Jennings v. Connecticut Light & Power Co.

Quinlan, J.

(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 *678 defines two areas of jurisdiction, one for the common council and the public utilities commission and one for the zoning commission. In one of these areas the local common council plays a part with the public utilities commission. In the other the local zoning commission is supreme in the regulation and restriction of the location of a steam plant, as in the instant case, subject to appropriate appeals. The distinction to be borne in mind is one of power, direction and control over a public utility on the one hand, and location of the plant on the other. A brief look at the provisions of the statute confirms this analysis.

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 *679 integrity of zoning and to prevent the location of such structures in residential zones from the lowest to the highest. And, more significantly, no appeal of any kind was provided from the action of the zoning commission because the legislature knew that zoning statutes and ordinances provide their own procedures.

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.