Jennings v. Connecticut Light & Power Co.
Jennings v. Connecticut Light & Power Co.
Opinion of the Court
This is an action for a declaratory judgment. The individual plaintiffs, Herbert Jennings and Priscilla B. Sheldon, are resident taxpayers and property owners in Norwalk. The plaintiffs Wilson Point Property Owners’ Association, Inc., and Village Creek Homeowners’ Association, Inc., are Connecticut corporations, without capital stock, whose members are owners of real property located at Wilson Point and at Village Creek in Norwalk. The plaintiff The Greater Norwalk Improvement Association is an unincorporated association composed of residents of Norwalk and is devoted to various public purposes, among which is opposition to the encroachment of industry into residential areas. The named defendant, a corporation chartered by the legislature, is engaged in generating and distributing electricity throughout the state. 11 Spec. Laws 158,17 id. 833,18 id. 106. The defendants Herbert J. Stursberg, Russell Frost, III, John Canevari, George Brazil and Robert B. Douglas are members of the zoning commission of Norwalk. After the action was instituted, The Harbor View Company, a nonprofit Connecticut corporation whose members are the owners of real estate at Harbor View, and Charles D. Steurer, Jr., a resident taxpayer and property owner at Harbor View, were joined as parties defendant. The city of Norwalk moved to
After the pleadings were closed, the parties entered into a stipulation reserving the cause to this court for its advice on the questions set forth in the footnote.
The facts are as follows: The defendant The Connecticut Light and Power Company, hereinafter called the company,' purchased a substantial area of land in the southern part of Norwalk. A portion
The company purchased its property for the purpose of erecting a steam plant on Manresa Island for generating electricity. It claims that the great increase in population in southwestern Connecticut and the consequent demand for electric current require the expansion of the company’s generating facilities. It alleges that electricity can be produced at a lower cost if the generating facilities are located near the
On November 24, 1952, the company, purporting to act pursuant to the provisions of General Statutes, § 5646, brought a petition to the zoning commission reciting that it proposed to erect a steam plant on Manresa Island and that public necessity and convenience required the erection of such a plant. It requested the commission to enter an order regulating and restricting the location of the plant. After a hearing, at which the plaintiffs were represented, the commission found that there was a need for additional electric power in southwestern Connecticut which could be met by the proposed steam generating plant. It entered an order approving Manresa Island as the location for the plant and imposed twenty-three separate specific regulations upon the' construction and operation of it. It is not necessary to set forth these regulations in detail. It suffices to state that they dealt precisely with the size, location and landscaping of the plant, the height of the stack, the handling and storage of coal, the prevention of fly ash and smoke, the con
At the threshold of the case, we meet a question of statutory construction. The company’s application to the zoning commission of Norwalk for permission to erect a steam plant on its property at Manresa Island purported to invoke the power of that commission, under § 5646 of the General Statutes, to regulate and restrict the location of the proposed plant. The commission conducted its hearing and issued its order as though it had special authority under that statute to do so. The plaintiffs claim that the commission has no special powers to act and that the regulation and restriction of the location of the proposed steam plant was a matter solely within the cognizance of the zoning authorities of the city acting under their general powers and should have been treated as such.
To resolve this issue, it is necessary to determine the legislative intent expressed in § 5646. Mad River Co. v. Wolcott, 137 Conn. 680, 686, 81 A.2d 119; State
Two earlier legislative enactments bearing upon § 5646 are significant. As the statute appeared in the Revisions of 1888, 1902 and 1918, it gave to the public utility involved the right of appeal to a judge of the Superior Court. By an amendment in 1929, the right of appeal ran to the public utilities commission. Public Acts 1929, c. 154. Again, previous to 1915, control over the use of the public highways by electric service companies was left solely to the local authorities. In 1915, four years after the creation of the public utilities commission (Public Acts 1911, c. 128), the General Assembly prescribed that
These two enactments manifest a recognition by the legislature that the control of the plants, apparatus and transmission lines of a public service company is a matter of more than local concern and one which should be under the supervision of a commission with state-wide jurisdiction. The second enactment is significant also because it gave to the public utilities commission control not only of the structures and transmission lines of public service companies which are located in the public highway but also of generating plants and other structures which are situated on private property.
