209 Conn. 652 | Conn. | 1989
Lead Opinion
The sole issue in this case is whether General Statutes § 7-147, as it existed on January 12, 1988,
Lester Bottone, Jr., is the record title owner of two building lots in the town of Westport. The two parcels of land abut the town of Norwalk on their westerly side, and a stream passes through one of the lots and near the other. Both lots have frontage on Belaire Drive and slope downhill from the road toward the stream. Although the parcels contain soils designated as inland wetlands under the Inland Wetlands and Watercourses Act; General Statutes §§ 22a-36 through 22a-45; the subdivision in which the lots are located was approved prior to the effective date of the inland wetlands regulations and, therefore, the lots are exempt from those regulations. The town, however, claims that the lots are subject to Westport’s Waterway Protection Lines Ordinance (WPLO), Westport Code §§ 148-1 through 148-17, as amended January 14, 1983.
Westport Code § 148-1 sets forth the purpose of the waterway protection lines.
Sections 148-7 through 148-12 control the application and review process for a party who desires to conduct otherwise prohibited activity. In overview, the process involves an application that is reviewed by the flood and erosion control board and the conservation commission. Westport Code § 148-7. The applicant must supply information to show that the proposed conduct will not cause conditions hazardous to life or property and will not have an adverse impact on the town’s waterways and natural resources. Westport Code §§ 148-8, 148-9. Without review by a representative town meeting, the decision of the flood and erosion control board and the conservation commission is deemed approved by the representative town meeting. The representative town meeting, however, does have authority to review and reverse a decision by the board and commission. Westport Code § 148-10. An appeal can be taken from a decision of the flood and erosion control board, the conservation commission or the representative town meeting in the manner provided for appeals from a municipal zoning board of appeals pursuant to General Statutes § 8-8. Westport Code § 148-13.
It is undisputed that the plaintiff cannot construct a residence on his property with the required primary
Paragraph seven of the plaintiff’s complaint alleged that General Statutes § 7-147, the enabling statute for the WPLO, was unconstitutional in that it violated his rights to due process under the fifth and fourteenth amendments to the United States constitution. Specifically, the plaintiff claimed that the statute “fail[ed] to provide standards or criteria sufficient to guarantee its uniform and consistent application and administration and [was] impermissibly vague.” In addition, in paragraph eight of his complaint, the plaintiff challenged the statute on the following grounds: (a) the enabling act was unconstitutional because it was vague, overbroad and devoid of standards; (b) the delegation of power to the town was unconstitutional because it
Our examination of § 7-147 is guided by the maxim that “[i]n passing upon the constitutionality of a legislative act, we will make every presumption and intendment in favor of its validity . . . .” New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 148, 384 A.2d 337 (1977); Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 112, 273 A.2d 880 (1970); Edwards v. Hartford, 145 Conn. 141, 145, 139 A.2d 599 (1958). This strong presumption of validity is particularly applicable to police power legislation. 6 E. McQuillin, Municipal Corporations § 24.31 (3d Ed. Rev.); see also 1 R. Anderson, American Law of Zoning § 3.14 (3d Ed. Rev. 1986); 1 P. Rohan, Zoning and Land Use Controls § 1.02[4] n.60 (1988 Rev.).
