Opinion
No. CV-09-4009786
July 29, 2010
MEMORANDUM OF DECISION
I. Background
This vigorously contested zoning enforcement matter was initiated by a writ, summons and complaint dated July 23, 2009, and amended on September 1, 2009, wherein the plaintiff, Town of Lebanon, Connecticut (hereinafter "Town"), alleges that the defendants, Allan Rychling and Marion Rychling (hereinafter "defendants") maintain a junk yard on their property at 162 Bush Hill Road, Lebanon, Connecticut, (hereinafter "the property") in violation of the zoning regulations of the Town. The Town requested injunctive relief as well as civil damages, attorneys fees and costs. The defendants filed an answer on April 21, 2010, in which they admit only that they own the property but deny they are conducting a junk yard. Both parties are well represented by counsel, appeared at trial to the court and presented evidence in support of their respective positions. A briefing schedule was ordered at the conclusion of the evidence with simultaneous briefs due May 25, 2010. The plaintiff filed a brief on said date. The defendants moved for an extension of time to file which was denied. No brief has been filed by the defendants, rather the defendants appealed the denial of the extension request which appeal was dismissed on July 28, 2010.
II. Finding of Facts
From the evidence produced at trial, and reasonable and logical inferences from the same, and taking into consideration the court's evaluation of the credibility of the witnesses, the following facts are found.
The property, consisting of about 46 acres, is located within the Town. The town has adopted zoning regulations which were applicable to the defendants' property which is in a Rural Agricultural zone. At all times relevant to this decision, junk yards were not a permitted use in any zoning district in the Town. The regulations (Pl. Exh. 1, Def. Exhs. 2 3) provide that any use not specifically permitted is prohibited. In 2008, the zoning regulations were amended to be even more specific by providing that junk yards are specifically prohibited.
Junk yards are defined in the current regulations as follows:
§ 2.2 Junk Yard. The use of any area of any lot, whether inside or outside a building, for the storage, keeping, or abandonment of junk or scrap or discarded materials, or the dismantling, demolition or abandonment of automobiles or other vehicles or machinery or parts thereof.
Junk is defined in the current regulations as follows:
§ 2.2 Junk. Any article or material or collection thereof which is worn out, cast off or discarded and which is ready for destruction or has been collected or stored for salvage or conversion. More than two unregistered, inoperative automobiles stored outdoors for more than six months shall be considered junk.
Where there are two regulations concerning the same material, they should be read together so as to harmonize with each other and not conflict. See Furhman v. Dept. of Transportation, 33 Conn.App. 775 (1994); Tolly v. Dept. of Human Resources, 225 Conn. 13, 28 (1993).
Article IX of the regulations provides for enforcement by the zoning enforcement officer and for certain penalties for violations.
§ 2.1 of the Zoning Regulations, (Pl. Exh. 1), regarding definitions, says in part: a. Except where specifically defined herein, all words used in these regulations shall carry their customary meanings . . .
§ 8-12 of the General Statutes provides procedures when zoning regulations are violated. That section provides for the zoning enforcement officer to initiate an action in court, to inspect property and order remediation. Penalties are provided for violations with increased penalties including possible imprisonment for intentional violations.
Upon the receipt of complaints from neighbors, the zoning enforcement officer inspected the property on several occasions from about 2006 up until the trial of this case. When he first visited the property he discovered that there were more than one hundred unregistered motor vehicles, vehicle parts, tires, seats, hubcaps, fenders, air filters, radiators, cans of fluids, metal and plastic barrels, machinery, scrap metal, unusable lawn mowers and other items of junk, much of which was located on either side of a lane or rough trail running from the highway to the rear of the property. Negotiations were conducted wherein the defendants began to remove some vehicles and other material from the property. However, as the pace of removals slowed and the defendants became less cooperative the town zoning officer issued the final cease and desist order. The order was served upon the defendant, Mr. Rychling, on February 4, 2008. (Pl. Exh. 8.) It required the defendants to remove the vehicles and other items of junk by July 3, 2008, which was five months from the date of the order.
The evidence produced at trial went into minute detail, in some cases item by item, about all of the various components of the material located on the property which was or could have been within the Town's definition of junk. It is neither necessary to this decision or required for an understanding of the circumstances to repeat all of that evidence here.
It is sufficient to say that the defendants have been maintaining a junk yard on the property for many years in violation of the zoning regulations of the town.
