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Fitzgerald v. Merard Holding Co., Inc.

Supreme Court of Connecticut Third Judicial District, New Haven, June Term, 1929
Oct 8, 1929
147 A. 513 (Conn. 1929)

Opinion

Zoning regulations, adopted by the town of Greenwich, divided the town into zones and excluded from the residential zones buildings devoted to most business uses. The defendant M contracted for a site in a residential zone and commenced excavation after the proposed regulations had been filed for public inspection and notice given of an impending hearing thereon, took title the day they were adopted, and thereafter, although receiving warning that the proposed building would violate them and that no permit would be issued, proceeded to the completion and use of its building for business purposes. This use caused the plaintiff special injuries entitling her to injunctive relief if the regulations were valid, and it constituted a nuisance. Defendant L holds a mortgage on the property. Held: 1. That it is a necessary inference that the exclusion from residential zones of buildings devoted to most business uses has a rational relation to the health and public welfare of the community, and the purposes of this regulation are proper subjects for the exercise of the police power. 2. That since most of the consequences, constituting special damage, which entitled the plaintiff to relief for invasion of her private rights, did not accrue until after the completion of the building, the trial court's conclusion that she was not guilty of laches was correct as a matter of law. 3. That since the value of plaintiff's property for residential purposes, for which alone it is available, has been greatly impaired, and since the defendant M attempted to forestall and circumvent the contemplated regulations and after their passage to override them, the defendants' contention relating to comparative consequences and attempted entrenchment behind expenditures of money cannot be sustained. 4. That the decree should be modified so as to enjoin only such business uses as are not permitted under the terms of the regulations. The possession of a permit to build, commencement of work or the fact that contracts entered into with third persons may be affected, does not constitute a vested right the invasion or deprivation of which by an enactment of general application, and in valid exercise of the police power, invalidates the latter on constitutional grounds. Section XIV of the regulations exempted from change in plans, construction or designated use a building for which a permit had been issued or plans for which had been filed with the building inspector or board of burgesses of the borough or the selectmen of the town, at the time of the passage of the regulations, and the construction of which shall have been prosecuted and completed as provided in that section. Prior to the passage of the regulations no permit or filing of plans was required for building in that part of the town outside the borough, where defendant's land was situated. Held that since the concession in this section was not necessary to the validity of the operative provisions of the regulations nor is the subject-matter of it so interdependent with those other provisions that if it be unconstitutional all of the regulations must fall with it, no useful purpose would be served by a present determination of the defendants' claim that Section XIV is invalid because it deprives them of the equal protection of the law guaranteed by the Constitution.

Argued June 11th, 1929

Decided October 8th, 1929.

ACTION for an injunction restraining the defendants from using a certain building for business purposes in alleged violation of zoning regulations of the town of Greenwich, brought to the Superior Court in Fairfield County and tried to the court, Foster, J.; judgment for the plaintiff and appeal by defendants The Merard Holding Company, Incorporated, and The Lomas Nettleton Company. Error in part.

At a special town meeting of the town of Greenwich held on January 29th, 1925, a Zoning Commission and a Board of Adjustment were appointed. The Zoning Commission met and organized on February 16th, 1925, and determined to engage the services of an expert to draft appropriate zoning regulations; H. S. Swan was subsequently engaged to prepare such regulations and a zoning map. On January 4th, 1926, he presented proposed regulations and map, and the commission voted that a copy be filed with the secretary of the commission, and that a public hearing thereon be held on February 1st, 1926. On January 7th and 8th notice of such public hearing was published in Greenwich newspapers; on January 11th a copy of the proposed regulations and map was filed with the secretary of the commission, and on January 21st such regulations and map were published in a Greenwich newspaper. On February 1st, 1926, a public hearing was held, various amendments were made, and the building zone regulations and map were then adopted by the commission, pursuant to Chapter 242 of the Public Acts of 1925, and No. 408 of the Special Acts of 1925, to take effect immediately, and a building inspector, to enforce the regulations and issue permits thereunder, was appointed.

