Wood v. Town of Wilton

• Decision Date: 02 April 1968
• Citation: 240 A.2d 904,156 Conn. 304
• Court: Connecticut Supreme Court
• Parties: Frederick W. WOOD et al. v. TOWN OF WILTON.

Page 904

240 A.2d 904

156 Conn. 304

Frederick W. WOOD et al. v. TOWN OF WILTON.

Supreme Court of Connecticut.

April 2, 1968.

Harry H. Hefferan, Jr., Norwalk, with whom were Abner W. Sibal, Norwalk, and Robert A. Singewald, Wilton, for appellant (defendant).

Frederick L. Comley, Bridgeport, for appellees (plaintiffs).

Before ALCORN, HOUSE, THIM, RYAN and COVELLO, JJ.

THIM, Associate Justice.

The plaintiffs, who own real property in the vicinity of a sixty-five-acre tract of land owned by the defendant, the town of Wilton, brought this action seeking to have the town enjoined from using a portion of the tract as a sanitary landfill refuse disposal area. The plaintiffs claim that the proposed use will be a nuisance. The trial court rendered judgment permanently enjoining the town from putting its property to the proposed use. The town has appealed.

Two of the town's assignments of error relate to the court's finding of facts. These assignments are not pursued in the town's brief and are therefore treated as abandoned. Johnston Jewels, Ltd. v. Leonard, 156 Conn. --, 239 A.2d 500; Bartlett v. Flaherty, 155 Conn. 203, 204, 230 A.2d 436.

The finding reveals these facts: The town of Wilton is a residential community with a population of approximately 11,000. Prior to 1966, there was no public refuse disposal site in the town. Most of the town's refuse was collected by private collectors and hauled to a privately owned dump site in the adjoining town of Weston.

In 1963, apparently realizing that it might eventually have to provide a local refuse disposal site, the town, through its board of selectmen, appointed a citizens committee to locate and report on possible refuse disposal sites within the town. The committee included among its members the town health officer and two engineers. It considered four tracts of land. One tract became unavailable because the town decided to use it for school purposes. Two of the tracts were eventually rejected because they were in densely populated areas of the town. The final tract, hereinafter referred to as the Katzman tract, was in the northeast corner of the town. This portion of the town is rural in character. The area is zoned for low-density residential use. The Katzman tract is undeveloped and is densely wooded. It is traversed by the power transmission lines of a local utility company. A railroad right of way, which is operational, is adjacent to the tract. The committee recommended the Katzman tract to the town planning and zoning commission as a possible refuse disposal site. The commission considered the Katzman tract and reported favorably on the proposed acquisition and possible use of the tract provided the town purchase some adjoining property to increase the size of the tract to sixty-five acres and provided that the premises be adequately screened with a 200-foot natural screen.

Before proceeding further, the town retained a firm of consulting engineers for the purpose of having it study the feasibility of using the Katzman tract as a refuse disposal area. The firm reported to the town that the Katzman tract was suitable for a sanitary landfill operation.

Following the receipt of the engineers' report in February, 1965, the board of selectmen submitted to the electors at a town meeting a proposal to purchase the Katzman tract. Representatives of the engineering firm who made the study were present at the meeting for the purpose of answering questions concerning the proposal. At this meeting the first selectman of the town stated that he was hopeful of finding some solution to the town's refuse problem without using the Katzman tract as a disposal area. When the discussions were finished, the electors voted to approve the purchase of the entire sixty-five acres for town purposes for $67,000.

The town had been notified by the owner of the private dump site in Weston that it would have to cease using that site by July 1, 1966. This deadline was eventually extended to October 1, 1966. The town's board of selectmen, confronted with this deadline, attempted to find a solution to the town's refuse disposal problem which would not involve the use of the Katzman tract. The selectmen attempted to lease the private dump site in Weston for a price, but its owner refused their offer. The selectmen also investigated possible sites in other towns. A dump site in New Milford was found to be available. New Milford, however, is over thirty miles from Wilton. The selectmen attempted to interest other towns in the area in a regional arrangement for refuse disposal. Several towns were contacted, but they rejected the proposed regional plan for refuse disposal and also refused to take Wilton's refuse.

Finally, on August 15, 1966, the Wilton board of selectmen voted to use the Katzman tract as a refuse disposal site if no other alternative was available. After the owner of the private dump site in Weston refused to extend the October 1, 1966, deadline, the town commenced to prepare the Katzman tract for refuse disposal.

Pursuant to the recommendations contained in the report from the firm of consulting engineers, the town proposed to operate a sanitary landfill method of disposing of garbage and refuse. Its plan, subject to certain operational specifications, was approved by the state department of health. The planning and zoning commission issued a special permit, which allowed the proposed use.

The actual disposal site was to occupy only a portion of about one and one-half to four acres of the sixty-five-acre tract. The site is a saucer-shaped swampy area surrounded by higher ground. It was to be surrounded by a 200-foot buffer strip, which would effectively screen the disposal area from public view. The area was to be open Monday through Friday from 7:30 a.m. to 4:30 p.m. and a half a day on Saturday. Refuse would be dumped into the disposal area. A bulldozer would operate during these hours, spreading, compacting and covering all refuse. By the end of each day, all refuse would be covered by clean fill, which would eliminate any redent problem.

Although the operational specifications of the state department of health did not require it, the board of selectmen voted to prohibit all burning at the site. They also voted to prohibit the dumping of automobiles, tires, construction materials, stumps, brush and rocks.

Approximately two months after the preparation of the tract had begun, but before the area became operational, the town was permanently enjoined from proceeding further with its plan.

The trial court found that carelessness and human error on the part of citizens, collectors, trespassers and children would be likely to cause fires in an area such as this and that fires could occur at sanitary landfill operations owing to spontaneous combustion. It also found that at the present time there was very little traffic in the area of the town in which the Katzman tract was located, but, because those using the refuse area would...