Opinion
No. TTD CV 07-4008137-S
March 18, 2008
MEMORANDUM OF DECISION
This case is an action by Robert and Alberta Wambolt against their neighbors on Webster Road in Ellington, Robert and Lee Ann Sanville; and also against the Town of Ellington; the Ellington Zoning Board of Appeals; the Ellington Zoning Enforcement Officer Lisa Houlihan; and the Ellington Planning and Zoning Commission over an alleged failure to comply with a settlement in an earlier zoning appeal, memorialized in a stipulated judgment in the case of Wambolt v. Town of Ellington et al., No. TTD CV 07-4006396 S. The Wambolts seek an order of mandamus and injunctive relief to compel the Ellington defendants to enforce that stipulated judgment in the Wambolts' earlier zoning appeal, and to enforce the zoning regulations against the Sanvilles. They also seek an injunction to restrain the Sanvilles from conducting a commercial business from their properties at either 97 or 104 Webster Road in Ellington — the crux of the dispute. They further seek a order holding the Sanvilles and the Zoning Enforcement Officer in contempt for disobeying the stipulated judgment. For the following reasons, the court renders judgment for the defendants on all counts.
I
The standards applicable to the relief sought by the plaintiffs are well settled. "Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) CT Page 4440 Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000); Cammarota v. Planning and Zoning Commission, 97 Conn.App. 783, 789, 906 A.2d 741, cert. denied 280 Conn. 941, 912 A.2d 475 (2006). The purpose of mandamus is to compel the performance of a ministerial act by a public officer when the petitioner has a clear legal right to the performance of the act. R. Bollier and S. Busby, 2 Stephenson's Connecticut Civil Procedure (Third Ed., 2002) § 224(a) citing Ballas v. Woodin, 155 Conn. 283, 284, 231 A.2d 273 (1967).
"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." (Citations omitted; internal quotation marks omitted.) Lydall v. Ruschmever, 282 Conn. 209, 236, 919 A.2d 421 (2007). "A mandatory injunction is a court order commanding a party to perform an act . . . Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances . . . Ordinarily, an injunction will not lie where there is an adequate remedy at law . . . In sum, [m]andatory injunctions are disfavored as a harsh remedy and are used only with caution and in compelling circumstances." (Citations omitted; internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650, 854 A.2d 1066 (2004).
"The court's authority to impose civil contempt penalties arises not from statutory provisions but from the common law . . . The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both." (Citations omitted.) Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737-38, 444 A.2d 196 (1982). An appeal from a judgment of civil contempt is technically limited to "questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt." (Internal quotation marks omitted.) Id., at 731. Civil contempt may be improper if, among other things, "the findings on which it was based were ambiguous and irreconcilable . . ." (Citations omitted.) Id., at 732.
"A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [party] were in contempt of a court order . . . To constitute contempt, a party's conduct must be wilful . . . Non compliance alone will not support a judgment of contempt . . . [T]he credibility of witnesses, the finding of fact and the drawing of inferences are all within the province of the trier of fact . . . We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did." (Citation omitted; internal quotation marks omitted.) Rocque v. Design Land Developers of Milford, Inc., 82 Conn.App. 361, 370, 844 A.2d 882 (2004). "The inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt . . . The contemnor must establish that he cannot comply, or was unable to do so." (Internal quotation marks omitted.) Id., at 371; Keeney v. Buccino, 92 Conn.App. 496, 513, 885 A.2d 1239 (2005).
II
The court heard evidence in this case at a bench trial conducted on January 3, 4 and 14, 2008. Testifying were plaintiffs Robert and Alberta Wambolt; Robert Morra, a real estate appraiser; Ellington Building Official Peter Williams; the defendant Lisa Houlihan; Ellington Town Planner Robert Philips; the defendant Robert Sanville, and the witnesses Paul Hunchak, Gregg Tautkus and Joseph Twelves. The court also accepted into evidence numerous town records, photographs, the Wambolts' log of alleged business activities at the Sanvilles' property, appraisal reports, invoices and letters. The court also took judicial notice of the court file and administrative record in the earlier zoning appeal, the case of Wambolt v. Town of Ellington et al., No TTD CV 07-4006396 S; and accepted certain stipulations as to the facts. After trial, the parties submitted briefs arguing their respective positions on the issues.