This conclusion is based upon the photographs in evidence, the testimony of the several witnesses and even the testimony of the defendant, Mr. Rychling, and his son, Glen. It is found that Mr. Russo, a next-door neighbor, had observed materials stored on the defendants' property including automobiles, trucks, school buses, tractors, parts of vehicles, earthmoving equipment and tires over a period of 22 years. He observed some of that material still on the property on April 10, 2010. Ms. Joyce Okonuk, the first selectwoman of the Town, was called by the defendants. She testified, and it is found, that when she went to the property in April 2007, she was "overwhelmed by it." There was a laneway through the property. As she walked up the path there was more "stuff" around every curve. She saw lots of cars, hoods up, flat tires, heavy duty trucks, broken down vehicles, transmissions, parts of cars, rusted, abandoned and overgrown with vegetation. Mark Maynard, also called by the defendants, testified, and it is found, that when he went on the property with the zoning official in April 2007, there was considerable junk. He estimated about 200 vehicles and tires, car parts, truck bodies located on the property. Christy Kelly, one of the defendants' witnesses, observed the removal of junked cars and other material from the property by the defendants. Glen Rychling, son of the defendants, testified, and it is found, that he and his father conducted mechanical work on the property during which they used parts and pieces from various vehicles stored on the property to construct "doodle bugs," a kind of homemade tractor used to participate in "pulls" at agricultural fairs around the state. They also built or repaired trucks from parts of some of the vehicles on the property.
Glen Rychling went to trade school where he learned auto body repair skills. He was able to use the photographs in evidence to point to piles of metal here and there as the possible sources of material from which he was able to make parts for trucks and doodle bugs. He was also able to point to some of the stored vehicles as "operable" by which he meant that with some work which he could do they might be put back into condition so the engine would run. With this testimony the defendant's son, Glen Rychling, was placing emphasis on that portion of the definition of the word "junk" in the regulations which indicated that more than two "unregistered and inoperative" vehicles could be junk. This was significant in this case particularly since the zoning officer, Mr. Chester, was only concerned with the unregistered aspect of that sentence of the definition. Even if some of the vehicles stored on the property could be put back into running condition, it is found, such vehicles constituted a small portion of the vehicles stored on the property and, in any event, are not necessarily excluded from the other language of the regulation dealing with junk or junk yard. Moreover, the term "inoperative" as used in the regulations must be given its ordinary meaning. It does not mean that the motor will or will not run. It means not functioning. When applied to a motor vehicle it means that all of the systems required by law to be operational are functioning. From the evidence here it is found that the vast majority of the stored vehicles were inoperative as well as being unregistered. Alan Rychling testified about some old garbage trucks he bought and stored on the property. He only wanted one or two but he had to buy the entire five. He said there remained a few good pieces of iron but the rest was junk. There was evidence that some of the material, car and truck parts and steel stored on the property was, from time to time, utilized by the defendants to make or modify other vehicles. They were stored for salvage or conversion. The defendants' activity and that of their son on the property involves the dismantling of vehicles or machinery or parts thereof.
Perhaps the best evidence of the nature of the material on the property comes from the defendants' evidence of their considerable efforts to date to clean up the property. This evidence included testimony and documentation of the removal of many of the cars and parts and other material to junk yards. Defendant's Exhibit 6 is a grouping of receipts from Chet's Wrecking Scrap Metals business showing the weight of the scrap sold by the defendants and the price. Those receipts covered a period from 2006 to 2009. Another such receipt was introduced as evidence that as recently as April 2010, such material was still being removed from the property by the defendants and sold as junk or scrap metal. (Def. Exh. 7.)
Dorothy Gagnon, a witness called by the defendants, compiled a listing of the receipts from salvage yards to which the defendants had sold junk which indicated, and the court finds, that from 2006 to the present over 100 vehicles have been removed from the premises. Ms. Gagnon testified that she saw a large number of vehicles, some missing windows and doors. She saw large dump trucks and school buses. She gave evidence that a large amount of such items have been removed. In 2009, she saw holes in the vegetation where things had been stored before.
