Town of Beacon Falls v. Posick

• Decision Date: 08 August 1989
• Docket Number: No. 13561,13561
• Citation: 212 Conn. 570,563 A.2d 285
• Parties: TOWN OF BEACON FALLS et al. v. Stephen M. POSICK.
• Court: Connecticut Supreme Court

Page 285

563 A.2d 285

212 Conn. 570

TOWN OF BEACON FALLS et al. v. Stephen M. POSICK.

No. 13561.

Supreme Court of Connecticut.

Argued June 6, 1989.

Decided Aug. 8, 1989.

Robert F. Carter, with whom, on the brief, was Donna Civitello, New Haven, for appellants (plaintiffs).

Milo J. Altschuler, Seymour, for appellee (defendant).

Timothy J. Hollister and Jean E. Perry, filed a brief, for Waste Management of Connecticut, Inc., as amicus curiae.

Francis J. Brady, Mark R. Sussman and Bradford C. Mank, Hartford, filed a brief, for Connecticut Resources Recovery Authority as amicus curiae.

PETERS, C.J., and SHEA, CALLAHAN, GLASS, COVELLO, HULL and SANTANIELLO, JJ.

SHEA, Associate Justice.

In this case, the plaintiffs appeal from the decision of the Appellate Court; Beacon Falls v. Posick, 17 Conn.App. 17, 549 A.2d 656 (1988); that invalidated certain ordinances and regulations of the plaintiff town prohibiting the operation of a bulky waste disposal area (dump) in Beacon Falls. We conclude that the Appellate Court erred in invalidating these municipal enactments and reverse its decision.

The facts are set out in detail in the Appellate Court's opinion but must be substantially repeated for a proper understanding of the appeal. On March 16, 1954, the town of Beacon Falls enacted two ordinances restricting dumping, one of which prohibits the operation of a dump within the town by anyone but the town, except for existing dumps. ¹ Consistent with these ordinances, the town enacted the zoning regulations at issue in this action. Those regulations prohibit any use not specified as permitted, and the operation of a dump is not specifically permitted. ²

On July 19, 1978, the department of environmental protection (DEP) issued a permit to the defendant authorizing him to operate a dump on approximately two acres of land located off Lopus Road in Beacon Falls. On May 21, 1982, the DEP issued a permit for a six acre expansion of the defendant's dump. This expansion permit was expressly "subject to any and all public and private rights and to any federal, state, or local laws or regulations pertinent to the property or activity affected hereby." According to the state trial referee, Hon. Joseph J. Chernauskas, who rendered judgment for the plaintiffs in the trial court, "[t]he DEP permit process did not include any investigation of whether the dumping operation complied with Town Ordinances or Zoning Regulations."

The zoning enforcement officer of Beacon Falls served upon the defendant on June 9, 1982, an order to discontinue use of his property as a dump because such use violated local ordinances and zoning regulations. The defendant did not appeal to the zoning board of appeals from the order of discontinuance. The defendant, nevertheless, "thereafter dumped or permitted to be dumped 100,000 cubic yards of waste material on [the] six-acre site." The trial referee determined that the defendant's actions in this regard were wilful.

The plaintiffs instituted this action for injunctive relief, civil penalties and attorney's fees and costs on December 8, 1983. The defendant denied all of the material allegations and asserted seven special defenses. The defendant's third special defense, alleging that state laws and regulations preempt the plaintiff town's zoning regulations prohibiting dumps, and his fourth special defense, alleging that these zoning regulations are unconstitutional because there is no rational basis for them, are pertinent to this appeal.

The defendant moved for summary judgment on the preemption special defense. The plaintiffs also moved for summary judgment. The court, Kulawiz, J., found genuine issues of material fact, however, and therefore denied the motions for summary judgment. The court stated: "Local zoning regulations have not been preempted by the DEP regulations. Even though the defendant has received a permit from the DEP, he still must comply with the zoning regulations of the town of Beacon Falls and the ordinance that pertains to odors, fumes, smoke and noise." Presumably, the authority for the trial court's assertion that the defendant must comply with local regulations despite his permit from the DEP was General Statutes (Rev. to 1985) § 22a-208(c). ³ That statute provided that "nothing in this chapter or in chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal."