The party challenging a statute’s constitutionality has a heavy burden of proof; the unconstitutionality must be proven beyond all reasonable doubt. State Management Assn. of Connecticut, Inc. v. O’Neill, 204 Conn. 746, 758, 529 A.2d 1276 (1987); State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987); University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 390, 512 A.2d 152 (1986); Keogh v. Bridgeport, 187
In order for municipalities to have local control over waterways within their boundaries, the state legislature had to enact a statute authorizing such control. In the absence of an express grant of power from the state, municipalities do not have authority to legislate. Buonocore v. Branford, 192 Conn. 399, 402, 471 A.2d 961 (1984); City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980); see 6A E. McQuillin, supra, § 24.35. There is no question that a state legislature can delegate its authority to municipalities, particularly for local matters pertaining to health, safety and general welfare. Blue Sky Bar, Inc. v. Stratford, supra, 19-20; State v. Gordon, 143 Conn. 698, 706, 125 A.2d 477 (1956); Redevelopment Agency v. Shepard, 75 Cal. App. 3d 453, 459, 142 Cal. Rptr. 212 (1977); People v. Moreira, 70 Misc. 2d 68, 69, 333 N.Y.S.2d 215 (1972); Treants Enterprises, Inc. v. Onslow County, 320 N.C. 776, 778, 360 S.E.2d 783 (1987); Southern Valley Grain Dealers v. Board of County Commissioners, 257 N.W.2d 425, 434 (N.D. 1977); DePetrillo v. Coffey, 118 R.I. 519, 376 A.2d 317 (1977); 6A E. McQuillin, supra, § 24.37. We must now determine what level of specificity is
The most often cited rule governing the constitutionality of legislative delegations in Connecticut comes from the 1940 case of State v. Stoddard, 126 Conn. 623, 13 A.2d 586 (1940). In its memorandum of decision in this case, the trial court relied upon Stoddard and its progeny. In State v. Stoddard, this court was called upon to determine the constitutionality of a portion of chapter 107a of the General Statutes, which prescribed the duties of the milk administrator. General Statutes (Cum. Sup. 1935) §§ 796c and 797c provided for a milk administrator to be appointed by the governor with the advice and consent of the General Assembly. The section of the statute at issue in Stoddard was General Statutes (Cum. Sup. 1937) § 493d which delineated the powers of the milk administrator to establish prices.
In finding an unconstitutional delegation of power to the milk administrator under the act, the court stated: “In order to render admissible such delegation of legislative power ... it is necessary that the statute declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform . . . State v. Stoddard, supra, 628. It is this rule that has been cited in this state as a canon of interpretation for virtually all delegations of legislative power. See, e.g., State v. White, 204 Conn. 410, 419, 528 A.2d 811 (1987); New Milford v. SCA Services of Connecticut, Inc., supra, 149; Mitchell v. King, 169
The rule pronounced in State v. Stoddard, supra, involved the delegation of powers from the legislature to an administrator in the executive department who was appointed by the governor. Thus, the Stoddard rule clearly is applicable to delegations of authority from the legislative to executive department. Application of the rule, however, to delegations from the state legislature to a municipality, as in the present case, is not appropriate. The bases for the nondelegation doctrine as between the legislative and executive branches of the state government are not coextensive with the bases for nondelegation as between the state legislature and a municipality, and, therefore, the rules governing such delegations are not the same.
The primary basis for the nondelegation doctrine as between the coequal branches of government is the separation of powers doctrine. In the federal system, the foundation of the nondelegation doctrine in the principle of separation of powers under article one, §§ 1 and 8, of the United States constitution
Similarly, we have recognized the fundamental nature of the separation of powers doctrine of the constitution of Connecticut, article second and article third, § 1,
It was this separation of powers concern, an express requirement of government under our constitution, that guided this court’s decision in Stoddard. In that case, we stated: “The Constitution of this state provides for the separation of the governmental functions into three basic departments, legislative, executive and judicial, and it is inherent in this separation, since the lawmaking function is vested exclusively in the legislative department, that the Legislature cannot delegate the law-making power to any other department or agency. In the establishment of three distinct departments of government the Constitution, by necessary implication, prescribes those limitations and imposes those duties which are essential to the independence of each and to the performance by each of the powers of which it is made the depositary.” State v. Stoddard, supra, 627. We held that the standards contained in the challenged statute were not sufficient to pass constitutional mus
The separation of powers doctrine, however, does not pertain to delegations from the state legislature to a municipality. A municipality cannot be considered “any other department or agency” in the context of that phrase in Stoddard; a municipality is not one of the three departments enumerated in the constitution’s separation of powers provision.