The court finds as follows: The Wambolts and the Sanvilles are neighbors on Webster Road in Ellington. The Wambolts live at 106 Webster Road. They have a large, horseshoe shaped lot with frontage on Webster Road that surrounds a smaller lot, also with frontage on Webster Road, known as 104 Webster Road. The Sanvilles live across the street from Wambolts at 97 Webster Road. In January 2006, the Sanvilles bought 104 Webster Road. Lot 104 contained a small house that they fixed up for a guest house, and they erected a large, hooped tent, about the size of a two-car garage, for storage.
The Sanvilles are roofing contractors. They run the business out of their home. They have lived at 97 Webster Road since 1999 and, in the beginning at least, enjoyed a cordial relationship with their neighbors. Indeed, the Wambolts hired the Sanvilles to repair the roof on the Wombolts' home; and the Wombolts spoke in favor of the Sanvilles when the Sanvilles sought permits to improve the Sanvilles' home. After the Sanvilles purchased lot 104, the friendship deteriorated. The Sanvilles used lot 104 for their many vehicles, trailers, campers, equipment and materials for their business, and for recreation for their children and friends, using all-terrain vehicles and enjoying shooting with paint ball guns on the property, but distressing the tranquility of their immediate neighbors.
The Wambolts are retired and active in local civic life. Robert Wambolt is an alternate on the Zoning Board of Appeals. Armed with a knowledge of the local zoning regulations, the Wambolts pursued complaints against the Sanvilles with the local zoning authorities, complaining, inter alia, about business and commercial activity on the Sanvilles' properties allegedly not permitted in the zone. All the lots in question are in a Rural Agriculture Residence Zone.
After complaining to the Zoning Enforcement Officer — the defendant Houlihan — apparently without immediate satisfaction, the Wambolts appealed the matter to the Zoning Board of Appeals. After hearings held on September 11, October 4 and December 4, 2006, and by decision dated December 7, 2006, the Board, inter alia, affirmed the decision of the Ellington Zoning Enforcement Officer approving a home occupation permit for the Sanvilles at 97 Webster Road, and allowing application for the storage tent at 104 Webster Road. The Wambolts appealed that decision to the Tolland Superior Court. Before the matter was heard, the parties reached a settlement, or so it seemed, on July 17, 2007, when they moved for a stipulated judgment. The motion was granted on July 19, 2007. The stipulation, signed by the Wambolts, the Sanvilles and the Town, provides as follows:
1. Town shall revise the decision of the Zoning Board of Appeals dated December 4, 2006, upon a vote to do so by the Zoning Board of Appeals as follows:
Wholly affirmed the decision of the Town Planner/Zoning Enforcement Officer (ZEO) namely, that the decision on zoning permit application ZP-2006-0381 for storage building to be at the discretion of the ZEO; the denial of the zoning permit application ZP-2006-0382 for a home occupation at 104 Webster Road; that the premises at 104 Webster Road may not be used for commercial or business purposes as defined in Section 10.2 of the zoning regulations.
2. The Sanvilles shall cease and desist from all commercial or business activity, as defined in Section 10.2 of these regulations, at 104 Webster Road, Ellington, and shall conduct any home occupation at 97 Webster Road, Ellington, in accordance with Sanville's Zoning Permit Application ZP-2007-0018 filed pursuant to § 7.7 of the Ellington Zoning Regulations.
3. In regard to the Zoning Board of Appeals finding concerning paint ball games at 104 Webster Road, the Plaintiffs are withdrawing their claims. Thus the decision of the Zoning Board of Appeals concerning paint ball games in this appeal shall not be considered subsequently res judicata or collateral estoppel.