The general provisions of the regulations so adopted which are important to the present inquiry, including the declaration of purposes contained in Section I, are in substance identical with those of the zoning regulations of the city of Bridgeport, quoted in State v. Hillman, ante, p. 92, 147 A. 294, and, except as hereinafter noted, need not be repeated here. Thereby the town of Greenwich is divided into six classes of zones: A, B, and C Residence Zones, Business Zones Nos. 1 and 2, and Industrial Zones. It is provided (Section II) that "In a residence zone, subject to the provisions of Section VI, no building or premises shall be used and no building shall be erected or altered which is arranged, intended or designed to be used except for one or more of the following uses: 1. Dwellings or tenements, including the office of a physician, surgeon, dentist, architect, engineer, lawyer, dressmaker, artist or musician when situated in the same dwelling or apartment used by such physician, surgeon, dentist, architect, engineer, lawyer, dressmaker, artist or musician as his private dwelling. 2. Boarding houses and rooming houses. 3. Hotels. 4. Churches. 5. Schools, public libraries, or public museums. 6. Clubs, except clubs the chief activity of which is a service carried on as a business. 7. Philanthropic or eleemosynary uses or institutions, other than correctional institutions, or asylums for the insane. 8. Railroad passenger stations and central telephone exchange buildings. 9. Parks and playgrounds. 10. Farming, truck gardening, nurseries or greenhouses. 11. Accessory uses customarily incident to the above uses," (subject to certain limitations and definitions not of present application). Section VI provides that "Any nonconforming use existing at the time of the passing of these regulations may be continued and any existing building designed, arranged, intended, or devoted to a nonconforming use may be reconstructed and structurally altered, and the nonconforming use therein changed," subject to stated regulations not applicable in the instant case.

Section XIV, entitled "Completion and Restoration of Existing Buildings," reads as follows: "Nothing herein contained shall require any change in the plans, construction or designated use of a building for which a building permit has been heretofore issued or plans for which are on file with the building inspector or the Board of Burgesses of the Borough of Greenwich or the Board of Selectmen of the Town of Greenwich at the time of the passage of these regulations and the construction of which, in either case, shall have been diligently prosecuted within a year of the date of such permit and the ground-story framework of which, including the second tier of beams, shall be completed within such year, and which entire building shall have been completed according to such plans as filed within two years from the date of the passage of these regulations."

Prior to the adoption of the zoning regulations and the appointment of a building inspector thereunder, there had been no building inspector having jurisdiction over that part of the town of Greenwich lying outside of the borough. The premises of the plaintiff and of the defendant The Merard Holding Company, Incorporated, are located outside of the borough limits. All the property adjacent to and in the neighborhood and vicinity of these premises is and for many years past has been used and devoted solely to residential purposes and buildings and the neighborhood has been a well-recognized, high-class residential community, devoted exclusively to the erection and maintenance of homes and private dwellings. The plaintiff is the owner of a tract of about seven acres, on which is located a large dwelling-house situated about one hundred and twenty-five feet back from the street line, the premises having a frontage of about two hundred and thirty feet and being located on the west side of Riverside Avenue, and she and her husband and family have for a number of years occupied the same as a private dwelling and home.

During the month of January, 1926, the defendant company contracted in writing for the purchase of certain premises directly across the street from the premises of the plaintiff and prepared plans and specifications for the erection thereon of a building consisting of four stores and contracted for certain labor and materials to be used therein. On January 20th, a contractor started excavating the cellar for the building, using a steam shovel. He worked several days, removed all of the loose earth, and took out a quantity of stones with which he started the construction of the cellar wall, laying the stones as he took them out of the ground so as to save rehandling. By reason of bad weather, this contractor stopped work just before February 1st, and did not resume until the last week of February, or the first week of March following.

During the last week of January, Joseph P. Crosby, who was on February 1st appointed building inspector and authorized to enforce the zoning regulations, visited the defendant's premises and observed the conditions. A few days later, and shortly prior to February 1st, 1926, Mr. Merritt, president of The Merard Holding Company, called at the office of Mr. Crosby, who then and there notified and warned him that the contemplated building would be in violation of the proposed zoning regulations and that a permit therefor would not be issued, but Merritt expressed an intention to proceed with the construction of the building. Since the premises are located outside the borough of Greenwich, the defendant company was not legally required, prior to February 1st, 1926, to obtain the permission of the town of Greenwich or any of its officers for the erection of the building, nor to file plans or specifications of the proposed building with any officer or other authority. On February 2d, the defendant filed with Building Inspector Crosby plans for the building, but no permit authorizing such construction was ever issued.

The defendant The Merard Holding Company became the owner of the premises by deed dated and recorded February 1st, 1926, and on March 1st resumed excavation work and continued the construction and erection of a one-story, four-store building, which was completed during the last week of May. Shortly after June 1st one of the stores was occupied, under lease, by a general chain store grocery business and another for the sale of newspapers, tobacco and miscellaneous merchandise. After the institution of the present action the remaining two stores were from time to time rented for business purposes, one being occupied during most of the period for a meat market, and the other for a tailoring and clothes-cleaning establishment.

