DocketNumber: No. CV 94-046833S
Citation Numbers: 1994 Conn. Super. Ct. 8651
Judges: LAVINE, JUDGE.
Filed Date: 8/26/1994
Status: Non-Precedential
Modified Date: 4/17/2021
For the reasons stated below, the court grants the town's application.
Where a municipality seeks injunctive relief in order to enforce compliance with a local zoning ordinance, the municipality is not required to prove irreparable harm or inadequate remedy at law, as is normally the case. The municipality need only show a violation of the ordinance. Town of Farmington v.Viacom Broadcasting, Inc.,
The court will not attempt to set out all of the evidence presented. In summary, upon review of the entire record, the court finds that the following salient facts were proven.
The plaintiff, Robert A. Burke, is the Zoning Enforcement Officer of the Town of Canton, and has been for approximately six years. Pursuant to § 72.1 of the town's zoning regulations, he is empowered to enforce those regulations. Voluntary compliance with the regulations is essential to the town's ability to manage and control growth and development, in an orderly, fair fashion.
The defendant, Jason's, was organized for the purpose of renting inner-tubes to be used to float down the Farmington River from an access point in New Hartford to a point of disembarkation in Canton. Jason's is using land located between Powder Mill Road in the Town of Canton and the westerly bank of the Farmington River, where renters of the tubes exit the river. Joseph G. Bosco, is the record owner of said land since 1993. The land is located in an AR-1 zone, zoned for single-family, residential use.
On June 18th of this year, the individual defendants began operating Jason's tube rental business, renting inner-tubes to the public and transporting its customers from the point at which they exit the river, in the Town of Canton, at the property mentioned above, back to the point of origin in the Town of New Hartford. The property located in the Town of Canton is part of one business enterprise which operates in two towns, New Hartford and Canton. Typically, each renter returns rental tubes to Jason's in Canton, where a commercial vehicle operated by Jason's transports the customers back to the point of origin in New Hartford. CT Page 8653
Throughout the Town of Canton, the Farmington River and land upland 100 feet from each of its banks, is designated a Farmington River Protection Overlay District ("FRPO District" pursuant to § 59 of the regulations.
During the month of June, prior to the weekend of June 18, 1994, plaintiff Burke became aware of Jason's through an advertisement in a local newspaper. At that time, there were no activities relating to the business. He sent a letter to Mr. Bosco in an attempt to establish informal contact. He received no response. On June 18, 1994, Burke visited Jason's in Canton. He observed a U-Haul moving van which, through contacts with the state police, he had reason to believe would be used in the transport of tubes. He visited the point of origin in New Hartford where he spoke to the defendant Casey and was told by Casey that the tubing business was in operation and that tubes were being picked up at the Canton property. Casey indicated that he was in the business of renting tubes for floating on the river. Burke observed Casey solicit business from four customers who were walking toward the property in their bathing suits and Burke heard Casey explain that they were at a place where tubes could be rented, that they could step inside and get their tubes, and that they would be launched from that location, float down the river, and be picked up in Canton. While discussing the matter with Burke, Burke testified, Casey said that he was going to conduct the business, that he didn't care about the regulations, that the town could sue him in court, he would see the town there. Burke served a Cease and Desist Order on Casey. It was the only such order he has served in the past year.
On June 21, 1994, defendants Bosco and Casey went to Burke's office where they talked about the cease and desist order which had been issued. Defendants Bosco and Casey indicated they wanted to continue to use the property for tubing and they asked if there was any legal way to do that. Burke told them the only legal way to proceed was to follow the town's zoning regulations. Burke told them that they could not conduct the business as they were doing because the property was not zoned for business usage.
Defendants have never received any special exception, site plan approval, or other permit to allow them to operate a tubing operation. Nor have they appealed the Cease and Desist Order to the Canton zoning board of appeals. CT Page 8654
Joseph Bosco testified that he saw the cease and desist order on the same day it was issued. Bosco also testified that he filed a zoning application with the town to have his enterprise recognized as a club, after having been informed by Burke that a club could be a permitted use. The application was withdrawn. Bosco testified that he hoped to make a profit with Jason's. Bosco also identified a zone change application he had submitted in 1991, relating to the property at the center of the instant dispute. Exhibit M. The application indicates that Bosco had entered into an option to purchase the subject property, and that in order to make improvements in connection with the applicant's tubing business, "it will be necessary to change the zoning designation from the current AR-1 to an SB designation." Bosco acknowledged under oath that the town refused to change the zone in 1991 in response to his application, indicating that the town had been "stonewalling" him and that he had attempted repeatedly to resolve his differences with the town to no avail.
When asked why he started Jason's before applying for and receiving zoning permits, Bosco stated "Basically just to get started. . . Why? Because we wanted to get started." Tr. at 165-66. Since June 18, 1994, when the Cease and Desist Order was served, defendants have continued to operate a tube rental business from the Canton property.
The evidence also indicated that defendants' actions are widely known in Canton.
