State v. Hillman

• Decision Date: 04 October 1929
• Court: Connecticut Supreme Court
• Parties: STATE v. HILLMAN.

147 A. 294

110 Conn. 92

STATE v. HILLMAN.

Supreme Court of Errors of Connecticut.

October 4, 1929

Appeal from Court of Common Pleas, Fairfield County; E. Earle Garlick, Judge.

Isaac Hillman, as secretary and agent of the City Barrel Company was convicted of using premises on Beardsley street in the city of Bridgeport in violation of zoning regulations of the city, and he appeals. No error.

Eminent domain takes property because useful to public, while police power regulates use.

The zoning commission of the city of Bridgeport adopted building zone regulations under authority of chapter 242 of the Public Acts of 1925, which went into effect June 1, 1926. Parts of these regulations are quoted in the footnote.^[1]

For some time prior to and at the time of the adoption of these regulations the City Barrel Company and the accused, as its secretary and agent, had conducted and was conducting the business of storing washing, repairing, burning, and steaming barrels of various kinds and descriptions which had contained commodities such as fish, lard, crisco, oil, cider, pork, etc., in buildings on the described premises of the City Barrel Company on Beardsley street in the city of Bridgeport. The use of the buildings and premises for these purposes cause the emission of noxious, pungent, and obnoxious odors, and this use was also noxious because of the emission of black smoke. At the time the zoning regulations went into effect, the City Barrel Company was in existence, and the premises occupied by it were placed in a light industrial zone by the zoning commission. On June 19, 1926, a fire destroyed more than 50 per cent. of the assessed value of the buildings used by the company in its business, to wit, approximately 75 per cent., and these were necessary for the conduct of its business. Within two or three days after the fire the building commissioners for Bridgeport denied, after due hearing, the company's application for a permit to reconstruct its buildings, for the reason that more than 50 per cent. of their assessed value had been destroyed by fire. The company intended to use the reconstructed buildings in the continued use of its business. On July 23, 1926, the commission changed the zone in which the company was located from a light industrial to a class C residence zone. On July 26, 1926, the company appealed from the refusal of the commissioners to issue to it a permit to rebuild the buildings destroyed by fire to the board of appeals on zoning for Bridgeport. On August 31, 1926, the board of appeals, after due hearing, upheld the decision of the commissioners.

From the passage of the building zone regulations up to the fire, June 19, 1926, the business of the company was a permissible nonconforming use for either class C residence zone or a light industrial zone. After the fire, the business of the company was a nonpermissible, nonconforming use in a light industrial zone up to July 23, 1926, but after that time the business was a nonpermissible, nonconforming use in a class C residence zone.

On August 31, 1926, the board of appeals granted to the company a permit to reconstruct a temporary roof for its washroom and cooperage room and to repair the roof on the large storage shed located on the west side of its property in order that its business might be temporarily continued, and also a permit to carry on its business for a period of six months in order that the company might have an opportunity to find a new location for its business. At the expiration of six months, the board granted a further extension of six months to the company for the same purpose. At the end of the year, August 31, 1927, the company had failed to find a new location and still continued its business in the temporarily repaired buildings. On September 16, 1926, the board notified the company to remove its stock and to discontinue its barrel business by October 15, 1927. On December 21, 1927, the accused was the secretary and agent of the company, and as such agent was storing, washing, repairing, burning, and steaming barrels of various kinds on the premises and in the temporarily repaired buildings. These acts were in violation of the zoning regulations of the city of Bridgeport. The accused was guilty of violating these regulations in so operating the business of the company on December 21, 1927.

John J. Cullinan, of Bridgeport, for appellant.

Richard S. Swain, of Bridgeport, for the State.

Harry Schwartz and Henry Greenstein, Asst. City Atty., of Bridgeport, for the City of Bridgeport, amici curiae .

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

WHEELER C.J. (after stating the facts as above).

The zoning commission of the city of Bridgeport adopted building zone regulations pursuant to authority contained in chapter 242 of the Public Acts of 1925. These regulations divide the city into districts and prescribe or regulate the use to which the property in each district may be put. Neither the public act nor the regulations of the commission are attacked as a whole, nor could such an attack have been successful. Zoning legislation has been upheld with substantial uniformity as a legitimate subject for the exercise of the police power when it has a rational relation to the public health, safety, welfare, and prosperity of the community and is not in plain violation of constitutional provision, or is not such an unreasonable exercise of this power as to become arbitrary, destructive, or confiscatory. We applied this principle in upholding zoning legislation adopting building lines, without providing compensation, in Windsor v. Whitney, 95 Conn. 357, 111 A. 354, 12 A.L.R. 669. The application of the police power in this case was one of first impression; it has since been sustained in Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228, 53 A.L.R. 1210. There have been differing views in the courts in the application of this principle to zoning legislation. We have consistently sustained the view that the application of the underlying principle must be made in the light of existing conditions, to the end that the great purposes for which the police power may be invoked may be promoted. Conn. Co. v. Stamford, 95 Conn. 26, 30, 110 A. 554; Cotler v. Stoeckel, 97 Conn. 239, 244, 116 A. 248; Young v. Lemieux, 79 Conn. 434, 65 A. 436, 600, 20 L.R.A. (N. S.) 160, 129 Am.St.Rep. 193, 8 Ann.Cas. 452; New Haven Water Co. v. New Haven, 106 Conn. 562, 576, 139 A. 99; Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Zahn v. Board of Public Works, 274 U.S. 326, 47 S.Ct. 594, 71 L.Ed. 1074; Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann.Cas. 1917B, 927; 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; Reinman v. Little Rock, 237 U.S. 171, 176, 35 S.Ct. 511, 59 L.Ed. 900; Matter of Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. 120, 43 A.L.R. 651; Spector v. Building Inspector of Milton, 250 Mass. 63, 145 N.E. 265; City of Providence v. Stephens, 47 R.I. 387, 133 A. 614.

Counsel for the accused argued the appeal upon three claims: (1) That the regulations do not justify the board of appeals in directing the City Barrel Company to discontinue its business and remove its stock from its premises on Beardsley street; (2) that, if the regulations be construed to afford such justification, they are not authorized by chapter 242 of the Public Acts of 1925; and (3) are in violation of section 11 of article first of the Constitution of Connecticut and section 1 of article 14 of the Amendments to the Constitution of the United States.

Section 1 of the Zoning Act authorizes the city, within its limits, to regulate " the location and use of buildings, structures and land for trade, industry, residence or other purposes." Section 2 provides: " Said zoning authority may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this act; and, within such districts; it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings or structures throughout each district, but the regulations in one district may differ from those in another district." Section 3 provides: " Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration at to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality."

Under these provisions the city was authorized to adopt regulations, dividing the city into districts, and restricting or regulating the use of all property within the districts, and designed to effect the purposes specified in section 3. The city's division in section 1 of the regulations of its area into seven zones, classified as residence, business, and industrial zones, was clearly within the authority vested in it. Its prohibition in section 4 of any building or premises in a light industrial zone designed to be used for " any other trade or use that is noxious by reason of the emission of odor, dust, gas or...