Opinion
CV186015611S
10-23-2019
TOWN OF BOLTON v. Laura THWEATT
UNPUBLISHED OPINION
OPINION
Sferrazza, J.T.R.
The petitioner, the town of Bolton, seeks injunctive relief, a civil fine, and attorneys fees in this land use regulation enforcement action pursuant to General Statutes § 8-12, to curtail alleged violations by the respondents, Laura Thweatt, Michael Gramegna, and Fresh Start General Remodeling and Contracting, LLC. Michael Gramegna is Ms. Thweatt’s son and the owner of the LLC.
The LLC has been defaulted for nonappearance. The petitioner also requests forfeiture of a $1,000 cash bond posted on behalf of the LLC.
The general rule governing injunctions is that the applicant must demonstrate that the failure to restrain the conduct which is the subject of the application will result in irreparable harm to the applicant and that no adequate remedy exists at law. This general rule is inapplicable, however, where a municipality seeks to enforce its zoning regulations under General Statutes § 8-12, and all that must be proven is a violation of the regulations, Fisette v. DiPietro, 28 Conn.App. 379, 388 (1992); Farmington v. Viacom Broadcasting, Inc., 10 Conn.App. 190, 197 (1987). Once the violation is established, the court must balance the equities and consider, inter alia, the gravity and/or wilfulness of transgressions and the impact on the landowners, Johnson v. Murzyn, 1 Conn.App. 176, 183 (1984).
Zoning regulations "shall be enforced by the [zoning enforcement] officer or official board or authority designated therein," § 8-12. Under General Statutes § 8-6(a)(1), the Bolton Zoning Board of Appeals has the power and duty "[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the [zoning enforcement officer.]" This opportunity to appeal embraces challenges to cease and desist orders, Greenwich v. Kristoff, 180 Conn. 575, 578 (1980); Gelinas v. West Hartford, 225 Conn. 575, 595 (1993).
In the present matter, the Bolton Zoning Enforcement Officer (ZEO), James Rupert, issued a cease and desist order on March 23, 2018, to the respondents by both regular and certified U.S. mail. Notice of the order was mailed to the correct post office box assigned to the LLC. On April 15, 2018, the certified letter was returned to the town as "unclaimed," despite attempted notification of its existence by the postal authorities on March 26, 2018.
The cease and desist order prohibited the respondents from attempting to install an additional driveway at their residence located at 65 Shoddy Mill Road, Bolton, Connecticut, without first obtaining a permit. The order also required cessation of moving earth using heavy equipment without a permit as required by town ordinance. Rupert also ordered the respondents to restore the areas disturbed by such violations, within fourteen days, to "a stable condition by placing a minimum of 4 inches of topsoil and a cover crop approved by [Rupert]."
The respondents contend that the cease and desist order was ineffective because they never actually received it. They are incorrect because § 8-12 only requires that the ZEO issue the order "in writing" to be "effective immediately."
Where a statutory or regulatory provision omits the need for actual receipt, a notice requirement is satisfied through the act of mailing the notice to a legitimate postal address, Elm Buick Company v. Moore, 150 Conn. 631, 633-35 (1963); Stratton v. Abington Mutual Fire Insurance Company, 9 Conn.App. 557, 562-63 (1987); State v. Pueschel, 30 Conn.Supp. 556, 560-61 (Ct.App.Div. 1973).
In the present case, Michael Gramegna conceded that the post office box in Manchester, Connecticut, to which the cease and desist order was sent, belonged to his business. He also testified that he infrequently checked that box for mail. It should be noted that Ms. Thweatt and Mr. Gramegna listed this post office box address on the permit application they submitted to the town.
If actual receipt was necessary to activate a cease and desist order, the prospective recipient "would have it in his power to thwart" such receipt and prevent the cease and desist order from operation, Elm Buick Company v. Moore, supra . The respondents here "had the correlative obligation to call for the certified letter ... upon being notified by the [post office] of its existence," Stratton v. Abington Mutual Fire Insurance Company, supra, 563.