4. In the event the provisions of this stipulation are adhered to by the parties, there will be no further enforcement action; however, should there be a breach of any of the terms of this Stipulation for Judgment, the ZEO shall enforce the Ellington Zoning Regulations and findings herein, pursuant to those regulations, the citation ordinance of the Town of Ellington and pursuant to the powers granted the ZEO pursuant to CGS Section 8-12, and the parties understand that the Plaintiffs will pursue any available remedies at law or in equity.
5. Notwithstanding any provision contained in this Stipulation, nothing in this Stipulation shall be to prohibit the lawful use of the property by the defendants in accord with the Ellington Regulations.
Stipulated Judgment
The stipulated judgment did not restore peace. The Wambolts continued to observe what they perceived as business activity at the Sanvilles' properties in violation of the stipulated judgment and local zoning regulations. Alberta Wambolt kept a log of her observations with copious notes with entries for nearly every day — weekdays and weekends, morning, noon and night. She also took many photographs for evidence. The court took into evidence a copy of her log, with extraneous information redacted, and selective photographs.
The notes and photographs record Robert Sanville coming and going from lot 97 and lot 104 with his pickup trucks, vans, all-terrain vehicles and utility trailers; and they record other persons, whom the Wambolts assumed to be employees, doing the same. The vehicles and utility trailers are sometimes filled with ladders and roofing materials, such as shingles and plywood. Most of the activity occurs in early morning, before the work day starts, in the evening, after the work day ends, and, occasionally, in the afternoon, around lunch time. The Wambolts testified that the activity has been less now than before the stipulation. Before the stipulated judgment, the Sanvilles stored roofing materials in the tent. They no longer do that. Nevertheless, the Wambolts believe that the recorded activity demonstrates business activity in violation of the stipulated judgment and in violation of the zoning regulations. The Wambolts complained to the Town about the situation, but, they allege, the Town defendants have failed to enforce the stipulated judgment and regulations.
Additionally, the Wambolts complain that the sounds of the trucks disturbs them, including the closing of truck doors and scraping of utility trailers against the driveway upon entry. When they tried to discuss their complaints with Robert Sanville, they were rebuffed. They testified that the Sanvilles once erected a sign reading "Mind Your Own Business," that the Sanvilles' fence facing their home once contained graffiti reading "Smile," and that once, when they passed each other, Robert Sanville yelled, "Write it down, write it down!" Their appraiser testified that the view of business activity from their land diminished the value of their property by $15,000.00 — the cost of planting trees to block the sight.
Their complaints were corroborated by their neighbor, Paul Hunchak, who testified that visitors to the Sanville home regularly park on the side of the road, on the edge of his property, on workdays when going to and from the Sanville home or when they walk to lot 104. He believes that the activity is commercial, and that it is inconsistent with the rural residential character of the neighborhood.
Robert Sanville testified that he has done everything he can do to comply with the zoning regulations, and that he has cooperated with the Town and that he immediately brought any nonconforming activity into compliance whenever it was brought to his attention. Indeed, he has applied for and received zoning, building and home occupation permits as required by the Town, although often after he was caught in violation and under threat of enforcement action and litigation. He testified that he has no roofing materials and supplies or equipment used exclusively in the business at the tent since the date of the stipulated judgment, but that he does keep his personal possessions in there, including ladders, table saws and other tools, and four all terrain vehicles. He further explained that his friends frequently visit his properties with their trucks or sport utility vehicles for social visits, explaining the volume of traffic and presence of trucks at both properties. He testified that in his business, since the stipulated judgment, roofing materials and supplies are delivered to the work sites, not Webster Road, and that he rents a storage facility in Springfield, MA for his extra roofing material and supplies. The court accepted invoices in proof of the rental facility. He further testified that he keeps his ladders and some materials on or in his trucks. His testimony was corroborated by Gregg Tautkus and Joseph Twelves, two friends of the Sanvilles who frequent his properties and who testified that they have observed no business activity at either property in recent months. Robert Sanville testified that he feels harassed by the Wambolts.
