Wilson Point Property Owners Ass'n v. Connecticut Light & Power Co.

• Decision Date: 15 April 1958
• Citation: 140 A.2d 874,145 Conn. 243
• Court: Connecticut Supreme Court
• Parties: , 23 P.U.R.3d 417 WILSON POINT PROPERTY OWNERS ASSOCIATION et al. v. The CONNECTICUT LIGHT AND POWER COMPANY et al. Supreme Court of Errors of Connecticut

Page 874

140 A.2d 874

145 Conn. 243, 23 P.U.R.3d 417

WILSON POINT PROPERTY OWNERS ASSOCIATION et al. v. The CONNECTICUT LIGHT AND POWER COMPANY et al.

Supreme Court of Errors of Connecticut.

April 15, 1958.

John H. Mountain, Westport, for appellant (named plaintiff).

Robert B. Seidman, Norwalk, for appellants (plaintiffs Nathan et al.), with whom, on the brief, was Leon K. Paris, So. Norwalk, for appellant (plaintiff The Harbor View Co.).

Walter F. Torrance and Walter F. Torrance, Jr., Waterbury, with whom, on the brief, was Richard J. Smith for appellee (named defendant).

Louis Weinstein, Asst. Atty. Gen., with whom, on the brief, was John J. Bracken, Atty. Gen., for appellee (defendant public utilities commission).

Before WYNNE, C. J., and BALDWIN, DALY, KING and MURPHY, JJ.

BALDWIN, Associate Justice.

The plaintiffs Wilson Point Property Owners Association and The Harbor View Company are associations of property owners in Norwalk. They own, and have members who individually own, residential property adjacent to or near Manresa Island in Norwalk. The two individual plaintiffs are property owners similarly situated. On November 24, 1952, the defendant The Connecticut Light and Power Company, hereinafter called the defendant, a corporation chartered by the General Assembly and authorized to generate and sell electric power in this state (11 Spec. Laws 111; 17 id. 833; 18 id. 106), filed with the zoning commission of Norwalk an application pursuant to General Statutes § 5646 requesting approval for the erection of a steam electric generating plant on Manresa Island. In October, 1952, the defendant had purchased substantial areas of land in the southern part of Norwalk bordering upon Long Island Sound at the entrance to Norwalk harbor. Manresa Island, the southernmost portion of this land, is a peninsula about twenty-five acres in extent, almost completely surrounded by water, extending into the Sound. It is connected with the mainland area owned by the defendant by land flooded in part during high water. Most of the defendant's land, including Manresa Island, is zoned residence B. It is bordered on the north and east by an area zoned residence B and C, and on the west by property zoned for industrial uses. Manresa Island is separated from these two areas, one known as Harbor View and the other as Village Creek, by low marsh land owned by the defendant. Wilson Point, where the properties of the Wilson Point Property Owners Association and its members are located, lies west of Manresa Island and approximately half a mile distant across the waters of Long Island Sound. Harbor View, wherein the properties of The Harbor View Company and its members are located, partly in a residence B and partly in a residence C zone, is north of the defendant's property and is adjacent to that portion which comprises the mainland north of Manresa Island. The southerly portion of the Village Creek area is slightly less than a quarter of a mile from Manresa Island.

The defendant's requirements for power in southwestern Connecticut are presently supplied primarily from a steam generating plant in Devon. The defendant claims that the increased demand for electric power in southwestern Connecticut makes the construction of additional generating facilities at Manresa Island essential as a matter of public convenience and necessity. The zoning commission of Norwalk, after a hearing, issued an order, effective January 19, 1953, permitting the location of a generating plant on Manresa Island. Certain property owner associations and individual property owners joined with the town of Norwalk in seeking a declaratory judgment in the Superior Court. There the matter was reserved, upon stipulation, to this court, and questions relative to the power and action of the zoning commission were answered. Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 103 A.2d 535. Prior to the determination of that case, the plaintiff The Harbor View Company and Charles D. Steurer, Jr., acting pursuant to § 5646, appealed to the public utilities commission. Thereafter, the plaintiffs the Wilson Point Property Owners Association, Neva S. Nathan and William G. Luttge were permitted to intervene. The public utilities commission held a series of hearings de novo, and the members of the commission personally viewed the proposed location by land and water. On October 3, 1956, the commission made its finding and order affirming the order of the Norwalk zoning commission. The plaintiffs appealed from the action of the public utilities commission to the Superior Court. The instant appeal is from the judgment of the court dismissing their appeal.

