BEACON FALLS v. POSICK, 212 Conn. 570 (1989)

563 A.2d 285

(13561)Supreme Court of Connecticut

PETERS, C.J., SHEA, CALLAHAN, GLASS, COVELLO, HULL and SANTANIELLO, Js.

The plaintiff, the town of Beacon Falls, on the granting of certification, appealed to this court from the judgment of the Appellate Court invalidating certain town ordinances and zoning regulations that prohibit the operation of a bulky waste disposal area in the town by anyone other than the town. The Appellate Court determined, inter alia, that the state Solid Waste Management Act (22a-207 through 22a-221), under which the defendant had obtained permits to operate a bulky waste disposal area, preempted the town’s antidumping ordinance and the zoning regulations in question. Held: 1. The Appellate Court erred in concluding that the provisions of 22a-207
through 22a-221 preempted local regulation of solid waste disposal areas; the plain and unambiguous language of that legislation limits its application to property owned by the Connecticut resources recovery authority, and, contrary to the defendant’s assertion that a complete prohibition of dump siting within a municipality is not permitted by the statute (22a-208 (c) [Rev. to 1985]) authorizing municipalities “to regulate, through zoning, land usage for solid waste disposal,” such a prohibition is permissible if supported by a rational basis. 2. The Appellate Court erred in finding the regulations unconstitutional; zoning regulations enjoy a presumption of constitutionality and the Appellate Court, not having been presented with evidence from which it could determine, as a matter of law, that the prohibition was not rational, could not find the trial court’s decision upholding the regulations to be clearly erroneous.

Argued June 6, 1989

Decision released August 8, 1989

Action to enjoin the defendant from operating a private landfill, and for other relief, brought to the Superior Court in the judicial district of Ansonia-Milford and referred to Hon. Joseph J. Chernauskas, state trial referee, who, exercising the powers of the Superior Court, rendered judgment for the plaintiffs, from which the defendant appealed to the Appellate Court, Dupont, C.J., Borden and Bieluch, Js., which set aside the trial court’s judgment and directed judgment for the

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defendant, from which the plaintiffs, on the granting of certification, appealed to this court. Reversed; remanded with direction.

Robert F. Carter, with whom, on the brief, was Donna Civitello, for the appellants (plaintiffs).

Milo J. Altschuler, for the appellee (defendant).

Timothy J. Hollister and Jean E. Perry, filed a brief for Waste Management of Connecticut, Inc., as amicus curiae.

Francis J. Brady, Mark R. Sussman and Bradford C. Mank, filed a brief for Connecticut Resources Recovery Authority as amicus curiae.

SHEA, J.

In this case, the plaintiffs appeal from the decision of the Appellate Court; Beacon Falls v. Posick, 17 Conn. App. 17, 549 A.2d 656 (1988); that invalidated certain ordinances and regulations of the plaintiff town prohibiting the operation of a bulky waste disposal area (dump) in Beacon Falls. We conclude that the Appellate Court erred in invalidating these municipal enactments and reverse its decision.

The facts are set out in detail in the Appellate Court’s opinion but must be substantially repeated for a proper understanding of the appeal. On March 16, 1954, the town of Beacon Falls enacted two ordinances restricting dumping, one of which prohibits the operation of a dump within the town by anyone but the town, except for existing dumps.[1] Consistent with these ordinances,

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the town enacted the zoning regulations at issue in this action. Those regulations prohibit any use not specified as permitted, and the operation of a dump is not specifically permitted.[2]

On July 19, 1978, the department of environmental protection (DEP) issued a permit to the defendant authorizing him to operate a dump on approximately two acres of land located off Lopus Road in Beacon Falls. On May 21, 1982, the DEP issued a permit for a six acre expansion of the defendant’s dump. This expansion permit was expressly “subject to any and all public and private rights and to any federal, state, or local laws or regulations pertinent to the property or activity affected hereby.” According to the state trial

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referee, Hon. Joseph J. Chernauskas, who rendered judgment for the plaintiffs in the trial court, “[t]he DEP permit process did not include any investigation of whether the dumping operation complied with Town Ordinances or Zoning Regulations.”

The zoning enforcement officer of Beacon Falls served upon the defendant on June 9, 1982, an order to discontinue use of his property as a dump because such use violated local ordinances and zoning regulations. The defendant did not appeal to the zoning board of appeals from the order of discontinuance. The defendant, nevertheless, “thereafter dumped or permitted to be dumped 100,000 cubic yards of waste material on [the] six-acre site.” The trial referee determined that the defendant’s actions in this regard were wilful.