Town officials testified that two weeks after the stipulated judgment was granted, the Wambolts filed a complaint with the Zoning Enforcement Officer reporting continued violations by the Sanvilles. Alberta Wambolt supplied photographs of the activities, but the photos predated the stipulated judgment. Nevertheless, the Zoning Enforcement Officer drove by the Sanville properties on August 6, 15, 29, September 10, and 28, and October 16, and 23, at various times, to look for violations. She found none. The Town Planner also drove by occasionally at the end of the day. He also saw no violations.
In response to a request from the Wambolts' attorney, asking the Town to bring an injunction against the Sanvilles to stop the alleged violations, the Town Attorney, Zoning Enforcement Officer, Planner and other Town staff met and reviewed the facts submitted by the Wambolts and the Wambolts' attorney, as well as the facts obtained from their own investigation. Their decision was that there was no violation, and they decided that the Town would not bring an injunction action. The negative decision was communicated to the Wambolts' attorney. This litigation ensued.
The Zoning Enforcement Officer was present during the presentation of the plaintiff's case during the court proceedings in the instant case. She testified that most of the evidence marshaled by the Wambolts and presented in court was never submitted to her earlier. She believed that the new evidence was certainly suspicious, and would have merited further consideration if it had been given to the Town, but she still did not think that it established business activity at the properties in violation of the stipulated judgment or zoning regulations.
III
The first issue that must be resolved is whether the Wambolts have exhausted their administrative remedies before resorting to the courts. In this case, the Wambolts were dissatisfied with the response of the Zoning Enforcement Officer to their complaints. The Sanvilles argue that there is an administrative remedy available in such instances. Arguably, the Wambolts could have appealed to the Zoning Board of Appeals under General Statutes § 8-6(a)(1), just as they did the first time. "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding unless and until that remedy has been sought in the administrative forum. In the absence of exhaustion of that remedy, the action must be dismissed." (Citations omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998); Simko v. Ervin, 234 Conn. 498, 503, 661 A.2d 1018 (1995); Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963). "Once a question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted; citations omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 579, 833 A.2d 908 (2003). The issue can be raised by the court sua sponte. See Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 617, 577 A.2d 1017 (1990). The court invited argument from the parties on this issue.
There are exceptions to the exhaustion rule. "One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate . . . It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." (Citations omitted; internal quotation marks omitted; emphasis in original.) Neiman v. Yale University, 270 Conn. 244, 258-59, 851 A.2d 1165 (2004); Gerardi v. City of Bridgeport, 99 Conn.App. 315, 321, 913 A.3d 1076 (2007). In the instant case, the court finds that it would have been futile for the plaintiffs to pursue any further remedies with the Town. The Town thoroughly reviewed the arguments and evidence of the Wambolts with its Town Attorney, and the Town's position was unequivocally communicated to the Wambolts: The Town would not take any action. Thus, a remedy with the Town, if one was available, would certainly have been futile in this case. This circumstance excuses the failure to exhaust administrative remedies in this case.
Other reasons for excusing resort to administrative remedies are also evident in this case. For example, it has been held that where a town refuses to act, there is nothing to appeal. Cummings v. Tripp, 204 Conn. 67, 75-76, 527 A.2d 230 (1987); Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 180, 377 A.2d 280 (1977). This principle is not without its critics. See R. Barkow, The Ascent of the Administrative State and the Demise of Mercy, 121 Harv. L. Rev. 1332, 1339 n. 25 (2008) (collecting scholarship critical of courts' failures to review agency decisions not to bring enforcement actions.) Nevertheless, in the instant case, the court finds that the Town refused to act. So, there was nothing to appeal and, therefore, exhaustion is not required. Also, particularly with respect to injunction actions, it has been held that "nearby property owners specifically and materially damaged by the violation of zoning regulations may bring private zoning enforcement actions directly to the Superior Court, without first applying to municipal zoning authorities, as an exception to the exhaustion of administrative remedies doctrine." (Citations omitted.) Reichenbach v. Kraska Enterprizes, LLC, 105 Conn.App. 461, 468 (2008). Specific allegations in a complaint are enough to clear this hurdle to permit a court to hear such a case on its merits. See Raymond v. Rock Acquisition Limited Partnership, 50 Conn.App. 411, 416, 717 A.2d 824 (1998). Plaintiffs' allegations suffice in the instant case.