Legal Analysis
This case presents the court with a narrow question: has the town demonstrated that the defendants are violating the town's zoning regulations? The issue before the court in this limited proceeding is not whether the property at issue is properly zoned, or whether the town's zoning regulations should be changed.
The court finds that the plaintiff has proven that defendants are using the subject property to engage in a commercial or business activity for profit in violation of the zoning regulations, specifically §§ 6.1, 21, 53, and 59, when read together. See § 6.1 of the town's zoning regulations, "Permitted Uses," which provides that "Any use not specified as permitted CT Page 8655 in the district is prohibited." The use to which the property is being put is not permitted under the regulations given the facts of this case.
It is apparent from the testimony — including Mr. Bosco's admission that he was operating the tubing venture to make money — that defendants are engaged in a "commercial" or business activity as that term is normally used, meaning, an activity the goal of which is to make a profit. Counsel for defendant conceded this point, essentially, at oral argument on August 19, 1994. In the absence of a definition of "commercial" in the regulations, a common-sense definition must be used. See General Statutes §
The court notes that the subject property is within an AR-01 zone, a zone designated Farming River Overlay Protection District, and a flood plain area. However, in the court's view, the type of activity defendants are engaging in is not permitted in any of these designated areas under the circumstances presented in this case.
The record contains no indication that the defendants took formal steps to argue before any town board or commission that there was a pre-existing, nonconforming use of the property to which they were entitled. See Zachs v. ZBA,
The statute relating to nonconforming uses is General Statutes §
". . . Such regulations shall not prohibit the continuance of any nonconforming use, building, or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use. . ."
To acquire the status of a nonconforming use, it is not enough that the use was merely planned for or contemplated.Karls v. Alexandra Realty Corp. ,
In this case, the evidence falls well clear of establishing that a pre-existing, nonconforming use existed. Defendant Bosco testified that for some time in 1980, defendants ran a tubing operation on the Canton property, then owned by Joseph P. Wilusz. The testimony does not disclose if this was done with or without the approvals of Mr. Wilusz, and why this activity ceased. The evidence does not indicate if any such previous use was legally established at the time, in conformity with existing regulations. Helicopter Associates Inc. v. Cityof Stamford,
Defendants hint in their brief, and suggested at argument on August 19, 1994, that plaintiff Burke was somehow improperly motivated in his actions in this case because he prepared the cease and desist order prior to actually observing tubing-related activities on June 18. There is nothing whatever in the record to support these vague insinuations. To the contrary, the record indicates only that plaintiff Burke has attempted, vigorously and in good faith, to enforce the zoning regulations as he understands them. Surely, he cannot be faulted for acting when he became aware that the defendants has openly proclaimed an intention to commence activities which he believed to be in contravention of the town's zoning scheme.
Defendants also claim that they are being treated differently from other commercial enterprises in town, one of which is operated by the state. The limited record of this case does not provide any basis for the court to conclude that defendants are being treated unfairly. If defendants wish to pursue this argument — or wish to argue that the zoning regulations are somehow being unfairly applied to them — they may, of course, take action to press their claims and enforce their rights in the appropriate forum. What they may not do, however, is place themselves above zoning rules and procedures which other town residents choose to obey, sometimes at great expense and inconvenience. Moreover, if unequal enforcement were occurring, the proper remedy would be for the town to vigorously enforce the regulations with respect to all parties, not to ignore violations in which defendants or anyone else may be engaging.
Based on evidence produced, the court therefore concludes that the town has demonstrated that defendants are in CT Page 8658 violation of the town's zoning regulations and that the plaintiff will probably succeed on the merits.
Given the open and flagrant nature of the violation, the court concludes that it is serious and if permitted to continue unchallenged will erode the legitimate functioning of the zoning enforcement officer to enforce the town's zoning regulationsJohnson v. Murzyn,
In evaluating the harm to the defendants, the court agrees with the town that depriving defendants of proceeds of activities that they are engaging in, in violation of the regulations, ought not to be weighed in the balance against the town. See City of Norwalk v. Eugene Morano, 12 CLT 45 (November 17, 1986). The court concludes, therefore, that the equities weigh in favor of the town's request for injunctive relief.
Consequently, the court hereby grants the application for temporary injunction. A copy of the court's order is appended hereto. The court orders defendants' counsel to bring this order to his clients' attention immediately on receipt of this memorandum. Defendants are hereby ordered to cease and desist from engaging in the activities they are presently engaging in, as indicated in the cease and desist order. This order is to continue in effect until further order of court.
Costs, Fine and Attorneys' Fees
Pursuant to §
The town also seeks costs, fines, and attorney's fees, pursuant to General Statutes §
Finally, the town seeks attorney's fees following a hearing. Counsel for plaintiff and defendants are hereby ordered to confer and attempt in good faith to reach an agreement as to what amount of attorney's fees, and costs, are reasonable. Plaintiff's counsel shall report to the court by no later than September 2, 1994, indicating whether such an agreement has been reached. If no agreement has been reached by that date, a hearing shall be held at 10:00 a.m. on Friday, September 9, 1994, to consider costs and attorney's fees.
DOUGLAS S. LAVINE JUDGE, SUPERIOR COURT