The plaintiffs instituted this action for injunctive relief, civil penalties and attorney’s fees and costs on December 8, 1983. The defendant denied all of the material allegations and asserted seven special defenses. The defendant’s third special defense, alleging that state laws and regulations preempt the plaintiff town’s zoning regulations prohibiting dumps, and his fourth special defense, alleging that these zoning regulations are unconstitutional because there is no rational basis for them, are pertinent to this appeal.

The defendant moved for summary judgment on the preemption special defense. The plaintiffs also moved for summary judgment. The court, Kulawiz, J., found genuine issues of material fact, however, and therefore denied the motions for summary judgment. The court stated: “Local zoning regulations have not been preempted by the PEP regulations. Even though the defendant has received a permit from the PEP, he still must comply with the zoning regulations of the town f Beacon Falls and the ordinance that pertains to odors, fumes, smoke and noise.” Presumably, the

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authority for the trial court’s assertion that the defendant must comply with local regulations despite his permit from the DEP was General Statutes (Rev. to 1985) 22a-208 (c).[3] That statute provided that “nothing in this chapter or in chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal.”

The action was tried before a state trial referee, Hon. Joseph J. Chernauskas, who, acting as the court, on July 18, 1986, issued a temporary injunction that prohibited the defendant from dumping solid waste in the dump off Lopus Road. On August 17, 1987, the court rendered judgment for the plaintiffs. On the issues relevant to this appeal, the court adopted the decision that had been rendered, Kulawiz, J., on the motions for summary judgment that the DEP regulations did not preempt the local zoning regulations. The court found further that the facts developed at trial substantiated the earlier decision. On the defendant’s special defense that the zoning regulations were unconstitutional because they had no rational basis, the court stated that the defendant’s claim was “patently without merit.”

The defendant appealed to the Appellate Court raising four claims of error. The Appellate Court summarized the first three claims as follows: “(1) the trial court erred in denying the defendant’s motion to dismiss because it had no jurisdiction on any issue concerning the DEP permits; (2) the DEP regulations and permits preempt local zoning regulations that conflict with them relative to solid and bulky waste disposal; and (3) the absolute prohibition by the plaintiff town of the use of land as a solid or bulky waste disposal area is not a valid exercise of its police power and is not supported by any

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rational reason.” Beacon Falls v. Posick, supra, 25. In its resolution of the appeal, the Appellate Court determined that these three issues “encompass[ed] the single issue of whether the provisions of the State Solid Waste Management Act, General Statutes (Rev. to 1981) 19-524a
through 19-524o, under which the defendant obtained a permit for the operation of a bulky waste disposal area, preempt the town’s antidumping ordinance and zoning regulations prohibiting the establishment of a private dump for waste material and refuse within its limits.” Id. In finding that the trial court had erred, the Appellate Court concluded that the zoning regulations were preempted and that there was no rational basis for the prohibition of solid or bulky waste disposal areas in Beacon Falls. Id., 35.[4]

The plaintiffs subsequently appealed to this court. Upon the plaintiffs’ application, we granted certification limited to the following issues: “1. Did the Appellate Court err in concluding that the enactment of 2 of Public Acts 1984, No. 84-331, exempting from local zoning any real property of the Connecticut resources recovery authority that had been operated as a solid waste disposal area prior to the effective date of such public act, preempted the Beacon Falls zoning ordinance

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that prohibited the defendant from operating a landfill on his property? 2. Did the Appellate Court err in concluding that the Beacon Falls zoning ordinance prohibiting privately operated waste disposal landfills was unconstitutional?”

I
We first address the issue of whether 2 of Public Acts 1984, No. 84-331 operated to preempt the Beacon Falls zoning regulations that prohibit the operation of a dump within the town. Public Acts 1984, No. 84-331 2 provided, in part, that “[n]otwithstanding the provisions of subsection (c) of section 22a-208 . . . concerning the right of any local body to regulate, through zoning, land usage for solid waste disposal and section 22a-276, the Connecticut resources recovery authority may use and operate as a solid waste disposal area, pursuant to a permit . . . any real property owned by said authority . . . .” Public Acts 1984, No. 84-331.[5] The basic question is whether this public act modified the scope of General Statutes 22a-208 (c) by preempting local zoning control over solid waste disposal only with regard to facilities operated by the Connecticut

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resources recovery authority (CRRA) or whether it preempted local control with regard to dump siting generally.

