Opinion
No. CV 04 009934
May 24, 2004
MEMORANDUM OF DECISION
This matter came before the court on May 17, 2004 on the Plaintiff's motion for a temporary injunction, to enjoin the Defendants from replacing existing mobile homes with manufactured homes. The Defendants are the owners and manager of a mobile home park known as Candle Hill Mobile Home Park located on Route 37 in New Milford, Connecticut. The park has existed since sometime in the 1950s, it was acquired by the defendants in 1989. This park encompasses approximately 7.27 acres of land and 101 mobile home sites. The park predates zoning and is allowed as a nonconforming use. The present zoning in the area is R-60, which means a building lot has to be sixty thousand square feet or more. The plaintiff is an abutting landowner whose home sits to the east of this property. Starting sometime in 2001 the Defendants started purchasing and tearing down the existing mobile homes and replacing them with larger manufactured homes. The defendants have also come into possession of some of the sites through summary process actions. The prior homes were generally 10 feet by 60 feet, the new ones are 14 feet by 66 feet. The Defendant Garden Homes owns the sites and rents them to the tenant for $300.00 per month, the tenants own their own units.
The Plaintiff argues that once one of these units has been taken off it cannot be replaced unless it conforms to the present zoning regulations. The Plaintiff's position is that these are new structures and since they are larger than the structure they replaced the present zoning regulations are controlling. In addition Chapter 160 of the New Milford Zoning Regulations does not allow a nonconforming use to be enlarged, extended or increased. In this case these manufactured homes are slightly larger than the prior ones. The defendant responds that they applied for and received approval from the Zoning Board of Appeals (hereinafter ZBA) to remove these structures. That they have applied for and received Zoning Permits from the Zoning Enforcement Officer to proceed with these replacements. By letter dated July 22, 2003 the president of the defendant Garden Homes notified the Zoning Enforcement Officer of these replacement homes and their position as to their legality. In response to an inquiry made by the plaintiff the Zoning Enforcement Officer contacted Atty Thomas Byrne, counsel for the New Milford Zoning Commission and the ZBA. By letter dated April 23, 2004 Atty Byrne concluded that since these units are used for single-family residential purposes, they are protected as legally existing nonconforming uses.
Plaintiff's Exhibit number 15.
Plaintiff's Exhibit number 21, letter from Kathy Castagnetta to Atty Byrne.
Defendants Exhibit number 1.
The Plaintiff in addition to this action has simultaneously appealed to the ZBA the granting of the Zoning permits and the variances allowing the replacement of these units, which appeal, is presently pending before the ZBA.
Because the Zoning Officer and the ZBA are allowing the defendants to continue with its replacement program, the plaintiff seeks this court to enjoin the defendants from any further action in this regard until, a) the ZBA has ruled on his appeal and b) any further appeals from the ZBA ruling have been decided. The plaintiff also seeks a declaratory judgment from the court declaring that each variance and building permit granted by the ZBA and Zoning Officer to be null and void. The court denies the request for a declaratory judgment. Where a party has other redress such as an Administrative Appeal to determine the correctness of an administrative agency's decision a declaratory judgment is inappropriate. Aaron v. Conservation Commission, 178 Conn. 173, 178 (1989). In this case the plaintiff will have the right to appeal the decision of the ZBA.
The purpose of a temporary injunction is to preserve the status quo until final determination of the parties' rights after a hearing on the merits. Clinton v. Middlesex Mutual Assurance Co., 37 Conn. App. 269, 270 (1995). The court when considering a temporary injunction must consider the following factors; a) irreparable and imminent injury, b) lack of an adequate remedy at law, c) likelihood of success on the merits, and d) the balancing of the equities favors granting the injunction. The plaintiff's position is that the value of his property has been diminished due to the replacement of these units because the they are taller, larger and more unsightly than the prior units. The plaintiff also argues that though the law allows for nonconforming uses, the ultimate goal is for nonconforming uses to extinguish themselves and at some point in time become conforming uses. If the defendants are allowed to continually replace these units the nonconforming uses will last in perpetuity.
Plaintiff's exhibits photos 23, 24, 25, 26, and 27.
The complaint in this action specifically deals with Zoning permits for seven units identified as:
1. 1 Victory Lane, which has been rebuilt and sold.
2. 12 Shadow Lane, which has been rebuilt and sold.
3. 4 Wicker Lane, where the building has been replaced, but no Certificate of Occupancy has been issued.
4. 18 Tallow Lane, Building replaced, no CO.
5. 16 Tallow Lane, Building replaced, no CO.
6. 17 Victory Lane, Building replaced, no CO.
7. 15 Duncan Lane, No Building, though new septic started.
The court notes that on each of these properties, the defendants have expended monies to rebuild the slabs and upgrade the utilities. The defendants are also required to install new septic systems for each unit under an agreement with the State and local Health Department.
The plaintiff's ultimate desire is that the ZBA will revoke these permits and order the removal of these replacement homes. Counsel for the plaintiff acknowledges that even if the ZBA were to sustain its appeal budgetary constraints would make it unlikely that any of the completed units would be removed.
The court has serious questions as to legality of these replacement homes being allowed under the nonconforming use regulations. On one hand these replacement units are a vast improvement over the older obsolete mobile homes, but they are really not mobile and appear to be an enlargement of a non-conforming use which is clearly prohibited, even with a variance. That question, however, is reserved for a later day.
The court having considered all the equities and factors, the court finds the plaintiff may suffer irreparable injury, no other adequate remedy at law exists, it is likely the plaintiff may succeed on the merits and the equities favor granting the injunction. The court therefore grants the following temporary injunction. Because the defendants having expended monies, they may complete the work and sell, 4 Wicker Lane, 18 Tallow Lane, 16 Tallow Lane, and 17 Victory Lane. The defendant may complete the septic system on 15 Duncan Lane, but are enjoined from replacing the building. The defendants are further enjoined from replacing any other units at this time. The defendants are enjoined from applying for any variances or zoning permits to replace any other units until the ZBA has ruled on the Plaintiff's appeal and any subsequent appeals thereto have been resolved.
Brunetti, J.