Chudnov v. Board of Appeals , 113 Conn. 49 ( 1931 )

The Connecticut State Register and Manual, 1930, page 428, thus describes the town of Bloomfield: "Incorporated May, 1835; taken from Windsor. Area, 17,436 acres. Voting districts, 2. Children between the ages of 4 and 16, September, 1929, 915. Grand list, $6,155,429. Net indebtedness, 1929, $173,518.74. Rate of taxation, 22 mills. Principal industry, agriculture."

From the finding, it appears that the appellant owns a tract of 2.8 acres on School Street, known as lot No. 9 on "Survey of Ely Alfred et al." This survey comprises nine tracts, each being between two and four acres in extent. Five of these tracts are now being used for the raising of poultry. All of the tracts so used are located at least eight hundred feet away from the appellant's lot. Across the street from the appellant's lot is a farm of one hundred and five acres. The land surrounding appellant's property is undeveloped.

On April 12th, 1929, the town of Bloomfield adopted building zone regulations. Section II, Par. 8, thereof provides as follows: "In a residence zone, 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: . . . (8) Farming, truck gardening, nurseries or greenhouses." The property of the appellant lies in "C Residence zone" and is subject to the foregoing zoning ordinance. Subsequent to the enactment of the building zone regulation, the appellant made application for the erection of a dwelling-house and a hen house on his land, which latter was to set back three hundred feet from the street line and was for the accommodation of between eight hundred and one thousand hens. The dwelling-house was an ordinary two-story dwelling-house. The building inspector granted permission for the erection of the dwelling-house but refused a permit for the proposed hen house, and referred the appellant to the zoning board of appeals which, after hearing, refused the appellant's request, and sustained the building inspector. The finding of the trial court, which appears to have been accepted by the majority, that the town of Bloomfield has been an agricultural town, but a decided change in its character to residential purposes has occurred, is without force in view of the previous finding of the court that the land surrounding the appellant is undeveloped; and, though zoned for residential purposes, efforts to sell building lots near the appellant's property for a period of about fifteen years have resulted in the sale of but one lot. Evidently, the change from agricultural to residential purposes is gradual, to say the least.

Webster's Elementary School Dictionary, used as a textbook in most of the graded schools in this State, defines a farm as follows: "A tract of land devoted to agriculture; — often qualified by a preceding noun; as, a chicken farm." Webster's New International Dictionary defines a farm as "any tract of land (whether consisting of one or more parcels) devoted to agricultural purposes, including the production of crops and generally of animals. . . . Hence a plot or tract of land devoted to the raising of domestic or other animals; as, a chicken farm." Porter v. YakimaCounty, 77 Wash. 299, 137 P. 466, 467. "In short a tract may be a farm without the aid of a plough." It is not material whether the farm is large or small, isolated or made up of many tracts. In re Drake, 114 F. 229, 231.

The majority opinion finds its chief support in the case of Gregg v. Mitchell, 166 F. 725, 727. The question there decided was that a person does not cease to be "engaged principally in farming or the tillage of the soil," within the meaning of the National Bankruptcy Act, because he established a dairy as one of the branches of his industry. In the course of its reasoning, the court made the remarks quoted in the majority opinion, which were obiter so far as the decision of the case was concerned.

A zoning ordinance of this character is in derogation to the rights of property and should be construed by the court in favor of the landowner. The natural and general understanding of the word "farming" coincides with the definition of Webster and would designate as a chicken farm a tract of land with suitable buildings devoted to the business of breeding, raising and preparing poultry of that kind for market. No case has been found where any court anywhere has held that the raising of poultry under such circumstances does not constitute a farming operation. The construction placed upon the ordinance by the majority, in my opinion, is not only unwarranted in law, but works a great hardship on the appellant who is deprived thereby of an opportunity to use his property in a lawful way to obtain a livelihood.

It appears from the finding that subsequent to the enactment of the building zone regulations, the inspector has granted one permit for the erection of a poultry house on the same tract, of which appellant's lot is a portion, to be used for the same purpose as that for which the appellant wishes to use his own lot. It is a rural section with but one house and that a farm within a fifth of a mile. We have, then, a situation where on a development containing nine tracts of land of substantially equal size, five are now being used for the raising of poultry, one by a permit granted since the zoning ordinance took effect. A holding under these circumstances that the appellant cannot utilize his land for the same business is arbitrary, unreasonable and an unconstitutional interference with his property rights. "Where a statute or ordinance interferes with the use and control of property without rational relation to public safety, health, morals, or general welfare, or is a palpable invasion of rights secured by the fundamental law, the enactment cannot be sustained as a legitimate exercise of police powers"; White's Appeal, 287 Pa. 259, 268,134 A. 409, 413; or, as stated by Mr. Justice Holmes, "the general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. . . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." PennsylvaniaCoal Co. v. Mahon, 260 U.S. 393, 415, 416,43 Sup. Ct. 158.

In my opinion the judgment should be reversed.