The finding of the court is that the character and the conduct of the businesses is such that the highway in front of the plaintiff's property is constantly throughout the daytime greatly congested by automobiles and trucks which are brought there by people who trade and deal with the proprietors of those stores; large numbers of people are attracted to and constantly assemble throughout the day and evening at the stores, three of which frequently keep open until after nine o'clock, and one until as late as mid-night, which is a gathering place for undesirable people from outside the neighborhood, and breaches of the peace and brawls are indulged in; there is a constant noise and disturbance from the arrival and departure of patrons and the delivery of merchandise by trucks and other conveyances; automobiles and trucks constantly park on the highway and sometimes on the sidewalk in front of the plaintiff's property; frequently automobiles and trucks brought to the place by people doing business with the stores drive into the fence in front of the plaintiff's property and onto her lawn; dangerous traffic conditions are created by the parking and operation of automobiles and trucks in front of the plaintiff's premises; the sleep and comfort of the plaintiff and the occupants of her home are disturbed on an average of three or four times a week by large trucks stopping to unload goods and merchandise at one of the stores at between one and three o'clock in the morning; refuse and stained, dirty and blood-stained papers frequently blow over from these stores onto the plaintiff's lawn; and the peace and quiet in and about the plaintiff's property is greatly interfered with and her peaceful and quiet enjoyment thereof is disturbed and prevented. The annoyances to the plaintiff and the injuries sustained by her, as a result of the conduct and operation of the businesses and of the proximity of the plaintiff's premises to those of the defendant, are special and peculiar and totally different from those sustained by the public and all other property owners whose property is located within the same zone and in the same neighborhood of these premises.

Sol Rubin, with whom was Robert J. Emmons, for the appellant (defendant The Merard Holding Company, Incorporated).

Clement A. Fuller, with whom, on the brief, was Edward C. Fisher, for the appellant (defendant The Lomas Nettleton Company).

Raymond E. Hackett, with whom was John D. Walker, for the appellee (plaintiff).


The foregoing and other facts set forth in the finding, which is not attacked, are ample to support the conclusions reached by the trial court that at the time of the adoption of the regulations there did not exist on defendant's premises any nonconforming use, or any building designed, arranged, intended or devoted to a nonconforming use, that the defendant thereafter knowingly and wilfully violated these regulations by causing to be erected a building for purposes not permitted or authorized thereby, and by using the premises and permitting or causing the same to be used for business purposes caused the plaintiff substantial and special injuries. Those injuries and damage were clearly such as to entitle the plaintiff to maintain her action and to injunctive relief, if the regulations are valid. Fitzgerald v. Merard Holding Co., 106 Conn. 475, 482, 138 A. 483. The further conclusion that the defendants, in the uses made of their building and premises, are guilty of creating and maintaining a nuisance, is also justified.

As above noted the building zone regulations here under consideration are substantially similar, both in purpose and in effect, to those adopted for the city of Bridgeport and which were involved in State v. Hillman, ante, p. 92, 147 A. 294. In that case, consistently with the position with reference to legislation adopting building lines taken by this court in Windsor v. Whitney, 95 Conn. 357, 111 A. 354, and the principles therein enunciated, and in harmony with the holding of the Supreme Court of the United States, and of most of the States which have passed upon the question, we held that neither the enabling statute (Chapter 242 of the Public Acts of 1925) nor regulations adopted pursuant thereto were open, as a whole, to successful attack on constitutional grounds. It is sufficient to refer to the discussion contained in the opinion in that case and the abundant and decisive authorities therein cited. See also Baker, Legal Aspects of Zoning (1927) Chap. V.

