Opinion
No. WWM-CV-09-5005282-S
January 20, 2010
MEMORANDUM OF DECISION PLAINTIFF'S MOTION FOR A TEMPORARY INJUNCTION
The plaintiff, Planning and Zoning Commission (the "Commission") of the Town of Chaplin, acting through Demain Sorrentino, its agent, seeks a temporary injunction against the defendants, Kenneth L. Ives and Jessica L. Ives, alleging that the defendants are clearly and knowingly violating the provisions of the Town of Chaplin Zoning Regulations.
The plaintiff's motion for a temporary injunction was heard by the court on Friday, September 11, 2009. The plaintiff, through Sorrentino, testified at length, and submitted 27 exhibits in support of the claims alleged in its verified complaint, along with three witnesses who testified about the disturbance of the peace suffered by the defendants' neighbors and caused by the defendants' violations of the plaintiff's regulations. The defendant, Kenneth Ives, testified about his business and two witnesses testified about the noise levels produced by the defendants' business activities of remote control car racing. Simultaneous briefs were due from both parties on September 25, 2009, but that due date was postponed to September 28, 2009 when the record closed.
FINDINGS OF FACTS
The defendants own real property in the Town of Chaplin comprised of two (2) separate contiguous tracts of land shown as Lot 5 on Chaplin Assessor's Map 85 and as Lot 6 on Chaplin Assessor's Map 89, commonly referred to as 238 Willimantic Road (U.S. Route 6) and 0 Mansure Road.
The two lots contain 5.73 acres of land (the "Property") and are located on the westerly side of Willimantic Road (U.S. Route 6) in the Town of Chaplin (Ex. 27). A majority of the Property is located in Chaplin's Business District which abuts easterly and westerly on portions of U.S. Route 6 (Ex. 3). Presently, the lots contain a 14,000 square foot building that was approved by the Commission on October 9, 1997 for an 11,500 square feet grocery store and an eighty (80) seat restaurant. (Ex. 8 and Ex. 9.)
The approved site plan for the use of the Property as a grocery store and restaurant shows the placement of the septic system to accommodate the commercial use of the Property on the real property known as 0 Mansure Road. Further, the approved site plan allowed the owners of the Property to construct commercial parking spaces and appurtenant improvements extending more than five hundred seventy (570') feet westerly from the centerline of U.S. Route 6; with storm water detention and/or water quality structures accommodating and constituting an integral component of the commercial development of the Property, being located further westerly than the parking lot (Ex. 26). The site plan for the former store had been approved in 1997 as "Chaplin Plaza," Ex. 8 and Ex. 9.
The September 8, 2005, site plan submission by the defendants to allow the current use of the Property as a recreational vehicle sales business largely resembled the 1997 plan for the store. The minutes, Ex. 10, note that "The property will remain the same regarding septic, well, water runoff, parking, etc. The only change will be the sign out front." The minutes indicate that one commission member, John Meyer commented, "Meyer [prophetically, as it has turned out] noted that there might be an issue at a later date regarding the use of the parking lot due to the fact that the lot is in both the residential and business zone." The September 8, 2005 approval motion carried by the Commission states that "Furthermore, the commission gives approval with the condition that the back paved area beyond the business zone is to be used for parking only."
The plaintiff introduced into evidence a series of exhibits (Exs. 3 through 6) representing the historical evolution of the zoning map of the Town of Chaplin. Sorrentino, the zoning enforcement officer, testified that the Property is located in a split zone with the front four hundred (400') feet of the Property is located in the Business District and the rear portion of the Property, including the entire lot at 0 Mansure Road, is located in the Rural Agricultural Residence District. On cross examination, he indicated that there had been no legislative changes in the boundaries of the Business District of the Town of Chaplin as it applies to the defendants' Property since the date of approval of the Chaplin Plaza plan for the development of the Property for a grocery store and restaurant facility. Further, he testified that his determination as to the depth of the Business Zone was based on scaling from the zoning map. The court finds that some of the approved commercial improvements are located in the portion of the Property designated as Rural Agricultural Residence District.