Having determined that the constitutional doctrine of separation of powers is not appropriate in the context of a delegation from the state legislature to a municipality, and thus, a nondelegation rule grounded in that constitutional limitation is inapposite, we must now inquire whether there are other sources limiting a delegation from the state legislature to a municipality. One source in Connecticut to which we may turn is found in article third, § 1, of our constitution which vests the legislative power in the state legislature.
There is no question that this standard of due process is applicable to a statute delegating power to a municipality; it is applicable to all statutes. Seals v. Hickey, 186 Conn. 337, 343, 441 A.2d 604 (1982); see L. Tribe, supra, § 12-31. This standard is designed to prevent arbitrary and capricious enforcement of the laws. See L. Tribe, supra; S. Barber, supra, pp. 31-32, quoting R. Cushman, “The Constitutional Status of the Independent Regulatory Commissions,” 24 Cornell L.Q. 13, 32-33 (1938).
Therefore, we conclude that the rule limiting the delegation of legislative power between coequal branches of state government is not the appropriate rule to govern the delegation of legislative power from the state to a municipality. The underpinning of the rule governing the former delegation, i.e., separation of powers, is not applicable to the latter delegation. Instead, due process provides the sounder standard to govern the delegation of legislative authority to a municipality. Specifically, the standard is whether the “ ‘statute afford[s] a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.’ ” Seals v. Hickey, supra, 343; McKinney v. Coventry, supra, 618.
This standard finds support in legal literature. Most notable is the support in Sutherland’s treatise on statutory construction. He states: “[I]n delegating power to municipal corporations none of the limitations imposed on administrative or executive agencies applies. Thus, the delegation may be of the most general nature and
Such an approach to delegations by a state to a municipality acknowledges the nature and respective resources of state and local governments. It would not be realistic to assume that the state legislature could address all of the local concerns in the state. It is clear, however, that the municipality cannot legislate to
In interpreting the scheme of § 7-147 this way, we presume that the phrase “establish by ordinance” pertained to both the prohibition of obstructions and encroachments and any exceptions to such a prohibition. More specifically, if a municipality elected to adopt an ordinance prohibiting permanent obstructions or encroachments in waterways within its jurisdiction, and it also desired to permit exceptions to that prohibition, it had to establish by ordinance a constitutionally ade
First, the language of § 7-147 provided that a municipality could have provided by ordinance that “no permanent obstruction or encroachment shall be placed by any private person or any firm or corporation, unless permission is granted in writing by the legislative body . . . .” (Emphasis added.) The phrase authorizing exceptions was introduced by the dependent, subordinate term “unless”; thus, the exception language was dependent on, and subordinate to, the preceding phrase that authorized a prohibition by ordinance. Because “unless” has been defined to mean “except on the condition that”; N. Webster, Third New International Dictionary; we conclude that the term “unless” as used in the statute provided for an exception. Therefore, a logical grammatical interpretation of the sentence is that the dependent exception phrase was governed by the earlier proviso in the sentence that municipal action under the statute had to be accomplished by ordinance.
Furthermore, this interpretation is consistent with well settled rules of statutory construction. The alternative to our interpretation that both the prohibition of obstructions and encroachments and the process for exceptions to such a prohibition had to be prescribed by local ordinance is that only the prohibition needed to be prescribed by ordinance and the exceptions would have been decided on an ad hoc basis at the whim of the local legislative body. This latter alternative doubtless would have been unconstitutional because it would have been susceptible, even prone, to arbitrary and capricious enforcement by the municipality in violation of the due process guarantees of the state and federal constitutions. We have stated previously: “ ‘[W]here
We now turn to a discussion of whether those terms in § 7-147 that authorized a prohibition, and any exception to the prohibition, were constitutionally adequate. We conclude that they were.
