Silitschanu v. Groesbeck

Hull, J.

The plaintiffs brought suit against the defendant seeking to enjoin him from constructing a commercial building and a septic tank for that building on residential property adjoining the commercial lot. After a trial to an attorney state trial referee, the court rendered judgment for the defendant, denying the plaintiffs’ request for injunctive relief. From that judgment, the plaintiffs have appealed, claiming (1) that the referee applied an incorrect standard of law to the facts of the case, (2) that he erred in failing to consider testimony of the chief zoning enforcement officer of the city of Stamford, and (3) that he erred in holding that the plaintiffs were not injured by the defendant’s actions.

The referee found the following facts. Prior to 1951, there were several small business areas’in the rural or outlying sections of Stamford. On or about November 30,1951, the city of Stamford, newly consolidated with the town of Stamford, adopted zoning regulations for these outlying areas. Between 1977 and 1980, the defendant acquired and consolidated four parcels of land, totalling under one and one-half acres. Some time during that period, the defendant consulted an architect concerning the preparation of plans for the construction of a three-story office building on the one half acre of land that was zoned for commercial use.¹ The plan called for the septic system for the building to be on the adjoining residential property. A map designating the consolidation of the land was submitted to the Stamford town clerk, and subsequently was referred to the planning board and the corporation counsel. The map was later accepted for filing.

On July 29,1980, the defendant applied for a building permit for his proposed building. He promptly applied to the necessary boards and agencies for approval of his building plans. Various agencies delayed action on the defendant’s request, and ultimately refused to issue the necessary permits. The defendant eventually instituted a mandamus action against the zoning enforcement officer, the building inspector, the deputy building inspector and the municipal engineer. On July 30,1981, the court found in favor of the defendant (the plaintiff in that action), and ordered that the requested building permit be issued.² On August 12, 1981, the zoning enforcement officer and the building inspector issued the defendant a building permit. The defendant received the necessary sewer construction permit from the local health department,³ and began construction soon thereafter. At the time of oral argument, the building was substantially completed.

The complaint in the present action was filed in the Superior Court on November 24, 1981. In their complaint, the plaintiffs⁴ sought, inter alia, a permanent injunction prohibiting the defendant from continuing construction, and ordering him to dismantle any parts of the building already constructed. The two major claims made by the plaintiffs in support of injunctive relief were (1) that the location of the septic system on residentially zoned property violates the Stamford zoning regulations, and (2) that the location of the proposed building is in violation of the Stamford zoning regulations with regard to the rear and side yard requirements.

The referee filed a detailed and comprehensive report. He found that there is nothing in the Stamford zoning regulations governing subsurface sewage disposal systems and their location; nor do the regulations make any specific reference to septic systems. He concluded that the defendant is entitled to proceed with the construction of the proposed building notwithstanding the fact that the septic system which will serve the building is on residentially zoned property.

The plaintiffs claimed that if the septic system were located on the commercially zoned portion of the Groesbeck’s property, the size of the proposed building would necessarily be smaller. The plaintiffs also claimed that the proposed building would result in an increase of traffic. The referee found (1) that the plaintiffs offered no evidence as to the size or precise location of such a smaller building on the property, (2) that the plaintiffs did not sustain their burden of proof as to the extent of any injury or damage that will be sustained by reason of the size of the building, and (3) that, even if the referee assumed the use of residentially zoned property for the septic tank to be improper, the plaintiffs failed to show that it would result in any harm to them.

In light of his conclusion that the plaintiffs offered no evidence that the building’s septic system will differ in any material way from septic systems pertaining to residential structures, the referee concluded that the plaintiffs had failed to show that the residential property in question would be used in a manner inconsistent with zoning. He concluded further that use restrictions on the residential portion of Groesbeck’s property protect the property from use inconsistent with its residential classification and are not intended to serve as indirect limits on the size of buildings constructed on adjoining commercial property.