The defendant, Kenneth L. Ives, testified that since his business moved to its present location in 2005 in the approved (Ex. 10) recreational vehicle building located on the Property, he has sold recreational vehicles; including, motorcycles, dirt bikes, all-terrain vehicles, remote control cars and accessories. A portion of the parking area located to the west (or rear) of the building accommodates remote control car racing which the defendants allowed during the summer-fall of 2008. In the spring of 2009, a portion of the Property located to the west of the paved parking area was re-graded to accommodate "off road" remote control car racing. In effect, the evidence establishes that the defendants, without seeking or securing legally required building or zoning permits and approvals, constructed two remote control car racing tracks and a two-story grandstand-like building on the residentially zoned portion of the subject properties.
The "on pavement" remote control racing facility was in existence and used for nearly nine (9) months before any notice of potential violation was issued to the defendants. Sorrentino visited the Property in the fall of 2008 to inspect the modifications made by the defendants to the parking area located to the rear of the building. The first notice forwarded by Sorrentino to the defendants of a potential violation of the zoning regulations of the Town of Chaplin was on April 9, 2009 (Ex. 12). Sorrentino wrote to the defendants as follows:
As discussed with you during my site visit several months back, you have illegally erected a structure and reconfigured the customer parking area to the rear of your building to accommodate an outdoor remote control car race track. As a commercial property requiring site plan approval in accordance with the Chaplin Zoning Regulations, any modification to the approved site plan requires review and approval by the Chaplin Planning and Zoning Commission. Additionally, the Commission must consider whether the act of remote control car racing is permitted as a use upon your property, or not.
You are hereby ordered to make application for site plan modification to the Chaplin Planning Zoning Commission within thirty (30) days.
Sorrentino returned to the Property and took several color photographs. (Exs. 13 to 20.) The photographs show the extensive construction that was made to the rear portion of the Property, without a site plan change approval or permits.
The defendants made and submitted the application, as directed by Sorrentino, to the Commission for a site plan modification to take into consideration the existing outdoor remote control race track (Ex. 12). At a meeting of the commission held on May 14, 2009, discussion was held concerning the pending application. At the same meeting, the Commission determined "if it (the remote control race track) is an accessory use, the Commission can approve the application." (Ex. 21, page 2, item B.) At that hearing the defendant, Jessica L. Ives, testified that no building permit was sought for the small building which was constructed on the Property to accommodate the remote control car racing facility because the building did not have a foundation and it was her belief that the small size of the building did not require permits.
The Commission, at the May 14, 2009 meeting, considered the request of the defendants for zoning permit/modification for construction and use of 2 remote control car racing tracks. It is noted in the minutes of that meeting, that "Applicant began construction in the fall." Also, "[Commissioner] Howard asked why the applicant did not apply for a permit before constructing the building. The applicant stated they were not aware that they needed one for such a small building that did not have a foundation." (Ex. 21.) The minutes also correctly note, as confirmed in great detail by Exs. 3 to 7, and as explained in the testimony of Sorrentino that: "The back of the property is zoned as RAR inclusive of where the improvements for the racing tracks were made." Sorrentino testified that the Commission, thereafter, reconsidered the motions made at the May 14, 2009 meeting and decided that the accessory use of the Property should be approved by special permit rather than by site plan modification.
The defendants, at the instruction and request of Sorrentino, withdrew from consideration their site plan modification application; and, were prepared to submit an application for special permit approval of the use that the Commission had determined to be a permissible accessory use. Before the special permit application could be prepared and submitted, the Commission made a determination that the purported accessory use was being conducted in a Rural Agricultural Residence District rather than a Business District. Therefore, a change in zoning district classification would be required before the Commission could proceed further with the defendants' application. The Commission required the application despite the earlier determination by vote of the Commission that the activities of the defendants were permitted uses of the Property.
The defendants, on the recommendation of Sorrentino and without the advice of counsel, submitted an application to the Planning and Zoning Commission of the Town of Chaplin for a change of zoning district classification of a portion of the Property from Rural Agricultural Residence District to Business District. The application was submitted without resolution of the conflict in the interpretation of the Zoning Map of the Town of Chaplin, under which the Commission had previously approved, on May 14, 2009, the construction remote control car racing as a permissible accessory use.
The Commission held a public hearing on the defendants' zone change application on July 9, 2009. At that public hearing, Sorrentino introduced testimony and excerpts from the Plan of Development of the Town of Chaplin which had also been adopted by the Commission. Sorrentino informed the Commission that the Plan of Development directs that significant non-residential development should occur in the Route 6 corridor which has unique characteristics and is the only area in Chaplin which can accept more intensive development than the prevailing low density residential pattern. Sorrentino also informed the Commission that the Route 6 corridor study recommended that the Commission should focus intensive development in the western part of the Route 6 corridor. Finally, Sorrentino recommended to the Commission that the zone change could be approved as being consistent with the Plan of Development (Ex. 24).
