Opinion
No. CV07-4027901S
June 30, 2008
MEMORANDUM OF DECISION ON REQUEST FOR TEMPORARY INJUNCTION
As the court reviewed the file and the exhibits and read the transcript it was fully prepared to grant injunctive relief against this pro se litigant but as will be discussed certain difficulties presented themselves upon closer examination. Mr. Bernardo occupies a corner lot in an R20 zone in the town of North Haven. The zoning regulations provide that a fence may be no higher than three feet in the front yard. A corner lot is considered to have two front yards and two side yards. Without obtaining a required fence permit Mr. Bernardo proceeded to build a fence along Bailey Road which intersects with Samoset Avenue which his house faces.
In November 2006 the zoning enforcement officer mailed Mr. Bernardo a Cease and Desist Order based on the fact that the fence along Bailey Road was in excess of three feet.
Mr. Bernardo filed an appeal of the cease and desist order. According to the Zoning Enforcement Officer, Mr. Hausman, Mr. Bernardo did not pursue that appeal but applied for a variance instead which would have allowed him to build a fence higher than three feet. The town Zoning Board of Appeals heard Bernardo's application for a variance and in fact approved it 3 to 2 but the town regulations require a vote of 4 members for approval of a variance. Mr. Bernardo did not appeal the denial of the variance.
On September 11, 2007 the plaintiffs applied for a temporary injunction "commanding the defendant, Dennis Bernardo, to remove and/or modify the existing fence on the property known as 102 Samoset Avenue, North Haven so as to comply with Planning Zoning Regulations of the Town of North Haven, Section 3-21."
A verified complaint was also filed in two counts claiming a violation of the town zoning regulations which was also willful. The prayer for relief asked for a permanent injunction enjoining the defendant from maintaining a fence in violation of the town regulations, removal and/or modification of the existing fence so as to comply with those regulations, a civil penalty of $2,500 payable to the town and such further relief as the plaintiffs may be entitled to.
The action for injunctive relief was brought under Section 8-12 of the General Statutes. Unfortunately counsel for the plaintiffs and the court itself did not consider proceeding to a hearing on a permanent injunctive; rather the hearing proceeded as one for temporary injunctive relief. This creates certain issues that would not perhaps otherwise exist.
(1)
First the court would note that Section 8-12 "provides that a town's zoning enforcement officer may institute an action to prevent the violation of zoning regulations. This section also provides for the issuance of an injunction to remedy a violation of local zoning regulations. Accordingly, as a plaintiff in such an action, the zoning enforcement officer need not show irreparable harm or the lack of a remedy at law to obtain an injunction preventing the violation . . ." North Haven Planning and Zoning Commission v. Upjohn Co., 753 F.Sup. 423, 428 (D.Conn. 1990), citing Johnson v. Murzyn, 1 Conn.App. 176, 179-81 (1984), also see Gelinas v. West Hartford, 225 Conn. 575, 588 (1993).
As Fuller notes in Vol. 9A of the Connecticut Practice Series . . . "one of the reasons for the rule that a municipality does not have to show irreparable harm is that there are many possible zoning violations which do not cause irreparable harm to any particular person but should nonetheless be enjoined, and the municipality acts on behalf of all property owners within it to enforce their right to require conformity with the zoning regulations as a condition for their submission to the restriction imposed upon their property," Land Use Law and Practice, Fuller § 41.4, Temporary Injunction, page 442-43.
But as Gelinas observes proof of a violation of a statute or ordinance "does not, however, deprive the court of discretion and does not obligate the court mechanically to grant the requested injunction for every violation," id., also see Bauer v. Waste Management of Connecticut, 239 Conn. 515, 527 (1996), Johnson v. Murzyn, 1 Conn.App. 176, 183 (1984).
The foregoing represents the general law regarding injunctive relief; the court will now discuss a subcategory of that type of relief — a request for a temporary injunction.
Judge Teller discussed the standards for issuing a temporary injunction in Fleet National Bank v. Burke, 45 Conn.Sup. 566, 569-71 (1998) [ 23 Conn. L. Rptr. 516]. At page 570 he says referring to case law
"A temporary injunction is a preliminary order of the court, granted at the outset or during the pendency of an action, forbidding the performance of the threatened acts described in the original complaint until the rights of the parties respecting them shall have been finally, determined by the court" . . . 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.
Under the case law it is also true that the kind of relief sought is an important consideration in determining whether a temporary injunction should issue.
In Stamford v. Kovac, 29 Conn.App. 105 (1992) the city sought a temporary and permanent injunction requiring the defendants to restore a portion of their property to its approximate condition before certain illegal filing occurred. The court noted that: "Under appropriate circumstances, the parties may agree that proceedings for a temporary injunction may be transformed into an action for a permanent injunction" and in a footnote 3 said that: "In order to transform a temporary injunction hearing into proceedings for a permanent injunction, the pleadings must be closed," id. at page 108. In Stamford v. Kovac, the court noted the trial court's order did not merely order the defendants to "cease and desist from specific activity in order to preserve the status quo . . . they were mandated to perform substantial restorative acts by certain dates under the threat of civil penalty if the acts were not completed," id., pp. 109-10. The court went on to say: "The trial court's order is final in its nature and concept and consequently could be lawfully rendered only after a trial on the merits. 'A trial court may not sua sponte transform applications that request temporary injunctions into proceedings on the merits of issuance or denial of permanent injunctions' . . .," id., page 110. The order of the trial court was vacated and the case was remanded for further proceedings. The court did note in footnote 5 an exception to the general rule it was setting forth; it said that "In so holding, we do not imply that a temporary injunction could not require restorative measures in an emergency situation to protect the public health . . ." id., page 111.
In this case the parties, one of whom is a pro se litigant, did not agree that the hearing on this temporary injunction could be transformed into a hearing on a permanent injunction. The pleadings have not been closed. Also under the guise of a temporary injunction, as filed by original counsel in his case, mandatory relief was sought — a court order was sought requiring the defendant to tear down that portion of the fence that did not comply with the town's three foot high fence regulation for front yard fences. Failure to comply with any such order might very well lead to a request for civil penalties. Furthermore this court was incorrect in telling this defendant that if it ruled against him he could appeal the court's ruling. A ruling on a temporary injunction request such as this is only appealable if one of two exceptions for appeal of an interlocutory order are satisfied. Town of Southington v. Pierce, 29 Conn.App. 716, 720 (1992), neither of which seems satisfied here.
Finally the court cannot grant this temporary injunction based on some notion that failure to grant such relief will result in imminent danger to the public health or safety or permit a continuing danger to the public health or safety. The court has examined the photos of the defendant's property submitted at the hearing; he has an unusual situation with a house and attached porch on a relatively small lot. While the original purpose of this regulation as to fences in corner lot situations may have been prompted by concern over site lines at intersections and the resulting dangers to the traveling public there is nothing to indicate from what has been presented that the site lines would be significantly improved by ordering compliance with the regulation or that they are substantially more impaired than they already are due to the porch's location.
The court is constrained to deny the request for temporary injunction but does so solely on the procedural grounds set forth above.