The facts found in the present case demonstrate that it is a necessary inference that the exclusion from residential zones of buildings devoted to most business uses "has a rational relation to the health and public welfare of the community" equally as important and justifying regulation, as the prohibition of obnoxious and nuisance-creating trades or uses in a light industrial zone which was specially involved in the Bridgeport case. Euclid v. Ambler Realty Co., 272 U.S. 365, 391, 71 L.Ed. 303, 312, 47 Sup. Ct. 114. "The decisions enumerated in the first group cited above agree that the exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational relation to the health and safety of the community. Some of the grounds for this conclusion are — promotion of the health and security from injury of children and others by separating dwelling-houses from territory devoted to trade and industry; suppression and prevention of disorder; facilitating the extinguishment of fires, and the enforcement of street traffic regulations and other general welfare ordinances; aiding the health and safety of the community by excluding from residential areas the confusion and danger of fire, contagion and disorder which in greater or less degree attach to the location of stores, shops and factories. Another ground is that the construction and repair of streets may be rendered easier and less expensive by confining the greater part of the heavy traffic to the streets where business is carried on." Euclid v. Ambler Realty Co., supra, p. 391. "The constantly increasing density of our urban population, the multiplying forms of industry and the growing complexity of our civilization make it necessary for the State, either directly or through some public agency by its sanction, to limit individual activities to a greater extent than formerly. With the growth and development of the State the police power necessarily develops, within reasonable bounds, to meet the changing conditions. . . . The harmless may sometimes be brought within the regulation or prohibition in order to abate or destroy the harmful. The segregation of industries, commercial pursuits and dwellings to particular districts in a city, when exercised reasonably, may bear a rational relation to the health, morals, safety and general welfare of the community. The establishment of such districts or zones may, among other things, prevent congestion of population, secure quiet residence districts, expedite local transportation, and facilitate the suppression of disorder, the extinguishment of fires and the enforcement of traffic and sanitary regulations. The danger of fire and the risk of contagion are often lessened by the exclusion of stores and factories from areas devoted to residences, and, in consequence, the safety and health of the community may be promoted. . . . The exclusion of places of business from residential districts is not a declaration that such places are nuisances or that they are to be suppressed as such, but it is a part of the general plan by which the city's territory is allotted to different uses in order to prevent, or at least to reduce, the congestion, disorder and dangers which often inhere in unregulated municipal development." Aurora v. Burns, 319 Ill. 84, 93, 94, 95, 149 N.E. 784. "In the first place, the exclusion of business establishments from residence districts might enable the municipal government to give better police protection. Patrolmen's beats are larger, and therefore fewer, in residence neighborhoods than in business neighborhoods. A place of business in a residence neighborhood furnishes an excuse for any criminal to go into the neighborhood, where, otherwise, a stranger would be under the ban of suspicion. Besides, open shops invite loiterers and idlers to congregate; and the places of such congregations need police protection. In the second place, the zoning of a city into residence districts and commercial districts is a matter of economy in street paving. Heavy trucks, hauling freight to and from places of business in residence districts, require the city to maintain the same costly pavement in such districts that is required for business districts; whereas, in the residence districts, where business establishments are excluded, a cheaper pavement serves the purpose. . . . Aside from considerations of economic administration, in the matter of police and fire protection, street paving, etc., any business establishment is likely to be a genuine nuisance in a neighborhood of residences. Places of business are noisy; they are apt to be disturbing at night; some of them are malodorous; some are unsightly." State ex rel. Civello v. New Orleans, 154 La. 271, 282, 283, 33 A. L. R. 260, 97 So. 440. The finding affords a significant confirmation of many of the considerations above enumerated. The purposes of this regulation are proper subjects for the exercise of the police power. State v. Hillman, ante, p. 92, 147 A. 294.

The appellants' main contention is that the regulations involve an unconstitutional impairment of rights vested in them — in The Merard Holding Company by reason of its contract to purchase, engagements entered into, and excavations made before the formal adoption of the zoning regulations, and in The Lomas Nettleton Company under a mortgage taken May 17th, 1926, about three and one half months after such adoption. The rule is well established that the possession of a permit to build, commencement of work (especially when the building is not substantially in course of construction) or the fact that contracts entered into with third persons may be affected, does not constitute a vested right the invasion or deprivation of which by an enactment of general application, and in a valid exercise of the police power, invalidates the latter on constitutional grounds. Brett v. Building Commissioner of Brookline, 250 Mass. 73, 81, 145 N.E. 269, and cases cited; Spector v. Building Inspector of Milton, 250 Mass. 63, 145 N.E. 265; Opinion of the Justices, 234 Mass. 597, 127 N.E. 525; Ware v. Wichita, 113 Kan. 153, 214 P. 99; State ex rel. Manhein v. Harrison, 164 La. 564, 114 So. 159; People ex rel. Publicity Leasing Co. v. Ludwig, 158 N.Y.S. 208; Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 1102, 184 N.W. 823, 188 id. 921. These cases are definitely and legitimately distinguishable from those upon which appellant relies, which involve revocation of an individual permit because of "a change of mind" on the part of a licensing official or board, or similar situation, instead of the adoption or change of a comprehensive by-law or regulation of general application. The position of the defendant The Merard Holding Company is even less tenable than that of the complainants in the cases last above referred to. As we have seen, it contracted for the site and, without permit from any authority, commenced excavation operations after the proposed zoning regulations had been filed for public inspection and public notice given thereof and of the impending hearing upon and contemplated adoption of them, took title to the premises on the very day of the adoption of the regulations and after receiving warning that the proposed building would violate them and that no permit would be issued, and thereafter, without any attempt to have its claimed rights judicially determined, proceeded to the completion and use of its building in definite and conscious violation and apparent defiance of the established restrictions. In holding that the regulations involve no unconstitutional invasion of this defendant's rights we are well within the principle settled by the cases above cited, and fall far short of the rigors of the decision in Hadacheck v. Sebastian, 239 U.S. 394, 36 Sup. Ct. 143, or even Reinman v. Little Rock, 237 U.S. 171, 35 Sup. Ct. 511. The claim of The Lomas Nettleton Company that the regulations impair vested rights growing out of a mortgage taken long after their adoption and with constructive notice of their provisions, is also futile.