The Commission, despite Sorrentino's recommendation, denied the defendants' zone change application by a vote of two (2) in favor and three (3) opposed. The Commission's denial was appealed by the defendants to the Superior Court, Judicial District of Windham, where the case is currently pending.
The defendant, Kenneth L. Ives, testified that it was always his intent to obtain the proper licenses and permits, if any, required for the continued use of the remote control racing facility on the Property. He testified and the court finds that he explicitly followed the directives of Sorrentino.
On July 24, 2009, after the denial of the defendants' zone change application, Sorrentino issued a notice of zoning violation and order to the defendants to cease the use of the portion of the Property for remote control car racing and to remove the two (2) remote control car tracks (Ex. 25). On August 19, 2009, the defendants appealed the notice of zoning violation and order to the Zoning Board of Appeals of the Town of Chaplin.
That appeal was denied by the Chaplin Zoning Board of Appeals at a hearing held on September 23, 2009. The defendants assert that its decision will be appealed to the Superior Court, Windham Judicial District, upon publication of notice of the Board's decision.
At the close of the September 23, 2009 proceeding, one of the four ZBA members who declined to support the defendants' effort to overturn the order issued by Sorrentino noted that it was at very least clear and obvious to her that the construction by the defendants with no application to any town agency for approval of the race track facility and their use of the tracks are at very least clearly violative of section 8.7B of the Zoning Regulations. Section 8.7B provides in pertinent part that:
"No permit for the construction, exterior alteration, relocation, or change in use of any building shall be given, and no exiting use shall be expanded in floor area except in conformity with a Site Plan approved by the Commission."
The plaintiff asserts that besides the defendants' violation of the town of Chaplin zoning regulations, the activities of the defendants seriously disturb the neighbors living in the area of the defendants' business. The plaintiff called Julius R. Giaccone and Donna Barone who testified that noise levels resulting from the activities of the defendants affects their enjoyment of their property at 13 Mansure Road, Chaplin. The defendants presented two witnesses, Alan Danclosse and Tonia Harvey. They testified that Route 6, where the defendants' business is located, is a very noisy highway and that the activities of the defendants do not increase the level of noise coming from the traffic on Route 6.
The plaintiff instituted the instant action pursuant General Statutes § 8-12 and applied for this temporary injunction restraining the defendants from the continued commercial use of their Property for a remote control racing car facility as an integral component of their recreational vehicle use of the Property. The defendants continue to regularly operate the remote control car and/or truck racing business known as "ControlFreakz," despite being ordered by the plaintiff to cease and desist the activities.
The plaintiff requests via his motion for a temporary injunction pursuant to General Statutes § 8-12 an abatement of the violations: specifically, to stop the defendants from using the Property to operate the remote control car racing business.
Additional facts will be discussed, as necessary.
DISCUSSION
The plaintiff, as the applicant for the temporary injunction, bears the burden of proof. Generally, the requirements for the issuance of a temporary injunction are (i) the establishment of a legal right, which involves a likelihood of success on the merits and the lack of an adequate remedy at law and (ii) the imminence of substantial and irreparable injury to the plaintiff considered with the weighing of the results on both parties. Connecticut Association of Clinical Laboratories v. Connecticut Blue Cross, Inc., 31 Conn.Sup. 110, 113 (1973). The principal purpose of temporary injunctions is to preserve the status quo until the rights of the parties can be determined after a full hearing on the merits. Olcott v Pendleton, 128 Conn. 292, 295 (1941). The issuance of an injunction is the exercise of an extraordinary power which rests within the sound discretion of the court, and the justifiable interest which entitles one to seek redress in an action for injunctive relief is at least one founded on the imminence of substantial and irreparable injury. Scoville v Rinalter, 162 Conn 67, 74 (1971).
It is well settled Connecticut law that a zoning enforcement officer need not allege nor prove irreparable harm in order to obtain a permanent injunction enforcing applicable zoning regulations. Farmington v. Viacom Broadcasting, Inc., 10 Conn.App. 190, 197 (1987). However there is a split of authority in Superior Court decisions as to whether or not a showing of irreparable harm by a zoning enforcement officer is a condition precedent to the issuance of a temporary injunction in a § 8-12 enforcement proceeding.
