Opinion
No. CV 06 4021562
March 29, 2007
MEMORANDUM OF DECISION PLAINTIFF'S MOTION FOR TEMPORARY INJUNCTION
Before the court is the Town of East Haven's motion to amend and plaintiffs Joseph and Catherine Vegliante's motion for a temporary injunction. This matter came on for hearing before the court on November 28, 2006. Thereafter a supplemental post-trial brief was filed by the defendant on December 4, 2006.
The plaintiffs, Joseph Vegliante and Catherine Vegliante, submitted a verified complaint, dated July 19, 2006, seeking a temporary injunction to prohibit the defendants, the town of East Haven and William Sadek (the Clerk of the Superior Court, judicial district of New Haven) from taking any further action to take their property by eminent domain.
In count one of the verified complaint, the plaintiffs allege that the town's taking of their property is illegal and constitutes a violation of the due process clause of the Fifth Amendment to the United States Constitution because it has no lawful authority to exercise the power of eminent domain. The plaintiffs allege that the town failed to conform to the requirements of Chapter 130 or 132 of the Connecticut General Statutes in one or more of the following respects: that the town has not prepared a project plan in accordance with § 8-189 and the regulations of the commissioner of economic and community development; that the town has not properly designated a development agency to carry out the project as required by § 8-188; that the project plan has not been properly adopted in accordance with § 8-191; or that the taking of real property has not been undertaken by a designated development agency as required by § 8-193. In addition, the plaintiffs allege that there is no public necessity for the project.
In count two, the plaintiffs allege that the town is estopped from taking their property for the purpose of the project, which is contrary to the "Urban Renewal Plan for the East Haven Center Urban Renewal Area" that the plaintiffs relied upon in acquiring the property from the town and constructing their office building. They allege that they acquired the property from the East Haven redevelopment agency pursuant to a contract dated August 30, 1976, which required them to construct improvements in accordance with the design plan approved by the development agency. They allege that the essential part of the plan was "the design of a medical office building with plantings and vegetation facing Main Street . . . as a noise and traffic buffer to the building." They further allege that the covenants of the contract bound the plaintiffs, their successors and assignees to construct the building in accordance with the design plan.
In count three, the plaintiffs seek to retain all of the property as it is presently configured. They allege that the town's taking of their property would inflict irreparable harm upon them for which there is no adequate remedy at law because compensation for the taking will not include business losses suffered by the plaintiffs.
A hearing was scheduled on October 3, 2006 on the issue of whether the town has proper authority to condemn their property. On that day, the town brought an amended notice of condemnation. The original notice of condemnation dated July 10, 2006 cites only General Statutes §§ 8-193 and 8-129 as the legal authority under which the town claims the right to proceed with the condemnation action. The amended notice included Connecticut Constitution, Art 1, Sec. 11, General Statutes §§ 7-148 and 48-6 as additional legal authority justifying the taking.
On October 3, 2006, the plaintiffs filed a memorandum in support of their application for temporary injunction. On November 14, 2006, a hearing was held on the application of temporary injunction and the town filed the amended notice of condemnation with the Superior Court. On November 28, 2006, both parties submitted post-trial briefs. On December 4, 2006, the town submitted a supplemental post trial-brief.
"The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." Rustici v. Malloy, 60 Conn.App. 47, 56, 758 A.2d 424, cert. denied, 254 Conn. 952, 762 A.2d 903 (2000); see also Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d 633 (1941). "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . ." (Internal quotation marks omitted.) Maritime Ventures, LLC v. Norwalk, 277 Conn. 800, 807-08, 894 A.2d 946 (2006). "The allegations and proof are conditions precedent to the granting of an injunction." Clark v. Gibbs, 184 Conn. 410, 419-20, 439 A.2d 1060 (1981). "If a party demonstrates both of those elements, a court may exercise its discretion to issue an injunction." Hackbarth v. Hackbarth, 62 Conn.App. 490, 499, 767 A.2d 1276, cert. denied, 256 Conn. 916, 773 A.2d 944 (2001).