General Statutes § 7-147 permitted a municipality to prohibit all permanent obstructions and encroachments within waterway protection lines. In this way, residents of Westport, and any other municipality, were on notice that the town could have prohibited any activity that would permanently have obstructed or encroached on a waterway. We conclude that the language of § 7-147
Connecticut courts previously have established definitions for “obstruct” and “encroachment.” The words are not, at least in this situation, terms of art or in any way obscure. In Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 100, 291 A.2d 721 (1971), we stated: “Black’s Law Dictionary (Rev. 4th Ed.) defines ‘encroachment’ as a ‘fixture . . . which illegally intrudes into or invades the highway or encloses a portion of it.’ Webster’s Third New International Dictionary defines ‘encroachment’ as the ‘act or action of encroaching.’ The word ‘encroach’ means ‘to enter . . . by stealth into the possessions or rights of another.’ ” We further explained that this definition is applicable to rivers as well as highways. Id., 101.
The Superior Court has defined “obstruct” to mean “ ‘to block up ... or close up: place an obstacle or fill with obstacles or impediments to passing.’ ” DeLeo v. Orlando, 29 Conn. Sup. 107, 109, 273 A.2d 725, (1971), quoting N. Webster, Third New International Dictionary. Webster defines “obstruction” as “an act of obstructing or the condition of being obstructed.” Similarly, the term “waterway” is a term amenable to common understanding.
From the plain meaning of these terms, we conclude that an ordinary person was put on notice of what activ
In summary, the proper standard for a delegation of power from the state legislature to a municipality, based on both constitutional analysis and the reality of state and local governmental relations, is that such a delegation should be judged by whether it provides reasonable notice of what conduct may be authorized or prohibited under its provisions. We hold that § 7-147 did provide sufficient notice under this standard and, therefore, that the trial court erred in holding the statute unconstitutional. The question remains, however, of whether the ordinance established under the authority of § 7-147 is constitutional.
There is error, the judgment declaring General Statutes § 7-147 unconstitutional is set aside and the case is remanded to the trial court with direction to determine whether the Westport Waterway Protection Lines Ordinance is constitutional.
In this opinion Peters, C. J., Shea and Glass, Js., concurred.
General Statutes (Rev. to 1987) § 7-147 provided: “prohibition of obstructions IN waterways. Any town, city or borough may, within its jurisdiction, establish by ordinance lines along any part of any waterway beyond which, in the direction of the waterway, no permanent obstruction or encroachment shall be placed by any private person or any firm or corporation, unless permission is granted in writing by the legislative body of the town, city or borough. Wherever there is a city or borough within a town, the town shall have authority to establish such lines for such of its area as is not within such city or borough, and the city or borough shall have such authority within its boundaries. Any two or more adjoining municipalities shall have authority to investigate jointly the desirability of establishing lines on either or both sides of a waterway within their jurisdiction. Any private person or any firm or corporation aggrieved by any decision of a legislative body made in accordance with this section may, within thirty days after notice thereof, appeal from such decision in the manner provided by section 8-8 for appeal from the decisions of a municipal zoning board of appeals. Nothing contained in this section shall limit or restrict the commissioner of transportation in exercising his authority over the harbors and
In light of the trial court’s decision in this case, the legislature repealed General Statutes § 7-147 and substituted a new § 7-147 to comply with the trial court’s holding. See Public Acts 1988, No. 88-327 (effective June 3, 1988); 31 H.R. Proc., Pt. 13, 1988 Sess., pp. 4416-17. For the purposes of this opinion, all references to General Statutes § 7-147 are to that section as it existed prior to the trial court’s decision on January 12, 1988.
The Waterway Protection Lines Ordinance was made part of the record after the trial court granted the named defendant’s motion for rectification that was filed on May 10, 1988.
Because this action questioned the validity of General Statutes § 7-147, the court ordered that notice be sent to all towns, cities and boroughs in the state. The trial court found that actual notice had been given to all interested parties but none joined the action.
General Statutes (Cum. Sup. 1937) § 493d provides: “minimum price. The first sentence of section 801c is amended to read as follows: Said administrator shall have power to establish, from time to time, a minimum price for the different milk areas of the state for each class and grade of milk or milk products sold to dealers and shall have power to define the number and type of classes of milk for the purposes of this chapter.”