In Kosilla, Zoning Enforcement Officer of the Town of Bloomfield v. Collins Group, Inc. ( 2000 CT.Sup. 14750, 29 Conn. L. Rptr. 11, Docket No. CV 00-0801571-S), the Superior Court for the Judicial District of Hartford (Berger, J.), acting on a motion to strike, held that the enactment of the statute by implication assumed that no adequate remedy exists and that the injury resulting from the violation is irreparable. Judge Berger, therefore, concluded that there is no distinction between the standard of proof required for a temporary injunction and the standard required for a permanent injunction seeking enforcement of a zoning regulation pursuant to the provisions of General Statutes § 8-12.
The defendants have been unable to find any appellate level law in the state of Connecticut delineating the standard which must be followed for the issuance of a temporary injunction for an alleged violation of zoning regulations in a § 8-12 proceeding. This is likely due to the fact that, although a temporary injunction is an interlocutory ruling, it does, for all practical purposes, resolve the matter without allowing the defendants the opportunity for a full trial on the merits. There are several Superior Court decisions on this very issue which are at odds with the decision of in Kosilla ( supra). In Kwiatkoski v. Johnson (Superior Court at Bridgeport Docket No. CV-93-0307032-S, October 27, 1993) [ 10 Conn. L. Rptr. 311], Judge (now Justice) Vertefeuille held that a demonstration of irreparable harm and no adequate remedy at law was an integral component of the standard of proof required for the issuance of a temporary injunction in a § 8-12 proceeding. In issuing her ruling, Judge Vertefeuille wrote:
There are several sound reasons why the Court should not generally issue temporary injunctions in zoning enforcement actions where there is no showing of any particular harm. First, because a temporary injunction is not a final judgment, there is no immediate right of appeal. The lack of a right of appeal makes the court wary of issuing a temporary injunction because the Defendant cannot challenge the ruling or obtain relief from it despite the fact that the injunction may severely harm the Defendant. A second, related reason mitigating against the issuance of temporary injunctions in zoning enforcement cases without any showing of harm is the fact that issuance of temporary relief may moot the need for permanent relief. In this case, as in many others brought pursuant to Conn. Gen. Stat. § 8-12, the relief sought by way of temporary injunction is identical to the permanent injunction sought. Issuance of the temporary injunction therefore may very well make moot the permanent relief sought. If the zoning enforcement official obtains all the relief sought in a temporary order which is not appealable, he or she has no need for the permanent relief and no incentive to bring the case to conclusion. Under these circumstances, there is a clear opportunity for abuse of the Defendant's rights.
In Zoning Commission v. Leninski, 34 Conn.Sup. 66, 69-70 (1976), the plaintiff zoning commission argued that since a zoning violation is asserted, it did not have the burden of establishing irreparable injuries or lack of other legal remedies as a condition to obtaining a temporary injunction, relying on § 8-12, Guilford v. Landon, 146 Conn. 178 (1959). "In responding to that allegation, the court, in dicta, stated, no Connecticut case examined by the court specifically supports that argument."
In Town of Westport v. 157 Easton Road ( 1994 Ct.Sup. 2655 Docket No. CV 93-0308031, 1994) Judge Vertefeuille stated that the principal purpose of temporary injunctions generally is to preserve the status quo until the rights of the parties can be determined after a full hearing on the merits. In that decision, Judge Vertefeuille reiterated the two-pronged test for issuing a temporary injunction citing Kwiatkoski ( supra), and thereafter stated:
The court refrains from entering a temporary injunction not because of any lack of desire to enforce the zoning laws, but rather because of the very fundamental difference under the law between a temporary injunction and a permanent injunction. In the zoning context, the court can order a permanent injunction without any evidence whatsoever of any irreparable harm. However, a temporary injunction — a non-appealable order granted based on a hearing rather than a full trial on the merits — must be based on a finding of irreparable harm.
In Town of Granby v. Schlicht ( 2002 CT.Sup. 786, 31 Conn. L. Rptr. 275 Docket No. CV 01-0811944-S, January 14, 2002), Judge Beach concluded that the plaintiff had the burden of proving irreparable harm as a condition precedent to the issuance of a temporary injunction. In so ruling, the court stated:
The possibility of doing irreparable harm to the defendant is very real, and, in light of the ability of the town to obtain temporary relief if the hazard to the public is great and clear under traditional standards regarding temporary injunctions, there is no reason to depart from those standards. I fully agree with Judge Vertefeuille's analysis.
