Town of Windsor v. Whitney

111 A. 354, 95 Conn. 357, 12 A.L.R. 669, 1920 Conn. LEXIS 103

• Court: Supreme Court of Connecticut
• Decided: August 5, 1920
• Status: Published

Opinions

Wheeler, J.

The complaint alleges that the town of Windsor raised a commission under the Special Act of the General Assembly approved April 3d, 1917, 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; that they have established building and curb lines on these streets, have sold for building purposes a number of lots thereon; 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 § 1 of Article 14th 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 said town [Windsor], section by section, . . . showing locations for any public buildings, 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 loiown owner of land in that 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 thirty days to the Superior Court, and its decision shall be final.

Section 8 provides: “Nothing herein 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 it 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 said town of 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 § 3, and if they do not accept or reject the plan and petition in sixty days they shall be considered as accepted. We think that by reference to the procedure of § 3, it was intended to include the appeal provided in § 4 from the decision Reached in § 3. This procedure is inseparably 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 § 9. The case against the defendants is based upon their proceeding in the development and marketing of their lots without reference to §§ 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 his 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 owner’s 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 ánd 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 a 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 promoters 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, ante, p. 317, is not involved: first, because the demurrer under review raises a single question, whether the Act is unconstitutional because it takes property without compensation; second, 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 third, 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 unless its invalidity is, in our judgment, beyond, reasonable doubt.” Beach v. Bradstreet, 85 Conn. 344, 349, 82 Atl. 1030. Streets properly located and of suitable width help transportation, add to the safety of travel, furnish better protection against fire, and better light and air to those who live upon the streets. They afford better opportunities for laying, maintaining and inspecting water, sewer, gas and heating pipes, and electric and telephone conduits in the streets. They give opportunity for sidewalks of reasonable width and for shade trees along the highway. Streets of reasonable width add to the value of the land along the street, enhance the general value of land and buildings in the neighborhood and greatly increase the beauty of the neighborhood. These are all facts of universal knowledge.

The layout of a street or highway by a private person and the regulation of its width, unless determined otherwise by authority, has been a part of our statute law since 1899 General Statutes, § 1436, provides: “No person, company or corporation, excepting municipal corporations, shall lay out any street or highway in this state less than three rods in width, unless with the prior written approval of a majority of the selectmen of the town, or of the burgesses of the borough, or of the common council of the city, wherein such street or highway is located.” The constitutionality of this provision has never been questioned, so far as we are aware of, in a litigated case. In the Town Plan Commission Act of 1917, a commission was given similar powers over privately owned land. Public Acts of 1917, Chap. 349 (General Statutes, §§ 391-396). These statutes indicate the legislative conviction that acts such as these are within the legitimate exercise of the police power. Narrow streets in congested industrial centers breed disease. Too many houses crowded upon a lot without sufficient space for light and air menace health. Such a neighborhood affects the morals of its people. The sordid selfishness which would insist upon making the street a mere alley, upon getting houses upon land without regard to reasonable provision for air and light, must be restrained if the' public welfare is to be preserved. The State is vitally interested in the health of its citizens, for upon their strength rests its own well-being. It or its agent, the town, must provide fire and police protection to all settled parts. The State and its agent, the town, cannot preserve and protect the rights committed to it if private owners may lay out streets at will and build at will. Uniformity in plan or relation of one street to others will be absent. The practical loss to the community will be large and the loss in neighborhood appearance will be immeasurable.

The Act does not prohibit the owners from the use of any of their land, except in case they purpose opening streets and selling lots thereon. In which case they lose the use of so much of their land as is contained in the street limits and is in excess of what they purposed laying out as a street, and of so much of the land as the building line prevents their use of for building purposes. If the prohibition of the Act deprived an owner of the use of any part of his land and this was not needed for the public health, safety, or welfare, there would be a plain violation of the constitutional provision. But where it is so needed, and that is the case before us, the subjection to the police power of all property gives the State the right to forbid the use of property in the way desired, save under reasonable conditions promoting the public welfare. The State may regulate the use of property to the point of forbidding thereon certain businesses in themselves lawful, as in the case of slaughter-houses and cemeteries. It may regulate building in the interest of health and fire safety. It may limit the height of buildings in certain districts or the character of the buildings in these districts. It may prevent the erection of billboards or limit their height. In short, it may regulate any business or the use of any property in the interest of the public health, safety or welfare, provided this be done reasonably. To that extent the public interest is supreme and the private interest must yield.