"A prayer for injunctive relief is addressed to the sound discretion of the court and the court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court's decision must stand." Maritime Ventures, LLC v. Norwalk, 277 Conn. 800, 807-08, 894 A.2d 946 (2006).
There is a four-part test for the issuance of a temporary injunction. "In order for a [temporary injunction] to issue, [the trial court] must determine that: (1) the plaintiff has no adequate legal remedy; (2) the plaintiff would suffer irreparable injury absent a [temporary injunction]; (3) the plaintiff [is] likely to prevail [at trial]; and (4) the balance of the equities favor[s] a [temporary injunction]. Waterbury Teachers Association v. Freedom of Information Committee, 230 Conn. 441, 446, 645 A.2d 978 (1994)." DeBisshop v. Town of Oxford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 4006416 (September 26, 2006, Robinson, J.).
A Amended Notice of Condemnation
"As for the amended notice of condemnation, the amended complaint and the answer, the defendant cannot be heard to complain if the plaintiffs and the court treated the pleadings in the precise manner in which they were proffered, viz., as a continuation of a pending matter. Nor does the court lose the power to permit reasonable amendments merely because the proceeding involves the exercise of the power of eminent domain. Water Commissioners v. Perry, 69 Conn. 461, 470." Rice v. Ives, 27 Conn.Sup. 23, 25-26, 228 A.2d 153 (1966); see also Commissioner of Transportation v. Haight, Superior Court, judicial district of Fairfield, Docket No. CV 00 0374497 (May 11, 2004, Dewey, J.). "It is a necessary incident of proceedings of this nature that the judge, before whom they may be brought, should have power to allow reasonable amendments at any stage of the hearing." Water Commissioners v. Perry, supra, 69 Conn. 470.
"Whether to allow an amendment is a matter left to the sound discretion of the trial court." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 255, 905 A.2d 1165 (2006). "The law is well-settled that belated amendments to the pleadings rest in the sound discretion of the trial court." Conference Center Ltd. v. TRC, 189 Conn. 212, 216, 455 A.2d 857 (1983). "While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment." Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 255. "The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." Billy Leo, LLC v. Michaelidis, 87 Conn.App. 710, 714, 867 A.2d 119 (2005).
"Pleadings in eminent domain actions may be amended . . . to correct defects [or] omissions . . . that are relatively minor in nature." Nichols on Eminent Domain. In City of Winner v. Bechtold Investments, Inc., 488 N.W.2d 416, 419 (S.D. 1992), where the petition for condemnation was defective in that it failed to cite correct statutes which would give the power of eminent domain to the city, the Supreme Court of South Dakota held that the trial court did not abuse its discretion in allowing the city to amend its pleading because the eminent domain statutes in South Dakota do not "mandate specifically pleading the source of statutory authority for the condemnation in . . . the petition for condemnation." The Connecticut General Statutes § 8-129 sets out the required contents of a statement of compensation and a notice of condemnation, stating in relevant part that "[t]he redevelopment agency . . . shall file a statement of compensation, containing a description of the property to be taken and the names of all persons having a record interest therein and setting forth the amount of such compensation, and a deposit as provided in section 8-130 . . . and shall forthwith give notice, as provided in this section, to each person appearing of record as an owner of property affected thereby . . ." Therefore, it is not mandatory under § 8-129 to state the statutes under which the condemnor was proceeding, and thus a condemnor may be allowed to amend a notice of condemnation to add more legal authority. City of Winner, supra, 488 N.W.2d 416, however, may be distinguishable from the present case in that the city's reference to the incorrect statute was a minor defect since in that case, there was no question that the city had the authority to condemn regardless of the statute cited. In the present case, the plaintiffs direct their attack on the defendant town's statutory authority to condemn their property and, thus, the addition of legal authority to the notice of condemnation should not be deemed a minor change.
