Opinion
No. CV06-5001848S
September 21, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #135
The plaintiff, by revised complaint dated April 2, 2007, has brought this action against the defendant, Woodbury Cemetery Association (WCA) and the defendant, Judith Lynch, Zoning Enforcement Officer of the Town of Woodbury (ZEO). For the purposes of this motion, only those claims against the WCA, which are counts one and three of the revised complaint are at issue.
Count One alleges that the WCA is violating the Town of Woodbury Zoning Regulations relative to front yard setback requirements. In doing so, the plaintiff alleges the WCA's actions have impaired her views from her property and diminished her property value. As to this count, she seeks an injunction, declaratory judgment and damages. Count Three repeats the allegations of Count One and adds that the WCA's conduct violates General Statutes § 42-110b, et seq., the Connecticut Unfair Trade Practices Act (CUTPA) and the plaintiff seeks damages.
The defendant, WCA, has filed a motion for summary judgment as to Count One and Count Three claiming that there are no genuine issues of material fact on the issue of whether the plaintiff has a legal basis to maintain her claims against the WCA.
In the recent case of Gold v. East Haddam, 103 Conn.App. 369, 372-73 (2007), the court reviews the law governing summary judgment:
Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . .
In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. (Citation omitted; internal quotation marks omitted.) DaGraca v. Kowalsky Bros., Inc., 100 Conn.App. 781, 785 919 A.2d 525, cert. denied, 283 Conn. 904 (2007). "In ruling on a motion for summary judgment, the court is not to decide issues of fact; its function is to determine whether there are genuine issues of material fact." Vaillancourt v. Latifi, 81 Conn.App. 541, 544 n. 4, 840 A.2d 1209 (2004).
In this action, the plaintiff in Count One seeks injunctive relief and special damages as a result of a violation of Woodbury Zoning Regulations regarding roadside setback violations by the WCA. This private enforcement action is permissible and enforceable under Connecticut law. [See: Schomer v. Shilepsky, 169 Conn. 186 (1975); Cummings v. Tripp, 204 Conn. 67 (1987).]
"A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A prayer for injunctive relief is addressed to the sound discretion of the court and the court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of the law or an abuse of discretion." (Citations omitted; internal quotation marks omitted.) Electrical Wholesalers v. M.J.B. Corp., 99 Conn.App. 294, 309 (2007). "If the plaintiffs have suffered special damages as alleged in their complaint, the court has equitable jurisdiction and may grant injunctive relief." (Citations omitted.) Cummings v. Tripp, 204 Conn. 67, 78 (1987).
The court has reviewed the defendant's motion for summary judgment and supporting documentation, as well as the plaintiff's objection and supporting documentation. In view of the equitable nature of the claims in Count One and these same allegations from Count One form the basis of the claims in Count Three, the court concludes that there are genuine issues of fact to be determined by the trier of fact. Therefore, the defendant's motion for summary judgment is denied.