Crabtree v. Cap, No. Cv91 0036110 S (Oct. 29, 1992) , 1992 Conn. Super. Ct. 9829 ( 1992 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION CT Page 9830 The following facts are not in dispute. The plaintiff is the Enforcement Officer for the City of Milford. The defendants, Gregory and Joyce Cap, are the owners of property known as 36 Wendy Road, Milford, Connecticut. The present action is brought pursuant to Connecticut General Statutes8-12.

On May 14, 1990, the defendants applied to the Milford Planning and Zoning Board for a special permit to allow them to have several accessory structures in which they proposed to house up to 150 pigeons. On August 7, 1990, the Planning and Zoning Board denied the defendants' application.

On March 8, 1991, the plaintiff issued to the defendants a cease and desist order. The defendants were ordered to cease and desist the keeping of pigeons and to remove the related accessory structures from the premises within ten days because the structures and use violated Section 3.1.2.23 of the City of Milford Zoning Regulations. The defendants appealed the order to cease and desist to the Zoning Board of Appeals on March 22, 1991. On April 9, 1991, the Zoning Board of Appeals upheld the Zoning Enforcement Officer's order. When the defendants failed to remove the accessory structures, the plaintiff initiated the present action. The defendants have presented their view of the case in their brief which contained many articles and books on pigeons. Because the word pigeon does not appear in the regulations, the defendants argue they could not have been in violation of the ordinance. It is noted herein that the defendants were instrumental in getting the regulations amended on February 4, 1992 to allow the keeping of pigeons as an accessory use. See Section 3.1.3.5 of the Regulations.

The defendants, in response to interrogatories, admitted having two structures, one being a four by four structure and the other being an eight by eight structure within thirty-one feet of their home.

From the evidence produced at trial and the defendants CT Page 9831 own admission, the court finds that the plaintiff has satisfied the burden of proof in proving that from April 9, 1991 until the zoning regulations were amended effective February 4, 1992, the defendants were in violation of the cease and desist order in that they continued to maintain said accessory structures housing their pigeons without zoning compliance. It is further found that the defendants' violation was willful as it continued for more than ten days after having been served with the cease and desist order.

Judgment is entered in favor of the plaintiff. Since there is no ongoing violation, the court orders the following pursuant to Connecticut General Statutes 8-12:

A. The defendants shall pay to the City of Milford as a civil penalty the sum of $100.00.

B. The defendants shall pay attorney fees in the sum of $250.00 plus costs.

McGrath, J.