In Jennings v. Connecticut Light & Power Co., supra, 140 Conn. 664, 103 A.2d 543, the legislative history of General Statutes § 5646 was reviewed, its phraseology examined in detail and its legislative intendment determined. We held (140 Conn. at page 666, 103 A.2d at page 544), in substance, that § 5646 expressed a legislative intent to treat the authority exercised by a local zoning commission over the location of a public utility facility within any city or town as a matter of public utility regulation rather than zoning and that (140 Conn. at page 669, 103 A.2d at page 545) the zoning commission was to function as a special agency of the state and (140 Conn. at page 670, 103 A.2d at page 546) in that capacity, guided by a combination of the standards of public convenience and necessity and the standards of public health, safety and welfare and the stabilization of property values, was required to weigh considerations of public convenience and necessity which argued for approval of a location for a public utility facility against considerations which called for the enforcement of the zoning regulations. In other words, a zoning commission might find in a given case that the greater public good would be served by locating a public utility structure in a certain place even though it might contravene local zoning regulations. Id., 140 Conn. 670, 103 A.2d 546; see Connecticut Co. v. City of New Haven, 103 Conn. 197, 210, 130 A. 169; In re Application of Hackensack Water Co., 41 N.J.Super. 408, 422, 125 A.2d 281. Upon appeal to the public utilities commission, the same standards apply. This does not mean, as claimed by the plaintiffs, that the circumstances must demonstrate that the site selected and approved is the only available one, or that no other site can be found after an exploration of every possibility, or that the facility can be located nowhere else but on the site in controversy. Suitable alternate sites offer a cogent argument, but the ultimate decision approving one and rejecting others must rest upon a finding that the one approved, tested by the standards heretofore stated, possesses to a reasonable degree advantages over the others under consideration and better satisfies the requirements of public convenience and necessity. Town of Wenham v. Department of Public Utilities, 333 Mass. 15, 17, 127 N.E.2d 791; In re Application of Hackensack Water Co., supra, 41 N.J.Super. 423, 125 A.2d 289; see De Palma v. Town Plan Commission, 123 Conn. 257, 265, 193 A. 868.

We turn now to the function of the Superior Court upon an appeal allowed under § 5646 and pursued, as it must be, under § 5427. Section 5399 requires that the public utilities commission state the reasons for its decision. The plaintiffs claim that this means, in effect, that the commission shall make a finding of facts. Section 5646 provides, relating to the appeal allowed thereby: 'Each * * * order [of the local body] shall be subject to the right of appeal, within thirty days from the giving of * * * notice [of its decision] by any party aggrieved to the public utilities commission, which, after rehearing, upon due notice to all parties in interest, shall as speedily as possible determine the matter in question and shall have jurisdiction to affirm or modify or revoke such orders or make any orders in substitution thereof.' Section 5427 pertains generally to appeals from the public utilities commission to the Superior Court. This section requires the commission upon an appeal to prepare and file in court a certified copy of 'such portions of the record of the case from which such appeal has been taken as may appear to the commission to be pertinent to such appeal, with such additions as may be claimed by any party in interest to be essential thereto * * *. The court, upon such appeal, shall review, upon the record so certified, the proceedings of the commission and examine the question of the legality of the order, authorization or decision appealed from and the propriety and expediency of such order, authorization or decision so far as said court shall have cognizance of such subject and shall proceed thereon in the same manner as upon complaints for equitable relief. If, upon hearing such appeal, it shall appear to the court that any testimony has been improperly excluded by the commission or that the facts disclosed by the record are insufficient for the equitable disposition of the appeal, it shall refer the case back to the commission to take such evidence as it may direct and report the same to the court, with the commission's findings of fact and conclusions of law.' This statute superseded § 3610 of the Revision of 1930 and, like the present form of § 5646, was adopted in 1935. Cum.Sup.1935, §§ 1414c(g), 1420c.

The plaintiffs lay particular stress upon the sentence of § 5427 last quoted as indicating that the commission must make a finding of facts. We assume that the plaintiffs mean a finding in a form akin to that required in appeals from trial courts to this court under Practice Book, § 391. This, say the plaintiffs, is essential to a proper judicial interpretation of the action of the commission and a determination of whether it has acted in compliance with law. But the sentence of § 5427 stressed by the plaintiffs...