We note that the dissent sets out a number of cases that have referred to State v. Stoddard, 126 Conn. 623, 13 A.2d 586 (1940). The impression that might be created by this list obfuscates the critical distinction that we make between the delegation of power among coequal departments of state government and the delegation of power from the legislative department to municipalities.
The constitution of the United States, article one, § 1, provides: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
The constitution of the United States, article one, § 8, provides: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
“To borrow Money on the credit of the United States;
“To regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes;
“To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
“To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
“To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
“To establish Post Offices and post Roads;
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
“To constitute Tribunals inferior to the Supreme Court;
“To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
“To declare War, grant Letters of Marque and Reprisal, and make rules concerning Captures on Land and Water;
“To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
“To provide and maintain a Navy;
“To make Rules for the Government and Regulation of the land and naval Forces;
“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—and
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
It is interesting to note the evolution of the nondelegation doctrine in the federal governmental system. Although Justice Rehnquist stated that “[t]he Framers of the Constitution were practical statesmen” who realized that “ ‘the degree of separation which the maxim requires, as essential to a free government, can never in practice be maintained’ Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 673, 100 S. Ct. 2844, 65 L. Ed. 2d 1010 (1980) (Rehnquist, J., concurring), quoting The Federalist No. 48, p. 308 (Lodge Ed. 1888); Professor Davis, in his treatise on administrative law, notes that as recently as 1932 the United States Supreme Court declared a strict construction of the non-delegation doctrine in professing: “ ‘That the legislative power of Congress cannot be delegated is, of course, clear.’ ” 1 K. Davis, Administrative Law (2d Ed. 1978) § 3:2, p. 150, quoting United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85, 53 S. Ct. 42, 77 L. Ed. 175 (1932). In 1940, however, the court realized the necessity for delegation and adopted the view that delegation of legislative power is permissible as long as it is accompanied with “meaningful standards” for its use. 1 K. Davis, supra, § 3:2, pp. 150-51. Professor Davis now suggests that “a statement that standards are no longer required to support congressional delegations is sound for all practical purposes.” Id., § 3:2, p. 151.
The constitution of Connecticut, article second, provides: “The powers of government shall be divided into three distinct departments, and each
The constitution of Connecticut, article third, § 1, provides: “The legislative power of this state shall be vested in two distinct houses or branches; the one to be styled the senate, the other the house of representatives, and both together the general assembly. The style of their laws shall be: Be it enacted by the Senate and House of Representatives in General Assembly convened.”
Compare U.S. Const., art. I, § 1, with Conn. Const., art. II.
This court’s discussion in State v. Stoddard, 126 Conn. 623, 13 A.2d 586 (1940), of delegations among departments was in the context of departments as used in the separation of powers provision in our state constitution, a point left unaddressed by the dissent. The three departments enumerated in that provision are the legislative, executive and judicial. Municipalities are not departments in this sense, and, thus, Stoddard, not only by its language but also by its facts, is limited to delegations among the three coequal branches of our state government.
See footnote 8, supra, for the text of article third, § 1, of the Connecticut constitution.
It would be unwise to suggest that a constitutional provision such as this should prevent every delegation by the state legislature of its enumerated powers. For instance, such a claim would undermine the authority of a municipality to exercise the power of eminent domain which is vital to a municipality’s successful operation and which power must be delegated to it from the state legislature. See note, “Municipal Corporations: The Constitutionality of Oklahoma’s Central Business District Redevelopment Act,” 35 Okla. L. Rev. 821, 822 (1982) (“no legal question exists” as to the state’s right to delegate the power of eminent domain to a municipality).
