Town of Windsor v. Whitney

Decision Date05 August 1920
CourtConnecticut Supreme Court
PartiesTOWN OF WINDSOR v. WHITNEY et al.

Appeal from Superior Court, Hartford County; Burpee and Maltbie Judges.

Action by the Town of Windsor against Henry D. Whitney and others to restrain the opening, or keeping open, or using of certain streets, the establishment of building lines, or the conveyance of building lots on such streets. From judgment for defendants on demurrer to the complaint, plaintiff appeals. Judgment set aside, and cause remanded.

Gager J., dissenting in part.

Josiah H. Peck and Hugh M. Alcorn, both of Hartford, for appellant.

Arthur L. Shipman and Reinhart L. Gideon, both of Hartford, for appellees.

WHEELER, J.

The complaint alleges that the town of Windsor raised a commission under the special act of the General Assembly approved April 3, 1917 (Sp. Laws 1917, p. 827) concerning a commission on town plan, and that this commission qualified and is acting as such; that the defendants are engaged in developing for residential purposes a tract of land on Barber street in Windsor, and have opened thereon for public use a street parallel to Barber street and also two streets opening into Barber street, established building and curb lines on these streets, and have sold for building purposes a number of lots on these streets, and that all of these acts have been done in violation of the provisions of the Special Act.

The defendants demurred to the complaint because the special act upon which the complaint was based was in violation of section 1 of article 14 of the Amendments to the Constitution of the United States, in that the acts and requirements of the special act constitute a taking of property without due process of law.

The special act provides for the creation of a town plan commission whose duty it shall be to " make surveys and maps" of Windsor, " section by section, *** showing locations for any public building, highway, street, or parkway layouts, including street, building and veranda lines, and may obtain expert advice and assistance in so doing."

When the commission shall have made a survey and map of any section, it shall file it in the town clerk's office and give notice by mail to every known owner of land in this section and also by public advertisement of the time for filing objections and for hearing evidence and argument upon said map.

The commission shall thereafter notify each objector of its final action, and file a map in accordance with its final decision in the town clerk's office. Any party interested may appeal within 30 days to the superior court and its decision shall be final.

Section 8 provides:

" Nothing *** shall be considered as granting to said town or said commission or said selectmen, any right to open and make any road, street, highway or parkway shown on such map and to take land therefor, except upon the terms and in conformity with the procedure set forth in the General Statutes, and also in conformity with any vote, rule, regulation, ordinance or other method of procedure of said town."

This provision safeguards private property against its taking for public use. The mere filing of the final map cannot be regarded as a taking of property. It is but reasonable provision for the future community development. streets opened in these sections must conform to this plan, adopted after careful consideration of private and public rights by public authorities in fulfillment of public duty.

When the town or selectmen shall open streets and establish building lines for all land so taken by the public and not under the police power, compensation must be made in the manner provided by the procedure of the General Statutes.

Apparently this act does not provide for the case of an owner desiring to lay out a street in a section which the commission has already surveyed and mapped. As the case at bar is not such an one, we are not required to resolve that situation.

Section 6 provides:

" Any owner of land in *** Windsor may show" on a map " locations for highways, streets and parkways on said land with street, building and veranda lines, and *** indicate" in his accompanying petition " the layout desired by him."

The commission shall pass on the same by the procedure of section 3, and if they do not accept or reject the plan and petition in 60 days they shall be considered as accepted. We think by reference to the procedure of section 3 it was intended to include the appeal provided in section 4 from the decision reached in section 3. This procedure is inseparately connected, affording to the parties in interest an adequate hearing and decision by designated public officials, with an appeal to our highest trial court. Both tribunals determine in the given case what the location of street layouts and building lines shall be.

Penalties are imposed for failure to proceed under this section and for erecting a building on a street or proposed street whereon a building line has been established without securing a permit from the commission in accordance with section 9. The case against the defendants is based upon their proceeding in the development and marketing of their lots without reference to sections 6 and 9.

The act does not contemplate the taking of a part of the defendants' land for streets, nor the taking of a part of their lots by means of a regulation that they may not build upon a part of the lot up to a designated building line. What it intends is the regulation of the defendants' land so that in case they build thereon the streets and building lines must conform to the plan approved by the commission.

The commission does not impose upon the defendants the burden of laying out any street or designating any building line. It leaves it optional with them whether they shall open the street or designate the building line. This does not physically take the land, but it regulates its use, and hence it deprives the owner of a part of his dominion over his land. The owner may not lay out streets through this land where he chooses and of the width he chooses. Nor may he establish the building lines where he wills. There is no provision in the act for compensation for such interference with the owners' dominion.

Unless this regulation can be supported as a legitimate exercise of the police power the act must fall. A town commission plan such as this act contemplates is distinctly for the public welfare. Its theory is to lay out streets when and where the public need them, and of adequate width to meet the requirements of the community and of transportation. In such a plan each street will be properly related to every other street. Building lines will be established where the demands of the public require. Adequate space for light and air will be given. Such a plan is wise provision for the future. It betters the health and safety of the community; it betters the transportation facilities; and it adds to the appearance and wholesomeness of the place, and as a consequence it reacts upon the morals and spiritual power of the people who live under such surroundings.

The demands of a large city may excuse congestion, but in a small city or country town there is no excuse for such living conditions. But unless some authority controls and regulates the land development, we may look for too narrow streets, too few or no building lines, and buildings erected, unstable in character, unsuitable in material, and inappropriate in construction. Our large communities all have their examples of the unregulated layout of streets and building lines and buildings; of instances of land development so as to yield the last penny to its promotors regardless of the public welfare; of community eyesores; of streets made over, whole sections changed because at the beginning no reasonable provision was made for the safety, health, or welfare of the community.

Such an act as this is conceived in public wisdom, and serves great public ends. Courts will be reluctant to destroy it, and with it its beneficent purposes. We should not do that unless we were clearly satisfied that the act was against our fundamental law, or was so unreasonable as to be beyond the range of the police power. It is to be noted that we are not concerned in this case with the question of reasonableness, nor with the question of regulation under uniform rule of action.

The question raised by the demurrer in Ingham v. Brooks, decided at this term, is not involved. Because (1) the demurrer under review raises a single question whether the act is unconstitutional because it takes property without compensation; (2) the act itself provides for the making of general rules by the commission, and in the absence of allegation to the contrary we must assume that these rules exist; and (3) because, since the decision of the commission proceeds upon a full and fair hearing, and its decision is reviewable by a court of competent jurisdiction, which acts under the sanction of law, the decision cannot be held to be one left to the unregulated will of this commission.

We must assume that the regulations as to the layout of the streets and building lines and as to the issuance of building permits are reasonable for that section and location. So that the question raised by the demurrer is this: Does this act which forbids the opening of a street or the establishment of building lines which are reasonable as to location and size so interfere with the use of private property as to be unconstitutional for the reason that it takes private property without compensation?

" It is our duty to approach the question with great caution examine it with infinite care, make every presumption and intendment in its favor, and sustain the act...

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