The respondents failed to react to the postal notification process alerting them that a certified letter had been received for delivery. That attempted alert occurred on March 26, 2018, and the post office returned the letter as "unclaimed" on April 15, 2018. Thus, the respondents had more than two weeks to check the post office box and discover that the certified letter awaited their call. No burden rests on the town to ensure that the respondents actually received the cease and desist order under these circumstances.
On June 15, 2018, Rupert sent a notice of violation of zoning regulations to the respondents for keeping "many unregistered motor vehicles and associated parts" at 65 Shoddy Mill Road in contravention of Bolton Zoning Regulations § 3A1.7. which defines such action as comprising a junk yard. The notice requested removal of "all unregistered motor vehicles from the property" or risk further enforcement action by the town.
The respondents ignored this request. Mr. Gramegna has repeatedly expressed his belief that a municipality lacks the power to regulate the storage of unregistered vehicles on private property. His view of the unconstitutionality of such a regulation motivates his deliberate refusal to comply.
Noncompliance prompted issuance of another cease and desist order, dated July 11, 2018, which demanded that the respondents conform to the zoning regulation in question. This order was sent to the post office box described above, with the same result. The postal authorities left notification of the existence of the certified mail on July 13, 2018, and returned the certified letter as "unclaimed" on August 3, 2018.
Section 2.C of the Bolton Zoning Regulations defines "Junk Yard" to include the following activity:
"[A]ny other place of storage or deposit, including any business, which has stored or deposited two or more unregistered motor vehicles or used parts of motor vehicles or other waste or discarded or secondhand material which has been a part, or intended to be a part, of any motor vehicle, the sum of which parts or material shall be equal in bulk to two or more motor vehicles."
Bolton Zoning Regulations § 3A17.a prohibits storage of materials which possesses "the characteristics of a junk yard" as defined above. This provision also forbids storage of more than one unregistered motor vehicle, or equivalent in parts, or "one unregistered camp trailer, boat, or recreational home."
The respondents never appealed from Rupert’s issuance of the cease and desist orders to the zoning board of appeals. That omission greatly constrains this court’s review when adjudicating the parties’ claims. "It is well established that when a party has a statutory right to appeal from the decision of an administrative officer or agency, [the party] may not contest the validity of the order if the administrative officials seek its enforcement in the trial court after the alleged violator has failed to appeal," Sams v. D.E.P., 308 Conn. 359, 397-98 (2013), (emphasis added). That bar applies to cease and desist orders issued by a ZEO that, as noted above, can be appealed to the local zoning board of appeals, Gelinas v. West Hartford, supra, 595; Greenwich v. Kristoff, supra, 578-79.
Consequently, this court must regard Rupert’s cease and desist orders as correct when issued, i.e. that the respondents violated the enumerated zoning regulations and town ordinances as described therein. Specifically, the court must conclude that the respondents have moved earth with heavy equipment and attempted to excavate additional driveways without a permit; and have kept more than one unregistered motor vehicle, or associated parts, on their property in violation of the zoning laws cited above.
Therefore, the court will now focus on evaluating the equities to fashion appropriate remedies under the dictates of § 8-12 and with respect to the cash bond. Additional factual findings are necessary at this juncture.
On June 16, 2017, Ms. Thweatt applied for a permit to install a driveway to service 65 Shoddy Mill Road and indicated her son’s construction company would perform that work. A $1,000 check was conveyed to satisfy the town’s compliance bond requirement. When insufficient funds defeated negotiation of that check, a $1,000 cash bond was posted.
The application form delineates eight construction features which must be incorporated in the applicant’s proposed plan. That plan must be approved by the ZEO before the permit can be issued. Michael Gramegna began clearing and excavating the driveway path, using his heavy earth-moving equipment, before obtaining the permit.
