Opinion
No. 63294
May 5, 2004
MEMORANDUM OF DECISION
In this action, the plaintiff, Town of East Lyme, has moved for payment for the costs incurred the plaintiff in bringing defendant's property into compliance with the terms of a judgment entered November 12, 1981.
The file indicates that on December 29, 1980, the plaintiff Town brought an action against defendants alleging that such defendants owned property on West Main Street within the Town of East Lyme and that they were using such property for the storage of broken, used and discarded parts of windows and doors and other items of trash and debris in violation of the Town's zoning regulations. The complaint further alleged that the zoning enforcement officer had ordered defendants to cease and desist from such violation, but that the defendants had not complied and that an injunction was being sought. Defendants answered the complaint and interposed special defenses, which were denied by the plaintiffs.
On November 12, 1981, the parties entered into a stipulated judgment for a permanent injunction. This judgment was duly entered by Ripley, J. on such date. The judgment provided that within that portion of defendants' property, which was within the R-40 (Resident) zone, "There shall be" no deposit of the offending items and that defendant shall remove such items from such zone by May 1, 1982. Within that portion of the premises which was in the commercial zone, defendants should deposit or store only those items necessary or desirable for the conduct of their business "Niantic Aluminum." The judgment specified that these items in the commercial zone were to be stored behind the building on the premises before May 1, 1982. The judgment further stipulated that, "If the defendants do not comply with this order within the time limited, the plaintiff by its agents and employees, may upon ten days prior written notice to the defendants enter upon said premises and perform such work as may be necessary to bring said premises into compliance with this order, at the expense of the defendants." The defendants were also required to post a bond in the amount of $2,000 conditioned upon their full and timely compliance with the order.
On April 29, 1982, defendants moved for an extension of time to comply with the terms of the judgment. This motion was denied by Noren, J.
Although defendants may have made some attempt to bring the premises into compliance with the judgment, and there may have been fleeting compliance, there was no real compliance with the permanent injunction. By letters dated May 28, 1983, May 11, 1984, June 6, 1995, November 12, 1996 and December 17, 1996, the plaintiff Town notified defendant that they were in violation of the injunction and that, in accordance with the terms of the injunction, the Town would proceed under the self-help provision of the judgment and clean up the premises.
On March 24, 1997, the Town entered into a contract with Paul Spakowski, doing business as Paul Spakowski Lawn Care, to enter defendants' property and clean it up so that it would be in compliance with the injunction.
During the period March 24 to March 30th, 1997, acting under the self-help provision of the injunction and with the continuing supervision of the zoning enforcement officer, Spakowski performed the work necessary to put the premises into compliance with the injunction.
The evidence, including photographs, clearly establishes that on March 24, 1997, defendants were in violation of the injunction. It is noted that eight tons of material were removed from the residential zone in the course of the cleanup.
Alfred Wood, Jr., defendant's son, testified that he believed that the property was in compliance with the injunction on May 1, 1982. The totality of the evidence, however, belies the validity of this testimony and certainly were not in compliance with the permanent injunction.
Defendants urged upon the court a strained interpretation of the judgment which would require the Town to proceed with the self-help provision forthwith if there was no compliance by May 1, 1982. This interpretation, however, ignores the injunction in which the parties agreed and stipulated that a permanent injunction may issue. East Lyme v. Wood, 54 Conn. App. 394, 395 (1999). All of the mandatory provisions of the injunction are expressed in the future tense denoting the clear intent of the judgment that defendants should place the property in compliance with the regulations on a permanent basis.
The cost to the plaintiff to bring the premises in compliance with the injunction is found to be $13,671.00 based upon the following payments:
Spakowski Land Care $6,051.25
Tinnerello Sons Hauling Service 7,619.80
TOTAL: $13,671.05
Plaintiff's motion for payment is a foreseeable extension of the original injunction. Id. 399. Accordingly, the motion for payment is granted and plaintiff should recover the amount of $13,671.05 together with interest and costs. Counsel is directed to pay such amount from funds being held in escrow for such purpose.
Joseph J. Purtill Judge Trial Referee