Eminent domain takes property because it is useful to the public. The police power regulates the use of property or impairs the rights in property, because the free exercise of these rights is detrimental to public interest. Freund on Police Power, § 511. It is upon this principle that the State has the right to say, if you lay out streets in the development of your land for building purposes you must make them of reasonable width and you must establish reasonable building lines, for thereby will you protect the public health and safety and the public welfare.

As a rule, building lines have been held to be a taking of property because they impair the use of ownership of land over which building is prohibited. St. Louis v. Hill, 116 Mo. 527, 22 S. W. 861, is perhaps the most often-cited case to this point. The question has not been of the utmost practical importance in New England, for as a rule our municipal charters provide compensation. In practice, the benefits and damages are assessed as equal. “He who is not injured by the operation of a law or ordinance cannot be said to be deprived by it of either constitutional right or of property.” Cusack Co. v. Chicago, 242 U. S. 526, 530, 37 Sup. Ct. 190.

Nowhere, so far as we can ascertain, has the specific case been before the court which the record in this case presents. The building line in these other cases was not specifically found to have been run in the interest of public safety and health and for the public welfare. That is this case. If a building line six feet from an owner’s street line will tend to preserve the public health, add to the public safety from fire, and enhance the public welfare by bettering living conditions and increasing the general prosperity of the neighborhood, can it be run by legislative authority in the exercise of the police power, when such an exercise of the police power is reasonable under the circumstances of the case? We hold that it can, and that this is not a taking of property in violation of constitutional right for which compensation must be made.

The body of the law upon the subject of the police power is the growth of comparatively recent years. It has been said to be still in the formative stage. The line between eminent domain and the police power is a hard one to hold with constancy and consistency, and it is not surprising that now and again these two great powers of government have been confused. A few years ago it was, so far as the rule had been announced, undoubted that restrictions could not be imposed upon private property solely for aesthetic considerations. Later it has been said by high authority that aesthetic considerations may be regarded in connection with recognized police power considerations. And now Dillon, in the latest edition of his Municipal Corporations, § 695, says: “The law on this point is undergoing development, and perhaps cannot be said to be conclusively settled as to the extent of the police power.” Welch v. Swasey, 214 U. S. 91, 29 Sup. Ct. 567, affirming 193 Mass. 364, 79 N. E. 745, tends to justify the author’s conclusion. Where the free exercise of one’s rights of property is detrimental to the public interest, the State has the right to regulate reasonably such exercise of control under the police power. And that, of course, means, without compensation. The regulation of the location and width of streets and the establishment of building lines, is by no means as much of an impairment of the right to use property as are the provisions of our statutes regulating tenement houses and lodging-houses. General Statutes, Chapters 133 and 134. These limit the area of the lot which' the tenement house shall occupy. They provide for rear yards. They regulate the air space, light and ventilation of rooms. And in many other ways the State restricts the use of such property by an owner. Regulations of this character, if reasonable, do not constitute a taking of property.

The “due process’’clause does not prevent the State from making all needful regulations for the public welfare, and does not require compensation to be made in case these regulations are reasonable, although they do deprive the owner of the use of his property. Cusack Co. v. Chicago, 242 U. S. 526, 37 Sup. Ct. 190. There need be no fear that individual rights will be unduly subordinated to social rights, for each claimed exercise of the police power is subject, first, to the test of whether the case falls fairly within the subjects of the police power, and second, whether the means exercised, in quality and extent, are reasonable, reasonable in time, place and circumstance; and both tests are made and ascertained by the courts.

A legislatiye requirement, such as the Act before us, that private highways laid out in land development schemes shall be of a reasonable width and that reasonable building lines shall be established upon these streets before the erection of buildings fronting upon these streets shall be permitted, is well within the police power and does not offend against the Fourteenth Amendment. It is supported and sustained by the principle stated by Chief Justice Shaw in Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 84: “We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shrill not be injurious to the equal enjoyment of others having an equal right to the. enjoyment of their property, nor injurious to the rights of the community.”

There is error, the judgment is set aside and the cause remanded to be proceeded with according to law.

In this opinion Prentice, C. J., Beach and Case Js., concurred.