As it turned out, Gramegna inadvertently traversed the boundary with his neighbor’s land. Most of the cleared and excavated path nearest its intersection with Shoddy Mill Road was on land that did not belong to the respondents. Once this mistake was uncovered, further excavation ceased. Since then, the respondents have attempted to negotiate an agreement with that neighbor without success.
More than two years after the application for a permit to install a new driveway was filed, the petitioner asks the court to enjoin the respondents from all earth-moving efforts on the premises; to order restoration of the cleared and excavated areas to a stable condition by removing two curb cuts and depositing at least four inches of topsoil with appropriate cover seeding; to cease keeping more than one unregistered motor vehicle at the property; to assess the $2,500 civil fine, allowable under § 8-12; to award reasonable attorneys fees; and to forfeit the $1,000 cash bond to the town.
First, the neighbor, Mr. Hoops, is not a party to this action. The court cannot order the respondents to perform remedial activity on someone else’s land. Therefore, the court declines to mandate such restoration with respect to the excavated land that was identified as the "second curb cut" path at trial.
Next, the court, after consideration of the town’s need to see that its driveway regulations are adhered to so that the goals of erosion control, environmental preservation, and maintenance of aesthetic and property values are achieved and the respondents’ desire to use their land, enjoins the respondents from using the excavated area, designated as a dirt path leading to "curb cut one" for vehicular travel. The respondents testified that this cleared area, connecting to Shoddy Mill Road, is not really a driveway and is not used to drive from their property onto Shoddy Mill Road. The photographic evidence clearly refutes that testimony.
The pictures, taken over several months time, show that this dirt path has been cleared and edged with boulders along one side. The area lacking vegetation continues right up to the pavement of Shoddy Mill Road. Tire tracks are visible, indicating use of this dirt way to access Shoddy Mill Road. No apron protects the juncture of this dirt driveway and the public road as required by the town ordinances.
The respondents have an existing dirt driveway leading from their house to the street. An additional driveway is a convenience but not a necessity for residential use.
The court orders the respondents to restore the cleared area, denoted as ending at curb cut one, by filling in that area with at least four inches of topsoil and approved ground cover. This work must be completed within sixty days of this judgment becoming final (any appeal/periods excluded).
The photographic evidence also corroborates the testimony of Rupert, state trooper Brian Contenta, and neighbor Elaine Jorgensen that several motor vehicles are kept on the property. Trooper Contenta noted that he has had occasion to serve court documents at the 65 Shoddy Mill Road residence, and between twenty to thirty motor vehicles are usually parked there. He last visited that property on October 16, 2019, and counted twenty-five motor vehicles. Of those, only one bore a license plate.
As mentioned above, Mr. Gramegna contends that the town cannot lawfully restrict the number of unregistered motor vehicles he keeps on his property. The court disagrees that this is a correct statement of our law.
General Statutes § 8-2(a) empowers zoning commissions to "regulate ... the use of land." That statute also authorizes zoning commissions to issue regulations "made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings ..."
Our Appellate Court has observed that, traditionally, undefined aesthetic considerations alone were viewed as insufficient to invoke the police power through zoning regulations, Lawrence v. D.E.E.P., 178 Conn.App. 615, 631 fn9 (2017). In that decision, the Appellate Court remarked that such a restrictive perspective of zoning power has eroded over time. "[H]owever reluctant courts have been in the past ... the courts now recognize aesthetics as a legitimate concept within the general police powers." Id. (emphasis added).
The Court in Lawrence, supra, quoted from the United States Supreme Court case of Berman v. Parker, 348 U.S. 26, 32-33 (1954). "The concept of the public welfare is broad and inclusive." Id. "The values it represents are spiritual as well as physical, aesthetic as well as monetary." Id. "It is within the power of the legislature to determine that the community should be beautiful as well as healthy ..." Id. "If those who govern ... decide that [the community] should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way." Id.