Section XIV of the regulations, hereinbefore quoted, exempts from change in plans, construction or designated use, a building for which a permit had been issued or plans for which had been filed with the building inspector or board of burgesses of the borough of Greenwich or the selectmen of the town, at the time of the passage of the regulations, and the construction of which shall have been prosecuted and completed as therein provided. Prior to such passage, no permit was required for building in that part of the town lying outside of the borough limits nor was there any requirement that plans therefor be filed with the selectmen or any other officer or authority. The appellants assert that, in consequence, the effect of Section XIV is to accord, as to property within the borough, where such permit and filing was provided for, a privilege not available to property in the town outside of the borough limits, and thereby to deny to the defendants the equal protection of the law guaranteed by Article Fourteen of the Amendments of the Constitution of the United States. But since, as above stated, filing of plans or the obtaining of a permit would not confer such a vested right that exemption from denial of or encroachment upon it is essential to the constitutionality of the regulations, the concession contemplated by this section was not necessary to the validity of the essential operative provisions of the regulations, nor is the subject-matter of the section so connected and interdependent with those other provisions that if the former be unconstitutional, all of the regulations must fall with it. State ex rel. Mathewson v. Dow, 78 Conn. 53, 56, 60 A. 1063; Miller v. Colonial Forestry Co., 73 Conn. 500, 48 A. 98; 1 Cooley's Constitutional Limitations (8th Ed.) p. 359 et seq. Another section (XVI) provides that if any part of the regulations shall be adjudged invalid, such adjudication shall apply to that part only, and the remainder shall be valid and effective. Since if this section, alone, were held to be invalid the provisions upon which the judgment depends would remain unaffected and operative, no useful purpose would be served by a present determination as to the constitutional validity of Section XIV.

It is obvious that most, if not all, of the consequences alleged in the complaint and set forth in the finding as constituting that special damage to the plaintiff — as distinguished from injury common to the residential community in which she lives — which entitled her to seek redress for invasion of her private rights, could not and did not accrue until after the completion of the building and its occupancy for business purposes, which was after June 1st. The trial court's conclusion that the plaintiff was not guilty of laches in the institution of her suit, early in August, is unassailable as a matter of law. Moreover, the plaintiff's property, the court finds, has been rendered unavailable, by the adoption of the zoning regulations, for any purpose other than residential, and its use and value for that purpose has been greatly impaired by defendant's conduct, while it is apparent that the defendant Holding Company deliberately attempted, first to forestall and circumvent the accomplishment of the legitimate purposes of the contemplated regulations by forwarding its operations before even taking title and before the date set for adoption of the regulations and, after such adoption, to override and flout them. These considerations are not only relevant to the question of laches but are decisive, adversely to the defendants, of their contentions relating to comparative consequences and their attempted "entrenchment behind considerable expenditures of money." Armstrong v. Leverone, 105 Conn. 464, 475, 136 A. 71; Stewart v. Finkelstone, 206 Mass. 28, 38, 92 N.E. 37, 28 L.R.A. (N.S.) 634.


Summaries of

Fitzgerald v. Merard Holding Co., Inc.

Supreme Court of Connecticut Third Judicial District, New Haven, June Term, 1929
Oct 8, 1929
147 A. 513 (Conn. 1929)
Case details for

Fitzgerald v. Merard Holding Co., Inc.

Case Details

Full title:MARGARET COOK FITZGERALD vs. THE MERARD HOLDING COMPANY, INCORPORATED, ET…

Court:Supreme Court of Connecticut Third Judicial District, New Haven, June Term, 1929

Date published: Oct 8, 1929

Citations

147 A. 513 (Conn. 1929)
147 A. 513

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