Opinion
FSTCV156026175S
10-17-2016
City of Norwalk et al. v. Nicholas Maraglino
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR TEMPORARY INJUNCTION
Donna Nelson Heller, J.
The plaintiffs City of Norwalk and Vladimir Mariano, as deputy zoning inspector for the City of Norwalk (collectively, the City), commenced this zoning enforcement action, returnable September 29, 2015, against the defendant Nicholas Maraglino. The City seeks, inter alia, a permanent injunction pursuant to General Statutes § § 8-12 and 52-471 et seq., prohibiting the defendant from continuing to violate § 118-522(B)(4)(a) of the Building Zone Regulations of the City of Norwalk (the City zoning regulations) by the improper outdoor storage of materials at the property located at 7 Brookfield Street, Norwalk, Connecticut (the Brookfield Street property), and requiring the defendant to cure all existing violations (#100.31). To date, the defendant has not filed a responsive pleading.
On August 20, 2015, the City filed an application for temporary injunction and order to show cause requiring the defendant to show cause why an order for temporary injunction ordering the defendant to comply with a cease and desist order, as discussed more fully below, and commanding the defendant to bring the Brookfield Street property into compliance with the applicable City zoning regulations should not issue (#100.35). The defendant did not file an objection to the motion for a temporary injunction.
The parties were before the court on the June 20, 2016 special proceedings calendar. The court heard testimony from two witnesses, including the defendant, reviewed the exhibits that were admitted into evidence, and heard argument from counsel for the parties. The court reserved decision at that time. For the reasons set forth below, the motion for temporary injunction is denied.
I
The defendant's father started a truck tire recapping business, Commercial Tire & Recapping Co., Inc. (Commercial Tire), at the Brookfield Street property in or around 1960. The defendant's father purchased the property in 1962. The defendant began working at Commercial Tire in approximately 1967. He has been the owner of the Brookfield Street property for about two years.
The tire business has continued without interruption at the Brookfield Street property from 1960 to date. From its inception, Commercial Tire has stored tires outside, next to its building on the Brookfield Street property. These tires have not been screened from view in any manner.
On June 23, 2015, the City notified the defendant by a notice of violation and order to cease and desist (the cease and desist order) that Commercial Tire's outside storage of tires on the Brookfield Street property was in violation of § 118-522(B)(4)(a) of the City zoning regulations. The City further ordered that the defendant cease and desist from such improper outside storage and bring the property into compliance with the applicable City zoning regulations. The defendant has neither complied with the cease and desist order nor appealed the order to the City of Norwalk Zoning Board of Appeals.
The City previously served a notice of violation and order to cease and desist on the defendant's mother, who was the owner of the Brookfield Street property at the time, on July 18, 2012.
II
The Brookfield Street property is located in Business Zone No. 2 of the City of Norwalk. The use regulations applicable to Business Zone No. 2 are set forth in § 118-522 of the City zoning regulations, effective January 16, 1987, as amended. The purpose and intent of the regulations " is to permit retail stores, service shops, mixed-use development, artist workspace and other compatible uses at a scale appropriate to the commercial, employment and housing needs of this city. The area within this zone is intended to have infrastructure of sufficient capacity either prior to or coincident with permitted development. The provisions of this zone are designed to ensure that all permitted uses and structures will be compatible with each other and will provide protection to adjacent residential areas." City Zoning Regs. § 118-522(A). Subsection (B) of § 118-522 addresses approved uses and structures in Business Zone No. 2. Under subdivision (4) of subsection (B), " [a]ccessory uses and structures which are incidental to and customarily associated with the principal use of the premises shall be permitted subject to the following restrictions: (a) Outdoor storage shall be confined to the rear and side yards only and shall be effectively screened from adjacent properties . . ." City Zoning Regs. § 118-522(B)(4)(a).
The City contends that the defendant is in violation of § 118-522(B)(4)(a) of the City zoning regulations because the tires stored by Commercial Tire next to its building on the Brookfield Street property are not screened as required by the regulations. Pursuant to General Statutes § 8-12, the City is seeking a temporary injunction ordering the defendant to comply with § 118-522(B)(4)(a) of the City zoning regulations by screening the tires that Commercial Tire is storing outside on the Brookfield Street property.
General Statutes § 8-12 provides in pertinent part that " [i]f any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises . . ."