The action was tried before a state trial referee, Hon. Joseph J. Chernauskas, who, acting as the court, on July 18, 1986, issued a temporary injunction that prohibited the defendant from dumping solid waste in the dump off Lopus Road. On August 17, 1987, the court rendered judgment for the plaintiffs. On the issues relevant to this appeal, the court adopted the decision that had been rendered, Kulawiz, J., on the motions for summary judgment that the DEP regulations did not preempt the local zoning regulations. The court found further that the facts developed at trial substantiated the earlier decision. On the defendant's special defense that the zoning regulations were unconstitutional because they had no rational basis, the court stated that the defendant's claim was "patently without merit."

The defendant appealed to the Appellate Court raising four claims of error. The Appellate Court summarized the first three claims as follows: "(1) the trial court erred in denying the defendant's motion to dismiss because it had no jurisdiction on any issue concerning the DEP permits; (2) the DEP regulations and permits preempt local zoning regulations that conflict with them relative to solid and bulky waste disposal; and (3) the absolute prohibition by the plaintiff town of the use of land as a solid or bulky waste disposal area is not a valid exercise of its police power and is not supported by any rational reason." Beacon Falls v. Posick, supra at 25, 549 A.2d 656. In its resolution of the appeal, the Appellate Court determined that these three issues "encompass[ed] the single issue of whether the provisions of the State Solid Waste Management Act, General Statutes (Rev. to 1981) §§ 19-524a through 19-524o, under which the defendant obtained a permit for the operation of a bulky waste disposal area, preempt the town's antidumping ordinance and zoning regulations prohibiting the establishment of a private dump for waste material and refuse within its limits." Id. In finding that the trial court had erred, the Appellate Court concluded that the zoning regulations were preempted and that there was no rational basis for the prohibition of solid or bulky waste disposal areas in Beacon Falls. Id., at 35, 549 A.2d 656. ⁴

The plaintiffs subsequently appealed to this court. Upon the plaintiffs' application, we granted certification limited to the following issues: "1. Did the Appellate Court err in concluding that the enactment of § 2 of Public Acts 1984, No. 84-331, exempting from local zoning any real property of the Connecticut resources recovery authority that had been operated as a solid waste disposal area prior to the effective date of such public act, preempted the Beacon Falls zoning ordinance that prohibited the defendant from operating a landfill on his property? 2. Did the Appellate Court err in concluding that the Beacon Falls zoning ordinance prohibiting privately operated waste disposal landfills was unconstitutional?"

I

We first address the issue of whether § 2 of Public Acts 1984, No. 84-331 operated to preempt the Beacon Falls zoning regulations that prohibit the operation of a dump within the town. Public Acts 1984, No. 84-331 § 2 provided, in part, that "[n]otwithstanding the provisions of subsection (c) of section 22a-208 ... concerning the right of any local body to regulate, through zoning, land usage for solid waste disposal and section 22a-276, the Connecticut resources recovery authority may use and operate as a solid waste disposal area, pursuant to a permit ... any real property owned by said authority...." Public Acts 1984, No. 84-331. ⁵ The basic question is whether this public act modified the scope of General Statutes § 22a-208(c) by preempting local zoning control over solid waste disposal only with regard to facilities operated by the Connecticut resources recovery authority (CRRA) or whether it preempted local control with regard to dump siting generally.

Our inquiry into this first issue must begin with an examination of Shelton v. Commissioner, 193 Conn. 506, 479 A.2d 208 (1984). In that case, the plaintiff city of Shelton, brought three separate actions in an attempt to prevent the CRRA from operating a landfill on property that the CRRA owned in Shelton. One of the plaintiff's claims on appeal was "that the local zoning regulations overrode the statewide planning decisions of the CRRA and the DEP." Id. at 511, 479 A.2d 208.

At the time that the Shelton appeal was initiated, municipalities derived their power to regulate solid waste disposal areas within their jurisdiction from General Statutes (Rev. to 1983) § 22a-208(c), which provided, as does the current statute, that "nothing in this chapter or in chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal." Before the Shelton appeal was decided, however, § 2 of Public Acts 1984, No. 84-331 was enacted to modify the effect of § 22a-208(c). ⁶ Because Public Acts 1984, No. 84-331 was enacted in the period between the filing and our resolution of the appeal, in the decision we examined the effect of § 2 of Public Acts 1984, No. 84-331. We stated: "The effect of § 2 of the 1984 act is to eliminate the express zoning authority conferred by § 22a-208(c) and to restore the law to its state at the time of the Colchester [v. Reduction Associates, Inc., 34 Conn.Sup. 177, 382 A.2d 1333 (1977) ] decision. We agree with the court in Colchester that the general zoning...