The weakness of a limitation based on the text of article third, § 1, of the Connecticut constitution is bolstered by the current judicial attitude toward the separation of powers doctrine. As explained previously, despite
Although it may appear that our holding today merges the nondelegation doctrine and the vagueness doctrine, at least as they apply to delegations of legislative authority to municipalities, this is not the case. While it has been suggested that the nondelegation doctrine and the vagueness
It is interesting that, in this case, particularly in the plaintiffs complaint and the memorandum of decision, the doctrines of vagueness and nondelegation are intertwined. Paragraph seven of the plaintiffs complaint clearly sets out a vagueness claim citing the fifth and fourteenth amendments to the United States constitution. Paragraph eight of the complaint then sets out five subclaims without citation to constitutional or statutory authority; some, however, relate to due process, such as subsections (a) (vagueness, overbreadth), (c) (taking claims) and (e) (procedural due process). Subsection (b) of paragraph eight is couched in terms of an unconstitutional delegation claim. It is unclear whether the plaintiff intended the authority for allegations in paragraph seven to apply to those in paragraph eight or whether paragraph eight stands separately and, in part, is redundant with paragraph seven.
The trial court’s memorandum of decision also seems to synthesize the vagueness and delegation doctrines. The trial court even stated: “Claims of unconstitutional vagueness of a statute, and unconstitutional delegation of legislative power are closely related.” The trial court’s analysis begins with a discussion of the vagueness doctrine that naturally flows into the delegation doctrine without a demarcation between the two.
Professor Davis argues that the emphasis in limiting delegations of power should not be solely on standards for the exercise of the power, but should be shifted to safeguards following the exercise of that power. 1 K.
Our holding also finds support in case law from other jurisdictions. People ex rel. City of Canton v. Crouch, 79 Ill. 2d 356, 403 N.E.2d 242 (1980); People v. Moreira, 70 Misc. 2d 68, 69-70, 333 N.Y.S.2d 215 (1972), citing Matter of Larkin Co. v. Schwab, 242 N.Y. 330, 151 N.E. 637 (1926) (“Not every case where a legislative power is delegated requires the setting forth of standards to assure a proper exercise of the powers conferred.” Discretion in the local body is plenary where the state delegates legislative power to it.); DePetrillo v. Coffey, 118 R.I. 519, 376 A.2d 317 (1977); State v. Texas Municipal Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App. 1978) (“Where the legislature delegates its authority, and establishes broad standards, it may leave to selected municipalities the making of rules and the determination of facts to establish the basis for the application of legislative policy. Such standards may be broad where conditions must be considered which cannot be conveniently investigated by the legislature.”).
It is interesting to note that some other jurisdictions which have utilized rules similar to the one announced in State v. Stoddard, 126 Conn. 623, 13 A.2d 586 (1940), to judge delegations from the state legislature to a municipality also have inappropriately adopted that rule from cases involving legislative to executive delegations. See, e.g., Metals Recycling Co. v. Maccarone, 527 A.2d 1127, 1129 (R.I. 1987) (adopting rule from administrative delegation case of Davis v. Wood, 427 A.2d 332, 336 [R.I. 1981]); Indiana University v. Hartwell, 174 Ind. App. 325, 330-31, 367 N.E.2d 1090 (1977) (adopting rule from administrative delegation case of State ex rel. Standard Oil Co. v. Review Board, 230 Ind. 1, 101 N.E.2d 60 [1951], and Schakel v. Review Board, 142 Ind. App. 475, 235 N.E.2d 497 [1968]).
In its memorandum of decision, the trial court stated: “Here [General Statutes] § 7-147 would be valid if it gave municipalities the authority to prohibit all activities within waterway lines established by the ordinance.” (Emphasis added.) We disagree that it was necessary for the statute to prohibit every activity possible within the ordinance lines to put the community on proper notice of what conduct was illegal. A prohibition of only those activities that permanently obstructed and encroached was sufficient to put an ordinary person on notice of what was permissible. A requirement prohibiting any and all activity would have been suspect constitutionally under an overbreadth analysis.