III
In general, " [a] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." (Citations omitted.) Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981). " The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm as a result of that violation . . . Moreover, [t]he 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." (Citations omitted; internal quotation marks omitted.) Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97-98, 10 A.3d 498 (2010). Where the party seeking injunctive relief is a municipality, however, it may be relieved of the burden of proving irreparable harm and lack of a remedy at law. As our Appellate Court observed in Johnson v. Murzyn, 1 Conn.App. 176, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984), " [a]n injunction sought pursuant to a statute by the public official charged with the responsibility of enforcing the law . . . stands on a different footing . . . A municipality, in seeking to enjoin a threatened or existing violation of its zoning regulations, need not show damage accruing to it by reason of the violation. In acting to enforce the regulation it acts on behalf of the interest of all property owners within the municipality to enforce their right to acquire conformity with the regulation as the quid pro quo for their own submission to the restrictions imposed upon their property." (Citations omitted.) Id. at 179-80. " The rationale underlying this rule . . . is that the enactment of the statute by implication assumes that no adequate remedy exists and that the injury was irreparable, that is, the legislation was needed or else it would not have been enacted." (Citations omitted; internal quotation marks omitted.) Id. at 180-81. See Gelinas v. West Hartford, 225 Conn. 575, 588, 626 A.2d 259 (1993) (" In seeking an injunction pursuant to [General Statutes] § 8-12, the town is relieved of the normal burden of proving irreparable harm and the lack of an adequate remedy at law because § 8-12 by implication assumes that no adequate alternative remedy exists and that the injury was irreparable . . . The town need prove only that the statutes or ordinances were violated" (citation omitted)).
Cases such as Gelinas and Johnson involved applications by municipal authorities pursuant to General Statutes § 8-12 for permanent injunctions, while the City in this case is seeking a temporary injunction. According to the City, however, the same standard should apply. It submits that as a municipal entity acting pursuant to statute to enjoin a violation of its zoning regulations, it need not prove irreparable harm or the lack of an adequate remedy at law. The court agrees.
There are no appellate decisions on the question of whether a municipality must demonstrate irreparable harm and the lack of an adequate remedy at law in seeking a temporary injunction under § 8-12, and there is a split of authority in the Superior Court on the issue. Compare, e.g., Kwiatkoski v. Johnson, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-93-0307032-S (Oct. 27, 1993, Vertefeuille, J.) (10 Conn.L.Rptr. 311, ) (governmental entity seeking temporary injunction must satisfy all elements, including irreparable harm, because temporary injunction not immediately appealable, and issuance of temporary relief may moot need for permanent relief) with, e.g., Kosilla v. Collins Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV-00-0801571-S (Nov. 29, 2000, Berger, J.) (29 Conn.L.Rptr. 11, ) (ruling on defendant's motion to strike town's request for a temporary injunction, trial court held that " [t]his court can see no reason why the rationale would differ simply because the motion requests a temporary rather than a permanent injunction . . . Indeed, the Appellate Court has recognized that an injunction could be sought to prevent a threatened violation of the municipal regulations . . . The harm--the violation of the legislative expression--cannot possibly change" (citations omitted)). It appears that a majority of the trial court decisions addressing the issue have found that a sufficient showing of irreparable harm and lack of an adequate remedy is necessary when a municipal authority is seeking a temporary injunction in a zoning enforcement proceeding. See, e.g., Masi v. Phoenix Management Group One, LLC, Superior Court, judicial district of New Haven, Docket No. NNH-CV-12-6025683-S (Aug. 23, 2012, Corradino, J.T.R.) (54 Conn.L.Rptr. 604, ); Sorrentino v. Ives, Superior Court, judicial district of Windham, Docket No. WWM-CV-09-5005282-S (Jan. 20, 2010, Dos Santis, J.) (49 Conn.L.Rptr. 325, ); Granby v. Schlicht, Superior Court, judicial district, Docket No. CV-01-0811944-S (Jan. 14, 2002, Beach, J.) (31 Conn.L.Rptr. 275, ); Kwiatkoski v. Johnson, supra, Superior Court, Docket No. CV-93-0307032-S (10 Conn.L.Rptr. 311, ). In similar contexts, however, a number of trial court decisions have been in accord with the reasoning of the court in Kosilla, supra .
In Yorgensen v. Chapdelaine, Superior Court, judicial district of Windham, Docket No. WWM-CV-11-6003791-S (Dec. 12, 2011, Vacchelli, J.), where the plaintiff sought a temporary injunction under § 22a-44(b) of the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq., the court found that where " the plaintiff is a town official acting pursuant to a statute that authorizes her to seek injunctive relief, the town official is relieved of the normal burden of proving irreparable harm and the lack of an adequate alternative remedy. That is because the statute, by implication, assumes that no adequate alternative remedy exists, and that the injury is irreparable . . . The town official need only prove that the statutes or regulations were violated." (Citations omitted.) Id.