Before considering the further amendments to § 5646, it is well to turn to the statutes relating to the public utilities commission to see if they disclose any legislative history or policy which might be help
The rationale of our legislation dealing with the regulation and control of public service corporations by the state through a state commission was early expressed in Cullen v. New York, N.H. & H.R. Co., 66 Conn. 211, 33 A. 910. In that case, the railroad company brought an application to the railroad commissioners for the alteration of a public highway so as to eliminate a grade crossing. The charter of New Haven gave to its common council exclusive control over highways. The claim was made that the railroad commissioners were without power to relocate any portion of the highway which was not within the limits of the railroad right of way. The commissioners ordered a relocation of the highway which resulted in the discontinuance of a substantial part of it outside of the railroad right of way. The court, sustaining the action of the commissioners, stated (p. 223): “A steam railroad is a road in the safe maintenance and operation of which the whole State is directly interested. It is therefore put under the supervision of a board of State officers, with extensive powers. Their authority sometimes trenches upon what would otherwise be within the exclusive jurisdiction of some particular municipality, and wherever it does, the latter must give way, for so only could any general policy of administration be carried out. The proper regulation of railroads, in their course through different towns, is a matter which is necessarily of more than local concern.” If the state-wide interest in steam railroads furnished the reason for making the power of the railroad commissioners superior to that of local municipal officials in 1895, then, most assuredly, the same reasoning applies today with even greater emphasis to a public
It may be pointed out that § 5401 specifically states that one of its purposes is to promote local control of the public service corporations as well as to assure to the state full powers to regulate such corporations. It has ever been the policy of this state to place in the hands of its local governments a large authority in the regulation of their local affairs. Central Ry. & Electric Co.’s Appeal, 67 Conn. 197, 219, 35 A. 32. The erection of a steam electric generating plant to meet a demand for electric energy far beyond the confines of Norwalk is, however, not solely a matter of local concern. As we pointed out in Connecticut Co. v. New Haven, supra, 209, the growth and development of public service corporations, their proper regulation in the public interest, and the incapacity of local government to supervise their activities in a uniform manner were responsible for the creation of the railroad commissioners and for increasing their powers. As other public service corporations came into being and spread the tentacles of their operation across town, city and county lines, the public utilities commission was created and empowered to regulate
In 1935, § 5646 took its present form. General Statutes, Cum. Sup. 1935, § 1420c. In considering the language which was added, we will discuss certain portions of it seriatim. The language of the earlier revisions concerning the powers conferred upon local authorities was retained. This, read with what is now § 5645, gave the local authorities power with reference only to such structures as were located “over, on or under any highway or public ground.” General Statutes, Rev. 1930, §§ 3822, 3823. There was added to it the following: “... but no authority granted to any city or borough or a town planning, zoning, building, gas, water or electrical board, commission or committee created under authority of the general statutes or heretofore created by virtue of any special act, shall be construed to apply to so much of the operations, plant, building, structures or equipment of any public service company as is under the jurisdiction of the public utilities commission, but such board, commission or committee, if it have the power to regulate and restrict the location of structures, trades, industries and business, may regulate and restrict the proposed location of any steam plant, gas plant, gas tank or holder, water tank or electric substation of any public service company.” By this wording, the General Assembly conferred upon the local board or
Prior to 1935, a general zoning law was enacted under which any city or town could adopt zoning regulations. Public Acts 1925, e. 242. Furthermore, this court had decided that a local zoning authority could deny to a public utility permission to erect a gas holder in a business zone. Greenwich Gas Co. v. Tuthill, 113 Conn. 684, 155 A. 850. Here was a new and different power granted by the state to its municipalities. The legislative problem was how to accommodate the local power of zoning, administered through local agencies of government, to the statewide power of public utility regulation exercised by a state agency. It is a rule of statutory construction that the legislature is presumed to know all the existing statutes and that when it enacts a law it does so in view of existing relevant legislation, intending the statute enacted to be read with the per
It is the plaintiffs’ contention that by the enactment of § 5646 the legislature intended that local zoning authorities, acting as such, should have the sole power to regulate, restrict and, in the legal exercise of their discretion, prevent the location of any plant or structure of an electric service company within their jurisdiction. In other words, the plaintiffs contend that in operating under § 5646 a zoning commission is acting only under the authority of the zoning laws and is administering only those laws. If this is so, then the public utilities commission would be powerless to compel any electric service company to provide adequate service for the generation of electric energy, or to regulate or direct it in any way concerning its functions of public service, if, in so doing, the commission contravened any regulation or order of a local zoning authority. In short, local zoning authorities could deny to a public utility company the placing of any structure essential to its operation or so control or restrict its operations as to make them economically unfeasible or
In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language. Miller v. Colonial Forestry Co., 73 Conn. 500, 505, 48 A. 98; Antman v. Connecticut Light & Power Co., 117 Conn. 230, 236, 167 A. 715; 50 Am. Jur. 280; see 2 Sutherland, Statutory Construction (3d Ed.) § 4507. That the legislature manifested no such intention is made clear from the language of § 5646 immediately following that just considered: “Any local body mentioned in this section and the appellate body, if any, may make all orders necessary to the exercise of such power, direction or control, which orders shall be made within thirty days of any application and shall be in writing and recorded in the records of their respective communities, and written notice of any order shall be given to each party affected thereby.” The statute then goes on to state that each such order shall be subject to the right of appeal, by any party aggrieved, to the public utilities commission, which, after rehearing, upon due notice to all parties in interest, shall determine the matter in question and may affirm, modify or revoke the order or make any order in substitution of it.