Thus, for several reasons explained above, the exhaustion of administrative remedies doctrine is not a bar to the court hearing the plaintiffs' case in this matter on the merits.
IV
On the merits, however, the court finds the evidence insufficient to prove that the Sanvilles are violating either the stipulated judgment or the zoning regulations. The evidence demonstrates activity consistent with the operation of a home business at 97 Webster Road in Ellington, for which the Sanvilles have a permit, as required by the stipulated judgment. The evidence showed that Robert Sanville commutes to and from his home with his business vehicles containing some equipment and materials, and that he meets with employees at his property on occasion. This activity is permitted by the regulations. A "home occupation" under the Ellington Zoning Regulations is "[a]ny product-based or service-based commercial or industrial use conducted within a dwelling and carried on by the inhabitants thereof." Ellington Zoning Regulations § 10.2.
The evidence in this case demonstrated that the Sanvilles are in compliance with the requirements of their Home Occupation permit. The zoning regulations on point read as follows:
Home Occupations must conform to the following:
A. The home occupation must clearly be incidental and secondary to the residential use of the dwelling.
B. The residential character and appearance of the dwelling and the lot on which it is located shall not be changed in any visible manner.
C. The home occupation shall not create any objectionable noise, odor, vibration, or unsightly conditions.
D. The home occupation shall not create a health or safety hazard.
E. The home occupation shall not create any interference with communications transmission or reception in the vicinity.
F. The home occupation will create no significant change in traffic or the need for expanded parking.
G. The home occupation shall be confined to 1/3 of the floor area of said dwelling. For the purposes of calculation, the floor area of the attic and basement shall be excluded.
H. The home occupation must be carried on entirely within the dwelling, to include the basement, accessory building, garage and/or attic of the dwelling.
I. No advertising of the existence of the home occupation shall be visible from the dwelling or the lot on which it is located, except for one sign as permitted by Section 6.4.4.
J. No products or materials shall be stored on the lot outside in such a manner as to be visible from any adjacent property.
K. The home occupation may employ up to one non-household employee to be present in the dwelling during business hours.
Reg. § 7.7, Ellington Zoning Regulations.
Also, the activity at 104 Webster Road does not demonstrate that the Sanvilles are conducting any "commercial or business activity, as defined by Section 10.2" in violation of the zoning regulations or the stipulated judgment at that location. The evidence showed that Robert Sanville and others stop at the lot, from time to time, and go into the tent and occasionally park business vehicles on the lot. Section 10.2 defines the word "business" as "[C]ustomary commercial pursuits and transactions." Reg. § 10.2, Ellington Zoning Regulations. Obviously, if the Sanvilles were operating their roofing business out of lot 104 or even using the storage tent as an accessory building to their home occupation, it would be prohibited by the regulations and the stipulated judgment. The evidence in the instant case, however, only showed visits to property by defendants and their business vehicles, sometimes loaded with roofing equipment or materials, and parking of business vehicles there occasionally. Witnesses testified that the tent contained all-terrain vehicles, a lawn mower, a tractor with attachments, a friend's wood chipper and other personal property belonging to the Sanvilles, but nothing evidencing business activity. This activity does not rise to the level of conduct of commercial or business activity, although the court agrees with the Zoning Enforcement Officer's opinion that the activities at both lots were suspicious, meriting review and evaluation for violation of the stipulated judgment and regulations. Obviously, it was suspicious to the plaintiffs as well, resulting in their observation and log keeping. After review and evaluation, however, this court concludes that the Wambolts have failed to prove a violation of the home occupation rules or that the conduct amounts to commercial or business activity in violation of the stipulated judgment or Ellington Zoning Regulations at either location in this case.
Accordingly, the court finds that the plaintiffs have failed to prove a violation of the stipulated judgment or zoning regulations, and they have failed to qualify for the relief requested by way of injunction, mandamus or order of contempt against any of the defendants.
V
For all of the foregoing reasons, judgment is rendered in favor of all defendants and against all plaintiffs on all counts.