"In most jurisdictions, the issue of whether an amendment will be allowed [in eminent domain actions] . . . turns on the timing of the application of the amendment." 6 Nichols on Eminent Domain § 26B.06, (3d ed. 2001), p. 19-32 through 19-33. In Lake County Forest Preserve District v. Frecska, 85 Ill.App.3d 610, 617, 407 N.E.2d 137 (1980), where condemnor attempted to amend its petition for condemnation from taking a fee in the property to taking an easement, the Appellate Court of Illinois held that "[o]n the first day of trial an amendment should not ordinarily be permitted to set up matters of which the pleader had full knowledge at the time of interposing the original pleading . . . [and] [t]his is particularly true where the amendment is prejudicial or would alter the nature and quality of proof required to defend." In that case, the plaintiff's "petition for condemnation was filed on July 5, 1974, and the cross-petition for damages was filed on December 20, 1976, [but] the plaintiff did not attempt to amend its petition until the first day of trial on September 18, 1978." Id. Similarly, in St. Marys v. Dayton Power Light Co., 79 Ohio App.3d 526, 536, 607 N.E.2d 881 (1992), where the condemnee's motion to amend its answer asserting eleven new defenses was filed twenty minutes before the hearing, the Court of Appeals of Ohio held that there was no abuse of discretion in the trial court's refusal to allow the condemnee to amend the answer because such allowing "would have worked an unfair prejudice against" the condemnor.
In the present case, the town brought their amended notice of condemnation on the date of the hearing. The hearing was on the issue of whether the town had proper legal authority to condemn the plaintiffs' property. In the original notice of condemnation, the town cited only §§ 8-193 and 8-129 as statutory authority to justify their condemnation, which authorize a municipal redevelopment agency to take private property by eminent domain. The plaintiffs brought this present action, asserting that the town lacked legal authority to exercise the powers of eminent domain under those statutes because the town did not comply with the requirements of the statutes. The amended notice of condemnation contained additional legal authority, including Connecticut Constitution, Art 1, Sec. 11, General Statutes §§ 7-148 and 48-6, so that the town may assert a new theory to justify their condemnation action, i.e., that its taking is lawful since the town is pursuing a public purpose as long as the plaintiffs are provided with a hearing and just compensation. Although it can be argued that allowing such amendment at the commencement of trial could deprive plaintiff of reasonable opportunity to meet all the defendants, the court provided plaintiff with ample post-hearing trial time to brief the issue created by the claimed added statutory authorities. Therefore, the court will allow the amendment in question.
CT Page 4151
B Temporary Injunction
The plaintiffs request this court to enjoin the town from taking any further action to take their property by eminent domain on the ground that the town lacks proper legal authority to take their property by eminent domain. They argue that they are entitled to a temporary injunction because they met the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. They argue that in Connecticut, a party seeking judicial review of the constitutionality or legality of a governmental agency's decision to condemn property pursuant to § 8-129 has no adequate remedy at law and is therefore entitled to equitable relief. They further argue that, as a matter of law, "a person being deprived of his or her real property through condemnation will suffer irreparable harm in the absence of injunctive relief" and that "such losses may not be compensated for by a mere monetary reward." The town has not provided any counter arguments as to these threshold issues.1. Adequate Remedy at Law
"If the plaintiffs have an adequate remedy at law then they are not entitled to the injunction." Stocker v. Waterbury, 154 Conn. 446, 451, 226 A.2d 514 (1967). "`Adequate remedy at law' means a remedy vested in the complainant, to which he may at all times resort, at his own option, fully and freely, without let or hindrance." Milford Education Ass'n. v. Board of Education, 167 Conn. 513, 519, 356 A.2d 109 (1975). "Section 8-129 fails to provide the property owner with an opportunity to contest the taking of his property . . . Thus, being without an adequate remedy at law, the property owner is required to seek equitable relief to obtain a review of the taking agency's actions." (Citation omitted.) Simmons v. State, 160 Conn. 492, 501-02, 280 A.2d 351 (1971).