The zoning officer visited the area one day before the trial on April 20, 2010, and found that some of the junk remained on the property. The evidence also shows that the defendants have been moving at their pace to remove some items from the property. However, the defendant, Alan Rychling, who has lived in the Town for 51 years, testified that he did not agree with the Town's definition of "junk." But he intended to continue to remove and sell scrap and some vehicles which conformed to his definition of "junk." He testified that he intended to cooperate with the zoning officer, but he denied the officer access to his property to make an inspection in July 2009. There has been unquestionable progress at cleaning up the property since the 2006 inspections, but the evidence shows that a considerable amount remained to be done at the time of trial. Also, while the defendant, Mr. Rychling, pledged to cooperate with zoning officials, his conduct speaks louder than his words Moreover, Mr. Rychling has a much different interpretation of what material needs to be removed than that required by the regulations. The court finds the town's interpretation consistent with the regulations and the law. Mr. Rychling seems to suggest the adoption of the old idiom "one man's trash is another man's treasure." But here, the regulations and the law require a definition established by the community, not that specific to any one individual.
Under the circumstances here, the court finds that the violation of the regulations and the cease and desist order, although not malevolent, was and continues to be willful and intentional.
There was evidence offered by the defendants as to their "forest land" tax status and their desire to cut lumber on the property which the court finds unrelated to the zoning issues in the case.
III. The Law
"Some years ago, our Supreme Court stated that "[t]he primamy object of zoning is to promote the health, safety, welfare and prosperity of the community," and that "[i]ts ultimate purpose is to confine certain classes of buildings and uses to certain localities." Langbein v. Board of Zoning Appeals, 135 Conn. 575, 580, 67 A.2d 5 (1949); Thayer v. Board of Appeals, 114 Conn. 15, 23, 157 A.273 (1931). Section 8-12 advances the object and purposes of zoning in providing for the procedure to be used when zoning regulations are violated. The daily fine provisions serve a legitimate remedial purpose in maintaining the integrity of those regulations. We note that it appears to be implicit in that statute that the offending landowner has the power to bring his property into zoning conformity and shorten, or end, the running of the daily fines. Once the particular violation no longer "continues" or "exists," the daily fines are abated. In a word, he can "remedy" the situation. In addition, we point out that because the legislature in § 8-12 gave the power to sanction to local zoning authorities, the challenged daily fine sanctions were intended to be civil rather than criminal in nature. See State v. Duke, supra, 48 Conn.App. 77. That is in contrast with a criminal penalty, which is the exclusive province of a court of law. Gelinas v. West Hartford, 65 Conn.App. 265, 283 (2001).
"[W]here a statute authorizes a municipality or public entity to seek an injunction in order to enforce compliance with a local zoning ordinance, but says nothing about the injury caused, the municipality is not required to show irreparable harm or unavailability of an adequate remedy at law before obtaining an injunction; rather, all that must be shown is a violation of the ordinance." Johnson v. Murzyn, 1 Conn.App. 176, 180; Crabtree v. Van Hise, 39 Conn.Sup. 334, 337-38, 464 A.2d 865 (1983). The Supreme Court recently cited this rule with approval. Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984).
"Whether a party is entitled to injunctive relief is determined by the situation that has developed at the time of trial, not by the situation that existed when the action was commenced . . . New facts that have occurred since the original trial and that relate to the balance of equities are relevant and material to the determination of injunctive relief . . ." Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 524 (1996).
A decision to grant or deny an injunction must be compatible with the equities in the case, which should take into account the gravity and willfulness of the violation, as well as the potential harm to the defendant. Gelinas v. West Hartford, 225 Conn. 575, 596, 626 A.2d 259 (1993). A wilful act is one done intentionally or with reckless disregard of the consequences of one's conduct. Dubay v. Irish, 207 Conn. 518, 532-33, 542 A.2d 711 (1988); Caraher v. Sears, Roebuck Co., 124 Conn. 409, 415, 200 A. 324 (1938). Willfulness in violating a regulatory statute implies not so much malevolent design as action with knowledge that one's acts are proscribed or with careless disregard for their lawfulness or unlawfulness. Mercado v. Brannan, 173 F.2d 554, 555 (1st Cir.), cert. denied, 338 U.S. 820, 70 S.Ct. 65, 94 L.Ed 497 (1949). What constitutes willfulness is a question of fact. Gonier v. Chase Cos., 97 Conn. 46, 57, 115 A. 677 (1921); see Planning Zoning Commission v. Desrosier, 15 Conn.App. 550, 560, 545 A.2d 597 (1988).
In an action brought pursuant to Conn. Gen. Stat. § 8-12, "the case law allows the court to use its discretion to impose fines and to award attorneys fees." Stamford v. Stephenson, 78 Conn.App. 818, 826 (2003).
IV. Conclusion and Judgment
Applying the law to the facts found as of the time of trial the court finds the issues on the complaint in favor of the plaintiff.