This right of appeal includes not only an appeal from the local authorities mentioned in the first part of the statute but also from zoning authorities and commissions. That this is so is readily apparent
The plain intendment of the legislature is that a public utility company, in this instance the named defendant, if it desires to erect a steam plant in a city or town where there are a zoning commission and
The designation of a local zoning agency to perform a joint function with the state is not new in our statute law. Under General Statutes, §§ 2538, 2539 and 2540, zoning boards of appeal are clothed with authority to pass upon the suitability of the proposed location of a gasoline station before a license to sell gasoline at the location can be issued by the commissioner of motor vehicles. Dadukian v. Zoning Board of Appeals, 135 Conn. 706, 712, 68 A.2d 123; Colonial Beacon Oil Co. v. Zoning Board of Appeals, 128 Conn. 351, 354, 23 A.2d 151; Berigow v. Davis, 116 Conn. 553, 556, 165 A. 790.
We conclude, therefore, that the zoning commission of Norwalk, in conducting its hearing and issuing its order, was acting as an agency of the state designated to fulfil a special function under § 5646, and that it properly received the company’s application with regard to the location of a steam plant and was empowered to issue its order regulating and restricting the location of the plant.
The plaintiffs allege that § 5646, so far as it provides that the zoning commission “may regulate and restrict the proposed location of any steam plant... of any public service company,” is unconstitutional because it contains no express standard or guide for
The plaintiffs charge further that the zoning commission has interpreted the statute in such a way as to make it unconstitutional as applied to them because as so applied (1) it is class legislation and (2) it violates the requirements of due process. While the commission was guided in part by considerations of local zoning needs, it was, nevertheless, acting as an agent of the state, clothed with special police powers. Its task was to deny the location of the steam plant on Manresa Island or to permit it under such regulations and restrictions relative to zoning as in its legal discretion it deemed necessary and suitable. To be valid, its order must come within the police power it was exercising. Consequently, the order must have a reasonable relation to the public welfare within the particulars specified in the statute or statutes under which it acted. Fairlawns Cemetery Assn., Inc. v. Zoning Commission, 138 Conn. 434, 440, 86 A.2d 74; Fitzgerald v. Merard Holding Co., 110 Conn. 130, 138, 147 A. 513; Nectow v. Cambridge, 277 U.S. 183, 188, 48 S. Ct. 447, 72 L. Ed. 842. An examination of the order issued by the commission demonstrates that the regulations and restrictions imposed were made in the interest of the public health, safety and welfare and the public convenience and necessity.
As to the charge of class legislation and lack of due process, it is axiomatic that all private property is held subject to the police power of the state. In Modeste v. Public Utilities Commission, 97 Conn. 453, 455, 117 A. 494, for example, it was conceded that the act conferring upon the public utilities commission the power to regulate jitney service was valid, and the court held that, pursuant to it, the
We consider next the plaintiffs’ claim that the order of the zoning commission is null and void because the commission had no legal existence owing to the failure of the city of Norwalk to adopt, pursuant to § 121i of the 1947 Supplement, the provisions of the 1947 Zoning Act. Sup. 1947, §§ 121i-130i (Rev. 1949, § 836 et seq.). The commission was
The plaintiffs contend that the order of the zoning commission is invalid because they were denied a legal hearing. Their complaint is that the commission conducted an ex parte investigation and denied to them the right of cross-examining witnesses. Section 5646 makes no specific provision for any hearing before the zoning commission, although it is implied that there may be one from the fact that the appeal
Where the only hearing required is an ex parte one, as in the present case, persons who have no standing to be heard have no basis to complain about the manner in which the hearing was conducted. The zoning commission did hold a hearing. The stipulation of facts contains an allegation that no cross-examination was allowed. However, by stipulation the exhibits are before us and they in-
Nor does the fact that a member of the commission visited other steam generating plants during the course of the investigation make the proceedings invalid. Members of an administrative body are entitled to consider facts which they have learned through personal observation, if properly made. Mrowka v. Board of Zoning Appeals, 134 Conn. 149, 154, 55 A.2d 909. Even if it were conceded that knowledge from personal observation was improperly acquired by a member of the commission in the instant case, it was not harmful to the plaintiffs. The company produced testimony on conditions at the plants visited by the commission member. The plaintiffs produced witnesses who contradicted this testimony. While we adhere to the proposition that the members of a zoning commission should decide any cause primarily upon the evidence offered at the hearing, when a hearing is required, they may, nevertheless, take into consideration personal knowledge which they have properly acquired. We cannot find that in the instant case the conduct of one member of the commission vitiated the entire proceedings. Mrowka v. Board of Zoning Appeals, supra.