In RW Group, Inc. v. Pharmacare Management Services, Inc., Superior Court, judicial district of Tolland, Docket No. X07-CV-05-4003840-S (April 27, 2006, Sferrazza, J.) (41 Conn.L.Rptr. 418, ), where the plaintiffs were seeking a temporary injunction under § 42-115e of the Unfair Sales Practices Act, General Statutes § 42-111 et seq., the court found no " logical reason, procedural or substantive, to distinguish between temporary and permanent injunctions which arise from statutory authority. The rationale underlying this rule, that the complainant is relieved of his burden of proving irreparable harm and no adequate remedy at law is that the enactment of the statute by implication assumes that no adequate alternative remedy exists and that the injury was irreparable, that is, the legislation was needed or else it would not have been enacted . . . Such statutes conclusively create a legislative presumption that there is no adequate legal remedy . . . It is the creation of specific statutory authority to issue an injunction itself which implies that irreparable harm exists if the prerequisites of the statute are satisfied. This implication ought to be drawn regardless of the length of time the injunction will endure." (Citations omitted; internal quotation marks omitted.) Id.
In State v. Tracey's Smoke Shop & Tobacco, LLC, Superior Court, judicial district of Hartford, Docket No. X04-HHD-CV-11-6024334-S (Feb. 24, 2012, Bright, J.) (53 Conn.L.Rptr. 594, ), the court reasoned that " [t]he legislative presumption that an injury is irreparable and there is no adequate remedy at law does not change merely because an applicant seeks a preliminary injunction as opposed to a permanent injunction. If a governmental applicant is able to prove a statutory violation, they are entitled to rely on the legislative presumption. Therefore, where a statute specifically provides for injunctive relief, a governmental entity is relieved of the burden of proving irreparable harm or lack of adequate remedy at law." Id. With respect to the state's claims under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b(a) et seq., which specifically provides for injunctive relief, the court held that " the State need not prove irreparable harm or a lack of an adequate remedy at law. The State must still prove, however, that it is likely to succeed on the merits and that the balance of equities tips in its favor." Id.
This court finds the reasoning of the Kosilla line of cases to be more persuasive. " The legislative presumption that an injury is irreparable and there is no adequate remedy at law does not change merely because an applicant seeks a preliminary injunction as opposed to a permanent injunction. If a governmental applicant is able to prove a statutory violation, they are entitled to rely on the legislative presumption. Therefore, where a statute specifically provides for injunctive relief, a governmental entity is relieved of the burden of proving irreparable harm or lack of adequate remedy at law." State v. Tracey's Smoke Shop & Tobacco, LLC, supra, Superior Court, Docket No. X04-HHD-CV-11-6024334-S (53 Conn.L.Rptr. 594, ). Accordingly, having established that the defendant is not in compliance with § 118-522(B)(4)(a) of the City zoning regulations, the City is not required to demonstrate irreparable harm or the lack of an adequate remedy at law.
This is not, of course, the end of the court's inquiry on a motion for a temporary injunction. The City must still prove that the balance of equities tips in its favor and it is likely to prevail on the merits. " The proof of violation does not, however, deprive the court of discretion and does not obligate the court mechanically to grant the requested injunction for every violation . . . Thus, while the plaintiff need not prove irreparable harm or lack of adequate remedy at law, [it] must surely prove that the equities weigh in [its] favor which, of course, includes balancing the harm to the defendant, and that there is a likelihood of probable success on the merits." (Citations omitted; internal quotation marks omitted.) Kosilla v. Collins Group, Inc., supra, Superior Court, Docket No. CV-00-0801571-S (29 Conn.L.Rptr. 11, ).
IV
The court turns next to the third and fourth factors to be considered in determining whether to grant a temporary injunction--the balance of the equities and the likelihood of success on the merits. The defendant testified that the temporary outside storage of tires was a normal and necessary part of Commercial Tire's business. He claims that if Commercial Tire were not able to use the area next to its building to store tires, its business would be adversely affected. In response, the City points out that it is only seeking an order requiring that the tires be screened, in accordance with the applicable City zoning regulations, and not removed entirely. The court finds that the potential harm to the defendant if the court were to grant the City's motion for a temporary injunction--the cost of screening Commercial Tire's outside storage--does not outweigh the City's legitimate interest in enforcing its zoning regulations by requiring such screening. The balance of the equities tips in favor of the City.