In its brief the Town indicated that it realized that the defendants and their son use the property for activities, hobbies and home occupations such as the construction and assembly of "doodlebugs" and the restoration of old vehicles. The plaintiffs indicated that they are not asking the court to curtail those activities so long as they are conducted in compliance with the law, including the zoning regulations.
The plaintiff's previous request for civil penalty has been abandoned. But attorneys fees are being requested. The court will award attorneys fees to the plaintiff in an amount to be determined in a separate hearing to be conducted hereafter upon motion of the plaintiff at which all parties may be heard.
Balancing the equities of the parties, including the efforts of the defendants at the beginning of the dispute to clean up their property and cooperate with the zoning officer, and the purposes to be served by the statutes authorizing zoning regulations, the following order is considered appropriate.
ORDERED
A permanent injunction shall and hereby does enter against the defendants Allan Rychling a/k/a Victor Allan Rychling and Marion Rychling and their agents, servants and employees, restraining them and each of them from depositing, placing or storing any motor vehicle parts (including but not limited to wheels, tires, fenders, seats, radiators and body parts), metal or plastic barrels, machinery, scrap metal or scrap wood, broken-down machinery, demolition materials or other items of junk as defined in the Lebanon Zoning Regulations, or more than two unregistered, inoperative motor vehicles, or causing or allowing others to deposit, place or store any such items, on the premises known as 162 Bush Hill Road, Lebanon, Connecticut, and to remove any such items presently on the premises, except as hereafter provided:
1. Within 30 days from the date of this judgment the defendants shall designate in writing a portion of their property located at 162 Bush Hill Road, Lebanon which may be used for the purpose of assembling, disassembling, welding, constructing, and maintaining equipment and vehicles or parts thereof in connection with hobbies, home occupations, household and property maintenance and upkeep activities or any other activities legally permitted on said premises. Said designation shall be filed with the clerk of the court and served upon the plaintiff.
2. The portion of the 162 Bush Hill Road premises described in paragraph 1 hereof shall be located at least 300 feet from the easterly side of Bush Hill Road and at least 100 feet from the neighboring property lines of 162 Bush Hill Road premises, and shall be no larger than 3,000 sq. feet in area.
3. A building with four walls and a roof shall be erected on the portion of the 162 Bush Hill Road premises described in paragraph 2 hereof in such a manner and of sufficient size so that the activities conducted within the building and all the materials kept or stored therein would not be visible from the highway or the neighboring properties. Said building shall be constructed or erected in accordance with applicable codes and after obtaining necessary permits on or before December 1, 2010.
4. All materials and equipment used by the defendants for the activities described in paragraph 1 hereof shall be kept, stored and maintained in the building described in paragraph 3 hereof. All such materials shall be moved to and placed within said building on or before December 1, 2010.
5. With the exception of registered vehicles and usual and customary outdoor furniture, all other materials, equipment, articles and objects, including but not limited to unregistered, inoperative vehicles and scrap, discarded or abandoned materials and other items of junk as defined in the Lebanon Zoning Regulations shall be removed from the 162 Bush Hill Road premises in accordance with the following schedule:
A. On or before December 1, 2010, all but two unregistered, inoperative vehicles, such as garbage trucks, school buses, doodlebugs or parts thereof which are not located in the building described in paragraph 3 hereof shall be removed from the 162 Bush Hill Road premises.
B. On or before February 28, 2011 all other materials, equipment and items of junk as defined in the Lebanon Zoning Regulations which are not located in the designated area described in paragraph 2 hereof shall be removed from the premises.
6. Upon at least 3 days prior written notice sent to the defendants by United States mail, the Lebanon Zoning Enforcement Officer, accompanied by no more than one other officer or official of the town, may have access to the property from time to time for the purpose of inspecting and determining compliance with this Order.
7. This court shall retain jurisdiction to assure compliance with this Order. If the plaintiff considers that the defendants are not in compliance with this order, he may, by motion, request the Court to hold a hearing to make a determination as to compliance and issue such further orders as may be necessary including one or more of the following:
A. A civil penalty to be assessed in accordance with Connecticut General Statutes § 8-12;
B. Attorneys fees of the Town as authorized by Connecticut General Statutes § 8-12;
C. A cash bond to assure compliance with the Order of this court;
D. Costs; and
E. Such other and further relief as the court may deem appropriate.
Judgment may enter for the plaintiff accordingly, together with costs, and attorneys fees to be determined.