Summary
In Meriden (supra), the city had alleged the elements for a temporary injunction, including an allegation that the violation would cause a public nuisance by which the city would be irreparably harmed.
Summary of this case from Sorrentino v. IvesOpinion
No. CV03 0286120-S
April 15, 2004
MEMORANDUM OF DECISION RE MOTION FOR TEMPORARY INJUNCTION #101
FACTS
The Plaintiff in this action is the City of Meriden (the "city"). The defendants, Duane and Roberta Woodbury, (the "defendants") are homeowners of property located at 63 So. Avenue in Meriden. The city filed an application for a temporary injunction and order to show cause dated November 21, 2003. In its verified complaint, the city alleges the defendants had been notified that their home was in violation of the Meriden Housing Code, namely, siding was missing in violation of § 125-26I; the foundation was in need of repairs in violation of § 125-26A; debris was present in the backyard in violation of § 125-10 and the house was in need of visible numbers in violation of § 125-26K. The city further alleges that the defendants knowingly were continuing to violate these provisions, thereby, causing a public nuisance and irreparably harming the city.
The matter is before the court on the city's Application for Temporary Injunction and Order to Show Cause. The city requests an order restraining the defendants from continuing to utilize their premises until they are in compliance with the Housing Code.
At the hearing on the application and order to show cause and in their answer dated December 16, 2003, the defendants claimed § 125-10 pertains to multi-family dwellings and not single dwelling like theirs; they are in the process of correcting the problems with the house and are working on the inside first; they will then work on correcting the outside problems; and there now are visible numbers on the house. They further claim harassment by the city and a violation of their constitutional rights.
DISCUSSION CT Page 5672
"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." (Internal quotation marks omitted.) Clinton v. Middlesex Mutual Assurance Co., 37 Conn. App. 269, 270, 655 A.2d 814 (1995). To prevail on an application for a temporary injunction, the movant must show (1) lack of an adequate remedy at law; (2) likelihood of success on the merits; (3) irreparable injury; and (4) that a balancing of the equities favors granting the injunction. Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994)."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.) Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001). The issuance of an injunction is "an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances." (Internal quotation marks omitted.) Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982).
"[T]here is a split of authority on the issue of a municipality's burden concerning an application for a temporary injunction. Compare Kosilla v. Collins Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV 00 0801571 (November 29, 2000, Berger, J.) ( 29 Conn.L.Rptr. 11) (finding no rationale to differentiate between temporary and permanent injunctions and holding that the plaintiff, a municipality, need not allege and prove irreparable harm or lack of an inadequate remedy at law on a motion for temporary injunction), with Granby v. Schlicht, Superior Court, judicial district of Hartford, Docket No. CV 01 0811944 (January 14, 2002, Beach, J.) ( 31 Conn. L. Rptr. 275) (finding that in light of compelling policy reasons, a municipality must meet the traditional injunction standards including a showing of irreparable harm on a motion for a temporary injunction), and Kwiatkoski v. Johnson, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93 0307032 (October 27, 1993, Vertefeuille, J.) ( 10 Conn. L. Rptr. 311) (same)." Canterbury v. Kukevitch, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0070337 (June 17, 2003, Foley, J.) ( 35 Conn.L.Rptr. 14). See also, Town of Westport v. 157 Easton Road, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93-0308031 (March 11, 1994, Vertefeuille, J.).
I agree with the line of cases requiring a municipality to allege and prove all elements of the traditional test for issuance of a temporary injunction. Why that is so is demonstrated by the context of this case. Here, the court is being asked to enter an order — a non appealable order — enjoining owners and occupants of a home from using their home until they comply with housing code regulations and until they remedy violations which, on the evidence, do not pose threat of irreparable harm and which are primarily cosmetic in nature.
At the time of the hearing, house numbers had been applied to the house.
The city has alleged the elements for a temporary injunction, including an allegation that the violations are "causing and will continue to cause a public nuisance, by which the [city will be] irreparably harmed." "A public nuisance exists if: (1) the condition complained of has a natural tendency to create danger and inflict injury upon person or property; (2) the danger created is a continuing one; (3) the use of the land is unreasonable or unlawful; and (4) the condition or conduct complained of interferes with a right common to the general public." Keeney v. Old Saybrook, 237 Conn. 135, 162-63, 676 A.2d 795 (1996). The city has not presented evidence to afford a basis for such findings.
The city's application for temporary injunction is denied.
BY THE COURT
Tanzer, Judge