With respect to the question of whether the City is likely to succeed on the merits, the defendant maintains that the City should not prevail because the outside storage of tires on the Brookfield Street property is a valid nonconforming use that is not in violation of the City zoning regulations. According to the defendant, the Brookfield Street property was in the Light Industrial Zone No. 1 under the City's prior zoning regulations, as amended to February 1, 1964, and those regulations did not prohibit unscreened side yard storage. The screening requirement was not adopted until 1987. The defendant contends that because Commercial Tire's storage of tires on the side of its building was a legally permitted use under the prior regulations, such use of the property should be allowed under the current City zoning regulations pursuant to General Statutes § 8-2.
General Statutes § 8-2 provides in relevant part that zoning regulations " shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations." General Statutes § 8-2(a). A nonconforming use has been defined as " a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted." Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988). " For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted." (Emphasis in original; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 91-92, 527 A.2d 230 (1987). " The party claiming the benefit of a nonconforming use bears the burden of proving that the nonconforming use is valid." Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993).
Notwithstanding the defendant's argument, is not at all clear that Commercial Tire's outside storage of tires is, in fact, a nonconforming use of the Brookfield Street property, rather than simply an accessory use. Indeed, in response to the City's contention that Commercial Tire's outside storage of tires was not lawful at the time the current City zoning regulations were adopted because such storage was never specifically authorized, and it was not otherwise a permissible use of the Brookfield Street property, the defendant maintains that it was not necessary for the outside storage to be expressly authorized because it was an ancillary and necessary part of Commercial Tire's business. Moreover, even if Commercial Tire's outside storage were deemed a use, and not just an accessory use, it would not be nonconforming in any event, particularly where § 118-522(B)(4)(a) of the City zoning regulations expressly permits outdoor storage in the side yard of the property--as Commercial Tire has been doing since 1960--as long as it is screened from adjacent properties. The screening requirement, adopted in 1987, does not alter the permitted use of the Brookfield Street property.
The court finds that the defendant has not sustained his burden of proving that the outside storage of tires on the Brookfield Street property is a valid nonconforming use of the property. The City has established that it is likely to succeed on the merits.
V
While the prayer for relief in the City's verified complaint seeks a permanent injunction prohibiting the defendant from continuing to violate the City zoning regulations and requiring the defendant to cure all existing violations and to cause no additional violations on the Brookfield Street property, the City's motion for a temporary injunction seeks an order directing the defendant to comply with the cease and desist order and bring the property into compliance with the City zoning regulations during the pendency of this action. According to the City, the specific temporary injunctive relief sought is an order requiring the defendant to screen the side yard storage on the Brookfield Street property. " The primary purpose of a temporary injunction is to preserve the status quo and protect the moving party from immediate and irreparable harm until the rights of the parties can be determined after a full hearing on the merits." (Citation omitted; internal quotation marks omitted.) Hausman v. Bernardo, Superior Court, judicial district of New Haven, Docket No. CV-07-4027901-S, (June 30, 2008, Corradino, J.). In this case, the City is seeking a temporary mandatory injunction--in other words, " a court order commanding a party to perform an act." Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 652, 646 A.2d 133 (1994).
" [T]rial courts have the discretionary authority, in the proper circumstances, to issue a preliminary mandatory injunction designed to preserve the status quo . . . The status quo, for these purposes, has been defined as 'the last, actual, peaceable, noncontested condition which preceded the pending controversy.'" (Citations omitted.) Stamford v. Kovac, 228 Conn. 95, 101-02, 634 A.2d 897 (1993) (granting temporary injunction, trial court ordered defendants to restore property to condition prior to certain illegal filling). " Mandatory injunctive relief may be granted . . . to enjoin violations of municipal zoning regulations . . ." (Citations omitted.) Holmes v. Pomazi, Superior Court, Docket No. DBD-CV-14-6014584-S, (Sept. 17, 2014, Roraback, J.) (granting temporary injunction enjoining defendants from storing commercial vehicles and construction equipment on subject property).
Unlike the temporary mandatory injunctions entered by the trial courts in Kovac and Holmes, the temporary mandatory injunction sought by the City is not designed to preserve the status quo. In this case, the City is seeking an order directing the defendant to install screening on the Brookfield Street property for the first time--not to replace screening that was improperly removed. " Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances . . . [M]andatory injunctions are . . . disfavored as a harsh remedy and are used only with caution and in compelling circumstances." (Citations omitted; internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650, 854 A.2d 1066 (2004). While the City will likely prevail at the eventual trial on the merits in this action, the court is reluctant to enter an order on a motion for temporary injunction that is tantamount to the ultimate relief that the City seeks, particularly where the pleadings are not yet closed.
VI
Accordingly, for the reasons set forth above, the City's motion for temporary injunction (#100.35) is denied.