In that proceeding, Judge Beach defined the irreparable harm standard as a showing of a substantial and reasonably imminent danger to the public.
In Town of Canterbury et al. v Kukevitch et al. ( 2003 CT.Sup. 8075, 35 Conn. L. Rptr. 14 Docket No. CV-03-0070337, June 17, 2003), Judge Foley, in the Windham Judicial District, analyzed the split of authority between CT Page 3259 Kosilla ( supra) and the other cases cited herein for the proposition that a temporary injunction required both pleading and proof of irreparable harm. Judge Foley concurred with the line of cases that require a municipality to maintain the burden of proving irreparable harm and lack of an adequate remedy at law in an application for a temporary injunction.
Finally, in City of Meriden v Woodbury ( 2004 CT.Sup. 5671, 36 Conn. L. Rptr. 767, Docket No. CV 03-0286120-S, April 15, 2004), the Superior Court for the Judicial District of New Haven at Meriden (Tanzer, J.) acknowledged the split of authority on the issue. Like Judge Foley, Judge Tanzer, after analyzing the arguments both for and against a requirement of a showing of irreparable harm and a lack of an adequate remedy at law as a condition precedent to the issuance of a temporary injunction, concurred with the line of cases requiring a municipality to allege and prove all elements of the traditional test for the issuance of a temporary injunction. In so holding, Judge Tanzer stated:
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. The issuance of an injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances.
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. Citing Keeney v. Old Saybrook, 237 Conn. 135 (1996), the court stated the following standards to find a public nuisance: (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.
The court notes that Sorrentino did not issue a cease and desist order when he first discovered the defendant's operation of the remote control track. Instead, he directed the defendants to apply for a site plan modification. Moreover, Sorrentino supported the efforts of the defendants to "legalize" the use of their property. Finally, he guided the defendants in their quest to validate the remote control car tract.
The plaintiff concedes that there exist a majority of trial court cases that hold that a sufficient showing of irreparable harm may be necessary when seeking a temporary injunction in a case such as this. The court is swayed by these decisions. Considering the evidence, the plaintiff has failed to show irreparable harm. The inconvenience to some of the neighbors who are affected by the noise emanating from the remote control car track does not constitute irreparable harm to the plaintiff.
The defendants have appealed the denial of their application for a zone change to the Superior Court. They have also appealed the plaintiff's cease and desist order to the Chaplin zoning board of appeals.
The court relied upon the briefs of the parties. The cases cited, and the discussion of those cases, are taken from the briefs.
CONCLUSION
The order sought by the plaintiff is interlocutory in nature. As such, any temporary injunction issued by this court in response to the plaintiff's application dated August 26, 2009 is not subject to appeal. Planning and Zoning Commission of the Town of Middlefield v. Zemel Brothers, Inc. et al., 159 Conn. 638 (1970). The plaintiff has not sustained his burden of proof in showing that the plaintiff is irreparably harmed by the actions of the defendants.
The evidence tends to demonstrate confusion by Sorrentino and the planning and zoning commission in the understanding and interpretation of its own regulations and the zoning map of the Town of Chaplin. The planning and zoning commission of the Town of Chaplin, in its 1997 approval of the Chaplin Plaza site plan, allowed commercial improvements on portions of the Property which is appear to be located in the Rural Agricultural Residence District.
The plaintiff raised the issue regarding that there has been no legislative action by the planning and zoning commission of the Town of Chaplin establishing the depth of that portion of the commercial zone which encompasses all or a portion of the defendants' Property. Sorrentino testified that he determined the depth of the Business District by scaling from the approved Zoning Map. The Zoning Maps submitted into evidence, Exhibits 3, 4 and 5 are drawn at a scale of either 1" = 1,000' or 1" = 4,000.' The Zoning Maps themselves, on their very face, bear the notation "For general planning purposes only. Line work derived from the Town of Chaplin tax assessment mapping." Without a definitive establishment of the depth of the Business District from U.S. Route 6, it is impossible to make a determination as to the depth of the Business District.
The plaintiff is likely to success on the merits of his § 8-12 action, but the plaintiff has failed to prove irreparable harm. The defendants have raised a material issue of fact regarding the demarcation on the zoning map between the business zone and the rural zone. For the reasons stated, and to preserve the status quo until such time as a full trial can be conducted on this matter, the plaintiff's application for a temporary injunction is denied.