Our inquiry into this first issue must begin with an examination of Shelton v. Commissioner 193 Conn. 506, 479 A.2d 208 (1984). In that case, the plaintiff city of Shelton, brought three separate actions in an attempt to prevent the CRRA from operating a land-fill on property that the CRRA owned in Shelton. One of the plaintiff’s claims on appeal was “that the local zoning regulations overrode the statewide planning decisions of the CRRA and the DEP.” Id., 511.

At the time that the Shelton appeal was initiated, municipalities derived their power to regulate solid waste disposal areas within their jurisdiction from General Statutes (Rev. to 1983)22a-208 (c), which provided, as does the current statute, that “nothing in this chapter or in chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal.” Before the Shelton appeal was decided, however, 2 of Public Acts 1984, No. 84-331 was enacted to modify the effect of 22a-208 (c).[6] Because Public Acts 1984, No. 84-331 was enacted in the period between the filing and our resolution of the appeal, in the decision we examined the effect of 2 of Public Acts 1984, No. 84-331. We stated: “The effect of 2 of the 1984 act is to eliminate the express zoning authority conferred by 22a-208
(c) and to restore the law to its state at the time of the Colchester [v. Reduction Associates, Inc., 34 Conn. Sup. 177, 382 A.2d 1333 (1977)) decision. We agree with the court in Colchester that the general zoning authority conferred by 8-2 does not extend to the enactment of zoning regulations that conflict with a

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DEP permit.” Shelton v. Commissioner, supra, 517.[7]
It is from this language in Shelton that the preemption dispute in the present case emanates.

The defendant maintains that the Appellate Court was correct in finding that the Shelton decision was “decisive of the issue” before it; Beacon Falls v. Posick, supra, 30; and he argues that the decision of the Appellate Court in the present case finding preemption of the zoning regulations is “totally consistent” with the above-mentioned quote in Shelton. On the other hand, the plaintiffs argue that, despite the possible interpretation of the language in Shelton as affecting all local zoning with regard to dump siting, such an interpretation must be rejected because the intent of the legislature was clear that local zoning is preempted only to the extent that it is inconsistent with the operation of a duly permitted CRRA waste disposal facility on property owned by the CRRA. We agree with the plaintiffs.

Analysis of No. 84-331, 2, of the 1984 Public Acts reveals that the act’s plain and unambiguous language limits its application to property owned by the CRRA. At the time the public act was enacted, General Statutes 22a-208 (c) provided for local regulation of land usage for solid waste disposal. The public act carved out an exception to that general rule, providing: “Notwithstanding the provisions of subsection (c) of section

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22a-208 of the general statutes . . . concerning the right of any local body to regulate, through zoning, land usage for solid waste disposal . . . the Connecticut resources recovery authority may use and operate as a solid waste disposal area, pursuant to a permit issued under section 22a-208. . . any real property owned by said authority on or before the effective date of this act . . . .” (Emphasis added.) Public Acts 1984, No. 84-331, 2. Because the statutory terms are clear, we must assume that the legislature intended only to preempt local zoning authority to the extent that it conflicted with the operation of a CRRA facility on property owned by the CRRA prior to May 11, 1984, and we cannot construe the act otherwise. See B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 8, 490 A.2d 991
(1985). Furthermore, because the general rule under General Statutes (Rev. to 1985) 22a-208 (c) provided for local zoning regulation of dumps, the exception created by No. 84-331 of the 1984 Public Acts must be construed narrowly. See Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); Kulis v. Moll, 172 Conn. 104, 110, 374 A.2d 133
(1976). Accordingly, by its terms, No. 84-331 of the 1984 Public Acts cannot be construed to have preempted all local zoning with regard to the location of solid waste disposal areas.

Although, as the plaintiffs concede, the statement in Shelton to the effect that No. 84-331 of the 1984 Public Acts returned the state of the law to that which existed after Colchester can be construed to mean that all local zoning is preempted, we must reject such a construction based on the preceding discussion. The constitutional doctrine of separation of powers prohibits this court from construing a statute to encompass a greater change in the law than intended by the legislature based on the explicit language of the statute. See Conn. Const., art. II. The power to enact statutes is

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vested exclusively in the General Assembly and it is not within our constitutional authority to expand those statutes beyond what we discern to be the legislature’s intent. See Conn. Const., art. III, 1. Although after Colchester municipalities were without authority to enforce zoning regulations that conflicted with a DEP permit, in light of the general rule created by 22a-208 (c) after Colchester and the exception to that rule created by Public Acts, 1984, No. 84-331, the language in Shelton with regard to Colchester must be construed to mean that local zoning regulations are preempted only when they conflict with a DEP permit granted to the CRRA.[8]

