Opinion
No. FST-CV-09 4016119 S
June 26, 2009
MEMORANDUM OF DECISION RE APPLICATION FOR TEMPORARY INJUNCTION
This case came to the court on April 2, 2009 when Judge Adams granted an ex parte temporary injunction. The matter was heard before this court before June 1, 2009. By agreement the order of Judge Adams was continued until further order by this court.
This court grants the temporary injunction application without bond.
At the hearing Philip Boyd Miller testified. There was no direct contrary testimony offered by the defendant concerning the testimony and the contents of the affidavit of Philip Boyd Miller dated March 30, 2009. Although this court is not obligated to find that uncontradicted testimony is proven, the court finds in this case that the substantial issues raised by, and between the parties concerning whether the injunction should be granted, has been proven based on the testimony and the affidavit of the plaintiff Philip Boyd Miller, (hereinafter called the plaintiff).
The court finds that granting the temporary injunction will maintain the status quo without interfering with the rights of the defendants to develop their property. If the defendants ultimately prevail all that they will have lost is their ability to seek a new permit to develop an easement for a few more months. If the Miller's prevail, and no injunction is in place to protect them, their home and property will be irreparably damaged.
The court finds that the defendants sought and obtained approval to develop their property by surrendering the ability to use the easement area in exchange for permission to build a new private access to Zacchueus Mead Road. See Exhibit H. The defendants were granted a permit that required the easement area to be maintained as a non-disturbance area. Any development in that area would be a violation of the permit. See Exhibit H-1. The defendants do not need to use the easement. The approved driveway has been built and is presently being used for access and construction purposes.
The court finds irreparable harm has been established by the unopposed evidence. The court finds that the use of the easement would be a violation of the Town of Greenwich Inland/Wetlands and Watercourses Agency permit, (hereinafter called Greenwich). Also, the testimony and the affidavit establish clear and imminent danger of destruction of the plaintiffs' driveway and part of the stone wall.
The plaintiffs have established a probability of success. The plaintiffs claim that their quiet title action is based on waiver, estoppel, abandonment, and adverse use. To this court, the waiver claim is the strongest. The evidence establishes that the defendants surrendered any ability to use the easement area in exchange for the Town's permission to build a new private access to the nearby road. The record indicates that the defendants were not to seek to develop non-disturbance zones and areas preserved for erosion purposes.
As to the estoppel, the plaintiffs saw the applications filed by the defendants never mentioning the easement, and actually called for the area to be used for screening and fence. In addition, it is clear that the plaintiffs relied on the application and the actions of Greenwich.
Balancing the harm clearly favors the granting of the Miller's application. The plaintiffs would clearly suffer the greater harm by having their driveway, wall and yard interfered with along with the peaceful enjoyment of their home.
Accordingly, based on the plaintiff's verified complaint, the application for temporary injunction, the affidavit of Philip Miller and the evidence presented at the hearing before this court, the court finds that the parties have appeared and have been heard.
The court grants a temporary injunction which shall issue without bond preventing the defendants Robert and Emma Pennington, and any persons or agents acting with, for or through them, are hereby enjoined under penalty of law from entering, traversing, or in any manner accessing plaintiff's property at 15 Zacchueus Mead Road, Greenwich, Connecticut, including any development or use of an alleged easement over the plaintiffs' property reflected in Book 1408 at page 83 of the Greenwich Land Records.
SO ORDERED.