The plaintiffs press the further claim that the act of 1947 setting up a planning commission for Norwalk (25 Spec. Laws 302) precludes the zoning commis
In a counterclaim, the company asks for a declaratory judgment as to the power of the public utilities commission, under § 5646, to authorize the location of the steam plant on the company’s property in Norwalk despite the provisions of any general or special statute or ordinance relating to zoning and
We answer “Yes” to the questions (a), (b), (c) and (d). For the reasons stated, we decline to answer question (e). No costs will be taxed in this court to any party.
In this opinion Inglis, C. J., and Wynne, J., concurred.
“(a) Is the Order of the Zoning Commission of the [City] of Norwalk, dated January 19, 1953, set forth as Exhibit A in the Complaint, valid?
“(b) Is it proper in this proceeding for the Court to enter a Declaratory Judgment determining the constitutionality, construction and scope of Section 5646 of the General Statutes of Connecticut, Bevision of 1949?
“(c) If the answer to the preceding question is in the affirmative, is Section 5646 constitutional?
“(d) If the answer to Question (b) is in the affirmative, will the Public Utilities Commission on the Appeal from the aforesaid Order of the Zoning Commission that is now pending before it, have the right and power as provided in Section 5646, ‘to affirm or modify or revoke such [Order] or make any [Order] in substitution thereof’?
“(e) If the answer to Question (b) is in the affirmative, will the Public Utilities Commission, on the aforesaid Appeal, have the right and power to authorize The Connecticut Light and Power Company to locate its proposed steam plant on its property in Norwalk despite the provisions of any general or special statutes or any ordinances relating to municipal zoning or planning in Norwalk?”
“Sec. 5646. control by local authorities ; appeal. Except as provided in section 5655, the selectmen of any town, the common council of any city and the warden and burgesses of any borough shall, subject to the provisions of section 5645, within their respective jurisdictions, have full direction and control over the placing, erection and maintenance of any such wires, conductors, fixtures, structures or apparatus, including the relocation or removal of the same and the power of designating the kind, quality and finish thereof, but no authority granted to any city or borough or a town planning, zoning, building, gas, water or electrical board, commission or committee created under authority of the general statutes or by virtue of any special act, shall be construed to apply to so much of the operations, plant, building, structures or equipment of any public service company as is under the jurisdiction of the public utilities commission, but such board, commission or committee, if it have the power to regulate
Dissenting Opinion
(dissenting). I feel compelled to dissent from the conclusion of the majority that the zoning commission acts as a special agency of the state to the extent that “it exercises its zoning powers in the manner prescribed in § 5646 and subject to an appeal to the public utilities commission.”
In order that a public utility may claim a preferred position as against zoning regulations, there must be either a state statute or the granting of a zoning exception or variance to which it can point. In the absence of the grant of an exception or a variance, one of three forms of enabling legislation must exist: (1) The public utilities commission has to be clothed with the power of recommendation to the zoning authorities, or (2) the public utility must be excepted from the regulations and restrictions of zoning ordinances, or (3) a right must be given to a public utility to locate within a municipality. 58 Am. Jur. 1009; see State ex rel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451; Higbee v. Chicago, B. & Q.R. Co., 235 Wis. 91, 292 N.W. 320.
The company maintains that it has this necessary legislative authority under § 5646. This statute
Public utilities may be instruments of danger, and they touch the lives of the large number of persons served. The legislature acted wisely and prudently in enacting § 5646, giving to the public utilities commission the power, direction and control over such functions as “operations, plant, building, structures or equipment of any public service company,” and in enacting § 5401, giving the commission powers in relation to the safety of the public and of the employees of such a company. That, however, was the limit of the powers thus bestowed, and § 5646 confines any orders of the public utilities commission to such power, direction and control. It is from orders of local authorities bearing upon such matters that an appeal is provided to the public utilities commission.
The legislature just as wisely and prudently, in definite and plain language, reserved to the zoning authorities the other area of jurisdiction, viz., to regulate and restrict “the proposed location of any steam plant, gas plant, gas tank or holder, water tank or electric substation of any public service company.” Here was an attempt to maintain the
I am of the opinion that the holding of my associates, so far as it recognizes that the zoning commission in Norwalk was acting as a special agency of the state and thus exercised its powers subject to an appeal to the public utilities commission, is erroneous.
In this opinion O’Sullivan, J., concurred.
Reference
- Full Case Name
- Herbert Jennings Et Al. v. the Connecticut Light and Power Company Et Al.
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- 114 cases
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- Published