Howe v. Zoning Commission

13 Conn. Supp. 330, 1945 Conn. Super. LEXIS 58
CourtPennsylvania Court of Common Pleas
DecidedJune 28, 1945
DocketFile No. 45652
StatusPublished
Cited by1 cases

This text of 13 Conn. Supp. 330 (Howe v. Zoning Commission) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howe v. Zoning Commission, 13 Conn. Supp. 330, 1945 Conn. Super. LEXIS 58 (Pa. Super. Ct. 1945).

Opinion

CULLINAN, J.

By its action of December 6, 1944, in amending the zoning regulations and Zone boundaries of the City of Norwalk 60 as to convert a business zone into a light industrial zone, the defendant commission is said to have worked a substantial injustice to property owners adjacent to the affected area, among whom is the plaintiff. Her challenge, by way of appeal, is many-sided, involving, as it does, constitutional claims, allegations of procedural irregularity, claimed bias and prejudice on the part of the zoning commissioners, and an all-inclusive claim stemming from an allegation of arbitrary and illegal conduct.

Norwalk, in common with seven additional Connecticut towns and cities, experienced its first contact with zoning [332]*332through enactment of chapter 279 of the Public Acts of 1923. This act empowered the Common Council of Norwalk to appoint a zoning commission with a term of office determined by ordinance or regulation, and, in the same manner, to appoint a board of adjustment. On or about July 24, 1923, Norwalk, acting through its council, appointed a zoning commission which has been in existence ever since. No attempt was made, however, to formulate zoning regulations or to fix zone boundaries under authority of the Public Acts of 1923.

Thereafter, the general zoning law of Connecticut was enacted through the terms of chapter' 242 of the Public Acts of 1925. Pursuant to its provisions, the Zoning Commission of Norwalk, as of October 16, 1929, and for the first time, adopted a typical comprehensive set of zoning regulations, at the same time delineating zone boundaries.

Concededly, chapter 242 of the Public Acts of 1925 was not approved by the Governor within the three-day period prescribed by the Constitution and under the holding in State vs. McCook, 109 Conn. 621, was void.

In August, 1929, however, a special session of the General Assembly was convened for the express purpose “of enacting legislation making effective the purposes and accomplishing the same results as would have been effected and accomplished by, those acts of the present and previous General Assemblies, which were passed by the Senate and House of Representatives, presented to the Governor of the State in each of such years upon the final adjournment of the General Assembly, but which acts were not signed by the Governor within three calendar days (Sundays excepted) after the final adjournment of the General Assembly in each of said years, had said acts been valid when passed.” Governor’s Message to the General Assembly, August 6, 1929, Connecticut Senate Journal (Special Session) pp. 31, 36, 37.

Pursuant to the above direction, the General Assembly enacted five broad enabling or curative acts designed to validate measures which had been declared void by the McCook decision. A primary question is: Was chapter 242 of the Public Acts of 1925, the general zoning law of the State, validated by action of the General Assembly at its special session of August 6, 1929?

[333]*333The issue was presented to our Supreme Court of Errors in Coombs vs. Larson, 112 Conn. 236, wherein the plaintiffs, alleging to have been aggrieved by official action of a building inspector of the Town of West Hartford, contended, in one of their many claims, that the General Assembly, at its special session in 1929, was without power to validate chapter 242 of the Public Acts of 1925. The controversy remained unde' termined, however, when the Supreme Court, in the Coombs case, declined to entertain the constitutional question by reason of the fact that the plaintiffs therein were said to have waived any rights which they may have had to press that claim. Thus, the primary question appears to continue to remain open for determination.

A close reading of the five curative acts of 1929, together with the cases determined after State vs. McCook, supra, would seem to lead to the logical conclusion that chapter 242 of the Public Acts of 1925, the State’s general zoning law, was validated and reenacted at the special session of 1929. Pickett, Pros. Atty. vs. Marcucci’s Liquors, 112 Conn. 169, 181, and Morehouse vs. Employers’ Liability Assurance Corp., 119 id. 416, 421, point the way to this conclusion. Accordingly, from and after August 6, 1929, chapter 242 of the Public Acts of 1925 was valid and existing law of the State of Connecticut. The zoning ordinance of Norwalk, effective October 16, 1929, was adopted under the provisions of chapter 242 of the Public Acts of 1925. Since this act became constitutional through its validation on August 6, 1929, the zoning ordinance of Nor' walk is equally valid, constitutional and effective, having been adopted subsequent thereto and in reliance thereon.

When Norwalk, as of October 16, 1929, adopted its zoning regulations and fixed its zone boundaries, the land on both sides of Connecticut Avenue therein, from Armory Hill to the Darien town line and to a depth of approximately 200 feet, was .designated a business No. 1 Zone. Thus it remained until December 6, 1944, when the Zoning Commission of Norwalk, by unanimous vote, converted it to a light industrial zone, ex' tending the depth of the new Zone from 530 feet in one part to approximately 285 feet in another from the center line of the traveled portion of the highway (Connecticut Avenue).

Mrs. Howe, the appellant, resides on Flax Hill Road, in a B residence zone. Her dwelling is situated approximately 2,000 feet south of Connecticut Avenue. It is her contention that [334]*334she will be prejudiced by the change of zone; that the change of zone is unnecessary, impractical, and imprudent;, and that the Zoning commission acted arbitrarily and in abuse of its discretion.

Apart from the constitutional considerations which have now been resolved against her, the appellant’s second line of attack is directed to claimed procedural irregularities and improprieties of the zoning commission. These run the range from claimed inadequate notice of the public hearing on the proposed zone change to claimed bias and prejudice on the part of the zoning commissioners, who are said to have been improperly influenced by a campaign of propaganda and indoctrination stimulated by the Norwalk Chamber of Commerce.

Section XIX of Norwalk’s zoning ordinance provides: “These regulations may from time to time be amended, changed or repealed by the Zoning Commission as provided in chapter 242 of the Public Acts of 1925.” Section 5 of chapter 242 has now become section 425 of the General Statutes, Revision of 1930, as amended by section 132e of the 1939 Supplement to the General Statutes. Thus, in the matter of zoning amendments, changes or repeal, the Norwalk Zoning Commission in November and December, 1944, was bound by the provisions of section 132e of the 1939 Supplement, reading as follows: “Such zoning authority shall provide for the manner in which such regulations and the boundaries of such districts shall be respectively enforced and established and amended or changed. No such regulation or 'boundary shall become effective or be established until after a public hearing in relation thereto, held by the zoning authority or a committee thereof appointed for that purpose consisting of at least five members, at which parties in interest and citizens shall have an opportunity to be heard.

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Bluebook (online)
13 Conn. Supp. 330, 1945 Conn. Super. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howe-v-zoning-commission-pactcompl-1945.