Day v. Perkins Properties, LLC

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KIERAN DAY ET AL. v. PERKINS
PROPERTIES, LLC, ET AL.
(AC 41357)
DiPentima, C. J., and Lavine and Flynn, Js.
Syllabus
The plaintiffs, owners of real property in the town of Ledyard, sought to
recover damages for private nuisance from the defendant P Co. and
its sole member, the defendant P. P Co. owned certain real property
consisting of two contiguous parcels, one located in North Stonington
and the other in Ledyard, that abut the plaintiffs’ property. Both of the
defendants’ parcels are located in areas zoned for residential use that
prohibit the commercial use of the property. In a prior action, P Co.
had entered into a stipulated judgment with the town of Ledyard by
which it was enjoined from operating a landscaping business or a similar
commercial operation at its Ledyard property. The stipulated judgment
further provided that pursuant to the town’s zoning regulations, no
commercial activity was permitted in areas zoned for residential use
unless the activity constituted a permissible farming activity pursuant
to the town’s zoning regulations. Thereafter, the trial court in that action
held P Co. in contempt for its noncompliance with the stipulated judg-
ment. The plaintiffs subsequently commenced this action, alleging, in
count two of their complaint, that the defendants’ operation of a land-
scaping business on its Ledyard property constituted a nuisance per se
because it violated the town’s zoning regulations by reason of noise,
safety, fumes and odors, and because the property was not zoned for
commercial activity. Following a trial to the court, the trial court ren-
dered judgment for the plaintiffs on count two, from which the defen-
dants appealed to this court. Held that the trial court improperly
concluded as a matter of law that the defendants’ operation of a landscap-
ing business on its Ledyard property constituted a nuisance per se; the
defendants’ operation of a landscaping business did not constitute a
nuisance per se because it was not a use of land that, by its very nature,
constitutes a nuisance at all times regardless of locality or circumstance,
and the defendants’ violation of a local ordinance, which formed the
basis of the stipulated judgment and the court’s finding of nuisance per
se, was not, as a matter of law, sufficient in itself to constitute a nuisance
per se, which exists where there is a condition that is a nuisance in any
locality and under any circumstances, as local zoning regulations apply
only to a specific locality, what constitutes a nuisance in one locality
may not in another, and the allegations of the complaint limited the
nuisance to the landscaping business on the defendants’ property in
Ledyard that was being operated in a residential zone.
Argued February 13–officially released May 14, 2019
Procedural History
Action to recover damages for, inter alia, private nui-
sance, and for other relief, brought to the Superior Court
in the judicial district of New London, where the matter
was tried to the court, Hon. Joseph Q. Koletsky, judge
trial referee; judgment in part for the plaintiffs; there-
after, the court granted the plaintiffs’ motion for clarifi-
cation and issued a certain order, and the defendants
appealed to this court. Reversed; judgment directed.
Matthew G. Berger, for the appellants (defendants).
Michael S. Bonnano, for the appellees (plaintiffs).
Opinion
FLYNN, J. The defendants, Perkins Properties, LLC,
and Mark J. Perkins, Jr., appeal from the judgment of
the trial court rendered in favor of the plaintiffs, Kieran
Day and Jennifer Day. The defendants claim that the
court improperly determined that a nuisance per se
existed solely on the basis of violations of local zoning
regulations.1 We agree that a violation of a local zoning
ordinance in one town cannot be said to constitute a
nuisance everywhere in the state of Connecticut as the
nuisance per se doctrine requires and, accordingly, we
reverse the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant. The plaintiffs own real property
located at 572 Lantern Hill Road in Ledyard. Perkins is
the sole member of Perkins Properties, LLC, the owner
of real property abutting the plaintiffs’ property located
at 576 Lantern Hill Road in Ledyard. The defendants’
property is a contiguous parcel that also encompasses
586Z Lantern Hill Road in North Stonington. The defen-
dants’ Ledyard and North Stonington properties are
separated by Whitford Brook, and both are located in
residential R-80 zones that prohibit commercial use of
real property.