The referee also found that the location of the proposed building met the side yard, rear yard and setback requirements of the Stamford zoning regulations. He concluded from all his findings that the plaintiffs were not entitled to any relief, injunctive or otherwise. On August 26, 1985, the court accepted the referee’s findings and the next day rendered judgment for the defendant.

I

The plaintiffs’ first claim is that the referee erred in adopting an unprecedented and incorrect standard for determining whether the septic system for a commercial building can be located on residentially zoned property.⁵ They argue in effect that the defendant’s septic system is subject to the Stamford zoning regulations.

Connecticut appellate courts have never squarely faced the issue of whether, absent specific reference, septic systems are subject to local zoning regulations. “Zoning regulations, being in derogation of common law property rights, should not be extended by construction beyond the fair import of their language and cannot be construed to include by implication that which is not clearly within their express terms. Park Construction Co. v. Planning & Zoning Board of Appeals, 142 Conn. 30, 35, 110 A.2d 614 [1954]; Service Realty Corporation v. Planning & Zoning Board of Appeals, 141 Conn. 632, 638, 109 A.2d 256 [1954]. . . .’’(Citation omitted.) J & M Realty Co. v. Board of Zoning Appeals, 161 Conn. 229, 233, 286 A.2d 317 (1971).

“[E]very owner of property located in a town which has adopted zoning is entitled to be able to ascertain, with reasonable certainty, what uses he may legally make of any portion of his property. Leveille v. Zoning Board of Appeals, 145 Conn. 468, 473, 144 A.2d 45 [1958].” Lebanon v. Woods, 153 Conn. 182, 191, 215 A.2d 112 (1965).

As the defendant correctly asserts, the plaintiffs have referred us to nothing in the Stamford zoning regulations, nor has our review of the record revealed any provision governing subsurface sewage disposal systems. The regulations make no specific reference to septic systems. The plaintiffs rely only on the broad, general “purpose” language of the zoning regulations in support of their contention. Art. 1, § 2 of those regulations provides that “[n]o building or structure shall be erected, reconstructed, structurally altered, enlarged, moved or maintained, nor shall any building, structure or land be used or be designed for any use other than is permitted in the district in which such building, structure or land is located.”

The definitional section of the zoning regulations defines “structure” as “[a]nything constructed or erected which requires location on the ground or attached to something having a location on the ground.” Stamford zoning regs., art. II, § 3 (A) (97). We concur with the referee that under these definitions, no structure or land is being used for any use other than for a septic system, which is permitted in a residential zone.

The plaintiffs have directed us to no case which supports their claims concerning the septic system. Nor has our research revealed any such authority. Reasoning by analogy, we have examined cases concerning commercial or institutional parking lots on residential land adjoining the principal operation. See Schomer v. Shilepsky, 169 Conn. 186, 190, 363 A.2d 128 (1975); Gada v. Zoning Board of Appeals, 151 Conn. 46, 48, 193 A.2d 502 (1963). Those cases enunciate the general proposition that such a use is improper. We concur fully with the conclusions of these cases. A parking lot is clearly a structure on the ground. It substitutes paving for whatever environmental amenities existed on the property. Depending on the size and use of the lot, it takes little imagination to envision the inconvenience and annoyance that might ensue to adjoining residential owners.

None of the persuasive reasons leading to the finding of impropriety of large scale institutional or business parking lots on adjoining residential property inheres in the use of septic tanks on such adjoining property. We therefore find that the referee did not err in determining that the defendant’s septic system was not subject to the Stamford zoning regulations.

II

The plaintiffs’ second claim is that the referee failed to consider the testimony of the chief zoning enforcement officer, who assumed that a building’s zoning classification turns on the use of the building rather than the physical nature and characteristics of each of its parts. As we have determined that the plaintiffs failed to meet their burden of proving that the defendant’s septic system is in any way subject to the Stamford zoning regulations, any interpretation by a zoning enforcement officer of the zoning regulations would be meaningless. We therefore will not consider this claim.