In the present case, the town pursued their condemnation proceeding pursuant to § 8-129 and the plaintiffs alleged and showed that they seek to review the town's legal authority to condemn their property. Since the plaintiffs cannot raise their claim of lack of proper legal authority in the valuation proceeding, they have no adequate remedy at law. A "condemnee in a redevelopment case may secure a judicial review of the necessity and legality of the taking and has the opportunity of alleging and proving its illegal character in any of the respects alleged, and if he sustains his burden of proof he may secure injunctive relief." Fishman v. Stamford, 159 Conn. 116, 121, 267 A.2d 443 (1970), cert. denied, 399 U.S. 905, 90 S.Ct. 2197, 26 L.Ed.2d 560 (1970).
2. Irreparable Harm
"The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." (Internal quotation marks omitted.) Wallingford v. Werbiski, 274 Conn. 483, 494, 877 A.2d 749 (2005). "Irreparable harm arises when there exists no legal remedy furnishing full compensation or adequate redress for a wrong done to or sustained by an individual. The injury or wrong complained of must be serious or material and not adequately reparable by damages at law in that, such damages will not restore the complaining party to the position in which the party formerly stood." CTTFB, Inc. v. Municipal Tax Services, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 06 4014830 (July 3, 2006, Ford, J.T.R.). "[W]hether damages are to be viewed by a court of equity as `irreparable' or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary loss suffered." (Internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 90, 527 A.2d 230 (1987).
In order for a claim of deprivation of a constitutional right to constitute irreparable harm, a plaintiff "must allege, and at a hearing, show that there is an infringement on a constitutional right . . ." 18 Brewer Associates v. Mormino, Docket No. CVH 01-6792 (May 8, 2002). Such infringement would be irreparable harm. Id.
In the present case, the plaintiffs alleged and showed at the hearing that there was an infringement on their constitutional right to due process of law. They alleged and showed that the town started a condemnation proceeding to take their property without proper legal authority. An illegal taking of private property by a government agency constitutes an infringement on a constitutional right to due process of law. Accordingly, the court finds that the plaintiffs met their burden to show irreparable harm.
3. Likelihood of Success
"It is well settled in Connecticut that a plaintiff is entitled to a preliminary or temporary injunction only if that plaintiff proves a reasonable likelihood of success on the merits . . ." Taylor v. Hoffman Ford, Superior Court, judicial district of Tolland, Docket No. CV 04 4000390 (September 22, 2005, Scholl, J.) ( 40 Conn. L. Rptr. 49). "In the . . . situation of a temporary injunction to preserve the status quo until the rights of the parties can be determined after a full hearing on the merits . . . the court may well exercise its discretion in favor of granting or continuing it, unless indeed, it is very clear that the plaintiff is without legal right . . . This criterion necessarily requires consideration of the probable outcome of the litigation. Decisions of our trial courts have frequently referred to the burden of an applicant to show a reasonable degree of probability of success before a temporary injunction to preserve the status quo may be granted. Connecticut State Medical Society v. Connecticut Medical Service, Inc., 29 Conn.Sup. 474, 477-78, 293 A.2d 794 (1971); Hopkins v. Hamden Board of Education, 29 Conn.Sup. 397, 417, 289 A.2d 914 (1971) . . ." (Citations omitted; internal quotation marks omitted.) Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 457-58, 493 A.2d 229 (1985). "To demonstrate that she is likely to prevail on the merits, the plaintiff must present enough evidence to make her right clear, but need not put on a full trial on the merits . . . [A] hearing on a preliminary injunction is not a forum for a full investigation into the merits of the plaintiffs' claims." (Citations omitted; internal quotation marks omitted.) Taylor v. Hoffman Ford, supra, 40 Conn. L. Rptr. 49.
In the present case, the court's issuance of a temporary injunction hinges upon the plaintiffs' likelihood of success at trial as to the issue of whether the town has proper legal authority to acquire their property. The plaintiffs argue that municipalities have no inherent powers to exercise the power of eminent domain and that they exercise a special statutory power in strict compliance with the requirements of the relevant statutes. The town has not provided any counter arguments as to these issues.