In a separate action brought by the town of Ledyard
and Joseph Larkin in his capacity as Ledyard’s zoning
enforcement officer against Perkins Properties, LLC,
those parties entered into a stipulation on October 27,
2016. The written stipulation provided that Perkins
Properties, LLC, was enjoined from operating a land-
scaping business, lawn care business, snow removal
business, or other similar commercial operations at 576
Lantern Hill Road in Ledyard. It further provided that
commercial activity and uses accessory to commercial
activity were not permitted in residential zones pursu-
ant to § 3.4 of the Ledyard Zoning Regulations, and that
no building, structure, or any portion of the property
shall be used for commercial activity or any purpose
subordinate or incidental to commercial activity,
including, but not limited to: vehicular or pedestrian
access to commercial activity; employee parking for
commercial activity; storage, maintenance, or repair of
vehicles, equipment or machinery used in whole or in
part in conducting commercial activity, except as per-
mitted by paragraph 2 of the stipulation; assembly of
employees of commercial activities other than farming
or uses accessory to farming; storage of materials or
products used in the course of the business of commer-
cial activity, except as permitted by paragraph 2; and
the storage of materials, products or by products gener-
ated in the course of business or commercial activity.
The stipulation provided in paragraph 2 that activities
that may constitute farming or a use accessory to farm-
ing under § 2.2 of the Ledyard Zoning Regulations may
be permitted. The stipulation provided that these excep-
tions are to be strictly and narrowly construed. The
court, Cosgrove J., entered judgment in accordance
with the stipulation on December 1, 2016. Ledyard and
Larkin moved for contempt because of noncompliance
by Perkins Properties, LLC, with the December 1, 2016
judgment, and the court, Cole-Chu, J., granted the
motion.
The plaintiffs commenced the present action in 2015,
and served their seven count fourth amended complaint
in December, 2017. In the second count of that com-
plaint, the plaintiffs alleged that the defendants’ use of
the Ledyard property for a landscaping business vio-
lated the Ledyard Zoning Regulations by reason of
noise, safety, fumes and odors, and because commercial
activity is prohibited in an R-80 zone. The plaintiffs
sought injunctive relief and monetary damages.
Following a trial, the court found that the plaintiffs
proved only the allegations in the second count of the
complaint.2 The court determined that there was a nui-
sance per se pursuant to the defendants’ deliberate
violation of the terms of the stipulated judgment, which
enjoined the defendants, on the basis of the Ledyard
Zoning Regulations, from conducting commercial activ-
ity and related accessory uses on the Ledyard property.
The court determined that, although the defendants
claimed to operate a nonconforming farm, the only
agricultural activity that took place on the property was
Perkins’ ownership of an uncertain number of cows that
were kept in various grazing spots. The court concluded
that the activity at issue did not fall under the farming
exception in the stipulated judgment, which permitted
farming activity pursuant to the Ledyard Zoning Regula-
tions. The court ordered that no nonfarming activity
take place on the Ledyard property and that no direct
vehicular access, including off road conveyances, be
had between the defendants’ adjoining Ledyard and
North Stonington properties. This appeal followed.
The issue before us is whether the trial court properly
determined that a certain use of land constituted a
nuisance per se. ‘‘Although the existence of a [public
or private] nuisance generally is a question of fact, for
which we invoke a clearly erroneous standard of review
. . . where the court makes legal conclusions or we
are presented with questions of mixed law and fact, we
employ a plenary standard of review . . . .’’ (Internal
quotation marks omitted.) Sinotte v. Waterbury, 121
Conn. App. 420, 438, 995 A.2d 131, cert. denied, 297
Conn. 921, 996 A.2d 1192 (2010). Under our case law,
the question as to what constitutes a nuisance per se
is one of law for the court. See Warren v. Bridgeport,
129 Conn. 355, 360, 28 A.2d 1 (1942); Beckwith v. Strat-
ford, 129 Conn. 506, 510, 29 A.2d 775 (1942). Accord-
ingly, our review is plenary. See Sinotte v. Waterbury,
supra, 438.
‘‘A nuisance not originating in negligence is some-
times characterized as an absolute nuisance [or a nui-
sance per se].’’ (Internal quotation marks omitted.)
Warren v. Bridgeport, supra, 129 Conn. 360. Signifi-
cantly for the decision to be made in this appeal, a
‘‘nuisance per se . . . exists where there is a condition
which is a nuisance in any locality and under any cir-
cumstances. . . . Such a nuisance as regards the use
of land seldom, if ever, occurs; the same conditions may
constitute a nuisance in one locality or under certain
circumstances, and not in another locality or under
other circumstances. To constitute a nuisance in the
use of land, it must appear not only that a certain condi-
tion by its very nature is likely to cause injury but also
that the use is unreasonable or unlawful.’’3 (Citation
omitted.) Beckwith v. Stratford, supra, 129 Conn. 508.
‘‘Some things are unlawful or nuisances per se; others
become so, only in respect to the time, place or manner
of their performance.’’ Whitney v. Bartholomew, 21
Conn. 213, 217 (1851).