Dissenting Opinion
dissenting. I respectfully disagree with the majority view. After forty-eight years as a worthy beacon in a sea of abstraction, our holding in State v. Stoddard, 126 Conn. 623, 13 A.2d 586 (1940), has been effectively overruled by the majority’s having limited
We began our analysis in Stoddard by stating that “[t]he Constitution of this state provides for the separation of the governmental functions into three basic departments, legislative, executive and judicial, and it is inherent in this separation, since the law-making function is vested exclusively in the legislative department, that the Legislature cannot delegate the lawmaking power to any other department or agency.” (Emphasis added.) Id., 627. We went on to say, however, “[i]n order to render admissible such delegation of legislative power, however, it is necessary that the statute [1] declare a legislative policy, [2] establish primary standards for carrying it out, or [3] lay down an intelligible principle to which the administrative officer or body must conform . . . .” (Emphasis added.) Id., 628.
It seems clear to me that when we described the coequal branches of government in Stoddard, we used exclusively the word “department.” Yet when we went on to articulate the important principles which, as this majority noted, have thereafter served as “a canon of interpretation for virtually all delegations of legislative power,” we made them applicable not only to “departments],” but also to “agencpes],” “administrative officer^],” and “bod[ies].” I submit that it is therefore reasonably inferable that Stoddard intended a universal applicability to include all legislative delegations of powers and not simply delegations of power as between the coequal branches of government, i.e., delegations of power founded upon the separation of powers doctrine, as the majority today declares.
Having swept aside Stoddard (presumably because General Statutes § 7-147 could not have withstood constitutional analysis based upon the application of the Stoddard principles), the majority adopts a much less precise due process standard and examines § 7-147 to ascertain whether the “ ‘statute afford[s] a person of
In New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 384 A.2d 337 (1977), we were confronted with a challenge to the constitutionality of General Statutes (Rev. to 1977) § 7-161 which authorized the establishment of garbage treatment plants after municipal permission was obtained from a “commission composed of the director of health and selectmen of the town in which such plant is to be located . . . .” The statute was silent as to the applicable criteria which would guide the commission in making its determination. Having applied a Stoddard analysis, we did not hesitate to find the statute unconstitutional and concluded that “[i]n conferring discretionary power upon the commission, the legislature has not only failed to provide reasonably adequate and definite guidance for the commission to pass upon an application for a statutory permit, but a reading of § 7-161 reveals the total
I would find no error.
We have decided forty-seven cases that have referred to or relied upon the State v. Stoddard, 126 Conn. 623, 13 A.2d 586 (1940) analysis. Twenty-two of them have dealt with the delegations of power to a municipality or a municipal agency. Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985); Beccia v. Waterbury, 192 Conn. 127, 470 A.2d 1202 (1984); Patry v. Board of Trustees, 190 Conn. 460, 461 A.2d 443 (1983); New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 439 A.2d 404 (1981); New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 384 A.2d 337 (1977); Zenga v. Zebrowski, 170 Conn. 55, 364 A.2d 213 (1975); Mitchell v. King, 169 Conn. 140, 363 A.2d 68 (1975); Zoning Commission v. Tarasevich, 165 Conn. 86, 328 A.2d 682 (1973); Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 273 A.2d 880 (1970); Howell v. Johnson, 147 Conn. 290, 160 A.2d 486 (1960); Clark v. Town Council, 145 Conn. 476, 144 A.2d 327 (1958); Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., 145 Conn. 243, 140 A.2d 874 (1958); Calve Bros. Co. v. Norwalk, 143 Conn. 609, 124 A.2d 881 (1956); Wilson v. West Haven 142 Conn. 646, 116 A.2d 420 (1955); Len-Lew Realty Co. v. Falsey, 141 Conn. 524, 107 A.2d 403 (1954); Gohld Realty Co. v. Hartford, 141 Conn. 135, 104 A.2d 365 (1954); Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 103 A.2d 535 (1954); Strain v. Zoning Board of Appeals, 137 Conn. 36, 74 A.2d 462 (1950); Bishop v. Board of Zoning Appeals, 133 Conn. 614, 53 A.2d 659 (1947); Devaney v. Board of Zoning Appeals, 132 Conn. 537, 45 A.2d 828 (1946); New Haven v. New Haven Water Co., 132 Conn. 496, 45 A.2d 831 (1946); Murphy, Inc. v. Westport, 131 Conn. 292, 40 A.2d 177 (1944).