This is not a case where some vague, subjective notion of aesthetics is left up to the ZEO’s sensibilities. The one unregistered motor vehicle rule is precise and not subject to individual tastes and unspecified preferences.
Nor does this regulation impose costs on landowners to do something affirmative to enhance the appearance of their property. It entails prohibiting activity rather than compelling it.
Although not always the situation, often unregistered motor vehicles have that status because the owner cannot afford to keep the vehicle in sufficient working order to allow registration, payment of registration fees, or property taxes. Also, the vehicle may be worth less than the cost of repair and is kept for parts. These circumstances result in the prolonged locus of deteriorating machinery, nesting spots for vermin, and potential leakages of environmentally detrimental substances. The zoning regulations do not prohibit ownership of such vehicles, but only direct that they be kept in more appropriate storage locations rather than residential neighborhoods.
The court enjoins the respondents from keeping more than one unregistered motor vehicles, as defined by General Statutes § 14-1(58), or associated parts at 65 Shoddy Mill road. The respondents must comply with this order and remove all but one unregistered motor vehicle from this property within thirty days from when this order becomes final (excluding any appeal periods).
If the respondents fail to abide by these orders, a fine of one hundred dollars per day of noncompliance will be assessed, jointly and severally.
The court declines to assess any civil fine under § 8-12. It expects that the respondents will better use that money to comply with the court’s orders and because attorneys fees are also awarded.
Regarding the $1,000 cash performance bond. The court orders that bond forfeited to the town treasurer of Bolton. The respondents retain hopes of reaching some accord with their neighbor that will allow the permitting process to proceed. However, it has been more than two years, and the respondent’s hopes seem to be wishful thinking. The town is entitled to utilize the bond for its intended purpose, that is to assist in constructing appropriate aprons and the like to remedy the curb cuts which were made without a permit.
Under § 8-12, if the court finds that the violations were wilful, the court "shall allow the municipality ... reasonable attorneys fees ..." After consideration of all the evidence, the court determines that the refusal to remove the excess unregistered motor vehicles is clearly wilful and in defiance of well defined regulations. Also, the respondents began installation of the additional driveways without waiting for the necessary permits to issue. This included use of heavy equipment to move earth.
Rules of Professional Conduct 1.5 enumerates factors to be considered in determining the reasonableness of attorney fees, to wit:
1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2. The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; 3. The fee customarily charged in the locality for similar legal services; 4. The amount involved and the results obtained; 5. The time limitations imposed by the client or by the circumstances; 6. The nature and length of the professional relationship with the client; 7. The experience, reputation, and ability of the lawyer or lawyers performing the services; and 8. Whether the fee is fixed or contingent.
Under the lodestar approach, the court multiplies the number of hours reasonably expended by a reasonable hourly rate of compensation, Laudano v. New Haven, 58 Conn.App. 819, 822-23 (2000).
In evaluating the reasonableness of the time devoted to tasks and the hourly rate to be applied, the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 P.2d 714, 717-19 (5th Cir. 1974), serve as a guide, Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 37-38 (1995); Francini v. Riggioni, Conn.App. (AC 41528, October 1, 2019).
The Johnson factors are:
1. the time and labor required; 2. the novelty and difficulty of the questions; 3. the skill requisite to perform the legal service properly; 4. the preclusion of other employment by the attorney due to acceptance of the case; 5. the customary fee for similar work in the community; 6. whether the fee is fixed or contingent; 7. the limitations imposed by the client or circumstances; 8. the amount involved and the results obtained; 9. the experience, reputation and ability of the attorneys; 10. the undesirability of the case; 11. the nature and length of the professional relationship with the client; 12. awards in similar cases.
The petitioner requests compensation at an hourly rate of $175. This court finds this rate to be reasonable. Also, the time devoted to tasks reasonably related to the resolution of this case appears appropriate. The final time and effort expended included two days of trial.
The court awards $10,000 as reasonably attorneys fees and costs to be taxed by the clerk.