A landscaping business is not a use of land that,
by its very nature, constitutes a nuisance at all times
regardless of locality or circumstance. First, we note
that our case law most often has dealt with what is not
a nuisance per se. See Wood v. Wilton, 156 Conn. 304,
310, 240 A.2d 904 (1968) (refuse disposal operation not
nuisance per se but may be nuisance in fact as result
of manner of operation); Jack v. Torrant, 136 Conn.
414, 421, 71 A.2d 705 (1950) (undertaking establishment
not nuisance per se); Murphy v. Ossola, 124 Conn. 366,
371, 199 A. 648 (1938) (mere possession or use of dyna-
mite caps not nuisance per se); Udkin v. New Haven,
80 Conn. 291, 294, 68 A. 253 (1907) (accumulated snow
on walkway did not constitute nuisances per se); Parker
v. Union Woolen Co., 42 Conn. 399, 402 (1875) (use of
steam whistle not nuisance per se); Whitney v. Bartho-
lomew, supra, 21 Conn. 217 (‘‘[t]he trade and occupation
of carriage-making, or of a blacksmith, is a lawful and
useful one; and a shop or building, erected for its exer-
cise, is not a nuisance per se’’).
Second, the nature of the complaint and the court’s
findings limit any unreasonable use of the land to a
specific locality and manner of performance. The allega-
tions in the complaint limited the nuisance to a particu-
lar locality and stated, in essence, that the landscaping
business was pursued in an improper place, namely, in
an R-80 zone in Ledyard. The Ledyard Zoning Regula-
tions, by their very nature, applied only to property
located in Ledyard. Furthermore, the terms of the stipu-
lated judgment applied only to 576 Lantern Hill Road
in Ledyard and specified that certain activities were
prohibited to the extent the activities constituted com-
mercial activity and not farming. The court noted these
limitations in its decision, stating that ‘‘the Ledyard
injunction applies to the Ledyard property, of course,’’
and on that basis did not find a nuisance per se for the
same commercial landscaping activity occurring on the
North Stonington property. The court found for the
defendants on count one of the complaint, which
alleged that the landscaping business constituted a pri-
vate nuisance on the basis of employee mustering,
aggressive and threatening behavior by employees,
and noise.
The violation of a local ordinance, which formed the
basis of the stipulated judgment and the court’s finding
of nuisance per se, is not, as a matter of law, sufficient
in itself to constitute a nuisance per se.4 In certain cases,
a court may interpret local zoning regulations along
with other factors to determine whether a private nui-
sance exists. See Cummings v. Tripp, 204 Conn. 67,
79, 527 A.2d 230 (1987). It is axiomatic that local zoning
regulations apply only to a specific locality, and ‘‘[w]hat
constitutes a nuisance in one locality may not in
another.’’ Jack v. Torrant, supra, 136 Conn. 423. ‘‘[T]he
mere violation of a municipal ordinance does not make
the act in question a nuisance per se.’’ 58 Am. Jur. 2d
581, Nuisances § 14 (2012). For the foregoing reasons,
we conclude that the court’s finding of a nuisance per
se on the basis of violations of a local zoning ordinance,
which the defendants were enjoined from violating
under the terms of a stipulated judgment, was improper
as a matter of law.
The judgment is reversed and the case is remanded
with direction to render judgment in favor of the
defendants.
In this opinion the other judges concurred.
1
The defendants also claim that the court erred in enjoining them from
direct vehicular access, including off road conveyances, between the defen-
dants’ adjoining Ledyard and North Stonington properties. The court found
that the plaintiffs only proved the second count of their complaint alleging
nuisance per se, and we reverse that judgment including any remedies
awarded therein. Accordingly, we need not address the merits of this claim.
2
The court clarified its judgment to note that the second count, as opposed
to the third count which alleged nuisance per se as to the North Stonington
property, had been proven.
3
‘‘A private nuisance is a nontrespassory invasion of another’s interest
in the private use and enjoyment of land. . . . The law of private nuisance
springs from the general principle that [i]t is the duty of every person to
make a reasonable use of his own property so as to occasion no unnecessary
damage or annoyance to his neighbor. . . . The essence of a private nui-
sance is an interference with the use and enjoyment of land.’’ (Citations
omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn.
345, 352, 788 A.2d 496 (2002).
4
Additionally, we note that count two of the complaint was not an action
to enforce a zoning regulation. See e.g., Cummings v. Tripp, 204 Conn. 67,
78–80, 527 A.2d 230 (1987) (right of property owners to seek injunction and
damages for nuisance affecting enjoyment of their property is supplemental
to right to seek injunctive relief from zoning authorities for violation of
zoning ordinance).