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In this connection, the defendant’s reliance on Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 519 A.2d 49 (1986), is unavailing. The defendant notes that in Helicopter Associates we cited Shelton as a leading case in the law of preemption. He also contends that when we stated that “the Solid Waste Management Services Act; General Statutes 22a-257 through 22a-281; preempted local zoning regulations governing solid waste disposal”; Helicopter Associates, Inc. v. Stamford, supra, 708; we reaffirmed that all local zoning regulations of solid waste disposal siting were preempted. Although we recognize that our statement in Helicopter Associates is broad, as discussed earlier, Shelton cannot be construed in the manner suggested by the defendant and adopted by the Appellate Court in the present case and, a fortiori, neither can Helicopter Associates. Local zoning regulations governing solid waste disposal are preempted only to the extent that they conflict with a DEP permit issued to the CRRA.

Having determined that Beacon Falls’ zoning ordinances are not preempted under our holdings in Shelton

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and Helicopter Associates, Inc., we next turn to the defendant’s alternative argument for his proposition that the zoning regulations are preempted. The defendant contends that Beacon Falls’ regulations conflict with state policy and General Statutes (Rev. to 1985) 22a-208 (c) and thus, under well settled law, the statute must prevail.[9]

We have no quarrel with the defendant’s contention that when a local zoning regulation irreconcilably conflicts with a state statute, the local regulation is preempted. Dwyer v. Farrell, 193 Conn. 7, 14, 475 A.2d 257 (1984); Bencivenga v. Milford, 183 Conn. 168, 172-73, 438 A.2d 1174
(1981); Shelton v. Shelton, 111 Conn. 433, 438, 150 A. 811 (1930). In this case, however, the regulation and the statute are not in conflict.

The defendant suggests that a conflict exists because 22a-208 (c) permitted municipalities “to regulate, through zoning land usage for solid waste disposal,” but not to prohibit solid waste disposal. The core of the defendant’s argument is that the power to regulate does not include the power to prohibit.

Although we have said that “the power to regulate . . . does not necessarily imply the power to prohibit absolutely any business or trade”; (emphasis added); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 20, 523 A.2d 467
(1987); this does not preclude the power of prohibition. Cf. Yaworski v. Canterbury, 21 Conn. Sup. 347, 350, 154 A.2d 758 (1959) (“The power to regulate does not include the power to prohibit or suppress.”) In Blue Sky Bar, we stated that “`[t]he power to regulate . . . entails a certain degree of prohibition. . . .'” Id.,

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quoting Hartland v. Jensen’s, Inc., 146 Conn. 697, 702, 155 A. 754 (1959); see Mayor
Council v. Rollins Outdoor Advertising, 475 A.2d 355, 358 (Del. 1984), quoting Goldblatt v. Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962) (“`It is an oft-repeated truism that every regulation necessarily speaks as a prohibition.'”) John Donnelly Sons, Inc. v. Outdoor Advertising Board, 369 Mass. 206, 214, 339 N.E.2d 709 (1975). We also declared that “it `requires no citation of authority to say that regulation may in many instances result in prohibition. The question is whether the result is reached in a reasonable manner and is necessary for the public welfare.'” Blue Sky Bar, Inc. v. Stratford, supra, quoting Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 625, 153 A.2d 444 (1959). Additionally, because the authority to zone, at least in part, stems from the police power; see Faubel v. Zoning Commission, 154 Conn. 202, 210, 224 A.2d 538 (1966); 5 P. Rohan, Zoning and Land Use Controls 35.02 [3]; zoning regulations must foster the public health, safety and general welfare of the community. Therefore, when a statute authorizes a municipality to regulate a certain activity, a prohibition of that activity will be valid if it is rationally related to the protection of the community’s public health, safety and general welfare.[10]

Connecticut courts have upheld prohibitions of certain activities within municipalities through zoning after determining that the prohibitions were rationally related to the protection of the municipalities’ public safety, health and general welfare. See, e.g., Cadoux v. Planning Zoning Commission, 162 Conn. 425, 428-29, 294 A.2d 582, cert. denied, 408 U.S. 924,