"The town has no inherent powers, and such powers as it may legally exercise are either expressly granted by the legislature or are such as are necessary to the performance of its duties as a municipal corporation." Moore v. Stamford, 14 Conn.Sup. 258, 260 (1946). "Municipalities in the state of Connecticut . . . have no independent authority or independent responsibility; they are administrative units of the state and can do only what the state authorizes or delegates them to do." Moore v. Ganim, 233 Conn. 557, 559 n. 2, 660 A.2d 742 (1995).
"The authority to condemn is to be strictly construed in favor of the owner and against the condemnor, and the prescribed method of taking must be strictly pursued." (Internal quotation marks omitted.) Maritime Ventures, LLC v. Norwalk, supra, 277 Conn. 821. "Strict compliance with each of the enumerated steps in the statute is a condition to the validity of the entire proceeding concerning a redevelopment plan." Sheehan v. Altschuler, 148 Conn. 517, 523, 172 A.2d 897 (1961). "The rule applicable to the corporate authorities of municipal bodies is that when the mode in which their power is to be exercised is prescribed, that mode must be followed . . . When essential steps are not taken as required by the statute for the adoption of a redevelopment plan, the purported plan, as well as any attempted approval of it and any action taken under it, are invalid." (Internal quotation marks omitted.) Maritime Ventures, LLC v. Norwalk, supra, 277 Conn. 821-22. "Where the land of an individual is taken in invitum for public use, under the provisions of positive law, every requisite of the statute must be complied with, and this must appear on the face of the proceedings for taking the land." State v. McCook, 109 Conn. 621, 629, 147 A. 126 (1929).
1) General Statutes § 8-193
The plaintiffs argue that the town has no legal authority to acquire their property because it failed to comply with the strictures of the statutes that it cites as legal authority. They argue that the town failed to comply with the statutory provisions which would authorize acquisition of real property within the project area in accordance with § 8-193. They argue that neither the town nor its urban renewal agency ("URA") prepared a project plan in accordance with § 8-189 and that there is no evidence that a development plan was ever duly adopted in accordance with the provisions of § 8-191 since the public hearing held on May 29, 2002, was not a hearing on a proposed plan or a final draft of the plan, but was an opportunity for the public to comment on a draft of the plan that was subject to significant changes. They further argue that there was no evidence to prove that the plan was adopted by any designated development agency because there is no evidence of any action by the URA itself on the plan or its adoption and the "ad hoc" committee should not be deemed the URA itself.
The town counters that it followed the procedures set forth in § 8-193. It argues that Chapter four, § 5, of the East Haven town charter established the URA as its redevelopment agency; that the URA commissioned the development plan and held a public hearing on it on May 29, 2002; that the East Haven legislative council approved the plan; and that it obtained § 8-24 approval from the planning and zoning commission and the legislative council prior to the underlying condemning action.
General Statutes § 8-193 provides in relevant part: "After approval of the development plan as provided in this chapter, the development agency may proceed by purchase, lease, exchange or gift with the acquisition or rental of real property within the project area . . . The development agency may, with the approval of the legislative body, and in the name of the municipality, acquire by eminent domain real property located within the project area . . . in the same manner that a redevelopment agency may acquire real property under sections 8-128 to 8-133, inclusive, as if said sections specifically applied to development agencies."
"General Statutes § 8-189 describes the requirements that the development agency must follow in preparing the mandatory project plan . . ." Kelo v. New London, 268 Conn. 1, 15-16, 843 A.2d 500 (2004), aff'd 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). General Statutes § 8-191 provides in relevant part: "(a) Before the development agency adopts a plan for a development project, (1) the planning commission of the municipality shall find that the plan is in accord with the plan of development for the municipality . . . and (3) the development agency shall hold at least one public hearing thereon. Upon approval by the development agency, the agency shall submit such plan to the legislative body which shall vote to approve or disapprove the plan. After approval of the plan by the legislative body, the development agency shall submit the plan for approval to the commissioner. Notice of the time, place and subject of any public hearing held under this section shall be published once in a newspaper of general circulation in such town, such publication to be made not less than one week nor more than three weeks prior to the date set for the hearing . . . Any legislative body, agency or commission in approving a plan for a development project shall specifically approve the findings made therein."
