence in support of the petition and opponents of the proposed change were heard at length. The commission considered and it is a fact that the Chickahominy dump has been a nuisance to the public health of the town and to the comfort of residents in the neighborhood by reason of odors from garbage and other decayed matter, smoke from open fires of rubbish and otherwise, and the board of health had on February 3, 1936, adopted an ordinance declaring that dump a nuisance detrimental to public health, and prohibiting, after a specified date, the dumping of any garbage or other putrefactive matter thereon. The board of health considered that the best method for the disposal of municipal refuse is by incineration. The commission took the matter under the advisement and, after several meetings and careful consideration of the entire matter, came to the unanimous conclusion that the facts stated in the petition of the selectmen were true and that the proposed amendment of the ordinance should be made. The amendment was thereupon unanimously adopted, together with a recommendation that the town boards and agencies do everything within reason in expenditures and maintenance to insure efficiency in operation of the plant and...
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