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92 S.Ct. 2496, 33 L.Ed.2d 335 (1972) (prohibition on all uses except residential use valid); Hart land v. Jensen’s, Inc., supra, 702-703, (prohibition on residential trailer parks valid); Zelvin v. Zoning Board of Appeals, 30 Conn. Sup. 157, 163-64, 306 A.2d 151 (1973) (prohibition on garden apartments valid); see Beckish v. Planning Zoning Commission, 162 Conn. 11, 14-15, 291 A.2d 208
(1971) (municipality may prohibit advertising signs). Courts in other jurisdictions also have upheld prohibitions of certain activities in a municipality through zoning when the prohibitions are supported by a rational basis. See, e.g., Bass River Associates v. Mayor of Bass River Township, 573 F. Sup. 205, 213-17 (D.N.J. 1983), aff’d, 743 F.2d 159 (3d Cir. 1984) (prohibition of floating homes); Furr v. Mayor City Council of Baker, 408 So.2d 248, 249 (La. 1981) (prohibition of recording studio); LaGrange v. Giovenetti Enterprises, 123 App. Div.2d 688, 689, 507 N.Y.S.2d 54 (1986) (prohibition of solid waste transfer station); see McNeill v. Plumstead Township, 215 N.J. Super. 532, 537, 522 A.2d 469 (1987) (municipality may prohibit soil removal); Mindell v. Gross, 132 App. Div.2d 535, 535, 517 N.Y.S.2d 541 (1987) (municipality may prohibit building and maintenance of hotels); see also R. Anderson, American Law of Zoning 9.16 (1986); 5 P. Rohan, supra, 40.01 [4] [6]. Thus, contrary to the defendant’s assertion that the complete prohibition of a certain activity within a municipality is not permitted, we conclude that such a prohibition is permissible if supported by a rational basis.

II
Because the issue of whether a prohibition is warranted requires our inquiry into whether it is supported by a rational basis, this issue merges with the plaintiffs’ second claim of error. The plaintiffs claim that the Appellate Court erred in concluding that the zoning regulation was unconstitutional in that it was “not

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supported by any rational reason and is not a valid exercise of its police power.” Beacon Falls v. Posick, supra, 35. We agree with the plaintiffs that the Appellate Court erred in finding the zoning regulations unconstitutional.

Zoning regulations enjoy a presumption of constitutionality and the party challenging the ordinance has the heavy burden of proving their unconstitutionality beyond a reasonable doubt. Builders Services Corporation v. Planning Zoning Commission, 208 Conn. 267, 289-90, 545 A.2d 530
(1988); Helbig v. Zoning Commission, 185 Conn. 294, 304-305, 440 A.2d 940 (1981); see Blue Sky Bar, Inc. v. Stratford, supra, 23.[11] In this case, the trial court found the defendant’s contention that there was no rational relation for the ordinance to be “patently without merit.” According to the parties at oral argument, the trial court took evidence on the issue of whether the regulations were supported by a rational basis. The first selectman of Beacon Fails testified at trial about the reasons for the prohibition. In its memorandum of decision, the trial court concluded that “the town properly could have determined that its geographical situation and its resources were such that the presence of a dump or dumps would over-tax the abilities of the town to cope with the problems which would arise with respect to a reasonable need to serve some phase of the public health, safety or general welfare constituted in the administration, constant land checks, daily traffic census, supervisory control and the constant legal consultations pertaining thereto.”

In finding error in the trial court’s conclusion, the Appellate Court declared that “[n]o reasonable

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explanation for the arbitrary prohibition of landfill areas in the town has been given or suggested.” Beacon Falls v. Posick, supra. In finding error on this basis, the Appellate Court misapplied the burden of proof. As stated above, zoning regulations are presumed valid and, because the trial court upheld the regulations, when this case was before the Appellate Court it was the defendant’s burden to establish that the trial court had clearly erred in failing to find that the defendant had proven beyond a reasonable doubt that the regulations were unconstitutional.

The Appellate Court, however, was not presented with evidence from which it could determine, as a matter of law, that the trial court had erred in concluding that the defendant did not prove the regulations unconstitutional. There was no transcript of the trial proceedings and the exhibits do not shed light on the question of whether the prohibition is rational. Accordingly, without providing evidence to establish the regulations’ unconstitutionality, the defendant could not overcome the presumption in favor of the constitutionality of the zoning regulations and the Appellate Court could not find the trial court’s decision to be clearly erroneous. Therefore, the trial referee’s finding that the regulation did have a rational basis should not have been disturbed.[12]

In summary, Beacon Falls’ zoning regulations prohibiting private dumps were not preempted by the enactment of 2 of Public Acts 1984, No. 84-331 and the Appellate Court erred in concluding that they were. Additionally, under the circumstances of this appeal, the Appellate Court could not properly reverse the trial referee’s decision upholding the validity of those regulations.

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The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reinstate the judgment of the trial court.

In this opinion the other justices concurred.