Opinion
No. CV-04-4002068 S
December 14, 2004
MEMORANDUM OF DECISION ON APPLICATION FOR RESTRAINING ORDER
The plaintiffs in this case have filed an appeal from the decision of the defendant Sachem's Head Association Zoning Board of Appeals (Board) upholding the zoning enforcement officer's issuance of a certificate of zoning compliance. The certificate was issued to the defendant Peggy Evans on May 27, 2004 allowing her to proceed with the construction of a house at 68 Prospect Avenue in Guilford, Connecticut. The plaintiffs reside next door at 64 Prospect Avenue and both houses front on Long Island Sound. Based on the issuance of the certificate, and the decision of the Board, Evans has torn down a house previously located on her property and presently is constructing a larger house. The plaintiffs' house and Evan's former house were both located approximately the same distance from Long Island Sound, whereas the new house under construction will be approximately twenty-five feet closer to the water. When the new house is completed it will block a small portion of the plaintiffs' view of the water.
The instant appeal does not operate as a stay on the decision of the Board but the court may grant a restraining order, on application, after notice to the board and for cause shown. General Statutes § 8-8(h). Before the court at this time is the plaintiffs' application for a stay of the board's decision until their appeal is heard and decided by the court. If the application is granted Evans will be required to cease construction. This court conducted an evidentiary hearing on the application on December 2, 2004 at which all parties were heard.
In order to obtain the requested restraining order the plaintiffs must show that they have a reasonable probability of success on the appeal, and that if the restraining order is not issued they will suffer irreparable harm while the appeal is pending. Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 457-58 (1985). Both probability of success on the appeal and irreparable harm must be proven by the plaintiffs.
In this case it is not necessary for the court to determine, based on the record, whether the plaintiffs have proven that they will probably succeed on the merits of their appeal. The plaintiffs are required to prove that they will suffer a "substantial" irreparable injury. R. Fuller, Land Use Law and Practice, § 41.2, (2d ed., 1999). The basis of the claim of irreparable injury is that when the house now under construction is finished, it will block the plaintiffs' view of Long Island Sound, which it will to a relatively minor degree. The claim of irreparable harm with respect to the application before the court is that the plaintiffs' view will be blocked until they prevail on the merits of their appeal. The appeal has been scheduled for trial in one month.
The court finds that the minor interference with the view of Long Island Sound for the relatively brief period until the appeal is concluded is insufficient to prove an irreparable injury which would justify the issuance of a restraining order preventing the continuance of the construction of the Evans' home.
The plaintiff also argues that if the Evans house is constructed, and thereafter the plaintiffs win their appeal, that there will be "common sense resistance" by the zoning authorities to order the house removed. There is no evidence before the court that the zoning authorities or the courts will resist in carrying out their legally required obligations. The defendant Evans is aware that in proceeding with the construction while the appeal is pending she is in risk of being ordered to remove the house should the plaintiffs ultimately prevail on their appeal. See McGavin v. Zoning Board of Appeals, 26 Conn.Sup. 251, 255. Will-Nor Corporation v. Zoning Board of Appeals, 146 Conn. 27 (1958). Hadik v. Zoning Board of Appeals, 146 Conn. 737, 738 (1959).
Accordingly, for the foregoing reasons the application for a restraining order is denied.
William L. Hadden, Jr., J.T.R.