
    MURPHY, INC. ET AL. vs. TOWN OF WESTPORT ET ALS.
    Superior Court Fairfield County
    File No. 66548
    MEMORANDUM FILED DECEMBER 31, 1943.
    
      Friedman & Friedman, of Bridgeport, for the Relators.
    
      John H. Mountain, of Westport, for the Respondents.
   O’SULLIVAN, J.

Murphy, Inc., a Connecticut corporation, operating out of Bridgeport, is an outdoor advertising concern, engaged, among other things, in the erection and maintenance of billboards, space on which it sells to those desiring to advertise commercial products. The unnamed plaintiff, John Backiel, owns a parcel of land adjoining the Post Road, so-called, in the Town of Westport and a portion of this parcel he has leased to Murphy, Inc. His land is zoned for business from the highway to a depth of 200 feet.

The Post Road consists of four lanes of concrete. An indication of the heavy flow of traffic it accommodates is revealed by records of the State Traffic Commission, which show that the average daily number of vehicles moving in both directions over the highway was 11,387 in 1940, 13,526 in 1941, and 12,087 in 1942. In normal times, traffic may proceed at 45 miles an hour in the vicinity of the Backiel parcel, although this rate has been reduced to 35 miles during the war emergency.

Westport, with a population of 8,258, is primarily a community of homes. Of the total area of the township, more than 90 per cent is devoted to residential purposes. On September 8, 1930, the town adopted a zoning ordinance, section 4-B of which provides that “billboards or advertising signboards are prohibited in all business districts except as they refer to business conducted on the property on which the billboard stands.” The ordinance is devoid of any provisions regulating the method of constructing billboards. Prior to the day it became effective, Murphy, Inc., had erected and was maintaining along the five miles of the Post Road running through the town 15 billboards, consisting of 40 panels, each approximately 15 by 25 feet in size. Of these 15, 14 were located along that portion of the highway stretching easterly from the business center of Westport some three and a half miles to the adjoining town line of Fairfield. All of these billboards, except so much as represents seven panels which have been discarded, are still standing and are maintained as nonconforming uses.

On April 23, 1942, one of the 14 locations above referred to was on property of E. P. Mills. About that time the lease of the Mills site to Murphy, Inc., expired and the latter attempted to move the billboard thereon to the Backiel parcel, some 800 feet further east. While in the process of setting it up on Backiel’s land, the workmen were stopped by a zoning enforcement officer. On April 25th, Murphy, Inc., applied for a permit to erect the billboard which was about 12 by 30 feet, but the request was denied. Murphy, Inc., then appealed to the zoning board of appeals, but without effective result.

Following these events, the plaintiffs brought the present action to this court seeking (1) an injunction to restrain the enforcement of the ordinance in so far as it affects the use of the Backiel parcel for the erection of billboards; (2) a declaratory judgment that the ordinance is void, unenforce' able and unconstitutional as it purports to affect the use of a billboard, on the Backiel parcel; (3) a mandatory injunction ordering the issuance of a permit to erect the billboard in question.

Although the plaintiffs urge many claims in support of their position, only one or two of them will be discussed.

The now well-recognized right of a municipality to zone its territory finds its derivation in the police power, that prerogative of the State which, in the cause of public morals, safety, welfare and the like, may regulate the use of privately owned property. State vs. Hillman, 110 Conn. 92. The legal concept of the ambit in which the police power may function has broadened considerably in recent years. It had to, if zoning ordinances were to be justified. While regulatory measures of various kinds had long been submitted to the courts, the century had turned before agitation for zoning, as we know it, culminated in statutory authority to carry it into effect. Indeed, it so happens that billboard regulation was one of the first forces tending in that direction. Such regulation was originally deemed invalid as an unwarranted exercise of the police power. Commonwealth vs. Boston Advertising Co., 188 Mass. 348, 74 N.E. 601; City of Passaic vs. Paterson Bill Posting Co., 72 N.J.L. 285, 62 Atl. 267; Bryan vs. City of Chester, 212 Pa. 259, 61 Atl. 894.

About 1910, certain courts began to entertain a different point of view. St. Louis Gunning Advertisement Co. vs. City of St. Louis, 235 Mo. 99, 137 S.W. 929. For example, in St. Louis Poster Advertising Co. vs. City of St. Louis, 249 U.S. 269, 274, Mr. Justice Holmes observed that “billboards properly may be put in a class by themselves and prohibited ‘in residence districts of a city in the interest of the safety, morality, health and decency of the community’.” The earlier attitude appears to have been that billboard regulation was simonpure aesthetic regulation and as such was condemned. Adverse public opinion against unsightly signs along highways quite probably had much to do in the rapid change of legal thought. This public opinion was not concerned with thought of safety, morals or welfare. It was occasioned by the disfigurement of the landscape and by the marring of the beauty of Nature. Yet the courts, somewhat sophistically, it seems to me, with many protestations against the use of aesthetic standards, urged with rather fantastic reasoning that what previously had no relationship to public safety had now developed into a public menace which an enlightened community not only had a right to regulate but, indeed, would be almost wayward in failing to control. See Chandler, Attitude of the Law toward Beauty (1922) 8 A.B.A.J. 470; Baker, Aesthetic Zoning Regulations (1926) 25 Mich. L. Rev. 124. On what possible theory may one attempt to warrant the exclusion of a highgrade grocery store in a residential zone if not on the ground of aesthetics? Surely, such a store has not the most remote connection with either public safety, or morals, or comfort, or welfare.

The foregoing, while perhaps somewhat irrelevant to the basic problems of the present case, furnishes ample ground for holding, with the authorities, that billboard regulation is within the police power, regardless of whether one relies on the reasons to which the courts still cling or on those which are treated like stepchildren, but which, at least to my satisfaction, furnish the hidden impelling motive for modern legal thought.

However, all regulations affecting the use of private property must be reasonable and it is on this point that I find myself unable to support the regulation. If the basis for justifying billboard regulation is the safety of the public, its application must be to all billboards within the designated area. Let us assume that the sign on Backiel’s property should be prohibited in consideration of public safety. It will be just as much a menace if he should open a sidewalk stand just to sell Pepsi-Cola. Yet, under the ordinance, if he engages in that business, he may erect a billboard of whatever dimensions he chooses, as long as he advertises Pepsi-Cola. Should he use the same board to advertise the sale of war bonds, his billboard must come down. Thus, the advertising matter appear' ing on the sign determines its safety to the public. Of course, this is nonsense. In short, the very thing on which the town relies to support the regulation becomes of no moment when the landowner opens up a business. A municipality may not, on the theory of public safety, welfare or whatnot, prohibit my neighbor from erecting a billboard on his land while permitting me to do so, because, perchance, I happen to be selling ice cream cones. The regulation as to billboards is unreasonable; arbitrary and void.

Accordingly, an injunction may enter restraining the defendants from interfering with the plaintiffs’ erection of the billboard on the Backiel parcel, the parties having agreed that if an injunction should issue, all defendants should be subjected to it. A mandatory injunction may likewise enter ordering the defendant, John F. Coyle, as building inspector, to issue a permit for the erection of the billboard. A declaratory judgment may also enter holding section 4-B of the zoning ordinance void.  