2) General Statutes § 8-129
The plaintiffs argue that § 8-129 does not provide a separate authority for the taking since it merely provides the procedures to be followed for a development agency to take private property. Alternatively, they argue that there is no evidence to show that the town complied with the requirements of Chapter 130 for a redevelopment project so as to authorize the acquisition of real property pursuant to § 8-129. They argue that, although the URA is the redevelopment agency referred to by the statute, phase two of the project does not fit the definition of a "redevelopment area" as defined in § 8-125(b), and the beautification plan does not fit within the definition of § 8-125(c) of a redevelopment plan. They argue that Exhibits 3 and 4 satisfies none of the requirements of § 8-127. This court agrees with the plaintiffs that § 8-129 does not provide a separate authority to take private property.
3) The Constitution of Connecticut, article first, § 11
The constitution of Connecticut, article first, § 11, provides: "The property of no person shall be taken for public use, without just compensation therefor." The plaintiffs argue that the provision merely mandates that, if private property is taken for a public use, just compensation shall be awarded for the taking. This court agrees with the plaintiffs that article first, § 11, of the constitution of Connecticut does not provide any special authority for a municipality to take private property.
4) General Statute § 7-148
The plaintiffs argue that, even if § 7-148 grants general condemnation powers to municipalities, the power of condemnation must be exercised in strict compliance with the specific statutory requirements for the public project. They argue that, if the general language of § 7-148(c)(3)(A) could be used to authorize municipal acquisitions for any public purpose, the decision in Sheehan v. Altschuler, supra, at 525, that there can be no acquisition of private property if the redevelopment plan has not been legally adopted in accordance with §§ 8-127 and 8-128 would be meaningless, and the holding in AvalonBay Communities, Inc. v. Orange, supra, 256 Conn. 573 (2001), that failure to properly adopt a development plan would preclude the lawful acquisition of private property would have been superfluous and moot.0
General Statutes § 7-148(c) contains a list of the various powers delegated to municipalities, including the power to "[t]ake . . . [or] condemn . . . such real and personal property . . . as the purposes of the municipality or any public use or purpose, including that of education, art . . . parks . . . the erection or maintenance of statues, monuments, buildings or other structures, or the encouragement of private commercial development, require." Corporate authorities of municipal bodies, however, must exercise their power in prescribed mode. Sheehan v. Altschuler id.
5) General Statutes § 48-6
The plaintiffs argue that § 48-6 does not provide independent authority for the taking of private property but it requires the municipality to vote "in accordance with its charter or the general statutes." They argue that there is no evidence to prove that the charter of East Haven that authorized the vote taken by the town council was in accordance with the town charter. The charter was admitted as Exhibit A for the limited purpose of establishing that the urban renewal agency was the redevelopment agency and the community development agency of the town. They argue that the urban renewal agency performed none of the functions specified in the relevant statutes and was not the condemning authority.
"[I]n exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction." (Internal quotation marks omitted.) Wallingford v. Werbiski, supra, 274 Conn. 494. "In considering the equities, the court must weigh whether the harm likely to occur to the defendant if a temporary injunction is granted is greater or less than the harm likely to occur to the plaintiff if the injunction is denied."
The balancing of equities favors the issuance of a temporary injunction. In the present case, the plaintiffs will suffer irreparable harm if the town is allowed to continue the condemnation proceeding. Upon a trial court's denial of temporary injunction, a redevelopment agency is entitled to proceed according to the statutory procedures for taking property by eminent domain pending the trial court's final decision on the ultimate issues. See Broadriver, Inc. v. Stamford, 158 Conn. 522, 527-28, 265 A.2d 75 (1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970). On the other hand, if a temporary injunction were issued, the town could not carry out its plan until the final judgment at trial. The plaintiffs' harm is greater than the town's loss. Accordingly, plaintiffs' application for a temporary injunction is granted, and the defendant Town of East Haven is temporarily enjoined from condemning plaintiff's property until further order of the court.