III

The plaintiffs’ final claim is that the referee erred in holding that the plaintiffs are not injured by the defendant’s violations of the Stamford zoning regulations. We concur with the referee’s finding that even if the Stamford zoning regulations prohibit the placement of the defendant’s septic system on his adjoining residential property, the plaintiffs have failed to prove that they are entitled to an injunction. “ ‘The issuance of an injunction is the exercise of an extraordinary power which rests within the sound discretion of the court, and the justiciable interest which entitles one to seek redress in an action for injunctive relief is at least one founded on the imminence of substantial and irreparable injury. Bendell v. Johnson, 153 Conn. 48, 51, 212 A.2d 199 [1965]; 42 Am. Jur. 2d, Injunctions, §§ 48, 49; see Herbert v. Smyth, 155 Conn. 78, 85, 230 A.2d 235 [1967]; Brainard v. West Hartford, 140 Conn. 631, 634, 103 A.2d 135 [1954].’ Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222 [1971]. It is not enough to show that the defendant has violated the zoning regulations. The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm as a result of that violation. See Scoville v. Ronalter, supra; Crouchley v. Pambianchi, 152 Conn. 224, 226, 205 A.2d 492 [1964]; Lavitt v. Pierre, 152 Conn. 66, 77, 203 A.2d 289 [1964]; Lehmaier v. Wadsworth, 122 Conn. 571, 191 A.2d 539 [1937]. ...

“Injunctive relief may not lie where it is predicated on the fears and apprehensions of the party applying for it or where it would be incompatible with the equities of the case; DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543 [1977]; Moore v. Serafin, 163 Conn. 1, 11, 301 A.2d 238 [1972]; Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507, 511, 218 A.2d 383 [1966]; and likewise the power of equity to grant such relief may be exercised only under demanding circumstances. Brainard v. West Hartford, [supra, 634]. The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm. Moore v. Serafin, supra; Scoville v. Ronalter, supra.” Karls v. Alexandra Realty Corporation, 179 Conn. 390, 401-402, 426 A.2d 784 (1980).

The trial referee concluded that “[sjince the Plaintiffs have offered no evidence to show that the building’s septic system and rear yard will differ in any material way from septic systems and rear yards pertaining to residential structures, they have failed to demonstrate that the residential property in question is being used in a manner inconsistent with its zoning classification.” We agree. We have reviewed the record and conclude that the trial court did not abuse its discretion in denying the plaintiffs’ requested injunction.

There is no error.

In this opinion Spallone, J., concurred.

1 The remaining land was zoned for single-family residential use.

2 See Groesbeck v. Sotire, 1 Conn. App. 66, 467 A.2d 1245 (1983). The city of Stamford and its building inspector and zoning enforcement officer, James Sotire, appealed to this court from the trial court’s judgment. The appeal was dismissed on grounds of mootness because the building permit had already been issued.

3 See Connecticut Public Health Code § 19-13-B103 et seq.

4 In the Superior Court action, there were five plaintiffs. The properties of two plaintiffs, Boris Silitschanu and Fred Mantel, adjoin the defendant’s property. The properties of the remaining three plaintiffs, John Naylor, Newcomb Barger and Grace Ramos Maiola, are closely situated to the defendant’s property.

On March 6, 1987, while this appeal was pending, the plaintiffs Mantel and Maiola moved this court to drop them from the appeal. That motion was granted.

5 The defendant claims that the plaintiffs have “waived any right to attack the subordinate factual findings” of the attorney state trial referee, as they did not properly file a motion to correct and an exception to the referee’s report. He cites Ruhl v. Fairfield, 5 Conn. App. 104, 106, 496 A.2d 994 (1985), and Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 507-509, 508 A.2d 415 (1986), in support of his claim. Ruhl v. Fairfield, supra, states that “[a]bsent a motion to correct and a subsequent exception to the report ... [t]his court is limited to considering whether the ‘facts found and the conclusions reached in the report are adequate to support the judgments.’ ” The plaintiffs’ claims, however, do not refer only to factual findings, as the defendant asserts. The claims are based on assertions of legal error. In order to determine whether the facts and conclusions reached were reasonable, it is essential that we consider the plaintiffs’ argument that the law applied was incorrect.